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Location: Orange County x
Judge: Howard, Theodore R x
2023.06.08 Motion for Summary Judgment, Adjudication 499
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.08
Excerpt: ...ee also Fielder v. City of Glendale (1977) 71 Cal.App.3d 71.) The issue of trivial defects is one of duty and breach which plaintiff must plead and prove, per Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-27. “The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circ...
2023.06.08 Demurrer, Motion to Strike 691
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.08
Excerpt: ...prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d ...
2023.06.08 Motion for Summary Judgment, Adjudication 385
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.08
Excerpt: ... of persuasion thereon. (See Evid. Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) Defendant moves for summary judgment/adjudication on both causes of action (“COA”) No. 1 – Motor...
2023.06.01 Motion to Compel Further Responses 092
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.01
Excerpt: ...a good faith attempt to resolve "each issue presented by the motion." There must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294.) "[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (ld.) The particular level of effort required in each case depends on the circumstances. (Obregon v. Superior Court (1998) 67 Cal. App. 4th...
2023.06.01 Motion for Summary Judgment 520
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.01
Excerpt: ... necessary discovery is DENIED. "[I]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion...
2023.06.01 Motion for Leave to File Amended Answer 323
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.06.01
Excerpt: ..., if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (b) Supporting declaration. A separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3...
2023.05.25 Motion for Turnover Order, to Charge Interest of Judgment Debtor 570
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...usa Madain to Assign its Rights in its Accounts Receivable, filed on 10/21/22 ("Motion 3" below); (4) the Motion For an Order Compelling Judgment Debtor The Grand Theater, Inc. to Assign its Rights in its Accounts Receivable, filed on 10/21/22 ("Motion 4" below); and (5) the Motion For an Order Compelling Judgment Debtor The Grand Theater, Inc. to Serve Responses to the Post-judgment Requests for Production of Documents, filed on 1/6/23 t Motion ...
2023.05.25 Motion for Summary Judgment, Adjudication 736
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...ot as to the truth of any disputed facts asserted therein. (Evid. Code 5 452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) In ruling on a motion for summary judgment or summary adjudication, the court must "consider all of the evidence" and all of the "inferences" reasonably drawn therefrom (CCP 5 437c(c)) and must view the evidence and inference...
2023.05.25 Motion for Summary Judgment 474
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...he cause of action. (ld.; C.C.P. 5 437c(o).) If the defendant meets this burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to either the particular COA or the proffered defense thereto. (ld.) The plaintiff must set forth specific facts demonstrating a triable issue of material fact exists. (ld.; C.C.P. 5 437c(o); Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826, 843.) Here, MP has presented evide...
2023.05.25 Demurrer, Motion to Strike 753
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.25
Excerpt: ...(e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." B usiness and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has alleged that the defendant w...
2023.05.18 Demurrers, Motions to Strike 349
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.18
Excerpt: ... Steele is to file and serve an answer to the Complaint within 10 days. Ashbrook's Demurrer and Motion to Strike As to the first cause of action, while the allegations appear sufficient to plead isolation (see Compl. 23-25), Ashbrook is correct that the Complaint fails to include facts demonstrating that Plaintiff experienced physical harm, pain or mental suffering as a result of the alleged isolation by Ashbrook. (See We/f. & Inst. Code 55 15610...
2023.05.18 Demurrer to SAC 445
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.18
Excerpt: ...000) 81Cal.App.4th 39, 42.) Plaintiffs' well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment." (Goodman v. Kennedy (1976) 18 cal.3d 335,...
2023.05.11 General and Special Demurrers 127
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ... order to turn over monies had and received; (8) conversion; (g) fraud and deceit; (10) constructive fraud; (11) violation of Penal Code 496; and (12) fraudulent conveyance. Moving defendants contend that all of the causes of action are deficient and uncertain because the causes of action in the FAC all assume the existence of a trust or estate planning vehicle that was established outside of California and do not support application of Californi...
2023.05.11 Demurrer, Motion to Strike 729
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ... SUSTAINED with 15 days leave to amend as to the Second and Fifth Causes of Action and OVERRULED as to the Fourth Cause of Action. Cause of Action 2: Elder Abuse Under Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07, a plaintiff pleading a claim under the Elder Abuse Act must plead that defendant 1) had responsibility for meeting the basic needs of the elder or dependent adult, 2) knew of conditions that made the...
2023.05.11 Petition to Compel Arbitration 696
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ...troversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . (Civ. Proc. Code 5 1281.2.) "Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification. As we stated recently: "[P]olicies favoring ...
2023.05.11 Motion for Summary Adjudication 358
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ...f action" entitling him or her to judgment. (CCP 437c(p)(1); see Hunter v. Pacific Mechanical Corp. (1 gg5) 37 Cal.App.4th 1282, 1287 (citing text) (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 cal.4th 826); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. co. (2010) 186 cal.App.4th 383, 388.) Breach of Guaranties As to the third cause of action, Plaintiff has presented evidence to show: (1) that on or about February 2...
2023.05.11 Motions to Compel Arbitration 281
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.11
Excerpt: ...ce of a valid arbitration agreement, before arbitration can be compelled. (See 9 U.S.C. 52). "Cl]t is a cardinal principle that arbitration under the FAA 'is a matter of consent, not coercion.'" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) "Thus, 'a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" (ld.) "If a party to a civil action asks the...
2023.05.04 Motion for Summary Judgment, Adjudication 426
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.05.04
Excerpt: ...ompel arbitration does not automatically stay ongoing proceedings; the party seeking arbitration must request one." (OTO, L.L.C. v. Kho (2019) 8 Cal. 5th 111, 140.) The closest thing to a request to stay this matter comes from the "Notice Of Commencement Of Arbitration And Request For Stay Of Entire Action" ("Notice"), in which Plaintiff included one sentence requesting a stay. However, a party requesting a stay is required to move the court for ...
2023.04.27 Motion to Dismiss Complaint 385
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...d an order that sustained the defendants' unopposed demurrer to the complaint without leave to amend. The Court heard oral argument on the demurrer on December 15, 2022 and the minute order of that day indicates that the Court determined, among other things, that "Ct)he entire complaint and all three causes of action are defective because plaintiff lacks standing to bring this action." The Court added: The documents for which judicial notice is r...
2023.04.27 Motion to Compel Arbitration 913
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...ed Sales Contract, either as a third-party beneficiary or pursuant to equitable estoppel. Consequently, Defendant failed to meet its burden to establish an applicable arbitration agreement. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See g U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court t...
2023.04.27 Motion for Summary Adjudication 824
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...ative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for dama...
2023.04.27 Demurrer, Motion to Strike 753
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.27
Excerpt: ...t as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract." Business and Professions Code 57026 defines a "contractor" as a person who does work to "alter add to improve" a structure. The issue comes down to whether or not plaintiff has ...
2023.04.20 Motion to Compel Deposition 659
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.20
Excerpt: ....290(b)(6).) It does not matter that the newly added party is represented by the same counsel as another party that took the prior deposition. The code is specific to the party, not to party counsel. Plaintiff has not cited to any case or statute that supports her contention that newly added DWIC cannot take its own deposition of Plaintiff even though all defendants in this action are currently represented by the same counsel. The court previousl...
2023.04.20 Motion to Compel Arbitration and Stay Action, to Appoint Receiver 177
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.20
Excerpt: ...ion process. When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a prep...
2023.04.13 Motion for Summary Judgment 994
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2023.04.13
Excerpt: ...��Summary judgment is appropriate where ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” (Wicks, supra, 49 Cal.App.5th 875, citing C.C.P. §437c(c).) Once the defendant has met that burden, “the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of a...

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