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2021.06.17 Demurrer, Motion to Strike 223
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.06.17
Excerpt: ...dant represented that the product had characteristics, uses, or benefits it did not have (3) plaintiff was harmed; and (4) the harm resulted from Defendant's conduct. CACI 4700. Here, the allegations contained in the Complaint at paras. 1, 6-7, 10, 11, 13, & 14 are sufficient to state a claim against MBUSA for violations under the CLRA. To prove reliance, it is enough for the plaintiff to prove the representation was a substantial factor in the p...
2021.06.17 Motion to Compel Further Responses 393
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.06.17
Excerpt: ..., where the basic meaning is clear, the responding party must appropriately respond. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783, superseded by statute on other grounds as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.) To the degree the scope of the inquiry is the maintenance performed at the entire Disneyland park, this may draw fair objections to the relevance and breadth. Presumably, however, the definitions...
2021.06.11 Anti-SLAPP Motion 043
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.06.11
Excerpt: ..., the court determines if the party moving to strike a cause of action has met its initial burden to show that the cause of action arises from an act in furtherance of the moving party's right of petition or free speech. Then, if the court determines that showing has been made, the court determines whether the opposing party has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Here, Plaintiff...
2021.06.03 Motion for Judgment on the Pleadings 114
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.06.03
Excerpt: ...'s informal request for judicial notice of the Peaslee declaration is DENIED, because (1) it constitutes the equivalent of a speaking demurrer, by relying upon a declaration rather than any official records (Evid. Code § 452(d)) or matters of common knowledge (Evid. Code § 452(g)) or indisputable facts (Evid. Code § 452(h)), and (2) it does not comply with CRC Rule 3.1113 [separate document for RJN]. (Evid. Code § 452, CRC Rule 3.1113.) Nonet...
2021.05.20 Motion to Quash Depositions 395
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.05.20
Excerpt: ...eet and confer efforts were more than adequate, and Plaintiff has demonstrated good cause for the requested discovery. Defendants' non-appearance – following only days after confirming their attendance – was without any justification. Defendants' failure to oppose the Motion can be treated as an implied concession to the merits of the same. (See, e.g., Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20; see also, Sexton v. Superior Cou...
2021.05.20 Motion to Quash 010
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.05.20
Excerpt: ...vision (b) . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (b) The following persons may make a motion...
2021.05.20 Demurrers 294
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.05.20
Excerpt: ...f Contract Demurrers are sustained with leave to amend. There are a number of deficiencies in the pleading. Paragraph 29 refers to a breach of the Business Purchase Agreement, which is attached to the pleading as Exhibit 1. (See CC ¶ 16, 29.) However, the exhibit is illegible. The Court therefore orders the cross-complainants to attach a legible copy in the next pleading. The obligations in that writing appear to have been undertaken by a nonpar...
2021.05.13 Demurrer 875
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.05.13
Excerpt: ...ly alleges, in part: “At the time of purchase and/or lease, or within one-year thereafter, the Subject Vehicle contained or developed the defects set forth above.” The Complaint alleges in Paragraph 10 that the Subject Vehicle was purchased on 3/12/2012. Defendant contends, in part, that this cause of action is barred by the 4-year statute of limitations under UCC § 2725(2), because there is no delayed discovery rule unless the “warranty e...
2021.05.13 Demurrer 806
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.05.13
Excerpt: ...llegations 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 FAC, 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.4...
2021.05.13 Demurrer 361
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.05.13
Excerpt: ...es of action. MOOT as to 4th (Armin, Wess, and Wilber only) cause of action. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (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 o...
2021.04.22 Motion for Summary Judgment, Adjudication 570
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.04.22
Excerpt: ...e claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. (Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.) If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts ...
2021.04.22 Demurrer 653
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.04.22
Excerpt: ...nd negligent misrepresentation are SUSTAINED with leave to amend. Plaintiff must allege facts with greater specificity, such as the dates of the representations, the speakers, the manner of their communication, the location, the plaintiff's reliance thereupon, and other elements. Conclusory and general allegations are not sufficient. (See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Robinson Helicopter Co., Inc. v. Dana Corp. (2004)...
2021.04.15 Motion to Compel Arbitration 475
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.04.15
Excerpt: ...and Priore Dec., Ex. A, see Cross-Complaint ¶ 10, 12, 17.) The Agreement has a broad arbitration provision calling for binding arbitration of all matters and disputes that relate in any way or arise out the Agreement or any resulting transaction. The argument of Defendant regarding its different understanding of the transaction, and regarding oral statements by an NPA representative, do not appear to illustrate fraud in the entry into the arbitr...
2021.04.15 Motion for Judgment on the Pleadings 633
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.04.15
Excerpt: ...f limitations defense. (C.C.P. § 439(a); Howard Decl., ¶ 3, Ex. 1.) “A defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to state a cause of action against that defendant. [Citations]. A motion for judgment on the pleadings ‘is equivalent to a demurrer and is governed by the same de novo standard of review.' [Citation]. Leave to amend ‘is properly denied if the facts and natu...
2021.04.15 OSC Re Preliminary Injunction 569
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.04.15
Excerpt: ... would produce waste, or great or irreparable injury, to a party to the action. (3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual. . .” Civ. Proc. Code § 526(a). The burden is on the moving ...
2021.04.15 Motion to Strike or Tax Costs 204
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.04.15
Excerpt: ...v. Proc. Code § 1032. Plaintiff seeks to strike the entirety of the cost bill pursuant to Gov't. Code § 12965(b), which in relevant part states: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant...
2021.04.15 Motion to Vacate or Correct Arbitration Award 876
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.04.15
Excerpt: ...the arbitration and Award are governed by the Federal Arbitration Act (“FAA”). ROA #69, Ex. B § 8; Pla. Lodging, Ex. B § 5.8. Regarding vacating or correcting the Award: “(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration-- (1) where the award was procured by corruption, fraud, or undue means;...
2021.03.04 Motion to Compel Further Responses 301
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.03.04
Excerpt: ...o meet and confer letters was without substantial justification and left Plaintiffs with virtually no choice but to file the current Motion by or on the extended motion cutoff deadline. Defendant's opposition to the current Motion, on the ground that it is somehow premature because the meet and confer process is incomplete – through some purported fault of Plaintiff by “only” sending two meet and confer letters and not receiving any respons...
2021.03.04 Motion to Compel Arbitration 055
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.03.04
Excerpt: ...t. As a general principle, the party resisting enforcement of an arbitration provision has the burden to establish the defenses. (See Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Unreasonable Delay/Waiver The record does not support unreasonable delay by the Defendants in seeking to arbitrate the matter. What constitutes a reasonable time to assert the arbitra...
2021.03.04 Demurrers, Motion to Strike 835
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.03.04
Excerpt: ...n at all times to the inspection of any partner. (SAC ¶ 19-20). Defendant argues that Plaintiff hasn't properly alleged damages from any breach of this term. (SAC ¶20, 32, 33.) This is a general demurrer as noticed (See Notice of Dmrr at 2:7, citing CCP 430.10(e).) A general demurrer must be overruled if the complaint states any cause of action, under any theory. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Here, if t...
2021.03.04 Demurrer, Motion to Strike 881
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.03.04
Excerpt: ...declining to take judicial notice of materials not “necessary, helpful, or relevant”].) Demurrer: Defendants' demurrer to the FAC's third cause of action for fraud on the basis of uncertainty is OVERRULED. (C.C.P. § 4301.0(f).) A demurrer on the ground of uncertainty is disfavored and should be sustained only when a complaint is so incomprehensible that a defendant cannot reasonably respond since ambiguities may be clarified in discovery. (L...
2021.03.04 Demurrer 952
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.03.04
Excerpt: ...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. “In our examination of th...
2021.02.25 Motion to Strike 907
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.02.25
Excerpt: ...the sake of example and to punish the defendant, they are proper when tortious conduct rises to levels of extreme indifference to the plaintiff's rights, which decent citizens should not have to tolerate. (See e.g. Lackner v. North (2006) 135 Cal.App.4th 1188, 1212; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; American Airlines, Inc. v. Sheppard, Mullin, Richter & H...
2021.02.25 Motion to Quash Service of Summons 112
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.02.25
Excerpt: ...aintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1233.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate tha...
2021.02.25 Motion to Expunge Lis Pendens 586
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2021.02.25
Excerpt: ...property to share an identity of interest with the property-owners for purposes of seeking the statutory remedy of expungement of the recorded lis pendens. For this reason, the Court does not grant any relief to the party on the “joinder”. (See Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149) (noting that a “purported [monetary] interest does not go to legal title or possession of the subject property”); see CCP § 405.30.) ...

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