Excerpt: ...tigation reveal new facts supporting such a claim. Plaintiff seeks punitive damages in her negligence cause of action, in which she alleges that defendants negligently failed to account for approximately $ 75,000 in mortgage loan payments. (Complaint ¶ 44 and ¶ 50.) Plaintiff has not alleged an intentional tort cause of action, and plaintiff's negligent accounting theory does not support a claim for punitive damages. More specifically:  Plai...

Excerpt: ...Hence, plaintiff suggests, the District should not be entitled to costs as though it had actually won the lawsuit. There are a number of overlapping flaws in the suggestion. First, the contention is not true to the statute. “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code of Civil Procedure § 1032(b).) A “prevailing party” includes...

Excerpt: ...ode of Civil Procedure § 473(b) must provide facts showing that the default and/or default judgment was entered through the defendant's “mistake, inadvertence, surprise, or excusable neglect.” Courts have defined inadvertence “as lack of heedfulness or attentiveness, inattention, fault from negligence.” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.) Excusable neglect is “neglect which might have been the act of a reasonably prude...

Excerpt: ...asa, Inc. That case does not include PAGA claims, but states a putative class action for wage and hour and other Labor Code violations on behalf of Hasa employees that are similar to those underlying the PAGA claim here. The Los Angeles court ordered Mejia to arbitration under the terms of the relevant employment agreements. Because PAGA actions are brought in the shoes of the state, an individual employee's agreement to waive those representativ...

Excerpt: ...urt, rule 3.1110, subd. (f).). None of the exhibits to the opening Declaration of Chere' Tait, the reply declaration of Dominica Acosta, were tabbed, or the supplemental declaration of Dominica Acosta (filed on March 21, 2019) were tabbed. A. Contract Formation. The issue of whether the parties entered into an enforceable arbitration agreement is an issue that the trial court must always decide. (9 USCS § 4 [if there is a dispute over the existe...

Excerpt: ...tive relief, and (3) declaratory relief. Defendant moves for summary judgment against Plaintiff's claims for breach of contract and injunctive relief pursuant to Code of Civil Procedure (“CCP”) § 437c on several grounds. Plaintiff has opposed the MSJ and requested a continuance pursuant to CCP § 437c(h). For the following reasons, the court grants the request for a continuance. The hearing on the motion for summary judgment and motion for j...

Excerpt: ...ve to amend to add a claim for strict liability as well as a claim based on an alleged breach of Health and Safety Code section 113790. However, the relief that plaintiff is requesting on all his causes of action is still only for damages related to his injuries. The proposed First Amended Complaint does not contain a request for injunctive relief. Nevertheless, plaintiff now moves for a preliminary injunction. A preliminary injunction may be gra...

Excerpt: ...ing her employment[.]” (Complaint, Par. 4.) Nonetheless, defendant “willfully, and deliberately hired her to work for the corporation and continued to keep her employed despite clear evidence that her mental health issues were escalating.” (Par. 5.) He then “failed to avoid the probable dangerous consequences of exposure to Kimberly Goldman's propensity for violence in a conscious disregard for the rights and safety of fellow employees, v...

Excerpt: ...nts for IIED. Instead, the City argues that as a public entity it cannot be liable for the actions of its employee. The City relies on Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900, which held that Government Code section 815 abolishes common law liability for public entities. In that case, the court upheld the dismissal of plaintiff's claim for wrongful termination in violation of public policy. Plaintiff points out t...

Excerpt: ...ion for (1) violation of Commercial Code§ 3118; (2) violation of Civil Code § 2923.6 and § 2924.11; (3) negligence; (4) violation of Cal. Bus. & Prof. Code § 17200 et seq.; and (5) violation of Code of Civil Proc. § 366.2. Plaintiff abandoned her first and fifth claims, without prejudice, in her Opposition. Opp. at 5:27‐ 28. For the following reasons, the Demurrer is sustained, with leave to amend. Request for Judicial Notice Defendant req...

Excerpt: ...First Cause of Action (Right to Repair Act) The demurrers to the first cause of action are overruled. First, the parties dispute whether Civil Code sections 895 et seq. (the Right to Repair Act) apply. Plaintiffs allege they were told that the house was new when they bought it in 2013 and that a previous home on the property had been torn down. (Complaint, ¶¶ 16, 17.) Defendant argues that the property was built in 1951 but cites exhibits to th...

Excerpt: ...ant for (4) injunctive relief to get corporate documents. Defendants have demurred to each cause of action for the failure to state a claim. On the first three causes of action, Defendants argue that the statute of limitations has expired and that the fraud claim has not been alleged with require specificity. As to the fourth claim, Defendants argue that Plaintiffs are not shareholders of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMEN...

Excerpt: ...n 1:30 and 4:00 p.m. on May 14, 2019. If the tentative ruling is contested, oral argument will take place on May 15, 2019 at 9 a.m. in Department 21. In the meantime, the court encourages the parties to work together to narrow the issues and limit the length of the complaint. The parties should meet and confer to reach agreement, if possible, on which officials must be named in any amended petition and which need not be and to reach agreement reg...

Excerpt: ... plaintiff's insured, Roem Corporation. Roem's property is located at 3815 Delta Fair Boulevard in Antioch, California (the “Property”). Plaintiff paid Roem for the loss and obtained an assignment of rights. It now seeks to recover in excess of $870,000.00 from the City and a contractor that the City used for weed abatement, defendant Pacific Coast Landscape Management, Inc. The City has filed a series of demurrers on this case. The sole caus...

Excerpt: ...act Nos. 12, 13; Plaintiff's Additional Material Fact (“PAMF”) Nos. 1, 2, 5,13, 14, 15, 31.) Further, even if that fact were undisputed, defendants have not met their initial burden to show they did not increase the risks inherent in the activity by selecting a facility that catered to minors rather than to adults. (Plaintiff's Additional Fact Nos. 7, 8, 9, 10, 11, 12, 23, 29, 30, 32, 33, 38, 39, 40, 43, 44.) Finally, because defendants' lega...

Excerpt: ...iet title and declaratory relief causes of action into separate causes of action to address each of the alleged different encroaching improvements. The proposed First Amended Answer seeks to clarify that the statute of limitations affirmative defense is directed to each alleged encroachment separately. Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may…in its discretion, after notice to ...

Excerpt: ...‐complaints is to have a complete determination of a controversy among the parties in one action, thus avoiding circuity of action and duplication of time and effort.].) The Court has overruled defendant's demurrer to the Fourth Cause of Action in the First Amended Complaint. This in turn has independently necessitated that the trial and issue conference dates be vacated, obviating any prejudice to plaintiffs that might otherwise have been caus...

Excerpt: ...the default entered October 1, 2018. Counsel for Defendants brings this motion on the grounds that the default taken against Defendant was due to attorney mistake and because service was improper. For the following reasons, the motion is granted. Request for Judicial Notice Both parties request judicial notice of several documents. Neither Request is opposed. Both Requests are granted. Evid. Code §§ 452, 453. Factual Background The underlying c...

Excerpt: ...e motion must be filed and served within fifteen days after service of the memorandum of costs, plus five days for mailing. (CRC 3.1700(b)(1).) The Court, however, may extend the deadline on its own motion, for up to 30 days. (CRC 3.1700(b)(3); Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 155.) In this instance, the final day was March 28th. The motion was filed that day, but was not served until April 4th. Give...

Excerpt: ... also sought orders compelling responses to interrogatories and document requests. That part of these motions was put over to the present date, with an invitation for each moving defendant to file and serve a supplemental statement explaining which (if any) of these other discovery responses are still genuinely needed, in light of the order deeming matters admitted. Incense Specialties has filed the supplemental statement invited in the Court's r...

Excerpt: ... participate. As was discussed at the recent CMC, although the complaint identifies the Estate as the plaintiff, there is neither the identification of any actual person who is the representative of the Estate, nor any probate order designating anyone as such representative. There also is no allegation of any survivors purporting to bring a wrongful death action on their own behalfs. The Court gathers that the person(s) who arranged for counsel t...

Excerpt: ...sed the car in 2013, and (according to his suit) he encountered a long train of significant problems with it. He demanded repurchase in February 2016, and filed this suit in March 2016. More than two years later, in July 2018, defendant served a notice of inspection of the vehicle. After some initial scheduling discussion, plaintiff's counsel informed defendant's counsel in September 2018 that plaintiff had sold the car and thus couldn't produce ...

Excerpt: ...cation that (1) Plaintiff does not have a claim for dangerous condition of public property, or (2) BART has immunity. The Court finds that BART has not shifted its burden on several issues, and on the remaining issues there are triable issues of material fact. Indeed, while BART presents more or less the same substance in a variety of different wrapping papers, it's the same substance under different section headings. Dangerous Condition A claim ...

Excerpt: ...covery ruling on January 9, 2019, a court admonishment to respond at the February 5, 2019 case management conference, and tentative rulings advising defendant that terminating sanctions were imminent on February 27, 2019 and again on April 3, 2019. Terminating sanctions are warranted where parties repeatedly refuse to abide court orders to provide discovery. Colisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617‐20. As defendant has st...

Excerpt: ...n as to Plaintiff's individual wage claim under Labor Code section 558.” The Court did not order plaintiff to arbitrate her representative claim for civil penalties, and could not have done so under the Iskanian decision discussed in the order. Plaintiff has now unequivocally waived her individual claim for unpaid wages. Accordingly, there is nothing to arbitrate, and no reason to stay plaintiff's representative claim for civil penalties. This ...