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2020.09.29 Motion to Compel Arbitration 019
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.29
Excerpt: .... The Court notes the FAA “applies where there is ‘a contract evidencing a transaction involving commerce.'” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2]. Here, there is no FAA language in the contract, and no showing the contract at issue involves interstate commerce.] Defendants bear the burden to establish a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal...
2020.09.29 Demurrer 234
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.29
Excerpt: ... & Elec. Co. (2009) 45 Cal.4th 1151, 1157.) It is undisputed there is no contract between Tesla and HOI. Therefore, although HOI fashions its First Cause of Action as one for implied indemnity, it is actually a claim for equitable indemnity. Equitable indemnity applies only among defendants who are jointly and severally liable to the plaintiff. (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 719.) Further, with limited...
2020.09.22 Motion for Summary Judgment, Adjudication 944
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.22
Excerpt: ...th 1148, 1154.) Primary assumption of the risk applies when, due to the nature of the activity and the relationship of plaintiff and defendant to that activity, defendant's ordinary duty of care is negated; i.e., defendant owes no duty to protect plaintiff from the particular risk of harm that caused the injury. (Knight v. Jewett, supra, 3 Cal.4th at 314-315.) The general legal duty owed between coparticipants in sporting and similar recreational...
2020.09.22 Motion for Summary Judgment, Adjudication 635
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.22
Excerpt: ... 2 is OVERRULED and Objection Nos. 3-9 are SUSTAINED. Plaintiff's Evidentiary Objections: The Court declines to rule on Plaintiff's objections to Defendants' evidence as they are not material to the disposition of the motion. Burden of Proof: A “party moving for summary judgment [or adjudication] bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. A...
2020.09.22 Demurrer, Motion to Strike 005
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.22
Excerpt: ...facts sufficient to constitute a cause of action in violation of Code of Civil Procedure section 430.10(e); and to the Sixth COA (Sexual Harassment) against the District fails to state facts sufficient to constitute a cause of action in violation of Code of Civil Procedure section 430.10(e). Defendant's demurrer is sustained with 20 days leave to amend in its entirety. (2) To the extent the Motion to Strike is not rendered MOOT, it is granted wit...
2020.09.22 Demurrer 841
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.22
Excerpt: ...e exclusive means of doing so is pursuant to Code of Civil Procedure section 1286 et seq. Petitioner argues that her cause of action does not fall within Code of Civil Procedure section 1286 because her arguments concern the pre-arbitration process and were not addressed in arbitration. Specifically, Petitioner points to Respondent's failure to follow the procedures set forth in Public Safety Officers Procedural Bill of Rights Act (POBRA), specif...
2020.09.22 Demurrer 373
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.22
Excerpt: ...nd out via an application on their individual smart phones, and recording the time employees clocked in and out as well as the employee's physical location at the time he or she clocked in and out. (Cross-Complaint, ¶ 11.) The Cross-Complaint also alleges cross-complainant paid cross-defendant according to the hours and time each recorded in the time recording system, but cross-complainant discovered cross-defendants had falsified their daily ti...
2020.09.15 Motion to Appoint Receiver 586
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.15
Excerpt: ... of the existence of these documents, the Court declines to take notice of the truth of the contents contained therein. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564; Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Initially, the notice of motion does not request or mention the removal of Gann as a director for cause under Corporations Code sections 5227(a) and 12363. Rather, this specific request is first made i...
2020.09.15 Motion for Leave to Intervene 174
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.15
Excerpt: ...nlarge the issues in the litigation; and (4) the reasons for intervention outweigh any opposition by the parties presently in the action. [Citation.]” (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.) Proper Procedure: Proposed Intervenors timely filed their motion and submitted their proposed pleading in accordance with Code of Civil Procedure section 387(c). Proposed Intervenors properly seek to file an Answer in Intervent...
2020.09.04 Motion to Enforce Settlement 629
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.04
Excerpt: ...r dismissal of the action upon completion of Defendants obligations thereunder; Defendants would pay Plaintiff the total amount of $170k in monthly installments of $5k, starting on 3-15-2020 and on each 15th day of each month thereafter until 3-15-22; and In the event Defendants failed to perform their obligations under the MOU, it would constitute a material breach; that Defendants would have a 45-day cure period of any material breach; and if D...
2020.09.04 Demurrer, Motion to Strike 141
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.04
Excerpt: ... alleged contract, or even identify the parties to the contract. However, the essential terms of the contact are adequately alleged, i.e., Plaintiff agreed to lend Defendant $300,000 and Defendants promised to repay the $300,000 with interest. The parties to the contact are identified as Plaintiff, as the lender, and Defendants, as the borrowers. While Defendants also contend it is unclear who spoke with Plaintiff to discuss the terms of the cont...
2020.09.04 Demurrer 016 (2)
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.09.04
Excerpt: ...n is against all cross-defendants. Code of Civil Procedure section 430.10(f) provides a defendant may demur on the ground the pleading is uncertain. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal App.4th 612, 616.) Demurrers for uncertainty “are granted only if...
2020.08.26 Motion to Compel Production 349
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.26
Excerpt: ...Shah (“Plaintiff”)'s Motion to Compel Defendant S&S Restaurant Venture, LLC (“S&S” or “Defendant”)'s Further Response to Request for Production of Documents, Set One (“RPD), pertain to RPD Nos. 3-7, 9-11, and 17- 19. Plaintiff contends Defendant has not produced the responsive documents and thus, should be ordered to provide further responses. Defendant, however, represents that a verified Amended Reponses to the subject discovery r...
2020.08.26 Demurrer, Motion to Strike 361
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.26
Excerpt: ...st, second, third, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth COAs for failure to state fact sufficient to state a cause of action. The Court overrules the demurrer to the first, second, third, fifth, sixth, seventh, eighth, tenth, eleventh, and twelfth COAs based on uncertainty. Plaintiff's objections to the August 8, 2019, Bill of Sale attached as Exhibit A to the Declaration of Anya J. Goldstein are SUSTAINED. (1) DEMURRER TO ...
2020.08.11 Motion to Compel Further Responses 279
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.11
Excerpt: ...ies, Set One, No. 1, and Request for Production, Set One, Nos. 5, 9, 11, 12, 45, 15, 16 and 17, without objection, within 10 days. Monetary sanctions in the amount of $1,220.00 are imposed against Plaintiff and his counsel, payable within 30 days. The notices of the motions were timely given on 2-3-2020, within the time agreed upon by counsel. (See Motion, Grandy Decl., ¶ 10, Exh. J.) The motions are also accompanied separate statements and a de...
2020.08.11 Motion for Summary Judgment, Adjudication 656
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.11
Excerpt: ...nell Great Lakes, LLC (“Great Lakes”) (collectively “defendants”) and judicially notices Exhibit 1 pursuant to Evidence Code section 452(d), Exhibits 2 through 8 pursuant to Evidence Code sections 452(c), (d) and (h), and Exhibits 9 and 10 pursuant to Evidence Section 452 (d) and (h). The Court SUSTAINS defendants' objection to the Declaration of John Risso. The Court OVERRULES Plaintiff, Maria Angelica Alvarez's objections to the Declara...
2020.08.11 Motion for Summary Judgment 191
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.11
Excerpt: ...Code section 11350(a).” On 4-16-20, Defendants filed supplemental papers. Defendants concede that HGH is not an “anabolic steroid” and not specifically listed as a “controlled substance” under 21 U.S.C. §§ 802(41)(C) or 812(c) Schedule 3. Nor does HGH require a prescription pursuant to Health & Safety Code § 11350(a). However, in their supplemental brief, Defendants cite new authority – 21 U.S.C. § 333(e) – which indicates it is...
2020.08.06 Motion for Summary Judgment, Adjudication 171
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.06
Excerpt: ...th COA is GRANTED. With respect to the Fourth, Seventh and Eighth COAs the Motion is GRANTED, on the sole basis Plaintiff conceded there are no triable issues as to these claims. (Notice of Errata (ROA No. 112)). As to the First COA (Retaliation), Defendants failed to negate Plaintiffs' prima facie claim for retaliation in violation of FEHA. Defendants challenged Plaintiff's claim to the extent it relied on advocacy for Cheryl McElwain; however, ...
2020.08.04 Motion to Compel Arbitration 288
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.04
Excerpt: ...ises for employment positions and available properties to both in and out of state individuals; and is a Delaware corporation with its principal place of business in Addison, Texas. (See Cassidy Decl., ¶ 3.) In Opposition, Plaintiffs do not present any legal argument as to the applicability of the FAA to any arbitration agreement. However, Defendant did not present any evidence that the work performed by each Plaintiff involved interstate commer...
2020.08.04 Motion to Compel Answers 785
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.08.04
Excerpt: ...(“Defendant” or “ProActive”) paid Oscar and/or Rita, either on a W2, K1, or 1099, during any year wherein Oscar directly competed with Plaintiff while acting as its employee and agent. ProActive objected to these interrogatories on the grounds of, among other things, the right of privacy of Oscar and Rita. “The right of privacy is an “ ‘ “inalienable right” ' secured by article I, section 1 of the California Constitution. [Citat...
2020.07.30 Motion for Summary Judgment, Adjudication 281
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.07.30
Excerpt: ... Motion for Summary Adjudication is DENIED as to first, fourth, sixth, ninth, and tenth causes of action. The Motion for Summary Adjudication is GRANTED as to the seventh, and eighth causes of action. As an initial matter, the Court notes that plaintiff's opposing separate statement fails to comply with Code of Civil Procedure section 437c(b)(3), which requires each material fact the opposing party contends is disputed be followed by reference to...
2020.07.28 Demurrer, Motion to Strike 011
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.07.28
Excerpt: ...this action, as requested by Defendants. (Evid. Code, § 452(d).) Sur-Reply and Response thereto: Plaintiff's “Sur-Reply” and Defendants' Response thereto are filed without first obtaining leave from the Court. Moreover, they essentially reiterates the arguments made in the moving and opposing papers, in addition to arguing facts outside the pleading. Thus, they are disregarded and not considered. Meet and Confer: The Declaration of Gregory J...
2020.07.23 Motion for Summary Judgment, Adjudication 434
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.07.23
Excerpt: ...es not take judicial notice of the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) The Court GRANTS Plaintiff's request for judicial notice of Exhibits 2, 4, and 5 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The ...
2020.07.21 Motion for Reconsideration 965
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.07.21
Excerpt: ...at judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc. § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213.) Here, defendants do not present new or different facts or circumstances; instead they argue...
2020.07.14 Motion to Set Aside or Vacate Default 558
Location: Orange County
Judge: Gastelum, John C
Hearing Date: 2020.07.14
Excerpt: ...oid. Defendant also contends plaintiff has not shown Defendant was properly served with the Initial Statement of Damages such that the default is void. Defendant further contends plaintiff's death necessarily changed the nature of the Complaint which requires that Dr. Hajj be allowed to respond, and that the court cannot allow a plaintiff to prove different claims or different damages at a default hearing than those pled in the Complaint. Under C...

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