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2023.08.21 Demurrer, Motion to Strike 183
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.08.21
Excerpt: ...urrer First, Second, Third and Fourth Causes of Action: Negligence-Based Causes of Action As an initial matter and as the Court recognized in its ruling on the first demurrer, the District cannot be vicariously liable for Doe 2's sexual abuse of Plaintiff. (See ROA 74; see also, John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447; Steven F. v. Anaheim Union High School Dist., (2003) 112 Cal.App.4th 904, 909.) Plaintiff's opposition ...
2023.08.14 Motions to Strike 242
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.08.14
Excerpt: ...ion of the Prayer seeking prejudgment interest, Civil Code § 3291 does not apply to wrongful termination actions. (Holmes v. General Dynamics Corp. (1993) 17 Cal.App.4th 1418, 1436; 6 Witkin, Summary 11th Torts § 1828 (2023); Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 C.3d 121.) As the gravamen of the claim here is wrongful termination, § 3291 is inapplicable, and no other basis for prejudgment interest is apparent. The Complaint, as ...
2023.08.14 Motion for Summary Judgment, Adjudication 260
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.08.14
Excerpt: ... breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.) “It is fundamental that in order to take charge of a person in such a manner as will create a duty to control his conduct, one must possess the ability to control that...
2023.07.24 Motion to Compel Production of Docs 613
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.24
Excerpt: ...ce documents responsive to subpoena request Nos. 4 – 7 at this time. Before the court is a request to order Plaintiff's current counsel of record to produce documents responsive to a subpoena duces tecum (“Subpoena”). (Civ. Proc. Code § 2031.240.) The basis for the Subpoena is that CST previously represented Plaintiff and his mother/bankruptcy attorney Amanda J. Potier in another action (“CTI Action”). Several of the Defendants in this...
2023.07.24 Motion for Attorney Fees 790
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.24
Excerpt: ... Civ. Proc. Code § 405.38. (Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42-43.) “The purpose underlying section 405.38 is to curtail misuse of the lis pendens procedure.” (J&A Mash & Barrel, LLC v. Superior Ct. of Fresno Cnty. (2022) 74 Cal. App. 5th 1, 42.) “The term prevailing party was not defined in the statute and, as a result, courts determine the prevailing party by taking a practical approach that ...
2023.07.24 Demurrer 366
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.24
Excerpt: ...o matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3...
2023.07.17 Motion to Compel Further Responses 450
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.17
Excerpt: ...n other than the date, time, and length of calls made and received, redacted. This motion concerns Plaintiff's Request for Production No. 19, which seeks: “All bills and usage statements for the date of the INCIDENT (i.e., the 24-hour time period) for any mobile communications device (such as a cellular telephone) in YOUR possession, custody and/or control on the date of the INCIDENT.” (¶8 of Nikarjam Declaration and Exhibit B thereto.) As n...
2023.07.10 Motion to Compel Arbitration and Dismiss or Stay Proceedings 228
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.10
Excerpt: ...tated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molina...
2023.07.10 Demurrer 992
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.10
Excerpt: ...rst and fourth causes of action). The general demurrers of defendants Samantha Zehngut and Julia Mestas to the fifth cause of action are SUSTAINED with 30 fays leave to amend. First cause of action for gender and pregnancy discrimination. The first cause of action is for gender and pregnancy discrimination and is brought against all three defendants. A prima facie case for a discrimination requires a showing by the plaintiff of the following elem...
2023.07.03 Special Motion to Strike 672
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.03
Excerpt: ...First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success…‘[C]laims with the requisite minimal merit may proceed.' ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385, 205, fn. omitted.) “Assertions that are ‘merely i...
2023.07.03 Demurrer 827
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.07.03
Excerpt: ...st produce evidence they were subjected to ‘offensive comments or other abusive conduct' that is (1) based on a ‘protected characteristic' (here, a claimed disability) and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.' (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 871.) … Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically t...
2023.06.28 Application for Writ of Attachment 942
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.06.28
Excerpt: ...orber Indus. v. Turbulence, Inc. (1985) 175 Cal. App. 3d 532, 535.) Plaintiff seeks a writ of attachment pursuant to Civ. Proc. Code § 483.010, which requires 1) an action on a claim or claims for money; 2) each of which is based upon a contract, express or implied; 3), where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fe...
2023.06.28 Motion for Summary Judgment 090
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.06.28
Excerpt: ...itive damages. A. First Cause of Action – Hostile Work Environment Harassment “[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status].” (Ortiz v. Dameron Hospital Assn. (2019) 37 Ca...
2023.06.26 Motion for Summary Judgment, Adjudication 149
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.06.26
Excerpt: ...unique set of rules adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042.) A. First Cause of Action – Harassment/Hostile Work Environment To establish a prima facie case of harassment/hostile work environment...
2023.06.12 Motion to Strike 664
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.06.12
Excerpt: ... against him on summary judgment, they are not entitled to recover any costs, citing Labor Code § 218.5. Plaintiff contends that, under this code section, if the prevailing party in a court action is not an employee, attorney's fees and costs may only be awarded if the Court finds that the employee brought the action in bad faith, i.e., it finds that the action is unreasonable, frivolous, meritless, or vexatious. Plaintiff contends that the acti...
2023.06.12 Motion for Summary Adjudication 810
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.06.12
Excerpt: ...rty's or one's own act or default.” (INDEMNIFY, Black's Law Dictionary (11th ed. 2019).) “Express indemnity refers to an obligation that arises “ ‘by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.' ” [Citation.] Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, i...
2023.06.12 Discovery Motions 555
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.06.12
Excerpt: ...documents, and requests for admission are due 30 days after service (plus appropriate time for method of service). (CCP §§ 2030.260, 2031.260, and 2033.250.) With respect to the Requests for Admission, a propounding party may ask the court for an order that deems the matters contained in the requests for admission admitted if the receiving party fails to respond to the requests for admission. (CCP § 2033.280(b).) The court shall grant the orde...
2023.05.15 Motion to Compel Arbitration and Stay Action 342
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.15
Excerpt: ... either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) NNA moves to compel arbitration based on the arbitration agreement contained in the Retail Installment Sale Contract ("RISC") attached as Exhibit 4 to the Maugeri Declaration. The RISC, dated 5/30/20, is between plaintiffs Yesenia Delao and Patricia Delao ("Plaintiffs") as "Buyer" and Buena Park Nissan as "Seller-creditor." NNA acknowledges that it is not a signatory...
2023.05.15 Motion for Terminating, Issue, and Evidentiary Sanctions 920
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.15
Excerpt: ...he request for issue and terminating sanctions. As a threshold matter, defendants have met their burden of showing that plaintiff intentionally destroyed evidence after contacting a lawyer and while considering litigation. In her deposition, plaintiff admitted that, prior to turning in her computer to her employer, she downloaded certain files onto thumb drives and used a special program to entirely wipe the computer. Furthermore, although we do ...
2023.05.15 Motion for Preliminary Injunction 532
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.15
Excerpt: ...e Lock Co. (2002) 101 Cal.App.4th 1443, 1449—1450.) Plaintiff seeks an injunction to prohibit defendants Ruth Anne Della Vedova ("Della Vedova" individually); Barbara A. Kerr; and Asset Default Management, Inc. ("ADMI" individually; 'Defendants" together with Vedova) from selling real property located at 19311 Oriente Drive in Yorba Linda ("Property"). 1) Likelihood of Prevailing On the Merits Plaintiffs' Complaint states various causes of acti...
2023.05.08 Motion for Summary Judgment, Adjudication 149
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.08
Excerpt: ...s adapted from the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas corp. v. Green (1973) 411 U.S. 792. The burden-shifting for discrimination claims also is applied to retaliation claims. (Yanowitz v. L'Oreal USA, Inc., 36 cal.4th 1028, 1042.) A. First Cause of Action — Harassment/HostiIe Work Environment To establish a prima facie case of harassment/hostile work environment under the Fair Em...
2023.05.01 Motion to Quash, for Protective Order 133
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.01
Excerpt: ... Apartment Homes, 500 Estancia, Irvine, CA 92602, involving Jiahan wu, DOB 9/19/2020." Defendants assert that the subpoena is overbroad, but provide no explanation or argument as to how the request is overbroad nor do Defendants offer any possible narrowing. Defendants argue that production of the requested items would violate Defendant Cruz's Fifth Amendment Rights. Defendants argue that Defendant Cruz's privacy rights are at issue, as he could ...
2023.05.01 Motion for Reconsideration 308
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.01
Excerpt: ...e. "CA]II that is necessary is to call the court's attention to such papers." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) 'l g.53.1a.) Nonetheless, the Court will GRANT both parties' requests for judicial notice as to the existence of the following documents only: Fidelity's Complaint, Demurrer to FAXC, Demurrer to SAXC, the SAXC, Notice of Ruling Re: Plaintiff Fidelity National Title Insurance Company...
2023.05.01 Motion for Preliminary Injunction 107
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.01
Excerpt: ...t complained of, either for a limited period or perpetually. (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights...
2023.05.01 Motion for Determination of Good Faith Settlement 981
Location: Orange County
Judge: Hoffer, David A
Hearing Date: 2023.05.01
Excerpt: ... moving defendants to pay $135,000 in exchange for a dismissal. It is conditional upon: (1) the entry of a final, non- appealable order granting the instant motion for an order determining the settlement to be in good faith; and (2) the supplemental production by settling defendants of documents responsive to plaintiff's requests for production. Responding co-defendants Sunil Kirit Mehta, Real Estate Xperts, Inc., and O.Rhyan Capital Management, ...

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