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2019.10.10 Demurrer, Motion to Strike 797
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.10.10
Excerpt: ...ff “doing business as Island Puzzles.” However, the balance of the operative pleading refers to plaintiffs (plural) as if there are two distinct plaintiffs. However, DBAs are not separate parties or legal entities. See Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 701; Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348. Thus, it seems that the only proper plaintiff here is Mr. Lima. Second, identifying the proper plainti...
2019.10.10 Demurrer 240
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.10.10
Excerpt: ...t/Cross-Complainant Carlos Velazquez (“Velazquez”) is written, oral or implied. As such, the special demurrer to the first cause of action is SUSTAINED, with leave to amend. The demurrer to the second cause of action for an accounting is OVERRULED. To state a cause of action for an accounting, a party need only plead: (1) A fiduciary relationship or other circumstances appropriate to the remedy; and (2) A balance due from the defendant to the...
2019.10.10 Demurrer 028
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.10.10
Excerpt: ...ng any confidential, fiduciary or other relationship between Plaintiff and State Farm that would give rise to any duty of care by State Farm. As such, the Complaint fails to support any of the elements necessary to state a prima facie claim for motor vehicle negligence or general negligence against State Farm. Similarly, Plaintiff fails to state a prima facie claim for fraud against State Farm. The elements of an action for fraud based on conceal...
2019.1.31 Motion to Compel Further Responses 752
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.1.31
Excerpt: ... resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.) A reasonable and good faith effort at informal resolution, “entails something more than bickering” with opposing counsel. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438-39.) A respected treatise provides the following guidance and practice tip: “PRACTICE POINTERS RE ‘RE...
2019.1.31 Demurrer 934
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.1.31
Excerpt: ... 6. As for the claims asserted by Lab, Plaintiffs argue in the Opposition that Lab may not demur on the merits, as the claims as to Lab are entirely derivative. Plaintiffs are correct that in a derivative action, the entity generally cannot defend on the merits. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1005.) However, the Complaint as presented also appears to be asserting claims against LAB directly. (See e.g. COA 1, asserted “...
2019.1.31 Demurrer 322
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.1.31
Excerpt: ...rmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The particularity requirement necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. (Tarmann, supra, 2 Cal.App.4th at 157.) Here, the fraud claim basically repeats the contract claim, with conclusory statements added as to Defendant's concealed intent. But no facts are alleged to support the conclusory assertions...
2019.1.31 Demurrer 004
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.1.31
Excerpt: ...nt debtor (Wecosign) has already declared bankruptcy – and it is not clear if the judgment against Wecosign survived discharge. The judgment against Frank was already set aside, so there could be no fraudulent conveyance associated with him. Moving party correctly argues that the SAC is uncertain as to him because there are no facts showing how Kinum helped defendants hide assets, and no clear averment of any enforceable judgment from which to ...
2019.1.24 Motion to Continue 004
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.1.24
Excerpt: ...cult to discern when held to the light of this long-standing dispute, the parties are incapable of resolving their own impasses. Discovery Impasse. On 06/12/15, plaintiff and defendant Tara Jakubaitis (hereinafter referred to as “Tara,” with no disrespect intended, to distinguish her from her co-defendant husband Frank Jackubaitis) appeared here in Court to discuss appointment of a discovery referee. Tara had previously preferred Hon. Nancy W...
2019.1.24 Motion for Further Responses 545
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2019.1.24
Excerpt: ...andings. Before the Court this day are numerous discovery motions filed by plaintiffs, seeking further responses to written discovery. At issue is whether the responses previously provided are good enough to satisfy the substantial compliance litmus. General Form Interrogatories No. 2.1 (to Dawn Tucker only). GRANTED. Plaintiffs are correct that defendant failed to response to the subparts. No. 12.1. GRANTED. The term INCIDENT – at least as def...
2018.8.9 Application for Right to Attach Order 876
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.9
Excerpt: ...as to defendant RRE. Among other things, Plaintiff must demonstrate that attachment is sought on a contract claim for a fixed or readily ascertainable amount. (C.C.P. §483.010(a).) Plaintiff here has asserted a claim for $4,000,000, without any evidentiary support, and without demonstrating any contractual basis for that claim. That requirement is thus clearly not met. Plaintiff must also establish the probable validity of the claim upon which t...
2018.8.9 Motion to be Relieved as Counsel 525
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.9
Excerpt: ...d to the main action or cross-action. The Court also noticed the following: in the caption of Answer to the Cross-Complaint, filed by Moving Solutions Inc. and the Philpotts on 12/22/17, there is a second law firm, Employment Rights Attorneys LLP. Will this law firm continue to represent the clients in the cross-action? The Court expects this matter to be clarified at the hearing. The Court also expects clarification about whether the entire law ...
2018.8.9 Motion to Bifurcate 928
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.9
Excerpt: ...avoid prejudice, for convenience, or to permit greater expedience and economy: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury." In addition, C...
2018.8.9 Motion to Compel Depositions, for Monetary Sanctions 108
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.9
Excerpt: ...ap, the separate motions directed at each plaintiff will be treated together. On 02/14/18, this Court entered stipulated orders akin to CCP §2032.320 that plaintiffs were no longer seeking damages for extraordinary emotional or mental injuries. In particular, plaintiffs waived psychiatric injury (original or exacerbated) and agreed not to claim any mental health services/therapy resulting from the fall. As a result, plaintiffs have sought to wit...
2018.8.9 Motion to Coordinate Present Action 575
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.9
Excerpt: ...ide action, which is available on the official website of the Riverside Superior Court, using the free public-access, case search feature, see http://public- access.riverside.courts.ca.gov/OpenAccess/Civil/CivilCaseReport.asp?CourtCode=A&RivInd= RIV&CaseType=RIC&CaseNumber=1807364 as of August 3, 2018, and Evid. Code § 452(d), (h).) The Court agrees that Greenfield Communications Inc.'s 1st cause of action in the Riverside case, for breach of co...
2018.8.2 Motion to Compel Further Responses
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.2
Excerpt: ...-10. However, although Plaintiff has served substantive supplemental responses to FROGs and SPROGs, they were served after the respective motions to compel were filed. Pursuant to C.C.P. § 2030.300(d), sanctions are mandatory. After reviewing the declarations and evidence provided by the parties, the Court has not found substantial justification or other circumstances make the imposition of the sanction unjust. Id. Therefore, the Court awards sa...
2018.8.2 Motion to Compel Depositions
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.2
Excerpt: ...tions to Compel the deponents, Christine Kasulka, and William Gallahar to appear for their depositions. The dates shall be selected at the hearing and counsel shall be prepared to do so. The Court was not persuaded from the evidentiary showing in the Opposition papers that the principles of Liberty Mutual insurance apply, that is, of the need to limit the depositions of high-level “apex” officers of the companies. There was no evidentiary sho...
2018.8.2 Motion for Summary Judgment, Adjudication
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.2
Excerpt: ...intiff for neck surgery. Plaintiff contends this was bad faith, and filed suit for breach of the implied covenant. Before the Court this day is a motion by defendant seeking summary judgment on the sole cause of action for breach of the implied covenant of good faith and fair dealing. Alternatively, defendant separately seeks adjudication as to punitive damages and Brandt fees. On 10/17/12, plaintiff underwent an anterior cervical discectomy and ...
2018.8.2 Motion for Summary Judgment
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.2
Excerpt: ...e does not have it now and the procedures he intends to use to obtain that evidence. Plaintiff therefore is entitled to a mandatory continuance under Code of Civil Procedure section 437c (h). The plaintiff has established that there is a likelihood that Jeff Shuman has evidence which may controvert the issues presented in the defendant's motion for summary judgment and that such evidence is essential to plaintiff's opposing of the defendant's mot...
2018.8.2 Demurrer, Motion to Strike
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.2
Excerpt: ...ties: Fraud based causes of action require the plaintiff allege “how, when, where, to whom and by what means the representations were tendered. Stansfield v. Starkley (1990) 220 Cal. App. 3d 59, 74. The parol evidence rule provides that the terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein may not be contradicted by evidence of a prior agreement or of a conte...
2018.8.2 Demurrer 871
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.2
Excerpt: ... did not oppose the County's demurrer to this porti o of their seventh cause of action and have submitted no argument on the iss u in their briefs on appeal. Accordingly, we deem plaintiffs to have abandon e the issue.”). Additionally, the court construes the absence of a memorandu m as waiver of all grounds not supported. CRC 3.1113(a). ...
2018.8.2 Anit-SLAPP Motion, to Quash
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.8.2
Excerpt: ...uding the dismissed causes of action) appears to arise from the type of constitutionally protected speech and petition activity protected by Code Civ. Proc., § 425.16. However, Defendants/Cross- Complainants (“Defendants”) have properly alleged a legally sufficient cause of action for breach of contract, and have establishes a probability of Defendants prevailing on the claim of breach of contract by way of the contracts attached to the Cros...
2018.7.26 Motion to Compel Production 883
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.7.26
Excerpt: ...acts as Admitted (“Motions” together), are Granted. Plaintiffs Harry J. Brown III, and Patricia S. Brown are each hereby ordered t serve substantive responses, without objections, to the discovery reques t attached to the Motions no later than 15 days following the hearing on th matter. See, C.C.P. §§ 2030.290, 2033.280, and 2031.300. Additionally, although the Court recognizes that Plaintiffs' attorney David L Smart's illness, and the sudd...
2018.7.5 Motion to Strike 769
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.7.5
Excerpt: ...lowing, assisting, conducting, permitting, or in any way granting authority to make any use of the Property, or any other location in the City of Huntington Beach, to dispense or distribute marijuana and/or any products containing marijuana;..” (Proposed Order, 2:14-17) It should read: The Court granted Plaintiffs preliminary injunction prohibiting “Leasing, renting, allowing, or in any way granting authority to make use of the premises at 81...
2018.7.5 Motion for Summary Judgment 185
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.7.5
Excerpt: ...ty. The defendant has established that she propounded written discovery upon the defendant requesting all facts, witness, and documents supporting plaintiff's contentions that defendant was at fault or responsible for plaintiff's claims. UMF #11-14. In response, the plaintiff provided no witnesses or documents and no facts beyond the conclusory statements from her com-plaint. UMF #4, 5, 11, 13 and 14. The plaintiff provided no facts support a con...
2018.7.5 Demurrer 360
Location: Orange County
Judge: Howard, Theodore R
Hearing Date: 2018.7.5
Excerpt: ...ritten, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance or excuse for failure to perform, (6) defendant's breach, and (7) damage. Civil Code §§ 1550, 1605; Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453; Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 525. Precision or in ...

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