Excerpt: ...onvenience Disney Construction, Inc.'s work on the SMD1 Sewer Pump Station Project.” Notice at 2:1‐3. Defendant/Cross‐Complainant City of Lincoln (“the City” or “Lincoln”) opposes the MSA. For the following reasons the MSA is denied. Standard Pursuant to Code of Civil Procedure Section 437c(t), “a party may move for summary adjudication of a legal issue or claim for damages other than punitive damages that does not completely disp...

Excerpt: ...ellaAndrade (“SVA”) was the Controller of SBJLG from approximately August 2010 through January 2016. Cross‐Complainant alleges SVA's responsibilities included handling SBJLG's confidential and sensitive financial matters. SVA knew that SBJLG had placed confidence in SVA's integrity to handle certain financial matters, including review of employee's time cards. Cross‐ Complainant alleges SVA breached the duty by knowingly placing her own i...

Excerpt: ...ed within four years, the petition to vacate or correct an award must be served and filed within 100 days after the service of the award on the petitioner. [Citation.] The same 100‐day limitation applies when vacation or correction of the award is sought by response. … To this latter rule there is only one exception. When the party petitions the court to confirm the award before the expiration of the 100‐day period, respondent may seek vaca...

Excerpt: ...e Of Action. The First Cause of Action is for breach of contract. Defendants move for summary judgment in part on the ground that this cause of action is barred by the applicable four‐year statute of limitations. (See, Code Civ. Proc., § 337, subd. (a).) Plaintiff sues on two invoices that came due on May 9, 2010. However, plaintiff did not file suit until August 8, 2017, more than seven years later. The issue presented is whether the two invo...

Excerpt: ... Drill Tech's agent or “middle man” for the purpose of purchasing supplies from preselected vendors for use on the Work of Improvement project at SFO International Airport, wherein Plaintiff was a subcontractor. DLD would be paid a 10% commission, calculated as a markup on the costs of goods and delivery charges. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/30/19 ‐ 16 ‐ A dispute arose. Plaintiff allege...

Excerpt: ...y February 13, 2019. Plaintiff filed her original complaint on April 26, 2018 and therein alleged that she was injured when a steel fire door unexpected closed on her. However, after discovery had commenced and the statute of limitations had expired, plaintiff discovered a mistake in her complaint. (See Code of Civ. Proc. § 335.1.) The parties stipulated to allow plaintiff to file an amended complaint, which removed the language relating to a st...

Excerpt: ...bility on the part of Dr. Lee several years after they suit, based upon conversations with an expert consultant. Shortly thereafter, they filed a Doe amendment on September 25, 2018, naming Dr. Lee as Doe 1. Dr. Lee now demurs to the complaint. He argues that the complaint contains no charging allegations against him and that it is uncertain. (CCP § 403.10 (e), (f).) A party who is ignorant of the name of a defendant or the basis for a defendant...

Excerpt: ...n and Emily Shenson and Plaintiffs David Mariampolski and Megan Frantz (collectively, “Plaintiffs”). The FAC and the FAC‐A plead causes of action against the Park District for (4) nuisance; (4‐ a) withdrawal of lateral support; (4‐b) inverse condemnation; and (6) dangerous condition of public property. For the following reasons, the Demurrer is sustained‐in‐part, and overruled‐in‐part. Request for Judicial Notice The Park Distri...

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

Excerpt: ...xamination of physical items. Bailey v. Superior Court (1970) 4 Cal.App.3d 513, 520‐ 21. The court finds that testing appears reasonably calculated to lead to the discovery of admissible evidence. In making this finding, the court is in no way intimating how it would rule on the admissibility of any results in a further motion for summary adjudication or trial. Test results will be subject to a protective order limiting use to this case. The pa...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...n for summary judgment of his complaint. I. Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/18/19 ‐ 13 ‐ The parties to this dispute have battled for many years over property at 7090 Camino Tassajara in Pleasanton. Briefly, Clancy exchanged Danville property to buy approximately 33 acres from Corrie Development Corporation – now represented by Pete Klein as personal representative of Mr. Sidney Co...

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

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

Excerpt: ...ere, and he has not carried it. Accordingly, the motion is denied. Plaintiff's complaint is unverified, but he has also filed his own declaration under oath. Plaintiff is apparently under the impression that his vehicle was towed (and is subject to sale) because of a purported lien by a lender – in other words, that his car was repossessed. He goes to some lengths to show that in fact there is no lender lien on his vehicle. But that is a good w...

Excerpt: ...its principal, defendant Christopher Music), under which plaintiff would scout for suitable properties available for Proud Start. When she found one, plaintiff would then arrange a sale, being paid a commission by the seller. And then, at some later point, plaintiff would act as the broker in reselling the property for Proud Start. The obvious catch in this set‐up, at least as to the first contemplated transaction (Proud Start's purchase), is t...

Excerpt: ...uez/Glick settlement. Since there is no longer an opposition as to the good faith of Arriaga's settlement CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/17/19 ‐ 8 ‐ with Vazquez, the Court finds that that settlement is in good faith. In addition, the analysis below discussing Arriaga's settlement with Kidwell applies equally to Arriaga's settlement with Vazquez. The party claiming that a settlement is not in ...

Excerpt: ...aintiff's purported reliance on the Exchange's alleged promise to preserve the vehicle are speculative. Plaintiff's alleged damages are what she would have received in her “hypothetical products liability lawsuit against the manufacturer of her vehicle.” (TAC, paragraph 39) Any damages in these circumstances would CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/17/19 ‐ 3 ‐ be “merely possible” and cont...

Excerpt: ...heir allegations, and correct grammatical errors. Plaintiffs move pursuant to Code of Civil Procedure § 473 and 576, and Rule 3.1324 of the California Rules of Court on the grounds that Plaintiffs' investigation of previously unknown facts reveals that the notarized deeds of trust for some of the cross‐collateralized properties were altered by the inclusion of additional pages that changed the legal description after Plaintiffs executed them b...

Excerpt: ...�� under Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801, including “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of meaning class action status through trial, the amount offered in settlement, the extent of discovery completed and the state of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction … to th...

Excerpt: ...de section 946.6 generally has the same meaning as under Code of Civil Procedure section 473. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d 270, 275, fn. 5.) Under section 473, an attorney's sudden and unexpected illness may support a finding of excusable neglect. See Contreras v. Blue Cross of Cal. (1988) 199 Cal.App.3d 945, 951 (attorney broke her wrist).) Here the declaration of petitioner's attorney states that petitioner...

Excerpt: ...T: 21 HEARING DATE: 01/16/19 ‐ 4 ‐ Amended Complaint (“TAC”) filed by Plaintiff Michael J. Hickey and Plaintiff Mercedes V. Hickey (collectively “Plaintiffs” or “the Hickeys”). The TAC alleges claims for (1) wrongful foreclosure; (2) unfair business practices; (3) cancellation of trustee's deed; (4) declaratory relief; (5) violation of Civil Code § 2923.7; (6) violation of Civil Code § 2924.17; (7) violation of Civil Code § 292...

Excerpt: ...��50 partnership in a company known as Side CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/16/19 ‐ 16 ‐ X Side. The parties brought several claims against each other at trial in Circuit Court of the State of Oregon, County of Jackson, Hon. Timothy Gerking presiding. The Oregon court directed verdict for plaintiff Cathy Chapman on several claims, and issued a limited judgment as to the jury awards on competing...

Excerpt: ...T MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/16/19 ‐ 12 ‐ Defendant demurs pursuant to Code of Civ. Proc. § 430.10(e) and (f) on several grounds. For the following reasons, the Demurrer is sustained, with leave to amend. Request for Judicial Notice Defendant requests judicial notice of several documents from the Contra Costa County Recorder Office. Plaintiff objects to this Request. Defendant's request for Judicial Notice is grante...

Excerpt: ...nce and negligent hiring. Bernardino is CrossDefendant Clean Carts' president, owner, and chief executive officer and signed the Service Agreement on behalf of Clean Carts. The motion is made on the ground the interests of justice will be served by allowing the filing of the amended cross‐ complaint. Here, Plaintiff Bruce Lohmann was injured when the “Gatekeeper wheel” abruptly and unexpectedly locked on the Safeway shopping cart that he wa...

Excerpt: ...nrichment) and 15 (violation of Bus. & Prof. Code § 17200) for the failure to state a cause of action. Defendants have also demurred to causes of action 1 (breach of written contract) and 2 (breach of implied contract) for uncertainty. Causes of action 1 and 2 (breach of written and implied contracts) The demurrer to causes of action one and two is puzzling. These claims have been included in the complaint since the original complaint was filed ...

Excerpt: ...they filed the present lawsuit, alleging that defendant had not timely processed or acted on their modification request in various ways. Defendant demurred to the original complaint in this case. Plaintiffs' counsel refused to engage in the required meet‐and‐confer, and filed no opposition to the demurrer. The demurrer was sustained with leave to amend. The ruling addressed a variety of individual problems with individual causes of action. Ov...

Excerpt: ...ction 2033.420 allows for recovery of the costs and fees incurred in having to prove a fact that was denied in response to RFAs, though subject to some important exceptions – most importantly, when there was “reasonable ground to believe that that party would prevail on that matter”. PSIC complains that plaintiff refused to admit that a copy of the policy was mailed to him (RFA 5), pointing out that plaintiff did not dispute that fact in op...

Excerpt: ...easonably pertinent to forming an opinion on the medical issues presented in the case, such as pertinent medical history and the mechanics of how plaintiff was struck during the accident. The Court regards plaintiff's objections on these points as baseless and asserted in bad faith. Plaintiff's substantive defense as to the related‐questions issues is half‐hearted, summarizable as “there's no authority directly on point so therefore it must...

Excerpt: ...nds asserted in the MJOP. Plaintiff, as the prevailing party on the appeal, filed a memorandum of costs. Defendant now moves to strike it. The motion is granted in part. (See also below for more comments and directions concerning case management.) Defendant points out that the memorandum of costs was untimely filed, not having been filed within 40 days of the Court of Appeal's remittitur as required by CRC 8.278(c). Witkin sets out the settled la...

Excerpt: ...1) professional negligence, (2) negligent supervision, (3) negligent misrepresentation, (4) breach of written contract, and (5) breach of oral contract. Planned Parenthood is a defendant in all causes of action, while Weinstein is defendant in causes of action one and three. Defendants have demurred to each plaintiff's claims for the failure to state a cause of action based on the statute of limitations being expired. (Plaintiff does not contest ...

Excerpt: ...n, (2) trespass to chattels, and (3) intentional infliction of emotional distress. Defendants demur to the intentional infliction of emotional distress cause of action only, pursuant to Code of Civil Procedure § 430.10, subdivision (e) and on the grounds that Plaintiffs fail to state facts sufficient to constitute a cause of action for intentional infliction of emotional distress. For the following reasons, the Demurrer is overruled. Defendants ...

Excerpt: ...class action status through trial, the amount offered in settlement, the extent of discovery completed and the state of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction … to the proposed settlement.” Because this matter also proposes to settle PAGA claims, the Court also must consider the criteria that apply under that statute. The Legislature's express command that PAGA settle...

Excerpt: ... of Plate Line Framers, Inc. (“Plate Line”). (FAC ¶ 4(g).) Miks contends that plaintiffs' allegations are uncertain and insufficient to constitute a cause of action. (See Code of Civil Procedure (“CCP”) § 430.10 (e)‐(f).) The tort liability of corporate officers and directors was explained in Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 503‐504: “It is well settled that corporate directors cannot be held vicariou...

Excerpt: ...harged must be reasonable, as determined by the standard rates and hours charged to fee‐ paying clients. The Court finds that the hourly rates claimed by each of Plaintiffs' attorneys and paralegals are reasonable given their training and experience, as well as the customary rates charged in the Bay Area. The Court also finds that the hours claimed to have been spent in connection with this case are reasonable given the activities involved and ...

Excerpt: ...ities in California at any time on or after March 2, 2013. Defendants OM Fitness, LLC and Pleasanton Fitness, LLC d/b/a Fitness Evolution (collectively “Defendants” or “Fitness Evolution”) opposes certification on two main grounds. First, Defendants argue that Ms. Rodriguez cannot represent the class because she settled all her claims in 2014 and because her claims are not typical as she was a “hybrid worker.” Second, Defendants make ...

Excerpt: ... is still Omni, just in a different representative capacity. Moreover, the Trustee could have conducted the requested discovery in the AP but failed to do so. In reaching this decision the court has fully considered the factors in CCP § 2024.050, which are as follows: “(1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reas...

Excerpt: ...her roof and then migrated into the interior, damaging the framing and her personal property. Pacific provided plaintiff a policy of insurance for the home. This dispute turns on whether the policy provides coverage for her losses. II. Motion for Summary Judgment Plaintiff's claims are for breach of contract and breach of the covenant of good faith and fair dealing. Pacific moves for summary judgment on the grounds that the undisputed evidence sh...

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

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

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

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

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

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

Excerpt: ...on are asserted for intentional fraud, negligent misrepresentation, fraudulent concealment, financial elder abuse, and (as against Deak) professional negligence. What they all have in common, however, is that they are all squarely based on only a single allegedly wrongful act, namely cross‐defendants' submission to the Kensington Municipal Advisory Council and the Contra Costa County Planning Commission of a land survey performed by Deak, and a...

Excerpt: ...ring that any action on the contract must be brought in Illinois. The Court gave defendant time to file a motion to dismiss on the basis of that clause. This is that motion, and it is granted. The case is dismissed. The Agreement between the parties – “Rapid Standard Terms and Conditions of Sale” (attached to the Complaint) – contains a “Choice of Law” provision. It states, “The parties expressly agree that the terms, execution, and...

Excerpt: ...attorney did not tell plaintiff why he thought the SAC was incorrectly alleged. Plaintiff asks that this Court drop the demurrer from calendar. The Court denies this request. The Court finds that the meet and confer process here was sufficient, as plaintiff has been informed about the problems with his complaint from the previous challenges to the pleadings and the Court's rulings on those challenges. Indeed, as will be seen, this ruling is but a...

Excerpt: ...n failing to satisfy the requirement of meeting and conferring as required by Code of Civil Procedure § 430.41. The statute requires that the meet‐and‐confer must occur “in person or by telephone”. Here, there was only a single exchange of letters – a medium less likely to involve any real discussion or give‐and‐take. Indeed, the motion to strike (Line 8) well illustrates the point, with PLSCS expressly agreeing to part of the moti...

Excerpt: ...mplaint only in response to defendant's motion to dismiss for lack of an operative complaint. The Court allowed the amendment, but in May 2018 it again sustained a demurrer to the entire FAC. The tentative was to deny leave to amend. At hearing plaintiffs persuaded the Court to allow one more amendment as to at least part of the complaint. The record (and the Court's recollection) do not disclose what parameters the Court set for amendment (other...

Excerpt: ...The first iteration of the Motion was denied on procedural grounds for failure to comply with Code of Civil Procedure (“CCP”) section 473 and include proposed pleadings in the moving papers. The Motion was refiled on April 7, 2017. Again, the proposed pleading was not properly attached. On April 24, 2017, attorney for Yeyeclub filed a declaration and attached, finally, the proposed pleading—a “Motion to Quash Service.” (See Declaration ...

Excerpt: ...uling on the demurrer to the First Amended Complaint (“FAC”), but that were not included in the SAC, as set forth below. No additional papers may be filed in support of or in opposition to the demurrer. The Court notes that, given the inconsistencies that have already arisen in the three versions of plaintiff's pleading on file so far, the Court has grave concerns about the good faith of plaintiff's increasingly implausible legal theory. Plai...

Excerpt: ...llegations where ‘it concludes as a matter of law that, assuming the truth of the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be satisfied.'” (Schermer v. Tatum (2016) 245 Cal.App.4th 912, 923 (“Schermer”).) “Class actions are permitted ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is i...

Excerpt: ...y Hill Limited Partnership (“Ivy Hill”). Ivy Hill was formed to own, operate, and eventually sell the Ivy Hill Apartments, located at 1700 Botelho Drive, in Walnut Creek, CA. The property contained 116 apartments, of which 68 were market rate units and 48 were below market rate units. The Class A limited partners held interests in the market rate units and the Class B in the below market units. The debts of the Class A units were to be alloca...

Excerpt: ...at 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 as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The court shall consider all of the evidence set forth in the papers, ...

Excerpt: ...980) 104 Cal.App.3d 250, 252. The party asserting that the settlement was not made in good faith must demonstrate that the settlement is “so far out of the ballpark in relation to [the Tech‐ Bilt] factors as to be inconsistent with the equitable objectives of the statute.” Tech‐Bilt, Inc. v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499‐500 (“Tech‐Bilt”). The criteria for the determination of a good faith settlement were ori...

Excerpt: ...esponses June 26, 2018. Defendants did not seek to meet and confer about the responses until August 7, 2018, just a week before the 45‐day deadline to file a motion to compel. (Where responses are served through e‐filing, there is a two‐day extension on any deadlines. Service after close of business is deemed to have occurred the next day. (CRC 2.251(h)(2), (4).) The e‐mails of the 7th and 8th show that there was some good faith meeting a...

Excerpt: ...reliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. The OSC was originally set for May 10, 2018, then continued by the Court to July 12, 2018 so that it could be heard with Wells Fargo's demurrer to Plaintiffs Complaint. The hearing on that demurrer was vacated when Plaintiffs filed a First Amended Complaint and the hearing on the preliminary injunction was taken off calendar. At the hearing on the d...

Excerpt: ...). However, that arbitration is stayed pending litigation of the remainder of this case, at least for now. Plaintiffs purchased a residence in Orinda. They allege that shortly after the purchase, they discovered that considerable water was draining onto their property from (among other alleged sources) two neighboring properties owned by defendants the Govedniks and the Hassards. The latter owners have asserted that they have a drainage easement ...

Excerpt: .... 32, 33, 54, 55, 61, 62; Plaintiff's Additional Fact Nos. 4‐7, 13; Comstock Decl. at 8:16‐20; Fullerton Decl., ¶ 21, 24, 31.) The court discussed the facts of this case at length in its ruling on August 3, 2018, denying Dr. Jacobs's motion for summary judgment. It will not repeat that extended discussion here. Suffice it to say that plaintiff has submitted admissible evidence from his expert, Dr. Fullerton, that Dr. Miranda breached the sta...

Excerpt: ..., without leave to amend. The court sustains RHA's demurrer to the Fourth and Fifth Causes of Action, with leave to amend. Plaintiff shall file and serve any amended complaint on or before October 12, 2018. If plaintiff elects not to amend, defendants shall file and serve their Answer on or before October 26, 2018. The Court notes at the outset that plaintiff questions whether there has been adequate meetand‐confer. Plaintiff counsel says there...

Excerpt: ...the Order After Hearing hereon. If he elects not to do so, then defendants' answer to the existing complaint will be due 30 days after the passage of that deadline. This is a medical malpractice action. The complaint alleges that defendants performed a hip replacement on plaintiff. When plaintiff experienced various adverse developments afterward, defendants kept telling him that there was nothing wrong with the hip replacement, and the cause of ...

Excerpt: ...n in its role as a “consultant” performing preconstruction services. Taber's additional proffered grounds for summary judgment, however, are unmeritorious. Background Education Code § 17406 authorizes an alternative to the typical design‐build approach for school facilities under which the school district and a contractor instead enter into a “lease/leaseback” arrangement. The district leases the real property to a contractor for a min...

Excerpt: ...state a cause of action, and the pleading is uncertain. Pertinent Allegations of the Complaint This lawsuit concerns property located at 929 Juanita Court, El Sobrante, California. (Complaint, ¶ 1.) On December 10, 1968, defendants Judith Booker (formerly known as Judith Zieminski) and her then husband, Carl Zieminski, were deeded the Property as joint tenants. Judith and Carl subsequently filed for divorce in 1969 and received an interlocutory ...

Excerpt: ...moving party, Phillips 66 bears the burden of proof on this issue. (Jobe v. City of Orange (2001) 88 Cal. App. 4th 412, 419 [award “requires that the claimant show that the cost of its legal victory transcended its personal interest”]; Evidence Code § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is as...

Excerpt: ...ntified below. These briefs shall be filed on or before September 27, 2018. Responses to the supplemental briefs may be filed on or before October 4, 2018. In the Second Amended Cross‐Complaint, Cherokee Simeon Venture I, LLC (“CSV”) identifies two alleged breaches of contract: the first in paragraph 84(a), and the second in paragraph 84(b). The Court will refer to the first as “the Zeneca payment breach” and the second as the “capita...

Excerpt: ...ainst John Muir on a theory of negligent hiring or negligent supervision. John Muir has failed to persuade the Court that there is good cause to stay discovery concerning those legal theories. However, the Court does not anticipate setting a trial date until the criminal proceeding is concluded and plaintiff has had an opportunity to conduct discovery as against Mr. Baca. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DAT...

Excerpt: ...ause of action for conversion and therefore the Court's summary of the allegations relates to those relevant to the libel claims. In 2014, Friends of Oakley received a permit to operate a low power FM Community service radio station, KLSN‐LP. Defendant Ponsano was appointed as the general manager of the station. (Comp. ¶10.) In November 2016, Ponsano asked Plaintiff to help him install a transmitter for the radio station. (Comp. ¶11.) The rad...

Excerpt: ...junction, Plaintiffs Larena Hatley and Chance Daniels (“Plaintiffs”) were required to post a bond in the amount of $10,000 by July 19, 2018. However, Plaintiffs did not post the bond until July 20, 2018, and Mullan's counsel was not notified that the bond was posted until on or about August 1, 2018. Code of Civil Procedure section 533 states the grounds upon which the Court may dissolve an injunction: In any action, the court may on notice mo...

Excerpt: ...le 2.112, which requires that each cause of action identify which plaintiff(s) are suing which defendant(s). Plaintiffs' opposition is not compelling. Given the number of parties involved in this case, Plaintiffs should take care to clearly identify which parties are involved in each cause of action. Plaintiffs failed to comply with rule 2.112, and therefore, the demurrer for uncertainty is sustained. Emotional Distress Claims The Court will addr...

Excerpt: ...Plaintiff in charge of Buchanan Fields Golf Course (“BFGC”). On August 15, 2015, this court granted Hall's TRO and set a briefing schedule for the instant preliminary injunction. Specifically, the court ordered Sullivan: (1) to return complete and total control of BFGC, all of its operations, bank accounts, Secretary of State information, buildings and personal property to the Halls by August 15, 2018; (2) to return any funds taken from BFGC ...

Excerpt: ...deposit of $12,000 which must be applied to the delinquent rent. Tan was awarded attorney fees in the amount of $5000 and costs in the amount of $240 as the prevailing party. In 2016, the Wongs filed another Unlawful Detainer action against Tan, (Case No. RS16‐0235). This action was based on Tan's failure to pay rent and failure to purchase insurance for the subject property naming the Wongs as additional insureds. On the eve of trial, Tan surr...

Excerpt: ...t's answer or other response will be due in ordinary course. (Other defendants who have answered the Second Amended Complaint may, but need not, separately answer the Third.) If plaintiffs do not file an amendment by the deadline, they will be deemed to have abandoned the premises‐ liability count, and B&C Transit must file its answer within 14 days after the due date for the amendment. Negligence Plaintiffs allege that B&C Transit designed a t...

Excerpt: ...ees. It grants the Employers' motion to vacate the judgments, because those judgments were improvidently entered in violation of the stay created by Code of Civil Procedure § 916(a). Background of this Motion The Labor Commissioner held hearings to decide a dispute over unpaid wages between the petitioners in this consolidated case (Employers) and the respondents in this case (Employees). The result of the hearings was the issuance of twelve Ord...

Excerpt: ...ve counsel at the time. In the event that plaintiffs obtain a new attorney for this case in the interim, however, defendant is encouraged to agree to a reasonable extension of that deadline to allow new counsel to consider his or her options. Absent stipulation, plaintiffs' new counsel may request an extension ex parte.) The Court notes at the outset that plaintiff's present counsel apparently refused all invitations to engage in the meet‐and�...

Excerpt: ...ts' unopposed requests for judicial notice are granted. Defendants' demurrer is sustained without leave to amend, as to the First, Second, and Fifth Causes of Action. The demurrer is moot as to the Third Cause of Action for fraud, because the Court has granted defendants' companion motion to strike that cause of action. The Court notes that the Third Cause of Action is stated only against defendant First American; it is not stated against defenda...

Excerpt: ...arbitration. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 378‐89. The critical issue here is whether Plaintiff's claims under Labor Code sections 558 and 1197.1 may be compelled to arbitration. There is a conflict on this issue as between Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 and Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, review granted March 21, 2018. Broadly speaking, Esparza says that section ...

Excerpt: ...zed wage statements, 4) failure to pay wages on termination, and 5) unfair business practices. Onyx demurs as to Robinson's individual claims (but not as to the class' claims) on the basis that res judicata applies because the parties previously settled a wage claim while it was before the Labor Commissioner. “In demurrer analysis, we test the sufficiency of the plaintiff's pleading against the relevant principles of law. (Linda Vista Villa...

Excerpt: ...arily, money judgments are not stayed pending appeal unless the appellant files an undertaking. (CCP § 917.1(a)(1).) The code provides an exception, however, for costs‐only judgments. (CCP § 917.1(d) [“no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.”) Because the attorney fees awarded were pursuant to contract, they are considered “costs” un...

Excerpt: ... subdivision (a)(2) to enjoin “some act during the litigation [that]would result in waste, or great or irreparable injury[,]” and subdivision (a)(3) to prevent “some act in violation of the rights of another party to the action respecting the subject of the action.” In deciding to issue a preliminary injunction, the court must evaluate (1) the likelihood that plaintiff will prevail on the merits and (2) the interim harm the plaintiff is l...

Excerpt: ...lication contained an authorization for the union to collect monthly dues by automatic payroll deduction. Union membership was voluntary, not mandatory. The Union collects dues from over 9,000 public employees. (Undisputed Material Fact (“UMF”) 4.) In Article XIV, the union's Bylaws contain the following pertinent provisions concerning the payment of dues: “A. [M]embers . . . shall be required to pay dues . . . and shall tender with their a...

Excerpt: ...onditions 1. The allegations in the proposed Fifth Amended Complaint related to punitive damages must be removed before the complaint is filed. The Court has already granted a motion for summary adjudication as to punitive damages. 2. Plaintiff's claim for injunctive relief shall be removed as the Court has previously ruled in this case that “the claim for injunctive relief is just a remedy and not a cause of action. (Shell Oil v. Richter (1942...

Excerpt: ...uent HOA fees and where at any time during the period from April 2, 2011 through the date of Judgment in this case ALS either: (1) collected a payment from the homeowner and applied that payment to costs of collection before delinquent assessments were paid in full; and/or (2) either rejected a partial payment from the homeowner or charged the homeowner a partial payment fee; and/or (3) threatened or initiated non‐judicial foreclosure on assess...

Excerpt: ... Third Causes of Action. Defendant shall file an answer on or before August 24, 2018. The basis for this ruling is as follows. A The Second Cause of Action. The Second Cause of Action is for violation of Civil Code section 2924.11. Defendant's arguments in support of the demurrer lack merit as to this cause of action. First, plaintiff has adequately alleged that he submitted a “complete” application. (Civ. Code, § 2924.11, subds. (a) and (f)...

Excerpt: ...of his truck, searched and handcuffed. Plaintiff's truck was towed away. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/09/18 ‐ 7 ‐ On October 26, 2015, a citation was filed/issued against Plaintiff for failing to yield to traffic sign or signal in violation of Cal. Vehicle Code § 21461(a) and for driving on a suspended license in violation of CVC § 14601.1(a), arising out of the October 14, 2015 arrest. Pl...

Excerpt: ...ithin the time otherwise allowed to respond to the complaint” files the motion. Mr. Christ did not file the motion with a responsive pleading, thus the issue is whether the motion was filed “within the time otherwise allowed to respond to the complaint.” It appears undisputed that Mr. Christ's responsive pleading was due on April 2, 2018, but that the parties extended that time to 14 days “after the conclusion of the mediation[.]” Concl...