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2018.12.14 Motion for Summary Judgment, Adjudication 380
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.14
Excerpt: ...gement of fees is denied. Summary adjudication as to the third cause of action for breach of fiduciary duty is granted. Defendants' motion for summary judgment/adjudication as to the cross‐complaint is denied. The requests of plaintiffs Johnny L. and Mary E. Moore for sanctions, both under Code of Civil Procedure section 128.7 and for the late‐filed Exhibits O and P, are denied. I. Procedural Issues Plaintiffs' memorandum of points and author...
2018.12.14 Motion for Summary Judgment, Adjudication 639
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.14
Excerpt: ...ts and evidence. The Court observes that it would have been better practice to file a single motion on behalf of all three movants – or, at least, to agree with the other side that three nominally separate motions would be supported by a single copy of the voluminous supporting papers. (The opposing party, AMR, properly filed a single set of opposition papers to all three motions.) Be that as it may, however, the motions obviously may be consid...
2018.12.14 Motion to Strike Discovery Responses 299
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.14
Excerpt: ...to act as to Sherwood's other discovery responses. It denies both sides' requests for sanctions. In addition, on its own motion, the Court strikes Sherwood's answer to the cross‐complaint under Code of Civil Procedure § 436. See Cal‐Western Business Services v. Corning Capital Group (2013) 221 Cal.App.4th 304. (Ordinarily this step would be preceded by an order to show cause, but the Court notes that Sherwood itself argues that this is the a...
2018.12.14 OSC Re Preliminary Injunction 342
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.14
Excerpt: ...he body of the complaint.) The next day, Plaintiff applied ex parte for a temporary restraining order. The Court (Judge Weil) heard the ex parte Application, granted the TRO, and entered an Order to Show Cause to show why a preliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. It is unclear whether anyone appeared to oppose the ex parte, but no written opposition was filed. For the following reasons t...
2018.12.14 Petition for Writ of Mandate 849
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.14
Excerpt: ...1771, 1778 n.3. Petitioner makes a number of arguments against the suspension order, most of them insubstantial. One of her attacks, however, has substance: DMV's lack of a showing that the officer administering the Draeger breath test was properly trained. Both parties agree that a Draeger test result is inadmissible in a DMV administrative per se (APS) hearing under Title 17 if the officer is not shown to have been properly trained. (The Court ...
2018.12.7 Demurrer 009
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.7
Excerpt: ...eja and Vegas have dismissed their claims against Freshko. No dismissal was filed, but the Court takes this statement as an agreement with Freshko's argument, and therefore the Court sustains the demurrer without leave to amend as to Ceja and Vegas. Freshko argues that Olivares's claim against it is untimely because it was filed more than two years after the accident occurred. Olivares's cross‐ complaint alleges that the accident occurred on Ja...
2018.12.7 Demurrer 572
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.7
Excerpt: ...ss Buybacks, LLC from June 13, 2013 to March 1, 2016. (First Amended Complaint [FAC], ¶ 13.) Sprint alleged that Snyder d/b/a 31 Echo conspired with Wireless Buybacks and Brendan Skelly to unlawfully resell Sprint smart phones from 2011 through 2016, both before and during Snyder's employment with Wireless Buybacks. (See FAC, ¶¶ 16‐20.) When Snyder passed away in October of 2016, Sprint substituted Moore in as trustee of various Snyder trust...
2018.12.7 Motion to Vacate Default 390
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.7
Excerpt: ...l be deemed denied and she will remain in default. (No default judgment has been entered at present.) The arguments on this motion are surprisingly technical. The underlying facts are not really debated. It is fairly clear that the purported service on Fei Lan, as documented by the Proof of Service of Summons filed by plaintiff, was defective and ineffective. (That is not necessarily a criticism of plaintiff, who may well have had no better infor...
2018.12.7 Motion to Compel Arbitration 510
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.12.7
Excerpt: ...07/18 ‐ 7 ‐ Welcome Market's Motion. Welcome Market shows, and plaintiff acknowledges, that there is an agreement in place to arbitrate these disputes. Plaintiff, however, contends that the Court should refuse to enforce the agreement as unconscionable. To invalidate an arbitration agreement as unconscionable, a party must show that it is unconscionable both substantively and procedurally (though the two elements need not be present in the sa...
2018.11.30 Motion for Summary Judgment, Adjudication 908
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.11.30
Excerpt: ... motion for summary adjudication of the claim for attorney's fees under Code of Civil Procedure § 1021.5 is granted. Because summary adjudication is being denied as to one cause of action, necessarily the motion for summary judgment is denied. I. Procedural Issues Counsel are reminded to comply with the Rules of Court as to motion papers generally and summary judgment motions specifically. The Church's exhibits are unwieldy as a result of this f...
2018.11.30 Motion to Deem Default Void and Dismiss, or to Set Aside Default 340
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.11.30
Excerpt: ...t‐title action on December 23, 2014, seeking to void the deed of trust then held by Countrywide. The lead named defendant was America's Wholesale Lender (hereinafter AWL), which she believed to be the corporate lender and deed‐of‐trust holder in the underlying transaction. Also named as defendants were National City Bank (not otherwise involved in this motion), and unidentified “all persons known or unknown”, etc., as is standard practi...
2018.11.30 Motion for Summary Judgment 939
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.11.30
Excerpt: ... Friedman's misdiagnosis to conform to an onerous gluten‐free diet. She asserts damages in the form of unnecessary expense (in obtaining food) and inconvenience and emotional distress (in avoiding restaurants, social situations, and the like). She alleges no physical harm from the misdiagnosis. Friedman moves on the basis that Manning's action is barred by the statute of limitations. The statute of limitations for malpractice claims against a h...
2018.11.9 Motion to Expunge Pendency of Action, for Attorney Fees 969
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.11.9
Excerpt: ...a First Amended Complaint on October 25, as evidenced by a file‐stamped copy provided with their opposition papers. No such pleading is found in the Court's physical file, however; it has apparently been delayed, mislaid, or misfiled by the clerk's office. Plaintiffs are requested to provide another physical copy. Second, plaintiffs' opposition papers do not comply with CRC 3.1110(f) and Local Rule 3.42 concerning tabbing of exhibits. Counsel i...
2018.11.9 Motion to Enforce Settlement Agreement 165
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.11.9
Excerpt: ...t he has received nothing from her. This is unacceptable. Anything filed with the Court must be served on the other party, and proof of such service must be filed with the Court. Although initially pleaded with a number of other causes of action (such as fraud), this is in substance an action to collect a debt. The parties reached a mediated settlement in 2016, under which defendant Niakan was to make payments totaling $46,000 to plaintiff Robins...
2018.11.9 Motion to Compel Arbitration and Stay Action 439
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.11.9
Excerpt: ...e § 1281.2 creates a summary proceeding for resolving petitions to compel arbitration. “A petition to compel arbitration ‘is in essence a suit in equity to compel specific performance of a contract.'” Rosenthal v. Great Western Fin. Securities Corp. (1996) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/09/18 ‐ 12 ‐ 14 Cal.4th 394, 411 (internal citation omitted). In these summary proceedings the trial ...
2018.11.9 Motion for Summary Adjudication 529
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.11.9
Excerpt: ...sitions. None of the other defendants was served with this motion; however, none of the other defendants has filed a first appearance in this case. This motion was filed based upon allegations in the original complaint. Since then plaintiffs have filed two amended complaints, but there appears to be no dispute that cause of action one remains the same in different versions of the complaint. Plaintiffs' motion for summary adjudication as to the fi...
2018.2.16 Demurrer 060
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.16
Excerpt: ...arise directly under the dual‐tracking provisions of the Homeowners' Bill of Rights (HBOR). Some or all of the other causes of action may at least be affected by those provisions, in that they appear to appeal to the asserted illegality of the alleged dual tracking here as part of the bases for these other claims. For that reason, the Court draws the attention of the parties to a consideration apparently overlooked by both sides: the dual‐tra...
2018.2.16 Demurrer 269
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.16
Excerpt: ...ther plaintiff is suing as the representative of her deceased mother's estate, or on her own behalf, or both. The County argues that the Complaint is demurrable because plaintiff was required to comply with the Government Claims Act by filing an administrative claim before suing, and has not done so. As the County notes, however, the Complaint allege that plaintiff has complied with a claims procedure. If that is not true, demurrer is not the way...
2018.2.16 Motion for Judgment on the Pleadings 552
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.16
Excerpt: ...y filed an answer to the complaint. Defendants' motion is based on the argument that the complaint does not state any cause of action. Plaintiff Dean Kim has sued Defendants James Totah and Giovanni Cruz for negligence and fraud. “‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resu...
2018.2.16 Motion for Recovery of Attorney Fees 110
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.16
Excerpt: ...as an arbitration provision in the contracts between itself and its members, including plaintiff. This Court (Judge Spanos) denied the petition to compel arbitration, holding that the purported arbitration provision was not part of the parties' contractual relationship. The Court of Appeal affirmed in an unpublished opinion. Having thus defeated defendant's attempt to force this dispute into arbitration, plaintiff now seeks an award of the attorn...
2018.2.16 Motion for Summary Adjudication 312
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.16
Excerpt: ...udgment on the pleadings and motion for summary judgment. B. Declaratory Relief. The controversy presented to the Court for decision concerns Article VII of the Covenants, Conditions and Restrictions (“CC&Rs”) governing plaintiff's condominium. (Defendant's Supplemental Exhibit 16.) Specifically, the dispute concerns assessments levied by defendant for common area expenses. 1. Background. Plaintiff's CC&Rs define the “Project” as being 52...
2018.2.16 Motion for Summary Adjudication 790
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.16
Excerpt: ...) which is at a right angle to Walnut Boulevard in Walnut Creek. The Roadway is 30 feet wide and terminates in a 50‐foot‐wide cul‐de‐sac. The Coney property is south of the Dossa property and is closer to the cul‐de‐sac. The Dossa property is to the north of the Coney property and is closer to Walnut Boulevard. The core, but not the entirety, of the parties' dispute is whether the Coneys are permitted to park vehicles along the edge o...
2018.2.16 Motion to Dismiss, for Entry of Judgment 132
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.16
Excerpt: ...tion to deny the motion. The Court sustained defendant Wells Fargo's demurrer to the original complaint in June 2017, giving leave to file a first amended complaint within 30 days. That deadline for amendment was extended by agreement or court order, so as to give the parties time to discuss settlement. The last extension of time, however, ran out in November 2017. There is no evident excuse for plaintiffs' failure to file their amended complaint...
2018.2.2 Motion for Judgment on the Pleadings 082
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.2
Excerpt: ...policies and practices. (Complaint, ¶¶ 1, 2.) Prior complaints led to settlements between the District and other parties in 2009 and 2010. (¶ 3.) Plaintiff continued to receive complaints even after those settlements, so it presented the District with a request for a structured settlement in 2013. (¶ 4.) After more than a year of negotiations, the parties entered into an Interim Settlement Agreement in March 2015. Under the terms of the Agree...
2018.2.2 Motion for Summary Judgment 969
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2018.2.2
Excerpt: ...negligence is denied. The motion for summary adjudication as to the second cause of action for premises liability is granted. I. Background Plaintiff Michael Thompson, represented in this case by his guardian ad litem Samarra Taylor, fell from a GameTime Play System playground structure at the Gehringer Elementary School. At the time, he was almost seven years old. The following facts are taken from those undisputed among the parties. The play ar...

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