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2021.01.15 Demurrer 941
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2021.01.15
Excerpt: ...905 [same].) MPs do not cite any CA authority applying the ecclesiastical abstention doctrine to a religious school. Second, Episcopal School is distinguishable, both procedurally and factually. As noted above, there does not appear to be any procedural equivalent under CA law to the “plea to the jurisdiction” at issue in Episcopal School. Further, the Episcopal School court determined that defendant school was a faith-based institution after...
2021.01.15 Demurrer 069
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2021.01.15
Excerpt: ...ction (intentional interference with contract) and overruled in all other respects. Second cause of action for breach of implied covenant of good faith and fair dealing. Defendants are correct that the second cause of action for breached of the implied covenant is merely duplicative of the first cause of action for breach of contract. However, redundancy of a cause of action is not a ground on which a demurrer may be sustained. (See Blickman Turk...
2020.12.11 Motion for Attorney Fees 269
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.12.11
Excerpt: ...laration at paragraph 4. (See Whitworth Decl. ¶¶ 6, 9-11; Fatone Decl. ¶¶ 4, 7.) Mr. Whitworth attests to his paralegal's billing rate as $165, but provides no details or support for such a high billing rate. (See Whitworth Decl. ¶ 6.) The court finds these rates excessive. Lemon law cases are routine and repetitive save for the specific defect involved. There were no unique factors involved in this case. Although an average rate for this ty...
2020.12.11 Demurrer 574
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.12.11
Excerpt: ...ed as to item 1 and denied as to items 2 & 3. The Demurrers on the grounds of lack of capacity to sue are each OVERRULED. The individual Plaintiffs are parties to the subject Residential Purchase Agreement. (See FAC Exh. 1.) Paragraph 51 of the FAC alleges that Plaintiffs took title to the subject real property in the name of their trust, thus the Plaintiffs as individuals, and as Trustees of the Ham Family Trust Dated 10/03/06 have capacity to s...
2020.12.04 Motion to Compel Further Responses 321
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.12.04
Excerpt: ...lege and/or the attorney work product doctrine. RPD Nos. 1-5 RP responded to these RPDs with objections, then stated: “All non privileged materials responsive to the category will be produced.” RP contends this response does not comply with CCP 2031.220 and/or CCP 2031.240. CCP 2031.220 states: A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand sha...
2020.12.04 Motion for Reconsideration 914
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.12.04
Excerpt: ...s given notice of this motion. Second, on the merits, a motion for reconsideration must be made: (A) Before the same judge or court that ruled upon the matter; (B) be made within 10 days of service of notice of entry of the order; (C) (1) Be based upon new or different facts, circumstances or law, and (C)(2) why such facts, conditions, or law were not provided at the initial hearing; (D) Be supported by a declaration stating the previous order, w...
2020.12.04 Demurrer 724
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.12.04
Excerpt: ...stody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise. (W&I 15610.57(a)(1).) “Neglect” includes, but is not limited to, the “failure to provide medical care for physical and mental health needs” and/or “failure to protect from health and safety hazards.” (W&I 15610.57(b)(2) and (b)(3).) The Act provides enhanced remedies, including attorney fees, to a plaintif...
2020.11.06 Motion to Vacate Arbitration Award 029
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.11.06
Excerpt: ...retation of a contract, the question is one of law for the arbitrator, not the court. United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960) 363 US 593, 599; Safeway Stores, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70 of Alameda County (1978) 83 Cal.App.4 th 430, 438 Errors of law are not reviewable. Moncharsh, supra, at p. 11 Arbitrators need not follow the law and may base their decisions on “broad princ...
2020.11.06 Motion for Preliminary Injunction 970
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.11.06
Excerpt: ...al purchasers at reasonable times and intervals. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [elements of declaratory relief]; Civ. Code, § 1954, subd. (a)(2), (b); Dromy v. Lukovsky (2013) 219 Cal.App.4th 278, 285-286; see also E. Barbanti Decl. ¶¶ 2-4, Ex. I; Norton Decl. ¶¶ 5, 11-14, Ex. C; Alexander Decl. ¶¶ 2-8, Exs. E-H; D. Barbanti Decl. ¶¶ 2, 10, 14; Complaint ¶¶ 1-29.) Plaintiff has also demonstrated that the parti...
2020.11.06 Demurrer 803
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.11.06
Excerpt: ...th leave to amend, the plaintiff may amend the complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without obtaining permission to do so, except when the new cause of action is within the scope of the order granting leave to amend. (Harris v. Wachovia Mortg. (2010) 185 C.A.4th 1018, 1023; see Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 ...
2020.10.30 Special Motion to Strike 174
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.10.30
Excerpt: ...d. (b)(1) requires the trial court to engage in a two-step process to determine whether a SLAPP motion should be granted. First, the court must decide whether the defendant has met the initial burden of establishing a prima facie showing that defendant's acts, of which the plaintiff complains, were taken in furtherance of the defendant's constitutional rights of petition or free speech in connection with a public issue. (See Navellier v. Sletten ...
2020.10.30 Motion for Summary Judgment, Adjudication 971
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.10.30
Excerpt: ...le 3.1350, subd. (b).) Defendants' Notice of Motion seeks summary adjudication of “…certain specified claims.” This utterly fails to comply with California Rules of Court, Rule 3.1350, subsection (b). A separate statement seeking summary adjudication must state verbatim, the noticed issues from the notice of motion at the beginning of each issue for summary adjudication. (See Calif. Rules Court, rule 3.1350, subd. (b); Truong v. Glasser (20...
2020.10.16 Demurrer 659
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.10.16
Excerpt: ...Plaintiff should have responded to Defendant's request to meet and confer pursuant to Code Civil Procedure section 430.41, subd. (a) within a reasonable amount of time, without the need for repeated requests. An attorney's communications about the legal system should at all times reflect civility, professional integrity, personal dignity, and respect for the legal system. An attorney should not engage in conduct that is unbecoming a member of the...
2020.10.09 Demurrer, Motion to Strike, for Protective Order, to Compel Production 057
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.10.09
Excerpt: ...nter, this cause of action as currently pled is barred by the economic loss rule. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [“Robinson Helicopter”].) Plaintiff fails to allege personal injury or any damages other than those related solely to her warranty claims. (FAC at Paras. 11, 18, 21, 50, 55- 57.) Absent allegations of damages other than those related to the warranty claims, plaintiff's claim for fraudulent o...
2020.09.25 Motion to Quash Service of Summons 710
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.09.25
Excerpt: ... Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.) Plaintiff's supporting evidence fails to demonstrate the existence of general jurisdiction under the requirements of Daimler AG v. Bauman (2014) 571 US 117, 130, 132-133, 134 S.Ct. 746, 756, 758 & fn. 8. California is not Defendant's place of incorporation, nor is California its “home” for purposes of general jurisdiction. Even if a nonresident defendant's “contacts” with Cali...
2020.09.25 Motion for Summary Judgment 039
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.09.25
Excerpt: ...4, 59.) Here, the first amended complaint asserts a single cause of action for medical negligence. As alleged against Dr. Vora, it is based solely on a theory of vicarious liability. (See FAC ¶¶ 3, 8; see also id. ¶ 11.) The first amended complaint does not allege any direct liability against Dr. Vora. The only persons who are alleged to have directly provided medical care to the plaintiff are defendant Thrissawan Sungkapalee, M.D. and the sta...
2020.09.18 Motion to Set Aside Default Judgment 059
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.09.18
Excerpt: ... of the summons and complaint shows substituted service on 10-24-19 to defendant at 14248 Oxnard Street, Suite B, Van Nuys CA 91401, by leaving the documents with: “'John Doe' (refused name), Person in Charge - Middle Eastern male with glasses, dark brown hair and a beard, 43 years old, with brown eyes.” (ROA No. 9, Para. 5(b).) The POS also shows that the summons and complaint were subsequently mailed by first class mail to the same address....
2020.09.11 Motion to Compel Arbitration 754
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.09.11
Excerpt: ..., particularly with respect to the misappropriation of trade secrets claim, which is based on the same nucleus of operative facts as alleged against each of these defendants. (See Complaint ¶¶ 8-18, 30- 37.) Beauty Molecules is an entity (id. ¶ 2) and therefore can only act through its agents. As alleged, at least two of those agents were Stoddart, one of its principals, and Taha, also a principal as well as its CEO. (See id. ¶¶ 14, 15, 32-3...
2020.09.11 Motion for Summary Adjudication 881
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.09.11
Excerpt: ...rt, rule 3.1354, subd. (b) requires that evidentiary objections be raised in a separate pleading and in a specific format. Additionally, Calif. Rules Court, rule 3.1350, subd.(d) does not authorize raising evidentiary objections in a separate statement. The court did not consider arguments raised therein either, as Calif. Rules Court, rule 3.1350, subd. (f)(2) requires that the responsive separate statement state: (i) whether the MP's UMF is disp...
2020.09.11 Anti-SLAPP Motion 710
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.09.11
Excerpt: ...ith a public issue. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88). If the moving defendant makes this showing, then the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on the claim, i.e., a showing of facts that would, if proved at trial, support a judgment in the plaintiff's favor. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567 568). Defendants fail to show th...
2020.08.28 Motion to Compel Further Responses 784
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.08.28
Excerpt: ...th the request, it does not state whether or not it is withholding some documents. RPD #4: This response is sufficient. Unlike #2 above, defendant responded that, after a diligent search and reasonable inquiry, there is only one responsive document in its possession, custody or control that is responsive. It identifies the document as Vehicle Information Detail Report for the 2011 Jeep Wrangler, VIN 1J4BA3H13BL597161. RPD #7: The response is not ...
2020.08.28 Motion for Summary Judgment 768
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.08.28
Excerpt: ... of appeal clearly based its holding on a body of law having to do with construction, not the design or manufacture of specialized medical devices such as orthotic shoes. Defendant's evidence also fails to establish that it constructed the subject orthotic shoes in full compliance with specifications provided by co-Defendant Fountain Valley Orthotics and Prosthetics, Inc. The shoe that allegedly caused Plaintiffs' damages was the right shoe. The ...
2020.08.28 Demurrer 749
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.08.28
Excerpt: ...nc. (1991) 234 Cal.App.3d 205, 215 [Cal. U. Com. Code, § 2725 applies to claims under Song-Beverly Act, including claims for breach of warranty]; Code Civ. Proc., § 388, subd. (d) [four year statute of limitations for fraud]; see also SAC ¶¶ 6 [plaintiffs purchased subject vehicle on 7/21/13], 108-115 [sixth cause of action for fraud by omission based on fraud occurring at the time of purchase].) Where, as here, a plaintiff relies on a theory...
2020.07.31 Motion to Vacate Default, Judgment 168
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.07.31
Excerpt: ...ied upon a codefendant or other interested party to defend, the question is whether the defendant was reasonably justified under the circumstances in his reliance or whether his neglect to attend to the matter was inexcusable. (See Santa Barbara Live Stock & Farming Co. v. Thompson (1873) 46 Cal. 63, 64; Crane v. Kampe (1964) 225 Cal.App.2d 200, 205-07; Stout v. Bakker (1963) 212 Cal.App.2d 78, 82-83; Montijo v. Robert Sherer & Co. (1907) 5 Cal.A...
2020.07.24 Motion to Set Aside Default 337
Location: Orange County
Judge: Moss, Robert
Hearing Date: 2020.07.24
Excerpt: ...b), 1013.) Plaintiff is in pro per; thus, e-service is not permitted, absent “affirmative consent,” of which there is no evidence. (CRC 2.253(b)(3).) However, there is nothing indicating that MP served plaintiff at all. Second, the motion should also be denied on the merits. The moving papers appear to have been copied from a form book, including directions to check boxes for applicable arguments, and assert nearly every conceivable legal gro...

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