Excerpt: ... motion was not filed until May 2. Plaintiffs' reply asserts that the 30‐day deadline in the Local Rule is “intended as a deadline for a party to raise objection to the facilitator's recommendation, not the filing of a motion to compel after participation in the program.” The plain language of the Rule is contrary; it states that the 30‐day deadline is for filing and service of “a formal Discovery Motion”. That means either a motion t...

Excerpt: ... might be (at least part of) Bidsmart's response. There is nothing in the declaration identifying what that page is, though, let alone authenticating it under oath as accurate and complete. On the contrary, the page is presented simply as part of a meet‐andconfer letter. Without more, the Court has no way of reliably knowing what responses Bidsmart made or didn't make, let alone judging whether they are appropriate or not. The Court also notes ...

Excerpt: ...f this ruling, the Case Management Conference now set for June19 is premature. The CMC is continued to October 31, 2018 at 8:30 a.m. This case arises out of plaintiff's claim that defendants rented her an uninhabitable premises, 1300 Roosevelt Ave., #420, Richmond, California. Defendants move for judgment on the pleadings as to the Fourth Cause of Action, Negligence, and Fifth Cause of Action, Intentional Infliction of Emotional Distress, arguing...

Excerpt: ...y 15, 2018. This dispute has been running in various courts for some time. Plaintiff first filed a small‐ claims case in this Court in 2016, alleging (in less detail) her difficulties in working with Seterus. She also filed a case in federal court for violation of a parallel federal statute, and the small‐claims case was removed to federal court under supplemental jurisdiction. In August 2017 the federal court granted summary judgment against...

Excerpt: ...the case in Lines 10‐12). In that case she obtained an attachment as to one of Ng's assets, namely a note and deed of trust executed in Ng's favor by the Kellys, the defendants in this case. (Ms. Kelly is Ng's daughter; Mr. Kelly, his son‐in‐law.) In this action, plaintiff seeks to enforce the Kelly note in her capacity as a judgment creditor or potential judgment creditor of Ng. The timing of all this is complicated by the course of plaint...

Excerpt: ... serve the amended cross‐complaint on or before July 15, 2018. This case arises out of a disagreement over the purchase of a residence in Richmond. The cross‐complaint alleges that cross‐complainant Kingsway located a short‐sale property, available for purchase at $200,000 below market value. Kingsway and Gardner reached agreement in November 2016 to work together to buy the property and resell it. Their written agreements called for Gard...

Excerpt: ...on or before July 15, 2018. Background This case arises out of a failed transaction for Thomas and Hilary Holden to sell 783 Los Palos Manor in Lafayette, California to cross‐defendant William Wahl. The Holdens alleged that the sale fell through after two checks (one for $50,000 and the other for $10,000) that Wahl placed as a deposit into an escrow administered by Fidelity were dishonored for insufficient funds. The CONTRA COSTA SUPERIOR COURT...

Excerpt: ... the other case were not pending. In this case, Uecker (as liquidating trustee) is suing defendants Ng and Wild Game to collect on a note and guaranty made by defendants in favor of Horwitz. Defendants are defending the case on the theory that the purported note and guaranty were sham transactions intended to conceal Horwitz's alleged equity participation in Wild Game by falsely depicting Horwitz's involvement as a debt. The Court of Appeal has h...

Excerpt: ...c).) Plaintiff moves for “summary judgment” of the Second Cause of Action for Non‐Payment of Overtime Hours on Final Paycheck on the ground there are no genuine issues of material Plaintiff argues he has established the elements of his claim and there is no defense thereto. Defendants oppose the motion on the ground Plaintiff cannot carry his burden of persuasion and the motion should be denied. Defendants argue the evidence shows Plaintiff...

Excerpt: ...n conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement …are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” The Court will consider these issues in turn. Petitioner is a successful party. The Court issued a writ of mandate, based on its conclusion that, while the Department has wide discret...

Excerpt: ... reasons stated below the Motion is granted. By way of the Motion, Plaintiff seeks leave to file a first amended complaint (“FAC”) that contains all four of the causes of action in the original complaint, and adds a fifth cause of action for Failure to Hire under Government Code section 12940(a). Plaintiff's original complaint alleges that Defendants fired Plaintiff due to Plaintiff's sexual orientation as a homosexual man. The proposed FAC k...

Excerpt: ...laintiff did not oppose the motion, and so it was granted. The Court signed an order dismissing this action on April 25, 2018. Plaintiff now moves to set aside the April 25, 2018 dismissal order, citing CCP section 473(b). Plaintiff's counsel says that he did not oppose the 583.420 motion because he “assumed it would be denied.” It appears his assumption was based at least in part on the fact that on March 6, 2018 (after the 583.420 motion wa...

Excerpt: ...omatic stay does not apply in this case because he is the plaintiff. At some point, an issue may arise as to whether the trustee in bankruptcy wishes to pursue the claim, but that issue is not before the Court at this point.) ...

Excerpt: ...ly 16, 2018 is vacated. The motion is granted to the extent set forth below. Regarding the scope of any stay, plaintiff has stated she only wants to complete the discovery already served that is the subject of the discovery motions also on calendar for today's hearing, June 14, 2018, and any discovery that has already been noticed. (See Opp. at 3:9‐10.) The court grants the first request, but denies the second. This matter is stayed except for ...

Excerpt: ...he Petitioner as permitted by PRC §21167.6(b)(2). “(W)e have been cited no authority, nor are we aware of any, indicating labor costs to review a petitioner‐prepared record of proceedings “for completeness” in connection with certification CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/14/18 ‐ 15 ‐ pursuant to section 21167.6, subdivision (b)(1), are recoverable record preparation costs. This sort of...

Excerpt: ...urrer to be a more appropriate procedural vehicle for deciding that purely legal question. If the Court were to deny an injunction based on its preliminary assessment of how it might rule on a demurrer, the Court would be transforming this OSC hearing into what would functionally be a dispositive motion. The Court finds that plaintiff has a low likelihood of prevailing on the merits, based on the legal arguments set forth in defendants' oppositio...

Excerpt: ...ed Discovery (data storage). The Court finds that this cost is more properly viewed as overhead. Further, plaintiffs' counsel has not adequately explained why it is necessary to spend $ 20,000 each year for data storage, and has not adequately explained how the $ 375.00 allocation for this case was calculated. (Mikhov Dec., ¶ 9.) Other Disputed Items. The other disputed cost items are neither expressly allowed nor expressly disallowed under the ...

Excerpt: ...s sale. No undertaking is required at this time, based on the information set forth in plaintiff's application for a fee waiver. (See, Code Civ. Proc., § 995.240 [undertaking may be waived for indigent party].) The purpose of this three‐month injunction is to allow the legal merits of plaintiff's complaint to be decided by demurrer. The Court finds a demurrer to be a more appropriate procedural vehicle for deciding that purely legal question. ...

Excerpt: ...uant to Code of Civil Procedure section 2016.040. Defendants and each of them shall have the right to take and complete Plaintiff's deposition. ...

Excerpt: ...ons WSI argues generally that Chevron has a time bar problem and that Chevron has not alleged sufficient facts to rely on the discovery rule. In the first instance, the demurrer does not identify which specific causes of action suffer from a limitations problem, or what the applicable statute(s) of limitations are. The Court is left to guess. On its own, this failure to support the contention that one or more of the causes of action is time‐bar...

Excerpt: ...o this Court as the appropriate venue. The first amended complaint asserts causes of action for (1) negligence, (2) negligent failure to carry sufficient liability insurance, and (3) vexatious failure to pay plaintiff's claim. The second and third causes of action do not exist in the law. Defendant owes no duty to plaintiff as to how much insurance he chooses to carry, so long as he carries the statutory minimum coverages. Plaintiff does not alle...

Excerpt: ...Code of Civil Procedure § 430.10(e) on the grounds that it did not owe a duty of care to Plaintiffs because it did not own, possess, or control the premises at the time of Plaintiffs' injury. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 2 ‐ The demurrer is overruled. Seterus must file and serve its answer to the TAC by June 29, 2018. Seterus demurred to the Second Amended Complaint on the exact sam...

Excerpt: ...icable three‐year statute of limitations. (Code of Civil Procedure § 338(a).) Plaintiffs allege that defendants' recordation of a notice of default in April 2013, and their recordation of a notice of trustee's sale in July 2013, violated HBOR. (FAC, ¶¶ 25‐27.) Yet plaintiffs did not commence this action until December 2017, more than four years later. In their opposition memorandum plaintiffs seek to invoke the doctrine of equitable tollin...

Excerpt: ...ding.” Section 436 (b) permits the court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Section 437(a) provides that “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” As plaintiff tacitly concedes, there is no legal bas...

Excerpt: ...cedural Setting At the outset, there is some imprecision and awkwardness about how this motion was filed and whether it is properly before the Court for decision. At a CMC the parties suggested that a major obstacle to possible settlement was disagreement as to the applicability of MICRA. The Court suggested that the parties might benefit if they could find a vehicle for presenting that “logjam” legal question to the Court for early decision,...

Excerpt: ...are denied. Liability of Ruggio In Special Verdict 1, the jury was asked whether each of Johnson and Ruggio were negligent. The jury answered “yes” as to both. In Special Verdict 2, the jury was asked whether each defendant's negligence “was a substantial factor in causing harm to [plaintiff]”. The jury answered “yes” as to defendant Johnson, but “no” as to defendant Ruggio. Plaintiff's principal argument is that the jury erred in...

Excerpt: ...erous motions to compel discovery, with awards of sanctions. Plaintiffs have not complied with the Court's orders, nor have they paid the sanctions. They have simply ceased to respond. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 18 ‐ This is to the obvious prejudice of defendants, who have not been able to conduct meaningful discovery in the case. Plaintiffs have not responded to the present motion...

Excerpt: ...laint against Hertz, alleging that she had purchased insurance from Hertz. The cross‐ complaint asserted claims for bad‐faith denial and indemnification. Nowhere in the crosscomplaint, however, did Kuney state any amount for the compensatory or punitive damages sought. Nor did she serve any statement of damages. Because the cross‐complaint was basically one for indemnification, it might be argued that Kuney could not know the amount of her ...

Excerpt: ...ird, Fourth, Fifth, Sixth, and Seventh Causes of Action and without leave to amend as to the Second Cause of Action. Stuber shall file and serve any Second Amended Cross‐Complaint on or before June 14, 2018. A. Factual Background. The FACC alleges the following pertinent facts. Mandio is a contractor. (FACC, ¶ 4.) He owned and remodeled 138 Arizona Avenue in Richmond, California (the “Property”). (¶ 2, 5.) He did some of the remodeling de...

Excerpt: ...sufficiency of the allegations in the complaint. It raises issues of law, not fact. (Lewis v. Safeway, Inc. (2015) 235 CA4th 385, 388.) “In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) Plaintiff Zion Yuzon, a student at Diablo Valley Community College, was injured on the campus quad area on...

Excerpt: ...er, is a more appropriate method of analysis. Counsel has offered relatively thin support for the use of the $700 hourly rate in calculating the lodestar amount. Assuming that the Court's determination starts with the submitted lodestar amount of $174,655, the total fee sought still amounts to a multiplier of 2.81. If a slightly lower hourly rate were used, the multiplier would be larger. While the case involved some degree of CONTRA COSTA SU...

Excerpt: ...ourt understands plaintiffs' view that their expert's testimony was more persuasive than that of defendant, there is no basis for setting aside the jury's verdict. With respect to the trial judge's ruling concerning the use of various photographs that were not included in the pre‐trial exhibit list, the ruling was well within the court's discretion. Even if the photographs had been provided in discovery, the pre‐ trial exhibit list is designe...

Excerpt: ...dgment, the defendant has the burden of proof in showing that the affirmative defense of primary assumption of risk applies. “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff's primary assumption of the risk by demonstrating that the defendant CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 05/31/18 11 owed no lega...

Excerpt: ...on any other question until the motion has been determined. Moore v. Powell (1977) 70 Cal.App.3d 583, 587; Adams v. Super. Ct. (1964) 226 Cal.App.2d 365, 368. Aside from certain exceptions provided for in CCP sections 396b(c) and 397(e), any order of the court made prior to the determination of a motion to change venue is a nullity. Beard v. Super. Ct. (1940) 39 Cal.App.2d 284, 286. Accordingly, the Court must first decide the motion to change ve...

Excerpt: ...ted action is pending [1] may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or [2] it may consolidate the actions. [Bracketed numbers added.] (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) While Martin‐Bragg and other cases mention consolidation as a theoretical possibility, plaintiff has failed to cite the Court to a decision where this was in fact the chosen remedy. There are two o...

Excerpt: ...not disputed that Dr. Braunstein is the prevailing party for purposes of awarding fees and costs. Karkanen opposes by objecting to the amounts sought by Dr. Braunstein as fees and costs. Karkanen also opposes by contending that an award of fees and/or costs would be unconstitutional. Constitutionality of Awarding Fees and/or Costs Our Supreme Court already has considered and rejected the contention that awarding fees and/or costs to a party preva...

Excerpt: ...entative ruling, plaintiff's attorney of record, Vartkes Artinian, shall personally appear at the hearing. An appearance by CourtCall, or a special appearance by an attorney who is not counsel of record, shall not be allowed. The basis for this ruling is as follows. A. Evidentiary Matters. Defendants' request for judicial notice is granted. Plaintiff's evidentiary objections are overruled. Patrick Riquelme is a “Document Control Officer” for ...

Excerpt: ... a complaint. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. For purposes of a demurrer, all properly pleaded facts are admitted as true. Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is...

Excerpt: ...on, failure to comply with section 430.41 cannot be used as a reason to overrule or sustain a demurrer. (Code of Civil Procedure §430.41(a)(4).) Therefore, assuming Plaintiff is correct that Defendant failed to fully comply with section 430.41, the Court excuses any such failure and will rule on the merits of the demurrer. Defendant argues that Plaintiff's complaint is not proper as a civil matter, but should be raised (if at all) in a family la...

Excerpt: ...(2) violation of RESPA (12 CFR § 1024.41); (3) violations of Equal Credit Opportunity Act (15 USC § 1691); (4) violations of Business and Professions Code § 17200; (5) wrongful foreclosure; (6) negligence; (7) cancellation of deed; and (8) quiet title. As with their opposition to Defendant's demur to the Plaintiffs' first amended complaint, Plaintiff's opposition to the Defendant's demur to the second amended complaint is overlong. Plaintiff's...

Excerpt: ...ode of Civ. Proc. § 430.10(e) on several grounds. The demurrer is sustained without leave to amend as to the second cause of action. It is sustained with leave to amend as to the remaining causes of action. A Third Amended Complaint may be filed and served within 30 days after service of the Order After Hearing hereon. Request for Judicial Notice Defendant requests judicial notice of several county recorder documents as well as pleadings and ord...

Excerpt: ...ituted out”. (The Court notes that arguably it was improper for counsel to “substitute out” when the proposed substitute representation (a corporation appearing pro per) was unlawful; counsel should instead have moved to withdraw. As it appears that such a motion would have been consented to by the client, however, the Court will overlook the point for present purposes and accept that Priceless has no lawyer in this case.) Plaintiffs are co...

Excerpt: ...t is surely not a documentintensive case. Nor is it a case that could reasonably be expected to generate any substantial volume of privileged documents on either side, aside from each attorney's routine case file. Nevertheless, the Court is presented with several inches of paper on points quite unlikely to yield any results of consequence for either side. Plaintiff served identical sets of document requests on the two individual defendants. Now a...

Excerpt: ...y further amended complaint on or before June 28, 2018. Preliminary Matters. Defendants' request for judicial notice is granted. The Court has not considered plaintiffs' sur‐reply, which was filed without leave of court on May 21; the governing statute does not authorize the filing of a sur‐reply. (Code Civ. Proc., § 1005.) The Statute of Limitations. Defendants' demurrer is sustained with leave to amend as to all causes of action, insofar a...

Excerpt: ...ceived a default judgment against Defendant in 1987 for $445,557. The current value of this judgment (with Alaska's 10.5% interest rate) is $1,868,991. Plaintiff has not collected any of this judgment from Defendant and she claims it is because she has been unable to locate him. In 2015, Plaintiff finally located Defendant in this County. On February 20, 2018, she filed an application for entry of judgment based on a sister‐state judgment pursu...

Excerpt: ...th the claim‐presentation requirement is an element of the claim. A claim that fails to allege CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 05/23/18 ‐ 14 ‐ compliance fails to state a cause of action. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236 The court may not consider the evidence attached to plaintiff's Opposition. On a demurrer, the court may only consider the face of the ple...

Excerpt: ...nsurance policy on his property, which was in effect on February 17, 2016, when high winds damaged a boat dock and some fencing. (Complaint, p. 1, line 26, through 28.) The insurance policy was issued by Liberty Mutual, Safeco Insurance Company, General Insurance Company, “and each of them.” (Complaint, page 2, lines 12‐13.) Plaintiff made a claim, which was unreasonably denied. (Complaint, page 2, lines 10 through page 4, line 12.) The den...

Excerpt: ...set forth in the Answer to Plaintiff's Complaint. ICW argues it is entitled to judgment in its favor because the Pollution Exclusion in the subject policies bar all of Plaintiff's claims. Defendant argues there is no dispute that the alleged contamination is property damage that falls within the scope of the exclusion provision of the policies issued to the Monroes. ICW seeks the same ruling relative to its cross‐complaint for declaratory relie...

Excerpt: ...ff in a prior case whose claims of Breach of Contract, Negligence, and Intentional Misrepresentation did not survive a Court trial, and judgment was entered against Ms. Zarnegar and in favor of Mr. Hashemi on March 2, 2016. In that case, Ms. Zarnegar failed to prove, among other things, that she and Mr. Hashemi entered into a contract to remodel her home. However, the evidence showed some ‘shenanigans' with a realtor friend of Mr. Hashemi allow...

Excerpt: ...sory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) fraud; (7) violation of Bus. & Prof. Code § 17200 et seq.; (8) quiet title; and (9) declaratory relief. The Court also notes that Plaintiff's claim for (4) breach of contract & interference with 3rd party beneficiary contract is new in the SAC. This Court pre...

Excerpt: ...edural context. (See Beach Break Equities, LLC v. Lowell (2016) 6 Cal.App.5th 847, 852‐54.) There is an exception to the general rule when the defendant has engaged in conduct the court finds “inequitable.” However, this is a narrow exception, and the Court finds that it is not applicable here. The Textron decision is the appellate decision most closely on point. (See, Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.A...

Excerpt: ...ome detail how he proposes to amend and how that will cure the problems identified. Chevron shall file and serve its Answer to the TAC on or before June 1, 2018. Statute of Limitations A defendant may file a general demurrer to a complaint if the complaint shows on its face that it is barred by the statute of limitations. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) Chevron argues that the face of the pleadings and the matters of which the c...

Excerpt: ..., CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/18/18 ‐ 16 ‐ Defendant demurs to the Complaint pursuant to Civil Code § 430.10(e) on the following grounds: (1) Plaintiff's claims are time barred; (2) Plaintiff is not an appropriate class representative; (3) Plaintiff fails to allege a community of interest; and (4) Plaintiff fails to adequately allege facts supporting the predicate statutory violations of her 17200 claim. Defendant also demurs ...

Excerpt: ...hed. Plaintiff Dorothy Guillory is AmeriCare's president, but brings this action in her individual capacity. On or about October 15, 2004, the City of Richmond leased the property to AmeriCare for purposes of operating an adult‐care facility and “related services.” The Lease Agreement had an initial term of 5 years. But the parties dispute the renewal provisions. The City Council originally approved a lease for a 5‐year term, with the opt...

Excerpt: ... DEPARTMENT: 09 HEARING DATE: 05/16/18 ‐ 9 ‐ Plaintiff argues the arbitration agreement should not be enforced because it is unconscionable. A court must order arbitration at the request of a party if it determines that an agreement to arbitrate the controversy exists unless it determines, among other things, that grounds exist for revocation of the agreement. (CCP § 1281.2 (b).) One such ground is that the agreement is unconscionable. (See ...

Excerpt: ... all causes of action are based on an underlying breach of a contract which is attached to the complaint. Defendant essentially argues that the allegations of the complaint are untrue, which of course does not constitute the basis for granting the motion (however styled). These arguments are matters to be presented at trial as evidence (or summary judgment motion), and the allegations of the complaint, however much the defendant disagrees with th...

Excerpt: ...t to go further and determine whether or not other reasons, such as unconscionability, adhesion, mistake, etc., would also be a basis for denial of the petition. ...

Excerpt: ...terpretation is not permitted by section 108. The Board's main argument in its demurrer is that Black Diamond has failed to exhaust its administrative remedies. In support of its argument it relies on the pending administrative proceeding between Black Diamond and the Board: In re Black Diamond Electric, Inc. (CSLB No. 2016‐232). The Board argues that Black Diamond must go through the administrative proceeding and then take a writ from the proc...

Excerpt: ...ed. Relevant Factual and Procedural Background The following was taken from the Administrative Record provided by Petitioner. On April 30, 2017 Petitioner was arrested for being a minor under 21 years of age and containing a B.A.C. of over .01% in violation of the California Vehicle Code. Petitioner's license was suspended after her arrest under the law of administrative per se. Petitioner requested and was granted a hearing with the DMV on Septe...

Excerpt: ...ing there appears to be no meaningful difference between Terri and The Heath Company and therefore future references to Terri shall include The Heath Company. Plaintiffs Blair Heath Kenealy (“Blair”) and Holly Heath Fuller (“Holly”) filed a motion to vacate the arbitration award. The Heath Family Partners II, LP (the “Partnership”), has filed a petition to correct or vacate the arbitration award. The Partnership is not a party in this...

Excerpt: ...ll file and serve his amended complaint by May 29, 2018. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 05/14/18 ‐ 22 ‐ The Court has reviewed Defendants' attorney's declaration and finds that it complies with Code of Civil Procedure §435.5. It is, however, disappointing that Plaintiff's attorney did not take the opportunity to meet and confer. Defendants seek to strike Plaintiff's attorney fees claim on page 3...

Excerpt: ...ations; (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; (6) fraud; and (7) slander of title. Defendant demurrers pursuant to Code of Civil Procedure § 430.10(e) to each cause of action. Request for Judicial Notice Defendant requests Judicial Notice of several Contra Costa County Recorder Documents. This Request is unopposed. The Cour...

Excerpt: ...es to the First Amended Complaint (“FAC”) filed by Plaintiff Ali Rezapour (“Plaintiff” or “Rezapour”). The FAC pleads causes of action for (1) declaratory judgment; (2) statutory violations; (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; (6) fraud; and (7) slander of title. Defendants demurrer pursuant to Code of Civil Pr...

Excerpt: ...d Negligence are barred by Ohio's applicable statute of repose (Ohio Revised Code 23.5.10), and the cause of action for Negligent Infliction of Emotional Distress is inappropriate and has no merit. (In the Opposition, Plaintiff concedes his cause of action for NIED is subsumed within the Negligence claim.) Standard of Review CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 05/14/18 ‐ 7 ‐ “The motion for summary ...

Excerpt: ...A COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 05/10/18 ‐ 24 ‐ Here, by verified petition and declarations, Petitioners allege a demand was made to inspect and copy the records of Respondent, The Sikh Center of the San Francisco Bay Area, “for a purpose reasonably related to such person's interest as members.” By way of letter in December 2017, Petitioners requested from Respondent Lally, in her capacity as presi...

Excerpt: ...‐ Punitive damages are available when a defendant acts with “oppression, fraud or malice” when breaching an obligation owed to a plaintiff. See Civil Code Section 3294(a). Malice includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others.” See Civil Code Section 3294(c)(1). Oppression is defined as “despicable conduct that subjects a person to cruel and u...

Excerpt: ...ch 27, 2018 and the hearing was set for May 10, 2018. Defendant has represented in his reply that the court clerk set the hearing date for this motion, which is the common practices of our court clerks. In addition, even if Defendant had requested the May 10, 2018 date the Court can still decide the merits of the motion. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296.) Plaintiff has sued “Defendant, JASON KRISTAL, c/o REDWO...

Excerpt: ...ther nurses in the same or similar locality and under similar circumstances (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215) and (2) Antioch has shown that it was not responsible for causing Plaintiff's injury (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132). Both grounds are highly disputed. STANDARD OF CARE Both parties have produced expert nursing witnesses on this issue. Antioch relies on the expert declaration of Julie Baird, ...

Excerpt: ...been received and that the judgment is subject to amendment to add such costs once they have been approved by the court. This would occur by operation of law if no motion to tax costs was timely filed by Plaintiff or after order of the court following the hearing on a motion to tax costs. Here a motion to tax costs was timely filed. Defendant prematurely filed his memorandum of costs prior to service of the notice of entry of judgment. Plaintiff ...

Excerpt: ...uant to Code of Civil Procedure § 437c. The MSA relates to five of the thirty causes of action of Plaintiff David Wong, M.D. (“Dr. Wong”) and Plaintiff San Ramon Endoscopy Center, Inc. (“SREC”) (collectively, “Plaintiffs”)'s Third Amended Complaint (“TAC”). For the following reasons, the MSA is granted‐in‐part and denied‐in‐part. A motion for summary adjudication may be granted only if it “completely disposes of a cause...

Excerpt: ...f Civil Code § 2923.7; (4) violation of Civil Code § 2923.12; (5) violation of Civil Code § 2937; and (6) unfair business practices. Defendant demurs pursuant to Code of Civil Proc. § 430.10(e) and (f) on several grounds. For the following reasons, the Demurrer is sustained, with leave to amend. With respect to the second cause of action, Plaintiff may wish to consider whether to amend in light of prevailing authority which holds that “[w]h...

Excerpt: ... the Court has considered its contents. For reasons stated below, the Petition is denied. Relevant Factual And Procedural Background Plaintiffs are former employees of Defendants and on February 1, 2018, Plaintiffs filed their Complaint against Defendants alleging sixteen causes of action such as race and age discrimination, wrongful termination, and non‐payment of wages. Defendants contend that prior to commencement of their employment with De...

Excerpt: ...ciding whether or not to consolidate two cases, the Court looks primarily at whether the actions involve common questions of law or fact. (Code of Civ. Proc. §1048(a).) The Court also considers whether consolidation would prejudice the parties. (See, e.g. State Farm Mut. Auto. Ins. Co. v. Superior Court of San Francisco (1956) 47 Cal.2d 428, 432.) In this case, Alcazar alleges in his verified complaint that Enriquez agreed to help Alcazar buy th...

Excerpt: ...City pursues a General Plan Amendment to change the land use designation for that area from its current designation of Low Intensity Business/Light Industrial to Open Space, Parks and Recreation, Agriculture, Public Cultural and Institutional (hereinafter “Open Space”). Plaintiffs are property owners in Change Area 12. Some of them have pending development applications. Plaintiffs claim the City's adoption of the moratorium and pursuit of the...

Excerpt: ...as matters that may be judicially noticeable, but it may not consider other evidence presented by the parties. (Ibid.; see also, Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant argues that there is another action pending between the same parties and that there is a defect or misjoinder of parties. Defendant has offered no matters upon which the Court may take judicial notice and therefore the Court can only consider the complaint. The compl...

Excerpt: ...y plaintiff Tekforce Corporation (“Plaintiff”). For reasons stated below, the Motion is granted. Relevant Factual and Procedural Background This is a collection case where both parties are corporations. Plaintiff filed its Complaint on October 31, 2016. On January 11, 2017, January 19, 2017, and January 25, 2017, and March 2, 2017, Plaintiff attempted to personally serve Defendant through its agent designated for service of process, Reddy Mar...

Excerpt: ...l jurisdiction over Praza. The only question is whether specific jurisdiction exists. The United States Supreme Court most recently said, In order for a state court to exercise specific jurisdiction, “the suit” must “aris[e] out of or relat[e] to the defendant's contacts with the forum.” Id., at ___, 134 S. Ct. 746, 187 L. Ed. 2d 624, 633 (internal quotation marks omitted; emphasis added); see Burger King Corp. v. Rudzewicz, 471 U. S. 462...

Excerpt: ...son was admitted to Defendant San Pablo Healthcare & Wellness Center (“Facility”), a 24‐ hour skilled nursing facility on July 9, 2016. Plaintiff alleges Defendant Sol Healthcare, LLC and Defendant SR Capital, LLC were the owners, operators, parent company, and/or management company of the Facility. Plaintiff Lionel Johnson signed an Arbitration Agreement on July 11, 2016. Provisions 1.1 and 1.2 of the Agreement encompasses all disputes “...

Excerpt: ...ny further amended complaint on or before June 7, 2018, and shall comply with the conditions on leave to amend set forth below. The basis for this ruling is as follows. A. The Entire FAC. 1. Tender. Defendants demur to the entire FAC on the ground that plaintiff has failed to tender the amount of the underlying indebtedness. This argument lacks merit, because the First through the Fifth Causes of Action seek only monetary relief. The Court will a...

Excerpt: ...eeks to add more details regarding the claim for indemnity and to add a new cause of action. Plaintiff/Cross‐Defendant Olson opposes the motion on the ground the amended crosscomplaint is a sham pleading. Ms. Olson argues that in the proposed FACC, SBJLG seeks to omit and contradict harmful facts pleaded in the original cross‐complaint. Olson claims that there has been no mistake and that SBJLG has not provided sufficient excuse or explanatio...

Excerpt: ...ecise. Please be prepared to address more specifically the following questions: a) What records did counsel examine? b) What analysis did counsel performed on them? c) What is the basis for saying “discovery conducted by Plaintiff did not bear out a high violation rate” (p.20)? d) How much were the maximum damages exclusive of penalties? e) How much was the maximum amount of penalties? f) Were all of the members of the class subject to arbitr...

Excerpt: ...ersonal knowledge of issues surrounding FAIR Plan's decision to modify its policy language in 2017. There was no substantial justification for Ms. Salat‐Kolm's counsel to unilaterally terminate her deposition. As a result, the court is required to award sanctions pursuant to CCP §2025.480. The amount of the sanctions will be set at the hearing upon presentation of an updated cost and expense declaration from the moving party. Counsel shall be ...

Excerpt: ...on references certain settlement discussions. Ted objects on the ground that such discussions are inadmissible under Evidence Code section 1152. That section, however, “has no application where the evidence is not tendered as an admission of weakness by the party who settled or offered to settle, but for some other purpose.” (Lemer v. Boise Cascade (1980) 107 Cal. App. 3d 1, 9.) And as another court flatly proclaimed, “[c]ommunications made...

Excerpt: ...E: 04/30/18 ‐ 9 ‐ recorded the lis pendens cannot establish the “probable validity” of the real property claim by a preponderance of the evidence. [CCP § 405.32] (See Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1017.) “Probable validity” of the claim for purposes of avoiding expungement means that it is more likely than not that the party who asserted the real property claim will obtain a judgment on the claim in his or her...

Excerpt: ...osta County (the “County”). For the reasons stated below, the Motion is granted without leave to amend. Code of Civil Procedure (“CCP”) section 436 permits the court to “strike out any irrelevant, false, or improper matter inserted in any pleading.” For a prayer for punitive damages to be valid, some basis for punitive damages must be pleaded. (Clauson v. Superior Court (1988) 67 CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPART...

Excerpt: ...rvice on behalf of a party. On March 16, 2018, Petitioners filed another proof of service by notice and acknowledgment under Code of Civil Procedure section 415.30, which did not rectify the problem. Nothing new has been filed CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 04/30/18 ‐ 6 ‐ since that time. Perhaps petitioner believed that the Court did not have the March 16, 2018 filing and that it remedied the pr...

Excerpt: ...��Oduah”). The SAC pleads causes of action for (1) breach of contract; (2) promissory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) fraud; (7) violation of Bus. & Prof. Code § 17200 et seq.; (8) quiet title; and (9) declaratory relief. The Court notes that the Plaintiff has filed a “Notice of Partial Tent...

Excerpt: ...C”) appears to meet the definition in Article XIII, Section 3, which requires vessels of more than 50 tons' burden. That is alleged. (SAC, paragraph 12) Article XIII, Section 3 also requires that the vessels be “engaged in the transportation of freight or passengers.” That is also alleged, as the courts have interpreted that phrase. The phrase has been interpreted to mean that a vessel must be carrying goods that someone is paying to be tra...

Excerpt: ...pplicable to public entities. See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132. The first and second causes of action are both negligence claims pled against Doe Defendants. On the dangerous condition of public property claim, the City moves for summary judgment on four (4) grounds: (1) Plaintiff has no evidence that the City of Antioch created the dangero...

Excerpt: ...l” HBOR violation; despite any frustration plaintiff may have experienced in dealing with multiple loan officers, plaintiff did succeed in having a series of applications for a loan modification considered by defendant. Also, plaintiff improperly conflates the procedural requirements of HBOR with the substantive decision of whether to offer plaintiff a loan modification; denying an application for a loan application based on a rationale that th...

Excerpt: ...use plaintiff has dismissed this lawsuit with prejudice. Plaintiff argues that the lis pendens should not be expunged because the case needs to be reactivated due to defendant's breach of some unspecified stipulation. In pertinent part, Code of Civil Procedure section 405.30 provides as follows: “At any time after notice of pendency of action has been recorded, any party . . . may apply to the court in which the action is pending to expunge the...

Excerpt: ...ts ought to be stricken, because the Court is without authority to issue a writ directing any relief to such unidentified general assistance recipients. Third, the County contends that portions of the prayer for relief ought to be stricken, tracking the arguments made above. Sixth Cause of Action The motion is denied as to the sixth cause of action. If the County wished to argue that the entire sixth cause of action is legally defective, the appr...

Excerpt: ...Code section 13559, which states, in part, as follows: [Following] an order of suspension or revocation of the person's privilege to operate a motor vehicle after the hearing pursuant to Section 13558, the person may file a petition for review of the order in the court of competent jurisdiction in the person's county of residence. . . .The review shall be on the record of the hearing and the court shall not consider other evidence. If the court f...

Excerpt: ...et aside its order that cause existed to for dismissing Petitioner, that Petitioner's disability was not a convincing defense against the charges and that the prior discipline laid a solid foundation for dismissal. The Court has reviewed the petition, the administrative record, Bacon's declaration in support of the petition, as well as, the parties memoranda for and against granting the petition. For the reasons explained below, the petition for ...

Excerpt: ...ame parties bars Plaintiff's complaint and (2) Plaintiff's complaint is uncertain. In Defendant's memorandum of points and authorities Defendant also argues that Plaintiff's claim fails to state a cause of action. That ground was not included in the demurrer and will not be considered by the Court at this time. Res Judicata Defendant argues that Plaintiff's complaint is barred by res judicata because there was a final judgment on the merits in a ...

Excerpt: ...ion to ignore the Court's order, thus receiving the benefit of the preliminary injunction without the corresponding burden. Plaintiffs' counsel is admonished that such procedural gamesmanship may be punished by sanctions in future proceedings. The preliminary injunction, issued on February 7, 2018, is hereby immediately dissolved. Defendants are now free to pursue nonjudicial foreclosure proceedings against plaintiffs' residence as and when they ...

Excerpt: ...process. Accordingly, the defaults are void, and must be set aside. (Code Civ. Proc., § 473, subd. (d).) The Court finds the supporting declarations more persuasive than the proofs of service, because defendants have at all pertinent times been represented by counsel and have otherwise vigorously pursued their legal rights. The Court finds it highly implausible that defendants, if they had been served with the First Amended Complaint, would have...

Excerpt: ... what are the parties' current positions related to the motion to enforce judgment. In addition, the Court notes that recently some of the parties have been submitting documents to this Court where it is not clear whether all parties were served with a copy of that document. This practice must not continue. Whether in a court filing or letter submitted to this Court, all parties must provide a copy of any and all such documents to all other parti...

Excerpt: ...rial in the disposition of the MSA. See CCP § 437c(q). Here, there were none. Request for Judicial Notice Firouzian requests judicial notice of a Contra Costa County Recorder document as well as several pleadings from this action. The Request is unopposed. The request is granted as to the Notice of Completion filed with the County Recorder and otherwise denied. Evid. Code §§ 452, 453. The Court need not take judicial notice of its own records....

Excerpt: ...h's request for judicial notice is granted. Defendant shall file an answer on or before April 19, 2018. Leave to amend is denied at this time. However, this aspect of the Court's ruling shall not prejudice plaintiffs' right to timely file a motion for leave to amend, should discovery or further investigation reveal new facts that would support the eliminated causes of action. The legal basis for this ruling is as follows. 1st C/A (Breach of Contr...