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2023.05.05 Demurrer 399
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.05
Excerpt: ...ce Defendants request judicial notice of the following court records under Evidence Code section 452(d) in the matter of In re Rebecca Ann Rawji and Diamond Rawji, in U.S. Bankruptcy Court, case no. 8: 14-bk-14406-TA: Notice of Motion and Motion to Avoid [Wildish and Nialish] Lien Under 11 U.S.C. S 522 (Real Property), filed October 14, 2014 by Debtors Diamond Rawji and Rebecca Rawji [RJN 1 ) Objection and Request for Hearing on Motion to Avoid t...
2023.04.28 Motion to Tax Costs 632
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.28
Excerpt: ...Such fees are recoverable, however, when a judgment following the nonacceptance of a pretrial settlement offer triggers operation of section 998... [S)ection gg8 provides: '(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. CT.] . (d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding ..., the c...
2023.04.21 Demurrers 961
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.21
Excerpt: ...to state facts sufficient to constitute these affirmative defenses; affirmative defenses must be alleged as carefully and with as much detail as the facts that constitute the causes of action alleged in the complaint. (See FPI Development, Inc. v. Nakashima (1991) 231 cal.App.3d 367, 384.) 4th affirmative defense: Defendant fails to specify the applicable statute and subdivision and sets forth numerous inapplicable statutes. (Martin v. Van Bergen...
2023.04.14 Demurrer 655
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.14
Excerpt: ...s. First Cause of Action Plaintiffs can no longer state a cause of action for violation of Civ. Code § 2923.5 as the sale has already been concluded, and there are no longer any remedies available under this statute. (Compl., ¶ 13; See Civ. Code § 2923.5; Civ. Code § 2924g; Mabry v. Superior Ct. (2010) 185 Cal. App. 4th 208, 235; See also Stebley v. Litton Loan Servicing, LLP (2011) Cal.App.4th 522, 526 [recovery of damages not permitted for ...
2023.04.03 Motion to Quash Service of Summons, to Dismiss 204
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.03
Excerpt: ... jurisdiction." (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, logo; see Automobile Antitrust Cases, supra, 135 Cal.App.4th at pp. 110-111.) Jurisdictional facts must be proved by competent evidence. (Automobile Antitrust Cases, at pp. 110-111.) Plaintiff Javad Dadgostari (plaintiff) has failed to meet this burden. Personal jurisdiction may be either general or specific. General jurisdiction exists if the defendant is "at home" in the ...
2023.03.24 Motion for Summary Judgment, Adjudication 155
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.03.24
Excerpt: ...sed Deed Restriction. (See UMFs #12, 13, 14, 15, 16 and 17.) So too, are there triable issues of fact with regard to the claim for bad faith. Further, Defendant has not met its burden with regard to the punitive damages claim. The Court declines to rule on the objections contained in plaintiff's separate statement in opposition to this motion. The separate statement is not an appropriate place to assert objections. With regard to summary judgment...
2023.03.17 Motion for Summary Judgment, Adjudication 993
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.03.17
Excerpt: ...r initial burden as to these causes of action, as they have not addressed all of the relevant allegations of the Complaint. (Code Civ. Proc., 437c, subd. [burden]; Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001 [reversing grant of summary judgment because moving party only addressed liability under state law, not federal statutory liability alleged as an alternative]; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 9...
2023.02.10 Motion for Summary Judgment, Adjudication 381
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.02.10
Excerpt: ...original Complaint, First Amended Complaint, Second Amended Complaint, and Third Amended Complaint [TAC]. The remainder of the request is DENIED. (Evid. Code, § 453, subd. (b) [request must provide the court with sufficient information to enable it to take judicial notice]; see also Code Civ. Proc., § 437c, subd. (b)(7) [“An incorporation by reference of a matter in the court's file shall set forth with specificity the exact matter to which r...
2023.01.20 Motion for Summary Judgment, Adjudication 681
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.01.20
Excerpt: ...ment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Summary adjudication is also denied, as follows: 1st cause of action: breach of contract; 2nd cause of action: breach of implied covenant of good faith and fair dealing Summary adjudication is denied as to the 1st cause of action for breach of contract, due to triable issues of material fact regarding whether defendants breached the applicable agreements by “fail[ing] to provide al...
2023.01.06 Motion to Compel Arbitration, Further Responses 532
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.01.06
Excerpt: ...ion as a petition under California Code of Civil Procedure, section 1281.6 to appoint an arbitrator. Plaintiffs and defendants are to submit a joint list of arbitrators to the court within fifteen days. From that list, the court will nominate five arbitrators and advise the parties by minute order. The parties shall have five days from receipt of the nominated list to agree upon an arbitrator, or the court will assign the arbitrator to arbitrate ...
2022.12.20 Motion for Summary Judgment, Adjudication 710
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.20
Excerpt: ...l.4th 826, 850-851 [same].) The complaint alleges that defendant Avco knowingly misrepresented to the Federal Aviation Administration, and concealed or withheld from the Federal Aviation Administration, information that is material and relevant to the performance or the maintenance or operation of the engine system, e.g. the carburetor issues that led to multiple accidents. (See Compl. ¶¶ 32-39, 42-45, and 51-52.) The concealment claims are ade...
2022.12.20 Demurrer, Motion to Strike 846
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.20
Excerpt: ...The Court finds that 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 be alleged factually and specifically since the policy of liberal construction of pleadings wil...
2022.12.09 Motion for Entry of Seperate Judgment, for Attorney Fees 663
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.09
Excerpt: ...arties. (Calif. Code of Civil Proc. §§ 578, 579; Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 577-578.) The court determines that the entry of a separate judgment is proper and in the interests of justice. (See Calif. Code of Civil Proc. §§ 578, 579.) Criteria considered by the court in granting this motion includes, but is not limited to: (i) Based upon the partial reversal of the court's initial judgment, cross-com...
2022.12.09 OSC Re Preliminary Injunction 800
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.09
Excerpt: ...in the court record. Plaintiff Candice P. Smith's (Smith) contention that this motion should be denied because Courtade's claims belong in probate is better raised on demurrer or a motion for stay (which either party may still bring). At this time, however, the argument fails because Smith fails to show that the probate court has exclusive jurisdiction over Courtade's proposed claims. Indeed, the Probate Code provides that its remedies for a tran...
2022.12.09 Motion to Compel Production 713
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.09
Excerpt: ...pp. 7:25-8:2.) It is well settled that federal and state tax returns are generally privileged. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6; Webb v. Standard Oil (1957) 49 Cal.2d 509, 513 (Webb); Deary v. Superior Court (2001) 87 Cal.App.4th 1072, 1077-1078.) The privilege applies to tax returns and records that are an “integral part” of the tax returns, such as W-2 and 1099 forms. (Brown v. Superior Court (1977) 71 Cal.App.3d ...
2022.11.18 Demurrer 198
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.11.18
Excerpt: ...pleaded in support thereof. (See Code Civ. Proc., §§ 430.801, 4582.) Demurrer is overruled as to this affirmative defense. 2nd Cause of Action: Judicial estoppel requires facts showing (1) the same party has taken two positions; (2) the two positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position; (4) the two positions are totally inconsistent; and (5) the first ...
2022.10.21 Motion for Judgment on the Pleadings 113
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.10.21
Excerpt: ...ontract. This claim is based on the VRE defendants' alleged conduct in inducing defendant Nancy Goetz Tafoya (Tafoya) to breach the residential purchase agreement between plaintiff Medici Partners, LLC (plaintiff) and Tafoya. (See TAC ¶¶ 54-57.) Tafoya has since successfully moved for summary judgment on the third amended complaint, including on plaintiff's claim for breach of contract/the subject residential purchase agreement, and judgment ha...
2022.10.21 Demurrer, Motion to Strike 390
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.10.21
Excerpt: ...ld plaintiff in May of 2018, during a breakup argument, that the transmission of the communicable disease to plaintiff was intentional in order to maintain the relationship and control over plaintiff, rendering her “damaged goods”, that he had hidden physical symptoms from plaintiff in order to intentionally give her the disease, and that he had infected at least one other woman with the same disease. (Id. ¶ 12.) While this conduct occurred ...
2022.10.21 Demurrer 056
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.10.21
Excerpt: ...party who might assert a claim to title in the property, including alter egos and those claiming an adverse interest. (Eleanor Licensing LLC v. Classic Recreations LLC (2018) 21 Cal.App.5th 599, 617; see Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1506 [explaining one purpose of 1980 revision of statutory scheme for quiet title actions was to permit the action to proceed against “any or all adverse claimants,�...
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 ...

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