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2019.12.16 Demurrer 566
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.12.16
Excerpt: ...ikely to mislead for want of communication of that fact” Civ. Code § 1710(3). “To state a claim for fraudulent concealment, a plaintiff must allege: “ ‘(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.' ” In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pr...
2019.12.9 Demurrer 949
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.12.9
Excerpt: ...r context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer on the ground of uncertainty is disfavored and should be sustained only when the complaint is so incomprehensible that the defendant cannot reasonably respond since ambiguities may be clarified in discovery. (Lickiss v. Financial indus. Regulatory Auth. (2012) 208 Cal.app.4 th 1125, 1135.) When the allegations in a complaint are sufficiently specific to apprise defendant of the is...
2019.12.9 Demurrer 789
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.12.9
Excerpt: ...t toward or disposition of the property, interfering with plaintiff's possession, and damage to plaintiff. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.) Money cannot be the subject of a conversion claim unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. (Id.) The plaintiff must allege a right to immediate possession at t...
2019.12.9 Motion to Quash Subpoenas 401
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.12.9
Excerpt: ...th enough lead time to reasonably permit the deponent to prepare and/or respond. CCP §§ 1987(a), 2020.220(a); California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4 th 16, 20-21. The subpoena must include an affidavit demonstrating good cause for the requested documents, materiality of the documents to the issues to be addressed, and a basis for believing the witness possesses or controls the documents. CCP § 1985(b). Any intere...
2019.11.25 Motion for Judgment on the Pleadings 568
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.25
Excerpt: ...he defendant of the nature, source, and extent of [the] cause[s] of action'” against it. (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 858.) Further, the general allegations fall short of the standards for alleging fraud claims. (See Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 (“general and conclusory allegations do not suffice”); Committee on Children's Television, Inc. v. General Foods Corp. (...
2019.11.25 Demurrer 842
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.25
Excerpt: ...of the law does raise a presumption that the violator was negligent. This is called negligence per se.”]; see also Evid. Code § 669, and CACI 400 and 418.) Under the doctrine of negligence per se, the plaintiff “borrows” statutes to prove duty of care and standard of care, but still has the burden of proving causation. (David v. Hernandez (2014) 226 Cal.App.4th 578, 584.). Since the law does not permit an independent cause of action for ne...
2019.11.25 Motion to Compel Further Responses 421
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.25
Excerpt: ...ry, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 541; Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-21. ) Under the Code, “An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.” (CCP § 2030.010.) Under th...
2019.11.25 Motion to Compel Arbitration 029
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.25
Excerpt: ...e existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. To satisfy the moving party's initial burden, the petition or motion must be accompanied by prima facie evidence of a written agreement to arbitrate the controversy in question. In ruling on the petition or motion, the court must deter...
2019.11.25 Motion for Summary Adjudication 177
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.25
Excerpt: ...nuary 2011, agents from the US Department of Education (“DOE”) conducted an audit of defendant's beauty school to determine proper use of federal student aid funds. The DOE reviewed 58 student files. Defendant participated in the audit and learned at that time of only minor, correctible issues. The school was downgraded from HCM1 to HCM2 to permit the DOE more control over its handling of financial aid. According to defendant, she heard nothi...
2019.11.19 Demurrer 910
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.19
Excerpt: ...age in each brief will be considered. CRC Rule 3.1113(g). As to the arguments, Defendant's Answer and the affirmative defenses contain a mix of both general and specific denials of the allegations in the Complaint, which is appropriate for an Answer pursuant to CCP § 431.30(b)(1). Those allegations are not appropriate for demurrer (Affirmative Defenses (“AD”) 1-6, 8-11, 13, and 16-19. AD 20-25 were not considered as Plaintiffs' Demurrer was ...
2019.11.4 Demurrer 189
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.4
Excerpt: ...nfer declaration is facially insufficient per CCP §430.41 (it fails to make plain that a conference in fact took place), this Court declines to send the parties back to discuss the demurrer more since the demurrer lacks merit. The plaintiffs' case in chief includes the following essential elements: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise, (2) a b...
2019.11.4 Demurrer 316
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.4
Excerpt: ...mplaint once as a matter of right, provided that it is done within a specified time. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 573.) “[T]he purpose of the statute permitting amendments as of right before an answer is filed or a demurrer is ruled upon is to promote judicial efficiency and reduce the costs of litigation.” (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505–506). In light of this ruling, ...
2019.11.4 Demurrer 600
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.11.4
Excerpt: ...to plaintiff. Complaint, at ¶¶42-43, 53-54. When claims under CLRA or UCL are based on fraud-like allegations of concealment or omissions, they “must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims,” but requires more than the general rule of pleading to state the ultimate facts. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal. App. 5th 1234, 1260-1...
2019.10.28 Motion to Compel Responses, for Monetary Sanctions 395
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.28
Excerpt: ...amount of $870 ($1.5 hours for drafting the motions, plus 1 hour for the appearance at the hearings X $300 per hour, plus $60 for the filing fee for each motion X 2 motions) for the attorney's fee and costs incurred by Defendant in connection with these motions. Vexatious Litigant: Defendant Zhen McWilliams' motion for an order declaring plaintiff Michael McWilliams to be a vexatious litigant and requiring Plaintiff to post bond is denied without...
2019.10.28 Demurrer 297
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.28
Excerpt: ...to negligence but stricter. (See Snider v. Whitson (1960) 184 Cal.App.2d 211, 214- 215.) The elements for a willful misconduct claim include the same elements of any negligence cause of action, i.e. duty, breach of duty, proximate cause and damages (Id.), as well as the following additional elements: No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. (Id. at p. 215). In addition, “...
2019.10.28 Motion to Compel Arbitration 693
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.28
Excerpt: ... which contain written agreements to arbitrate that apply to this controversy, and have shown that Plaintiff has refused to arbitrate. The most recent of those are the two agreements signed by Plaintiff on 1/5/09 (the “Agreements”), which purport to address her obligations as an employee. (Rubio Decl. Exs. 3 & 4.) Plaintiff asserts that she was told that these Agreements replaced all prior ones. (Page Decl. ¶¶ 3, 4.) As these Agreements pur...
2019.10.28 Motion for Appellate Court Costs 094
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.28
Excerpt: ...emittitur”). CRC Rule 8.278(b). Although Plaintiff herself filed a second Memorandum of Costs on 06/10/19 (“Memo #2”), that memorandum was filed outside the 40-day window and cannot be considered as a either a valid memorandum or as an amendment to Memo #1. Alan S. v. Superior Court (2009) 172 Cal. App. 4th 238, 261-62. Additionally, Plaintiff is only permitted to recover appellate costs in Appellate Case No. G055258, as the other two cases...
2019.10.28 Demurrers 198
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.28
Excerpt: ...en causes of action. The body of each cause of action contains a simple recitation of the legal elements, while nine or more pages of previous allegations are incorporated in an attempt to plead the necessary facts. Group pleading of causes of action and incorporating all prior allegations leads to uncertainty where there are many actors and events involved. (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 (“This type of pleading ...
2019.10.21 Demurrer 983
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.21
Excerpt: ... (11) causes of action (“COA”) contained within the operative Second Amended Complaint. In general, while the operative pleading tracks various transactions plaintiff finds to be suspicious, it is not clear to this Court how those transactions materialize into a cognizable loss to the LLC. There is no reference to the Operating Agreement, which leaves this Court to wonder whether the missing funds are owed directly to the LLC members or to th...
2019.10.21 Demurrer 964
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.21
Excerpt: ...(Richardson v. Franc (2015) 233 Cal. App. 4th 744, 754-756; Sheon v. Zacarias (2019) 33 Cal. App. 5 th 1112, 1119-1120). An irrevocable license is enforceable against a successor. (Richardson v. Franc, supra, 233 Cal. App. 4th at 755; Zellers v. State of California (1955) 134 Cal. App. 2d 270, 272). Here, Plaintiff alleges that the Beach Stairs were first constructed in the 1960s and that its predecessors contributed significant amounts of money,...
2019.10.21 Motion for Summary Judgment 036
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.21
Excerpt: ...e is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegation...
2019.10.21 Demurrer 896
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.10.21
Excerpt: ...Amended Complaint. Pertinent Background Facts On or about 05/20/03, nonparties James and Arlene Wright (hereinafter “Wright”) purchased the property at 22601 Killy Street in Lake Forest (hereinafter “subject property”). On or about 09/21/04, Wright borrowed $457,500.00 from Washington Mutual. The loan was memorialized by a promissory note, and secured by a senior deed of trust (hereinafter “senior lien”) against the subject property. ...
2019.4.12 Demurrer 736
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.4.12
Excerpt: ...ee passage or use, in the customary manner, of any . . . street or highway . . . .” Civ. Code § 3479. “In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff's property; proof of interference with the plaintiff's use and enjoyment of that property is sufficient.” San Diego Gas & Elec. Co. v. Superior Court (“SDG&E”) (1996) 13 Cal. 4th 893, 937. “The first additional requirement for recove...
2019.4.12 Demurrer 541
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.4.12
Excerpt: ...inancial infusion of $10,000 back, but very little for her purported ownership interest. Before the Court is a demurrer to the 1 st (fraud), 3 rd(constructive fraud), 6 th (unfair practices), 7 th (securities fraud), 8 th (sale of unqualified security), 9 th (dissolution), and 10 th(dissolution) causes of action in the Complaint. The parties have engaged in the necessary meet and confer before bringing this matter to Court, but were unable to fin...
2019.4.12 Motion to Compel Further Responses, for Monetary Sanctions 219
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.4.12
Excerpt: ...5 days of this order. The plaintiff's request for monetary sanctions is denied. Form Interrogatories Nos. 3.7, 12.2, 12.3, 12.7, 15.1, 16.9 and 16.10: Defendant Kathy Nguyen dba Zara Nails & Spa has indicated in her Opposition brief that she will provide amended responses to Form Interrogatories Nos. 3.7, 12.2, 12.3, 12.7, 15.1, 16.9 and 16.10; as such, the motion to compel further responses will be moot if further responses are provided before t...
2019.3.29 Demurrer 036
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.29
Excerpt: ...and thus leaves each cross-defendant unable to discern which allegedly did what to incur liability. But a demurrer for uncertainty should be sustained only where the pleading is so bad that defendant cannot reasonably respond. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615-616.) Here, the XC asserts that UMT was Balboa's vendor, that UMT and Balboa acted together, and that their combined conduct caused the harm alleged. ...
2019.3.29 Motion for Issue, Evidentiary, or Monetary Sanctions 955
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.29
Excerpt: ...y a separate statement. (See C.R.C. 3.1345(a)(7) [“(a) Separate Statement required. Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: … (7) For issue or evidentiary sanctions.”].) Plaintiff argues that no separate statement was required here since the discovery at issue was already addressed i...
2019.3.29 Motion to Quash Subpoenas 401
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.29
Excerpt: ... the deposition subpoenas issued to Midwest Employer's Casualty Company and GSM Rental Group. The request to Midwest was for “any and all non- privileged records and documents, including but not limited to industrial injury records, benefits entitled to or paid out, medical records and information of health and/or accident claims pertaining to Hector Reyes Rivera, born on August 12, 1980, with SSN: XXX-XX-6606, from 11/1/816 to 2/6/19.” The r...
2019.3.29 Motion to Quash Service of Summons 753
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.29
Excerpt: ...roper service of a defendant under section 474 may be attacked by a motion to quash. Optical Surplus, Inc. v. Superior Court, (1991) 228 Cal. App. 3d 776, 782- 783. C.C.P. § 474 is only applicable when the plaintiff is “actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.” McClatchy v. Coblentz, Patch, Duffy & Bass, LLP, (2016) 247 Cal. App. 4th 368, 371 – 372. Here, the evi...
2019.3.29 Demurrer 670
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.29
Excerpt: ...much accusatory language in the Complaint, the COAs as pled are based on alleged negligence, incompetence and “recklessness,” not on an alleged conspiracy between the Firm and its clients. (See e.g. Complaint ¶ 17-19.) That the claims are subject to §1714.10 is thus not apparent from the Complaint as pled. Firm also argues that COAs 1 and 2 fail because Firm owed no duty to Plaintiffs as a matter of law. Although the issue of duty is ultima...
2019.3.22 Motion to Compel Depositiion 576
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.22
Excerpt: ... the Defendant. The Defendant has the right to attempt to gather information and evidence to defend itself against these claims and to depose an adverse party. (CCP § 2025.210(a)). “Under existing law, the competency of a person to be a witness is a question to be determined by the court and depends upon his capacity to understand the oath and to perceive, recollect, and communicate that which he is offered to relate…” (Law Rev. Comments t...
2019.3.22 Motion to Quash Service of Summons 967
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.22
Excerpt: ...e motion is denied as moot with respect to defendants Erickson and Wellman. Defendant Ron Plemmons does not seek any relief from this court, and, thus, no order regarding this defendant is made by the court at all. Authorities: Substitute service on an entity defendant is effected by leaving a copy of the summons and complaint at the office during usual office hours with a person at least 18 years of age and apparently in charge and thereafter ma...
2019.3.22 Motion for Leave to File Amended Complaint 750
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.22
Excerpt: ...edings, up to and including trial. . ., this policy should be applied only “[w]here no prejudice is shown to the adverse party....” . . . A different result is indicated “[w]here inexcusable delay and probable prejudice to the opposing party” is shown.” Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123...
2019.3.22 Demurrer, Motion to Strike 542
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.22
Excerpt: ...e challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank,...
2019.3.15 Demurrer 985
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.15
Excerpt: ...umas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) Plaintiff thus appears to have abandoned his claims here. The demurrer also has merit. A demurrer for uncertainty lies only where the complaint is so poorly pled that a defendan...
2019.3.15 Motion to Compel Further Responses 610
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.15
Excerpt: ...process to try to informally resolve the matter, the moving party has, at times, thwarted these efforts by refusing to go beyond writing letters and discuss the matters personally. Clement v. Alegre (2009) 177 Cal. App. 4 th 1277, 1294. The suggestion by the moving party that nothing more was required was not well-taken. (See Townsend v. Superior Court (1998) 61 Cal.App.4 th 1431, 1438-39; see Moving Exhibit E; Civ. Pro. Before Trial § 8:1163, 8...
2019.3.15 Demurrer 276
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.15
Excerpt: ...every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law.” In re Joseph F. (2000) 85 Cal. App. 4th 975, 986. However, “[t]his is not to say . . . that persons have unfettered free access to all public places. Indeed, where the nature of a public place or other circumstance so justifies, citizens regularly are subjected to intrusions not approp...
2019.3.8 Demurrer 424
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.8
Excerpt: ... 3 rd cause of action under B&P Code § 17531 and § 17535 The demurrer is sustained with leave to amend. Pleading a cause of action for violation of a statute requires more than reiterating the language of the statute. (See Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478.) On demurrer, the court looks for well-pleaded material facts, versus contentions and conclusions of law or conclusions of fact. (See WA Southwest 2, L...
2019.3.8 Motion for Appointment of Receiver 192
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.8
Excerpt: ...er shall oversee and verify that David Shiokari is properly accounting for Tomko, T & N Walnut, and T & N Fountain assets, income and expenses and approve and oversee any real property sales by Tomko, T & N Walnut, and T & N Fountain. To accomplish such tasks the receiver shall be given immediate and unfettered access to any and all partnership records and accounts and responsible individuals, including but not limited to David Shiokari, on a bi-...
2019.3.8 Motion to Compel Responses, for Sanctions 200
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.8
Excerpt: ... Motion is thus defective on its face and fails on its own merits. Microsoft Corporation's request for sanctions is GRANTED IN PART under C.C.P. § 2031.310(h), as it does not appear that Plaintiff acted with substantial justification or that other circumstances would make the imposition of a sanction against Plaintiff unjust here. However, the sum sought appears to be an excessive sanction for opposition to this patently defective motion. Sancti...
2019.3.1 Demurrer 416
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.1
Excerpt: ...aintiff, including, but not necessarily limited to, those contained in Complaint ¶¶ 110, 111, 113, and 115-17 as to COA #4; Complaint ¶¶ 119-31 as to COA #5; Complaint ¶¶ 133-36, 140, 142-47, and 149-154 as to COA #6; Complaint ¶¶ 162-64 and 167 as to COA #7; Complaint ¶¶ 169, 174-87 as to COA #8; and Complaint ¶¶ 190 and 192 as to COA #9. These allegations are properly pled with sufficient facts to inform a defendant whose name is di...
2019.3.1 Motion to Reopen Discovery 344
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2019.3.1
Excerpt: ...that “[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP section 2024.050(b) provides, “[i]n exercising its discretion to grant or deny this motion, the court shall take i...

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