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2020.08.20 Motion to Compel Contractual Arbitration, Stay Remaining Portion 448
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.08.20
Excerpt: ...which included a standard form arbitration clause. Although plaintiff alleges she neither saw, nor knew of, the arbitration clause, there is no question about its presence. On 02/05/13, after amassing 27,964 miles, plaintiff obtained some warranty work relating to the WIN module. That fix was apparently successful. On 06/11/15, with 69,646 miles on the odometer, plaintiff obtained additional warranty work relating to the cooling system and altern...
2020.08.13 Motion to Quash Personal Service of Summons and Complaint 598
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.08.13
Excerpt: ...d, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the...
2020.08.13 Motion for Judgment on the Pleadings 403
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.08.13
Excerpt: ... 3rd COA: negligent undertaking;  4th COA: intentional interference with prospective economic advantage;  5th COA: negligent interference with prospective economic advantage;  6th COA: slander of title. LEGENDS previously attacked all four causes of action in an unsuccessful motion for summary judgment, and another unsuccessful oral motion for judgment on the pleadings. Plaintiff argues that the pending motion is simply a defective mo...
2020.08.13 Motion to Set Aside Default 183
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.08.13
Excerpt: ...her proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) The moving party bears the burden of proving that he or she is entitled to relief under CCP § 473(b). If an “attorney affidavit of fault” is filed, this burden is met since relief is mandatory. However, absent such affidavit, the moving party's evidence must preponderate as to the claimed “mistake, surprise,...
2020.08.06 Demurrer 898
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.08.06
Excerpt: ...triking his bicycle with her minivan. He sustained serious injuries that appear to have had a lasting impact. On 09/27/18, Francisco caused to be filed a civil action for damages (case no 2018- 01021903) arising out of the above-referenced roadway incident against Geraldine (driver) and Michael (owner). Shortly after filing the parties reached a settlement. Geraldine and Michael agreed to pay Francisco $100,000 (which was their GEICO policy limit...
2020.08.06 Demurrer 128
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.08.06
Excerpt: ...o such cause of action (CCP § 430.30(a)) and that the pleading is uncertain (CCP § 430.10(e)). Patrick also demurs to the second cause of action for Conspiracy to Commit Fraudulent Transfers on the bases that it does not state facts sufficient to constitute a cause of action and the pleading is uncertain. CCP §§ 430.10(e) and (f). A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to...
2020.07.30 Motion to Strike or Tax Costs 408
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.30
Excerpt: ...e properly verified costs memorandum. Plaintiff is only required to submit proof of the claimed costs after a proper objection is made. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) Thus, the court DENIES the motion to strike plaintiff's entire costs memorandum. The court finds that plaintiff's CCP § 998 offer (“998 Offer”) is valid and enforceable, and that defendant failed to obtain a more favorable judgment than the 998 Offer. De...
2020.07.30 Demurrer 657
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.30
Excerpt: ... third cause of action for Unfair Business Practices (Cal. Bus. & Prof. Code § 17200 et seq.) on the basis that they do not state facts sufficient to constitute the causes of action. CCP §§ 430.10(e). 1) COA #2 – Breach of Implied-In-Fact Contract for Post-Stabilization Services “An implied contract is one, the existence and terms of which are manifested by conduct.” Civ. Code § 1621. “For an implied-in-fact contract, a plaintiff must...
2020.07.30 Demurrer 130
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.30
Excerpt: ...tion Services, and the third cause of action for Unfair Business Practices (Cal. Bus. & Prof. Code § 17200 et seq.) on the basis that they do not state facts sufficient to constitute the causes of action. CCP §§ 430.10(e). 1) COA #2 – Breach of Implied-In-Fact Contract for Post-Stabilization Services “An implied contract is one, the existence and terms of which are manifested by conduct.” Civ. Code § 1621. “For an implied-in-fact cont...
2020.07.23 Motion to Recover Attorney Fees 772
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.23
Excerpt: ...ey fees based upon the nonpayment of what might constitute “wages” under the law. The outcome of this litigation was mixed: Palo technically prevailed on its misappropriation claim, but received from the jury what could only be described as a token “People's Court” victory - $4,352.00 for losses associated with unproductive employee time digging around. However, more importantly, Palo successfully defeated most of Cannivet's claims, inclu...
2020.07.23 Demurrer, Motion to Strike 797
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.23
Excerpt: ...Jet was one of the first companies to mass produce direct to garment printing. AnaJet sold printers equipped with Ricoh inkjet printheads. On or about 04/30/12, plaintiff Christopher Lima – dba Island Puzzle – acquired from AnaJet, LLC a new 2012 mPower Printer with accessories, serial number R2737. Plaintiff paid $24,145.00. (Although plaintiff is not making claims associated with this printer, for reasons only plaintiff could know, it conti...
2020.07.16 Demurrer 109
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.16
Excerpt: ... fn. 2). As noted by Plaintiff, “[s]imply because information is on the Internet does not mean that it is not reasonably subject to dispute.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 disagreed with on other grounds in Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 67). While the Complaint alleges Plaintiff was behind the LA Fitness gym located at 29400 Portola Parkway, Lake Forest, CA 92630,” and...
2020.07.02 Demurrer 633
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.02
Excerpt: ...rits since it appears unlikely that requiring the parties to meet and confer would resolve the issues raised in the demurrer. Page Limits: Cross-Complainant correctly objects that Cross-Defendants exceeded the 15- page limit for a supporting memorandum. (Cal. R. Ct. 3.1113(d).) Since the excess pages contain the conclusion and signature, the court will consider the entire memorandum in support. Judicial Notice: In support of their demurrer and mo...
2020.07.02 Motion to Unseal Confidential Report 506
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.02
Excerpt: ... unseal a “confidential report” filed in the underlying criminal case. This is NOT a motion to compel someone to produce a copy of that report, but merely a request to lift a seal. The precise nature or content of this report is unclear, but according to plaintiff is contains details of what Bassinne allegedly did to plaintiff. By process of elimination, this Court surmises that plaintiff must be referring to the presentencing psychosexual ev...
2020.07.02 Motion to Enforce Settlement 109
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.07.02
Excerpt: ...d written notice of this hearing to the Plaintiff/MP (see Register of Action #46), but where the Defendants/RPs have not appeared in the case, the notice of hearing should have been imparted to them by the moving party for purposes of this motion. (CCP § 1005.) In addition, the Motion should be served by something other than electronic service. (see Register of Action # 37). While “notices” under the apparent settlement agreement, can be giv...
2020.03.05 Motion to Set Aside and Vacate Both Default Judgment, Entry of Default 403
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.03.05
Excerpt: ... to notice these omissions and did anything about it and what was a junior lien became a senior lien that a subsequent foreclosure didn't extinguish. Before the Court this day is defendant Escrow Legends' (hereinafter ELI) motion to set aside and vacate a default judgment recently entered against it. On 04/27/17, plaintiff filed her Second Amended Complaint. While there were no charging allegations directed at ELI, as a “doe” defendant ELI wa...
2020.03.05 Motion to Recover Statutory Attorney Fees 772
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.03.05
Excerpt: ...ey fees based on the nonpayment of wages. The jury in this case awarded Palo $4,352.00 for misappropriation. The jury separately awarded Cannivet $355,455.00 as damages for the two cross-claims resolved in his favor: breach of contract and quantum meruit. The jury did not distinguish between the two, presumably concluding that whether it was based on a clear contractual obligation or a reasonable totality of the circumstances, Cannivet was entitl...
2020.03.05 Demurrer, Motion to Strike, for Protective Order 290
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.03.05
Excerpt: ...e Demurrer is SUSTAINED as to each of those three COAs. COA 1: COA 1 asserts a claim for Dependent Adult Neglect under Welfare and Institutions Code § 15600 et seq. The elements of such a claim include denial or withholding of goods or services necessary to meet the individual's basic needs. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 406-07.) The facts constituting the neglect and establishing the causal link to...
2020.03.05 Demurrer 633
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.03.05
Excerpt: ...terials Co. (1981) 123 Cal.App.3d 593, 604.) Plaintiff can avoid the effect of earlier admissions by including in the complaint a satisfactory explanation why the earlier admissions are incorrect. Absent such explanation, however, the self-destructive allegations in the earlier pleading or discovery response are “read into” the complaint, and allegations inconsistent therewith treated as sham and disregarded. (Owens v. Kings Supermarket (1988...
2020.02.27 Motion to Strike Complaint 304
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.02.27
Excerpt: ..., 88-89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733. “Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” Navellier, supra, 29 Cal. 4th at 89. In order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have “'...
2020.02.27 Motion for Preliminary Injunction 606
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.02.27
Excerpt: ...lding themselves out or their offices out as plaintiff's new offices or otherwise as successors to plaintiff; and 3. Using business names that include “Focus Financial”. Defendant Williams' objections to paragraphs 3, 4, 10, 12, 19, 21, 23, 31, 32, 33, and 34 of the Cho Declaration are OVERRULED, and the objections to paragraphs 13, 14, 15, 16, 17, 22, 25, 26, 27, 28, 29, and 30 of the Cho Declaration are SUSTAINED. Although the court has bro...
2020.02.27 Demurrer, Motion to Strike 613
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.02.27
Excerpt: ... and declaratory relief. Cross-defendants demur to all six causes of action. Cross-defendants also move to surgically excise a number of averments within the operative pleading pertaining to the underlying agreements between the parties. Initially, this Court notes that the First Amended Cross-Complaint is narrowly-tailored, consuming a relatively scant nine pages. The essential facts are set forth clearly, and with adequate precision to acquaint...
2020.02.27 Demurrer 240
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.02.27
Excerpt: ... days leave to amend. Alter Ego Allegations: “ ‘Before the acts and obligations of a corporation can be legally recognized as those of a particular person, and Vice versa, the following combination of circumstances must be made to appear: First, that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of the said person and corpor...
2020.02.20 Demurrer, Motion to Strike 540
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.02.20
Excerpt: ... 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 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...
2020.02.06 Motion to Strike Operative Pleading 308
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2020.02.06
Excerpt: ...torney's annual salary. On 06/10/19, defendant formally retained/employed a candidate presented by plaintiff. Based on that candidate's salary, plaintiff was entitled to a finder's fee in the amount of $27,750.00. Plaintiff sent an invoice for payment, to no avail. Plaintiff followed up with numerous telephone calls and emails, all to no avail. Finally, plaintiff requested a substantive explanation for the refusal to make good on the agreement, t...

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