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Location: Orange County x
Judge: Horn, Frederick x
2021.03.23 Demurrer 478
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.23
Excerpt: ...rue all allegations of fact contained in the cross-complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007)...
2021.03.23 Motion for Terminating Sanctions 684
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.23
Excerpt: ...l notice of documents previously filed in this case. CCP § 2023.010 states, in part, as follows: “Misuses of the discovery process include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.” CCP § 2023.030, subdivision (d), provides, “To the extent authorized by the chapter governing any particular discovery m...
2021.03.17 Motion to Compel Further Responses 501
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.17
Excerpt: ...General (Set One), and Special Interrogatories (Set One). For the following reasons, Defendant's motions are denied in part and granted in part. As an initial matter, Moving Defendant provides evidence that despite Plaintiff's representation to the contrary, the motion is not moot. Plaintiff had agreed to provide supplemental responses by March 8, 2021. Defendant did not receive any supplemental responses at the time of Reply, two days later. The...
2021.03.17 Motion for Reconsideration 750
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.17
Excerpt: ...the City's Motion to Quash Notices to Appear at Trial served on: City of Dana Point City Council, Patrick Munoz, and Robert O. Owen. For the following reasons, the motion for reconsideration is denied. When an application for an order has been made to a judge or a court and has been refused in whole or in part or has been granted or granted conditionally or on terms, any party affected by the order may, within ten days after service on the party ...
2021.03.17 Motion for Attorney Fees 601
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.17
Excerpt: ...ntitlement to an award, and (2) documenting the appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) It is undisputed that Plaintiff is the prevailing party on this derivative suit. If a corporation obtains a monetary recovery from a successful derivative suit, the plaintiff shareholder is entitled to reimbursement for reasonable legal fees and costs incurred in prosecuting the action. Th...
2021.03.17 Demurrer 867
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.17
Excerpt: ... N.A. (2011) 198 Cal.App.4th 256, 265.) First Cause of Action to Set Aside Trustee Sale: “The elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; a...
2021.03.17 Demurrer 123
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.17
Excerpt: ...er was filed late, the trial court nevertheless has discretion to entertain it. Ibid, 281. Failure to Comply with ADR Requirements: Civ. Code, § 5930 (a) requires that “An association or a member may not file an enforcement action in the superior court unless the parties have endeavored to submit their dispute to alternative dispute resolution pursuant to this article.” Civ. Code, § 5925 (b) states that an “'Enforcement action' means a ci...
2021.03.10 Motion to Strike 812
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.10
Excerpt: ...Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.) To withstand a motion to strike punitive damages, a plaintiff must plead ultimate facts showing the plaintiff is entitled to such relief. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166; see also Smith v. Superior Ct. (1992) 10 Cal.App.4th 1033, 1042 [complaint “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice” subject t...
2021.03.10 Motion to Compel Arbitration 997
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.10
Excerpt: ...os Dodge for the purchase of a 2018 Jeep Grand Cherokee (the “Subject Vehicle”). The RISC's arbitration clause provides, in relevant part: 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), between you and us and our employees, agents, successors or assigns, which arises out of or relates to your credit appl...
2021.03.10 Demurrer 979
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.10
Excerpt: ... the demurrer is sustained as to the second, third, and sixth causes of action. Plaintiffs' FAC includes causes of action for: Statutory Violations/Breach of Resident Rights (Health & Safety Code § 1599.1, § 72527); Fraud – Intentional Misrepresentation; and Fraud – Negligent Misrepresentation. These causes of action are not present in the original Complaint. Plaintiffs first contend that the cause of action for Statutory Violations/Breach ...
2021.03.10 Demurrer 434
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.10
Excerpt: ...GDL Best Contractors, Inc. (2019) 38 Cal.App.5 th 677, 695. The FAC adequately described the location of the dispute between the parties. First Cause of Action for Prescriptive Easement: “[A] claim for prescriptive easement, include use that is (1) actual, (2) open and notorious, (3) hostile and adverse to the original owner, (4) continuous and uninterrupted, (5) under a claim of right, (6) for the statutory period of five years.” Brewer v. M...
2021.03.03 Motion for Summary Judgment, Adjudication 137
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.03
Excerpt: ...adings.” Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493. (Emphasis original). In the First and Second Causes of Action, Plaintiff alleged that “Defendants negligently, carelessly and recklessly owned, entrusted, managed and maintained their premises as to allow a dangerous condition to exist.” (GN-1 & Prem. L-1). Plaintiff has been consistent in asserting this theory. The fact that there might be possible additional t...
2021.03.03 Motion for Protective Order 254
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.03
Excerpt: ...panied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2017.020(a).) Section 2016.040, in turn, requires a supporting meet and confer declaration to “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity fo...
2021.03.03 Motion to Compel Inspection 016
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.03
Excerpt: ... remedy is to file a motion compelling compliance as agreed pursuant to Code of Civil Procedure Section 2031.320. Although Defendant did not provide a verified response to the inspection demand, it is undisputed that Defendant agrees to comply with and has no objection to the subject Inspection Demand as written. (Opp. at 4:23-24, 10:10-11.) Thus, the court will presume— as the parties do—Defendant's agreement to comply with the Inspection De...
2021.03.03 Motion to Compel Arbitration 581
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.03
Excerpt: ...caylar Decl., ¶ 7, Ex. A, p. 5.) A party seeking to compel arbitration pursuant to Code of Civil Procedure section 1281.2 must plead and prove (1) the existence of a written arbitration agreement and (2) that the other party has refused to arbitrate. (Code Civ. Proc., § 1281.2; Mansouri v. Sup. Ct. (Fleur Du Lac Estates Ass'n) (2010) 181 Cal.App.4th 633, 640-641.) Code of Civil Procedure section 1281.2 requires the court to order arbitration pu...
2021.03.03 Motion to Strike 360
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.03.03
Excerpt: ...of which the court is required to take judicial notice.” Item No. 1 & 2: Paragraphs 2 & 47, Plaintiffs alleged James and Timothy Wynne assigned their claims to the Estate. Plaintiffs needs to allege the basis that James and Timothy Wynne were insureds under the title insurance policy. In addition, “a purely personal tort cause of action is not assignable in California, it must be concluded that damage for emotional distress is not assignable....
2021.02.24 Special Motion to Strike, to Require Posting of Bond 391
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.24
Excerpt: ... Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Liu has not shown that Exhibit C (discovery in this case) is judicially noticeable. This Motion is timely. This Motion takes issue with one allegation in the FAC in the General Allegations section of the pleading, which is generally incorporated into the causes of action: Plaintiff is informed and believes, and thereupon alleges, that defendant Noh then made motion, of which Sam Kim seconded and ...
2021.02.24 Motion to Transfer Venue 296
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.24
Excerpt: ...l. Civ. Proc. Code § 396b. The moving party must overcome the presumption that the plaintiff has selected the proper venue. (Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1046, 231 Cal.Rptr. 176.) Thus, “[i]t is the moving defendant's burden to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds.” (Ibid.) In opposing the motion to change venue, “[t]he plaintiff may bolster his or her c...
2021.02.24 Motion to Strike 385
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.24
Excerpt: ...er inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Injunctive relief Health and Safety Code, section 1430, subdivision (b) provides, in pertinent part, as follows: A current or former resident or patient of a skilled nursing facility, as defined in subdivision (c) of Section 1250, or intermediate care facility, as defined...
2021.02.24 Motion for Leave to Amend FAC 226
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.24
Excerpt: ...7-1538 (A court may properly exercise its discretion to consider new evidence on reply that filled in gaps in the evidence created by the opposition); Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308 (“[T]rial court had discretion whether to accept new evidence with the reply papers.”). Defendant/Cross-Complainant Azzur of CA, LLC (“Azzur of CA”) and defendant Azzur Group, LLC (“Azzur Group”) (collectively, “De...
2021.02.24 Demurrer 719
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.24
Excerpt: ...ns. Second cause of action for fraud The statute of limitations defense may be asserted by general demurrer if the complaint shows on its face that the statute bars the action. Mitchell v. State Dept. of Public Health (2016) 1 Cal.App.5th 1000, 1007. However, “the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” Id.; see, Marshall v. Gib...
2021.02.17 Motions to Quash Subpoenas 164
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.17
Excerpt: ... make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders…” On 11/2/20, Plaintiff issued deposition subpoenas for the production of business records to the Hemet Unified School District and Apple Valley Unified School District. The subpoenas request 25 categories of documents, including documents related to any suspensions...
2021.02.17 Motion to Compel Further Responses 226
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.17
Excerpt: ...rmation reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).) Absent an objection, the response must be: (1) an admission; (2) a denial; (3) or a statement claiming the inability to admit or deny. (Code Civ. Proc., § 2033.220, subd. (b).) Where responses have been timely filed but are deemed deficient by the requesting party, that party may move for an order compelling a further response. (Code Civ. ...
2021.02.17 Demurrer 411
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.17
Excerpt: ... filing was due to a miscalendaring issue. Barrett Decl., ¶ 2. Although Pixalate objects to Plaintiff's untimely opposition, Pixalate served and filed a timely reply on the merits. The Court exercises its discretion to consider Plaintiff's opposition, subject to any objections to service by defendant LKQD Technologies, Inc. (“LKQD”). First and second causes of action for libel per se and libel per quod For defamation, a plaintiff must allege...
2021.02.17 Demurrer 157
Location: Orange County
Judge: Horn, Frederick
Hearing Date: 2021.02.17
Excerpt: ...rce v. Kaiser Found. Health Plan, Inc. (2010) 181 CA4th 471, 482-484; see Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 CA4th 651, 659-660.] While it may be proper to take judicial notice that the judge did in fact make a particular finding, it is a different matter to take judicial notice that the fact is necessarily true. (Sosinsky v. Grant (1992) 6 CA 4th 1548, 1565.) Taking judicial notice of the truth of a judge's factual finding, ...

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