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2024.06.03 Motions to Challenge SAC, to Strike
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.06.03
Excerpt: ...urrer to SAC A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404 -1405. ) “In the construction of a pleading, for purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (...
2024.06.03 Motion to Transfer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.06.03
Excerpt: ... Mir Brown (collectively, Plaintiffs) to the Superior Court of Riverside County and for monetary sanctions against Plaintiffs' attorney in the sum of $16,605. As the moving party, Defendants must overcome the presumption Plaintiffs have selected a proper venue: “[I] t is the moving defendant's burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.” (Fontaine v. Sup.Ct. (Cashcall, I...
2024.06.03 Motion to Strike Costs
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.06.03
Excerpt: ...les of Co urt, rule 3.1700(b) establishes a 15 -day time limit for service and filing of a motion to strike or tax costs. That rule, however, clearly states the time runs from “service of the cost memorandum.” (Cal. Rules Ct., rule 3.1700(b)(1).) As there is no pr oof of service on file for Plaintiff's cost memorandum, there is no indication Defendants' filing on November 3, 2023, was untimely. (See ROA 221, 239.) Accordingly, the court wi...
2024.06.03 Motion for Trial Preference
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.06.03
Excerpt: ...(2) The heal th of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” Section 36 “was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be Here, defendants Nguyen Din Thang and Boat People S.O.S., Inc. (collectively, Defendants) able to realize redress upon the claim asserted.” (Looney...
2024.06.03 Application for Right to Attach Order and Writ of Attachment
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.06.03
Excerpt: ... is DENIED a s set forth below. This is Plaintiff's third attempt to obtain a provisional remedy in this action. First, on March 22, 2024, the court heard and denied Plaintiff's ex parte application seeking a preliminary injunction freezing the accounts of defendant F ountain Valley Escrow. Among of things, the court found Plaintiff failed to give adequate notice of the relief sought because the application did not include a notice, did not ident...
2024.05.20 Motions to Compel Further Responses
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.05.20
Excerpt: ...s to form i nterrogatories, set one, (4) motion of Hilton to compel further responses to requests for admissions, set one, (5) motion of Hilton to compel further responses to special interrogatories, set one, (6) motion of defendant Hung Nguyen, D.O. (Nguyen), to comp el further responses to request for admissions, set one, (7) motion of Nguyen to compel further responses to special interrogatories, set one, and (8) motion of Nguyen to compel fur...
2024.05.20 Demurrer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.05.20
Excerpt: ... the statute of limitations. LAMC challenges the second cause of action for elder abuse on the ground Plaintiff fails to allege sufficient facts to state this statutory cause of action. In the reply brief, however, LAMC withdraws the challenges to the first and third causes of action, and therefore only LAMC's challenge to the second cause of action remains to be determined. “In reviewing the sufficiency of a complaint against a general demurr...
2024.05.08 Motion to Quash, Demurrer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.05.08
Excerpt: ...ode Ci v. Proc., § 418.10, subd. (a)(1).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Code Civ. Proc., § 581(h).) Here, Defendant, a Utah resident, asserts the cou rt lacks personal jurisdiction over him as it relates to Plaintiff's complaint. Defendant submits evidence showing he has been a resident of Utah since 2015, has a Utah driver's license, ...
2024.05.08 Motion for Monetary Sanctions
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.05.08
Excerpt: ...ubstitutions of attorn eys have been filed such that Ms. Maxwell and Mr. Trela no longer represent any of Defendants, after previously representing all Defendants. The motion is made pursuant to Code of Civil Procedure sections 128.5 and 128.7(b). The motion and arguments in support of it are sparse, but it is clear the motion is based on the mistrial declared in this action on September 12, 2023, after Ms. Maxwell and Mr. Trela declared a con�...
2024.05.08 Motion for Attorney Fees
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.05.08
Excerpt: ...ent infliction of emotional distress and one of the two defamatory statements alleged as the basis for the first cause of action for defamation (and the court of appeal affirmed that ruling). The governing analysis for a fee motion regarding a partially successfu l special motion to strike was described in Mann v. Quality Old Time Serv., Inc. (2006) 139 Cal.App.4th 328, 344- 345: “An award of attorney fees to a partially prevailing defendant ...
2024.05.03 Motion to Dismiss Action
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.05.03
Excerpt: ...d applied. (Code Civ. Proc., §§ 583.310, 583.360.) “The provisions of section 583, Code of Civil Procedure, which require an action to be dismissed for want of prosecution if not brought to trial within five years, are mandatory; and the trial court has no discretion but to grant the motion, except where the action has been continued by a written stipulation filed with the court, or where it is shown that the defendant has been absent from ...
2024.04.29 Demurrer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.29
Excerpt: ...he pleading t hat are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) In testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged,...
2024.04.29 Motion to Compel Arbitration
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.29
Excerpt: ... (Code Civ. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for rescission of the agreement. (Ibid.) Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Because arbitration is a favored ...
2024.04.22 Motions to Comply with Notice of Deposition, for Monetary Sanctions, to Provide Further Responses
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.22
Excerpt: ...st Calhoon, bu t both the underlying discovery requests were served on Thomas's behalf only.] Initially, the court notes Thomas timely filed a proof of service relating to both motions, but the proof is for electronic service only. Gary II is selfrepresented, and theref ore may be served electronically only if he has expressly consented to electronic service, and electronic filing does not constitute express consent to electronic service. (Code...
2024.04.22 Motion for Judgment on the Pleadings
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.22
Excerpt: ...sert the c laims due to the Divorce Decree issued by the Court of Common Pleas of Lancaster County, Pennsylvania, on September 29, 2023 (Divorce Decree). Specifically, Chartwell contends the Divorce Decree awarded the entire value of the “martial interest in Chartwe ll” to Tracy, Plaintiff's now ex -wife, and awarded Plaintiff nothing regarding the Chartwell shares. (See RJN, Exh. A, pp. 14, 18, 29.) Chartwell further contends, under New Yor...
2024.04.15 Motion for Issue, Evidentiary, Terminating Sanctions, Compel Further Responses, for Monetary Sanctions
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.15
Excerpt: ...d until nea rly 9:00 p.m. on April 8, 2024 —i.e., nearly a week late and after the close of business on the same day Smith's reply was due. Plaintiff provides no explanation or justification for failing to timely serve the opposition, and the late filing of the opposi tion has deprived Smith of its opportunity to file anything more than an untimely, truncated opposition. The court therefore exercises it discretion to refuse to consider the o...
2024.04.15 Demurrers to FAC
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.15
Excerpt: ...e demurrers a re virtually identical and assert the same challenges to the FAC. As such, the demurrers will be addressed together with any significant distinctions highlighted. Defendants' challenge both the first cause of action for medical negligence and the second c ause of action for fraud on the ground “[Defendants are] . . improper doe defendant[s]. (Code of Civil Procedure section 474.)” (Demurrers, p. 3, lines 5, 9.) Whether a defen...
2024.04.08 Motion for Summary Judgment
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.08
Excerpt: ...hat party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross- complainant has met that burden, the burden shifts to the defendant or cross -defendant to show that a triable issue of one or mo re material facts exists as to the cause of action or a defense thereto. The defendant or cross- defendant shall not rely upon the allegations or denials of its pleadings to show...
2024.04.08 Demurrer to SAC, Motion to Strike
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.08
Excerpt: ... of action for declaratory and injunctive relief. The demurrer is SUSTAINED IN PART and OVERRULED IN PART as set forth below. Second Cause of Action (Breach of Oral Contract): “The elements of a breach of oral contract cause are: ‘(1) existence of the contract; ( 2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.' [Citations.]” (Aton Center, Inc. v...
2024.04.08 Demurrer (3)
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.08
Excerpt: ...e allegations are mere conclusions. [Citations.] Some particularized facts demonstrating a constitutional deprivation are needed to sustain a cause of action under the Civil Rights Act. [Citations.]” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 564) When address ing federal statutes, it is appropriate to apply federal law. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 563 [“we hold that the state courts of California should apply...
2024.04.08 Demurrer (2)
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.08
Excerpt: ...essor in interest to Leonel Cordova and the Estate of Leonel Cordova (collectively, Plaintiffs). As set forth below, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. On October 2, 2023, the court sustained the Defendants' demurrer to the first cause of action for negl igence and allowed the Plaintiffs 20 days leave to amend. The basis for granting leave to amend was to allow Plaintiffs to either consolidate the negligence and premises liability...
2024.04.08 Demurrer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.08
Excerpt: ...e untimely reply. All briefs should be filed as required by the code. First Cause of Action (Civil Conspiracy to Commit Extortion): This cause of action is not sufficiently pled. Initially, the court overrules the challenge this cause of action is barred by certain terms of the Settlement Agreement. Le's claims include a claim to rescind the Settlement Agreement. If Le succeeds in rescinding the Settlement Agreement, then its terms would not bar...
2024.04.02 Application for Preliminary Injunction
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.04.02
Excerpt: ...court notes it is unclear whether the papers were properly served on Defendants. The proofs of service filed on March 1, 2024 (ROA 31, 33) are internally inconsistent. The proof of service on the judicial council form states the documents identified in the attachme nt were personally served on Nino Riazati on March 1, 2024, at 10:05 a.m., at 4343 Von Karmen Ave, Ste. 250, Newport Beach, CA 92660, which is the office of Plaintiff's counsel. This...
2024.03.18 Motion for Summary Adjudication
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.03.18
Excerpt: ... third causes of action in the F AC. For the reasons set forth below, both motions are DENIED. Because the motions and oppositions raise essentially the same arguments, involve very similar evidence, and are directed to the same pleading, the court will discuss both motions together. Th e party moving for summary judgment “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fa...
2024.03.18 Motion for Monetary Sanctions
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2024.03.18
Excerpt: ...n 1: Sanctions Motion by Defenda nts Defendants' request for sanctions under Code of Civil Procedure section 128.7 is DENIED because Defendants failed to comply with the safe harbor requirements. Section 128.7, subdivision (c)(1) requires notice of motion to be served as provided in Sect ion 1010, but shall not be filed or presented to the court unless, within 21 days after service of the motion the challenged paper is not withdrawn. Section 101...

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