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2024.04.29 Motion to Strike Complaint 099
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.29
Excerpt: ...8/12/24. (See ROA 301). As an initial matter, a motion to strike cannot be used to challenge an entire cause of action for failure to state a claim. Motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶ 7:156.) A “motion to strike” for failure to state a cause of action (ground for general ...
2024.04.29 Demurrer 737
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.29
Excerpt: ...t issue s must be admitted or denied, or what counts or claims are directed against him or her. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) The allegations in the FAC are not so confusing that Defendants cannot determine what to respond to. (Id., see also Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) General demurrer A demurrer presents an issue of law regarding the sufficiency of the allegat...
2024.04.29 Demurrer 165
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.29
Excerpt: ...ch (“City”) is an in dispensable party. Defendants' unopposed requests for the Court to take judicial notice of a notice of violation (warning only) issued by the City of Newport Beach Harbor Department and a notice that the warning was rescinded are granted. (Evid. Code, § 452, subd. (c).) First cause of action for declaratory relief A defendant may demur to the complaint on the ground that there is a defect or misjoinder of parties. (Code ...
2024.04.29 Motion to Compel Production 103
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.29
Excerpt: ...et forth spec ific facts showing good cause justifying the discovery sought by the inspection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise a...
2024.04.22 Motion to Compel Production of Docs 839
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.22
Excerpt: ... by the insp ection demand. To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) specific facts justif ying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). Glenfed Develop. Corp. v. Superior Court (National Union Fire In...
2024.04.22 Demurrer, Motion to Strike 241
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.22
Excerpt: ...urety Complai nt is a motor vehicle surety company. (Cross- Complaint (“X-C o m p .” ) , ¶¶ 1 & 5.) Old Republic issued a motion vehicle surety bond to CrossDefendant Panda Motors, Inc., under Chapter 4, Division 5 of the Vehicle Code (X -Comp., ¶ 5.) Panda Motors is a motor ve hicle dealer, which obtained a motor vehicle bond from Old Republic. (RJN, ¶ 1.) A number of persons have made claims or will make claims to Old Republic on the bo...
2024.04.22 Demurrer 231
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.22
Excerpt: ...otice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. Leek v. Cooper (2011) 194 Cal. App. 4th 399, 413. On demurrer, a...
2024.04.15 Motion for Summary Judgment, Adjudication 413
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.15
Excerpt: ...ness of the defect, the foreseeability of danger to Plaintiff, and the trivialness of the defect. Defendant's evidentiary objections are overruled. Basic Rules for Summary Judgment/Adjudication Under Code Civ. Proc. § 437, a party may move for summary adjudicatio n as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the c...
2024.04.15 Demurrer, Motion to Strike 308
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.15
Excerpt: ...the sixth ca use of action, the court finds that Plaintiff has alleged a special relationship that supports a cause of action for constructive trust. Further, that cause of action is not barred by the statute of limitations as Code Civ. Proc. §340.1 applies rather than Code Civ. Proc. § 338. Accordingly, the demurrer to that cause of action is overruled. On the seventh cause of action for breach of fiduciary duty, the court finds that Plaint...
2024.04.08 Demurrer 277
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.08
Excerpt: ... inten t to perform. “ ‘ “ Promissory fraud” is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud .' ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973−974, internal citations omitted.) “Under Civil Code section 1709, one is liab...
2024.04.08 Demurrer 116
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.08
Excerpt: ..., (5) bre ach of implied in fact contract, (6) work, labor, and services rendered, (7) recovery of stolen property received pursuant to Penal Code §496, (8) intentional interference with contractual relations, (9) intentional interference with prospective economic relations, and (10) negligent interference with prospective economic relations. 1. Actual Fraud The elements of fraud are: "(a) [a] misrepresentation (false representation, conceal...
2024.04.08 Motion to Compel Production 243
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.08
Excerpt: ... not moot. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 Cal. App. 4th 390, 405- 407. Code Civ. Proc. section 2031.310 provides, in relevant part, that “any party may obtain discovery” by “inspecting, copying, testing, or sampling d ocuments, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Code Civ. P...
2024.04.08 Motion to Strike 355
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.08
Excerpt: ...they are not mat erial to the disposition of the motion. Additionally, the Court declines to issue an advisory ruling on the issue of waiver of attorney -client privilege, because an assertion of the privilege is not before the court. Merits Taylor Graphics moves, under C CP section 425.16, for an order striking the following allegations in Espinosa's Cross -Complaint: “[Taylor Graphics breached the Lease and caused a nuisance for] failing and ...
2024.04.02 Motion to Stay Proceedings 368
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.02
Excerpt: ...he Estate o f Jeffrey Russell, Case No. 213400266 (the “Utah Probate Case”). Plaintiffs contend that the issues in the Utah Probate Case are substantively identical to these proceedings as it involves many of the same claims at issue and the same parties here. The C ourt disagrees. Plaintiffs' claims in the Utah action are as follows: (1) determining invalidity of purported trust; or in the alternative (1) enforcing decedent's contract to lea...
2024.04.02 Motion for Summary Judgment, Adjudication 727
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.02
Excerpt: ... an ov erlong brief due to Defendant's improperly single -spacing and use of less than 12 point font for numerous footnotes. The court is inclined to continue the hearing, and trial as necessary, to order Defendant to file a compliant memorandum and permit Plaintiff to respond pursuant to Code Civ. Proc. §437c. The court will hear from counsel on this point. Issues with Defendants' Moving Papers The Memorandum For its memorandum in support of i...
2024.04.02 Motion for Summary Judgment, Adjudication 606
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.02
Excerpt: ...nt bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (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. . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A...
2024.04.02 Motion for Summary Judgment 342
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.02
Excerpt: ...ff requests be stricken. (Id., 3:20 -22.) The memorandum also seeks an order striking the separate statement and references in Defendants' brief to the facts contained in the separate statement. (Id., 8:14 -16.) The Court considers this a motion to strike the entire separate statement only. (Cal. Rules of Ct., Rule 3.1322(a).) “The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an...
2024.04.02 Demurrer 821
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.02
Excerpt: ...Cal.App.5th 356, 384.) Plaintiffs are granted limited leave to amend, however, to plead this remedy within the underlying cause of action they believe supports this relief. The demurrer to the second cause of action for conversion and the third cause of action for tr espass to chattel, is sustained, on the basis Plaintiffs have not alleged interference with Plaintiff's possession of the identified property. (PCO, Inc. v. Christensen, Miller, Fin...
2024.04.02 Demurrer 642
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.04.02
Excerpt: ...limited to t he “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfu lly drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is c...
2024.03.18 Motion to Compel Physical, Mental Exam, to Strike or Seal, for Sanctions 089
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.03.18
Excerpt: ... treat a motion by the nature of the relief sought rather than the title given. (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) In addition, when the Court continued the trial date on 1/17/24, it stated in its order, “[t]he Court does NOT extend any discovery or motion deadlines other than deadlines associated with the motion to compel independent medical examination.” (ROA 400.) Based on this, Plaintiff's argume...
2024.03.18 Demurrer 642
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.03.18
Excerpt: ... (which includes exhibits attached and incorporated therein) or from matters outside t he pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (L...
2024.03.18 Demurrer 116
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.03.18
Excerpt: ...f action. Plaintiff sues Defendants for (1) actual fraud, (2) fraud in the inducement, (3) breach of contract, (4) breach of the implied covenant of good faith and fair dealing, (5) breach of implied in fact contract, (6) work, labor, and services rendered, (7) recovery of stolen property received pursuant to Penal Code § 496, (8) intentional interference with contractual relations, (9) intentional interference with prospective economic relation...
2024.03.11 Motion to Quash Discovery Subpoena 839
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.03.11
Excerpt: ...terms and conditions as the court shall declare inclu ding protective orders. In addition, the court may make any other order as may be appropriate to protect the moving party from unreasonable or oppressive demands including unreasonable violations of the moving party's right of privacy. Code Civ. Proc. §1 987.1. Further, in connection with a subpoena for consumer records: Any consumer whose personal records are sought by a subpoena duces tecum...
2024.03.11 Motion for Protective Order 632
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.03.11
Excerpt: ...on this motion; or, in the alternative, a n order appointing a discovery referee to oversee and monitor Defendant's behavior at all depositions and at Defendant's expense.” (Not. of Mot. at p. 2.) Under CCP section 2025.420, any party “may promptly move for a protective order” before, during or af ter a deposition. The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.420, subd. (a).) “The court, for g...
2024.03.11 Motion for Contempt 221
Location: Orange County
Judge: Fish, Jonathan
Hearing Date: 2024.03.11
Excerpt: ...r, or process of the court” is contempt of the authority of the court. (Code Civ. Proc., § 1209, subd. (a)(5).) “The substantive issues involved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience.” (Conn v. Superior C ourt (1987) 196 Cal.App.3d 774, 784.) “A contempt proceeding [for indirect contempt] is commenced by the filing of an aff...

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