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2021.09.30 Motion to Compel Arbitration 480
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.09.30
Excerpt: ....P. § 1281.2.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any doubt o...
2021.09.30 Demurrer 390
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.09.30
Excerpt: ...ate Services, Inc. (“Bondcorp”) and Stacie's former husband, Bryan K. Bond (“Bryan”). The Agreement is attached to the complaint as Exhibit A. Stacie was not a party to the Agreement. Attached to the FAC as Ex. B is a single letter dated 8/8/2019 to Bryan and Stacie attaching invoices and stating an amount owed for legal services rendered by plaintiff. None of the invoices are addressed to Stacie. Plaintiffs seek to hold Stacie accountabl...
2021.09.30 Demurrer 136
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.09.30
Excerpt: ...eclines to do so in this instance. New matters cannot be raised for the first time in a reply brief. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 641). The elements of fraud are (1) misrepresentation (false representation, concealment or nondisclosure) (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal....
2021.09.30 Demurrer 442
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.09.30
Excerpt: ...e making which allegation(s). Defendant demurs solely to the 3rd cause of action (“COA”) for Fraudulent Inducement- Concealment on the basis that is fails to state facts sufficient to establish a COA (Civ. Proc. Code § 430.10(e)) and that it is barred by the economic loss rule. Concealment is, “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of co...
2021.09.16 Demurrer 388
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.09.16
Excerpt: ... as to El Gaucho #2 and El Gaucho #11 because Plaintiff failed to allege any facts identifying the location where she worked and/or whether El Gaucho #2 or El Gaucho #11 actually employed her such that they should be included in this lawsuit and held liable for her claims. The FAC alleges that El Gaucho #2 and El Gaucho #11 were operated by, managed by, wholly owned by, alter-egos of, and for all purposes existed as one-in the same with defendant...
2021.09.16 Demurrer 269
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.09.16
Excerpt: ...ended pleading remain within the court's cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff's case will not be accepted.” (Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1061). Likewise, if a party files an amended pleading and attempts to avoid the defects of the original Complaint by either omitting facts that rendered the prior Complaint defective or by adding facts ...
2021.08.26 Petition for Writ of Mandate 858
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.26
Excerpt: ...dered all of the documents which petitioner indicated were part of the record, but which he was concerned did not make it into the record, including the expert report from Mr. Daleo. Request for Judicial Notice: As a preliminary matter, City requests judicial notice of various provisions of the California Residential Code (Ex. A-H); California Building Code (Ex. I-M) and Newport Beach Municipal Code (Ex. N-Q). The Court may take judicial notice o...
2021.08.26 Motions to Compel Further Responses 680
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.26
Excerpt: ...alls for confidential information which would only be provided under an appropriate protective order.” The court construes this objection as one based on Civil Code §3295. “[T]here is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account information.” (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 481.) The privacy right exists as to ...
2021.08.26 Demurrer, Motion to Strike 835
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.26
Excerpt: ...ury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. “Even as against a special demurrer, a plaintiff is required only to ‘set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action.'” “[A] pleading is adequate so long as it apprises the defendant of the factual basis for th...
2021.08.26 Demurrer 961
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.26
Excerpt: ...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 may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749. “...
2021.08.19 Motion for Prefiling Order for Vexatious Litigant, to Require Security 571
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.19
Excerpt: ...Baron v. Dillard, Vierra, and Arizona Medical Training Institute, there was a final judgment during the pertinent period, and at least three related appeals, all of which were determined adversely to Mr. Baron. (See RJN Exs. 1 and 2, and Barron v. Dillard, 2016 WL 54832 (Ariz. Ct. App. 2016) [rejecting “Baron's three remaining notices of appeal…”].) Each appeal constitutes a separate “litigation” under the statute. (In re Kinney (2011) ...
2021.08.19 Demurrers 390
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.19
Excerpt: ...rer challenges the legal sufficiency of a complaint on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e).) The allegations in the complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, whic...
2021.08.19 Motion for Attorney Fees, to Tax or Strike Costs 403
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.19
Excerpt: ... given, Defendant also late filed its reply based on the present hearing date. Civ. Proc. Code § 1005. As such, the court declines to consider the arguments in the late filed reply brief (ROA #893). CRC 3.1300(d). Although Defendant is the prevailing party, it is not entitled to recover attorney fees from plaintiff Loan Pham (“Plaintiff”) under either Civ. Proc. Code §§ 1717 or 998. Defendant is not entitled to attorney's fees pursuant to ...
2021.08.19 Motion to Compel Further Responses 939
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.19
Excerpt: ...easonably calculated to lead to the discovery of admissible evidence as OCTA admits that Mr. Beyer was acting in the course and scope of his employment for OCTA at the time of the subject incident…” OCTA cited to Diaz v. Carcamo (2011) 51 Cal.4th 1148 in support of each response. The objections are not well-taken. In Diaz, the court held that an employer's admission of vicarious liability for an employee's negligent driving bars a plaintiff f...
2021.08.19 Motion to Compel Further Deposition 535
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.19
Excerpt: ...ve the court for an order compelling that answer or production.” Civ. Proc. Code § 2025.480(a). “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasona...
2021.08.19 Motion to Compel IME 861
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.19
Excerpt: ...out leave of court. (CCP §2032.220(a)). Separate injuries do not entitle defendant to more than one exam. Only a single examination can be obtained on demand despite the variety of injuries claimed. (Weil & Brown, The Rutter Group (2021) Cal. Prac. Guide: Civ. Pro. Before Trial, Discovery §8:1516) For example, if plaintiff claims both orthopedic and neurologic injuries resulting from the accident, the medical examination will have to cover both...
2021.08.19 Petition to Compel Arbitration 164
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.19
Excerpt: ...o compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . “ Civ. Proc. Code § 1281.2. “The party seeking to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by [a] preponderance of the evidence.” Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1005 (9th Cir. 2010) (internal quotation marks and citation omitted). “...
2021.08.12 Motion for Summary Judgment, Adjudication 781
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.12
Excerpt: ... 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 826, 850, as modified (July 11, 2001). “The motion for summary judgment shall be granted ...
2021.08.12 Motion for Leave to File TAC 290
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.08.12
Excerpt: ... Decl. ¶¶ 3-6, Ex. 3.) Courts may permit amendments at any stage in the proceedings, up to and including trial, so long as there is no prejudice shown to the adverse party. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564 (where no prejudice is shown to the adverse party, the liberal rule of allowance prevails). However, leave can be denied where a proposed amendment fails to state a vali...
2021.07.29 Motion to Compel Responses 428
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.07.29
Excerpt: ... CA ST CIVIL RULES Rule 3.1345, Defendant's separate statement does not comply with that Rule. However, Civ. Proc. Code § 2031.310(b)(3) permits a part to, “[i]n lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.” Id. Here, Defendant has produced a concise outline of the discovery request and each re...
2021.07.29 Motion to Compel Arbitration 164
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.07.29
Excerpt: ...mpel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. . . “ Civ. Proc. Code § 1281.2. “The party seeking to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by [a] preponderance of the evidence.” Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 622 F.3d 996, 1005 (9th Cir. 2010) (internal quotation marks and citation omitted). “[T]h...
2021.07.29 Demurrer 841
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.07.29
Excerpt: ...t and confer with Defendants prior to filing the demurrer was insufficient. Plaintiff was required to identify all of the specific defenses believed to be subject to demurrer and identify with legal support the basis of the deficiencies. §430.41(a)(1). Plaintiff failed to satisfy this mandate. Defendant failed to respond to plaintiff's perfunctory meet and confer attempt. However, because a determination that the meet and confer process was insu...
2021.07.15 Motion to Compel Further Responses 374
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.07.15
Excerpt: ...tories (FROG and SPROG): “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declarati...
2021.07.08 Motion to Abate Cross-Action 038
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.07.08
Excerpt: ...e parties. Preliminary Question - Is a Cross-Action, “Maintaining an ‘Action or Proceeding”? The RP argues that Section 2203 doesn't apply, because a cross-complaint is not “maintaining an action or proceeding” under § 2203(c). The statute does not say that a foreign corporation shall not “maintain a lawsuit” but that it “shall not maintain an action or proceeding.” “An action is an ordinary proceeding in a court of justice b...
2021.06.24 Motion to Stay Proceedings 908
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.06.24
Excerpt: ...ed evidence that he was been indicted in the Criminal Matter, which is pending for trial on 12/07/21. Bauche argues an immediate stay is necessary to avoid compromising his 5th Amendment right against self-incrimination. A stay, “is in accord with federal practice where it has been consistently held that when both civil and criminal proceedings arise out of the same or related transactions, an objecting party is generally entitled to a stay of ...

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