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2022.11.28 Motion for Leave to File FAC 105
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.11.28
Excerpt: ...matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) This is a purely discretionary motion for the Court. (WEIL Page | 2 & BROWN, CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL [The Rutter Group] ¶ 6:637.) Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 225 states in pertinent part: Having examined ...
2022.11.17 Motion for Leave to File SAC 045
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.11.17
Excerpt: ...d Proposed Amended Complaint be deemed filed and served as of the date this motion is granted. Plaintiff properly discloses what the amendments are in the proposed Second Amended Complaint. (See Decl. Shan, Exhibit 1.) Plaintiff moves for leave to file a Second Amended Complaint to add Chevron U.S.A. Inc. dba Chevron Products Company as a defendant, as it has been uncovered through discovery that Chevron U.S.A. Inc. dba Chevron Products Company i...
2022.11.17 Motion for Good Faith Settlement Determination 003
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.11.17
Excerpt: ... recovery and the settlor's proportionate liability CareMore argues that the total recovery is limited by the MICRA limit of $250,000 against medical providers, and the amount of the confidential settlement is $165,000. (Confidential Decl. of Wendy Coulston at ¶¶5‐6.) The single cause of action against CareMore is for wrongful death by medical malpractice. The complaint alleges the medical malpractice defendants, including CareMore, negligent...
2022.11.10 Motion for Summary Adjudication 701
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.11.10
Excerpt: ... for Judicial Notice Included in Defendant's appendix of evidence is a request for judicial notice of three government claim forms submitted by Plaintiff to Defendant. (RJN Exs. A‐C.) Defendant's request is unopposed. Page | 2 Government claims are generally proper subjects of judicial notice. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 [“If a plaintiff alleges compliance with the claims presentation requirement, but the pub...
2022.11.02 Motion for Summary Judgment, Adjudication 501
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.11.02
Excerpt: ...ubalcaba are Overruled in their entirety; (3) Defendants' Sixteen Evidentiary Objections to Declaration of Francesca Sparks‐Copeland are Overruled in their entirety; Page | 2 (4) Defendants' 118 Evidentiary Objections to Declaration of Dr. Melda Gaskins are Overruled in their entirety; (5) Defendants' Ten Evidentiary Objections to Declaration of Taylor M. Prainito are Overruled in their entirety; (6) Defendants' Evidentiary Objections to Plaint...
2022.10.24 Motion for Summary Judgment, Adjudication 005
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.10.24
Excerpt: ...bligations of an LLC, defendants completely ignore the alter ego allegations within the complaint. (Compl. at ¶ 7.) Page | 2 Under the alter ego doctrine “where a corporation is used by an individual or individuals, or by another corporation, to perpetrate fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, a court may disregard the corporate entity and treat the corporation's acts as if they were done by the...
2022.09.27 Motion for Summary Judgment, Adjudication 201
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.27
Excerpt: ...t any fellow employee responsible for injuries “arising out of and in the course of employment.” (See Labor Code, §§ 3600‐3602, 5300.) Workers' compensation is generally the exclusive remedy for disabling injuries, whether physical or mental, arising from employment (or termination of employment), unless: (1) the injury results from employer conduct that falls “outside the normal course of employment”; or (2) the employer's conduct fa...
2022.09.22 Motion to Compel Arbitration and Stay Action 201
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.22
Excerpt: ...ther Ford nor Ken Grody are signatories to the RISC. The RISC includes a section entitled Arbitration Provision which states, in relevant part, Any claim or dispute, whether in contract, tort, statute or otherwise … between you and us or our employees, agents, successors or assigns, which arises out of or relates to your … purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such rel...
2022.09.20 Motion to Continue Trial Date and Expert Depositions 201
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.20
Excerpt: .... Motion: Motion to Continue the Trial Date and Expert Depositions Movant: Defendant American Automobile Association of Northern California, Nevada and Utah Respondents: Plaintiffs Estate of Gabriel Machado Castro, Gabriela Machado Castro and Humberto Machado Llanes Discussion ‐ “[t]he determination of a request for a continuance must be based upon the facts and circumstances of the case as they exist at the time of the determination.' [Citat...
2022.09.15 Motion to Compel Arbitration and Stay Proceedings 701
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.15
Excerpt: ...the obligations imposed by the agreement containing the arbitration clause. (Goldman v. KPMG LLP (2009) 173 Cal.App.4th 209, 217‐218; Marenco v. DirectTV LLC (2015) 233 Cal.App.4th 1409, 1419‐1420 [equitable estoppel doctrine required employee who signed arbitration agreement with predecessor corporation to arbitrate claims against nonsignatory successor corporation (employees who continued working after merger impliedly accepted successor co...
2022.09.15 Motion for Summary Judgment, Adjudication 605
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.15
Excerpt: ...declaration as follows: a. Objection Nos. 1, 5‐8 – Overrule b. Objection No. 2 – Sustain (lack of foundation) c. Objection Nos. 3, 4 – Sustain (secondary evidence rule). 3. The Court sustains all of Plaintiff's 16 evidentiary objections to unauthenticated documents contained in Defendant's compendium of evidence as lacking foundation and hearsay. 4. The Court sustains Plaintiff's objection to Defendant's Undisputed Fact No. 10 because it ...
2022.09.15 Demurrer, Motion to Strike 104
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.15
Excerpt: ...nts for a breach of contract are (1) the existence of a contract, (2) the plaintiff's performance or excuse for performance, (3) the defendant's breach, and (4) resulting damages. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1176.) identified as parties to the contract. Plaintiffs contend that they have adequately alleged Defendants Cobb are bound and obligated to each other under the contract. Here, the SAC alleges Co...
2022.09.12 Motion to Dismiss or to Toll 703
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.12
Excerpt: ...Court is bound by the ruling. Page | 2 Motion to Dismiss Defendant TransAm seeks a discretionary dismissal on the basis that it be permitted to deposit $30,000 with the Court, as this is the maximum liability it faces under Vehicle Code section 17150. Defense counsel, Dawn B. Eyerly, provides a declaration stating that following the appellate opinion, she sent an email to Plaintiff's counsel agreeing to stipulate to TransAm's liability (under the...
2022.09.12 Motion for Attorney Fees 046
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.12
Excerpt: ...nts an undue burden on the court and staff to process. Motion: The motion is granted in part. The Court determines that Plaintiff is the prevailing party and entitled to an award of reasonable attorneys' fees. The Court has carefully scrutinized the motion, the supporting Declarations and the billing, the Opposition and Declarations and Exhibits, and reviewed the Court's file and the pleadings. A. Attorney's Fees: In determining a proper fee awar...
2022.09.09 Motion to Compel Deposition 501
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.09
Excerpt: ...the deadline in order to have the parties attempt to resolve this dispute without filing a motion. It is also undisputed that Fonseca served the deposition notice, no formal objections were served, and Hammonds failed to appear. Walmart also failed to file a motion for protective order. This is significant since the cases upon which Walmart primarily relies to avoid the deposition under the apex witness doctrine involve a motion for protective or...
2022.09.09 Motion for Summary Judgment 602
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.09
Excerpt: ...et, the defendant must show a triable issue of one or more material facts exist. (Code Civ. Proc., §437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at pp. 849‐51.) The defendant may not rely on his answer. (Code Civ. Proc., §437c, subd. (p)(1).) The summary judgment motion must be supported by affidavits, declarations, discovery responses (e.g., admissions and interrogatories), depositions, and matters judicially noticed. (Code Civ. Proc., §4...
2022.09.09 Demurrer 402
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.09
Excerpt: ...e of action. 3rd Cause of Action – Injunctive Relief Thomas states he has now dismissed the third cause of action and the demurrer is moot. The dismissal does not yet appear in the Register of Actions. If the dismissal has not been filed, then the demurrer to the third cause of action is sustained without leave to amend given that Thomas concedes this cause of action. 4 th Cause of Action – Breach of Fiduciary Duty Thomas alleges Collyer was ...
2022.09.01 Motion for Summary Judgment, Adjudication 405
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.09.01
Excerpt: ...ir initial burden of showing a legitimate basis for the termination. (Fact No.'s 7‐12; see also Fact No. 248.) However, substantial responsive facts and evidence have been submitted upon which pretext could be found. Namely, the termination occurred within a few months after Jaramillo's complains about harassment; just after the complaint her job duties were changed, suggesting she was set up for failure; the evidence of the harassment from Con...
2022.08.25 Motion to Compel Arbitration and Stay Proceedings 206
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.08.25
Excerpt: ...nterpretation covering the asserted dispute.” (Rice v. Downs (2016) 248 Cal.App.4th 175, 185.) However, ordinary principles of contract interpretation apply, meaning the court must determine whether the parties agreed to arbitrate the claims at issue, the scope of the arbitration clause, and the terms of the arbitration clause. (Ibid.) In determining the applicability of an arbitration agreement, the court should attempt to give effect to the p...
2022.08.25 Demurrer 004
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.08.25
Excerpt: ... A plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation, and damages. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents); Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko).) “In general, each person has a duty to act with reasonable care under the circumstances.” (Regents, supra, at p. 619; accord, Vasilenko, supra, at p. 1083 [“Civil C...
2022.08.23 Petition to Compel Arbitration, to Stay Action 401
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.08.23
Excerpt: ...ITAL OF MONTCLAIR, a business organization form unknown; COMMUNITY CONVALESCENT CENTER OF MONTCLAIR, INC., a corporation; PINKY BONOAN, an individual; JOHN POWERS, JR., an individual; JOSHUA POWERS, an individual; AMANDA POWERS, an individual; CHRISTINA AGUILAR, an individual; ROBERT GOMEZ, an individual; DOMINIQUE MELENDES, an individual; MARIAH REYES, an Page | 2 individual; AMERICA REYES, an individual; and DOES 1‐100, inclusive. Motion: (1)...
2022.08.08 Demurrer to FAC, Motion to Strike 800
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.08.08
Excerpt: ...tality of the circumstances, the court may look at the frequency of the conduct, as well as its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's job performance. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Although teasing, offhand comments, and isolated incidents are generally not sufficient to create a hostile work environ...
2022.08.03 Motion to Compel Arbitration and Stay 107
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.08.03
Excerpt: ... Code section 452, subdivision (d), but denies judicial notice of the entry of dismissal in another state court proceeding as irrelevant. Plaintiff Mercado requests judicial notice of Ngo v. BMW of North America, LLC (9th Cir. 2022) 23 F.4th 942 (Exh. 1) and a tentative ruling on compelling arbitration in Celiceo v. Nissan North America, San Diego Superior Court, case no. 37‐2022‐00006556‐CU‐BC‐CTL (Exh. 2). The Court denies judicial no...
2022.07.28 Motion for Summary Judgment 252
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.07.28
Excerpt: ...of defendant San Antonio Ambulatory Surgical Center (SAASC). Defendant Dr. John Oakley Page | 2 (Oakley) was the attending anesthesiologist. Defendant Concentra, Inc. (Concentra) is alleged to be the entity operating occupational health services and urgent care centers in Rancho Cucamonga. Todd alleges that as a result of negligent care, he suffered serious nerve damage and long‐term right shoulder/arm/hand loss of use and severe pain to his ri...
2022.07.27 Demurrer, Motion to Strike SAC 002
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.07.27
Excerpt: ...emurrer to Plaintiff's First Amended Complaint Plaintiff's First Amended Complaint (FAC) against Defendant contained 14 employment‐related causes of action: (1) FEHA age, race, and disability discrimination; (2) FEHA retaliation; (3) FEHA failure to accommodate; (4) FEHA failure to engage in interactive process; (5) FEHA failure to prevent discrimination, harassment, or retaliation; (6) negligent hiring, supervision, and retention; (7) “breac...
2022.07.27 Motion for Summary Judgment, Adjudication 201
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.07.27
Excerpt: ...cation Movant(s): Defendant American Automobile Association of Northern California, Nevada and Utah Respondent(s): Plaintiffs Estate of Gabriel Machado Castro, by and through its Successor in Interest, Humberto Machado Llanes, an Individual; Gabriela Machado Castro, an Individual; and Humberto Machado Llanes, an Individual Rulings The Court rules as follows: (1) Plaintiffs' 20 Evidentiary Objections to the Declaration of Matthew Hoskins are Overr...
2022.05.19 Motion to Modify and Enforce Settlement Terms 063
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.05.19
Excerpt: ...hom remain only Skanska USA Civil West California District, Inc. and Skanska‐Rados. Through the operative fourth amended, Plaintiff alleges that she owns real property that Defendants improperly trespassed upon in completing the I‐215 widening project and in reconstructing of the 16th Street Bridge. Defendants' use of Plaintiff's property was unauthorized and by its encroachment Defendant removed a tree, stripped vegetation, placed an unstabl...
2022.05.18 Motions for Sanctions, for Leave to File FAC 806
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.05.18
Excerpt: ...3) Plaintiffs Respondent: (1)‐(2) Plaintiffs (3) Defendants The People of the State of California, acting by and through the Department of Transportation Page | 2 I. MOTION FOR SANCTIONS a. Statement of Law – Motions for Sanctions Pursuant to Code of Civil Procedure sections 128.5 and 128.7 Code of Civil Procedure1 section 128.7 provides for the imposition of sanctions for filing “frivolous” pleadings. However, the awarded sanctions are n...
2022.05.13 Motion for Summary Judgment, Adjudication 302
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.05.13
Excerpt: ... separate statement. 2. The Court grants Defendant Hyundai's motion for summary judgment. Hyundai demonstrates Plaintiff is bound by the class action settlement under which she released her claims. Further, the first and second causes of action are time‐barred. (Evidentiary Basis: Defendant Hyundai's Undisputed Facts Nos. 2‐16, 21, 23; Settlement Agreement (Exh. B); District Court Order Granting Final Settlement Approval (Exh. C); Amended Sup...
2022.05.12 Motion to Compel Responses 003
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.05.12
Excerpt: ...Special Interrogatories (2) Motion to Deem Requests for Admissions Admitted (3) Motion to Compel Responses to Requests for Production (4) Motion to Compel Response to Form Interrogatories Movant: Plaintiffs Keri Bedol and David Lawrence Respondent: Montclair Royal Senior Living, Inc. The moving party has filed moving papers requesting a ruling from the Court re a Discovery issue. A Discovery Conference Order (herein after DCO) was given in this c...
2022.05.09 Demurrer 201
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.05.09
Excerpt: ...nswer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)1 ; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action s...
2022.05.04 Motion to Strike Punitive Damages
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.05.04
Excerpt: ...malice under Section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) The court in Taylor directed the trial court to reinstate the punitive damage allegations in plaintiff's complaint because there were allegations of defendant's history of alcoholism, his prior arrest and convictions for drunk driving, his prior accident at...
2022.05.04 Motion to Compel Further Responses
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.05.04
Excerpt: ... utilized to attack a response containing objections, an agreement to comply that is incomplete, or a statement of inability to comply that is incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) ...
2022.04.28 Motion for Summary Judgment, Adjudication
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.04.28
Excerpt: ...porting Policy, exhibit 7 to Green's Deposition [Exh. D], (4) a handwritten note, exhibit 7 to Green's Deposition [Exh. D], (5) the October 5, 2017, email, exhibit 10 to Green's Deposition [Exh. D], (6) table with notes, exhibit 9 to Green's Deposition [Exh. E], and (7) table with notes, exhibit 14 to Spina's Deposition [Exh. G] on the grounds of lacks foundation, irrelevant, hearsay, and/or improper opinion: The Court sustains (irrelevant). Anal...
2022.03.24 Motion for Summary Judgment, Adjudication 302
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.03.24
Excerpt: ... to seize. The vehicle had been subject of a recall, but Defendants failed to advise Plaintiff of the same. Plaintiff confronted Defendants about the recall and was advised the vehicle was not eligible due to the mileage restriction. Defendant thereafter learned the mileage restriction had been extended, but Defendants did not disclose this to Plaintiff. (FAC, ¶¶37‐41.) During matching of the engine crankshaft and crankpins, metal shavings ma...
2022.03.21 Motion for Summary Adjudication 002
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.03.21
Excerpt: ... Proc., §1060.) Cross‐Complainant Wheeler's 7th cross‐claims seeks a declaration that Cross‐Defendant Copp owes it a duty to defend under its contractual agreement that contains an indemnity clause (¶¶44‐48). The law provides for specific rules on interpreting indemnity contracts unless a contract provides otherwise. If contractual indemnity exists, the indemnitee is entitled to recover his defense costs. (Civ. Code, §2778, subd. (3)....
2022.03.15 Motion for Attorney Fees 606
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.03.15
Excerpt: ...equest is therefore $92,688.75 plus expenses of $6,298.99.1 In determining the reasonableness of the fees, the court applies the lodestar method, i.e., multiplying the number of hours reasonably worked by a reasonable hourly rate. (Flannery v. Prentice (2001) 26 Cal.4th 572, 584; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.) The Court can reduce hours that appear unreasonably inflated. (Chavez v. Cit...
2022.03.08 Motion to Set Aside Default Judgment 500
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.03.08
Excerpt: ... is to compel a trial Page | 2 on the merits than when the default judgment is allowed to stand. [Citation.] Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. [Citation.] In the present case, [defendant] promptly moved to have the default judgment set aside once he learned of it. The trial court's order granting relief was within its sound d...
2022.03.03 Motion to Reopen Discovery 705
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.03.03
Excerpt: ...) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Page | 2 However, during the Governor's declared state of emergency related to the pandemic, Code of Civil Procedure section 599 provides that “[n]otwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitr...
2022.03.02 Demurrer 900
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.03.02
Excerpt: ...ce of the demurrer. However, even if service was defective for some reason, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] Page | 2 This rule applies even when no notice was given at all.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Since Whisler substantively opposes ...
2022.03.01 Motion to Stay Proceedings or Stay Discovery Proceedings Pending Resolution of Criminal Action 106
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.03.01
Excerpt: ...in Avant! and others, as cited by each side, a stay will cause a delay but less so than if Defendant were merely the subject of an investigation. There is a Page | 2 risk of prejudice to Plaintiff with respect to third party testimony, as memories may fade and evidence may otherwise become stale. Defendant will be prejudiced if a stay is not granted because he will be forced to choose between giving up his Fifth Amendment right to remain silent o...
2022.02.28 Demurrer 604
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.02.28
Excerpt: ...the above section requires it to be filed. This must be addressed first. 1. 1 st & 3rd causes of action: Breach of Contract and Implied Covenant Defendant Hall challenges the contract‐based causes of action on the ground he is not a party to the purported contract. For pleading a breach of contract and implied covenant causes of action, a contract must exist. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1176; Smith v...
2022.02.09 Motion to Bifurcate 804
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.02.09
Excerpt: ...(Mot. 6:1‐4.) In opposition, the City argues bifurcation would be improper because Plaintiff's claims of dangerous condition of public property against the two defendants are inextricably intertwined. The City also correctly points out that the issue of ownership and control is not as clear‐cut as argued by Caltrans. In response to a request for admission (RFA) asking Caltrans to admit it “controls” the accident location, Caltrans respond...
2022.02.09 Motion for Trial Preference 296
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.02.09
Excerpt: ...erence that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (§ 36, subd. (e).) This decision “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.) Factors to be considered include the condition of the court's calendar, dilatory conduct by the plaintiff...
2022.02.09 Motion for Summary Judgment 200
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.02.09
Excerpt: ... issue, this case was transferred to Department S24. (See Minutes 3/30/21.) On November 24, 2021, Plaintiff filed this motion for summary judgment of its complaint. On December 14, 2021, while its MSJ was pending, Plaintiff file a motion for leave to file an amended complaint, which the Court granted on January 19, 2022. Now at issue is Plaintiff's MSJ. Defendant filed a timely opposition. Plaintiff filed a timely reply. Defendant's Request for C...
2022.01.25 Petition to Compel Arbitration 804
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.01.25
Excerpt: ...(1992) 6 Cal.App.4th 1266, 1271, 8 Cal.Rptr.2d 587, fn. omitted.) In a motion to compel arbitration, ‘the party seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any defense, such as unconscionability. [Citations.]' [Citations omitted] ‘In California, [g]eneral principles...
2022.01.25 Demurrer, Motion to Strike TAC 802
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.01.25
Excerpt: ...cific adverse actions were endured, and a causal link. In California the Legislature has determined employment without a specified term “may be terminated at the will of either party…” (Lab. Code, § 2922.) However, “an employer's traditional broad authority to discharge an at‐will employee ‘may be limited by statute ... or by considerations of public policy.' [Citation.]” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172....
2022.01.25 Demurrer, Motion to Strike 002
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.01.25
Excerpt: ...ano only. The elements of a breach of contract cause of action are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731.) Defendants contend the first cause of action for breach of oral contract fails as to Arellano because no information is given as to the verbal agreement she specifically entered into with...
2022.01.20 Motion to Strike 103
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.01.20
Excerpt: ...on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457, citing Gov. Code, § 815.) Government Code section 815, subdivision (a) provides: “Except as otherwise provided by statute: [P] (a) A public entity is not liable for Page | 2 an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” “In view of the fact that tort causes of action against pub...
2022.01.19 Motion for Preliminary Injunction 604
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.01.19
Excerpt: ...uance of preliminary injunctions at any time before judgment upon a verified complaint or upon affidavits that show satisfactorily that sufficient ground exists. Nevertheless, a preliminary injunction is a drastic and extraordinary remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. (Mazurek v. Armstrong (1997) 520 U.S. 968, 972.) A preliminary injunction is appropriate if irreparable harm wi...
2022.01.05 Motion for Summary Adjudication 296
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2022.01.05
Excerpt: ...e claim fails because Cohen did not take or retain Braswell's property for a wrongful use, with intent to defraud, or by undue influence. Issue No. 3: Braswell has not presented evidence to support a finding of punitive damages. Fourth Cause of Action – Promissory Fraud The Complaint alleges Sullivan and Cohen falsely promised Braswell that they would rebate 50% of their earned commissions over the lifetime of the policy to Braswell. But they n...
2021.12.28 Demurrer 008
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.12.28
Excerpt: ...ues possession is not an issue, as Defendant has agreed to vacate the premises Page | 2 as expeditiously as controlling law and regulations permit. Defendant argues the issue of past rent due will be addressed on the Federal Action, requiring abatement of this action. A brief description of the inadmissible extrinsic evidence is necessary to understand Defendant's arguments. Defendant asserts its own former CEO, Bruce Hebets, entered into the lea...
2021.12.16 Motion for Summary Judgment, Adjudication 405
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.12.16
Excerpt: ...ccurred while Jermane was crossing Coalinga Rd from North to South on the east side of the intersection with Cahuenga. UF #2 (undisputed). 1 Defendant repeats some of the facts with a different fact number. The first fact number used is referenced herein. In 2018, the school had two pick‐up/drop‐ off sites on the campus. The third site was for bus use only. The school does not have any designated drop‐off sites off‐campus. The first dismi...
2021.12.13 Motion for Summary Judgment 701
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.12.13
Excerpt: ...chez”) operated a Mexican Restaurant in one of the restaurant spaces at the Subject Property. (UMF, #9.) On November 4, 2020, MG Petroleum caused a 30‐day notice to quit (“30 Day Notice”) to be served on Sanchez based on its understanding that the fixed term lease expired on October 31, 2019 and the parties entered into a month‐to‐month tenancy. (UMF, #14.) On or around January 14, 2021, Sanchez filed a verified answer to the Unlawful...
2021.12.13 Demurrer 400
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.12.13
Excerpt: ...action are based upon allegations that Explorer breached its duty to provide the Hendersons a defense in the underlying lawsuit brought against them by Blackburn. The causes of action are also based upon Explorer's failure to settle the underlying case within the policy limits. Both causes of action are governed by the four‐year‐statute of limitations under Code of Civil Procedure section 337, subdivision (a). As argued by Plaintiffs, an acti...
2021.12.08 Motion to Consolidate 701
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.12.08
Excerpt: ...urred on November 19, 2018 and, as a result of her injuries, Grdjan filed suit on September 3, 2020, against CSU's Board of Trustees and TK Elevator Corporation (TK), though the pair were erroneously sued under different names. Through the operative first amended complaint (FAC), which was filed on November 24, 2020, Grdjan asserts claims for dangerous condition of public property and negligent infliction of emotional distress, both of which esse...
2021.12.01 Motion to Strike 102
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.12.01
Excerpt: ...Justino Montiel I. DISCUSSION Hitachi moves to strike Plaintiff's punitive damage allegations, as well as a list of prior product liability lawsuits regarding alleged defects with the nail gun. I recommend the Court deny the Motion to Strike. A. Statement of Law “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof….” (Code Civ. Proc., § 4351 .) “The cou...
2021.12.01 Motion to File Amended Opposition and Separate Statement in Opposition 296
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.12.01
Excerpt: ...disputed Material Facts and Separate Statement of Additional Facts in opposition to the MSA filed by Cohen. Plaintiff informs the Court that after the Court continued the hearing date on Cohen's MSA to October 27, 2021, Plaintiff took the deposition of non‐party witness, Chris Ebert (Ebert), the controller and chief financial officer for Plaintiff's company between November 2016 and August 2019. Ebert testified he was present at several meeting...
2021.11.29 Motion for Judgment on the Pleadings, to be Relieved from Deemed Admissions 704
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.11.29
Excerpt: ...erence with all parties and the Court pursuant to CCP 2016.080. The purpose of the conference is to try and resolve the discovery issues without the necessity of a motion. At the conference, the issues of the discovery dispute will be discussed as well as possible referral of the case out to Judicial Reference (Hereinafter JR). Timely objections to JR will be heard at this time only, absent change in circumstances ( Be prepared with appropriate f...
2021.11.18 Motion for Leave to File SAA 702
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.11.18
Excerpt: ...of the trial court. [Citations.] And courts are much more critical of proposed amendments to answers when offered after long unexplained delay or on the eve of trial [citations], or where there is a lack of diligence, or there is prejudice to the other party. [Citations.]' [Citation]” (Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; see also WEIL & BROWN, CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL [The Rutter Group] ¶6:643). W...
2021.11.17 Demurrer, Motion to Strike 307
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.11.17
Excerpt: ...ivil Procedure sections 430.41 and 435.5 prior to filing their Page | 2 demurrer and motion to strike. Attorney Garrett B. Stanton states that he sent several email correspondences to Plaintiff's counsel in an attempt to schedule a time to telephonically meet and confer regarding Plaintiff's FAC. Mr. Stanton also made two telephone calls to Plaintiff's counsel in order to meet and confer, but he was told that Plaintiff's counsel was not available...
2021.11.15 Motion for Leave to Intervene 002
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.11.15
Excerpt: ...rty for payments Travelers has made, those rights are transferred to Travelers. Subject to a reservation of rights, Travelers agreed to Fernrock Page | 2 under the policies against the claims made in this action. Among other things, Travelers reserved its right to seek reimbursement of defense expenses from potentially liable third parties. To date Travelers has incurred in excess of $370,000 in defense costs on Fernrock's behalf. To date, Copp h...
2021.11.10 Demurrer, Motion to Strike
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.11.10
Excerpt: ...ommunity Solutions, dba Youth Build Inland Empire (2) Defendant Richard Wallace (3) Defendant Dee Goins Meet and Confer Requirement‐ Demurrer Under Code of Civil Procedure § 430.41, before filing a demurrer, the objecting party shall meet and confer with the opposing party in person or by telephone for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. During the meet ...
2021.11.09 Motion to Continue Trial 100
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.11.09
Excerpt: ...1242, 1249.) A court may grant a continuance upon an affirmative showing of good cause. (CRC, Rule 3.1332(c); Lazarus, supra, 64 Cal.App.4th at p. 1249–50.) Page | 2 Whether to grant a continuance generally rests within the trial court's broad discretion. (Color‐Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246 (“The trial court has discretion in ruling on requests to extend ...
2021.10.20 Motion for Prejudgment Possession 208
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.10.20
Excerpt: ...rises, LLC and YTC Investments, LLC a. Discussion Plaintiff City seeks an order of prejudgment possession of the property it seeks to condemn for a permanent easement and a temporary construction easement for a period of twelve months. Defendants THM Enterprises and YTC Investments (for this motion, “Defendants”) oppose the motion, asserting Page | 2 resolution of necessity does not establish the right to take, and the City failed to make the...
2021.10.13 Motion to Compel Arbitration 578
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.10.13
Excerpt: ... term “affecting commerce,” which is a term of art that ordinary signals the broadest permissible exercise of Congress's commerce clause power. (Citizens Bank v. Alafabco, Inc. (2003) 439 U.S. 52, 56.) Defendant bears the burden of demonstrating FAA coverage by declarations and other evidence. (Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101; Woolls v. Superior Court (20050 127 Cal.App.4th 197, 213‐ 14.) Here, t...
2021.09.30 Motion to Compel Further Responses 203
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.09.30
Excerpt: ...ant's wooden deck and suffered injuries. Plaintiff alleges the following causes of action: (1) general negligence; and (2) premises liability. On March 13, 2021, Plaintiff filed an Amendment to Complaint naming Real Estate FTL as Doe 1. Now before the Court is Defendant's motions to compel further responses to Form Interrogatories, Set Two, and Request for Admissions, Set One. At issue are Form Interrogatory No. 17.1 and RFA Nos. 5 and 9. Plainti...
2021.09.30 Motion for Summary Judgment 507
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.09.30
Excerpt: ...Stanford University School of Medicine and the Vice Chair for the Department of Emergency Medicine at Stanford. He states he is familiar with emergency medical practices and procedures including foot injuries such as suffered by Shelton. Dr. Shen states he has reviewed Shelton's medical records and imaging studies from Adventist Health Selma (AHS) and RCH. Dr. Shen states Shelton presented to AHS' Emergency Department on July 11, 2019 for complai...
2021.09.27 Motion to Bifurcate Liability and Damages 208
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.09.27
Excerpt: ... the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof ...
2021.09.27 Motion for Summary Judgment, Adjudication 208
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.09.27
Excerpt: ...nnot support his negligence cause of action; (ii) there is no admissible proof that Nguyen breached his duty of ordinary care and caused the subject vehicle collision; and (iii) based on the evidence, if Plaintiff was driving in a safe and reasonable manner, he would have had sufficient time to avoid the subject collision. Defendants further argue that however, due to Plaintiff's inattention and unsafe driving, he collided with the rear of Defend...
2021.09.22 Motion to Bifurcate Liability and Damages Phases of Trial 501
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.09.22
Excerpt: ...f witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any p...
2021.09.09 Motion for Summary Judgment 203
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.09.09
Excerpt: ...ed the work at Cross‐ Defendants' store. Page | 2 Business and Professions Code section 7031 provides, in pertinent part, “Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is requir...
2021.08.19 Motion to Set Aside or Vacate Judgment
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.08.19
Excerpt: ...of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amend...
2021.08.17 Motion for Summary Judgment, Adjudication 296
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.08.17
Excerpt: ...rrect. The matter is continued and in addition a Motion for Contempt Sanctions against American General Life Insurance and its attorneys will be set on the same day. Notwithstanding, the Court offers the following comments: Judicial Notice1 Defendant American General requests judicial notice of the Court of Appeal decision in Williams v. National Western Life Insurance Company (2021) 65 Cal.App.4th 436. DENY as unnecessary in that it is a binding...
2021.08.16 Motion for Judgment on the Pleadings 307
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.08.16
Excerpt: ... concealed a known defect from Plaintiff—the defective PowerNet Electrical Architecture, which consists of a computer, fuses, and internal relays. It is responsible for controlling and distributing electrical power throughout the vehicle. (Id. ¶148.) Plaintiffs alleges that because the electrical architecture controls power a wide variety of essential vehicle systems, including safety and security systems, the defect often leaves vehicles inca...
2021.08.16 Motion for Summary Judgment, Adjudication 296
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.08.16
Excerpt: ... October 15, 2020 [Exhs. D‐F to Katz's Decl.]: GRANT judicial notice per Evidence Code section 452, subdivision (d). Discussion In Sullivan's Notice of Motion and Motion, he seeks to adjudicate the prayer for treble damages and attorney fees. This is impermissible. An MSA on damages concerns only adjudicating the recovery of punitive damages: Accordingly, the current version of the statute, like the former version, contains parallel independent...
2021.07.19 Motion for Summary Judgment 600
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.07.19
Excerpt: ...issue of fact precluding summary judgment. While Defendants make much of Plaintiff seeing no liquid or food and no food or liquid being on the floor, Plaintiff does contend she slipped on a slippery substance. She has also created an issue of fact as to how long the condition existed due to Defendants not having a sweeping protocol as testified to by Makridis (See, PAF, #2‐7). As stated in Ortega v. Kmart Corp.(2001) 26 Cal.4th 1200 at 1203: Th...
2021.07.15 Motion to Continue Trial Dates 861
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.07.15
Excerpt: ...n. (See In re A.C. (2017) 13 Cal.App.5th 661, 672‐673 [When a party “fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; see Provost v. Regents of University of Cal. (2011) 201 Cal.App.4th 1289, 1300 [Where a party failed to provide any reasoned legal analysis or authority to support a position, they are forfeited].) It is also no excuse that Plaint...
2021.07.15 Demurrer 802
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.07.15
Excerpt: ...etween the protected activity and the employer's action. (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138.) Plaintiffs specifically allege a violation of Subdivision (b) of Labor Code section 1102.5, which provides: An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a...
2021.06.30 Demurrer, Motion to Strike 305
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.30
Excerpt: ... alternatives within five business days after recordation of the notice of default. Civil Code, section 2924.9, subdivision (a), indicates “[u]nless a borrower has previously exhausted the first lien loan modification process offered by, or through, his or her mortgage servicer described in Section 2923.6, within five business days after recording a notice of default pursuant to Section 2924, a mortgage servicer that offers one or more foreclos...
2021.06.29 Motion for Summary Judgment, Adjudication 807
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.29
Excerpt: ...ionally under seal until further order of the Court. The party who requests the document be filed under seal shall prepare the necessary order in compliance with CRC 2.550 and 2.551.” Instead of following the court rule for obtaining such order, Plaintiff filed under seal his opposition, separate statement, and all evidence, even though it appear that at best what triggered this is that Harkins produced as confidential, documents attached to th...
2021.06.21 Motion for Summary Judgment 605
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.21
Excerpt: ... had been presented to the Court but had not yet been processed. (Minutes 3/3/21.) Plaintiff requested a Mandarin interpreter, but there was none available at the time. The Court continued the hearing to May 12th so Chen could file an amended expert declaration. On March 10, 2021, Defendants filed an amended declaration of Dr. Sung.5 On May 12, 2021, at the continued MSJ hearing, the Court granted Plaintiff's request for another continuance of th...
2021.06.17 Motion to Consolidate 305
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.17
Excerpt: ...she tripped and fell (Wall case). Plaintiff asserts that after her accidents her physical condition deteriorated and she has since developed neuropathic pain and Complex Regional Pain Syndrome. Therefore, she asserts, her medical records overlap. The Justice Declaration filed in support of the motion only was filed in the Wall case. He states that he is attaching copies of medical records to reveal how two doctors are treating Plaintiff for both ...
2021.06.16 Motion to Quash, for Protective Order 205
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.16
Excerpt: ...ntinued to October 18, 2021, and the parties agreed “the cut‐off dates tied to the trial date will not be extended to the new trial date with the exception of expert discovery and the ability to serve supplemental discovery pursuant to CCP sections 2030.070 and 2013.050.” [See, Bennett Decl., Exh. A.] The corresponding Order echoed the language in the Stipulation, and ordered: “The statutory discovery cut‐off with respect [to] supplemen...
2021.06.09 Motion for Summary Judgment 002
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.09
Excerpt: ...2017, the employee named CMA as a defendant. Mr. Jones eventually dismissed CMA from his lawsuit. (Compl. ¶¶7‐8.) Prior to the accident, WJE used Defendant Genesis as an insurance broker to obtain motor carriers insurance coverage. (Compl. ¶4.) In the Jones action, CMA tendered its defense to WJE and its insurer State National Insurance Company, which was refused. As a result, CMA incurred attorney's fees and costs in defending the Jones act...
2021.06.09 Demurrer 304
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.09
Excerpt: ...of an act or omission of the public entity or a public employee or any other person and (b) The liability of a public entity established by this part (commencing with Section 814) is subject 1 The Demurrer states it is being brought by all three defendants. However, only Chaffey is a defendant as to the second cause of action for dangerous condition of public property. Page | 2 to any immunity of the public entity provided by statute, including t...
2021.06.07 Motion to Strike Punitive Damages 106
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.06.07
Excerpt: ...oyed certain information on a protected computer within the meaning of the statute. Due to Defendant's alleged actions, Plaintiff seeks punitive damages from Defendant. (See FAC ¶ 82 and Prayer for Relief, ¶ 7.) Contrary to Defendant's arguments and assertions, Plaintiff has alleged sufficient facts in her FAC to allow for recovery of punitive damages if those damages are available based upon the causes of action alleged. However, Defendant arg...
2021.05.26 Motion for Terminating Sanctions 861
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.26
Excerpt: ... the history of difficulty in obtaining the deposition of Valeko, Valeko's demand to take the depositions of Defendants' employees prior to his deposition, Valeko's refusal to attend noticed depositions and objections, and the issues raised at the discovery conference. (Yang Decl. at ¶¶2‐14.) Yang's testimony regarding Valeko's refusal to answer simple questions regarding his ability to give competent testimony which could be later used at tr...
2021.05.24 Motion for Leave to File FAC 901
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.24
Excerpt: ... allowed. Instead of addressing the prejudice issue, the opposition only focuses on Cabrera's purported prior knowledge of Nancy's identity and the purported time‐ barred nature of the claims. The Court has discretion to deny leave to amend where the proposed pleading is barred on its face (Kittredge Sports Co. v. Superior Ct. (1989) 213 Cal.App.3d 1045, 1048; California Casualty General Ins. Co. v. Sup.Ct. (Gorgei) (1985) 173 Cal.App.3d 274, 2...
2021.05.17 Demurrer 006
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.17
Excerpt: ...t Cause of Action – Breach of Contract The elements of a breach of contract cause of action are the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant, and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731.) In the first cause of action, Plaintiff alleges that a copy of the subject written Purchase Agreement is attached to the Complaint as Exhibit 1 “and incor...
2021.05.13 Motion for Summary Judgment 605
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.13
Excerpt: ... to the Court but had not yet been processed. Page | 4 Plaintiff requested a Mandarin interpreter, but there was none available at the time. The Court continued the hearing to May 12th so that Defendants could file an amended declaration of Dr. Sung. The Court ordered Defendants to submit an amended declaration within 10 days and then Plaintiff would have 20 days to file an opposition and Defendants would have 10 days to file a reply. On March 10...
2021.05.13 Demurrer, Motion to Strike 202
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.13
Excerpt: ...ds each of these causes of action fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e) & (f).) Second Cause of Action – Civil Code § 1942.4 Defendant argues Plaintiffs still fail to name any public officer or enforcement agency that allegedly inspected the property or provided notice to Defendant. Additionally, Plaintiffs fail to allege the date the notice was provided to determine the 35 day...
2021.05.04 Motion for Summary Judgment 205
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.04
Excerpt: ...e Civ. Proc., § 437c, subd. (a)(2).) Costco filed its MSJ on February 11, 2021. The proof service attached to the MSJ indicates Costco served its MSJ by mail on February 10th. Seventy‐five days beyond that date is Monday, April 26th. Adding the five court days for mail service results in a date of Saturday, May 1st. The hearing should have thus been noticed on or after Monday, May 3rd. Instead, it was noticed for March 23rd. However, this issu...
2021.05.04 Demurrer, Motion to Strike 374
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.04
Excerpt: ...onstruction, Inc. and Katherine Hall a. Discussion i. 1st Cause of Action (“COA”) – Fraud 2nd COA – Negligent Misrepresentation The Koala Defendants assert both the allegations of fraud and negligent misrepresentation are not specifically pled as required. Cross‐Complainants argue the causes of action are well‐pled. For Hani and Frances Sayegh as to the second cause of action, they argue the cross‐ complaint does not allege they mad...
2021.05.03 Motion to Submit Tardy Witness Info 803
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.03
Excerpt: ...he premises expert witness declarations would not be based on the new trial date. Now, Defendant seeks to subvert the court order they prepared in stipulated to. Defendants have not complied with Code Civ. Proc., §2034.720 and the motion must be denied. Here, Plaintiff will be prejudiced by allowing Defendant to submit tardy expert witness information. Plaintiff was prepared to go to trial in February 2020. Defendant offered to go to mediation a...
2021.04.29 Motion for Summary Judgment, Adjudication 400
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.29
Excerpt: ...dog. The motion is supported by a separate statement of fact, a declaration from defense counsel (Tracy W. Goldberg), and portions of the transcript from Foster's deposition. The undisputed facts presented with the motion indicate Foster was walking her dog, Doodles, when one of defendants' dog attacked and bit Doodles. (Fact No. 1.) In response, Foster attempted to protect Doodles by pulling him away from defendants' dog to get Doodle's back int...
2021.04.28 Motion for Summary Judgment 605
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.28
Excerpt: ...on contained in the SAC and make the mistaken assumption that a positive ruling as to the 1st, 4th, and 5th causes of action will moot the 2nd, 3rd, and 6th causes of action resulting in a judgment in their favor. Code of Civil Procedure, section 437c specific states: Page | 2 “… the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the...
2021.04.20 Motion to Stay Proceedings 804
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.20
Excerpt: ...stice seem[] to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886.) The proponent of the stay or protective order must establish good cause. (GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754 [indicating “a presumption of good cause exists should be indulged only if circumstances warrant”].) The U.S. Supreme Court has also stated that the power to stay a proceeding is incidental to the power inhere...
2021.04.20 Motion for Trial Continuance 506
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.20
Excerpt: ... at the time of the determination.' [Citation.]” (Bussard, supra, 164 Cal.App.4th at p. 864.) Liberality should be exercised in granting continuances when they are not prejudicial to the other parties. (Capital Nat. Bank of Sacramento, supra, 62 Cal.App.2d at p. 339.) Further, and as noted, in determining whether good cause exists to continue trial, “threats to procedural fairness” is a “touchstone for granting such a motion.” (Panoche,...
2021.04.20 Motion for Leave to File Amended Answer 203
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.20
Excerpt: ...'s counsel, David M. DeBerry, also declares the statute of limitations defense has also been the subject of written discovery propounded on Plaintiffs. (DeBerry Decl., ¶7.) DeBerry further declares at the demurrer hearing in early 2020, Great Dane requested a limited discovery stay to allow it to proceed with a summary judgment motion on the statute of limitations defense. (DeBerry Decl., ¶8.) Great Dane argues the omission of the statute of li...

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