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2024.05.06 Petition to Compel Binding Arbitration, for Stay 701
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.05.06
Excerpt: ... a Certified P ublic Accountancy ("CPA") firm founded in 2006. (Compl. ¶ 10.) RP alleges it hired each of the defendants as at will employees in a time frame ranging from 2006 to 2013. (Compl. ¶¶ 11 -13) The owners of RP with equity interests in the firm are Sharon Rubens , Linda Martins and Lisa Martin. (Compl. ¶¶ 1, 20.) RP alleges that it entered into negotiations with each of the defendants beginning in 2020 by which each woul...
2024.05.06 Motion to Stay Proceedings, for Judgment on the Pleadings 943
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.05.06
Excerpt: ... court ordina rily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141 quoting People v. Bell (1984) 159 Cal.App.3d 323, 329.) As the U.S. Supreme Court “explain ed, ‘the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort ...
2024.05.06 Demurrer 825
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.05.06
Excerpt: ...mplaint against defendants Diablo Country Club (DCC) and Diablo Community Services District (District) alleging the following causes of action: (1) Inverse Condemnation; (2) Trespass; (3) Nuisance; (4) Injunctive Relief; (5) Negligence –Government Code Section 815 .2(a); and (6) Negligence. Plaintiffs' complaint concerns damages to their home at 208 Fairway Drive in Danville, California (the "Property") arising out of a flooding event ...
2024.05.06 Demurrer 066
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.05.06
Excerpt: ...a (th e “Property”). Prior to the purchase of the Property by Plaintiff in September 2016, Defendant KRBC, LLC “was the owner and developer of the new construction on the 15 Property,” as well as some of the surrounding area. (¶ 15.) Defendant Bradley Candau, w ho was a member of KRBC, served as the broker, KRBC's listing agent, and the authorized representative of KRBC (the seller of the Property) for the transaction. (¶ 19.) As part o...
2024.04.29 Motion for Preferential Trail Setting 955
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.29
Excerpt: ...n 36(a) pr ovides that if a party is over 70 years old, the party may request a trial preference "which the court shall grant if the court makes both of the following Plaintiff Castillo filed his complaint against defendant Bachman in May 2022, asserting two causes o f action arising out of a motor vehicle accident on November 19, 2019 in which Plaintiff was rearended. Plaintiff alleges he suffered personal injuries resulting from the accide...
2024.04.22 Petition to Compel Arbitration, Dismiss Class Claims and Stay Proceedings 820
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.22
Excerpt: ...#34; or "Moving Parties"). For the reasons set forth, the motion is granted as to all claims other that Plaintiff's "non- individual" PAGA claims, addressed below, the class claims are dismissed, and the action is stayed pending completion of the arbitration. A case manag ement conference shall be set for 8:30 a.m. on December 10, 2024, to review the status of the case and the arbitration. Background Plaintiff Iliana Reyes all...
2024.04.22 Motion for Summary Judgment 114
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.22
Excerpt: ...0 north of El Cerro Boulevard in Alamo, California on February 23, 2018. (UMF 1 -2.) The accident occurred at approximately 10:00 p.m. (UMF 1.) While attempting to change lanes, Mr. Cruz collided with Plaintiff Francie Lacey -G ra n t 's vehicle. (UMF 2.) Defendant Luis C ruz was operating a pickup truck owned by his employer – Defendant Gesick Concrete, Inc. (“Gesick Concrete”) (UMF 4.) Mr. Cruz was driving the vehicle within the course an...
2024.04.22 Motion for Summary Adjudication 346
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.22
Excerpt: ...tion Defendant seeks summary adjudi cation as to seven separate issues related to causes of action two through six, eight through nine, and the prayer for punitive damages. For the following reasons, the MSA is granted -in -part and denied -in -part. The MSA is denied as to of Employee as Indepe ndent Contractor; (2) Failure to Indemnify and Reimburse Employees; (3) Failure to Pay Overtime Compensation; (4) Failure to Furnish Timely, Accurate and...
2024.04.22 Motion for Judgment on the Pleadings 271
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.22
Excerpt: ...ground In the operative second amended complaint ("SAC"), Plaintiffs allege a single cause of action for breach of fiduciary duty defendant Jordan Yudien. (Second Am. Comp. ("2AC") 3rd C/A, ¶¶ 36 -47.) Yudien represented defendants Jerry Kilarr, now deceased, and Co nstance Kilarr in litigation with Plaintiffs the Menascos in James Kenneth Menasco, et al. v. Jerry Kilarr, et al., Contra Costa Superior 16 Court Case No. MSC16 -0...
2024.04.15 Demurrer 399
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.15
Excerpt: ...t moved to intervene in t he action as of the date of the hearing or within seven days of the date of the hearing, the Court will appoint a guardian ad litem for Plaintiff under Code of Civil Procedure sections 372 and 373(c) as set forth below. Background In the SAC, Plaintiff Chl oe Lauren Zebrach alleges a single cause of action for negligence against Monte Nido, a residential care facility. (SAC ¶ 2.) Plaintiff was diagnosed with bi -polar d...
2024.04.15 Demurrer to FAC 522
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.15
Excerpt: ...ining c laims. Plaintiffs may amend their complaint to include a wrongful foreclosure cause of action at a later date should it become necessary. WFB shall answer the FAC no later than April 29, 2024. The Complaint This case arises out of the claim of plaintiffs Steven V. Schnier and Ana Maria D. Schnier that defendant Wells Fargo Bank, N.A. (WFB) moved forward with foreclosing on plaintiffs' residence despite their application for a loan modifi...
2024.04.15 Motion for Judgment on the Pleadings 271
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.15
Excerpt: .... (Second Am . Comp. (“SAC”) 1st C/A, ¶¶ 1-30.) Kilarr was previously a party to litigation with Plaintiffs the Menascos, specifically the case James Kenneth Menasco, et al. v. Jerry Kilarr, et al., Contra Costa Superior Court Case No. MSC16 -01460 (the "Prior Litigatio n"). The Prior Litigation was resolved by settlement. This lawsuit arises out of the settlement and other events related to the Prior Litigation. 21 After this acti...
2024.04.15 Motion for Leave to Amend Complaint 614
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.15
Excerpt: ...care), and add additional allegations regarding certain loan distributions. Defendant Albert D. Seeno Jr. opposes the motion on several grounds including legal futility and inexcusable delay. For the following reasons, the motion is granted. The First Amended Complaint is deemed filed as of April 15, 2024. Plaintiff is directed to electronically file a new copy of the Second Amended Complaint by April 19, 2024. Analysis A trial court has discre...
2024.04.15 Motion for Summary Judgment 344
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.15
Excerpt: ...y judgment direc ted toward the first amended complaint. Procedural Background Plaintiff filed his Complaint on November 10, 2021. Defendant Oakwood Athletic Club, LLC (“Oakwood”) filed its Answer on January 26, 2022. Thereafter, Defendant filed its MSJ on May 5, 2023. T he MSJ was set for hearing on August 17, 2023. On July 17, 2023, the Court continued the hearing 24 25 until November 16, 2023. On November 9, 2023, the Court continued t...
2024.04.08 Motion for Summary Judgment, Adjudication 484
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.08
Excerpt: ...form of judgment, separate from any order on the motion, for submission to the Court. I. Background According to the complaint filed by plaintiffs Pedro Gomez III and Brianda Gomez (collectively plaintiffs and individually referred to by first name for convenience only, no disrespect intended), on or about November 2, 2019, Pedro fell and sustained severe injuries. At the time, he was working on scaffolding at the Phillips 66 Rodeo Refinery. T...
2024.04.08 Motion for Summary Judgment 858
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.08
Excerpt: ...eet his burden in opposition to raise a triable issue of fact. Background Plaintiff Klaus Kubler dba Klaus Kubler Construction (Kubler or plaintiff) filed this action for breach of a construction contract filed on April 27, 2022. Plaintiff alleges he is a licen sed general contractor and in July 2017 entered into a written home improvement contract with defendants James Knight and Paige Tomaselli (defendants), for the construction of improvemen...
2024.04.08 Motion for Leave to File FAC 344
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.08
Excerpt: ... for leave to amend Code of Civil Procedure § 473(a)(1) provides the Court discretion to permit a party to amend its pleadings. There is “a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including tria l [citations]…” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) Leave to amend can be denied where there is “‘inexcusable delay and probable prejudice to the opp...
2024.04.08 Demurrer 112
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.04.08
Excerpt: ... cognizable claims against Reyes. Defendant's motion to strike punitive damages allegations is granted with leave to amend. Plaintiffs shall have until April 29, 2024 to file and serve a first amended complaint. If plaintiffs cannot amend their punitive damages claim again st Reyes within the time stated, they may move to amend the complaint at a later time. The Complaint Plaintiffs Pamela Cooper and Carl Kelly filed their complaint on May 10,...
2024.03.25 Motion to Compel Arbitration to Vacate or Correct Arbitration Award 789
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.03.25
Excerpt: ...r the fol lowing reasons Construction West's petition to vacate is denied. Construction West's petition to correct is denied. One Nine's petition to confirm the arbitration award is granted. Factual Background On February 21, 2021, PLAINTIFF submitted a proposal a nd was awarded a contract (“Contract”) as a general contractor for the construction of a car wash located on the commercial properly commonly referred to as 1755 Market Street, Con...
2024.03.25 Demurrer to FACC 355
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.03.25
Excerpt: ... Implie d Contract, Breach of Written Contract, and Unfair Competition causes of action on the basis that they are uncertain and fail to state a claim. (Demurrer p. 2: 5 -13.) For the following reasons, the Demurrer is sustained with leave to amend. 16 Meet and Confer Requirement Defendant satisfied its meet and confer requirement regarding their demurrer in detailing their meet and confer efforts with Plaintiff in the Declaration of Jason Julia...
2024.03.18 Petition for Writ of Mandate or for Writ of Prohibition 400
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.03.18
Excerpt: ...pondent” or “DMV”) order of suspension. For the following reasons, Petitioner's Writ of Mandate denied. Petitioner's request for payment of attorney's fees pursuant to Government Code §800 is also denied. Factual Background On September 6, 2022, CHP Officer Fuller observe d a Mercedes Benz travelling at a high rate of speed travelling northbound on I -680. (Administrative Record (AR), p. 0018.) Officer Fuller visually estimated that the ca...
2024.03.18 Motion to Strike FAC 419
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.03.18
Excerpt: ...ges, the facts alleged must show fraud, oppression or malice. (Civil Code section 3294.) Subdivision (c) of the statute contains the following definitions: “(1) 'Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [P] (2) 'Oppression' means despicable conduct ...
2024.03.18 Motion to Strike FAC 249
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.03.18
Excerpt: ...endants' a ctions in the negligence cause of action; (2) the request for repayment of attorney fees paid to Defendant during the underlying representation in the Prayer; (3) the request for “attorney's fees pursuant to Civil Code sections 52, 52.4(a) and any other a pplicable statute,” in the Prayer; and (4) Paragraph 19, which reads: Defendant Wiener did not provide response to Jane Doe's Request to know if the attorney holds liability insur...
2024.03.18 Motion for Summary Judgment 484
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.03.18
Excerpt: ...l Back ground According to the complaint filed by plaintiffs Pedro Gomez III and Brianda Gomez (collectively plaintiffs and individually referred to by first name for convenience only, no disrespect intended), on or about November 2, 2019, Pedro fell and sustaine d severe injuries. At the time, he was working on scaffolding at the Phillips 66 Rodeo Refinery. The scaffolding was allegedly negligently and improperly designed, constructed, assemb...
2024.03.11 Motion for Summary Judgment 636
Location: Contra Costa
Judge: Devine, John P
Hearing Date: 2024.03.11
Excerpt: ...met their i nitial burden to show entitlement to judgment as a matter of law, the City of Pittsburg has also shown triable issues of material fact exist that preclude summary judgment, as discussed below. Factual Background Plaintiffs entered into a written “License Agreement” with the City of Pittsburg (“City”) on August 19, 2019, pursuant to which the City would provide the location for an ice rink and plaintiffs would install and opera...

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