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2018.4.17 Motion for Judgment on the Pleadings 585
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.17
Excerpt: ...here is no genuine dispute regarding the document's authenticity.” Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (overturned on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 n. 130). 1st & 2nd Causes of Action – Violation of 15 USC §1692f(6) & 15 USC 1692 et seq: California has determined that engaging in activities leading to a foreclosure do not constitute debt collection. (Fonte...
2018.4.17 Motion for Attorney's Fees 039
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.17
Excerpt: ...e entitled to attorney's fees, but argue that the amount requested is unreasonable. Daniel Kessler indicates that 2,757.14 hours were spent on this litigation by his firm of Burkhalter Kessler Clement and George (BKCG) for a total of $1,081,788.60, with an average hourly billing rate of $392.36. (Decl. of Kessler, ¶28, p. 19.) He states that his hourly billing rate throughout the year of litigation ranged from $495 to $545, while the hourly rate...
2018.4.17 Motion for Attorney Fees 039
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.17
Excerpt: ...applies to all of the causes of action in this case. They concede that the LLC was the prevailing party and are entitled to reasonable attorney fees. There is no dispute that under Code of Civil Procedure Section 1032 and Civil Code Section1717 that the prevailing party on a contract shall be entitled to attorney fees. The Van Loons contend that the amount of attorney's fees requested is unreasonable because the majority of the work was performed...
2018.4.17 Demurrer 947
Location: Riverside
Judge: Chapman, David
Hearing Date: 2018.4.17
Excerpt: ...llege a demand or other facts showing futility. To reiterate, derivative actions are equitable. From an equitable standpoint it must be asked whether there is some reason that, if the allegations are true, Tortoris should be allowed to avoid liability for allegedly stealing $1,600 from Carpet Depot? The answer is maybe because the State has an interest in collecting its Franchise taxes. What the court must balance is the State's interest in colle...
2018.4.16 Motion to Compel Arbitration 452
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.16
Excerpt: ...fore considering the matter on the merits. It is noted that on February 20, 2018, this court granted Mission and Chin's motion to compel arbitration pursuant to an arbitration provision in the Employment Agreement. “The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fac...
2018.4.16 Motion to Bifurcate 679
Location: Riverside
Judge: Marquez, Raquel
Hearing Date: 2018.4.16
Excerpt: ...s former resident Patricia Jenkins.” Answer, p. 2, ln. 10‐12. Defendant concedes that the failure to obtain an admission agreement is a violation and states that “t]his factual admission alone forms the basis for Defendant's violation of section 1430(b).” Answer, p. 2, ln. 17‐18. Beyond that, defendant does not admit and denies all other allegations of the complaint. The violation that Ramona has admitted to—not obtaining an admission...
2018.4.16 Motion for Equitable Accounting 053
Location: Riverside
Judge: Riemer, Craig
Hearing Date: 2018.4.16
Excerpt: ..., memorandum of points and authorities, and exhibits filed on 1‐5‐18;  The defendant's opposition to the motion, and attached exhibits and transcripts, filed 1‐29‐18;  The declaration on behalf of defendant regarding the timeliness of that opposition, filed 1‐30‐18;  The plaintiff's reply, filed 2‐5‐18;  The declaration on behalf of plaintiff, filed 2‐9‐18;  The declaration of Sherise Histen filed 3‐ 12‐18. ...
2018.4.16 Motion for Attorney Fees 603
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.16
Excerpt: ...ailed to challenge the detailed time records and invoices, the declarations submitted, and the hourly rates based on experience. Civil Code §1717 contains both an entitlement clause (prevailing party) and a discretionary clause (the court can determine there is no prevailing party). (De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1292.) “A simple unqualified win (on a contract, of course) takes a case out of the discretion clause and puts...
2018.4.16 Demurrer, Motion to Strike Punitive Damages 438
Location: Riverside
Judge: Stamen, Randall
Hearing Date: 2018.4.16
Excerpt: ... in the OBGYN department. Finally, Plaintiff alleges that Parkview attempted to discourage her from making the complaint and once she made it, Dr. Nurick (Vice Chief of all Medical Staff) trivialized her complaint suggesting Plaintiff was just not used to the interactions. These allegations are sufficient at the pleading stage. Plaintiff alleges facts supporting a claim for punitive damages based on the allegation of sexual harassment by Salazar....
2018.4.16 Demurrer 239
Location: Riverside
Judge: Chapman, David
Hearing Date: 2018.4.16
Excerpt: ..., Dean and Simone Walsh, owned the vacation home where Riley and Jack were staying as guests of the Walshes with co‐defendants Kehly and Lance Sloan. (¶¶ 7‐11.) (Although the SAC also names Chad and Jeanie McQueen as codefendants, they have now been dismissed.) As to the Walshes, Plaintiff alleges that: (1) they negligently stored and secured a modified golf cart that they owned, despite knowledge that children would be staying at their hom...
2018.4.13 Demurrer 138
Location: Riverside
Judge: Chapman, David
Hearing Date: 2018.4.13
Excerpt: ...unities, Inc. Brookdale Senior Living, Inc. and Brookdale Rancho Mirage during which time he was defined as an “elder” under the Welfare and Institutions Code sections 15610.23 and 15610.27. During the time he resided at their facility they failed to ensure there were the necessary number of adequately trained staff on duty at all times and failed to care for him in a non‐reckless manner. That the actions committed by Defendants were ratifi...
2018.4.13 Demurrer 196
Location: Riverside
Judge: Chapman, David
Hearing Date: 2018.4.13
Excerpt: ...leging 4 causes of action for: 1) Fraud, 2) Negligent Misrepresentation, 3) UCL Violation, and 4) Breach of Contract. Defendants demurred to all four causes of action. This court on 1/8/18 sustained with leave to amend as to all four causes of action. On 2/7/18, Roseian filed its First Amended Complaint (“FAC”) alleging the same four causes of action. Defendants once again demur to all causes of action. 1 st Cause of Action for Fraud (Intenti...
2018.4.13 Motion to Disqualify Counsel 174
Location: Riverside
Judge: Chapman, David
Hearing Date: 2018.4.13
Excerpt: ...eviewing a disqualification motion, the court balances competing interests to ensure the parties are not denied substantial justice. (People ex rel. Dept. of Corps. v. Page 7 of 8 SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144‐1145.) “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 b...
2018.4.13 Motion for Summary Judgment, Adjudication 396
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.13
Excerpt: ...n particular, Defendant produced evidence it was contractually limited in providing HAMP relief to Plaintiffs. The burden shifted to Plaintiffs, but Plaintiffs failed to produce sufficient evidence showing a triable issue of fact. 3rd cause of action (Issue No. 4): DENIED. Defendant met its initial burden that it did not breach any duty of care; however, Plaintiffs produced sufficient evidence showing a triable issue of fact as to whether Defenda...
2018.4.13 Motion to Quash Service of Summons 487
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.13
Excerpt: ...of Parke, ¶3.) The POS clearly shows that Parke was not personally served. Dayn Holstrom indicates that he is the designated agent for service of process for Holstrom, which is a professional law corporation. (Decl. of Holstrom, ¶1 and 2.) He states that Ms. Leon is not the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller ...
2018.4.13 Motion to Tax and or Strike 462
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.13
Excerpt: ...111, 131. If an item is not expressly allowed under the statute, the burden is on the party seeking said expense to provide evidence that the fees are reasonable or necessary. Id. at 132. Filing Fees: Defendant seeks first appearance fees incurred by it and J. Velarde, Inc. However, everyone agrees that J. Velarde, Inc. waived its right to costs. Defendant argues that it should still is entitled to these costs because it paid for these fees on J....
2018.4.11 Motion to Strike 985
Location: Riverside
Judge: Chapman, David
Hearing Date: 2018.4.11
Excerpt: ... is that the parties entered into a commercial lease for Cross‐Complainant's medical practice for the operation of a sleep center to assist patients with sleeping disorders. That Defendant Dr. Vuthoori breached Dr. Holt's quiet use and enjoyment of Page 2 of 3 the premises by continuously entering without an appointment or notice, constantly knocked on windows and doors, demanded frequent meets, threatened to “take care” of Dr. Holt, chased...
2018.4.11 Motion to Strike 942
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.11
Excerpt: ...inez), O'Reilly Auto Parts, and O'Reilly Auto Enterprises, LLC. Moving party Cross‐ defendants have no authority to represent the interests of O'Reilly or Martinez. ...
2018.4.11 Motion to Strike 578
Location: Riverside
Judge: Latting, James
Hearing Date: 2018.4.11
Excerpt: ...s that it is not a party to the CC&Rs it is alleged to have breached. For the following reasons the motion is granted without leave to amend. US Bank is not a party to the CC&Rs. The First Amended Complaint (“FAC”) is based upon the following allegations: “After obtaining the Subject Property through an assessment lien foreclosure sale, Plaintiff made substantial repairs and improvements so as to be able to rent out the Subject Property or ...
2018.4.11 Motion to Quash Service of Summons 942
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.11
Excerpt: ...urther, neither Code of Civil Procedure section 428.60 nor California Rules of Court, rule 3.110(c) provide a basis for a motion to quash resulting from a delay in serving the cross‐complaint. (See Rules of Court, rule 3.110(f) [order to show cause for sanctions as only remedy for a violation of rule 3.110(c)].) ...
2018.4.11 Motion to Quash Deposition, for Protective Order 190
Location: Riverside
Judge: Sykes, Sunshine
Hearing Date: 2018.4.11
Excerpt: ...nt's position that Mr. Garcia's deposition should not go forward until he is properly served with an appropriate subpoena is reasonable. In the absence of a subpoena, Mr. Garcia has no obligation to respond to Defendant's document demands, and in the absence of a voluntary production, Defendant would be forced to serve a subpoena and potentially move to compel a response to its demands (and possibly a further deposition). Moreover, the proposed d...
2018.4.11 Motion to Order Posting of Bond 389
Location: Riverside
Judge: Sykes, Sunshine
Hearing Date: 2018.4.11
Excerpt: ...able claim to ownership of stock in the corporation. She provides no corporate governing documents, no stock certificates, no corporate minutes. As defendant notes, the plaintiff in a shareholder derivative action must own stock throughout all relevant time periods. Corp. Code §800(b); Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1119. Furthermore it is unclear that this is appropriately brought as a shareholder derivative action. To the extent tha...
2018.4.11 Motion for Preliminary Injunction 911
Location: Riverside
Judge: Asberry, Irma
Hearing Date: 2018.4.11
Excerpt: ...ses, there has been no change in the law. The request of Defendants Grewall to continue hearing on this matter 60 to 90 days to after the Planning Commission and Board of Supervisors meet is denied. It is speculative to say that definitive action will take place and the next meeting of those entities. The authority of local jurisdictions to regulate or completely ban commercial cannabis activity is well established. Local zoning laws such as the ...
2018.4.11 Motion for Leave to File Complaint 532
Location: Riverside
Judge: Latting, James
Hearing Date: 2018.4.11
Excerpt: ... to give notice pursuant to Code of Civil Procedure section 1019.5, forthwith. On 04/03/2105, Plaintiff filed her original complaint for: (1) assault, (2) battery, (3)intentional infliction of emotional distress (“iied”) and (4) breach of lease based upon allegations that from April 10, 2014, through February 2015, Plaintiff, who leased residential property from Defendant, was by threat of use of a gun, assaulted by Defendant, that on a numbe...
2018.4.11 Motion for Judgment on the Pleadings 603
Location: Riverside
Judge: Sykes, Sunshine
Hearing Date: 2018.4.11
Excerpt: ...alleged personal loans were part of the prior litigation and regardless of whether some portion of Vega's claims may be barred, a general demurrer does not lie to only a part of a cause of action. See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167. Further, the doctrine of judicial estoppel is inapplicable, as Vega was not successful in asserting his allegedly inconsistent position in the prior action. See Aguilar v...

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