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2023.07.24 Motion for Summary Judgment
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.24
Excerpt: ...ere working to finalize a settlement. The court granted the request and continued the hearing without making a final ruling. The court also ordered any additional filings to be made pursuant to the code. No new filings have been made since the last hearing; the court's tentative ruling remains the same. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of mate...
2023.07.24 Motion for Preliminary Injunction
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.24
Excerpt: ...cert with him, from engaging in a wide variety of acts that relate to what Plaintiffs describe as 37 entities contributed to the MOM Entities (Contributed Entities) pursuant to the terms of the Asset Contribution Agreement and the Operating Agreements, dated June 8, 2021. “The showing of potential harm that a plaintiff must make in support of a request for preliminary injunctive relief may be expressed in various linguistic formulations, such a...
2023.07.17 Motion to Disqualify Counsel
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.17
Excerpt: ...e motions carefully to ensure that literalism does not deny the parties substantial justice. Depending on the circumstances, a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden on a client to replace disqualified counsel, and the possibility that tactical abuse underlies the disqualification motion. . . . [¶] . . . Ultimately, disqu...
2023.07.17 Motion to Confirm Automatic Stay or to Require Undertaking
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.17
Excerpt: ...mber 29, 2022, under Code of Civil Procedure section 916. Plaintiff argues this case falls squarely within the exceptions to the automatic stay provisions of section 916, specifically, Code of Civil Procedure section 917.4. Section 917.4 states, “The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real ...
2023.07.17 Motion for Terminating Sanctions
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.17
Excerpt: ...�[d]isobeying a court order to provide discovery.” (Code Civ. Proc., §§ 2023.010; 2023.030.) Code of Civil Procedure sections 2030.290(c) [re Rogs] and 2031.300(c) [re RFPs] provide that if a party fails to obey an order compelling discovery responses, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and/or monetary sanctions. Defendant has establish...
2023.07.17 Demurrer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.17
Excerpt: ...laintiff's mortgage payments and misrepresented the status of Plaintiff's payments. (¶1 and ¶25-¶27.) Based on these allegations, Plaintiff alleges Defendant violated several portions of Civil Code section 1770, subdivision (a). (¶35.) Civil Code section 1770, subdivision (a), however, does not apply to mortgage loans. As noted by the court in Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29, the CLRA prohibits “unfair metho...
2023.07.10 Petition for Alternative Writ of Mandate
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.10
Excerpt: ...ioner appeared and provided testimony. The Department admitted seven exhibits into evidence and Petitioner offered no documentary evidence. The Decision contains a detailed list of findings of fact upon which the Hearing Officer reached the conclusion. Code of Civil Procedure section 1094.5 governs review of administrative orders or decisions. “The inquiry in such a case shall extend to the questions whether the respondent has proceeded without...
2023.07.10 Motion to Compel Further Responses
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.10
Excerpt: ...n to Compel Further Responses to Special Interrogatories (Set One), and (5) Motion to Compel Further Responses to Requests for Admission (Set One). All five motions are GRANTED, as stated below. Defendant's monetary sanction request also are GRANTED as stated below. The court notes all five motions are timely, as counsel and Plaintiff agreed the deadline to file a motion to compel would extend to 30 days after Plaintiff obtained new counsel. Plai...
2023.07.10 Demurrer to FAC, Motion to Strike
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.10
Excerpt: ...tion “founded upon a contract, [when] it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10, subd. (g); Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 [to properly plead a cause of action for breach of contract, “the complaint must indicate on its face whether the contract is written, oral, or implied by conduct”].) Thi...
2023.07.03 Demurrer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.03
Excerpt: ...rits of this demurrer, counsel are reminded compliance with all statutory and procedural requirements is expected, and should not assume future omissions will be met with similar consideration. On the merits, the demurrer to the entire XC is OVERRULED. Under Business and Professions Code section 17900(b)(1), the requirements for “fictitious business name” filings do not apply to an individual where, as here, the “dba” includes the surname...
2023.07.03 Demurrer (2)
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.03
Excerpt: ...s, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) First Cause of Action (Product Liability and Strict Liability): The law of products liability recognizes three types of product defects: manufacturing defects, design defects and warning defects (i.e., failure to warn or inadequate warning). (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180.) Plaintiff confusingly appears to combine at least tw...
2023.07.03 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.03
Excerpt: ...motion Yellow Dog seeks summary judgment on its SACC, or in the alternative summary adjudication on two of the eleven issues on which declaratory relief is sought the SACC's first cause of action. Initially, it must be noted summary judgment may not be granted because Yellow Dog's motion fails to dispose of the entire SACC. The SACC alleges two causes of action for declaratory relief. The first seeks 11 declarations against all cross-defendants a...
2023.07.03 Motion for Summary Judgment, Adjudication (2)
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.03
Excerpt: ...er Complaint, (2) summary judgment/adjudication against cross-defendants Catholic Charities of Orange County, Inc. (Charities), Serrano Woods, LP (Serrano), Advanced Property Services, LP (APS), and Orange-Villa Bible Church (Church) on Friendly's second amended cross-complaint (SAXC), (3) summary judgment against Church on Church's cross-complaint, and (4) summary judgment against Serrano and APS on their joint cross-complaint. The Motion thus i...
2023.07.03 Motion to Expunge Lis Pendens
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.07.03
Excerpt: ...evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” Code of Civil Procedure section 405.22 states, “the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt...
2023.06.12 Motion to Sever Case
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.12
Excerpt: ...hat the claims of the Valencia Plaintiffs may be separately tried is DENIED. Code of Civil Procedure section 1048(b) also allows for severance of claims or issues, stating “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of a...
2023.06.12 Motion to Dismiss
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.12
Excerpt: ...aintiffs' most recent complaint was sustained with leave to amend. In connection with the prior hearing on June 2, 2023, the court posted a tentative ruling to grant the application. At the time of the hearing, however, attorney Brian Ballo specially appeared on Plaintiffs' behalf stating Plaintiffs were attempting to retain him to represent them and file the amended complaint. The court acknowledged the apparent abandonment by Plaintiffs' prior ...
2023.06.12 Motion for Summary Judgment (2)
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.12
Excerpt: ... (2001) 25 Cal.4th 826, 850.) A “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 fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) "A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of th...
2023.06.12 Demurrer to SAC, Motion to Strike
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.12
Excerpt: ... the California Court of Appeal for the First District, Division Four, issued its opinion in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, review granted February 1, 2023, S277568 (Dhital), and held the economic loss rule does not bar a fraudulent inducement by concealment cause of action on substantially similar allegations. (Dhital, supra, 84 Cal.App.5th at p. 840-841.) Although the Supreme Court's decision to grant review in ...
2023.06.12 Demurrer (2)
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.12
Excerpt: ....4th 217, 230-231). Additionally, “[e]ach element of a fraud count must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action, although less specificity is required if the defendant would likely have greater knowledge of the facts than the plaintiff.” (Id. at P. 231.) “The particularity requirement demands that ...
2023.06.12 Demurrer
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.12
Excerpt: ...nlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; So...
2023.06.05 Motion to Quash Service of Summons
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.05
Excerpt: ...t the requirements of Code of Civil Procedure section 474. Finally, Defendant asserts the alleged undue delay in naming and serving her prejudiced her in violation of section 474. "Section 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically, as a 'Doe'), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it. W...
2023.06.05 Motion to Compel Further Responses
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.05
Excerpt: ...l further responses, the moving party must meet and confer with the responding party in a reasonable and good faith attempt to informally resolve each issue that would be presented by the motion. (Code Civ. Proc., SS 2030.300(b), 2031.310(b), and 2033.290(b).) code of Civil Procedure section 2016.040 requires a good faith attempt to resolve "each issue presented by the motion." There must be a serious effort at negotiation and informal resolution...
2023.06.05 Demurrer to FACC, Motion to Strike
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.06.05
Excerpt: ... to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as...
2023.05.22 Motion to Compel Second Physical Exam
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.05.22
Excerpt: ...0), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination." Code of Civil Procedure section 2032.320 requires the defendant to establish good cause for the second exam. "'Good cause' ma...
2023.05.19 Motion to Compel Further Responses
Location: Orange County
Judge: Hesseltine, David J.
Hearing Date: 2023.05.19
Excerpt: ...les (Estate; Sonia, Isaias, and Estate collectively referred to as Plaintiffs). The RFAs to the three plaintiffs are nearly identical. Each motion is GRANTED in part and DENIED in part. Specifically, the motions are GRANTED as to RFA Nos. 2-8, 11-12, and 14-15, and DENIED as to RFA Nos. 10, and 13. The court grants the motion pursuant to Code of Civil Procedure section 2033.290. As an initial matter, the court notes (1) sufficient meet and confer...

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