Excerpt: ...on on both the elements of breach of duty and causation. BREACH OF DUTY The School District acknowledges that California law imposes upon school districts a duty to carefully supervise students while they are on school premises during the school day, and that school districts may be held liable for injuries caused by the failure to exercise such care. (Memorandum of Points and Authorities, page 5, lines 21‐23) The School District contends it di...

Excerpt: ...ARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 12/20/18 ‐ 2 ‐ Code of Civil Procedure §877.6. (Going forward, Ghoneim and Chiba will be referred to as “Ghoneim”.) The party claiming that a settlement is not in good faith under Code of Civil Procedure §877.6 has the burden of proof on that issue. (Tech‐Bilt, Inc. v. Woodward‐Cycle & Associates (1985) 38 Cal.3d 488, 499 (“Tech‐Bilt”); City of Grand Terrace v. Superior Court (1...

Excerpt: ...a separate action for fraudulent transfer. The Court makes no finding on the issue of whether plaintiff's motion for leave to amend was properly served. The Court exercises its inherent judicial power to reconsider its previous order. (See, Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1249.) Upon further review of plaintiff's motion for leave to amend, the Court now finds that the motion should not have been granted...

Excerpt: ...t (“EBRPD”)'s demurrers without leave to amend. The motion is made pursuant to Code of Civil Procedure section 663. PG&E and EBRPD filed a joint opposition. For the following reasons, Petitioners' motion is denied. Analysis Motion to Vacate Judgment As a threshold issue, PG&E argues that a § 663 motion is unavailable here, relying primarily on Payne v. Rader (2008) 167 Cal.App.4th 1569. Payne held that “a section 663 motion does not lie to...

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...

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...

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...

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...

Excerpt: ...sons, including mediation. Sticking to the most recent trial settings, trial was set for June 25, 2018, i.e., within the five‐year period. On April 26, 2018, the Court, on its own motion notified the parties that the trial was continued to July 30, 2018. This was based on unavailability of the Court, although the order did not so state. On June 14, 2018, the Court again continue the trial date, this time to August 6, 2018, again based on unavai...

Excerpt: ...ed imposition of sanctions. In the previous motion, moving parties sought $24,173.50. In this motion, moving parties actually seek CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 12/06/18 ‐ 8 ‐ more sanctions, $27,653.66, apparently due to the cost of preparing this motion in addition to the last motion. As to the history of the matter, Judge Goode held hearings about discovery on January 11, February 15, and Apr...

Excerpt: ...only remaining claim of the FAC is for negligence. Defendant moves for summary judgment on two grounds: (1) that the statute of limitations bars Plaintiff's claims; and on the separate and independent ground that (2) Plaintiff cannot prove his alleged exposure to emission from the refinery caused his alleged injuries. For the following reasons, the MSJ is denied. Standard Code of Civil Procedure (“CCP”) §§ 437c(o)(1) and 437c(p)(2) provide ...

Excerpt: .../06/18 ‐ 5 ‐ and/or make such orders concerning the proceedings therein as may tend to avoid unnecessary costs and delay. See CCP Section 1048(a). The court does so here. COMMON QUESTIONS OF LAW OR FACT 1. Tcheong, LLC v. Peter Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant, Selina Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant (C17‐00563): This case was filed on April 6, 2017. Plaintiff...

Excerpt: ...ranted for the reasons stated below. Personal Jurisdiction California courts may exercise jurisdiction over nonresidents “on any basis not inconsistent with the Constitution of this state or of the United States.” (CCP § 410.10.) The exercise of personal jurisdiction over a nonresident defendant comports with the Constitutions of California and the United States “ ‘if the defendant has such minimum contacts with the state that the assert...

Excerpt: ...jurisdictional prerequisite to a claim‐relief petition. When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779, internal citations omitted.) Accrual for this purpose is the same as accrual for purpose of the statute of limitati...

Excerpt: ... follows. A. Procedural History. Plaintiffs filed their complaint on June 28, 2018. Defendant filed its motion to compel arbitration on August 3. At the initial hearing on October 1, the Court requested additional briefing, and set an evidentiary hearing for the presentation of live oral testimony. The parties filed supplemental briefs on October 29, and responses to the supplemental briefs on November 5. On November 15, the Court heard oral test...

Excerpt: ... MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 12/03/18 ‐ 2 ‐ these claims. If the two year statute of limitations applies then the claims are barred, unless equitable estoppel or tolling applies. If the four year statute of limitations applies then the claims are timely and may proceed. Statute of Limitations: 2 vs. 4 years The key issue here is whether the two year statute of limitations applies under CCP §339(1) or the four year state...

Excerpt: ...Rios was a resident and patient of Defendant Lone Tree Convalescent (“Lone Tree”), a skilled nursing facility in Antioch. Plaintiff resided at the facility from December 27, 2017 through December 31, 2017. Plaintiff Rios died at the age of 91 on January 22, 2018. Plaintiffs allege Rios' death resulted from injuries received at the Lone Tree. At the time of her admission, Rios was known to be at risk for falls due to her weakness and other con...

Excerpt: ... First Amended Complaint, defendants' current demurrer is addressed to only the Sixth and Seventh Causes of Action of the SAC. Sixth Cause of Action, Intentional Infliction of Emotional Distress The court overruled defendants' previous demurrer to this cause of action. The current demurrer is based on the same grounds. Accordingly, the demurrer to this cause of action is overruled. Further, the court's order on the previous demurrer said defendan...

Excerpt: ...ntion improperly includes a claim for punitive damages. Defendants argue that leaving the scene of an accident is not malicious under Civil Code Section 3294. However, this argument must be brought by way of a motion. The Rules of Civil Procedure do not allow an attack on a part of a cause of action by demurrer or by an opposition to a motion for leave to file a pleading, which is conceded. See Daniels v. Select Portfolio Servicing, Inc. (2016) 2...

Excerpt: ...ling order in the near future. The parties, as well as support staff involved in e‐filing, are urged to review that order carefully and abide by its terms. The Court considers that to rule on the petition to compel arbitration (the “Petition”) brought by defendant TWC Dealer Group, Inc. (“TWC”), it must first understand the precise nature of the claims brought and relief requested by plaintiff Shannon Hamrick (“Hamrick”). Therefore,...

Excerpt: ...d Omissions policy to insure itself for any liability arising out of the performance of processing and facilitating payroll taxes for its clients. (¶ 10.) Defendant Scottsdale issued Affordable a “Business and Management Indemnity Policy.” (¶ 12.) It issued a renewal policy on identical terms a year later, but the following year issued another “renewal” with a broader Endorsement 8 set of exclusions. (¶ 12‐15.) On May 10, 2013, the A...

Excerpt: ...ice, and on any terms as may be proper, allow a party to amend any pleading… ” (CCP § 473(a)(1).) While judicial policy favors resolution of all disputed matters between the parties, the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/01/18 ‐ 2 ‐ court finds the public nuisance cause of action fails to state a cause of action as it is timebarred. “Ordinarily, the judge will not consider the validity of ...

Excerpt: ... prevailed based on her statute of limitations defense. A judgment, representing Redig's fees and costs, was entered on that cause of action. However, it is important to remember here the procedural history of the case. The Kizors had sued Redig on both fraud and breach of contract theories. The breach of contract theory had been removed from the case on demurrer, well before the fraud cause of action was tried. Following the judgment on the frau...

Excerpt: ...e claims alleged against Defendants are real property claims. The Court's ruling on the real property claim issue is included in this ruling for completeness. The Court continued the hearing to allow supplemental briefing on whether or not Plaintiffs have met their burden by showing its claims have probable validity. (See Code of Civil Procedure § 405.30, 405.32.) Code of Civil Procedure § 405.30 allows a property owner to file a motion to remo...

Excerpt: ...y an order of the Court. Three, plaintiff has failed to file a proof of service showing that defendants were given notice of this hearing. Four, even if the foregoing were not true, the case is more than five years old and was never reduced to judgment. The Court would dismiss it under the five year statute. ...