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2023.02.22 Demurrer, Motion to Strike 114
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.22
Excerpt: ...FOR JUDICIAL NOTICE: Defendant requests judicial notice of numerous court documents, including: two unlawful detainer complaints filed by Erma Kerrigan Trust against William Hewett; a wrongful foreclosure against filed by William Hewett against the Trust; the unlawful detainer judgments; the Complaint in the present action; the April 30, 2021 Answer filed by Colleen as Trustee of the Trust and as a representative of the Trust; the April 25, 2022 ...
2023.02.22 Anti-SLAPP Motion to Strike 259
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.22
Excerpt: ... fee and cost incurred in bringing the instant motion must made through a separate motion for fees. “The Legislature enacted…anti-SLAPP statute [strategic lawsuit against public participation]…to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Code of Civil Procedure section 425.16 provides a two-step tes...
2023.02.21 Motion for Summary Judgment, Adjudication on FAC 007
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.21
Excerpt: ... of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Given the disposition of this motion, the ruling on the objections are not relevant to the ruling on this motion. SUMMARY JUDGMENT/ADJUDICATION “On motion for summary judgment, the issues are framed by the pleadings since it is those allegations to which the motion must respond.” (Scolinos v. Kolts (1995) 37 Cal....
2023.02.21 Demurrer 117
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.21
Excerpt: ...suant to CRC 3.110(b & f) FIRST CAUSE OF ACTION An agreement for the sale of any interest in real property is invalid unless it is in writing. (Civil Code § 1624(a)(3); Alameda Belt Line v. City of Alameda (2003) 113 Cal.App.4th 15, 20-21.) FOURTH CAUSE OF ACTION No representation. Representations concerning future events – e.g., predicting future conditions in the real estate market – are generally not actionable, whereas representations of...
2023.02.16 Demurrer to FAC, Motion to Strike 873
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.16
Excerpt: ...ned with leave to amend within 20 days. Motion to Strike is moot. A demurrer also lies where the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal. 3d 120,125.) The court assumes the tru...
2023.02.15 Motion to Strike Supplemental Expert Witness Designation 613
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.15
Excerpt: ...rty expects to offer in evidence at trial. CCP § 2034.280 provides that a party may submit a supplemental list of experts who will express an opinion on a subject to be covered by an expert designated by the opposing party. Failure to comply with these rules is grounds to exclude the expert. (CCP §2034.300.) To properly amend an expert witness list, a party must seek leave from the court. (CCP §2034.610.) The issue is whether Plaintiff was aut...
2023.02.15 Motion to Compel Arbitration 434
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.15
Excerpt: ...cial notice of the Notice of Entry of Dismissal and Proof of Service filed in the Sacramento Superior Court in the Felisilda v. FCA US LLC (Exhibit B) is denied, as the document will not aid the court in resolution of the present motion. (See Aquila v. Superior Court (2007) 148 Cal.App.4th 556, 569 [only relevant material may be noticed].) EVIDENTIARY OBJECTION With her opposition, Plaintiff includes a single evidentiary objection to the RISC att...
2023.02.14 Motion for Summary Judgment 043
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.14
Excerpt: ...he plaintiff does not have the burden to disprove affirmative defenses. (Id.) At that point, the burden shifts to the defendant to show that a triable issue exists. (Id.) Plaintiff fails to meet her initial burden. Whether or not Plaintiff is an employee or an independent contractor does not demonstrate that Plaintiff is entitled to judgment as a matter of law, i.e. it does not address the elements of each cause of action. The 1st cause of action...
2023.02.10 Application for Service by Publication 719
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.10
Excerpt: ...; Watts v. Crawford (1995) 10 Cal.4th 743, 749.) In order to obtain an order permitting service by publication, a plaintiff must submit the declaration of a competent witness to show: that reasonable attempts have been made to serve the defendants by some other authorized method; and (2) the existence of a cause of action or interest in property. (CCP § 415.50(a).) Reasonable diligence means a thorough, systematic investigation and inquiry condu...
2023.02.08 Motion to Set Aside Complaint 873
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.08
Excerpt: ...an be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the proper time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Defendant brings this motion on the ground that, although there is a proof of service, it is not properly executed by a licensed process server, and he was not actually served. C.C.P., § 473(d) permits the court to vacate a void judgment. “[C]...
2023.02.08 Anti-SLAPP Motion to Strike 620
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.08
Excerpt: ...torney's fees is denied. Defendants' DLJJ, DDS and Stuart Rubin Motion for Joinder is denied. As a general rule, when a cause of action arises out of the furtherance of a defendant's right of petition or free speech in connection with a public issue, it is subject to a special motion to strike. (CCP § 425.16(b)(1).) An “act in furtherance of a person's right of petition or free speech” … includes … any written or oral statement or writin...
2023.02.01 Motion for Attorney Fees 784
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.01
Excerpt: ...ling party is entitled as a matter of right to recover costs in any action or proceeding.'” (Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) In determining whether a party is a prevailing party which could recover costs, trial court determines whether the party succeeded “at a practical level [by] realiz[ing] its litigation objectives” and whether “the action yielded the primary relief sought” in the case. (Friends of Spring Street v. N...
2023.02.01 Motion to Post Undertaking 125
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.02.01
Excerpt: ...o the court by noticed motion for an order requiring the plaintiff to file an undertaking if the plaintiff resides out of the state. The undertaking would secure an award of costs and attorney's fees that might be awarded in the action. (C.C.P., § 1030(a); see also Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914 [constitutionality upheld].) The statute serves a legitimate purpose of securing costs in the face of the difficult...
2023.01.31 Motion to Compel Further Responses 440
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.31
Excerpt: ...tion to Compel Further responses (Int. 25 and 26) is granted. A party may move for an order to compel a further response if it deems the responding party's objections are without merit or too general. “Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact‐specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal. App. 4th 92, 9...
2023.01.31 Motion to Compel 359
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.31
Excerpt: ...available. (Abbott, et. al., Cal. Civil Discovery Practice (4th ed. Cal. CEB 2022) § 15.91 citing, CCP §§2023.010(g), 2023.030.) For example, CCP §2030.300(e) provides that if a party fails to obey an order compelling further responses to interrogatories, "the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction," in addition to the imposition of further mone...
2023.01.30 Motion to Set Aside Default 528
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.30
Excerpt: ...ROPERLY NOTICED C.C.P., § 1005(b) requires that motions be filed and served at least 16 court days before the scheduled hearing. However, when service is affected through electronic mail, the moving party must provide 2 additional court days of notice. (C.C.P., §§ 1005(b), 1010.6(a)(4).) Here, Defendant e‐served the motion on January 5, 2023 ‐ exactly 16 court days before the scheduled hearing ‐ and did not provide the additional 2 days ...
2023.01.30 Demurrer to SAC 079
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.30
Excerpt: ... of all material facts which have been properly alleged, facts which may be inferred from those expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. REQUEST FOR JUDICIAL NOTICE County seeks judicial notice of ...
2023.01.26 Demurrer, Motion to Strike 131
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.26
Excerpt: ... is overruled for unfair competition, and Plaintiff Lisa Esparza's standing to pursue the fifth cause of action for unfair competition. Defendants' motion to strike is taken off calendar as moot to the extent it seeks to strike Plaintiffs' claims for punitive damages. Defendants' motion to strike Plaintiffs' claims for attorney fees is granted without prejudice. Order to Show Cause is set for 3/28/2023, AGAINST LISA ESPARZA AND HARLAN BARTLETT KI...
2023.01.26 Demurrer, Motion to Strike 129
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.26
Excerpt: ...d $1,500.00 or dismissal should not be imposed for Failure to file request for entry of default of all defendants pursuant to CRC 3.110(g). A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. ...
2023.01.25 Motion to Seal Docs 334
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.25
Excerpt: ...g interests” to civil cases as in criminal, relied not only on CCP section 124 but on the state and federal constitutions, emphasizing “The need to comply with the requirements of the First Amendment right of access…” [Id. at 1226.] That decision was then codified in the California Rules of Court, at Rule 2.550: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an ov...
2023.01.19 Demurrer to FAC 359
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.19
Excerpt: ...e derivative claim because Plaintiff alleges sufficient facts to support wrongdoing based on conspiracy. As to the 6th cause of action, the Demurrer is sustained with leave to amend within 20 days. This claim is uncertain because Plaintiff fails to allege how Defendant breached the operating agreement or what terms were allegedly breached. As to the 13th cause of action, the Demurrer is sustained with leave to amend within 20 days. There are insu...
2023.01.18 Demurrer to TAC 590
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.18
Excerpt: ... as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contenti...
2023.01.17 Motion for Summary Judgment 878
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.17
Excerpt: ...ons are treated by the court as motions for judgment on the pleadings, and both are granted without leave to amend. For the 4th cause of action, Defendant's motion for summary adjudication is denied as the City failed to establish that it complied with Government Code §3306.5. For the 5th cause of action, Defendant's motion for summary adjudication is granted as Plaintiff failed to create a triable issue on a prima facie case of discrimination b...
2023.01.17 Motion for Summary Adjudication 029
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.17
Excerpt: ...aim for damages or issue of duty. (CCP § 437c(f)(1).) Although summary judgment/adjudication is no longer considered a “disfavored” procedure, the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal. App. 4th 832.) Plaintiff is required to show that there is no defense to a cause of action if each element has ...
2023.01.17 Demurrer, Motion to Strike 245
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.01.17
Excerpt: ... within 20 days. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, ...

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