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2024.03.08 Petition to Compel Arbitration 129
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...� 1281.2). Defendants have the “burden of proving the existence of a va lid arbitration agreement by a preponderance of the evidence while a party opposing a petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ruiz v. Moss Bros. Auto Group (2014) 232 Cal.App.4th 836, 842 ; accord (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 [once petitioner alleges the agreement e...
2024.03.08 Motion to Compel Production 736
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...��all communications between Plaintiff and Mr. Walters co nceivably relevant to the Gifting Transaction for the years 2013 - 2014”].) Busch has failed to set forth specific facts showing good cause for any further production. (See Code Civ. Proc., § 2031.310, subd. (b)(1); Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 [good cause]; see also Chute Decl. ¶ 11.) Good cause must be supported by factual evidence, such ...
2024.03.08 Motion for Summary Judgment, Adjudication 516
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...ndant fails to meet its initial burden as to Noticed Issu es No. 1, 3, 6, 7, & 8. As to Noticed Issue No. 1, (Vatalaro v. Cnty. of Sacramento (2022) 79 Cal. App. 5th 367, 381) cited by defendant is distinguishable. In Vatalaro the plaintiff could only point to an unspecified violation of civil service rules and more importantly, had affirmatively conceded in discovery that she had no reasonable belief that the law had been broken. (25 Cal 4th at...
2024.03.08 Demurrer 086
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ... v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A ny “ambiguities can be clarified under modern discovery procedures.” (Ibid.) The FAC states sufficient facts in support of the cause of action for breach of contract against Robert and AHM. (See Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453 [elements]; Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402 [plaintiff may...
2024.03.08 Demurrer 081
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...t. Specifically, Defendant argues that allegations of fraud that function to a lter the terms of an integrated contract are barred by the parole evidence rule. Furthermore, Defendant argues that Plaintiff has pleaded facts that are plainly inconsistent with a claim for promissory fraud by admitting in the Complaint that Defendant performed under the contract until at least Spring 2022. Defendant reasons that it “is implausible that Schreiber's...
2024.03.01 Motion to Strike or Tax Costs 454
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.01
Excerpt: ... is taxed in the total amount of $41,089.46, as further discussed b e l ow. Pl aintiff's remaining costs in the total amount of $115,732.31 are granted against defendant Regents only. Plaintiff's 998 offer Plaintiff's Code of Civil Procedure section 998 (section 998) offer to compromise (998 offer) served on Regents on 8/18/17 was valid and effective. The fact that plaintiff obtained a more favorable judgment than his 998 offer is prima facie evi...
2024.02.16 OSC Re Preliminary Injunction 081
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.16
Excerpt: ...rm presented, i.e., the comparative consequences of th e issuance and non -issuance of the injunction. (See Fleishman v. Superior Court (2002) 102 Cal.App.4th 350). Generally, where the damage from a breach of contract can be easily estimated, the presumption is that an action at law will be final and prevent further dispute; and an injunction will not issue against the breach. (See Kellett v. Ida Clayton & G.W. WagonRoad Co. (1893), 99 Cal. 210...
2024.02.16 Motion for Summary Judgment, Adjudication 454
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.16
Excerpt: ... not the owner of the subject dog. (See, e.g. SS UMF No. 8.) Accordingly, Plaintiff cannot establish a cause of action for strict liability under Cal. Civ. Code § 3342 against Moving Defendant. Negligence and Premises Liability Moving Defendant argues that Plaintiff's causes of action for negligence and premises liability both fail because Plaintiff does not establish the existence of a duty of care applicable to Moving Defendant. “The existen...
2024.02.16 Motion for Determination of Good Faith Settlement 316
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.16
Excerpt: ...oodward -Clyde & Associates (1985) 38 Cal.3d 488, 499 ( Te c h-Bilt).) As an initial matter, moving parties' proof of service is defective, as it attests to service via email only. (see Code Civ. Proc., §§ 1010.6, subd. (a)(2), 877.6, subd. (a)(2) [requiring service via “certified mail, return receipt request ed, or by personal service”].) While defendants OC 405 Partners and the State of California, acting by and through the Department of...
2024.02.09 Motion to Compel Arbitration 162
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.09
Excerpt: ...f three separate entities. Plaintiffs bring suit derivatively on behalf of Reliant Management Group, LLC (“Reliant Management”), Riverside Postacute Care, LLC (“Riverside”), and RMG Capital Partners, LLC (“RMG Capital”). Moving Party has shown that the RMG Capital Operating Agreement contains a valid a rbitration agreement. However, Moving Party has failed to demonstrate why this arbitration agreement would apply to bind Reliant Manag...
2024.02.09 Motion for Summary Judgment, Adjudication 672
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.09
Excerpt: ...that she has not yet completed discovery. A court typically has discretion to grant a continuance, but the court must grant a continuance under CCP § 437c(h) on a good faith showing by declaration or affidavit that a continuance is needed to obtain facts essential to justify opposition to a summar y judgment motion. Ace Am. Ins. Co. v Walker (2004) 121 CA4th 1017, 1023 (continuance is “virtually mandated”). See also Dee v Vintage Petroleum, ...
2024.02.02 OSC Re Contempt, to Stay Proceedings, Appoint Receiver, Compel Responses 154
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.02
Excerpt: ...payment of the disputed monetary discovery sanctions on 01/18/24. (Khojayan Dec. ¶ 2, Exh. 1.) All requests for sanctions are denied. Defendant is ordered to give notice. Motion No. 2: Defendant Yao Geng's Motion to Stay Action is DENIED. An application for a stay is addressed to the “sound discretion” of the trial court. “In exercising its discretion, the court should consider the importance of discouraging multiple litigation designed so...
2024.01.26 Motion to Establish Waiver of Privileges and Protections, to Disqualify Attorney of Record 162
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.26
Excerpt: ... Dev. LLC (2011) 191 Cal.App.4th 1047, 1068 sets forth the applicable test for determining whether a party waives attorney-client privilege and/or work product protection through use of a company-provided e-mail address. While Holmes sets forth the applicable standard for determining whether privilege has been waived, Moving Party fails to make the requisite factual showing that would demonstrate the attorney-client privilege has in fact been wai...
2024.01.26 Motion for Reconsideration, to Compel Further Responses, to Dismiss 118
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.26
Excerpt: ...Servicing, LLC, and PHH Mortgage Corporation, as to plaintiff's 13th cause of action for fraud by concealment / fraudulent misrepresentation, is DENIED. (Code Civ. Proc., S 1008 [authorizing reconsideration].) The only "new" facts set forth in the moving papers are: (1) defendants' filing a notice of ruling as to the 10-13-23 order; and (2) defendants' filing a crosscomplaint. (Exs. 1 and 2 to moving papers.) However, plaintiff has not shown why ...
2024.01.19 Motion to Compel Further Responses 601
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.19
Excerpt: ...f motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground"]; ROA No. 39— Mtn. P&As at pp. 4-5 [citing and quoting Code Civ. Proc., S 2030.300].) Defendant/cross-complainant Cesar Quintana (defendant) is ORDERED to provide verified further responses without objections to form interrogatory Nos. 12.2—12.7, within 15 days. The term "INCI...
2024.01.19 Demurrers, Motion to Strike 021
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.19
Excerpt: ...ore of the follow-ng 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." (Cal. Code Civ. Proc., S 430.10, subds. (e) & (f); see Cal. Code Civ. Proc., S 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of achon stated thereinl.) "A person against whom a complaint or...
2024.01.19 Demurrer 931
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.19
Excerpt: ...ses of action for fraud and concealment is sustained with leave to amend on the basis that the causes of acton (Specifically the elements of duty to disclose and damages) are not alleged with the level of specificity required to allege a cause of achon sounding in deceit. (See Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 557.) The demurrer to the fourth cause of action for breach of contract is sustained with leave on the basis t...
2024.01.12 Motion to Enforce Settlement 424
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.12
Excerpt: ... S 654.6, subd. (a) provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of th...
2024.01.12 Motion for Attorney Fees 881
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.12
Excerpt: ...presents evidence that it made a CCP S 998 offer for $70,000.00 plus $5,000.00 in attorney's fees and costs, which if not accepted, would require the Court to set reasonable fees and costs on 07/26/19. (Haddad Dec. '1 7, Exh. D.) The offer expired by its terms on 08/26/19. (ld.) Plaintiff failed to timely accept the 998 offer. (ld. '1 8.) In determining whether plaintiff obtained a more favorable judgment, the amount of the judgment includes atto...
2024.01.12 Demurrer, Motion to Strike 773
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.12
Excerpt: ...The demurrer on the basis of uncertainty is overruled. Demurrers for uncertainty are disfavored. While not a model of clarity and rife with unnecessary evidentiary facts, the FAXC is not is so poorly drafted that Defendant cannot reasonably respond. (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.) The general demurrer to the first cause of action is sustained with leave to amend on the basis that it fails to state facts s...
2023.12.15 Demurrer, Motion to Strike 522
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.15
Excerpt: ...e that a defendant cannot reasonably respond." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 1st & 2nd cause of action, breach of express warrantes and implied warranty of merchantability The complaint fails to state facts sufficient to constitute these causes of action, with the requisite particularity. (See Civ. Code, SS 1791.2 [express warranty], 1791.1 [implied warranty of merchantability], 1792 [impl...
2023.12.15 Demurrer 454
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.15
Excerpt: ... property), debt, or duty held by the stakeholder that may give rise to double vexation. (See Code Civ. Proc., S 386, subd. (b) ["Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an acton against the claimants to compel them to -nterplead and litigate their several clai...
2023.12.08 Petition to Compel Arbitration 883
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.08
Excerpt: ...finds is subject to Labor Code section 229. "On a petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if determines that an agreement to arbitrate the controversy exists..." (Code of Civ. Proc., 51281.2.) "Because the exist...
2023.12.08 Demurrer 571
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.08
Excerpt: ...Deutsche Bank National Trust Company (2015) 235 Cal.App.4th 394, 402 (Miles) [plaintiff may properly plead the legal effect of a contract, rather than setting forth its precise language]; Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [ultimate fact pleading]; see also Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [any "ambiguities can be clarified under modern disc...
2023.12.08 Application for Alternative Writ of Mandamus 566
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.08
Excerpt: ...n the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty"].) Petitioner's request for judicial notice is GRANTED. (Evid. Code, S 452, subds. (a), (b).) The parties only address whether or not Petitioner is entitled to business tax licenses for the properties addressed in the Petition, given the parties' dispute as to the use of the properties. However, Respondent Cit...

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