Excerpt: ...ttempt to state claims for declaratory relief based on an easement by necessity and declaratory relief based on an easement by implication against Defendants. Defendants demur pursuant to Code of Civil Procedure § 430.10(e) and (f) on several grounds. For the following reasons, the demurrer is sustained, without leave to amend. Judicial Notice CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/30/19 ‐ 12 ‐ Defen...

Excerpt: ...e the Court's previous admonition concerning the filing of unnecessarily voluminous papers, plaintiffs' motion for leave to amend takes up the entirety of Volume 12 of the court file. Plaintiffs' RJN. The Court rules as follows on plaintiffs' request for judicial notice, filed on November 29, 2018. Exhibits “A” through “U”: denied, as irrelevant to the issue of whether plaintiffs should be granted leave to amend. The pertinent facts are t...

Excerpt: ...to causes of action one, two and three, and overruled as to cause of action four. There are other demurrers pending in this case, which are scheduled in February. If the pleadings are settled after the Court rules on the various demurrers to the SAC, then Defendants shall file and serve an answer by February 25, 2019 or 14 calendar days after the Court's ruling on the last demurrer or motion to strike as to the SAC, whichever is later. If, howeve...

Excerpt: ...amaging effect of the alleged wrongful act.' [Citations.]” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110‐11.) “A plaintiff in a medical malpractice action must satisfy the requirements of both the one‐year and the three‐year limitations periods.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1190.) “The injury commences both the three‐year and the one‐year limi...

Excerpt: .... (2010) 186 Cal.App.4th 383, 387‐388.) When a plaintiff moves for summary judgment, she has the initial burden. (Ibid.) “That burden can be met if the plaintiff ‘has proved each element of the cause of action entitling the party to judgment on that cause of action.' (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant ‘to show that a triable issue of one or more material facts exists as ...

Excerpt: ...ract is generally four years. (Code of Civil Procedure § 337.) “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) This motion suffers from serious procedural flaws on both sides. ...

Excerpt: ...y; (3) failure to reasonably accommodate; (4) failure to engage in good faith interactive process; (5) failure to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/25/19 ‐ 7 ‐ take reasonable steps to prevent and/or correct discrimination and/or retaliation; (6) retaliation; and (7) constructive discharge in violation of public policy. Defendants demur to the first cause of action for harassment on the basis of ...

Excerpt: ... in reality exist' and whether there would be ‘an inequitable result if the acts in question are treated as those of the corporation alone.' (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, at 538.) The courts consider numerous factors, including inadequate capitalization, commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable...

Excerpt: ...rough sufficient declarations showing SMD's role in the drafting and support of the initiative. Rather than file an answer in intervention, SMD intends to file a general appearance (which is commonly permitted in the Complex Litigation department), to be followed by a demurrer. Respondent City of Antioch does not oppose the motion. Petitioner Oak Hill Park Company does not actually dispute that grounds for intervention are established, it instead...

Excerpt: ... hole on a public sidewalk in front of the Gesinee Defendants' business. She sued the Gesinee Defendants (and the City of Concord) for premises liability based upon negligence (count one), willful failure to warn, Civil Code §846 (count two) and dangerous condition of public property (count three). The Gesinee Defendants have brought a motion to strike arguing that counts two and three do not apply to them because there are no factual allegation...

Excerpt: ... registered process server for all of the attempts at personal service and for the substitute service on Defendant on December 21, 2009. Evidence Code Section 647 creates a presumption of valid service when the service is effectuated by a registered process server. See Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750. The process server also submitted a declaration, attesting to the mailing of an additional copy of the summons and complaint, as r...

Excerpt: ...th 1201, 1206; Pirjada v. Super. Ct. (2011) 201 Cal.App.4th 1074, 1087.) Given that the dismissal of the class claims is without CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 01/24/19 ‐ 2 ‐ prejudice, however, acceptance of the settlement on behalf of the individual plaintiff does not violate the duty toward the putative class. The difficulty here is that the section 998 offer specifically stated that plaintiff...

Excerpt: ...SAC is sustained with leave to amend. The SAC has alleged eight causes of action against Omid: (1) breach of oral contract; (2) common count for money had and received; (3) accounting; (4) unjust enrichment; (5) conversion; (6) breach of the implied covenant of good faith and fair dealing; (7) fraud, and (8) breach of fiduciary duty. The CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/24/19 ‐ 3 ‐ SAC is based ...

Excerpt: ...eclarations. Rather than file an answer in intervention, SMD intends to file a general appearance (which is commonly permitted in the Complex Litigation department), to be followed by a demurrer. Respondent City of Antioch does not oppose the motion. Petitioners Zeka Ranch, One, LLC and a number of related business entities (“Zeka Ranch”) oppose intervention on the grounds that (1) “sponsorship” of an initiative is not sufficient direct a...

Excerpt: ...ditional Fact Nos. 8, 11, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28.) Further, plaintiffs' claim is not barred as a matter of law by the Statute of Frauds or the Uniform Electronic Transactions Act. Plaintiffs allege that a contract was formed for them to purchase defendants' home in San Ramon California on July 28, 2014 for $1,754,399.00 with no set time for performance. (SAC, ¶ 7.) The contract was extended several times over the years. Defen...

Excerpt: ...ARD OF REVIEW “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Cal. Code Civ. Proc. § 437c(c). “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgme...

Excerpt: ... is filed. See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604; Lorenz v. Commercial Acceptance Insurance Co. (1995) 40 Cal.App.4th 981, 989. Plaintiff's counsel takes issue with Mr. Bowie's explanation that he “somehow never saw the email” advising him of the January Case Management Conference and the judge's instruction to defense counsel to respond to the Complaint and appear. Plaintiff's counsel also disputes that Mr. Bowie had provide...

Excerpt: ...nd in any event, it is appropriate to conduct an CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/18/19 ‐ 11 ‐ impromptu case management conference to confirm what remains to be done in this action, and how it is going to be accomplished. The Court appreciates the spirit of the opposition brief's statement that the Trust “will spare the Court a full statement of the tortured history of this litigation”. Blu...

Excerpt: ...er order. These three lawsuits present different plaintiffs and different forms of legal claims. Two of them are wrongful‐discharge claims asserted by terminated executives of Garaventa Enterprises. The third is a shareholder derivative action, challenging the action of Garaventa's management in (among other things) terminating those same two executives. Speaking in non‐legal terms, these three cases all concern a corporate‐control battle a...

Excerpt: ...l file an amended complaint on or before February 7, 2019, addressing the matters agreed to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/03/19 ‐ 3 ‐ during the meet‐and‐confer process. The basis for this ruling is as follows. A. Meet And Confer. The Court commends the parties on having reached agreement on several matters that might otherwise have been the subject of the demurrer. (See, Lowry Dec., ¶ 3...

Excerpt: ...and said motion will be dropped from the calendar. Plaintiff, Kenton Keading, files this action for legal malpractice against his former attorney. He is representing himself. Plaintiff alleges that defendant negligently represented him in a probate litigation over a relative's family trust by failing to oppose the appointment of a particular trustee, advising plaintiff not to offer anything meaningful in settlement, and failing to file a cross‐...

Excerpt: ...Todd G. Lewis, and Claudia Lewis, individually and in her capacity as executor of the Estate. The motion is denied as to Defendants Armanino, LLP and Gunter Hofmann. The civil action is stayed pending outcome of the arbitration, pursuant to Code of Civil Procedure § 1281.2(c). Background Plaintiffs filed this action for fraud, alleging Defendants coordinated a scheme to defraud Plaintiffs during the purchase of stocks of Omega Pacific Electric S...

Excerpt: ...lies on the findings in the first motion for summary judgment, that is, that Plaintiffs either made out a prima facie case of exposure to Defendants' benzenecontaining rubber solvent, Cooper 12101, or created a triable issue of fact as to this issue. BACKGROUND Randy was an employee for twenty‐three (23) years at the Cooper Tire Facility in Texarkana, Arkansas, where he was regularly exposed to “benny,” a benzene rubber solvent product, nam...

Excerpt: ...summary judgment. However, the subsequent notice of the actual date and time for the hearing filed October 17, 2018 only states that the City is moving for summary judgment. Further, neither defendants' Separate Statement nor their Memorandum of Points and Authorities establish any missing element or complete defense as to the RHA. The Opening Memorandum of Points and Authorities never argues that the RHA is entitled to judgment as a matter of la...

Excerpt: ...ound CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/03/19 ‐ 9 ‐ Plaintiff Badr Sanane Azze leased a commercial property at 134 East 10th St. in Pittsburg from defendants Tony and Yvonne Wong, which he operated as convenience store. His lease term was five years from 2010 to 2015. He could renew for five more years provided he gave written notice no later than 90 days before expiration. The lease also containe...