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2023.05.26 Motion to Compel Arbitration
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.26
Excerpt: ...S the request, albeit unnecessarily. The court can consider case law without a request for judicial notice. The RISC provides that: EITHER YOU [PLAINTIFF] OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), ...
2023.05.26 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.26
Excerpt: ... the surrounding sidewalk that were not properly maintained by the defendants. More specifically, "for many years, the manhole cover was sinking into the sidewalk" and "[t]he sidewalk concrete surrounding the manhole cover was broken and contained jagged edges of concrete that posed a hazard to pedestrians". (SAC, GN-I.) It appears undisputed by the parties that the City owns the sidewalk, while Pac Bell owned the manhole cover. The City makes th...
2023.05.26 Motion for Summary Judgment
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.26
Excerpt: ... defendant shows no duty of care existed to support the 5th cause of action and without the alleged negligence cause of action or other wrongdoing by moving defendant, the 6th cause of action likewise fails. Peter & Associates rely on Weseloh Family Ltd. Partnership v. K.L. Wessel Const. Co. (2004) 125 Cal.App.4th 152. In Weseloh, property owners hired a general contractor, who in turn hired a retaining wall subcontractor, who in turn hired engin...
2023.05.26 Demurrer, Motions to Strike
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.26
Excerpt: ...a reasonable person in the same or similar circumstances would. Compl. 'l GN-I. The Complaint further alleges the City, through its agents, voluntarily assumed a protective duty towards Decedent and undertook action on her behalf, but did so negligently. (ld.) The 2nd cause of action for premises liability alleges the City created or had actual or constructive knowledge of, with lack of adequate warning or safeguards to the members of the public ...
2023.05.19 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.19
Excerpt: ...nt ("TAC") (ROA No. 88) and a Supplemental Complaint (ROA No. 89) on 5/26/20. The 7th cause of action (first count), Th cause of action (second count), 7th cause of action (third count), 7th cause of action (fourth count), 7th cause of action (fifth count), 8th cause of action, 11th cause of action, 12th cause of action, and 14th cause of action are alleged against FCI. 7th Cause of Action - First Count (Intentional Misrepresentation - Fraud and ...
2023.05.12 Motion to Contest Good Faith Settlement
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.12
Excerpt: ...the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors. The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing and any counteraffidavits filed in response. (Code Civ. Proc., 5 877.6(b).) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against...
2023.05.12 Motion to Compel Arbitration
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.12
Excerpt: ...case law without a request for judicial notice. Motion: It is undisputed that Plaintiff Gladders entered into a Retail Installment Sale Contract with Selma Chrysler Dodge Jeep Ram (the "RISC"). (Sandhu Decl. 2, Ex. A.) The RISC provides that: EITHER YOU [PLAINTIFF] OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. Any claim or dispute, whether in contract, tort, statute or otherwise (includi...
2023.05.05 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.05
Excerpt: ...mary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving 1. Defendant Thanh (Manson) Ly's MSJ/A The court OVERRULES Ly's objections to the declarations of Hao Wang, Xiehua Gu, and Haitian Zhu. Ly's objections to Plaintiffs' additional facts are not objections to evidence. As explained below, the court DENIES Thanh (Manson) Ly's ("Ly") Motion for Summary Judgment or, in the Alternative, Motion for Summary ...
2023.05.05 Motion for Summary Judgment
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.05.05
Excerpt: ...the 3rd cause of action for breach of contract and the 4th cause of action for negligence) are preempted, as a matter of law, by the Montreal Convention. In response, Plaintiff argues that the Montreal Convention does not apply here. The court finds that DHL proffers sufficient evidence showing that the Montreal Convention applies, that the Montreal Convention provides the exclusive remedy for Plaintiff's alleged damage to cargo, and that Plainti...
2023.04.28 Motion to Compel Deposition
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.04.28
Excerpt: ...nable to attend his depositions, which had been set for March 6 and 7 of 2023. (Declaration of Jason N. Cirlin, '1 17.) To that end, on 3/2/23, Defendants objected to the two deposition notices. (Exhibits F & G to Declaration of Dixon Gardner in Support of Reply.) In one of those objections, Defendants stated, "Defendants and Defendants' counsel are unavailable on March 7, 2023." (Exhibit G to Gardner Declaration in Support of Reply.) The Court n...
2023.04.28 Motion for Judgment on the Pleadings
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.04.28
Excerpt: ...d Sur-Reply filed 4/26/23. The tentative remains the same: The court DENIES Defendants FCA US LLC and John L. Sullivan Chrysler Doge Jeep Ram's Motion for Judgment on the Pleadings as to Plaintiffs 5th cause of action (for fraud by inducement) and 6th cause of action (for negligent repair) of the Complaint. 5th Cause of Action (Fraudulent Inducement) First, Defendants argue that Plaintiff's 5th cause of action is barred by the economic loss rule....
2023.04.14 Demurrer, Motion to Strike
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.04.14
Excerpt: ...st cause of action (elder abuse) and 4 th cause of action (EMTALA): As to the 1 st cause of action for elder abuse and the 4 th cause of action for violation of the Emergency Medical Treatment and Active Labor Act (EMTALA), Moving Defendants argue that the Complaint fails to allege sufficient facts to state such causes of action. Plaintiffs do not address the merits of the demurrer to either cause of action in their “Opposition (Response).” R...
2023.04.14 Demurrer, Motion to Strike (2)
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.04.14
Excerpt: ...e Control (ABC)– DENIED. (3) Gallaghers' Instagram postings – DENIED. (4) 1/16/2019 default judgment in Case No. 30-2018-01005800 – DENIED. (5) Huntington Beach Municipal Code 5.04.090 –GRANTED. (6) Gallaghers permit to sell food in 2020 issued by the County of Orange – DENIED. The court notes that Exhibits 1, 2, 3, 4 and 6 are not certified or authenticated, as noted in Plaintiff's untimely objection to the Request for Judicial Notice....
2023.04.14 Motion for Summary Judgment
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.04.14
Excerpt: ...l notice of Fullerton Municipal Code section 9.06.070, which was discussed by both sides and provided via link in Defendant's written Request for Judicial Notice (ROA 101). (See, e.g., Evid. Code, § 452(b); The Kennedy Comm'n v City of Huntington Beach (2017) 16 Cal.App.5th 841, 852 [the court may take judicial notice of municipal codes].)  2nd cause of action (premises liability) The First Amended Complaint (FAC), the operative pleading, all...
2023.04.07 Motion to Strike
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.04.07
Excerpt: ...es v. Superior Court (1984) 157 Cal.App.3d 159, 166.) And while the necessary facts can be stated as ultimate facts or conclusions of law, they are sufficient only when "read in context with the facts alleged as to defendants' conduct [so as to] adequately plead the evil motive requisite to recovery of punitive damages." (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) Here, the SAC fails to allege specific facts to support a claim of pu...
2023.04.07 Motion for Summary Adjudication
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.04.07
Excerpt: ...operty located at 3 Via Palma, Unit 27, Laguna Nigel, CA (the "Unit"). (Pl. Separate Statement No. 1 [Chapman Decl. 9-10, Exs. 8- 9, RFA and Responses Nos. 1-2]); Unit 27 is part of a condominium development managed by Defendant Niguel Pointe Homeowners Association in accordance with an Additional Declaration of Covenants, Conditions, and Restrictions and Reservations of Easements (the "CC&Rs") (Pl. Separate Statement No. 2 [Chapman Decl. 9-10, E...
2023.03.24 Motion to Tax Costs
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.24
Excerpt: ...that each Memorandum of Costs was untimely filed. The argument lacks merit. "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal ...." (Cal. Rules of Court, rule 3.1700(a)(1).) The deadline is extended b...
2023.03.24 Motion to Compel Further Responses
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.24
Excerpt: ...en discovery requests; to the extent it objects to the request, is unable to comply with the discovery request, or lacks sufficient information or knowledge to provide a complete and straightforward response, it must so state. (Code Civ. Proc., SS 2031.210- 2031.240.) Upon receipt of the discovery responses, the propounding party may move for an order compelling further responses if it deems the responses to be evasive, inadequate or incomplete, ...
2023.03.24 Motion to Compel Arbitration
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.24
Excerpt: ...ted cases that are attached to the Declaration of Daniel O. Nickfardjam, filed in support of Plaintiffs Opposition Brief. They too are improper and counsel is admonished not to improperly cite to rulings or opinions without precedential value. (See Bolanos v. Superior Court (2008) 169 Cal.App.4th 744, 761, 87 Cal. Rptr.3d 174 [citation of unrelated trial court order improper].) The court GRANTS Defendant Nissan North America, Inc.'s motion to com...
2023.03.24 Anti-SLAPP Motion
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.24
Excerpt: ...6] is that you have a right not to be dragged through the courts because you exercised your constitutional rights." (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317, emphasis in the original.) Protected activity is defined in the statute as the following: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written o...
2023.03.17 Motion to Compel Arbitration
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.17
Excerpt: ...rbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action."...
2023.03.17 Motion for Summary Judgment
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.17
Excerpt: ...lacking. The court SUSTAINS Defendant's evidentiary objection nos. 2, 3, 7, 8, 10, 12, and 13 to the Declaration of Mark J. Burns; and OVERRULES all other objections, including the remaining portions of the Burns Declaration and to portions of the Plaintiffs Declaration. The court DENIES Defendant Huntington Beach Union High School District's Motion for Summary Judgment. As explained below, Defendant fails to meet its burden on summary judgment. ...
2023.03.17 Motion for Judgment on the Pleadings
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.17
Excerpt: ... 32nd, 33rd, and 34th affirmative defenses WITH 10 days LEAVE TO AMEND; and the motion is DENIED as to the through 30th (inclusive) affirmative defenses. "'Motions for judgment on the pleadings are usually made by defendants. In such instances the motion is the equivalent of a general demurrer, and on appeal from the judgment the appellate court will assume the truth of all facts properly pleaded in the complaint. [Citation.] Motions by a plainti...
2023.03.17 Demurrer, Motion to Strike
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.03.17
Excerpt: ...was a 60% ownership in Congolese Wireless Network (CWN). "An action is deemed derivative '"if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation or to prevent the dissipation of its assets."' [Citation.] When a derivative action is successful, the corporation is the only party th...
2023.02.17 Motion for Summary Judgment
Location: Orange County
Judge: Recio, Sheila
Hearing Date: 2023.02.17
Excerpt: ...ous condition to exist on the premises – namely, a negligently maintained wooden railing – that led to plaintiff's injuries. In moving for summary judgment, defendant argues that plaintiff cannot establish causation, as the allegedly faulty wooden railing did not cause plaintiff's injuries. Here, defendant met its initial burden to show that causation is lacking here. Defendant proffers evidence that plaintiff fell from the roof, and not from...

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