Excerpt: ...ows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof.” (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.) Here, John Muir has met its burden of showing that plaintiffs are unable to establish the required element of causation. John M...

Excerpt: ...t can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Defendants assert three separate grounds for the motion. The Court is convinced by the first argument, that the case is moot. It is therefore both unnecessary and inappropriate to address the merits‐based arguments. Background Facts According to the complaint, plaintiffs are owners of separate parcels of property in the area known as Freethy Indust...

Excerpt: ...ourt's previous ruling. Indeed, Plaintiff's opposition focuses more on why she thinks the previous ruling was wrong, than on what is new and different in the SAC to cause the ruling to change. Plaintiff is suing Defendant based on the alleged failure of Defendant's employee, Nancy Pfeiffer Hazen, to advise Plaintiff that she should have had a higher amount of underinsured motorist coverage. Plaintiff's husband was killed in a bicycle‐vehicle co...

Excerpt: ...rds from the investigating police agency. Davis filed a motion to quash the subpoena, on insubstantial asserted grounds. The motion was denied. The district has now noticed the deposition of the investigating detective, along with a request for production of more or less the same set of records. As before, neither the police department, nor the deponent, nor the DA has raised any objections. But as before, Davis moves to quash. As before, the mot...

Excerpt: ...otions to compel. This case concerns plaintiff's allegations (to oversimplify a little) that defendants, former employees, breached their duties to plaintiff and departed, taking trade secrets with them. Plaintiff has admittedly faced a difficult and frustrating situation resulting from the merry‐ goround of counsel on the defense side, which has resulted in unresponsiveness and delays in resolving otherwise routine litigation matters. Neverthe...

Excerpt: ...elects not to do so, defendants' answer to the present complaint will be due fourteen days after expiration of plaintiff's deadline to amend. RJN. Defendants' request for judicial notice is denied as either irrelevant (Exhs. “A” and “B”) or unnecessary (Exh. “C”). The Court does not need to take judicial notice of earlier‐filed documents in the same action, and it does not see the relevance of the federal action to this demurrer. Th...

Excerpt: ... ensure payment of property taxes and insurance. As plaintiff acknowledges, the amount of the required payments into escrow was subject to annual adjustment. Plaintiff, however, persisted in making payments in the same, unadjusted amount, ignoring the annual notices of increases in the required escrow payment amounts, and repeated warnings that she was underpaying. She alleges that instead she was paying the taxes and interest directly, so that w...

Excerpt: ...bit J. The proposed settlement provides for Defendants to pay a total of $400,000 as follows: (1) $15,000 to the settlement administrator; (2) $133,333.33 in attorneys' fees and costs; (3) $5,000 to the Plaintiff as an enhancement award; (4) $106,500 to aggrieved employees pro rata via an “underpaid wage fund;” (5) $130,166.67 to a “penalties fund” which will go 75% to the State of California ($97,625) and 25% ($32,541.66) to aggrieved em...

Excerpt: ... (collectively, “CCCERA” or “Respondents”) bring this motion for judgment on the pleadings pursuant to CCP § 438(c)(1)(B)(2), on the ground the Petition does not state facts sufficient to constitute a cause of action against CCCERA. Petitioner has not alleged facts CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/30/18 ‐ 11 ‐ showing Respondents had a clear and present ministerial duty to return Petiti...

Excerpt: ..., Sr. (collectively, “Plaintiffs”). Defendant moves pursuant to § 438(c)(1)(B)(ii) on the grounds that Plaintiffs cannot state facts sufficient to constitute a viable cause of action for violation of Bus. & Prof. Code § 17200, et seq. For the following reasons, the MJOP to the second cause of action for violation of Bus. & Prof. Code § 17200 is denied. Request for Judicial Notice Defendant has requested judicial notice of over three hundre...

Excerpt: ...and a bull on Highway 4. The bull was owned by Defendant DeVries. Plaintiffs is suing the State of California, Department of Transportation (“Caltrans”) for negligence and premises liability. Plaintiffs allege that Caltrans was negligent in its ownership, control, construction, operation and/or maintenance of the highway, including the fencing that separates the highway from DeVries' property. Plaintiffs also allege that Caltrans had actual a...

Excerpt: ...ithout court approval; (4) preventing him from restoring control over the company's computers; (5) operating video surveillance at the business premises; and (6) making any loans or extraordinary transfers to the Garaventa Trust, without either unanimous Board approval or court approval. To the extent the issues overlap with those considered in the motion for a preliminary injunction in the related case (C18‐ 01450), the Court retains the same ...

Excerpt: ... stay should remain in place until the Court adjudicates Black Diamond's petition for administrative mandamus. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/30/18 ‐ 18 ‐ The Court may order a stay only if it finds that CSLB is unlikely to prevail and that the public interest will not suffer as a result of the stay. (Code Civ. Proc. §1094.5(h)(1).) To determine whether the respondent is unlikely to prevail, ...

Excerpt: ... are the landlords. Defendants are the tenants of the commercial real property known as 1523 Giammona Dr., Walnut Creek, California (the “Property”). Plaintiffs filed their complaint alleging two causes of action: 1) Breach of Contract; and 2) Breach of the Implied Covenant of Goof Faith and Fair Dealing. Defendant corporation brings the instant motion seeking to file a cross‐complaint alleging claims arising out of the parties' contractual...

Excerpt: ... concerns the death of Plaintiffs' daughter, Marvelena Rady (“Marvelena”), which occurred as a result of Defendants' allegedly deficient medical/dental treatment. Defendants demur as to each of these cause of action on the bases that Plaintiffs' fail to allege facts sufficient to constitute a cause of action and the complaint is uncertain. (See Code of Civil Procedure (“CCP”) § 430.10(e)‐(f).) The demurrer is sustained with leave to am...

Excerpt: ...isco owns or controls an arroyo in Alameda County. Alameda County claims that erosion of the bank of this arroyo caused the collapse of an Alameda County Highway, Foothill Road, on February 22, 2017, causing an emergency road closure, emergency repairs, and costs in excess of $1.5 million. After the parties failed to reach a private resolution regarding the responsibility for these costs, Alameda County issued a notice of violation. San Francisco...

Excerpt: ... for breach of oral contract pled against Defendant Derek Beal, the demurrer is sustained with leave to amend. Defendant demurs to each component of the breach of oral contract claim. Since four oral agreements made between Derk and Derek are pled in one cause of action, if anyone is valid, the cause of action will survive since a party cannot demur to a part of a cause of action. See Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 99...

Excerpt: ...ndant demurs pursuant to Code of Civil Procedure § 430.10(e) on the grounds that Plaintiff fails to state facts sufficient to constitute a cause of action for unlawful detainer and pursuant to Code of Civil Procedure § 430.10(f) on the grounds that the complaint is uncertain. As a threshold matter, uncertainty is a disfavored ground for demurring to a complaint. See, e.g., Khoury v. Maly's of California (1993) 14 Cal.App.4th 612, 616; 1 Weil & ...

Excerpt: ...dings and orders in federal district court case Curl v. CitiMortgage, Case No. 14‐cv‐01829. This request is opposed. The request is granted. Evid. Code §§ 452, 453. Analysis Both sides brief this demurrer much as if there had been no prior rulings on point. In fact, however, the Court's ruling on the demurrer to plaintiff's second amended complaint is quite sufficient to dispose of the present demurrer, because nothing material has changed....

Excerpt: ... is a personal injury case involving a vehicle collision. Plaintiff's complaint alleges that on March 17, 2016, plaintiff was a pedestrian when she was struck by a vehicle driven by defendant Jose Concepcion Solorio. (See Attachment to Complaint, at p. 2.) On June 26, 2017 plaintiff filed her form complaint for damages against the driver, Jose Solorio, and the vehicle's registered owner, Maria Solorio. The complaint also included Doe defendants 1...

Excerpt: ...s follows (block capitals omitted): Plaintiffs' decedent, Jovante Prothro, was shot and killed by Dewaun Rice. The City of Richmond, the Office of Neighborhood Safety and/or Devone Boggan knew or should have known that Dawaun Rice was a danger to the public at large at [sic] more particularly, plaintiffs' decedent. Defendants and each of them had information that should have been brought to the police department regarding the violent and criminal...

Excerpt: ...aintiffs entered into a Residential Purchase Agreement with seller, Kenneth Pregler. Pregler owned the property from October 1, 2004 to October 2, 2014. Defendants Solano Pacific Corporation and Rob Nubla were the selling brokers on the property sale at issue in this case. There is no substantive distinction between the two for purposes of this motion, and they will be referred to as the Brokers. The McGuires' property adjoins the Brenkles' prope...

Excerpt: ...§ 3294. Section 3294(c) provides, in pertinent part: (1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant and with a willful and conscious disregard for the rights and safety of others. (2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) Fraud means an inten...

Excerpt: ...ells's employer), on one hand, and Larios on the other; where relevant those distinctions will be addressed. Otherwise, the analysis applies equally to all defendants' motions. Relevant Allegations Plaintiff Joseph LaCome is an attorney licensed to practice law in Texas and currently practicing immigration law in California. (Comp. ¶7.) He works on immigration cases, including with some detained clients at the West County Detention Facility in R...

Excerpt: ...rted responses to each such discovery request, including both substantive answers and various objections. None of those responses, however, was verified. The Hesses' motions raise two distinct sets of problems. First, they correctly note (as plaintiffs effectively concede) that all of these responses were required to be verified, and were not. Second, they argue that even if plaintiffs provide verifications before hearing on the motions, many of ...

Excerpt: ...Civ. Code § 2924.12 for violation of Civ. Code § 2924.11; (2) violation of Civ. Code § 2923.7; (3) negligence; and (4) violation of Bus. & Prof. Code § 17200, et seq. For the following reasons, the Demurrer is sustained, with leave to amend. Request for Judicial Notice Defendant Wells Fargo requests judicial notice of several documents. This request is unopposed. The Court takes judicial notice of all but Exhibits G, H, I. Those documents are...

Excerpt: ...uly 11. The creditors submitted the application to the court, through electronic filing, on July 11. Six days later, it was rejected by the clerk, because electronic filing was not appropriate for this type of application. When plaintiffs refiled, the deadline had passed. A number of cases concern circumstances in which a clerk rejects a document, causing the filing party to miss a critical deadline: Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 [...

Excerpt: ...e prior owners, Brian and Susan Mandio. The Stubers have cross‐complained against the Mandios. The Mandios now demur to the Stubers' Second Amended Cross‐Complaint (“SACC”.) They argue that the entire SACC is barred by the ten‐year statute of repose set forth in CCP § 337.15 or, if a statute of limitations applies instead, because the SACC fails to sufficiently allege accrual of the causes of action was postponed by delayed discovery o...

Excerpt: ... the FAC, however, statute of limitations is not a cause of action. Standard of Review A defendant meets its burden on a motion for summary judgment by showing either that plaintiff's claims have no merit or that there is a complete defense to the claims. (Code of Civil Procedure § 437c(p)(2).) A defendant can show this by providing factually devoid discovery responses from plaintiff or by providing admissible evidence that negates Plaintiff's c...

Excerpt: ...rrer is sustained without leave to amend, as to all causes of action set forth in the First Amended Complaint (“FAC”). Defendants shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that judgment to plaintiff for approval as to form. The basis for this ruling is as follows. Plaintiff's deed of trust shows a maturity date of July 1, 2034. (FAC, Exh. “A”, p. 2; defendants' RJN, Ex...

Excerpt: ...he Second Amended Complaint (“SAC”) filed by Plaintiff Ali Rezapour and Plaintiff Aurora Rezapour (collectively, “Plaintiffs”). The SAC pleads causes of action for (1) declaratory judgment; (2) statutory violations (Civil Code § 2924(a)(6), § 2924.17, § 1227); (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; and (6) slander ...

Excerpt: ... refused to give Adelstein a 50% interest in it. She sued, alleging a variety of legal theories. Burr now moves for summary judgment, arguing that all claims are barred by a release that both parties signed before the successor trustee of Smith's trust would distribute the Property to Burr and cash gifts to each of Adelstein and Burr. Burr also argues that the cause of action for breach or oral agreement is barred by the statute of limitations or...

Excerpt: ... Kizors' goals and demands. The Court, nonetheless believes that the Kizors did prevail, although not on all claims. While the Court is guided by Hsu v. Abbara (1995) 9 Cal.4th 863, which the Redigs rely on heavily, that case is of mixed help to the Redigs. It does state that “the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclos...

Excerpt: ...kansas law, add the affirmative defense of comparative fault under Arkansas law, and correct typographical errors. The law applies a general policy of liberality in permitting amendments to pleadings, where the opposing party will not be prejudiced by the amendment. (Harris v. City of Santa Monica (2013) 56 Cal. 4 th 203, 240.) While some cases have stated that unwarranted delay may be enough by itself to justify denial, such cases tend to be at ...

Excerpt: ...all be filed and served no later than August 16, 2018. Code of Civil Procedure (“CCP”) § 473(a) gives the Court discretion in deciding whether to allow an amended pleading. There is “a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations]…” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is ...

Excerpt: ...ner's office for an autopsy. The motion is granted. Factual and Procedural Background (In stating the “facts,” below the court is not making factual findings. In cases, it states “facts” from plaintiff's additional facts even though defendant disputes those facts. It does this to show that even if those facts favor plaintiffs as strongly as claimed they are still insufficient.) Centerpoint does business under the names of Alta Vista Crema...

Excerpt: ...never alone” and that if anything happens, defendants will contact the customer “immediately.” (¶ 26.) On December 30, 2017, Shadow was attacked by another dog, suffering significant injuries that required surgery at a veterinary hospital. (¶ 12.) Defendants did not notify plaintiffs of the incident until December 31, 2017. (¶ 12.) There was no manager on site when the incident occurred, when plaintiffs asked to speak to one after they w...

Excerpt: ...itations set forth in Civil Code § 3439.09 (“Uniform Voidable Transactions Act”). Background Facts Plaintiff Sandra Rizzardi and Defendant Russell Rizzardi were married on October 23, 1976. Sandra and Russell separated on May 15, 1997 and a Stipulated Judgment on Reserved Issues was entered on July 7, 1998 in the Dissolution Action in Sacramento County. Russell Rizzardi was ordered to pay spousal support to Sandra Rizzardi. Russell Rizzardi ...

Excerpt: ...ts”). The Demurrer relates to the First Amended Complaint (“FAC”) filed by Plaintiff Nab A. Hayfron (“Plaintiff” or “Hayfron”). The FAC states causes of action for (1) constructive fraud; (2) violation of Business & Professions Code §§ 17200 et seq.; (3) violations of HBOR; (4) violations of Civil Code § 2923.5; (5) cancellation of written instruments; (6) negligence; (7) intentional infliction of emotional distress; (8) slander ...

Excerpt: ...t is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 08/06/18 ‐ 11 ‐ a proceeding in which by law a hearing is required to be given], shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was...

Excerpt: ...itive damages. It concerns emotional distress damages. Defendants have not cited any authority warranting striking such damages here. 2. Denied. The cited language in paragraph 33 of the FAC appears in the cause of action for battery alleged by plaintiff Cyrus G. solely against defendant Wilson. Punitive damages are properly alleged in this cause of action for battery. (The court does not know why the moving and opposition papers keep referring t...

Excerpt: ... in effect. The Court agrees with Defendant's analysis that the cases relied upon by Plaintiff were unconstitutional applications of the statue because the plaintiffs' substantive rights were impaired. In the case at bar, Plaintiff's claims against Defendant did not accrue until more than nine years after section 2305.10 went into effect. The Motion for New Trial is denied. ...

Excerpt: ...P”) section 473 and 473.5 for extrinsic fraud or mistake. Defendant contends, and has submitted a declaration stating, that he did not receive actual notice of the lawsuit in time to file a responsive pleading. Opposition to the Motion was filed by plaintiff on July 31, 2018, which the Court has considered. No reply was filed. For the reasons stated below, the Motion is granted. CCP section 473.5 provides, (a) When service of a summons has not ...

Excerpt: ... stricken: Defendant Thao Kim Nguyen “committed two felonies, hit and run after collision that caused a serious injury and driving while intoxicated and causing serious injury and violated CVC 20001 and 23153.. [and]… was cited for at least one of these felonies.” (FAC p. 6.) Defendants argue that Plaintiff has already reviewed the Traffic Collision Report and received Defendants' discovery responses and that these allegations are false and...

Excerpt: ...f action that go beyond what was alleged in the Plaintiffs' government tort claim. For the reasons set forth further below, the demurrer is sustained, without leave to amend. Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” (Doe ...

Excerpt: ...d the Complaint does not state facts sufficient to support a claim for punitive damages. “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Because defendant has already filed an Answer to the Complaint, a motion for judgmen...

Excerpt: ...in Iran – and centering more specifically on whether a certain legal document (a power of attorney, or POA) was or was not forged. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 08/03/18 ‐ 2 ‐ The parties are all sisters of each other, or their respective husbands. The plaintiffs are a wife and husband, residing in California – Shahrzad Bakhtiari (Shahrzad), and her husband Sia Bakhtiari. The defendants are ...

Excerpt: ...aintiff works for a third floor tenant at the Property. She alleges that on the morning of February 4, 2015, she was sexually assaulted and injured in the second floor women's restroom by a homeless man who had entered the unlocked building the night before and wandered around it naked, exhibiting signs of mental incapacitation and/or substance abuse. While the restrooms on the third floor were locked, those on the second and first floors were no...

Excerpt: ...Muir Orthopedics order it? If neither of them did, why was a Muir Orthopedics Medical Clearance Request Form sent to plaintiff's primary care physician and why did plaintiff see that physician for medical clearance on June 18, 2015? (Undisputed Material Fact (“UMF”) 4; Disputed Material Fact (“DMF”) 3, 5, 6; Plaintiff's Additional Fact (“PAF”) 4, 8; Ex. C to Billups‐Slone Decl., p. 112; Ex. I to Billups‐Slone Decl., Phillipy Depo....

Excerpt: ... cause why this Court should not reconsider and reverse the Court's decision of July 13, 2018, granting the motion of respondents in this case (Employees) for attorney fees pursuant to Labor Code § 98.2(c). See Le Francois v. Goel (2005) 35 Cal.4th 1094 (trial court may reconsider possibly erroneous ruling on its own motion). In response to Employers' present motion, Employees cite Palagin v. Paniagua Construction (2013) 222 Cal.App.4th 120. Nei...

Excerpt: ... requests for fees, costs, and prejudgment interest. Petitioner's counsel, however, denies that any such offer was made. He provides an e‐mail he sent on June 19, evidencing a counter‐offer to respondents' offer. It is hardly likely that the parties would be negotiating any settlement amount in the face of an open offer to stipulate to confirmation of the full arbitration award. The Court (giving respondents' counsel the benefit of the doubt)...

Excerpt: ...me, until it was served with a notice of case management conference on January 17, 2018. Alternatively, Defendant maintains the failure to respond to the summons and complaint was due to mistake, inadvertence or excusable neglect. Defendant contends relief should be granted because the lack of notice was not caused by its avoidance of service or inexcusable neglect. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/...

Excerpt: ...cope of the response. The information sought, with respect to all of the hotels in the state, has some relevance to class certification, because it will help establish whether the individual plaintiff's claims are typical and common to the members of the putative class. Defendant's assertion that the hotels are quite different in material respects may be correct, but this needs to be tested through discovery, which may show that Defendant is corr...

Excerpt: ...n to that in Daniels. (See, Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841‐842; Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 678 and 683.) The agreement in the case at bar first identifies a group of people, including heirs, and then refers to their “claims” collectively. The most reasonable interpretation of the agreement is that it was intended to cover wrongful death claims. Second, the Court is not persuaded that plai...

Excerpt: ... future, and; (2) whether plaintiffs are estopped from asserting waiver, in light of the fact that they opted out of the class action settlement in the consolidated Esqueda cases and commenced a new class action lawsuit. The Court rules as follows on the petition to compel arbitration, brought by all named defendants. Plaintiffs oppose the petition. The petition is denied. With regard to plaintiff Thomas A. Sacco, the Court finds that his arbitra...

Excerpt: ...o put the issues connected with that writ petition before the Court by way of a noticed motion. The Court has considered carefully the material the parties have presented, and rules as follows. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/02/18 ‐ 7 ‐ Background Work and Injury History Santos began working for Contra Costa County in 1995. She argues that she is entitled to service‐connected disability reti...

Excerpt: ...ficient facts showing entitlement to exemplary damages against Defendants. A motion to strike may be used to attack claims for damages that are not supported by the cause of action pleaded. The motion to strike may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See Civil Code § 3294; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53,...

Excerpt: ..., if the propounding party proves the truth of those facts at trial, he or she may seek an award of the reasonable costs and attorney fees incurred in proving those facts.” See CCP 2033.420(a). The court is required to award those costs and fees unless it finds the party who denied the requests “had reasonable ground to believe he would prevail on the matter” or “there was other good reason for failure to admit.” See CCP Section 2033.42...

Excerpt: ...ffs shall file and serve a second amended complaint by August 15, 2018. Defendants Leonard A. Faas Jr., Faas Enterprises, Inc. dba Walnut Creek Car Wash, and Walnut Creek Car Wash (“Faas”) demur to everything except the negligence cause of action in the First Amended Complaint arguing that each claim fails to state a cause of action. They also argue that the FAC is uncertain. Uncertainty As to uncertainty, Defendant argues that the FAC is unc...

Excerpt: ... the violations of sexual misconduct and dating violence. As to the most serious charge of sexual assault, however, the Court finds no procedural or substantive error in the disciplinary proceedings or result, and hence the petition is denied as to that violation and the resulting expulsion. Because the Respondent in the disciplinary proceeding is the Petitioner in this Court, and the Complainant in the disciplinary proceeding is not a party at a...

Excerpt: ... amount to be secured by the attachment is $110,239.31, which includes attorney fees, estimated at $8,000. Since defendant is a corporation, Plaintiff seeks to attach “any property” of defendant. An undertaking has not been filed. Defendant California Optical Corp. (dba CalOptix) appears specially for the sole purpose of objecting to jurisdiction and maintaining its right to opposes the application for right to attach order. Defendant opposes...

Excerpt: ...iff requests a lodestar multiplier of 1.2. The Court does not think the multiplier is justified. Plaintiff won this case, but it did so partly on the basis of TWCM's admissions. The initial merits briefing by both sides was sufficiently scanty that the Court found it necessary to call for further and better briefs on contract construction. And while the course of this litigation was unjustifiably protracted by TWCM's strategy and tactics, that fa...

Excerpt: ...er, Seterus makes no serious effort to show the relevance of the matters inquired into, and no such relevance is obvious from the interrogatories. The Court cannot see how plaintiffs' possible use of drugs at other times and other places could bear on their CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/27/18 ‐ 2 ‐ responsibility for their relative's alleged manufacture of BHO. That is true even if the drug s...

Excerpt: ...ubject to the Protective Order previously entered in this case. The District's opposition brief stresses the legal concerns arising if such material is produced without either the parents' consent or a court order. Right – but getting that court order is what these motions are for. The District doesn't really deny plaintiff's representation that in meet‐andconfer, the District didn't raise any real objection to this discovery other than needi...

Excerpt: ... Plaintiff is a California resident. Defendant resides in South Carolina. This case arises out of defendant Miao's operation of the Biang‐Wang.com website. In a nutshell, plaintiff contends that third parties have defamed plaintiff in materials posted on that website. He contends that defendant Miao has a contractual duty to delete such defamatory material from his website. Plaintiff asserts causes of action for breach of contract; tortious bre...

Excerpt: ...ery, trespass, trespass, and infliction of emotional distress. Obviously those allegations cannot be taken literally as to UPS, which as a corporate entity is incapable of doing any of these things except through human agents. The Complaint does not expressly allege that the individual defendant (Defroscia) was an employee of UPS and acting in the course of his employment, though the Court assumes that that is what plaintiff has in mind (and UPS'...

Excerpt: ...en REIT, LP (“Evergreen”); and Store It REIT, Inc. (“Store It”). Evergreen owns TIC 4. Store It is the limited partner of Evergreen. (Store It is now in bankruptcy and not involved in this motion.) The sole defendant is River Oaks Storage, LLC (“defendant”). The first three causes of action in the complaint (breach of contract, specific performance, and declaratory relief) all asserted the same substantive claim, arising under a contr...

Excerpt: ...s provided the Court a copy of the settlement agreement. It was later filed in the public file, as set forth below. On April 20, 2018, Lawson filed a motion to dismiss her individual claims with prejudice and the class claims without prejudice. That motion was unopposed. Attached as Exhibit 1 to Marcus Bradley's declaration supporting that motion was a copy of the settlement agreement. The first page of the settlement agreement indicates that the...

Excerpt: ... Plaintiff alleges that he purchased a house from Defendants based in part on the view the house had. (FAC ¶6.) However, after Plaintiff purchased the house he learned that the view was not as good as it was when the property was sold. (FAC ¶7) Plaintiff alleges that Defendants trimmed three feet off a hedge on a neighbor's property and when the hedge started to grow back it obstructed the view. (FAC ¶5.) Defendants demur to all three causes o...

Excerpt: ...he delay.” Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941. Even if Plaintiff was dilatory in seeking this Doe amendment, Defendant has not shown any real prejudice caused by the delay. ...

Excerpt: ...enors object to the terms of the settlement. Intervenors contend that Code of Civil Procedure section 387 provides the Court authority to permit their intervention. The Court continued the hearing on settlement approval and instead set Intervenors' application for leave to intervene for hearing on July 26, 2018. Both plaintiff James Neil and defendant Hanlees have opposed intervention. Analysis under CCP section 387 CONTRA COSTA SUPERIOR COURT MA...

Excerpt: ...is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively. (b) Timing. A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer. Plaintiff's Notice states that she “moves for an order to strike Affirmative Defenses raised in D...

Excerpt: ...on the court for grievances. In this case, Defendant's protected activity was petitioning the court for the domestic violence restraining orders. Plaintiff Alexander Gaddis filed a complaint alleging causes of action for Slander, Libel, and Intentional Economic Interference. Plaintiff and Defendant are engaged in a contentious divorce and custody proceedings. Plaintiff alleges that Defendant has tried to ruin his reputation with family and friend...

Excerpt: ...ounsel to keep track of their hours for purposes of a sanctions determination. PCB opposes the request, arguing, among other things, that a request for sanctions must be directed toward the opposition to a particular motion to compel, and that such a motion exists only for one narrow sub‐ category of discovery (responses to Special Interrogatories, Set One, and Request for Production of Documents, Set Two). While the Court has general authority...

Excerpt: ...nal misrepresentation or concealment. The elements which must be pleaded to allege a fraud or deceit claim are (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity; (3) intent to defraud or to induce reliance; (4) justifiable reliance, and (5) resulting damages. See CACI 1900; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363; Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4...

Excerpt: ...ant has timely made the first payment, and the next payment is not yet due. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 07/25/18 ‐ 13 ‐ Second, defendant has raised legitimate concerns about the language of the proposed notes and deeds of trust prepared by plaintiffs. Particularly troublesome is the deed of trust provision appointing plaintiffs as defendant's “attorney‐in‐fact.” Finally, it appears th...

Excerpt: ...sed because this Court does not have personal jurisdiction over the Defendant. Plaintiff's opposition directly addresses the personal jurisdiction issue and therefore Plaintiff had sufficient notice of this issue. Therefore, the Court construes Defendant's motion as a motion to quash and grants that motion. A court may exercise two types of personal jurisdiction over a defendant: general jurisdiction and specific jurisdiction. “General jurisdic...

Excerpt: ... one retained liability expert and plaintiff's treating orthopedist as a non‐retained expert. Therefore, it is puzzling that Defendant states: “Plaintiff's presentation of evidence in support of her damages claim will be involved and detailed. Cumulative of Plaintiff's treating medical providers (including treating physicians, surgeons and physical therapists), Plaintiff will have to call orthopedic experts, psychological experts, occupationa...

Excerpt: ...ange its Order because Plaintiff has allegedly circumvented the stay against Merrill Lynch by seeking discovery, documents and depositions from it to prosecute the other named Defendants. See Willey Decl., paragraphs 5‐7 and Exhibits B, C and D. There is nothing wrong with this. First, the parties' agreement to stay the case did not, in any way, limit discovery. Merrill Lynch never raised the issue, and it did not request any limit CONTRA COSTA...

Excerpt: ...by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or n...

Excerpt: ...to switch tactics and “add a summary adjudication claim” of the third cause of action for fraud or alternatively, have the court treat its motion as one for judgment on the pleadings with respect to fraud. With respect to the alternative request, this court has already ruled on the sufficiency of the pleadings, including the fraud cause of action. See Notice of Entry of Order [overruling Renee Hilliard, M.D.'s demurrer to all three causes of ...

Excerpt: ...timely. However, plaintiff is admonished that the court does not consider service by regular mail to be proper for Oppositions and Reply Briefs. (See CCP § 1005 (c).) In the future, plaintiff should also use more standard terminology in responding to demurrers and motions, labeling his opposing memorandum of points and authorities as an Opposition, not an Objection. This will aid the Clerk's Office in properly labeling it. Second Cause of Action...

Excerpt: ...nst WCF is the fifth cause of action, for breach of the implied warranty of merchantability under Civil Code section 1791.1 and 1794. As against Ford, all of the causes of action pled in the complaint remain pending. As a second preliminary matter, the Court notes that the Slausons do not oppose the petition as CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 07/23/18 ‐ 14 ‐ it pertains to WCF. That is, the Slauso...

Excerpt: ...e argues that the arbitration agreement at issue is unconscionable, and accordingly cannot be enforced. Waiver The Court must consider six factors to determine whether BACR has waived any right it might have had to insist the present dispute with Saeteurn be arbitrated: (1) Whether [BACR's] actions are inconsistent with the right to arbitrate; (2) Whether the “litigation machinery has been substantially invoked” and the parties “were well i...

Excerpt: ...and conferred via email. That is facially insufficient. Further, defendant's counsel (Mr. Kensok) states that he made repeated requests to meet and confer even after the filing, but counsel would not do so. In reply (not a sworn declaration), plaintiff's counsel essentially verifies Kensok's assertion, stating that he insisted on a meeting at his office (not, for example, by telephone), and insisted that it be recorded. Besides being uncooperativ...

Excerpt: ...e argues that the arbitration agreement at issue is unconscionable, and accordingly cannot be enforced. Waiver The Court must consider six factors to determine whether BACR has waived any right it might have had to insist the present dispute with Saeteurn be arbitrated: (1) Whether [BACR's] actions are inconsistent with the right to arbitrate; (2) Whether the “litigation machinery has been substantially invoked” and the parties “were well i...

Excerpt: ...zation of the documents involved. The Court agrees with plaintiff's legal argument, and so plaintiff's motion for summary judgment is granted. This case arises from a line of credit originally extended by First Interstate Bank to Emery Bay Baseball, a now‐dissolved corporation (not sued here). Defendant Kaufman provided a personal guaranty for the line of credit. First Interstate Bank then merged into plaintiff Wells Fargo, which continued to l...

Excerpt: ...laintiff has filed a response expressly stating that she does not oppose Dr. Waechter's motion. It is accordingly granted. The Court notes that, given that plaintiff is apparently convinced that Dr. Waechter was not to blame and that she has no grounds for opposing summary judgment, plaintiff and her counsel should properly have voluntarily dismissed this case as against Waechter, or at least stipulated to such a dismissal. ...

Excerpt: ...'s file that any attempts at meet and confer were made. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/06/18 ‐ 5 ‐ Compounding its failure to meet and confer, it appears that when the Flandermeyers offered to stipulate to amend their complaint, Werner refused to so stipulate. Resolving a motion to strike punitive damages by way of a stipulated amendment is, of course, precisely the sort of resolution that the...

Excerpt: ... proposed order with a declaration confirming that no responses were served prior to the hearing. In the event that defendant has served responses prior to the hearing, no matters will be deemed admitted. The motion to compel responses to document requests is granted. Defendant Yunck must serve responses to plaintiff's first set of document requests (served on or about February 22, 2018), without objections, within 30 days following service of th...

Excerpt: ...lodge a proposed order with a declaration confirming that no responses were served prior to the hearing. In the event that defendant has served responses prior to the hearing, no matters will be deemed admitted. The motion to compel responses to document requests is granted. Defendant Ewing must serve responses to plaintiff's first set of document requests (served on or about February 22, 2018), without objections, within 30 days following servic...

Excerpt: ...procedural grounds, which the Court discusses in more detail below. That result, however, appears to be contrary to the preferences and expectations of both sides, each of which seems genuinely to desire the Court's rulings on the merits issues presented in both motions. These procedural problems are simply ignored in the moving and opposition papers. Neither side's motion pays any attention to the technical defects its own motion raises. Nor has...

Excerpt: ...efendant's requests for admission. On defendant's motion, therefore, this Court granted defendant's motion to deem matters admitted. Those deemed admissions are conclusively fatal to plaintiff's entire case. Having thus admitted the falsity of his entire case, plaintiff has no further case to pursue. This result was not inevitable. In its tentative ruling granting the motion to deem matters admitted, the Court went out of its way to point out to ...

Excerpt: ...olation of Civil Code § 2923.6; (2) violation of Civil Code § 2923.7; (3) negligence; (4) unfair business practices; and (5) violation of civil code § 2923.5. Defendants' demurrer is sustained without leave to amend. The Court will discuss each cause of action in turn. As an overview, however, this is a very straightforward matter. The Court sustained these defendants' demurrer to the First Amended Complaint (FAC), largely because it did not a...

Excerpt: ...ave to amend is liberally granted. (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is “ ‘inexcusable delay and probable prejudice to the opposing party'… [Citation.]” (Ibid; see also, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) There are other instances when leave to amend is properly denied. One of those instances is when the amendment is a sham pl...

Excerpt: ...use of Action for Negligence Per Se, the motion is denied. This cause of action arose out of a motor vehicle accident occurring on August 31, 2016, on SR‐24 Eastbound off‐ramp at Acalanes Road in Lafayette. Plaintiff Gail Swatzberg alleges Defendant Samer Majid Barance was driving under the influence of alcohol, in violation of Vehicle Code Section 23152. Defendant crashed his vehicle into the rear of Plaintiff's vehicle while she was stopped...

Excerpt: ...laintiff”) began working for Kindred Hospice Services (“Kindred Hospice”) around August of 2015. (Complaint at ¶ 4.) In or around September of 2017, Plaintiff witnessed another employee mishandling a patient. (Complaint at ¶ 4.) On November 15, 2017, Plaintiff filed a Complaint against Defendants. Plaintiff alleges that after she reported the witnessed abuse, Kindred Hospice retaliated against her by demeaning her in a meeting with manage...

Excerpt: ...Code § 2923.5; (2) violation of Civ. Code § 2923.7; (3) violation of Civ. Code § 2924.12; (4) negligence; and (5) violation of Cal. Bus. & Prof. Code § 17200. As a threshold matter, the Court notes that the Defendant's Notice of Demurrer is defective as it fails to comply with California Rule of Court 3.1110(b)(1); in lieu of the Court's location, the Notice displays a series of “X”s. Although the Plaintiff would appear to have waived thi...

Excerpt: ...mplaint on April 20, 2018, which pleaded causes of action for: (1) equitable indemnity, (2) total indemnity, (3) contribution, and (4) declaratory relief. In response, Cross‐Defendant Medallion Landscape Management, Inc. filed a demurrer on May 25, 2018. Cross‐Defendant demurs pursuant to Code of Civil Procedure § 430.10(e), on the grounds that the First‐Amended Cross‐Complaint fails to state any causes of action against it. For the foll...

Excerpt: ...vil Procedure section 1008, which requires (1) that the motion be filed within ten days after service of written notice of the order being reconsidered; and (2) that the moving party show “new or different facts, circumstances, or law” that justify reconsideration. The moving party must show that the new evidence could not, with reasonable diligence, have been discovered or produced for the previous motion. (New York Times v. Superior Court (...