Excerpt: ...91, 92, 94, 95, 97; Plaintiff's Additional Fact (“PAF”) Nos. 101, 106, 107, 108, 109, 110, 111, 116, 117, 121, 122, 123, 124, 126, 127, 128, 129, 130, 132, 159); 2. the County created the dangerous condition or had actual or constructive notice of it (DMF Nos. 29, 32, 37, 46, 47, 49, 51, 58, 59, 91, 96; PAF No. 101, 113, 121, 131, 132, 136, 137); and, 3. the County approved all pertinent design features before construction; (DMF 58, 59, CONTR...

Excerpt: ...ce Protection, Public Safety Enhancement, and Development Restriction Initiative (“Richland Initiative”). The motion is opposed by the City of Antioch (“City”), and by real parties in interest Richland Communities, Inc. a Florida corporation, and Richland Planned Communities, Inc., a California corporation (collectively “Richland”). The Richland Initiative includes a provision approving a development agreement between Richland and the...

Excerpt: ...loyer‐required business expenses. Plaintiff, Paula Henson, the auntemployer, claims that Sosine charged personal expenses to an employer credit card. Sosine now demurs to the Second Cause of Action of Henson's FAC, which alleges a cause of action for treble damages under Penal Code section 496 (c). In pertinent part, Penal Code section 496 provides as follows: (a) Every person who buys or receives any property that has been stolen or that has b...

Excerpt: ...dants argue that each claim fails to state a cause of action and is uncertain. Agency Much of Plaintiffs' arguments in support of their complaint rely on allegations that defendants Augustine and NCA were the agents of Lal and Cheap Homes. Paragraph 11 states that “Plaintiffs are informed and believe and thereon allege that at all times mentioned herein, Defendants, and each of them, were the agents, servants or employees of their Co‐Defendan...

Excerpt: ...bjections, filed after his Reply and Separate Statement Response, are untimely under California Rule of Court 3.1354(a) and Plaintiff has not made a showing of good cause for their untimely filing. As a result, the Court disregards them. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 11/18/19 ‐ 2 ‐ Analysis Continuance As a threshold issue, Counsel for Plaintiff requests a continuance pursuant to CCP § 437c(h)....

Excerpt: ...nts had business relationships in the Real Estate and Mortgage Industry, and worked with one another in the construction, rehabilitation, and sales of properties in the Greater Bay Area. Mancheno and Defendant Brian Baniqued were partners and co‐owners of real estate franchise entitled Century 21 Pinnacle. Plaintiff alleged in the original complaint that defendants conspired to provide falsified/ forged/manipulated documents and false testimony...

Excerpt: ...T MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/15/19 ‐ 11 ‐ This is a personal injury case arising out of an automobile accident. Plaintiff alleges that he was struck by a vehicle being operated by Defendant Jarrard while walking. Complaint at ¶ 14. He alleges that the subject sidewalk area where he was struck was owned and controlled by Defendant County. Id. at ¶¶ 15, 16. The Complaint alleges causes of action for (1) negligence, ...

Excerpt: ...siness premises at 3100 Delta Fair Boulevard, Antioch. TRC is a commercial tenant of Landlords at those premises, operating a dialysis center there. This case originated with a trip and fall accident in the parking area of the premises. Plaintiff Sandra Roman, having received treatment at TRC, was being escorted from the TRC facility by a paratransit driver from Acclaim Mobility, LLC to a waiting vehicle. The Acclaim driver stopped to chat with a...

Excerpt: ...answer to the complaint. (In its previous ruling the Court said it couldn't find one in the file, but the electronic docket shows it was filed and it has since been placed in the Court's file.) A defendant who has already answered is not then allowed to demur. This is admittedly only a matter of labeling. An MJOP serves essentially the same purpose as a demurrer, namely to test the legal sufficiency of the complaint's allegations; and it may be f...

Excerpt: ...quest for Judicial Notice Nelson seeks judicial notice of the complaint and answer on file in a separate, and apparently related case. The request is unopposed. It is granted. However, the Court notes that while it takes judicial notice of the existence of those materials and their contents, it does not take judicial notice of, or otherwise accept, the truth of the matters stated therein. Anti‐SLAPP Motion Deciding Nelson's motion potentially r...

Excerpt: ... first submission and then failed to timely process the second, belatedly rejecting it as untimely. The evidence does not support plaintiff's claims. Plaintiff's counsel understood that the nearly $1.5 million judgment needed to be renewed before the ten year period expired on April 3, 2019. Plaintiff's counsel emailed an Application for Renewal of Judgment to Galaxy Process Servers on March 4, 2019. See Goodman Decl., para. 11; Keshinshirian Dec...

Excerpt: ...of the judgment and bringing this motion. (Butler‐Rupp v. Lourdeux (2007) 154 Cal.App.4th 918, 924‐ 928; CCP 685.040; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.) Plaintiffs' moving papers sought fees relating to their lead attorney Bruce Zelis at $400/hour for 43.1 hours, collections attorney Paula Grohs at $300/hour for 56.4 hours, and appellate specialist Gary Garfinkle at $800/hour for 155 hours. Defendants dispute the propriety of the...

Excerpt: ... evidence, if any, they envision being presented at the eventual trial of this case. Certainly if there were allegations along the lines of intentional racial discrimination or the like, it would be hard to see how the City could bar discovery into the potentially discriminatory motives or actions of the people involved. As the City points out, however, no claim of that kind is pleaded. So what evidence, if any, does the City itself plan to proff...

Excerpt: ...to dismissal as against this defendant. The complaint, filed in pro per, is quite cursory, alleging in highly conclusory terms that the two defendants are engaged in debt collection and have committed various violations of the Federal Debt Collection Practices Act and California Debt Collection Practices Act. (Actually, the complaint is studiously informative as to whether there are two defendants, or just one operating under two names – a poin...

Excerpt: ...ingham and his wholly owned companies, Lender Scout Corporation (“Lender Scout”), Alansis.Com, Inc. (“Alansis”), and Speak With A Geek, Inc. (“SWAG”). Plaintiff alleges that, from 2002 through 2018, he provided administrative, executive and sales services for Mr. Cunningham and his “ever morphing array of wholly owned and controlled business entities,” most recently (2015‐2018) for Lender Scout, Alansis, and SWAG. (Complaint ¶�...

Excerpt: ...of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/31/19 ‐ 30 ‐ Nevada, Case No. PR16‐00328 (the “Nevada Action”), appellate case Nos. 77763 (Nevada Supreme Court) and 77763 COA (Nevada Court of Appeals) have concluded. The parties shall update the court on the status of the Nevada Action at a Case Management Conference on June 3, 2020 at 8:30 a.m. in Department 33. Because of this ruling, the court decl...

Excerpt: ...f action are barred by the applicable statute of limitation (Code of Civil Procedure §§ 338(d) [fraud, three years]; 339(1) [breach of contract based on negligent misrepresentation, 2 years]; 337 [rescission, four years]). Initially, the Court notes that the parties did not completely comply with the meet and confer requirement of Code of Civil Procedure section 430.41(a). Defense counsel sent a meetand‐confer letter, but the statute requires...

Excerpt: ...e November 29, 2019. The court grants defendants' Request for Judicial Notice filed 9/23/19. It takes judicial notice of the existence and contents of the attached documents. The court disregards the Declaration of Armand Estrada filed 9/23/19 after paragraph 6. Neither a demurrer nor a Motion to Strike is an evidentiary motion. Statements about why paragraphs of the Complaint are uncertain are argument and should be contained in the Memorandum o...

Excerpt: ...the First through Sixth Causes of Action, on the grounds the causes of action are defective because of misjoinder of parties; each cause of action fail to state facts sufficient to state a cause of action; and each cause of action is uncertain. Defendant Yu also maintains the dispute arising from the sale of the property was ultimately mediated between Plaintiff Colbert Trustee and Defendant Yu, and settled during mediation. The parties agreed to...

Excerpt: .... Defendants have objected that this is procedurally improper, and the Court agrees with that objection. Plaintiffs rely on the Ward decision. (See, Ward v. Superior Court (1997) 55 Cal.App.4th 60.) The Court finds this decision distinguishable on two grounds. First, the Court of Appeal did not decide the question of whether a grant deed can properly be cancelled by means of an ordinary noticed motion — in the face of a procedural CONTRA COSTA ...

Excerpt: ...T MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/31/19 ‐ 7 ‐ The court may order the lis pendens expunged if: (1) the court finds that the pleading on which the notice is based does not contain a real property claim. (Cal. Code Civ. Proc. § 405.31); (2) if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Cal. Code Civ. Proc. § 405.32); and (3) t...

Excerpt: ...defendant Bosman, was once up for potential sale to Pacific West Communities, and was ultimately emptied, or largely emptied, as a result of code enforcement action by the City of Antioch. Facts The 4thAC alleges the following. Defendant Joe Bosman owns the Wilbur Avenue property. (¶ 2.) On the rear of his property he had 15 tenants who own mobile homes. He was charging them approximately $500/month. He claims that since 2004 he has advised his ...

Excerpt: ...7.) This motion is denied. The court is not authorized to strike an entire complaint because one of several remedies may not be sufficiently pleaded. Apparently, the order that defendants really seek is one striking the “punitive damages allegations” from the Complaint. (See Opening Brief at 2:26.) But that description is not substantially better. “A notice of motion to strike a portion of a pleading must quote in full the portions sought t...

Excerpt: ...rris, seek to sue the City of Richmond for negligence and wrongful death of their mother, Rashanda Franklin. Petitioners' request is DENIED. RELEVANT FACTS The facts of this case are tragic. Ms. Franklin was killed on April 4, 2017 when her ex‐boyfriend, Lawyer Dashaun McBride (“McBride”), shot her inside her car in front of her children while en route to dropping them off at school. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTME...

Excerpt: ... and fire road in Briones Regional Park. (Facts 16, 76.) They allege that their properties were damaged by flooding and excessive mud deposits when the creek channel behind their homes filled with water, became obstructed, and breached the banks onto their properties on the evening of January 10, 2017. (Facts 128‐129.) They contend this damage was caused by defendant, East Bay Regional Park District because defendant owns and operates the Lafay...

Excerpt: ...it has taken the deposition of the claims adjuster and conducted other discovery and better knows what it can actually prove regarding oppression, fraud, or malice. Background This is an insurance bad faith case. The complaint alleges that plaintiff, Kapu Properties LLC, owns a residential real property located at 648 Fourth Street in Richmond, California (the “Property”). Kapu leased the Property to a tenant. On December 7, 2018 the house on...

Excerpt: ...t's tentative ruling, unless a stipulation has been reached by the parties. Plaintiff Mohamed A. Ibrahim, as Trustee of the Mohamed A. Ibrahim 2015 Trust (“Plaintiff” or “Ibrahim”) filed a complaint for breach of contract against Defendant Pastime Foods, LLC, an Arizona limited liability company (“Defendant” or “Pastime Foods”). Plaintiff seeks an order for a writ of attachment against Defendant in the amount of $345,303.40, but d...

Excerpt: ..., CALIFORNIA DEPARTMENT: 21 HEARING DATE: 10/30/19 ‐ 12 ‐ This argument lacks merit: the issue of whether the parties entered into an arbitration agreement is an issue that the trial court must always decide. (9 USCS § 4 [if there is a dispute over the existence of an arbitration agreement “the court shall proceed summarily to the trial thereof”]; Code Civ. Proc., § 1281.2 [the court shall order arbitration “if it determines that an a...

Excerpt: ...intrusion, and neighbors, claiming management has failed to remedy these problems despite numerous requests and complaints by plaintiff. (FAC ¶ 14.) Garcia is the on‐site manager for Bayo Vista. Defendant's demurrer is based on her asserted immunity under Government Code § 820.2, which states, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omissio...

Excerpt: ...e defenses set forth in the answer”. Code of Civil Procedure § 438(c)(2)(B). Plaintiff's motion purports to be to the entire answer, asking that it be stricken. But part of the answer is defendant's general denial. Plaintiff does not purport to show, via matters deemed admitted or otherwise, that the general denial is unmeritorious. To do that, he would have to show that every element of every cause of action in plaintiff's first amended compl...

Excerpt: ...ed action No. C17‐00838, Judge Austin overruled Freshko's demurrer to Mr. Olivares' First Amended Complaint. Judge Austin held that Mr. Olivares had adequately pleaded a delayed discovery theory that could support tolling the statute of limitations. Substantially the same allegations cited by Judge Austin in support of his ruling are set forth in the Amended Cross‐Complaint filed in this action on December 17, 2018. The Court will not reconsi...

Excerpt: ...he implied covenant of good faith and fair dealing; (3) rescission; (4) lost profits; and (5) elder abuse. For the following reasons, the demurrer is overruled. Cross‐Defendants must file and serve their answer within 28 days. Request for Judicial Notice Cross‐Defendants request Judicial Notice of the Arthur Brandt Declaration in support of Diablo Contractors' Opposition to Fidelity's Application for Right to Attach Order. The Court need not ...

Excerpt: ...rwise overruled. Wong may file and serve his second amended cross‐complaint within 28 days. If he chooses not to amend, the answer to the remaining portion of the FAXC will be due within 28 days after that deadline. Futility All but one of Wong's causes of action are asserted as derivative claims on behalf of Brachium, Inc. (Cross‐defendants argue that none of these causes of action can be asserted by Wong personally, and he concedes they're ...

Excerpt: ...e defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract. (b) The motion shall be made on the grou...

Excerpt: ... objections on behalf of Centrox and Viera, even when those objections were made – and even less so now that Black Diamond has itself agreed to produce the same range of documents.) The Court agrees with the recommendation of the Discovery Facilitator that there is potential discoverable relevance to the documents at issue. A key factual issue in the case will be whether Black Diamond was aware, at the time of this project, that its subcontract...

Excerpt: ...petition containing a sufficient number of signatures, LAFCO now has a ministerial duty to order the dissolution of the District subject to an election by the voters. The dissolution of the local district is governed by the Cortese‐Knox‐Hertzberg Local Government Reorganization Act of 2000. (Government Code § 5600 et seq.) If the dissolution proceeding is initiated by an agency other than LAFCO, and the affected agency objects, the dissoluti...

Excerpt: ...Connie Schwendeman (“Plaintiff”). The FAC alleges causes of action for (1) failure to pay overtime (Labor Code §§ 510, 1194) (against Cross Country only); (2) failure to furnish accurate wage statements (Labor Code § 226) (against Cross Country only); (3) unfair business practices (Bus. & Prof. Code § 17200 et seq.) (against Cross Country only); (4) waiting time penalties (Labor Code § 203) (against Cross Country only); and (5) represent...

Excerpt: ...d. 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.” 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 judgment a...

Excerpt: ...nts did not accurately identify the proper rate of pay when double overtime wages were paid. A. Terms of the Settlement. The gross settlement amount is $240,000. The settlement was negotiated with the assistance of an experienced mediator. Notice of the PAGA claims was provided to the Labor & Workforce Development Agency. The record does not show that notice of the settlement motion has been provided to the LWDA. Plaintiff estimates that there ar...

Excerpt: ...��complaint filed the by general contractor, Branagh Development. Colony filed an answer as an intervenor in this case. At the same time, CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 10/24/19 ‐ 5 ‐ Colony filed a cross‐complaint for indemnity, contribution and declaratory relief seeking indemnity and/or contribution from the general or various subcontractors. Victory demurred to Colony's cross‐complaint ar...

Excerpt: ...niel Wondrusch and Jordan Wondrusch were seriously injured in an automobile accident caused by Defendant Jason Daniel Gregory on March 25, 2017 in Livermore, California. (Complaint ¶¶8‐ 10). Defendant Jason Daniel Gregory was allegedly driving under the influence at over 100 miles per hour on a suspended license at the time of the crash. (Complaint ¶¶12‐ 13). He allegedly had a criminal history of driving under the influence. (Complaint �...

Excerpt: ...their exhibits as required by CRC 3.1110(f) and Local Rule 3.42(3). In addition, Plaintiffs failed to mark the relevant portions of deposition testimony in a manner that calls attention to the testimony as required by CRC 3.1116(c). The Raposos (see line 3) also failed to mark the relevant portions of deposition testimony in a manner that calls attention to the testimony as required by CRC 3.1116(c). Abreu failed to include the first page of any ...

Excerpt: ...rict, sues to quiet title and moves for a summary judgment that the entire Easement is extinguished. Defendant, BNSF, raises several arguments why factual issues remain or why the District is not entitled to such a judgment as a matter of law. The District's motion is granted. The Court concludes that the District is correct in its construction of the parties' contract language as to what event terminates the easement in question. But even if BNS...

Excerpt: ...or anticipatory breach of the succession contract. He accordingly argues that the succession contract dispute must be tried to a jury as a breach‐of‐contract damages claim. Having read the briefs and cases cited, however, the Court must agree with defendant that no such damages claim will lie prior to the death of the alleged promisor. Plaintiff's only remedies available for the asserted anticipatory breach are entirely equitable, not involvi...

Excerpt: ... construction project to alleviate traffic congestion in the City of San Pablo. (Complaint ¶6.) CCTA and EBMUD disputed, and currently dispute, who would pay for these relocation efforts. (Complaint, Exhibit A, and ¶¶11, 19.) In 2013, before any of the work was performed, EBMUD and CCTA entered into an agreement that the work would be performed by EBMUD and CCTA would pay EBMUD's invoices for it, but both parties would retain all rights and wo...

Excerpt: ...pport of this cause of action. Plaintiffs own the property located at 5945 Bruce Drive in Danville, apparently a semi‐rural property with a barn and horses on it, having purchased it in May 2016. (FAC ¶ 11.) Their property was damaged when earth from the property uphill from them at 5950 Bruce Drive slid onto their land in February 2017 (the “East Slide”). (¶ 17.) There was a second slide at the end of February 2017 (the “South Slide”...

Excerpt: ...on the court to compel plaintiff Anthony Alvarado, a former employee, to submit the claims made in his complaint for multiple violations of the California Labor Code to binding arbitration pursuant to the terms of two separate binding arbitration agreements entered into as a condition of his employment. Plaintiff was employed at different times by two auto dealerships owned by the defendant corporations, which are owned in common by the same fami...

Excerpt: ...for Summary Adjudication is denied. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Defendants' motion failed to completely dispose of the issue of duty. Background On July 20, 2016 Plaintiffs, Andrew Vasquez and Tiffany Copland‐Vasquez, rented an apartment at 1195 Saranap Avenue, #17 in Walnut Creek, from August 16, 2016 to...

Excerpt: ...indemnity, equitable indemnity, and contribution. For the following reasons, the MJOP is granted, with leave to amend. Standard The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) As a consequence, it may be granted if, from the pleadings, together with matters that may be judicially noticed, it appears that...

Excerpt: ...s worked, and other violations arising from those failures. A. Terms of the Settlement. The gross settlement amount is $305,000. The settlement was negotiated with the assistance of an experienced mediator. Notice of the PAGA claims was provided to the Labor & Workforce Development Agency. Notice of the settlement motion has been provided to the LWDA. Plaintiff estimates that there are 166 members of the class. The agreement contains a release, w...

Excerpt: ...ERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/17/19 ‐ 16 ‐ Misjoinder of Parties Jarvis argues that he is an improper defendant in this case. Plaintiffs are suing related to disputes over a lease at 3880 Blackhawk Road, Danville. Plaintiffs entered into a lease with J/C Investments, Inc. Later, J/C Investments sold the property to Dentite Enterprises, LLC. Plaintiffs argue that Jarvis is a proper party because J/C Investmen...

Excerpt: ...f the complaint. Yet Defendant was in default when the normal deadline to file this motion expired. The Court is not convinced that imposing such a deadline was intended by the statute, but in any event, the Court has discretion to hear a motion filed more than 60 days after service. (Code of Civil Procedure § 425.16(f).) Given that Defendant's motion was filed within 60 days of the order setting aside her default, the Court exercises its discre...

Excerpt: ...plicated several law enforcement officers from five east bay police agencies. For the reasons that follow, the petition is denied. Standard of Review When a public employee challenges an employer's disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence. Wences v. City of Los Angeles, 177 Cal.App. 4th 305, 314 (2009). An abuse of discretion is established if the trial court de...

Excerpt: ...unsel understood that the nearly $1.5 million judgment needed to be renewed before the ten year period expired on April 3, 2019. Plaintiff's counsel emailed an Application for Renewal of Judgment to Galaxy Process Servers on March 4, 2019. This is supported by counsel's declaration and the declaration from Galaxy. See Goodman Decl., para. 11; Keshinshirian Decl., 6. Interestingly, the documents allegedly submitted in support this point to not act...

Excerpt: ...aton (“Plaintiff”). The Complaint pleads a single cause of action for violation of the Federal Employers' Liability Act (“FELA”) arising out of Mr. Eaton's death from cancer. Defendant moves for summary judgment on the grounds that (1) Plaintiff's claim is barred by the three‐year statute of limitations; (2) Plaintiff cannot show that BNSF's negligence, if any, caused CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARI...

Excerpt: ...presented by the same real estate agent and brokerage, defendants Mayra Davalos and SPRE, respectively (collectively, “Moving Defendants”). (Complaint, ¶17.) Plaintiffs allege that Cervantes informed Davalos that he was planning on hiring a surveyor to double check the boundaries of the Subject Property, having noticed that the fence shared with a neighboring property was in an unusual position. In response, Davalos stated that Cervantes nee...

Excerpt: ...int (“SAC”). Defendant moves on the grounds that the FAC does not allege facts sufficient to support an award of punitive damages based on malice, oppression, or fraud as required by Civil Code § 3294. The Court granted Defendant's previous motion to strike punitive damages allegations from Plaintiffs' First Amended Complaint but gave Plaintiffs leave to amend. For the following reasons, the Court grants the instant motion, without leave to ...

Excerpt: ...to allege fraud with the required specificity. In the SAC, Plaintiff alleges that Davis made representations to Plaintiff (by making statements to Boguess and Ryan). Davis is alleged to be a “shareholder, owner, office, director, manager, employee, agent or representative of Terra Steward, Foshay Electric and Kodiak Moon.” (SAC ¶3.) Davis's business card stated that he worked for all three companies. (SAC ¶¶6, 14.) Davis represented to Pla...

Excerpt: ...Defendant in the amount of $345,303.40, but does not identify any specific bank accounts or real property. This motion was previously on for hearing on October 9, 2019. The Court agreed to accept letter briefs on the issue of whether the Court has the authority to attach assets outside of California. For the following reasons, the application is denied. Factual Background Defendant executed a Note Payable in Plaintiff's favor in the amount of $30...

Excerpt: ...t be better for all concerned, though, to put this over a short period so that both sides can address the questions in writing. If the attorneys prefer, they can save themselves an appearance tomorrow by e‐mailing their agreement to a further hearing date and briefing schedule. The Court's questions are numbered and indented. The Scope of the Claims in the FAC. 1. As the Court understands it, all claims made in the FAC against PacFin and/or Boo...

Excerpt: ...plaintiff Denise Walker; $7,500 to Cleve Walker; and $500 to Lindsey Walker. (For clarity, and meaning no disrespect, the Court will use first names.) Each side has filed a memorandum of costs – plaintiffs on the basis that they prevailed at trial, and defendants on the basis that they had made a § 998 offer for less than plaintiffs ended up winning at trial. Plaintiffs move to strike defendants' memorandum of costs on the ground that defendan...

Excerpt: ...f Civil Code § 2923.6 by failing to make a determination on Britton's completed package for loan modification; and (2) for violation of Civil Code § 2923.7 in that no single point of contact was provided to Britton after CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/11/19 ‐ 3 ‐ she commenced communicating with Wells Fargo regarding a loan modification. (Co‐plaintiff Sherry DeLaura has dropped out of the ...

Excerpt: ...onceded Counts Plaintiff responds to the present demurrer by offering to dismiss without prejudice half of her twelve asserted causes of action, namely the 4th (retaliation), 7th (intentional infliction of emotional distress), 9th (whistleblower), 10th (defamation), 11th (Civil Code § 51.7), and 12th (Civil Code § 52.4). No such dismissal document has been filed, however, so the Court treats the offer as a concession of the demurrer as to these...

Excerpt: ...o the two contractual interference, claims, but sustained it with leave to amend as to the cause of action for promissory fraud. The basis for the ruling was that the FAC failed to allege that plaintiffs acted in reliance on defendant Daniel Sheehy's alleged promise to take a break and lay low from the facility for several months. Further, plaintiffs were damaged by Sheehy's tortious interference rather than by his promise not to interfere. The p...

Excerpt: ...activity over this last summer as trial approached. This Line 8 is a motion directed at certain causes of action in plaintiffs' First Amended Complaint (FAC). Shortly after this motion was filed, plaintiff was given leave to file a Second Amended Complaint (SAC) asserting certain additional causes of action. Showing better cooperation and common sense than has marked some other aspects of this litigation, the parties agreed (1) that the summary a...

Excerpt: ...is a component society of and chartered by the California Dental Association (“CDA”). Clark has been a member in good standing with CCDS for approximately 14 years and CDA for approximately 20 years. Petitioner has dual membership in component societies‐‐Contra Costa County and Marin County. Petitioner alleges she was nominated, ran unopposed, and was duly elected at the CCDS General Membership on or about October 17, 2017 to serve a seco...

Excerpt: ...all Cell Wireless Facilities Policy (the “Policy”) was validly adopted pursuant to that Ordinance. The Policy now governs the permitting and installation of small cell wireless facilities in the City of San Ramon. The Policy exempts such facilities from the Zoning Ordinance, so there is no longer any possible conflict between the Master Licensing Agreement and the Zoning Ordinance. The only question then is whether any small cell wireless fac...

Excerpt: ...e November 14, 2019. The basis for this ruling is as follows. A. Defendant's Status As A Bona Fide Purchaser. Plaintiffs allege in conclusory terms that defendant is not a bona fide purchaser for value. But they fail to allege any ultimate facts supporting that conclusion. The mere fact that a trustee's sale is continued one or more times does not indicate some problem with the nonjudicial foreclosure process: continuances are statutorily allowed...

Excerpt: ...efendants Mr. Umeda and Luis Carrillo (collectively, “Co‐defendants” or “Cotrustees”) are the Cotrustees of the Trust pursuant to the Third Amendment. The papers submitted show that Mr. Umeda drafted the estate plan for Decedent, and Luis Carrillo was the decedent's caregiver, lifelong friend, and real property manager. Decedent's son, Plaintiff Donald Houghton (intending no disrespect and for clarity, “Donald”), alleges that the Th...

Excerpt: ...ds causes of action for (1) professional negligence and (2) fraud of false pretenses, deceptions, and conspiracies. Defendants demur on the grounds that (1) there is no allegation of an attorney‐client relationship between Nisperos or the State Bar and Plaintiff (and as a consequence Nisperos and the State Bar did not owe her a duty of care); (2) Plaintiff's professional negligence claim against the State Bar is barred as a matter of law for fa...

Excerpt: ... weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) The trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute. “This determination involves two considerations: (1) whether there is a valid agreement...

Excerpt: ...laintiff to place her foot on the most appropriate piece of equipment for the exercise, namely an exercise block or step. Instead (plaintiff's evidence contends), Agredano had plaintiff rest her foot on the outer surface of a treadmill, an inappropriate surface for a number of reasons. (Defendants do not concede that this was negligent, but their present motion effectively assumes that a jury could so find.) Plaintiff slipped and injured herself....

Excerpt: ...prises. Blake is alleging that Jesse promised that Blake would inherit family business, but Jesse has changed his mind. Blake claims there is an enforceable contract, and Jesse disagrees. In addition, Blake is also suing because Blake's employment at the car wash was terminated. Contract Claims (C/A 1, 2, 8, 9, 10, 11, 12 and 13) Defendants seek to dispose of the following contract claims: (1) Breach of Contract, (2) Breach of Implied Covenant of...

Excerpt: ...ous analysis need not be repeated. In particular, there still remains (1) no basis for asserting that USS‐Posco had any special relationship with plaintiff, such that it could be liable for mere nonfeasance; and (2) no basis for blaming USS‐Posco, as opposed to defendant Belcher, for having started the fire. What is new this time around is a slight shift in the focus of plaintiff's theory of liability, as expressed in its opposition brief. Pl...

Excerpt: ...efendants (Bert Dunken and Jason Weeks). “California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable.” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 146 (citation omitted).) The party opposing “bears the ‘substantial' burden of proving why it should not be enforced.” (Id. at 147.) The law governing this motion is concisely an...

Excerpt: ...concealment/intentional misrepresentation; (2) unjust enrichment; (3) breach of contract; (4) breach of express warranty; and (5) express indemnity. For the following reasons, the Demurrer is sustained‐in‐part, with leave to amend with respect to the first cause of action, and overruled‐in‐part with respect to the remaining causes of action. Request for Judicial Notice Defendants request judicial notice of the Plaintiffs' Complaint in thi...

Excerpt: ...7c(p)(2) supply the standard for deciding the MSJ. Section 437c(o) says: A cause of action has no merit if either of the following exists: (1) One or more elements of the cause of action cannot be separately CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/03/19 ‐ 2 ‐ established, even if that element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action. Section 437c...

Excerpt: ...Unlicensed Contractor. A‐1. Defendant's Argument Lacks Merit. Defendant argues that plaintiffs' Complaint shows on its face that defendant was a licensed contractor. This forms the basis for most of defendant's sub‐arguments in support of striking specific requests for relief from the Complaint. The Court finds that defendant's argument lacks merit. Defendant relies on two exhibits to the Complaint: Exhibits “B” and “E.” Neither exhib...

Excerpt: ...torney, Defendant Thomas T. McCormick and the McCormick Law Firm. In February 2017, Plaintiffs and Defendants entered into a legal services agreement, whereby McCormick substituted in to represent Plaintiffs in a property dispute action brought against him by his sister, Marlene Smith in the case of Smith v. Smith. Contra Costa Case No. C15‐00305. Plaintiffs allege Defendants' handling of the Smith v. Smith case fell below the applicable standa...

Excerpt: ...efendant in the amount of $345,303.40, but does not identify any specific bank accounts or real property. For the following reasons, the application is denied. Factual Background Defendant executed a Note Payable in Plaintiff's favor in the amount of $300,000. Complaint at ¶ 16. The Note provided for an interest and principal payment schedule and required late charges for each installment that remained unpaid more than 15 days after the due date...

Excerpt: ...ause of action in the cross‐complaint on the ground each fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10 (e).) Cross‐ Defendant also demurs to each cause of action on the ground they are ambiguous and unintelligible, thus subject to a special demurrer for uncertainty. (Code of Civil Procedure § 430.10(f).) The limited role of a demurrer is to test the legal sufficiency of a complaint. It rai...

Excerpt: ...der the “total picture,” including “the condition of the court calendar, the dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied.” Salas v. Sears, Roebuck (1986) 42 Cal.3d 342, 349. This is a complicated, multi‐party construction defect case involving the installation of over 19,000 linear feet of a public sanitation syst...

Excerpt: ...lly “Gaffney” and “Downs”, respectively). The Complaint pleads causes of action for discrimination on the basis of sex; hostile work environment sexual harassment; quid pro quo sexual harassment; retaliation; failure to prevent discrimination and harassment; and constructive discharge in violation of public policy. For the following reasons, the Motion for Summary Judgment, or, in the alternative, Summary Adjudication, is granted in part ...

Excerpt: ...njunction. CCP § 527(a) authorizes issuance of injunctions before trial “if sufficient grounds exist therefor.” Injunctions will rarely be granted (absent specific statutory authority) where a suit for damages provides a clear remedy. Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307; Pacific Designs Sciences Corp. v. Sup.Ct. (Maudlin) (2004) 121 Cal.App.4th 1100, 1110. Conversely, injunctive relief is more likel...

Excerpt: ...s Jordan Schuster and Jacob Lynn. Code of Civil Procedure section 425.16 allows a party to strike a claim that is based upon protected activity using a two‐step process. “ ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's complaint fit one of the categories spelled out...

Excerpt: ...1‐362. The court has reviewed the declaration of Plaintiff and the later submitted medical records and has concluded that an error was made by the court. The default judgment is far in excess of the evidence produced at the hearing and hence must be set aside. However, vacating a default judgment because it is excessive does not affect the underlying default. It simply returns the case to the default status it had before the erroneous judgment ...

Excerpt: ...plus 5 days for mailing. (Code Civ. Proc. §§ 685.070; 1013.) Defendant timely served the motion but filed it late. This does not present a jurisdictional bar to its consideration. (Hoover Cmty. Hotel Dev. Corp. v. Thomson (1985) 168 Cal.App.3d 485, 488 [“a trial court has broad discretion in allowing relief from a late filing where, as here, there is an absence of a showing of prejudice to the opposing party”].) There is no prejudice here s...

Excerpt: ...ection 2698 et seq., are not subject to arbitration nor do civil penalties for unpaid wages constitute individual claims such that they should be severed for arbitration. I. Background Plaintiff, having provided notice of various Labor Code violations by defendants, brought this complaint under PAGA to seek civil penalties on a representative basis for defendants' Labor Code violations. As part of her employment, plaintiff agreed that “any and ...

Excerpt: ...nst Defendant was due to extrinsic fraud, attorney mistake, and excusable neglect. For the following reasons, the motion is granted. Request for Judicial Notice Plaintiff requests judicial notice of several facts. This Request is unopposed. However, whether Defendants Siamak Shemirani or Hasan Redzic had valid contractors' licenses or whether Caspian Enterprise, Inc. has ever been licensed in California is not susceptible to judicial notice. The ...

Excerpt: ...vidually by their first names to avoid confusion.) David alleges that he took over the mortgage payments and other carrying costs for the property beginning in 2010, and he and his parents intended that he take title. But due to a series of recording errors, this never occurred. In a 2011 deed, David erroneously transferred his 50% interest in the property to his parents, instead of the other way around. A 2015 deed corrected this, purporting to ...

Excerpt: ...reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code of Civil Procedure §473(b).) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/09/19 ‐ 13 ‐ Courts are clear that the deadline to seek to set aside a default is six months from the entry of the default. “The six‐month time limit for granting statutory relief is jurisdictional and the cou...

Excerpt: ... granted herein. See Order Shortening Time on Order to Show Cause Why a Preliminary Injunction Should Not Issue, and an Expedited Discovery Order. It now determines whether the preliminary injunction should issue. BACKGROUND 1. Stearns' business Plaintiff Stearns asserts that it is a nationwide market leader in the mortgage industry. It does not do business with homeowners seeking mortgage loans; rather, it courts mortgage brokers who then deal d...

Excerpt: ...TRO or Injunctive Relief) Causes of Action. Pursuant to CCP § 437c(f) and (o), Defendants move for summary adjudication on the ground each cause of action lack merits because the Strassers cannot establish one or more elements of the right to a prescriptive or equitable easement over the dispute triangle. Defendants have not established they are entitled to summary adjudication of these causes of action as a matter of law. “The motion for summ...

Excerpt: ...d ignore pages 21‐24 and Levin's entire argument concerning nondiscriminatory reasons for its employment actions. In its discretion, the Court will consider the argument, but Levin is reminded to follow all rules in future filings. II. Background Plaintiff Joseph Irvin, an African‐American male, has worked for Levin since 1991. In his complaint, he alleges a series of incidents of racial harassment. In the 1990s, someone carved “WHITE POWER...

Excerpt: ...mount of $31, 215.00. The court finds Defendant to be the prevailing party and entitled to an award of fees pursuant to Civil Code section 1717. Both the promissory note and deed of trust executed by Plaintiffs contained provisions for an award of attorney's fees in all actions related to the loan. The Court finds that the fee provisions were broad enough to cover both contract and non‐contract causes of action. Although Defendant was not a sig...

Excerpt: ...nant” or “Waste Connections”), Madera Disposal Systems, Inc., Potrero Hills Landfill, Inc., and Waste Solutions Group of San Benito, LLC (collectively, “Landfill Cross‐ CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 01/07/19 ‐ 11 ‐ Complainants”). The Cross Complaint alleges causes of action for: (1) declaratory and injunctive relief; (2) unreasonable search and seizure in violation of the fourth ame...

Excerpt: ...n this case, which are scheduled in January and February. If the pleadings are settled after the Court rules on the various demurrers to the SAC, then Defendant 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, however, Plaintiffs are given leave to amend then Defendant need not respond until after the amended complaint i...

Excerpt: ...ters, Stryker's motion for leave to file under seal is itself noticed for February 9, which is not only long after this motion, but indeed after the trial date. That timing quirk aside, moreover, Stryker presents no substantive discussion at all as to why there is any justification for filing this evidence under seal. There is only a completely conclusory assertion that the materials in question are confidential, signed by an attorney and not any...

Excerpt: ...ng whether she is or is not the proper person to represent the trust and the estate in a non‐probate action. In response to an OSC, Ontifade produced probate documents and other evidence establishing her standing in these respects, and the Court announced itself satisfied. That determination, however, went only to whether Ontifade is the right person to be a plaintiff here. The Court did not address whether, in pursuing this action, she needs a...

Excerpt: ...ction on her home. Defendants demur on the basis that plaintiff's causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. (See Code of Civil Procedure § 430.10(e)‐(f).) The demurrer is overruled. Defendants shall answer by January 18, 2019. Fraud “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b)...