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2022.02.10 Motion for Reconsideration 569
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.02.10
Excerpt: ...y of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are ...
2022.01.27 Motion to Strike, Demurrer 205
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.27
Excerpt: ...n, the time runs from the service of notice of the decision or order, unless the notice is waived. Here, as the proposed order submitted with the prior demurrer did not comport with the Court's subsequent ruling, a revised proposed order was lodged on 7/26/21 and signed on 8/10/21. As Plaintiffs filed the FAC on 8/12/21, it was not clearly untimely. The Motion is therefore denied. Defendant's Request for Judicial Notice is GRANTED under Ev. Code ...
2022.01.27 Demurrer, Motion to Strike 701
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.27
Excerpt: ...a claim for assault and battery is 2-years. Here, the Complaint indicates this action arises from an incident which occurred on October 27, 2016, nearly five years prior to the filing of this action. (¶7 of Complaint). Based on this allegation, Plaintiff's claims are barred, absent allegations which demonstrate delayed discovery, tolling or equitable estoppel. “When a plaintiff relies on a theory of fraudulent concealment, delayed accrual, equ...
2022.01.27 Demurrer 072
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.27
Excerpt: ...h 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Leave to amend is properly denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of America (1985) 1...
2022.01.20 Motion for Summary Judgment, Adjudication 168
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.20
Excerpt: ...r or agent who is not an attorney.” Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal. App. 4th 1094, 1101. Since Roxy is unable to represent itself and it did not file any opposition whatsoever, the MSJ is granted in its entirety as to Roxy. While Otero filed an opposition, he did not file the required separate statement of material facts. CA ST CIVIL RULES Rule 3.1350(e)(2). “Failure to comply with this requireme...
2022.01.20 Demurrer 793
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.20
Excerpt: ...n may be stated for the negligent infliction of serious emotional distress. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 930). “A direct victim cause of action for negligent infliction of emotional distress will lie ‘where a duty arising from a preexisting relationship … is negligently breached.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 108). Plaintiffs have pled sufficient facts to constitute a caus...
2022.01.13 Demurrer, Motion to Strike, to be Relieved as Counsel 673
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2022.01.13
Excerpt: ... Realty's (“HSIR” individually; HOM together with Shapiro) Demurrer to Daniel C. Kwock's (“Kwock”) First Amended Cross-Complaint (“FACC”) is SUSTAINED in part and OVERRULED in part. Sustained with leave to amend as to COA Nos. 2, 10, and 14. Overruled as to COA Nos. 1, 3-9, 11-13, and 15. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (...
2021.12.16 Motion for Award of Fees and Costs 223
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.12.16
Excerpt: ...) 39 Cal.App.4th 1379, 1383; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320 [“The defendant may recover fees and costs only for the motion to strike, not the entire litigation.”].) And such fees cannot be claimed by an attorney representing himself or a law firm represented by the firm's attorneys. (Witte v. Kaufman (2006) 141 CA4th 1201, 1207- 1211; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494.) Fees her...
2021.12.16 Demurrer 192
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.12.16
Excerpt: ...3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “Face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference. Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 (“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader's allegations as to the legal effect...
2021.11.18 Motion for RFAs to be Deemed Admitted 492
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.11.18
Excerpt: ... motion, substantially compliant responses, the court has no discretion but to deny the motion. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776). Plaintiff's motion to deem the first set of Requests for Admission propounded to WSH admitted is DENIED as MOOT. On 10/28/2021, this court denied the identical motion involving identical issues brought by plaintiff Thomas Davidson (“Davidson”). The court detailed its reasoning for denyin...
2021.11.18 Demurrer 004
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.11.18
Excerpt: ...-complaint without leave of Court Moving cross-defendant initially contends that the first amended cross-complaint was improperly filed, suggesting that leave of Court was required. Moving cross-defendant is incorrect. The moving cross-defendant is also the plaintiff. A cross-complaint must be filed against any party who filed a complaint or cross-complaint against him or her before or at the time of the answer to the complaint or cross-complaint...
2021.10.28 Demurrer 521
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.28
Excerpt: ...e demurrer and objects to the request of judicial notice as to both documents. Moving cross-defendant challenges all causes of action as untimely and as barred by a release in the settlement agreement for which it asks judicial notice. It then specifically challenges the fourth and fifth causes of action for violation of Bus. & Prof. Code § 17200 and unjust enrichment, respectively. Request for judicial notice. The request for judicial notice is...
2021.10.28 Motion for Attorney Fees 946
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.28
Excerpt: ...l services rendered in his court.'” Ketchum v. Moses (2001) 24 Cal.4th 112, 1132.   “The reasonable hourly rate is that prevailing in the community for similar work.”  PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.  Based on the court's experience, the billing rate of $325.00/hour for Scott W. Perlin is reasonable. Additionally, the billing rate of Rebecca Van Loon of $425.00/hour is reasonable. Ms. Van Loon is a cert...
2021.10.28 Motion for Summary Adjudication 840
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.28
Excerpt: ...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, as modified (July 11, 2001). “A defendant . . . has met his or her burden of showing that a cause of actio...
2021.10.20 Demurrer, Special Demurrer 560
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.20
Excerpt: ...he legislative analysis of AB 1871, including: 1. Assembly Committee on Insurance (May 4, 2010) 2. Senate Floor Analysis (July 29, 2010) 3. Assembly Floor Analysis (June 1, 2010) The request for judicial notice is GRANTED. The request was properly made, and the documents constitute cognizable legislative history properly subject to judicial notice. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31) H...
2021.10.20 Demurrer, Motion to Quash 399
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.20
Excerpt: ...ases I & II (2005) 135 Cal. App. 4th 100, 110 (“In re Auto”). “When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction. [Citation.] Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable. [...
2021.10.20 Demurrer 374
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.20
Excerpt: ...an (1985) 39 Cal.3d 311, 318. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court ...
2021.10.14 Motion to Compel Further Responses 243
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.14
Excerpt: ...). SPROG Nos. 14-17 are identical except that they seek the same records from different years (2014-2020). These SPROG are improper as they improperly incorporate other materials, specifically they require Plaintiff to go through Depala's medical records to determine a response. “Each interrogatory shall be full and complete in and of itself.” Civ. Proc. Code § 2030.060(d). “This rule was violated here by interrogatories which necessarily ...
2021.10.14 Motion to Compel Deposition of PMK 442
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.14
Excerpt: ...ce of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, th...
2021.10.14 Demurrer 987
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.14
Excerpt: ...an (2018) 23 Cal.App.5th 685, 690. Rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness. Ibid. Money paid upon a mistake of fact may be recovered under the common count of money had and received. Thresher v. Lopez (1921) 52 Cal.App.219, 220. The plaintiff may recover the money, even if negligent, if his or her conduct has not altered the position of the defendant to his or her d...
2021.10.14 Application for Right to Attach Order and Issuance of Writ of Attachment 457
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.14
Excerpt: ...red the supplemental briefing. APRB moves for a Right to Attach Order/Writ of Attachment against Michael Roofian, individually. (CCP §483.010; §484.020; 484.030) Attachment may issue only in an action on a claim for money based upon a contract, express or implied, where the total amount of the claim is a fixed or readily ascertainable amount not less than $500. (CCP §483.010 (a)). Roofian disputes the existence of a contract upon which attachm...
2021.10.07 Motion to Compel Compliance with Deposition Subpoena 964
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.07
Excerpt: ...ing her to appear for deposition, by Zoom, on 3/12/2021, and to produce all emails and text messages exchanged between Cerda and plaintiff from 2/12/2020 to present. (Buus Decl. ¶10; Ex. 3) On 3/10/2021, Buus called Cerda's cell phone and left a voicemail about her deposition, but Cerda did not return the call. (Buus ¶12) Cerda did not appear for her deposition on 3/12/2021, and the court reporter prepared a certificate of nonappearance. (Buus ...
2021.10.07 Motion for Trial Preference 003
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.07
Excerpt: ... to prevent prejudicing the party's interest in the litigation. Section 36 “was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial of his or her case and be able to realize redress upon the claim asserted.” (Looney v. Super. Ct. (1993) 16 Cal.App.4th 521, 532.) In support of the motion, the moving party's attorney may submit the supporting affidavit based upon information and...
2021.10.07 Motion for Summary Adjudication 823
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.07
Excerpt: ...w. That is because of the general principle that a party who seeks a court's action in his favor bears the burden 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 8...
2021.10.07 Demurrer, Motion to Strike 277
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.10.07
Excerpt: ...the same or similar causes of action. Defendant generally demurs to the second, sixth, and seventh causes of action. Defendant specially demurs to the second, sixth and seventh causes of action on the ground of uncertainty. The special demurrer of defendant Ford Motor Company to the entire first amended complaint of plaintiff Mark Johnson on the ground of another action pending is OVERRULED. Moving defendant contends that the second, sixth, and s...

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