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2023.11.14 Motion for Summary Judgment 064
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.14
Excerpt: ...t. (CCP S 437c(p)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Once the plaintiff has made such a showing, the burden shifts to the defendant to produce admissible evidence showing that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP S 437c(p)(1); Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 565.) If the defendant does not mak...
2023.11.13 Demurrer 723
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.13
Excerpt: ... DEMURRER Goldenvoice served and filed its demurrer less than 16 court days prior to the hearing. (C.C.P., S 1005(b).) However, Plaintiff arguably waived any defect in the service and filing by filing a substantive response on the merits. (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (20m) 77 Cal.App.4th 690, 697.) Accordingly, the court may give due consideration to the demurrer. MERITS A general demurrer lies where the p...
2023.11.13 Motion to Continue Complaint 232
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.13
Excerpt: ...All parties and their counsel must regard the date set for trial as certain." Cal Rules of Ct 3.1332(a). In ruling on a moton to continue the trial, the court will look at the factors set forth in Cal Rules of Ct 3.1332(c)—(d). The trial court has wide discretion in deciding whether to grant or deny a continuance, and its decision will be reversed only when an abuse of discretion is clear. Link v Cater (1998) 60 CA4th 1315, 1321. The denial of ...
2023.11.09 Motion to Tax Costs 198
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.09
Excerpt: ... in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (Emphasis supplied.) under the plain language of the statute, Defendants are prevailing parties. CCP S 1033.5(a) contains a list of items specifically allowed as recoverable costs, and S 1033.5(b) contains a list of items that "are not allowa...
2023.11.09 Motion to Compel Arbitration 444
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.09
Excerpt: ...th 1324, Kielar v. Su#rior Court (2023) 94 Cal.App.5th 614 and Ngo v. BMW of N. Am. , LLC (9th Cir. 2022) 23 84th 942, 950 is granted. (Evid. Code S 451(a) [mandatory judicial notice of decisional law of this state and of the United States].) EVIDENTIARY OBJECTION Plaintiffs make a single objection to the introduction of the RISC (Exhibit A) by the Michel Declaration on the grounds, among others, that the RISC is not properly authenticated and am...
2023.11.09 Motion for Judgment on the Pleadings 862
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.09
Excerpt: ...the lease for the Property between the parties. However, the document is only by Plaintiff Taylor and is disputed by Defendant. Thus, the request is denied. Evid. Code S 452. A motion for judgment on the pleadings has the same function as a general demurrer and the same rules govern, except as provided by C.C.P. 5438. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) C.C.P. 5438 sets forth the grounds and procedures for the motion...
2023.11.08 Motion to Set Aside Default 487
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.08
Excerpt: ... inadvertence, surprise, or excusable neglect within six months after judgment, dismissal, order, or proceedings has been taken. In the absence of an attorney affidavit of fault, the burden is on the moving party to show that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. The court is empowered to relieve a party "upon such terms as may be just... from a judg...
2023.11.08 Motion to Compel Vehicle Inspection and Continue Trial 464
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.08
Excerpt: ...t merit or too general. (CCP 52031.310.) Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response. (CCP SS 2031.310(c).) Failure to comply with the discovery deadline "is only 'jurisdictional' in the sense...
2023.11.07 Motion for Attorney Fees 968
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.07
Excerpt: ...ttorney's fees. Thus, the Court declines to rule on Defendants' evidentiary objections filed in support of their opposition since the objections concern evidence immaterial to the Court's decision on the motion. "under the American rule, each party to a lawsuit ordinarily pays its own attorney fees ... ." (Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 406.) "Parties may validly agree that the prevailing party will be awarded attorney fee...
2023.11.06 Motion for Attorney Fees 830
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.06
Excerpt: ...he present motion. Importantly — and as discussed below — the court may determine for itself the reasonableness of the fees demanded. Accordingly, the court declines to rule on the evidentiary objections. under Civ. Code 51794(d), "[i]f the buyer prevails in an acton under [the Song-Beverly Act], the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including atto...
2023.11.06 Demurrer to SAC 869
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.06
Excerpt: ... demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) Defendant's evidentiary objections are sustained. A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP S 430.10(e).) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters out...
2023.11.06 Motion for Leave to Amend Complaint on FACC 544
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.06
Excerpt: ...Hyatt (1998) 61 Cal. App. 4th 581, 596.) However, leave to amend may be denied where inexcusable delay and probable prejudice to the opposing party is shown. (Magpali v. Farmers Group (1996) 48 Cal. App. 4th 471, 487.) Pursuantto Cal. Rules of Court, Rule 3.1324(a), a motion to amend a pleading before trial must include a copy of the amended pleading, which must be serially numbered to differentiate from previous pleadings and must state what all...
2023.11.06 OSC Re Contempt 614
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.06
Excerpt: ...ntitled court, to show cause if any, why she should not be adjudged in contempt of court and punished accordingly for wil fully disobeying the (amended) judgment of this Court entered on January 20, 2023 as to the following: "Plaintiff Waud and defendant Dixon are 50 percent owners of Classic 1. Classic 1 shall be partitioned by sale and the next proceeds from the sale shall be divided between plaintiff Waud (50%) and defendant Dixon (50%).... Th...
2023.11.03 Motion for Summary Judgment, Adjudication 738
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.03
Excerpt: ...party moving for summary judgment bears the burden of persuasion. (Aguilarv. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.) When a plaintiff is the moving party, the plaintiff has the burden to produce admissible evidence on each element of a cause of action entitling him to judgment. (CCP The plaintiff does not have the burden to disprove affirmative defenses. (ld.) At that point, the burden shifts to the defendant to show that a triabl...
2023.11.03 Motion for Preliminary Injunction 210
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.03
Excerpt: ...e matters are indisputably true. (Evid. Code, 5452(d) [judicial notice may be taken of records of any court of this state]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.) "Granting or denying an injunction is within the sound discretion of the trial court and will be upheld on appeal absent an abuse of discretion." (Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458.) The burden is on plaintiff to show all elemen...
2023.11.02 Motion for Judgment on the Pleadings 329
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.02
Excerpt: ...efendants and that his derivative claims cannot survive in light of this buyout. Plaintiff does not oppose the motion as to the "derivative causes of actions." (Opposition, 2:3-10.) However, Plaintiff's position differs from Defendants in that the buyout renders moot only the 2nd through 9th and the 11th causes of action. Therefore, the causes of achon which are the subject of the parties' dispute in this matter are the 1st, 10th, 12th, 14th, and...
2023.11.02 Demurrer, Motion to Strike FAC 478
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.11.02
Excerpt: ...d (page 13, lines 2 through 5, and page 14, line 15). DEMURRER A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP S 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Minre v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts ...
2023.10.30 Motion to Set Aside Default, Judgment 763
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.30
Excerpt: ...tual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action." (CCP S 473.5(a).) "This section is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless...
2023.10.30 Motion to Compel Further Responses 127
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.30
Excerpt: ...to comply that is incomplete or evasive. (CCP 52031.310(a).) Here, Defendant responded to Plaintiff's demand to inspect the property with an assertion that his Fourth Amendment right to be free from unreasonable searches and seizures prohibited such an inspection. Although no showing of cause is required for the inspection demand, the demanding party must make such a showing if the demand is refused. To establish "gtnd cause," the burden is on th...
2023.10.30 Demurrer on SAC 565
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.30
Excerpt: ...aised by special demurrer." (Johnson v. Mead (1987) 191 Cal.App.3d 156, 160.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken (Crowley v. Katleman (1994) 8 Cal.4th 665, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law (D...
2023.10.30 Demurrer on FAC 135
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.30
Excerpt: ...AC. Accordingly, battery is irrelevant and Defendant failed to actually address medical negligence—other than the general argument of PREP. Second, the function of a demurrer is to test the legal sufficiency of a pleading, but not the truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2W4) 116 Cal.App.4th 968, 994.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (...
2023.10.25 Motion for Preliminary Injunction 873
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.25
Excerpt: ...'S EVIDENTIARY OBJECTIONS: As to objection #'s 2, 3, 4, 7, and 11, they are sustained. As to the rest, the objections asserted were not determinative to the analysis and outcome of this motion, and they are therefore overruled. (See Reid v. Gingle, Inc. (2010) Cal.4th 512, 532 ["motion for summary judgment" l.) The burden is on plaintiff to show all elements necessary to support issuance of a preliminary injunction. (See O'Connell v. Superior Cou...
2023.10.24 Motion to Enforce Judgment 784
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.24
Excerpt: ...atter is embraced in or affected by the appealed judgment or order within the meaning of Code of Civil Procedure secton 916, subdivision (a) only trial court proceedings on the matter would affect the effectiveness of the appeal." (Henry M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4th 1375, 1383.) As a general rule, an award of attorney's fees is a collateral matter. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.) As such, there is no ...
2023.10.19 Motion for Summary Judgment 075
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.19
Excerpt: ...(C.C.P., S 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant may alternatively move for summary adjudication as to a cause of action, but a moton for summary adjudication can only be granted if it completely disposes of the cause of action to which it is directed. (C.C.P., S 437c(f)(1).) Although summary judgment/adjudicaton is no longer considered a "disfavored" procedure, the rule continues that the moving party's...
2023.10.17 Demurrer to FAC 571
Location: Riverside
Judge: Magno, O.G.
Hearing Date: 2023.10.17
Excerpt: ... School District Bond Measure Election 8, 2016. 2. January 12, 2017, Staff Report to RUSD School Board, Part of Meeting Agenda Packet. 3. June 7, 2017, Citizens' Oversight Committee Report. 4. Minutes of the June 29, 2017, RUSD School Board Meeting. 5. September 18, 2017, Staff Report to RUSD School Board, Part of Meeting Agenda Packet. Defendant argues each is an official records of a public entity, RUSD, as such judicial notice is proper. (Evid...

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