1

2008-71348

Avalon at Newport LLC vs. Priess

1)     Cross-Defendant Avalon at Newport LLC’s Demurrer to Cross-Complainants’ Cross-Complaint

Moot in part and sustained in part.   The demurrer is sustained with 10 days leave to amend as to all three causes of action alleged by Ms. Fiedler.  1^st c/a (breach of contract);  demurrer is sustained on the ground that Ms. Fiedler has not alleged sufficient facts to establish that she is a party to the contract and thus entitled to sue for breach.

2^nd c/a (fraud):  demurrer is sustained with leave to amend on the ground that Ms. Fiedler has failed to allege any misrepresentation that was made to her or otherwise allege any of the other elements of this cause of action with the required level of specificity.

3^rd c/a (intentional tort): sustained with leave to amend on the ground that it cannot be determined from the pleading what this cause of action is intended to be. If intentional infliction of emotional distress, it has not been adequately alleged.

2)      Cross-Defendant Avalon at Newport LLC’s Motion to Strike re Cross-Complainants’ Cross-Complaint

Granted in part and moot in part.   The Motion of cross defendant Avalon Newport, LLC dba Avalon at Newport East tot Strike the Cross Complaint is granted in part with 10 days leave to amend and moot in part.

The motion is granted with 10 days leave to amend as to all claims asserted on behalf of Mr. Priess.  A pleading must be signed by the party himself or a licensed attorney.  Mr. Priess has not signed the Cross Complaint and Ms. Fiedler ahs not shown that she is a licensed attorney.  Such a   Cross Complaint not filed in conformity with the laws of the State of California must be stricken.

The remainder of the motion to strike is moot in light of the ruling on the demurrer and the other portion of this motion.

Cross defendant is to give notice.

2

07CC03012

Bondcorp Realty vs. Living Water

Plaintiff Bondcorp Realty Services, Inc’s Motion to Quash Defendant Living Water Lending, Inc’s Subpoena; and Request for Sanctions Against Defendant Living Water Lending Inc and It’s Counsel The Law Offices of Spile, Siegal, Leff & Goor, LLP

             OFF CALENDAR PER MOVING PARTY

3

05CC13580

Bournazian vs. McKay

1)        Defendant and Cross-Complainant Taylor Morrison of California LLC’s Demurrer to Second Amended Complaint

Sustained.   Defendant and Cross-Complainant Taylor Morrison of California LLC’s Demurrer to the 1^st, 2^nd, 3^rd and 4^th causes of action of the Second Amended Complaint is sustained with leave to amend on the ground of failure to state a cause of action.  No legally cognizable basis for defendant’s duty to plaintiff’s is alleged.  Further, no facts are alleged indicating how defendant induced plaintiffs to rely upon any representations it made.  Finally, plaintiffs may have no standing to bring this action, since the defects sued upon caused actual and appreciable damage to the property before they acquired it.  To the extent the allegations do not distinguish between defects that had become apparent before purchase and those that only became apparent after the Second Amended complaint is uncertain.

Plaintiff is granted 10 days leave to amend.  Moving party is to give notice.

2)        Defendant and Cross-Complainant Taylor Morrison of California LLC’s Motion to Strike Portions of Second Amended Complaint

Moot in light of the ruling on the demurrer.

4

07CC09484

Cardlock Fuels vs. Kitsia’s Transports

1)        Plaintiff Cardlock Fuels System, Inc’s Application and Hearing For Right to Attach Order and Writ of Attachment as to Kitsia P Guardado aka Kitisia Guardado and Katsia Guardado

Grant.  See below.

2)        Plaintiff Cardlock Fuels System, Inc’s Application and Hearing For Right to Attach Order and Writ of Attachment as to Kitsia’s Transports, Inc.

Grant.   The applications by plaintiff Cardlock Fuels Systems, Inc. for Right to Attach Orders and Orders for Issuance of Writ of Attachment after hearing are granted.  The court finds that plaintiff has a right to attach property of defendants Kitsia’s Transports, Inc. and Kitsia Guardado.  CCP 483.010 and 484.090(a).  The court orders that a writ of attachment in the amount of $66,864.96 shall issue against each defendant, upon plaintiff’s filing of an undertaking in the amount of $10,000 per application for property owned by each defendant.

Moving party is to give notice.

5

07CC11599

Continental Express vs. Calvo

Plaintiff Continental Express Money Order Co Inc.’s Motion for Terminating Sanctions Against Santiago Calvo for Refusal to Comply with Court Ordered Discovery; and Request for Monetary Sanctions

Grant in part.   Plaintiff Continental Express Money Order Co. Inc.’s Motion for Terminating Sanctions Against Santiago Calvo for Refusal to Comply with Court Ordered Discovery is granted.  The court notes that no opposition was filed.  The court finds that defendant Santiago Calvo has failed to comply with the court’s 6-17-08 order to provide further discovery responses.  Accordingly, the court orders that defendant’s Answer, filed on 1-8-08 is hereby stricken and his default entered.  CCP 2023.010(g), 2023.010(d)(4).  The request for monetary sanctions is denied.

A default prove up hearing is set for 10-28-08 at 9 am.

Moving party is to prepare the proper order and to give notice.

6

2008-101413

Credit Foundation vs. Consumers Alliance

1)      Plaintiff Credit Foundation of America’s Motion for Appointment of Limited Purpose Receiver and/or the Issuance of a Preliminary Injunction

See below.

2)     Plaintiff Credit Foundation of America’s Motion for the Issuance of a Preliminary Injunction

-- The request for judicial notice by plaintiff Credit Foundation of America is granted, to the extent that the court takes judicial notice of the fact that the articles were published, and that the documents were filed in their respective actions, but not of the truth of their contents.  The request for judicial notice by defendants Consumer Alliance Processing Corporation, Walter Villaume, Todd Rodriguez, and Jo Ann Niffenegger is denied.

The motion for appointment of limited purpose receiver, or in the alternative, for preliminary injunction is denied.  Moving party has not demonstrated a probability of prevailing on the merits or that monetary damages are inadequate.

Defendants are to give notice.

7

07CC12070

DCFS Trust vs. Seho OHM

Plaintiff DCFS Trust’s Writ of Possession

Deny without prejudice.   Motion by plaintiff for writ of possession against defendant for possession of a 2007 Mercedes-Benz S550 Sedan VIN#WDDNG1X27A077677 is denied without prejudice.  Plaintiff failed to present admissible evidence to support the writ of possession and therefore failed to establish the probable validity of plaintiff’s claim to possession of the vehicle.  The declaration of Jennifer Coleman fails to meet the requirements of Evidence Code 1271, the business records exception to the hearsay rule, specifically subsections (c ) and (d).  The copy of the Lease Agreement attached as Exhibit A is a poor and illegible copy due to the extremely small print and a portion of the agreement is copied upside down over a different portion of the agreement such that the entire agreement is not copied or readable.

Plaintiff is to give notice.

8

07CC04496

Enson vs. Anaheim NWT Inc

Defendant New World Fabrication and Installation Inc.’s Motion For Leave to File Cross-Complaint

Grant.   Defendant New World Fabrication and Installation, Inc.’s motion for leave to file a cross complaint is granted.  Moving party shall file an executed original of the proposed cross complaint with the court within 3 days.  Opposing party has failed to show that the moving party has acted in bad faith. The issues raised in the cross complaint are simple and should not cause delay in the trial currently set for 10-20-08.  Moving party has attached the proposed cross complaint as an exhibit to the moving papers rather than lodging it.  Therefore another original must be filed with the court.  The cross complaint is deemed served upon all parties who have appeared herein. 

Moving party is to give notice.

9

2008-105460

Estate of Thomas Boyd vs. Asaad

Defendants Garden Grove Hospital and Medical Center and Tenet Healthcare Corporation’s Demurrer to Plaintiffs’ First (Original) Complaint

Sustain in part and overrule in part.   Defendants Garden Grove Hospital and Medical Center and Tenet Healthcare Corporation’s Demurrer to Plaintiffs’ First (Original) Complaint is sustained in part and overruled in part as follows.  1^st c/a (elder abuse):  sustained.  Plaintiffs fail to allege conduct rising to the level of elder neglect as opposed to professional negligence.  4^th c/a (negligence per se):  sustained.  Plaintiffs fail to allege any statute or regulation that was purportedly violated by defendants and plaintiffs fail to allege the required elements of negligence per se cause of action.  See Evidence Code 669.  6^th c/a (negligence):  overruled.  Moving parties lack standing to challenge this c/a which is only pled against Doe defendants;  moving parties are named defendants.

Plaintiffs are granted 15 days leave to amend.  Moving parties are to give notice.

10

2008-108500

Fuentes vs. Mulan Express, Inc

Defendants Mulan Express, Inc dba Mulan Express Chinese Food, and Leanne Muy Ung’s Demurrer to Complaint

Sustain in part and overrule in part.   Defendants Mulan Express, Inc dba Mulan Express Chinese Food, and Leanne Muy Ung’s Demurrer to Complaint is sustained with 10 days leave to amend as to the 2^nd cause of action (fraud) only.  Plaintiff has not approached the level of specificity required for fraud, especially as to a corporate defendant.  The demurrer to the other causes of action is overruled. Some objections are more appropriately addressed in a motion to strike or summary judgment.

Defendants are to give notice.

11

07CC09348

Herman Weissker Inc vs. City of Santa Ana

Defendant City of Santa Ana’s Motion for Leave to File Cross-Complaint

Grant.  Defendant’s motion to file a compulsory cross complaint is granted.  No opposition was filed. Moving party appears to have acted in good faith.   Defendant is to submit an original copy of the proposed cross complaint to the court for filing within 5 days of this ruling.  The proposed pleading was attached as an exhibit rather than lodged as required.  Parties served with the motion are deemed served with the cross complaint.  Responsive pleading is due pursuant to the code.

Moving party defendant s to give notice.

12

07CC11879

Marquez vs. Michelin North America Inc

1)        Defendant Nissan North America, Inc’s Motion to Compel Plaintiff Carmen Marquez’ Further Responses to Special Interrogatories (Set One); and Request for Sanctions in the Amount of $1,093.00

Grant.  Defendant Nissan North America, Inc’s Motion to Compel Plaintiff Carmen Marquez’ Further Responses to Special Interrogatories (Set One) is granted.  Plaintiff’s responses that she will supplement her responses is inadequate.  Plaintiff Carmen Marquez is ordered to serve verified further answers to Special Interrogatory Nos. 22, 23, 26, 33, 50, and 52, within 15 days of service of this ruling.  See below re sanctions.

2)        Defendant Nissan North America, Inc’s Motion to Compel Plaintiff Carmen Marquez’ Further Production to Demand for the Production Of Documents and Tangible Things (Set One); and Request for Monetary Sanctions in the Amount of $1,093.00

Grant.  Defendant Nissan North America, Inc’s Motion to Compel Plaintiff Carmen Marquez’ Further Production to Demand for the Production Of Documents and Tangible Things (Set One) is granted.  No privilege logs were served.  Further, plaintiff fails to state whether she has any of the responsive documents.  Plaintiff Carmen Marquez is ordered to serve further responses to Document Request Nos. 1,3,9,10,11,15 and 16 within 15 days of service of this ruling. 

The requests for sanctions are granted in the combined total amount of $1,376.  Plaintiff is ordered to pay said sanctions to defendant’s attorneys within 30 days of service of this notice of ruling.

Defendant is to give notice.

13

07CC07702

Mitchell vs. Fidelity Construction

Defendants Fidelity Construction Plumbing, Inc and Swinerton Builders’ Motion for Summary Judgment or in the Alternative For Summary Adjudication

Grant in part and deny in part.  

     Plaintiffs’ Objections to the declaration of David Wilburn are sustained with regard to paragraph 7 of the declaration.  The remainder of the objections are overruled.

     Numerous objections were interposed to facts presented in the parties’ separate statements.  The court declines to rule on these because they are not properly made I the Separate Statement itself.

     Defendant’s Motion for Summary Judgment is granted in part and denied in part.

     Triable issues of material fact remain as to each of the causes of action set forth below:

     Summary adjudication of the First Cause of Action for negligence against Fidelity is denied.  Triable issues of material fact exist with regard to whether a special employment relationship existed between it and plaintiff Sean Mitchell on the date of the accident. While evidence and reasonable inferences support the existence of a special employment relationship, evidence submitted by both Fidelity and plaintiff, and the reasonable inferences that may be derived from it, negate the existence of a special relationship.  Since the issue must be decided by the trier of fact, Fidelity has not established Sean Mitchell’ exclusive remedy is workers’ compensation.

     Because the cause of action fro negligence remains against Fidelity, summary adjudication of Lisa Mitchell’s loss of consortium claim, the Second Cause of Action, is also denied as to Fidelity.

     Summary adjudication of the First Cause of Action for negligence against defendant Swinerton is granted.  Under the holding in Hooker v. Department of Transportation (2002) 27 Cal 4^th 198, Swinerton owed no duty to Sean Mitchell unless it affirmatively contributed to his injuries.  This requires something more than the retention of general control of site safety.  Swinerton has met its burden of producing evidence that nothing more than general oversight occurred.  Plaintiff has offered evidence establishing nothing more than retention of the general right of oversight.  Plaintiff has offered no evidence that any action by Swinerton affirmatively contributed to his injury.

     Because the cause of action for negligence is disposed of against Swinerton, summary adjudication of Lisa Mitchell’s loss of consortium claims, the Second Cause of Action, as against Swinerton is also granted.

Moving parties are to give notice and to prepare the proper orders.

14

2008-105364

McDaniel vs. Bauser

1)        Plaintiff and Cross-Defendant Nichole M. McDaniel’s Demurrer to Cross-Complaint of Glen Allen Bauser, Jr.

See below.

2)        Plaintiff and Cross-Defendant Nichole M. McDaniel’s Motion to Strike Portions of Cross-Complaint of Glen Allen Bauser, Jr.

Continued by the court to 9-30-08 due to defective service.   The proofs of service on both the demurrer to the cross complaint and the motion to strike are defective.  The moving papers were served to cross complainant at 24292 El Pilar, Laguna Niguel, CA  92677.  However, defendant and cross complainant Glen Allen Bauser, Jr.’s address of record as reflected on both the answer to the complaint and his cross complainant is P.O. Box 4552, Mission Viejo, CA  92690.  The court also notes that no oppositions have been filed to either motion.  Therefore, the court hereby continues the hearing on the demurrer to the cross complaint and the motion to strike to 9-30-08 in order for moving party to serve the moving papers to the correct address.  The proof of service and notice of continued hearing date are to be filed with the court by 8-29-08.

Moving party is to give notice.

15

06CC11540

Petro-Diamond vs. Steadfast

1)        Plaintiff Petro-Diamond Inc.’s Motion for Leave to File First Amended Complaint

Continued to 09-23-08 per moving party

16

2008-102306

Parrott vs. Baker

Defendant Lawrence McCoy Baker’s Demurrer to First Amended Complaint

Sustain in part and overrule in part.   Defendant Lawrence McCoy Baker’s Demurrer to First Amended Complaint is sustained in part and overruled in part as follows.  Demurrer to entire first amended complaint is overruled.  3^rd c/a (concealment):  overruled.   Plaintiff has sufficiently pled a c/a for fraud based on concealment.  6^th c/a (negligence):  sustained with leave to amend on grounds of failure to state a c/a and uncertainty.  Plaintiff failed to allege that defendant Baker owed plaintiff a legal duty of due care.  All requests for sanctions are denied.  Defendant’s request for judicial notice is denied.

Plaintiff is granted 10 days leave to amend.  Moving party is to give notice.

17

07CC02510

Snyder vs. Irvine Company

Defendants The Irvine Company LLC and Irvine Community Development Company LLC’s Motion for Summary Judgment or, in the Alternative, for Summary Adjudication

--  Plaintiff has met the requirements of CCP 437c(h).  A continuance of the hearing of this motion is necessary to allow plaintiff to complete discovery necessary to oppose this motion.  In light of the approaching trial date the court is inclined to continue this motion to September 23, 2008.

Moving parties are to give notice.

18

2008-104408

Touchstone Home Products vs. Rectivity

1)        Plaintiff Touchstone Home Products, Inc’s Motion to Compel Responses to Discovery or in the Alternative to Compel Further Responses to Discovery as to Requests for Production

See below.

2)        Plaintiff Touchstone Home Products, Inc’s Motion to Compel Responses to Discovery or in the Alternative to Compel Further Responses to Discovery as to Special Interrogatories (Set One)

      See below.

3)        Plaintiff Touchstone Home Products, Inc’s Motion to Compel Responses to Discovery or in the Alternative to Compel Further Responses to Discovery as to Form Interrogatories; and for Sanctions

Continue.   The Motion of Plaintiff Touchstone Home Products, Inc. to compel defendant Reactivity, Inc to provide further responses to form interrogatories, special interrogatories and document requests is continued by the court to Thursday, October 16, 2008 at 2pm in C-7.

Counsel for both parties are hereby ordered to engage in further meet and confer discussions as set forth below.  There must be verbal discussions by counsel knowledgeable about the case with the authority to make agreements regarding the discovery.

Counsel shall discuss what is needed in this particular case to designate the trade secrets at issue with reasonable particularity.  So far, neither side has presented sufficient evidence to enable the court to determine what constitutes reasonable particularity regarding each of the four identified trade secrets.  For example, the declarations of counsel are not sufficient to enable the court to determine whether there are characteristics of Plaintiff’s lift that differentiate it from other lifts in the industry.  Similarly, the declarations of counsel are insufficient to establish whether specified components such as “IR Repeater” and “RS 232 Integration” are “off-the shelf components.”  Expert declarations are not necessarily required, but the Court does need information from people knowledgeable about the relevant industry. 

Counsel also must meet and confer regarding which specific discovery requests defendant must respond to regardless of the adequacy of the trade secret designation.  As plaintiff points out, there are aspects of plaintiff’s unfair business practices claim that do not “relate to the trade secrets” at issue.  Defendant must respond to such discovery regardless of the adequacy of the trade secret designation.

Counsel are ordered to renew their meet and confer discussions no later than 9/3/08 and complete them by 9/19/08.  If all issues are not resolved thru the meet and confer conferences, plaintiff is ordered to file and serve a supplemental brief and evidence by 9/29/08.  Defendant is ordered to file and serve a supplemental brief and evidence by 10/6/08.  These supplemental briefs shall identify the specific requests still at issue, the adequacy of the most current version of the trade secret designation, and present sufficient evidence to enable the court to resolve any remaining dispute regarding the adequacy of the designation.  The briefs shall not exceed 10 pages, exclusive of declarations and other supporting evidence.

Plaintiff is to give notice.