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Location: Orange County x
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2024.03.22 Motion to Compel Answers 370
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.22
Excerpt: ...nts Compass California, Inc. and Art Heckman's motions to compel plaintiffs Mary Nathan and Reuben Nathan to provide further responses to Request for Production of Documents, Set One, are GRANTED in part and WITHDRAWN in part by moving parties. (Code Civ. Proc., § 2031.310 [authorizing motion to compel]; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 [court's discretion where responses serv...
2024.03.22 Motion for SLAPP 371
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.22
Excerpt: ...not avoid an anti -SLAPP motion directed at a cause of action in a pending complaint (e.g., the second cause of action for intentional infliction of emotional distress) by filing an amended complaint that effectively drops the claim without prejudice. (See Salma v. Capon, at p. 1294 [legislative poli cy of early evaluation and expeditious resolution of claims arising from protected activity]; see also JKC3H8 v. Colton, at p. 478 [same].) Since ...
2024.03.22 Demurrer, Motion to Strike 497
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.22
Excerpt: ... action is viable because it relies upon allegations of a breach of a duty owed to the minor Plaintiff. As noted in the authority Defendant cit es in support of the demurrer, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other leg al duty and the emotional distress is proximate...
2024.03.08 Petition to Compel Arbitration 129
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...� 1281.2). Defendants have the “burden of proving the existence of a va lid arbitration agreement by a preponderance of the evidence while a party opposing a petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Ruiz v. Moss Bros. Auto Group (2014) 232 Cal.App.4th 836, 842 ; accord (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219 [once petitioner alleges the agreement e...
2024.03.08 Motion to Compel Production 736
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...��all communications between Plaintiff and Mr. Walters co nceivably relevant to the Gifting Transaction for the years 2013 - 2014”].) Busch has failed to set forth specific facts showing good cause for any further production. (See Code Civ. Proc., § 2031.310, subd. (b)(1); Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117 [good cause]; see also Chute Decl. ¶ 11.) Good cause must be supported by factual evidence, such ...
2024.03.08 Motion for Summary Judgment, Adjudication 516
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...ndant fails to meet its initial burden as to Noticed Issu es No. 1, 3, 6, 7, & 8. As to Noticed Issue No. 1, (Vatalaro v. Cnty. of Sacramento (2022) 79 Cal. App. 5th 367, 381) cited by defendant is distinguishable. In Vatalaro the plaintiff could only point to an unspecified violation of civil service rules and more importantly, had affirmatively conceded in discovery that she had no reasonable belief that the law had been broken. (25 Cal 4th at...
2024.03.08 Demurrer 086
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ... v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A ny “ambiguities can be clarified under modern discovery procedures.” (Ibid.) The FAC states sufficient facts in support of the cause of action for breach of contract against Robert and AHM. (See Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453 [elements]; Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402 [plaintiff may...
2024.03.08 Demurrer 081
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.08
Excerpt: ...t. Specifically, Defendant argues that allegations of fraud that function to a lter the terms of an integrated contract are barred by the parole evidence rule. Furthermore, Defendant argues that Plaintiff has pleaded facts that are plainly inconsistent with a claim for promissory fraud by admitting in the Complaint that Defendant performed under the contract until at least Spring 2022. Defendant reasons that it “is implausible that Schreiber's...
2024.03.01 Motion to Strike or Tax Costs 454
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.03.01
Excerpt: ... is taxed in the total amount of $41,089.46, as further discussed b e l ow. Pl aintiff's remaining costs in the total amount of $115,732.31 are granted against defendant Regents only. Plaintiff's 998 offer Plaintiff's Code of Civil Procedure section 998 (section 998) offer to compromise (998 offer) served on Regents on 8/18/17 was valid and effective. The fact that plaintiff obtained a more favorable judgment than his 998 offer is prima facie evi...
2024.02.16 Motion for Determination of Good Faith Settlement 316
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.16
Excerpt: ...oodward -Clyde & Associates (1985) 38 Cal.3d 488, 499 ( Te c h-Bilt).) As an initial matter, moving parties' proof of service is defective, as it attests to service via email only. (see Code Civ. Proc., §§ 1010.6, subd. (a)(2), 877.6, subd. (a)(2) [requiring service via “certified mail, return receipt request ed, or by personal service”].) While defendants OC 405 Partners and the State of California, acting by and through the Department of...
2024.02.16 Motion for Summary Judgment, Adjudication 454
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.16
Excerpt: ... not the owner of the subject dog. (See, e.g. SS UMF No. 8.) Accordingly, Plaintiff cannot establish a cause of action for strict liability under Cal. Civ. Code § 3342 against Moving Defendant. Negligence and Premises Liability Moving Defendant argues that Plaintiff's causes of action for negligence and premises liability both fail because Plaintiff does not establish the existence of a duty of care applicable to Moving Defendant. “The existen...
2024.02.16 OSC Re Preliminary Injunction 081
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.16
Excerpt: ...rm presented, i.e., the comparative consequences of th e issuance and non -issuance of the injunction. (See Fleishman v. Superior Court (2002) 102 Cal.App.4th 350). Generally, where the damage from a breach of contract can be easily estimated, the presumption is that an action at law will be final and prevent further dispute; and an injunction will not issue against the breach. (See Kellett v. Ida Clayton & G.W. WagonRoad Co. (1893), 99 Cal. 210...
2024.02.09 Motion to Compel Arbitration 162
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.09
Excerpt: ...f three separate entities. Plaintiffs bring suit derivatively on behalf of Reliant Management Group, LLC (“Reliant Management”), Riverside Postacute Care, LLC (“Riverside”), and RMG Capital Partners, LLC (“RMG Capital”). Moving Party has shown that the RMG Capital Operating Agreement contains a valid a rbitration agreement. However, Moving Party has failed to demonstrate why this arbitration agreement would apply to bind Reliant Manag...
2024.02.09 Motion for Summary Judgment, Adjudication 672
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.09
Excerpt: ...that she has not yet completed discovery. A court typically has discretion to grant a continuance, but the court must grant a continuance under CCP § 437c(h) on a good faith showing by declaration or affidavit that a continuance is needed to obtain facts essential to justify opposition to a summar y judgment motion. Ace Am. Ins. Co. v Walker (2004) 121 CA4th 1017, 1023 (continuance is “virtually mandated”). See also Dee v Vintage Petroleum, ...
2024.02.02 OSC Re Contempt, to Stay Proceedings, Appoint Receiver, Compel Responses 154
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.02.02
Excerpt: ...payment of the disputed monetary discovery sanctions on 01/18/24. (Khojayan Dec. ¶ 2, Exh. 1.) All requests for sanctions are denied. Defendant is ordered to give notice. Motion No. 2: Defendant Yao Geng's Motion to Stay Action is DENIED. An application for a stay is addressed to the “sound discretion” of the trial court. “In exercising its discretion, the court should consider the importance of discouraging multiple litigation designed so...
2024.01.26 Motion to Establish Waiver of Privileges and Protections, to Disqualify Attorney of Record 162
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.26
Excerpt: ... Dev. LLC (2011) 191 Cal.App.4th 1047, 1068 sets forth the applicable test for determining whether a party waives attorney-client privilege and/or work product protection through use of a company-provided e-mail address. While Holmes sets forth the applicable standard for determining whether privilege has been waived, Moving Party fails to make the requisite factual showing that would demonstrate the attorney-client privilege has in fact been wai...
2024.01.26 Motion for Reconsideration, to Compel Further Responses, to Dismiss 118
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.26
Excerpt: ...Servicing, LLC, and PHH Mortgage Corporation, as to plaintiff's 13th cause of action for fraud by concealment / fraudulent misrepresentation, is DENIED. (Code Civ. Proc., S 1008 [authorizing reconsideration].) The only "new" facts set forth in the moving papers are: (1) defendants' filing a notice of ruling as to the 10-13-23 order; and (2) defendants' filing a crosscomplaint. (Exs. 1 and 2 to moving papers.) However, plaintiff has not shown why ...
2024.01.19 Motion to Compel Further Responses 601
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.19
Excerpt: ...f motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground"]; ROA No. 39— Mtn. P&As at pp. 4-5 [citing and quoting Code Civ. Proc., S 2030.300].) Defendant/cross-complainant Cesar Quintana (defendant) is ORDERED to provide verified further responses without objections to form interrogatory Nos. 12.2—12.7, within 15 days. The term "INCI...
2024.01.19 Demurrers, Motion to Strike 021
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.19
Excerpt: ...ore of the follow-ng grounds: (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, 'uncertain' includes ambiguous and unintelligible." (Cal. Code Civ. Proc., S 430.10, subds. (e) & (f); see Cal. Code Civ. Proc., S 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of achon stated thereinl.) "A person against whom a complaint or...
2024.01.19 Demurrer 931
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.19
Excerpt: ...ses of action for fraud and concealment is sustained with leave to amend on the basis that the causes of acton (Specifically the elements of duty to disclose and damages) are not alleged with the level of specificity required to allege a cause of achon sounding in deceit. (See Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 557.) The demurrer to the fourth cause of action for breach of contract is sustained with leave on the basis t...
2024.01.12 Motion to Enforce Settlement 424
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.12
Excerpt: ... S 654.6, subd. (a) provides: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of th...
2024.01.12 Motion for Attorney Fees 881
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.12
Excerpt: ...presents evidence that it made a CCP S 998 offer for $70,000.00 plus $5,000.00 in attorney's fees and costs, which if not accepted, would require the Court to set reasonable fees and costs on 07/26/19. (Haddad Dec. '1 7, Exh. D.) The offer expired by its terms on 08/26/19. (ld.) Plaintiff failed to timely accept the 998 offer. (ld. '1 8.) In determining whether plaintiff obtained a more favorable judgment, the amount of the judgment includes atto...
2024.01.12 Demurrer, Motion to Strike 773
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2024.01.12
Excerpt: ...The demurrer on the basis of uncertainty is overruled. Demurrers for uncertainty are disfavored. While not a model of clarity and rife with unnecessary evidentiary facts, the FAXC is not is so poorly drafted that Defendant cannot reasonably respond. (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.) The general demurrer to the first cause of action is sustained with leave to amend on the basis that it fails to state facts s...
2023.12.15 Demurrer, Motion to Strike 522
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.15
Excerpt: ...e that a defendant cannot reasonably respond." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 1st & 2nd cause of action, breach of express warrantes and implied warranty of merchantability The complaint fails to state facts sufficient to constitute these causes of action, with the requisite particularity. (See Civ. Code, SS 1791.2 [express warranty], 1791.1 [implied warranty of merchantability], 1792 [impl...
2023.12.15 Demurrer 454
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.15
Excerpt: ... property), debt, or duty held by the stakeholder that may give rise to double vexation. (See Code Civ. Proc., S 386, subd. (b) ["Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an acton against the claimants to compel them to -nterplead and litigate their several clai...
2023.12.08 Petition to Compel Arbitration 883
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.08
Excerpt: ...finds is subject to Labor Code section 229. "On a petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if determines that an agreement to arbitrate the controversy exists..." (Code of Civ. Proc., 51281.2.) "Because the exist...
2023.12.08 Demurrer 571
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.08
Excerpt: ...Deutsche Bank National Trust Company (2015) 235 Cal.App.4th 394, 402 (Miles) [plaintiff may properly plead the legal effect of a contract, rather than setting forth its precise language]; Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [ultimate fact pleading]; see also Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [any "ambiguities can be clarified under modern disc...
2023.12.08 Application for Alternative Writ of Mandamus 566
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.12.08
Excerpt: ...n the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty"].) Petitioner's request for judicial notice is GRANTED. (Evid. Code, S 452, subds. (a), (b).) The parties only address whether or not Petitioner is entitled to business tax licenses for the properties addressed in the Petition, given the parties' dispute as to the use of the properties. However, Respondent Cit...
2023.11.16 Demurrer, Motion to Strike 541
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.11.16
Excerpt: ...rrer. (See, CCP 430.10 (a)- (h).) Accordingly, the demurrer to on this ground is OVERRULED. 1st COA for Breach of Oral Contract The elements of breach of contract are well settled. To state a claim for breach of contract, a party must plead "(1) the existence of the contract, (2) [the party's] performance or excuse for nonperformance, (3) the [other party's] breach, and (4) resulting damages to the [party]." (Maxwell v. Dolezal (2014) 231 Cal. Ap...
2023.11.16 Demurrer, Motion to Strike 541
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.11.16
Excerpt: ...rrer. (See, CCP 430.10 (a)- (h).) Accordingly, the demurrer to on this ground is OVERRULED. 1st COA for Breach of Oral Contract The elements of breach of contract are well settled. To state a claim for breach of contract, a party must plead "(1) the existence of the contract, (2) [the party's] performance or excuse for nonperformance, (3) the [other party's] breach, and (4) resulting damages to the [party]." (Maxwell v. Dolezal (2014) 231 Cal. Ap...
2023.11.16 Demurrer 658
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.11.16
Excerpt: ...o Bank, N.A. (2011) 198 Cal.App.4th 255, 264-265 [judicial notice of recorded documents]; Poseidon Development, Inc. v. Woodland Lane Estates, LLC 152 Cal.App.4th 1106, 1117 ["the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein"].) The remainder of the request for judicial notice is DENIED, as the remaining documents are not properly subject...
2023.10.27 Motion for Pretrial Discovery, to Quash Discovery Subpoena 716
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.10.27
Excerpt: ...oujade (Poujade) and Tri-Emerald Financial Group, Inc. (TFG). 2. The disclosure of any such discovery shall be limited to the parties to this action; said parties' counsel of record in this action, including counsel's offce staff; and the court, including court staff. 3. The use of any such discovery shall be limited to this action, and for purposes of this action only. Plaintiffs have demonstrated they are very likely to prevail on their punitiv...
2023.10.27 Demurrer, Motion to Strike 399
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.10.27
Excerpt: ...rvices to W&N which did not fall below the standard of care for an attorney retained to collect a judgment in the Orange County area"; that "the only function of W&N during the time period alleged in paragraphs 10 and 11, above, was to receive and distribute any profits received (such as any monies received pertaining to the Rawji lawsuit) to Wildish and Nialis"; that "W&N was merely a 'strawman" and thus Wildish was truly the client"; that [ilt ...
2023.10.27 Demurrer 266
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.10.27
Excerpt: ...he alleged open book account was in writing, or otherwise in a "reasonably permanent form and manner." (Code Civ. Proc., S 337a.) The remainder of this cause of action appears sufficiently pled. (CACI 372 [elements]; FAC, "1 7, 10, 12; see also 4 Witkin, Cal. Proc. 6th (2023) "Pleading" S 561, subds. (1), (3) [general pleading of common countsl.) 2nd cause of action: account stated This cause of action states sufficient facts. (Zinn v. Fred R. Br...
2023.10.20 Demurrer 182
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.10.20
Excerpt: ...ion that they in fact already knew. Further, the primarily basis for the negligence/premises liability claim was the landlords' failure to do what that knowledge of illegal activities allegedly required the landlord defendants to do—i.e., their "fail[urel to take any steps to prevent or terminated the illegal gambling activites taking place therein," which is what alleged caused the plaintiff's injuries. (FAC GN-I.) Thus, the fundamental facts ...
2023.10.13 Demurrers, Motion for SLAPP, to Strike Complaint 118
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.10.13
Excerpt: ...action for trespass to chattels, without leave to amend. (Code Civ. Proc., S 430.10, subd. (e).) Moving defendants' request for judicial notce is GRANTED. (Evid. Code, S 452, subd. (d) [court records]; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [court may take judicial notce of the recordation and legal effect of recorded documentsl.) As to Exs. 1, 3, and 11, the court takes judicial notice of the fact that they were r...
2023.10.13 Demurrer 821
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.10.13
Excerpt: ... SUSTAINED, on the grounds that there is another action pending between the same parties on the same cause of action. (Code Civ. Proc., S 430.10, subd. Defendants' request for judicial notice is GRANTED as to Exs. 1-17 and 19-21. (Evid. Code, S 452, subd. (d) [court records]; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-255 [court may take judicial notice of the recordation and legal effect of recorded documents]; Cantu v. R...
2023.09.29 Motion for Summary Judgment, Adjudication 103
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.09.29
Excerpt: ... judgment as a matter of law, as to defendant's Answer. (Code Civ. Proc., S 437c, subd. (c).) Summary adjudication is GRANTED as to the Fourth Affirmative Defense of Statute of Limitatons. (Code Civ. Proc„ S 437c, subd. (f) [authorizing summary adjudicaton].) There is no dispute that all relevant acts associated with this lawsuit occurred within the four-year statute of limitations period. (Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal...
2023.09.29 Motion for Summary Judgment, Adjudication 077
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.09.29
Excerpt: ...al" violation]; Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1505 [UCL claim falls with predicate claims].) First cause of action, violation of Civil Code section 2923.7. under the first cause of action, plaintiff Carmen Bevia aka Carmen Kleinecke (plaintiff) alleges defendant violated the California Homeowner Bill of Rights (HBOR), specifically Civil Code section 2923.7, by failing to provide her with a "single point of contact" (SPOC) that ...
2023.09.29 Demurrers, Motions to Strike 290
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.09.29
Excerpt: ...ers and the motions to strike filed by each defendant are nearly identical, the demurrers will be addressed together, as will the motions to strike. Motions 1-2: Demurrers to the FAC Defendants demurrers are OVERRULED in part and SUSTAINED in part as set forth below. To the extend the demurrers are sustained, Plaintiff is granted 15 days leave to amend. Statute of limitations - Overruled Moving Parties contend the entire FAC is barred by the stat...
2023.09.15 Motion to Compel Arbitration 486
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.09.15
Excerpt: ...ed a half-page arbitration clause, entitled Arbitration Disclosures." which stated as item 1, If either you or we choose, any dispute between you and us will be decided by arbitration and not in court." [Ameripour Declaration, Ex. 21 The Lease identified Plaintiff as the "Lessee" and "you", Fletcher Jones was identified as the "Lessor" and referred to as "we" and "us." Defendant was not a party to the Lease. The Lease3 also prov-ded, in relevant ...
2023.09.15 Motion to Compel Arbitration 430
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.09.15
Excerpt: ... to settle by arbitration a controversy thereafter arising out of such contract or transaction, the refusal to perform the whole or any part thereof . . . shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (9 U.S.C. S 2.) "The 'principal of the FAA is to 'ensur[e] that private arbitration agreements are enforced according to their terms.'" (Lacayo v. Catalina Resta...
2023.08.25 Motion to Tax Costs 211
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.08.25
Excerpt: ...ection 998). (Code Civ. Proc., § 998, subd. (c)(1).) Defendant did not serve its 998 offer on Rocknipour until 2/18/22 (Dagmy Decl. at Ex. A), and $14,712.50 of the claimed expert fees and costs were incurred prior to that date. (Id. at Ex. E [Invoice Nos. 0115325, 0116156, 0115518, and 10331.12.21].) • $897.95 in photocopy charges/trial binders. Defendant's memorandum of costs seeks $1,385.12 for “photocopies of exhibits, trial binders.” ...
2023.08.11 Demurrer, Motion to Strike, to Compel Deposition 864
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.08.11
Excerpt: ...fraud by omission appear time-barred on their face. (See Cal. U. Com. Code, § 2725 [four-year statute of limitations]; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 215 (Krieger) [section 2725 applies to claims for breach of warranty under the Song-Beverly Act]; Code Civ. Proc., § 388, subd. (d) [three-year statute of limitations for fraud]; see also FAC ¶ 6 [plaintiffs purchased the subject vehicle on 2/17/14], 107-114 [s...
2023.08.11 Demurrer 601
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.08.11
Excerpt: ...ana's (“Cross-Complainant” or “QUINTANA”) Cross-Complaint, the 1st through 4th causes of action. Special Demurrer for Uncertainty A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) A demurrer for uncertainty is strictly construed, even where a complaint is in...
2023.08.04 Motion to Compel Production 961
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.08.04
Excerpt: ...ON, including T&R. For the purpose of this and the following requests, the term “T&R” means the defendant T&R Carnegie I Properties, LLC. Response: Objections asserted on vagueness, ambiguity, overbroad as to time and scope, unduly burdensome, oppressive, harassing, seeks disclosure of expert witness information, calls for improper legal conclusion or opinion. “However, without waiving said objections, responding party responds as follows: ...
2023.07.21 Demurrer 982
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.07.21
Excerpt: ...Estates.” (See SAC ¶¶ 7-8, 10, 12, 20, Ex. A; see also New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714 (New Livable California) [on demurrer, the court accepts as true all facts properly pleaded, as well as those which reasonably arise by implication].) There is no legal distinction between an individual and the fictitious business name under which she does business. (See Pinkerton's, Inc. v. Super...
2023.07.21 Demurrer, Motion to Strike 501
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.07.21
Excerpt: ...s granted 10 days leave to file an amended complaint. As to the 5th cause of action for unjust enrichment, leave to amend is limited to alleging unjust enrichment and/or restitution as a remedy in connection with another valid cause of action. 1st cause of action: breach of contract. This cause of action states sufficient facts. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; Construction Protective Services, Inc. v. TIG...
2023.06.09 Motion for Summary Judgment, Adjudication, OSC Re Dismissal 523
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.06.09
Excerpt: ...nt and not summary adjudication, because each seeks summary adjudication of all claims alleged against UPS in plaintiffs Jorge Alcala and Lizbeth Martinez's (collectively, plaintiffs) second amended complaint. (See Notice of Motion & Motion, p. 2; Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744 [“The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the co...
2023.06.09 Application for Writ of Possession 184
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.06.09
Excerpt: ...nown location. Pursuant to Code of Civil Procedure section 512.010, subdivision (a), “[u]pon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc., §512.010, subd. (a).) An application for writ of possession must be executed under oath and include the informat...
2023.06.02 Motion for Summary Judgment, Adjudication, Demurrer, Motion to Strike 762
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.06.02
Excerpt: ...L and M, limited to the fact of recordation, and not of the truth of their contents. (Herrera v. Deutsche Bank National Trust co. (2011) 196 cal.App.4th 1366, 1375.) While moving party titles the motion as one for summary judgment, requesting summary adjudication in the alternative, this motion is one for summary adjudication only, as only the 7th cause of action of the First Amended Cross-complaint ["FACC"] is addressed, (Code Civ. Proc., S 437c...
2023.05.26 Motion for Summary Judgment, Adjudication 105
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.26
Excerpt: ...erial fact as to the conditions leading to plaintiff's resignation. (Code Civ. Proc., 437c, subd. [burdens on summary adjudication]; Turner v. Anheuser-Busch, Inc. (1 gg4) 7 Cal.4th 1238, 1244, 1251 [constructive discharge elements]; Valdez v. City of Los Angeles (1 gel) 231 Cal.App.3d 1043, 1056 ["Whether conditions were so intolerable as to justify a reasonable employee's decision to resign is normally a question of fact"]; Moving Party Separat...
2023.05.26 Motion for Determination of Good Faith Settlement, for Leave to File Complaint 927
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.26
Excerpt: ...ts to give notice of this hearing and to file a declaration, as contemplated by City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251. (ld. at 1261.) Here, while Defendants filed an "Application for Determination of Good Faith Settlement," which expressly requests a determination pursuant to C.C.P. Defendants neglected to file a Notice of Settlement, as required. (C.C.P. Additionally, Defendants did not serve the Application "by cert...
2023.05.26 Demurrers, Motion to Strike 563
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.26
Excerpt: ...n of Sylvanna Uyen Le will accompany the reply. However, no such declaration was submitted with the reply. Defendants also failed to include a proof of service for the reply. Nevertheless, this court will rule on the merits. 8th cause of action: fraud Plaintiffs have adequately plead a cause of action for fraud. (See Stansfield v. Starkey (1990) 220 cal.App.3d 59, 72-73 [elements]; see also compl., 25-29, 96 and Exhibits C and D [written false re...
2023.05.26 Demurrer, Motion to Strike 118
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.26
Excerpt: ...titute a cause of action. (Code Civ. Proc., S 430.10, subd. (e).) Moving defendants' request for judicial notice is GRANTED as to Exs. 1-11, limited to the fact that the documents were recorded, but not of the truth of their contents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [judicial notice of recorded documents); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 ["the fact ...
2023.05.19 Motion to Expunge Lis Pendens 056
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.19
Excerpt: ...11th and 12th causes of action for quiet title and constructive trust, which seek to establish plaintiffs Na Wu (Wu) and Guowen Liu's (Liu) (hereinafter, collectively referred to as plaintiffs) title to the subject property against Berkshire LLC, among others, based on fraud. (See Code Civ. Proc., SS 761.020, 762.010, 762.020 [quiet title]; Warren v. Merrill (2006) 143 Cal .App.4th 96, 112-113 Ca plaintiff may quiet title to property against a de...
2023.05.19 Demurrer, Motion for Sanctions 145
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.19
Excerpt: ...ause of action, the Cross-complaint alleges that "Ciln or around 5 years prior to this cross-complaint," NONAHAL contacted TRAN to inquire whether she wanted to sell her property to him; that NONAHAL would contact her once every few months thereafter to ask whether she wanted to sell the property to him; that "Ct]he entire time" NONAHAL represented he wanted to purchase the property for himself; that NONAHAL represented he was the owner of the va...
2023.05.12 Demurrer, Motion to Seal 945
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.12
Excerpt: ... procedurally inadequate as it did not comply with California Rules of Court, Rules 3.1306(c) and Rule 3.113(1). Further, as to Exhibits A (a copy of the initial Letter of Intent dated July 8, 2021), B (a copy of the revised Letter of Intent dated August 4, 2021), and C (a copy of the Asset Purchase Agreement dated October 29, 2021), contrary to Defendants' contention, these documents are not incorporated into reference by the Complaint and are n...
2023.05.12 Motion for Summary Judgment, Adjudication 553
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.12
Excerpt: ... 1 Cal. 5th 1132, 1158 (Kesner) [elements of premises liability, negligence]. ) Duty First, with respect to plaintiff Susanne Elizabeth D'Arcy's (plaintiff) complaint and the causes of action for premises liability and negligence therein—the Settenses have failed to demonstrate that they did not at least partially own the pine tree adjacent to the subject portion of the sidewalk. (See Kesner, supra, 1 Cal.5th at pp. 1158-1159 [duty owed by owne...
2023.05.05 Demurrer 399
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.05.05
Excerpt: ...ce Defendants request judicial notice of the following court records under Evidence Code section 452(d) in the matter of In re Rebecca Ann Rawji and Diamond Rawji, in U.S. Bankruptcy Court, case no. 8: 14-bk-14406-TA: Notice of Motion and Motion to Avoid [Wildish and Nialish] Lien Under 11 U.S.C. S 522 (Real Property), filed October 14, 2014 by Debtors Diamond Rawji and Rebecca Rawji [RJN 1 ) Objection and Request for Hearing on Motion to Avoid t...
2023.04.28 Motion to Tax Costs 632
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.28
Excerpt: ...Such fees are recoverable, however, when a judgment following the nonacceptance of a pretrial settlement offer triggers operation of section 998... [S)ection gg8 provides: '(a) The costs allowed under Sections 1031 and 1032 shall be withheld or augmented as provided in this section. CT.] . (d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding ..., the c...
2023.04.21 Demurrers 961
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.21
Excerpt: ...to state facts sufficient to constitute these affirmative defenses; affirmative defenses must be alleged as carefully and with as much detail as the facts that constitute the causes of action alleged in the complaint. (See FPI Development, Inc. v. Nakashima (1991) 231 cal.App.3d 367, 384.) 4th affirmative defense: Defendant fails to specify the applicable statute and subdivision and sets forth numerous inapplicable statutes. (Martin v. Van Bergen...
2023.04.14 Demurrer 655
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.14
Excerpt: ...s. First Cause of Action Plaintiffs can no longer state a cause of action for violation of Civ. Code § 2923.5 as the sale has already been concluded, and there are no longer any remedies available under this statute. (Compl., ¶ 13; See Civ. Code § 2923.5; Civ. Code § 2924g; Mabry v. Superior Ct. (2010) 185 Cal. App. 4th 208, 235; See also Stebley v. Litton Loan Servicing, LLP (2011) Cal.App.4th 522, 526 [recovery of damages not permitted for ...
2023.04.03 Motion to Quash Service of Summons, to Dismiss 204
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.04.03
Excerpt: ... jurisdiction." (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, logo; see Automobile Antitrust Cases, supra, 135 Cal.App.4th at pp. 110-111.) Jurisdictional facts must be proved by competent evidence. (Automobile Antitrust Cases, at pp. 110-111.) Plaintiff Javad Dadgostari (plaintiff) has failed to meet this burden. Personal jurisdiction may be either general or specific. General jurisdiction exists if the defendant is "at home" in the ...
2023.03.24 Motion for Summary Judgment, Adjudication 155
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.03.24
Excerpt: ...sed Deed Restriction. (See UMFs #12, 13, 14, 15, 16 and 17.) So too, are there triable issues of fact with regard to the claim for bad faith. Further, Defendant has not met its burden with regard to the punitive damages claim. The Court declines to rule on the objections contained in plaintiff's separate statement in opposition to this motion. The separate statement is not an appropriate place to assert objections. With regard to summary judgment...
2023.03.17 Motion for Summary Judgment, Adjudication 993
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.03.17
Excerpt: ...r initial burden as to these causes of action, as they have not addressed all of the relevant allegations of the Complaint. (Code Civ. Proc., 437c, subd. [burden]; Amerigas Propane, LP v. Landstar Ranger, Inc. (2010) 184 Cal.App.4th 981, 1001 [reversing grant of summary judgment because moving party only addressed liability under state law, not federal statutory liability alleged as an alternative]; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 9...
2023.02.10 Motion for Summary Judgment, Adjudication 381
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.02.10
Excerpt: ...original Complaint, First Amended Complaint, Second Amended Complaint, and Third Amended Complaint [TAC]. The remainder of the request is DENIED. (Evid. Code, § 453, subd. (b) [request must provide the court with sufficient information to enable it to take judicial notice]; see also Code Civ. Proc., § 437c, subd. (b)(7) [“An incorporation by reference of a matter in the court's file shall set forth with specificity the exact matter to which r...
2023.01.20 Motion for Summary Judgment, Adjudication 681
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.01.20
Excerpt: ...ment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Summary adjudication is also denied, as follows: 1st cause of action: breach of contract; 2nd cause of action: breach of implied covenant of good faith and fair dealing Summary adjudication is denied as to the 1st cause of action for breach of contract, due to triable issues of material fact regarding whether defendants breached the applicable agreements by “fail[ing] to provide al...
2023.01.06 Motion to Compel Arbitration, Further Responses 532
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2023.01.06
Excerpt: ...ion as a petition under California Code of Civil Procedure, section 1281.6 to appoint an arbitrator. Plaintiffs and defendants are to submit a joint list of arbitrators to the court within fifteen days. From that list, the court will nominate five arbitrators and advise the parties by minute order. The parties shall have five days from receipt of the nominated list to agree upon an arbitrator, or the court will assign the arbitrator to arbitrate ...
2022.12.20 Demurrer, Motion to Strike 846
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.20
Excerpt: ...The Court finds that this cause of action has not been alleged with the required specificity. The effect of the rule that fraud must be specifically pleaded is twofold: 1. A general pleading of the legal conclusion of fraud is insufficient since the facts constituting the fraud must be alleged; and 2. Every element of the cause of action for fraud must be alleged factually and specifically since the policy of liberal construction of pleadings wil...
2022.12.20 Motion for Summary Judgment, Adjudication 710
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.20
Excerpt: ...l.4th 826, 850-851 [same].) The complaint alleges that defendant Avco knowingly misrepresented to the Federal Aviation Administration, and concealed or withheld from the Federal Aviation Administration, information that is material and relevant to the performance or the maintenance or operation of the engine system, e.g. the carburetor issues that led to multiple accidents. (See Compl. ¶¶ 32-39, 42-45, and 51-52.) The concealment claims are ade...
2022.12.09 OSC Re Preliminary Injunction 800
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.09
Excerpt: ...in the court record. Plaintiff Candice P. Smith's (Smith) contention that this motion should be denied because Courtade's claims belong in probate is better raised on demurrer or a motion for stay (which either party may still bring). At this time, however, the argument fails because Smith fails to show that the probate court has exclusive jurisdiction over Courtade's proposed claims. Indeed, the Probate Code provides that its remedies for a tran...
2022.12.09 Motion to Compel Production 713
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.09
Excerpt: ...pp. 7:25-8:2.) It is well settled that federal and state tax returns are generally privileged. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6; Webb v. Standard Oil (1957) 49 Cal.2d 509, 513 (Webb); Deary v. Superior Court (2001) 87 Cal.App.4th 1072, 1077-1078.) The privilege applies to tax returns and records that are an “integral part” of the tax returns, such as W-2 and 1099 forms. (Brown v. Superior Court (1977) 71 Cal.App.3d ...
2022.12.09 Motion for Entry of Seperate Judgment, for Attorney Fees 663
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.12.09
Excerpt: ...arties. (Calif. Code of Civil Proc. §§ 578, 579; Oakland Raiders v. National Football League (2001) 93 Cal.App.4th 572, 577-578.) The court determines that the entry of a separate judgment is proper and in the interests of justice. (See Calif. Code of Civil Proc. §§ 578, 579.) Criteria considered by the court in granting this motion includes, but is not limited to: (i) Based upon the partial reversal of the court's initial judgment, cross-com...
2022.11.18 Demurrer 198
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.11.18
Excerpt: ...pleaded in support thereof. (See Code Civ. Proc., §§ 430.801, 4582.) Demurrer is overruled as to this affirmative defense. 2nd Cause of Action: Judicial estoppel requires facts showing (1) the same party has taken two positions; (2) the two positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position; (4) the two positions are totally inconsistent; and (5) the first ...
2022.10.21 Motion for Judgment on the Pleadings 113
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.10.21
Excerpt: ...ontract. This claim is based on the VRE defendants' alleged conduct in inducing defendant Nancy Goetz Tafoya (Tafoya) to breach the residential purchase agreement between plaintiff Medici Partners, LLC (plaintiff) and Tafoya. (See TAC ¶¶ 54-57.) Tafoya has since successfully moved for summary judgment on the third amended complaint, including on plaintiff's claim for breach of contract/the subject residential purchase agreement, and judgment ha...
2022.10.21 Demurrer, Motion to Strike 390
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.10.21
Excerpt: ...ld plaintiff in May of 2018, during a breakup argument, that the transmission of the communicable disease to plaintiff was intentional in order to maintain the relationship and control over plaintiff, rendering her “damaged goods”, that he had hidden physical symptoms from plaintiff in order to intentionally give her the disease, and that he had infected at least one other woman with the same disease. (Id. ¶ 12.) While this conduct occurred ...
2022.10.21 Demurrer 056
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.10.21
Excerpt: ...party who might assert a claim to title in the property, including alter egos and those claiming an adverse interest. (Eleanor Licensing LLC v. Classic Recreations LLC (2018) 21 Cal.App.5th 599, 617; see Harbour Vista, LLC v. HSBC Mortgage Services Inc. (2011) 201 Cal.App.4th 1496, 1506 [explaining one purpose of 1980 revision of statutory scheme for quiet title actions was to permit the action to proceed against “any or all adverse claimants,�...
2022.09.16 Demurrer 773
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.09.16
Excerpt: ...cting an unauthorized rear balcony/deck at her property that impermissibly encroaches on and into the plaintiff Monarch Point Homeowners Association's (plaintiff or the Association) Fuel Modification Zone A, “an easement area” granted to and maintained by the Association pursuant to the governing documents. (See Compl. ¶¶ 3, 7, 10, 12-15, 17-28, 33-34.) These allegations of fact, which the court must take as true on demurrer (see Mathews v....
2022.09.09 Motion for Judgment on the Pleadings, for Leave to File Amended Complaint 874
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.09.09
Excerpt: ...plaint would not cure the defects and would be futile. The court does have discretion to deny a motion for leave to amend where the amendment would be futile. Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719. However, defendant has not shown the amendment would be futile as a matter of law. The case of Everardo Rodriguez, et al. v. FCA US, LLC (April 7, 2022, E073766) 77 Cal. App. 5th 209, 2022 WL 1042907 does not undisputedly bar plaint...
2022.09.02 Motion for Summary Judgment, Adjudication 321
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.09.02
Excerpt: ...parties' notice of motion and separate statement do not comply with Cal. Rules of Court, Rule. 3.1350, subds. (b) and (d). (Cadlo v. Owens–Illinois, Inc. (2004) 125 Cal.App.4th 513, 523 [court's discretion to deny summary judgment / adjudication based on failure to comply with rule].) Summary judgment is denied because moving parties have not met their initial burden of presenting evidence showing that plaintiff cannot establish an essential el...
2022.08.26 Motion to Compel Arbitration 802
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.26
Excerpt: ...as failed to meet this burden. As an initial matter, defendant has not produced a copy of the subject arbitration agreement purporting to bear plaintiff Cari Ramirez's (plaintiff) signature. (See Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543 (Bannister) [party seeking arbitration can meet its initial burden by attaching a copy of the arbitration agreement purporting to bear the plaintiff's signature].) Defendant has produced o...
2022.08.26 Motion to Quash Discovery Subpoena 141
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.26
Excerpt: ... subpoena with an affidavit of no records. (See Yencarelli Decl. ¶ 22, Ex. O [6/27/22 certificate of no records].) This case was previously set for trial on 3/7/22, and all parties answered ready for trial on that date. (ROA No. 217.) The trial was trailed for a week, and the court set a status conference for counsel and the court to select a new trial date. (See ROA No. 228.) On 3/14/22, a status conference was held and the parties stipulated t...
2022.08.19 Motion to Set Aside or Vacate Default, Judgment 802
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.19
Excerpt: .... T.D. Service Company (2016) 245 Cal.App.4th 89, 97-98 [“Extrinsic mistake” is “broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits”]; see also Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42, 47 [“[b]ecause of the strong public policy in favor of the finality of judgments, equitable relief from a default judgment or order is available only in ...
2022.08.19 Demurrer 569
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.19
Excerpt: ...r as to the first cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege facts showing that defendants recorded a notice of default, notice of trustee's sale, or held a trustee's sale while plaintiff's application or a loan modification was pending, or threatened to conduct the same. The demurrer as to the third cause of action is sustained with leave to amend on the grounds that the 2ndAC fails to allege f...
2022.08.05 Motion for Attorney Fees, to Consolidate, to Strike Complaint 118
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.08.05
Excerpt: ...tion to strike itself, subsequent fee motions, and fees /costs associated with appeal].) Defendants are awarded attorney fees in the amount of $22,485.00, which the court finds were reasonably and necessarily incurred as follows: 1. 9-30-21 invoice $1,147.50 2. 10-31-21 invoice $7,203.50 3. 11-30-21 invoice $8,912.00 4. 12-31-21 invoice $ 270.00 5. 1-31-22 invoice $3,287.00 6. 2-28-22 invoice $ 810.00 7. 3-31-22 invoice $ 405.00 8. Appearance: $ ...
2022.07.29 Motion to Quash Subpoena 372
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.07.29
Excerpt: ...cut-off deadline set forth in its 1/18/22 minute order applies to the subject subpoenas. (See ROA No. 174 [1/18/22 minute order].) Plaintiff Curt Daniel Newnes (plaintiff) previously issued subpoenas to Victor and Mary Del Toro for their testimony and the production of certain documents at deposition in November 2021, which set their depositions for 12/13/21. (See ROA No. 257–Supp. Newnes Decl. ¶ 2, Ex. 2, pp. 53-66 [November 2021 subpoenas to...
2022.07.29 Motion for Attorney Fees 057
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.07.29
Excerpt: ...after that date pertained to the “only” remaining dispute at trial, i.e. “calculation of the appropriate mileage offset/damages;” and that none of the discovery conducted after that date was used at trial. (Opp at 4:22-7:16; Gruzman Decl. in support of Opp, Paras. 14-20.) Similarly, defendant contends that any fees incurred after it “admitted liability” should not be recoverable, including fees for expert discovery and trial. (Opp at ...
2022.06.10 Motion to Quash Subpoena 372
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.06.10
Excerpt: ...� as of 1/28/22, without leave of court. (See ROA Nos. 174, 205–1/18/22 & 4/25/22 Minute Orders.) This case was scheduled for trial on 10/18/21, and trailed to 10/19/21. On 10/19/21, the court granted plaintiff's oral request for a trial continuance, and continued trial to 1/18/22. (ROA No. 149–10/19/21 Minute Order.) This reopened discovery, re-setting the discovery cut-off date to Monday 12/20/21. (See Code Civ. Proc., §§ 599, 2024.020; s...
2022.06.03 Demurrer, Motion to Strike 846
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.06.03
Excerpt: ...TED with ten days leave to amend. Moving Party Kevin Jolly to give notice. Demurrer: 2nd Cause of Action for Fraud This cause of action has not been alleged with the required specificity. The effect of the rule that fraud must be specifically pleaded is twofold: 1. A general pleading of the legal conclusion of fraud is insufficient since the facts constituting the fraud must be alleged; and 2. Every element of the cause of action for fraud must b...
2022.06.03 Demurrer 871
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.06.03
Excerpt: .... Concord Gardens Mobile Home Park Ltd. (1979) 90 Cal.App.3d 871, 873-875 (Gonzales) [under doctrine of expressio unius est exclusio alterius, failure to comply with contractual notice provisions of the Contractors License Law, including section 7030, does not deprive a contractor the right to bring and maintain an action on construction contract].) Contrary to Bhayani's assertions, nothing in Nielsen Contracting, Inc. v. Applied Underwriters, In...
2022.05.27 Motion to Set Aside or Vacate Judgment, to Tax Costs 057
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.05.27
Excerpt: ...Proc., § 663, subd. (1) [authorizing motion]; see also Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153 [“A motion to vacate under section 663 is a remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence”].) Motion to strike and/or tax costs. Plaintiff Inez Moran's motion to strike and/or tax costs sought by defendant Central Valley Chrysler J...
2022.05.27 Motion to Quash Subpoena 462
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.05.27
Excerpt: ...cluding protective orders”].) The motion is GRANTED IN PART, in that the court exercises its discretion to modify the subpoena, and orders that the records produced shall be limited to the time period of 4-6- 19, the execution date of the contracts alleged in the complaint, to 11-23-20, the date this action was filed. There are no allegations nor evidence that plaintiff paid defendant any monies outside of this time period, or that defendant pa...
2022.05.27 Motion for Preliminary Injunction 806
Location: Orange County
Judge: Dourbetas, Nico
Hearing Date: 2022.05.27
Excerpt: ... §527(a), however, “[n]o preliminary injunction shall be granted without notice to the opposing party.” Additionally, the Court finds that Plaintiff has not demonstrated a sufficient probability of prevailing, to support the requested relief. (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493). Pursuant to the Proposed Order filed by Plaintiff with this Motion, Plaintiff is seeking multiple affirmative orders, compel...

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