Excerpt: ... the decedents' car head‐on, killing them both. Subpoenas: Plaintiffs issued subpoenas to (1) American Medical Response, Inc.; (2) John Muir Medical Center‐Walnut Creek (MR); (3) John Muir Medical Center (Bills); and (4) John Muir Medical Center (Films) requesting the medical radiological, and billing records of Defendant. Defendant objects to the subpoenas as overbroad. Discussion: The parties brought this dispute to a court‐appointed Disc...

Excerpt: ...greement and preliminary approval order is granted; (2) the hearing on the final approval of the settlement is continued to 9:00 a.m. on May 12, 2022; and (3) Plaintiffs' request for an award of attorneys' fees and costs is granted as requested in the amount of $13,635.00. Counsel for Plaintiffs shall prepare and submit an appropriate order reflecting this ruling and setting forth updated deadlines for Arch to approve the Settlement Administrator...

Excerpt: ...ss settlement fund of $200,000. The class representative payment to each plaintiff would be $7,500. Counsel's attorney's fees would be CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 02/03/22 ‐ 5 ‐ $70,000 (35% of the settlement). Litigation costs would not exceed $10,000. The settlement administrator (Simpluris) would have costs of administration capped at $4,000. PAGA penalties would be $5,000, resulting in a p...

Excerpt: ...ally on the ground that Favro's costs are not apportioned among the parties. MOFD asserts that it should have a judgment entered only for its proper share. Morris contends that since the jury reached no verdict as to her, she is not responsible for any part of the costs. All plaintiffs object to the costs associated with CalTrans, which settled out of the matters long before trial. The moving parties also object to various specific items of the c...

Excerpt: ...se of action and for uncertainty: (1) negligence / negligence per se, (2) violations of the Richmond Rent Ordinance, (5) violation of the Richmond Relocation Ordinance, (7) violation of Civil Code 1940.2 and (8) violation of Civil Code 1942.5. Allegations Plaintiff alleges that she rented a “studio apartment” located in the garage for the main property on August 1, 2017 from the Defendants. (Comp. ¶13.) Plaintiff alleges that the unit is sub...

Excerpt: ... or before February 18, 2022. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 02/03/22 ‐ 8 ‐ Case Background Plaintiff ROIC owns a commercial shopping center in Pinole ("Pinole Center"). Defendants/Cross‐Complainants are tenants who operated a UPS Store in the Pinole Center. On July 27, 2020, ROIC sued defendants for breach of their lease based on nonpayment of rent. The complaint attaches a copy of the lease a...

Excerpt: ...with Ryan and Alex (Ryan's wife and former fiancé) for the purchase of defendants' home. The motion for summary judgment is denied. Summary adjudication is granted as to the sixth cause of action for elder abuse, but otherwise denied. The plaintiff has shown triable disputes of material fact, including, but not limited to whether a contract with Alex exists (Fact Nos. 10, 20, 44, 68, 78, 88, 98, 108), and whether Ryan owed a fiduciary duty to pl...

Excerpt: ...t A 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. (Code Civ. Proc., § 437c (c).) A moving plaintiff is not required to disprove any defenses asserted, but must persuade the Court there is no triable issue of material fact as to each element of each cause of action. (Code Civ. Proc., § 437...

Excerpt: ...led as to the Second Cause of Action. Background On or about March 30, 2006, Plaintiff Carol Meier, a married woman, obtained a mortgage loan in the amount of $600,000, secured by the property located at 61 Rudgear Drive, in Walnut Creek. Plaintiff allegedly defaulted on the loan on February 1, 2010. Defendant Attorney Lenders Services, Inc. was appointed as Trustee for the sale. On April 15, 2021, Defendant Attorney Lender Services conducted the...

Excerpt: ...NEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 01/31/22 ‐ 2 ‐ At the outset, the Court notes that there appears to be a service issue as Defendant attests in its sur‐reply that it was not served with the Declarations of Plaintiff and Thomas Cregger. (See Declaration of Craig R. Breitman in support of sur‐reply at ¶ 3.) For the following reasons, the motion is denied. Analysis A party may address a prayer for relief from a judgment, order, ...

Excerpt: ...management conference. 2‐22‐22 Mandatory settlement conference. 2‐28‐22 Hearing on defendant's summary judgment motion. 3‐30‐22 Issue conference. 4‐18‐22 Jury trial. The basis for this ruling is as follows. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 01/31/22 ‐ 4 ‐ A. The Proposed Amendments. Plaintiffs seek leave to add a new Fourth Cause of Action for inverse condemnation. This cause of acti...

Excerpt: ...urly rate at $250, but the Randolph declaration states a normal hourly rate of $275. (Proposed Order ¶F(1); Randolph decl. ¶13.) The Court will sign the proposed order with a $250 hourly rate. The City sued the Defendants for nuisance abatement related to a property located in Oakley. The parties stipulated to a judgment. The City is now seeking the appointment of receiver the enforce the judgment in this case. Code of Civil Procedure section 5...

Excerpt: ... bought in Oakley in 2015 so he could obtain a loan. (FAC, ¶ 8, 9.) Thereafter, defendant forged plaintiff's name to a quitclaim deed so that plaintiff and defendant would no longer be on record as co‐owners of the property. Rather, defendant would appear to own it alone. (¶ 10, 11.) In doing this, defendant acted with malice, fraud, and oppression. (¶ 23, 30, 31.) As a result of plaintiff's slander of title, plaintiff has suffered damages, ...

Excerpt: ... of provisions of the California Labor Code, Education Code and Government Code (Case No. C21‐02408). The court has read and considered the moving papers, as well as the opposition and reply papers, and renders the following tentative decision. As set forth below, the writ is granted in part and denied in part. As further set forth below, the Court orders that the Report be submitted for in camera review and that Petitioners provide an accounti...

Excerpt: ...eek's motion to strike is denied. Defendant's unopposed request for judicial notice is granted. Defendant shall file an answer on or before February 16, 2022. A. The Relief Defendant Seeks. The Court notes the comparatively narrow scope of the relief sought in defendant Walnut Creek's motion. The relief sought is limited as follows. First, defendant Walnut Creek has brought only a motion to strike; there is no companion demurrer. Accordingly, def...

Excerpt: ...compelling Plaintiff RDS Capital Group, LLC (“Plaintiff” or “RDS”) to submit all its claims to arbitration. Defendants move pursuant to the Federal Arbitration Act as well as California Code of Civil Procedure § 1281 et seq. Plaintiff opposes the motion. For the reasons discussed further below, the motion is granted and the instant case is stayed pending the outcome of the arbitration. Legal Standard Code of Civil Procedure § 1281.2 cre...

Excerpt: ...e located at 2610 Francisco Way in El Cerrito. Plaintiff alleges Defendants foreclosed illegally. She seeks to rescind the foreclosure sale and/or judgment in the amount in $1,455,000. Motion On November 23, 2021, Plaintiff filed a Notice of Motion and Motion for Judgment on the Pleadings, pursuant to Code of Civil Procedure § 438. Plaintiff argues she is entitled to judgment on the pleadings for a determination of liability as a matter of law o...

Excerpt: ...t McBride, and he was released. The next morning, McBride murdered Franklin. Plaintiffs allege that the officers failed to perform specified mandatory duties in addressing the incident, resulting in Franklin's death. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 01/27/22 ‐ 2 ‐ Plaintiffs have filed this Pitchess motion in order to obtain information from the Internal Affairs Division investigation concerning th...

Excerpt: ...n for judgment on the pleadings instead. (See CCP § 438 (f)(2).) The parties should work out their disagreement regarding electronic service of papers in this action. The court encourages plaintiff's counsel to agree to electronic service. In any event, the court will not overrule the demurrer based on that procedural defect, given that plaintiff has filed a full and timely opposition on the merits. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORN...

Excerpt: ...l C. Stead, Inc., dba Hilltop Kia in the City of Richmond (“Dealer”). After purchasing the vehicle, Plaintiff discovered several defects with the vehicle, including problems with the windshield wipers, engine and cabin air filters, and passenger seat. Plaintiff also alleges he discovered the vehicle had been in an accident and damaged. Plaintiff alleges Dealer and Kia America refuse to repurchase the vehicle. Demurrer Defendant Kia America, I...

Excerpt: ...Plaintiff entered into a Factoring Agreement with Defendant ROC Funding, a New York Limited Liability Company. Plaintiff alleges that even though she was in full compliance with her obligations under the Agreement, on September 4, 2019, Defendant entered a Judgment by Confession in the Supreme Court of the State of New York. Shortly after obtaining the Judgment, Defendant began levying against Plaintiff's bank accounts. Defendant ROC Funding clai...

Excerpt: ...ally allow amendments. The motion is granted. Plaintiff may file and serve the amended complaint by February 7, 2022. The trial court has discretion to allow amendments to the pleadings "in the furtherance of justice." (Code Civ. Proc., § 473.) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 ...

Excerpt: ...this conclusion. (Comp. p.3.) The complaint also alleges that “John Doe” is the surviving son of Decedent and sues him as nominal defendant. (Comp. Attachment 2.) Harlee Suida Tuttle was substituted in as John Doe and then served with the complaint. Defendants have demurred based on lack of standing. Code of Civil Procedure section 377.60 states who can bring a cause of action for wrongful death. As relevant here, the statute allows the follo...

Excerpt: ... battery (civil), (5) intentional infliction of emotional CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 01/20/22 ‐ 10 ‐ distress, and (6) claim for punitive damages. Only the first cause of action for negligence is pled against Defendant. Defendant moves for judgment on the pleadings pursuant to Code of Civil Procedure (“CCP”) § 438 on the grounds that the Defendant did not owe Plaintiff a duty. As a thres...

Excerpt: ...ub was open and incurring the obligation to pay dues and both operational and capital assessments. (Complaint, ¶ 8, 10, 15.) In January 2016, he gave his membership back to the Club without compensation in exchange for becoming a Senior Non‐Equity Member, with limited golfing privileges, in exchange for the promise that his dues would be one‐half that of Regular Equity Members and that he would be liable for only one‐half of operational as...

Excerpt: ... reside or resided in the apartment building located at 1760 Diane Court in Concord, bring this landlord‐tenant habitability case. The parties have reached an impasse in settlement negotiations. A dispute has arisen regarding the one‐sided attorney's fees provisions in the Mold Notification Addendum and the Bedbug Addendum to the leases. Plaintiffs filed the First Amended Complaint on August 12, 2021, adding the Sixth Cause of Action for Decl...

Excerpt: ...meal breaks, failure to pay wages, and derivative violations. Defendant operates a single El Pollo Loco franchise. The total settlement payment is $65,000. This is composed in part of attorney's fees of $22,750 (35% of the total recovery), $2,500 in litigation costs, and up to $7,500 in costs to the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 01/20/22 ‐ 13 ‐ settlement administrator, ILYM. (ILYM currently est...

Excerpt: ...0 days of the date of this hearing. Background Plaintiffs Alamillo Rebar, Inc. and 361 West Channel Road, LLC sued Janice Alamillo (Janice) for (1) intentional interference with contract, (2) breach of fiduciary duty (ARI), (3) breach of fiduciary duty (LLC), (4) slander of title, and (5) injunctive relief. Janice filed a special motion to strike the complaint, including all causes of action. Analysis "Anti‐SLAPP motions are evaluated through a...

Excerpt: ...claims is granted. The motion to stay the proceedings in this action is granted in part. The PAGA claims asserted in the eighth cause of action of Plaintiff's First Amended Complaint shall be stayed until the arbitration proceeding on Plaintiff's individual claims is fully resolved or November 1, 2022, whichever occurs first. Background Defendant E‐Tech designs, develops and builds clean energy telecommunications and transportation infrastructu...

Excerpt: ... Plaintiff was traveling eastbound on Parr Boulevard, and defendant Ussery southbound on Richmond Parkway. Plaintiff was in the process of turning left to go northbound on Richmond Parkway on a green light, when Ussery broadsided her at approximately 50 mph. She alleges that the light in Ussery's direction turned red long before he entered the intersection, and that he hit her at full speed while illegally passing a long line of stopped cars; the...

Excerpt: ...iff contracted Covid and suffers from residual symptoms (“long haul Covid”). Plaintiff provided medical documentation and requested disability accommodations, which Defendant allegedly refused. On or about July 26, 2021, Defendant terminated Plaintiff. Plaintiff filed this action for disability discrimination, Labor Code violations, and a violation of Business & Professions Code § 17200. Motion Pursuant to the Federal Arbitration Act, 9 U.S....

Excerpt: ...ion 474, and plaintiffs' failure to first seek leave to substitute Does. The motion is granted. Union Oil has shown plaintiffs' counsel had knowledge of sufficient facts to cause a reasonable person to believe liability is probable, with respect to whether Union Oil supplied solvents to plaintiff's place of employment. Background The lawsuit arises from plaintiff, J.D. Ford's diagnosis of lymphoplasmacytic lymphoma, a type of non‐Hodgkin's lymp...

Excerpt: ...on District (also “Con Fire”), Contra Costa County, and Erick Hoglund. Erik Hoglund filed a general denial on March 8, 2019. Plaintiffs filed an amended complaint (“FAC”) on March 29, 2019, and while it is unclear the FAC was ever served on Erik Hoglund, the allegations against him are substantially the same in both pleadings. Both the original complaint, as well as the FAC, allege that on 11/16/2017 at or about 12:47 pm Joanna Papageorge...

Excerpt: ...nd. The deadline to amend will be ten days after the date of the hearing on defendant Khawaja's demurrer, currently scheduled for February 9, 2022. Should plaintiff elect not to amend, defendants' time to answer will run from that date. I. Background Sometime during the night of January 31, 2021 or the early morning of February 1, 2021, while plaintiff and his wife were sleeping in their home, defendants Tara Khawaja and Mark Lewis Hinton (collec...

Excerpt: ...nd Stuart Barker are the owners of real property located at 59A Saddle Road in Walnut Creek. Defendants James Willson and Monique Willson are the owners of real property located at 59 Saddle Road. The Barker Property and Willson Property share a driveway and property line at the Willson Property's southern border. There were two easements that burdened the Willson Property, benefitting the Barker Property. Plaintiffs allege Defendants made certai...

Excerpt: ...specificity.” (Plaintiffs' Opposition, filed on 12‐27‐21, p. 2, lines 6‐7.) Many of the specific facts plaintiffs allege, however, concern irrelevant background matters. The Court requests that plaintiffs brief the following matters not addressed with adequate specificity, either in plaintiff's Complaint or in plaintiffs' cursory opposition memoranda. 1. Plaintiffs' Standing. Plaintiffs' allegations and arguments concerning their standing...

Excerpt: ...v. Code § 1788.17; (4) negligence; and (5) Bus. & Prof. Code § 17200. Defendant demurs to all Plaintiffs' causes of action pursuant to Code of Civil Procedure (“CCP”) § 430.10(f), and demurs to Plaintiffs third, fourth, and fifth causes of action pursuant to CCP § 4430.10(e) as well. For the following reasons, the Demurrer is sustained, with leave to amend. Legal Standard “The function of a demurrer is to test the sufficiency of the com...

Excerpt: ...e, Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296‐297 [denial of leave to add alter ego theory six weeks before trial was reversible error].) There is an adequate explanation for plaintiffs' delay in seeking leave to amend: this action was stayed for a protracted period of time pending arbitration; plaintiffs gained CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 01/14/22 ‐ 4 ‐ new information concern...

Excerpt: ...be remain on calendar and all references to the First Amended Complaint will be to the Second Amended Complaint. The Court will construe the request for summary judgment as one for summary adjudication of all issues, except for the new issues added in CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 01/14/22 ‐ 11 ‐ the Second Amended Complaint. (2) The trial date of March 4, 2022 is continued to August 5, 2022. If...

Excerpt: ...of whether the denial of plaintiff's first motion for summary adjudication was with or without prejudice to filing a renewed motion that cured the defects of the first motion. Having looked at the issue now, the Court's preliminary assessment is that plaintiff has impermissibly renewed its previous motion. (See Code Civ. Proc., § 437c, subd. (f)(2); Code Civ. Proc., § 1008; Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096 ‐97.) The Court ...

Excerpt: ... declaratory relief against Defendant Bas of Tassajara II Homeowners Association (“HOA”) on November 2, 2018. Plaintiffs filed a First Amended Complaint (“FAC”) on May 20, 2021 which added causes of action for breach of fiduciary duty, breach of the CC&Rs, and negligent failure to maintain and/or repair property. The FAC brought in each of the HOA Board of Directors as a Doe Defendant, including Defendant Shawn Hanshaw (“Defendant” or...

Excerpt: ...conformity with the laws of this state.” (Code Civ. Proc., § 436, subd. (b). Cf. Center for Self‐ Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552‐54 [the taking of a default judgment against a suspended corporate defendant is not a statutory right].) Of course, Performance Settlement will not be able to appear at court hearings, and will not be able to effectively represent itself in response to discov...

Excerpt: ...rive, in Walnut Creek. Plaintiff allegedly defaulted on the loan on February 1, 2010. Defendant Attorney Lenders Services, Inc. was appointed as Trustee for the sale. On April 15, 2021, Defendant Attorney Lender Services conducted the Trustee's sale. At the auction, the Property was sold for $950,000 by credit bid from US Bank as Legal Title Trustee for the Truman Trust. The Trustee's Deed Upon Sale was recorded on May 3, 2021. Motion Defendant U...

Excerpt: ...4.) A court must order arbitration if it determines that a valid agreement to arbitrate exists. Here, such agreement exists, as discussed below. Background This lawsuit was filed by plaintiff, Katherine Betz, who is a registered nurse who was employed by defendants from 2006 until 2021. The complaint alleges four causes of action: (1) Retaliation in Violation of Health & Saf. Code § 1278.5, (2) Retaliation in Violation of Cal. Labor Code § 1102...

Excerpt: ...��) Nos. 7, 14‐18, 21‐26, 29, 33, 36; Plaintiff's Additional Fact (“PAF”) Nos. 2‐5, 7‐14.) Background Plaintiff argues he was promised he would be given, and, in part, had already been given, an ownership interest in one of defendant Stephen Sutta's companies, but was never given the share certificates evidencing that interest and did not know that he would never receive the remaining ownership interest or any of the share certificate...

Excerpt: ...cause of action included in this case. Plaintiff sued Defendant for premises liability. Plaintiff was injured when he entered the Goodwill location while a couch was being moved. Plaintiff somehow connected with the couch or the dolly being used to move the couch and was injured in the process. Defendant is moving for summary judgment, arguing that the dangerous condition was open and obvious and thus, it was not foreseeable that Plaintiff would ...

Excerpt: ...nd (2) Responses to Requests for Production of Documents and for sanctions. Defendant has attached verified responses to Plaintiff's Requests for Production of Documents, Set One, and Form Interrogatories‐General, Set One. Defendant‘s Opposition entirely omits any reference to the portion of Plaintiff's motion which asks the court to deem Admissions 1‐10 admitted. Based on the facts below, the motion is denied as to the Requests for Product...

Excerpt: ...iv. 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 to that cause of action or a defense thereto.' ” (S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) Plaintiff has met its burden on summary judgment by showing that it has evidence to meet all elements of its common counts claim. “An account s...

Excerpt: ...) 25 Cal.4th 826, 850.) If the defendant meets its initial burden, the burden shifts to the plaintiff to establish, through admissible evidence, that one or more material facts is disputed or that the defendant is not entitled to judgment as a matter of law. (See Aguilar, supra.) The admissible evidence that may be considered on a motion for summary judgment includes “affidavits, declarations, admissions, answers to interrogatories, [and] depos...

Excerpt: ...2000 as part of approval of a subdivision map. (FAC ¶¶ 5‐6.) The easement is known as “S‐ 3 Access Condition” and includes the following language: “private right‐of‐way easement shall be left open for pedestrian access between Happy Valley Road and Glen Road”. (FAC ¶6.) The easement route is sometimes called “the Dips” and members of the public “regularly and continuously” use the easement. (FAC ¶16.) Plaintiffs were u...

Excerpt: ... was wrongfully “disassociated” to have merit, the petition is granted. Background In 2002, BookFactory was formed. In 2004, when both petitioner and Murray were members, an Amended and Restated Operating Agreement took effect. (Neither side has submitted that document in connection with this proceeding.) In 2009, petitioner divorced from his wife, Patricia, and an Ohio divorce court entered a decree of dissolution adopting a settlement agree...

Excerpt: ...dant BPG in connection with the purchase of a residence by plaintiffs Wei Li and Aaron Hobson. BPG prepared an inspection report for Plaintiffs dated January 28, 2020. They contend BPG failed to detect failures in the foundation of the home that required repairs, though its inspection report stated there were no conditions at the property indicating foundation failures that required repair. (Compl. ¶¶ 7‐9.) Plaintiffs allege causes of action ...

Excerpt: ... or medical groups who are members, former members, or managers of a limited liability company, California Imaging and Treatment Center (“CITC”). 2. In the spring of 2019, Dr. Bimal Patel filed an action on behalf of CITC against Dr. Sirott, Dr. Robles, and others. The matter was referred to arbitration in the summer of 2019, and an arbitration was commended before the Honorable Bonnie Sabraw (Ret.) (the “Arbitrator”). 3. On September 6, ...

Excerpt: ...ce of a preliminary injunction would not be an appropriate exercise of discretion. (See City of San Jose v. MediMarts, Inc. (2016) 1 Cal.App.5th 842, 850; O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463‐64.) Plaintiff allowed the first priority loan to go into default, to the point where a trustee's sale was set. Plaintiff could not reasonably expect defendant, the holder of the second priority loan, to stand idly by. It would app...

Excerpt: ...rding the cause of action for breach of contract are undisputed and that defendant is entitled to judgment as to the entire case as a matter of law. (See the evidence and material facts cited in the body of this ruling.) The motion for summary adjudication is denied as to that cause of action for the same reasons, but granted as the Second Cause of Action. Defendant has met its initial burden to establish there was a genuine dispute about the val...

Excerpt: ...r system for their residence which they built on their property located at 2 Crane Court, Orinda, California (the "Property"). They allege the sprinkler system leaked on multiple occasions, causing water damage to their home. Plaintiffs filed their original complaint in March 2019. In April 2021, Plaintiffs were granted leave to file a first CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/06/22 ‐ 13 ‐ amended ...

Excerpt: ...owers”), and Defendant Agave Grill Corporation (“Agave Grill”), (collectively, “Defendants”). “An injunction cannot issue in a vacuum based on the proponents' fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity. (See Code Civ. Proc., § 526, subd. (a)(3).)” (Korean Philadelphia Presbyterian...

Excerpt: ...��actions, Case No. MSC20‐01714 ("Bennett Action"), now consolidated for discovery and pre‐trial proceedings with Case No. MSC20‐01593. For the reasons set forth, the motion is denied, without prejudice. Factual Background On March 11, 2020, an East Bay Municipal Utility District ("EBMUD") water line broke causing water to flow down Tappan Terrace located in a residential neighborhood in Orinda. (FAC ¶ 25.) There was a landslide and damage...

Excerpt: ... on the failure to allege sufficient facts to state a cause of action (due to the statute of limitations expiring) and on uncertainty. Defendant argues the statute of limitations has run on the negligence claims. Code of Civil Procedure section 339(1) “imposes a two‐year limitation on all actions on ‘obligation or liability not founded upon an instrument of writing.' It has been construed to cover actions based on negligent wrongs not invol...

Excerpt: ...und This is a wrongful death and elder abuse case. Plaintiffs Brenda Roberts and Terri West are the daughters of decedent Ardist West, Sr., who died on March 4, 2019. Plaintiffs have CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/05/22 ‐ 2 ‐ reached a tentative settlement with Defendants. Ms. Lowanda West‐Brown, also a surviving daughter of Mr. Ardist West, Sr., is named a nominal defendant in this action. ...

Excerpt: ...Civil Procedure § 430.10(c).) The primary rights theory is applied to determine whether claims involve the same cause of action. (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) Under this theory, “the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798...

Excerpt: ...te the facts only briefly here. Plaintiff Annie Ko's husband, Peter Chong, died on September 2, 2018, following bleeding and complications from a tonsil biopsy performed by a private physician, Dr. Joel Ross, on August 31, 2018. Ko did not file this wrongful death lawsuit until two years later, on September 2, 2020, even though the statute of limitations on a claim for medical malpractice is one year “after the plaintiff discovers, or through t...

Excerpt: ...o, LLC, Plaintiff JFP‐AG/Longview, LLC, and Plaintiff JFP‐AG/Carthage, LLC (collectively, “Plaintiffs”)'s Verified Amended Complaint (“VAC”) for declaratory relief and contract reformation. Defendant demurs to Plaintiffs' cause of action for declaratory relief and two causes of action for contract reformation pursuant to Code of Civil Procedure (“CCP”) § 430.10 subsections (e), (d), and (f) on several grounds. As a threshold issu...

Excerpt: ...or the past 10 years, to include MRI films, CAT scans, myelograms, radiological images, ultrasounds and any other films” (“x‐ ray discovery”) In April of 2021, Plaintiff objected to the subpoenas as overbroad. Defendant withdrew the subpoenas and reissued them in October, 2021 with similar language, but adding that the above‐quoted request was limited to “head, neck, and back” injuries or treatment for “10 years prior to 8/23/2019...

Excerpt: ...t 9 Meadow Park Court in Orinda. Defendant Black Diamond Paver Stones & Landscape, Inc. (referred herein as “Black Diamond” or “BD”) is co‐owned by Defendants Roger Van Alst and Tiffany Van Alst. Black Diamond advertises it is a licensed contractor. Defendant Roger Van Alst has a C‐27 landscape contractor's license and is the Responsible Managing Employee (RME) and/or Responsible Managing Officer for Black Diamond. (Complaint, ¶¶ 12...

Excerpt: ...dence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity. (See Code Civ. Proc., § 526, subd. (a)(3).)” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) “A preliminary injunction is proper only if there is a substantial basis to suppose that the defendant, if not restrained, will actually engage in the conduct sought to be enjoined.” (Ep...

Excerpt: ...l determination in this action, Thomas K. Butt, as well as anyone acting on his behalf, shall not continue to post or otherwise disclose the City's confidential attorney‐client emails, or parts thereof, to any unauthorized person, without first obtaining a waiver by City Council. This includes, but is not limited to that material originally divulged on www.tombutt.com on November 5th and 16th, 2021. A proposed order in accordance with this tent...

Excerpt: ...ank Trust National Association (“U.S. Bank”) (collectively, “Defendants”). Plaintiffs' motion to consolidate is denied. However, the unlawful detainer action is hereby stayed, subject to the conditions set forth below. Analysis Consolidation The Court of Appeal has held in pertinent part as follows: When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in ...

Excerpt: ...nants Thomas Milway and Megan Hansen sued Cross‐Defendants Charles and Sherry Wilcoxsons for declaratory relief (cause of action one) and quiet title (cause of action three). The remaining causes of action included in the second amended cross‐ complaint were brought against Henry and Anne Bailey and those claims have been ordered to arbitration. The notice of motion lists seven issues for summary adjudication. The issues include: 1) Cross‐C...

Excerpt: ...misrepresentation, as stated in plaintiff's Fifth Amended Complaint (“5AC”), filed on June 28, 2021. Defendants' MJOP is granted without leave to amend. Plaintiff still has two surviving causes of action, and the parties should be prepared to set a trial date at the next Case Management Conference on January 28, 2022. The Court previously granted defendants' MJOP as to the fraud and negligent misrepresentation causes of action in the Fourth A...

Excerpt: ...gment of dismissal, separate from any formal order on the demurrer, and shall submit that CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 12/29/21 ‐ 18 ‐ proposed judgment to plaintiff's counsel for approval as to form. The basis for this ruling is as follows. HAMP. Plaintiff's claims depend primarily on the legal conclusions alleged in paragraph 17 of the First Amended Complaint. Plaintiff here alleges that defe...

Excerpt: ...mily estate. The family intended the sizeable fortune, amassed during the lives of Robert C. and Lois Braddock, to go to charities upon the deaths of the couple's two adult children. To lawfully avoid the potential massive tax penalties, which could exceed $100M, the Braddock trust developed a two‐step plan to assure the estate passed to the charities. The first step was approval of certain trust modifications by the probate court. The second s...

Excerpt: ...endants”), who oppose the motion. Cross‐defendants argue Reid has added material that expands the scope of what was previously alleged. They argue that the amended pleading raises new claims such as the deprivation of support for Reid's property. They further take issue with Reid's declaration, arguing it does not comply with California Rules of Court, rule 3.1324(b), which requires declarations in support of amending a pleading to include an...

Excerpt: ...ackground CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 12/23/21 ‐ 12 ‐ The FAC alleges that Robert J. Mann, now deceased, and Valerie Mann, presumed to be his spouse though not stated, lived in a condominium unit next door to Michael Luecker's unit. (FAC ¶¶ 1, 5, and pp. 8‐9].) Plaintiff alleges that a water pipe supplying Mr. Luecker's shower inside a wall adjacent to the Manns' unit leaked and caused dam...

Excerpt: ...Mary Moore, as Individuals and Successors‐in‐Interest to the estate of Jasmine Nash (“Plaintiffs”)'s Complaint. Defendant AMR was substituted for Doe 1. The Complaint, as it relates to AMR pleads causes of action: 1) Wrongful Death, 2) Survival Action Based on Negligence. Defendant demurs on the grounds that Plaintiff has not stated a claim for gross negligence as required by governing statute CA HLTH & S § 1799.106(a). As set forth belo...

Excerpt: ...��). Preliminary Matters Judicial Notice Supporting the motion to strike, Defendants ask the Court to take judicial notice of the 2AC. The RFJN is denied as superfluous. The pleading that is the subject of the instant motion is, quite naturally, before the Court in connection with these proceedings, and so the Court need not take judicial notice of it. However, when a motion attacks a specific pleading, courtesy copies of the relevant pleading ar...

Excerpt: ...as entered at a time when Zenaida Gantan was incompetent and did not have the capacity to act on her own behalf, and that an injustice has occurred as a result. For the following reasons, the motion is granted. Request for Judicial Notice Defendant Zenaida Gantan requests judicial notice of several documents from Contra Costa Superior Court case no. P21‐01359. The unopposed Request is granted. (Cal. Evid. Code §§ 452, 453.) Plaintiff Kamilee ...

Excerpt: ...use each are barred by a 3‐year statute of limitation, (3) all allegations that Defendant was unlicensed because Defendant asserts it's not a material allegation and Plaintiff has not claimed specific damages from it, so the allegations are irrelevant (MTS, 6:1‐11), and (4) Plaintiff's entire Second Cause of Action for Rescission because Defendant asserts it is not a legitimate cause of action and is otherwise time‐barred. The Court hereby ...

Excerpt: ...g Ortega as a plaintiff. (Ortega had filed a PAGA action in Los Angeles, but he dismissed it.) The settlement would create a gross settlement fund of $1,380,000. The class representative payment to each plaintiff would be $10,000. Counsel's attorney's fees would be $460,000 (33 1/3% of the settlement). Litigation costs would not exceed $20,000. The CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 12/16/21 ‐ 7 ‐ se...

Excerpt: .... Feng (in his official capacity as Presiding Judge of the Superior Court), and T. Michael Yuen (in his official capacity as Chief Executive Officer of the San Francisco Superior Court), have violated relevant provisions of the Penal Code by failing to provide necessary priority to the conduct of criminal trials. In general, Petitioners allege that that there is a “humanitarian crisis in San Francisco's criminal legal system.” More specifical...

Excerpt: ...y 6, 2022. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 12/16/21 ‐ 19 ‐ Edwin Tiu and Fire Wings Concord sued Fire Wings International, LLC, Long Trinh, and Susan Trinh for terminating a franchise agreement. Fire Wings International filed a crosscomplaint against Edwin Tiu and Fire Wings Concord for (1) intentional interference with prospective economic relations (against Tiu), (2) negligent interference with ...

Excerpt: ...ller, an attorney, was negligent in his representation of Vannucchi in a separate unlawful detainer proceeding. Preliminary Matters Judicial Notice Supporting the demurrer, Miller asks the Court to take judicial notice of several matters: (1) the unlawful detainer complaint in case number MS19‐0812; (2) title search records related to Vannucchi's former residence; (3) a proof of service purporting to show the various notices given related to th...

Excerpt: ...it doubted plaintiff could successfully amend, but it granted leave to amend one more time. The court incorporates that ruling by this reference and therefore abbreviates its discussion here. Plaintiff fell on August 15, 2018, while exiting the San Pablo Library, suffering various injuries, including a fracture to her right ankle that required surgery. The Library is operated by Contra Costa County, but its building and grounds are controlled by ...

Excerpt: ...1) Dangerous Condition of Public Property, 2) Violation of Gov. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 12/16/21 ‐ 10 ‐ Code §815, §820, and §835. Defendant also has moved to strike all claims against it except for the claim for dangerous condition of public property pursuant to Gov. Code §835. Defendant also asks the court to take judicial notice of the City's Crosswalk Policy (Ex. A). As set forth b...

Excerpt: ...wer on or before December 27, 2021. Background On July 12, 2018, plaintiffs filed a complaint against Danville for damages due to alleged contamination (trespass) on and in the vicinity of plaintiffs' property. The substances complained of are hazardous, implicating various federal statutes aimed at pollution control. On September 7, 2018, Danville cross complained against several cross‐ defendants including the Estates, setting forth 13 causes...

Excerpt: ...ulation and was added as ZOE 7 by a DOE amendment on August 27, 2021. (American National will be referred to as Coast.) Coast was served with the summons and cross‐ complaint on September 14, 2021. Coast now seeks to dismiss the cross‐complaint against it pursuant to Code of Civil Procedure section 583.420(a)(1) based on the failure to serve it with the summons and complaint within two years. Branagh's opposition was filed late. California Ru...

Excerpt: ...iduciary duty; (3) negligence; (4) breach of implied covenant of good faith and fair dealing; (5) continuing nuisance; (6) continuing trespass; and (7) declaratory relief. Defendant seeks to strike paragraphs 76, 103, 113 of the Complaint and paragraphs 7‐9 of the prayer for relief. Specifically, Defendant seeks to strike the Plaintiffs' request for injunctive relief and prayer for punitive damages. The motion is denied‐in‐part and granted�...

Excerpt: ...denied in part, and granted in part, with leave to amend, as detailed in the ruling below. Legal Standards Applicable to Motion to Strike The Court may strike allegations that are “irrelevant, false or improper matter” or any portion of a pleading "not drawn . . . in conformity with the laws of this state." (Code Civ. Proc. § 436(a) and (b).) Defendants' motion is made on the ground the allegations they seek to strike "request[] relief not s...

Excerpt: ...August 1, 2018, defendants, who speak Tagalog, posted a housing advertisement for a studio on Craigslist. It stated the studio would be perfect for a "pinay or pinoy." Plaintiff responded, but did not ultimately become a tenant. Plaintiff filed a discrimination complaint CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 12/16/21 ‐ 7 ‐ against defendants with the Department of Employment and Fair Housing ("DEFH"). I...

Excerpt: .... B. There Are No Pleadings That Would Allow The Court To Evaluate The Potential “Merits” Of Plaintiff's Claims Against Baypick. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 12/16/21 ‐ 14 ‐ The second ground for denying plaintiff's motion requires more elaboration. The stated purpose of the previously issued preliminary injunction was to allow plaintiff an opportunity to get this case at issue, so that the...

Excerpt: ...rder arbitration if it determines that a valid agreement to arbitrate exists. Here, such agreement exists, as discussed below. Background Plaintiff alleges that he was recruited and hired by defendants to work for defendant RBF Investments, Inc. (“RBF”), having worked for many years in the pawn shop industry. On or about May 24, 2019, plaintiff entered into two agreements: an employment agreement and a shareholder agreement. His verified comp...

Excerpt: ...mplaint, given both her changes in counsel and additional facts learned through discovery. The Court disagrees with Defendant's attempt to distinguish a medical “disability” with a medical “condition” as grounds for prejudice in this matter, and the Court determines that Defendant is not prejudiced by Plaintiff filing the proposed Second Amended Complaint. Defendant also failed to rebut Plaintiff's claims that these additional causes of a...

Excerpt: ...r before March 1, 2017, and whether the agreements are sufficiently certain to be enforced. (Disputed Material Fact Nos. 13, 19, 21, 28, 29, 30, 31, 32; Plaintiff's Request for Judicial Notice filed 9/29/21; Def's Ex. B, Rios Depo. at 47:22‐25; 48:20‐21; 128:7‐25; 131:24‐132:2; 133:6‐20; 140:20‐22.) General background The Third Amended Complaint (“TAC”) of plaintiff, Jose Villalobos, alleges five causes of action concerning an all...

Excerpt: ...Mullen acquired property, 2210 Hoffman Lane, Byron, California, from Hogge. After plaintiff acquired the property, Hogge took portions of a solar system for installation at his new residence. Plaintiff then executed a release in favor of Hogge on April 15, 2015 in exchange for $10,800. The release states, in relevant part, that “McMullen […] hereby release[s] Bryan Hogge […] of and from all Obligations in respect to repairs agreed to at 221...

Excerpt: ...te a cause of action against Cross‐Defendants. The amended cross‐complaint shall be filed and served on or before January 4, 2022. Background Plaintiffs Ryan and Gabriela Power, husband and wife, purchased their residential property located at 137‐139 Richard Lane in Walnut Creek from Eric and Catherine Griffin. Cross‐Defendant Camille Ahern, a licensed real estate salesperson, negotiated the listing agreement with the Griffins for the ma...

Excerpt: ...s, and renders the following tentative decision. The petition is denied for the reasons discussed below. I. Background On August 31, 2020, petitioner submitted CPRA requests to both respondents. A. City (Concord Police Dept) From the City, petitioner asked for: 1. [I]nformation of each and all sexual assault cases reported to you between Jan 1, 2010 and Dec 31, 2019: Report number, date of report, date of offense, number of witness( es), number o...

Excerpt: ...lternative, summary adjudication. For the reasons that follow, the motion is granted in part and denied in part, as follows. Standard A “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.” Code of Civil Procedure § 437c(c). “[F]rom commencement to conclusion, the party moving for summary ...

Excerpt: ...re is a triable issue of fact whether an exception to the rule of Privette, infra, and Sandoval, infra, applies. (Undisputed Material Fact (“UMF”) Nos. 2‐9, 11, 13, 14, 15, 16, 17, 18, 21, 26, 29, 35, 37.) Background This is a personal injury accident arising out of a worksite injury that occurred on June 1, 2016 when plaintiff, Kapferer, fell into an uncovered and unbarricaded trench excavated by SMI Demolition. Kapferer seeks compensation...

Excerpt: ...x. C to Oparowski Decl., Dawn Giammona Depo. at pp. 198‐199; Ex. D to Oparowski Decl., Alex Giammona Depo., at pp. 252‐ 254 and 266‐268; Ex. E to Oparowski Decl., SMI PMQ Depo., at pp. 123‐ 124.) Because of this factual dispute, it is unnecessary for the court to decide now whether a reasonable trier of fact could conclude that the accident occurred due to the sole negligence of Integra and the other subcontractor, SMI; or whether plainti...

Excerpt: ...ARING DATE: 12/10/21 ‐ 22 ‐ for failure to state a cause of action and for uncertainty are sustained, with leave to amend; and all other general and special demurrers including the demurrers to the third cause of action are overruled. Factual Background The subject of the dispute is a residential real property located at 2020 Meadowlark Ln., Oakley, CA 94561 (the "Property"). Plaintiffs Melissa Hallstrom and Victor Hallstrom (the "Hallstroms"...