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2022.09.16 Demurrer 773
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.09.16
Excerpt: ...cting an unauthorized rear balcony/deck at her property that impermissibly encroaches on and into the plaintiff Monarch Point Homeowners Association's (plaintiff or the Association) Fuel Modification Zone A, “an easement area” granted to and maintained by the Association pursuant to the governing documents. (See Compl. ¶¶ 3, 7, 10, 12-15, 17-28, 33-34.) These allegations of fact, which the court must take as true on demurrer (see Mathews v....
2022.09.09 Motion for Judgment on the Pleadings, for Leave to File Amended Complaint 874
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.09.09
Excerpt: ...plaint would not cure the defects and would be futile. The court does have discretion to deny a motion for leave to amend where the amendment would be futile. Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719. However, defendant has not shown the amendment would be futile as a matter of law. The case of Everardo Rodriguez, et al. v. FCA US, LLC (April 7, 2022, E073766) 77 Cal. App. 5th 209, 2022 WL 1042907 does not undisputedly bar plaint...
2022.09.02 Motion for Summary Judgment, Adjudication 321
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.09.02
Excerpt: ...parties' notice of motion and separate statement do not comply with Cal. Rules of Court, Rule. 3.1350, subds. (b) and (d). (Cadlo v. Owens–Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 [court's discretion to deny summary judgment / adjudication based on failure to comply with rule].) Summary judgment is denied because moving parties have not met their initial burden of presenting evidence showing that plaintiff cannot establish an essential el...
2022.08.26 Motion to Quash Discovery Subpoena 141
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.26
Excerpt: ... subpoena with an affidavit of no records. (See Yencarelli Decl. ¶ 22, Ex. O [6/27/22 certificate of no records].) This case was previously set for trial on 3/7/22, and all parties answered ready for trial on that date. (ROA No. 217.) The trial was trailed for a week, and the court set a status conference for counsel and the court to select a new trial date. (See ROA No. 228.) On 3/14/22, a status conference was held and the parties stipulated t...
2022.08.26 Motion to Compel Arbitration 802
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.26
Excerpt: ...as failed to meet this burden. As an initial matter, defendant has not produced a copy of the subject arbitration agreement purporting to bear plaintiff Cari Ramirez's (plaintiff) signature. (See Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543 (Bannister) [party seeking arbitration can meet its initial burden by attaching a copy of the arbitration agreement purporting to bear the plaintiff's signature].) Defendant has produced o...
2022.08.19 Motion to Set Aside or Vacate Default, Judgment 802
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.19
Excerpt: .... T.D. Service Company (2016) 245 Cal.App.4th 89, 97-98 [“Extrinsic mistake” is “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits”]; see also Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 47 [“[b]ecause of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in ...
2022.08.19 Demurrer 569
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.19
Excerpt: ...r as to the first cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege facts showing that defendants recorded a notice of default, notice of trustee's sale, or held a trustee's sale while plaintiff's application or a loan modification was pending, or threatened to conduct the same. The demurrer as to the third cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege f...
2022.08.05 Motion for Attorney Fees, to Consolidate, to Strike Complaint 118
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.05
Excerpt: ...tion to strike itself, subsequent fee motions, and fees /costs associated with appeal].) Defendants are awarded attorney fees in the amount of $22,485.00, which the court finds were reasonably and necessarily incurred as follows: 1. 9-30-21 invoice $1,147.50 2. 10-31-21 invoice $7,203.50 3. 11-30-21 invoice $8,912.00 4. 12-31-21 invoice $ 270.00 5. 1-31-22 invoice $3,287.00 6. 2-28-22 invoice $ 810.00 7. 3-31-22 invoice $ 405.00 8. Appearance: $ ...
2022.07.29 Motion to Quash Subpoena 372
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.07.29
Excerpt: ...cut-off deadline set forth in its 1/18/22 minute order applies to the subject subpoenas. (See ROA No. 174 [1/18/22 minute order].) Plaintiff Curt Daniel Newnes (plaintiff) previously issued subpoenas to Victor and Mary Del Toro for their testimony and the production of certain documents at deposition in November 2021, which set their depositions for 12/13/21. (See ROA No. 257–Supp. Newnes Decl. ¶ 2, Ex. 2, pp. 53-66 [November 2021 subpoenas to...
2022.07.29 Motion for Attorney Fees 057
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.07.29
Excerpt: ...after that date pertained to the “only” remaining dispute at trial, i.e. “calculation of the appropriate mileage offset/damages;” and that none of the discovery conducted after that date was used at trial. (Opp at 4:22-7:16; Gruzman Decl. in support of Opp, Paras. 14-20.) Similarly, defendant contends that any fees incurred after it “admitted liability” should not be recoverable, including fees for expert discovery and trial. (Opp at ...
2022.06.10 Motion to Quash Subpoena 372
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.06.10
Excerpt: ...� as of 1/28/22, without leave of court. (See ROA Nos. 174, 205–1/18/22 & 4/25/22 Minute Orders.) This case was scheduled for trial on 10/18/21, and trailed to 10/19/21. On 10/19/21, the court granted plaintiff's oral request for a trial continuance, and continued trial to 1/18/22. (ROA No. 149–10/19/21 Minute Order.) This reopened discovery, re-setting the discovery cut-off date to Monday 12/20/21. (See Code Civ. Proc., §§ 599, 2024.020; s...
2022.06.03 Demurrer, Motion to Strike 846
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.06.03
Excerpt: ...TED with ten days leave to amend. Moving Party Kevin Jolly to give notice. Demurrer: 2nd Cause of Action for Fraud This cause of action has not been alleged with the required specificity. The effect of the rule that fraud must be specifically pleaded is twofold: 1. A general pleading of the legal conclusion of fraud is insufficient since the facts constituting the fraud must be alleged; and 2. Every element of the cause of action for fraud must b...
2022.06.03 Demurrer 871
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.06.03
Excerpt: .... Concord Gardens Mobile Home Park Ltd. (1979) 90 Cal.App.3d 871, 873-875 (Gonzales) [under doctrine of expressio unius est exclusio alterius, failure to comply with contractual notice provisions of the Contractors License Law, including section 7030, does not deprive a contractor the right to bring and maintain an action on construction contract].) Contrary to Bhayani's assertions, nothing in Nielsen Contracting, Inc. v. Applied Underwriters, In...
2022.05.27 Motion to Set Aside or Vacate Judgment, to Tax Costs 057
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.05.27
Excerpt: ...Proc., § 663, subd. (1) [authorizing motion]; see also Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153 [“A motion to vacate under section 663 is a remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence”].) Motion to strike and/or tax costs. Plaintiff Inez Moran's motion to strike and/or tax costs sought by defendant Central Valley Chrysler J...
2022.05.27 Motion to Quash Subpoena 462
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.05.27
Excerpt: ...cluding protective orders”].) The motion is GRANTED IN PART, in that the court exercises its discretion to modify the subpoena, and orders that the records produced shall be limited to the time period of 4-6- 19, the execution date of the contracts alleged in the complaint, to 11-23-20, the date this action was filed. There are no allegations nor evidence that plaintiff paid defendant any monies outside of this time period, or that defendant pa...
2022.05.27 Motion for Preliminary Injunction 806
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.05.27
Excerpt: ... §527(a), however, “[n]o preliminary injunction shall be granted without notice to the opposing party.” Additionally, the Court finds that Plaintiff has not demonstrated a sufficient probability of prevailing, to support the requested relief. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493). Pursuant to the Proposed Order filed by Plaintiff with this Motion, Plaintiff is seeking multiple affirmative orders, compel...

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