Excerpt: ...tach order. A writ of attachment is a statutory remedy governed by CCP Section 484.090. Attachment is a harsh remedy because it causes the defendant to lose control of their property before the plaintiff's claim is adjudicated. See Martin v. Aboyan (1983) 148 Cal.App.3d 826, 831. Because of this, the statutory requirements are strictly construed. See Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1476. CCP Sect...

Excerpt: ...ment interest is an element of damages, not of costs. Hence, absent a stipulation like the one applicable to Line 3, a request for an award of prejudgment interest should be presented either before judgment is entered, or by way of a new trial motion. North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824. Even if the procedural problem is ignored (and no party has raised it), the motion is substantively unmeritorious. On a tort claim, ...

Excerpt: ...Government Code § 946.6. “Section 946.6 is a remedial statute intended ‘to provide relief from technical rules that otherwise provide a trap for the unwary claimant.'” Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275. Courts exercise their power to grant relief liberally, so as to preserve meritorious claims wherever possible. Any doubts are to be resolved in favor of permitting the suit to proceed. Viles v. Califo...

Excerpt: ...nctions are awarded in favor of Ms. Sheedy. This motion comes as part – hopefully the last part – of an extraordinary set of discovery disputes in this case. These disputes occupy several volumes of the Court's case file despite the fact that nearly all of it has actually occurred before a Discovery Referee and not in court. It is to be feared that both sides' counsel have allowed this matter to become more personally rancorous than is profes...

Excerpt: ...r. Gordon and his Trust”). For reasons stated below, the Motion to Strike is granted, the Demurrer is overruled, and the MJOP is denied in part, and granted in part. Relevant Factual And Procedural Background This is a personal injury‐premises liability case. Plaintiff, Konstantinos Sakellariou (“Plaintiff”), alleges that he was injured at a property owned, operated, and maintained by the defendants in this matter. The following facts wer...

Excerpt: ...'s parents“ refused to have their son apologize or take responsibility for a dreadful decision.” (2) The portion of the Instagram post where Defendant stated that N.Y.'s parents “refused to have their son apologize/take responsibility for a poor decision.” All other alleged defamatory statements are stricken from the complaint. Legal Standard “Resolution of an anti‐SLAPP motion [or special motion to strike] involves two steps. First, ...

Excerpt: ...olving adjudication of complex issues of legal and beneficial title to property.” (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 394.) The Court has denied plaintiffs' motion because this civil action does not involve such issues. The First, Fifth and Sixth Causes of Action are based on alleged irregularities in the service and posting of the notice of trustee's sale. (See Complaint, ¶¶ 29‐31.) Plaintiffs acknowledge in their opening ...

Excerpt: ...k of personal jurisdiction. It did make a motion to dismiss Eaves 1 for forum non conveniens. After discovery and a second round of briefing, the Court denied that motion on October 20, 2016. Shell made no such motion in Eaves 2. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 17 HEARING DATE: 04/26/18 ‐ 2 ‐ Shell answered Eaves 1 on October 27, 2016 and Eaves 2 on May 30, 2017. In doing so, it entered a general appearance. By en...

Excerpt: ...court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means ex...

Excerpt: ...ne was negotiating with State Farm, who advised him that while it represented Bravos, it could not accept service on his behalf. State Farm specifically requested that it be notified when the cross‐complaint was served, or before seeking entry of a default. Eventually, Romdhane obtained an order permitting service by publication. On October 13, 2017, however, Romdhane managed to personally serve Bravos, according to a proof of service dated Oct...

Excerpt: ...ference that “both sides had agreed to a jury trial. I did not know that my demand was sufficient to secure my rights, and the whole proceeding was conducted so quickly that I did not think to ask the court about the issue.” There is some apparent miswording in the declaration, i.e., the discussion was that both sides had agreed to a court trial, and presumably Ms. Longmire means that she did not know that her demand was insufficient to secur...

Excerpt: ...uding during trial. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) “The rule of liberality is particularly important where, as in the present case, an amendment is sought to an answer.” (Dunzweiler v. Superior Court of Alameda County (1968) 267 Cal.App.2d 569, 576 (defendant permitted to plead plaintiff's negligence). Plaintiffs argue they will be prejudiced if the amendment is allowed because vehicle inspections, depositions, and a med...

Excerpt: ...ors' good faith motion. See Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4th 1550, 1561, fn. 5 (“The amount of discovery – if any – to be allowed and the scope of the good faith settlement proceeding rests in the sound discretion of the trial court.”); City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1265 (appropriate for “the objecting nonsettlor to move for a continuance of the hearing, if necessary, for t...

Excerpt: ...ender, rested on Rad's debt to the HOA for failure to pay HOA assessments. Spinnaker thereafter obtained the present California judgment on sister‐state judgment, pursuant to Code of Civil Procedure § 1710.25. Defendant Rad now moves to vacate the judgment pursuant to Code of Civil Procedure § 1740. The motion is granted. Venue As the last, most cursory item in his motion, Rad states that Contra Costa County is the improper venue for the judg...

Excerpt: ...t last fall. Plaintiff/cross‐defendant Korb filed a demurrer to it. On December 15, 2017 the Court took that demurrer off‐calendar because Romero had responded by proposing to amend his pleading in response to what he said were “good points” made by his opponent. The Court granted Romero leave to file his First Amended Cross‐Complaint by January 15, 2018, and expressly directed the parties to meet and confer before that filing in the ho...

Excerpt: ...� 6 ‐ motion for leave to amend the complaint to correct typographical errors and to add two causes of action—Declaratory Relief and Injunctive Relief. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may …, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading…” Code of Civil Procedure § 473. Judicial policy favor...

Excerpt: ...Code of Civil Procedure § 430.10(e).) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 04/20/18 ‐ 9 ‐ The SAC alleges or can reasonably be construed to allege the following. The plaintiffs and the lead defendant, Gerald Knopoff, are siblings, the children of Leon Knopoff. When Leon died, the children were left $7 million in a trust. But when the trustee, Gerald Knopoff, distributed the funds, each child received ...

Excerpt: ...awford decision does not hold otherwise. That decision addressed “issues concerning the contractual duty to defend in a noninsurance context [italics in original].” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547.) Footnote 12 of the decision states that the issue of contractual liability for defense costs, as raised in a general contractor's cross‐complaints against subcontractors during construction litigation that has n...

Excerpt: ...n it, examined the allegations of the FAC, not the allegations of the original complaint. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/19/18 ‐ 9 ‐ Second Cause of Action, Intentional Misrepresentation: The demurrer to this cause of action is overruled. In challenging this cause of action, defendant cites the rule that fraud must be pleaded specifically and argues the FAC is insufficiently specific in explai...

Excerpt: ...e addressed at the same time in the motions and demurrers. The defendants raise several arguments in their demurrer. First, defendants argue that plaintiff lacks standing. “In general terms, in order to have standing, the plaintiff must be able to allege injury—that is, some ‘invasion of the plaintiff's legally protected interests.' (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 862, p. 320; see Code Civ. Proc., § 367 [‘Every ...

Excerpt: ...The Crawford decision does not hold otherwise. That decision addressed “issues concerning the contractual duty to defend in a noninsurance context [italics in original].” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547.) Footnote 12 of the decision states that the issue of contractual liability for defense costs, as raised in a general contractor's cross‐complaints against subcontractors during construction litigation that...

Excerpt: ...ld otherwise. That decision addressed “issues concerning the contractual duty to defend in a noninsurance context [italics in original].” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547.) Footnote 12 of the decision states that the issue of contractual liability for defense costs, as raised in a general contractor's cross‐complaints against subcontractors during construction litigation that has not been concluded, may be d...

Excerpt: ...y false and/or intentionally misleading fact allegations relating to Plaintiff's failure to exhaust his administrative remedies.” (Def. Memo of P & A, 2:5‐6.) Defendants contend the complaint falsely alleges that Plaintiff exhausted his administrative remedies necessary to maintain a FEHA claim. “‘Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH.' [Citation.] Exha...

Excerpt: ...�litigation procedures apply to each of the homes, and no opposition has been presented on that point. The motion does not provide the Court with a sense of how long the pre‐litigation process will take. The Court sets a case management conference for July 16, 2018, at 8:30 a.m. On or before July 11, 2018, the parties shall file a joint case management statement (a manuscript statement; do not use the Judicial Council form). That case managemen...

Excerpt: ...ief of no more than 10 pages and any additional evidence on or before June 28. Defendants may each file and serve a supplemental brief of no more than 10 pages and any additional evidence on or before July 12, 2018. Thereafter the Court will hold a hearing on whether plaintiff has shown a probability of prevailing on the merits of its claims against the defendants. Plaintiff sued various defendants, including attorneys Mark Lapham and Owen Mascot...

Excerpt: ...or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. In addition, “[a] party seeking reconsideration also must provide a satis...

Excerpt: ...sses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby.” Here, the principal arguments for bifurcating the issue of causation are (a) economy and efficiency, and (b) the ends of justice. Typically, when considering economy and efficiency, the Court is best informed by a detailed showing of how bifurcation will save trial time; viz. a list of which witnesses will testify in a bifurcated tria...

Excerpt: ... heirs, as well as heirs making individual claims. In this motion, Defendants Synthes, Inc. and Norian Corporation seek summary adjudication of plaintiffs' claims for elder abuse, violation of the Unfair Competition Law (UCL), conspiracy, and negligence per se, as well as plaintiffs' plea for attorney's fees. II. Motions for Summary Adjudication A. Standards on Summary Judgment/Adjudication A motion for summary judgment/adjudication “shall be g...

Excerpt: ...a Dang, D.D.S. (“Dr. Dang”) at the time she passed away. Plaintiffs move pursuant to Code of Civil Procedure (“CCP”) section 425.13, which governs the amendment of complaints to include claims for punitive damages against health care providers: In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court ent...

Excerpt: ...p.4th 566, 604.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 04/16/18 ‐ 3 ‐ In this instance, Mr. Luria has not complied with the Court's January 9, 2018, order, either by submitting code‐complaint responses or paying the sanction award. (The Court notes that while Mr. Luria stated that he no longer has possession or control of certain documents, that statement, by itself is not sufficient. Code of Civil Pr...

Excerpt: ...ssal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiffs' counsel for approval as to form. The basis for the Court's ruling is as follows. A. Request for Judicial Notice. Defendant seeks judicial notice of the recorded deed of trust and assignment of deed of trust. This unopposed request is granted. (See, Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752‐761.) B. Individual Cau...

Excerpt: ...s plaintiff wishes to plead have been known all along, so there is no prejudice. Prejudice requires more than the additional costs of defending against new facts and theories. (See Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1109 (Prejudice does not mean a result which is unfavorable, it means a result which is unfair); Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 75 (“To be sure without the amendment he might have won his lawsuit; with it,...

Excerpt: ...ce. Given that, whether counsel for Bank of America's statement with respect to receiving the subpoena by mail is hearsay is immaterial. Second, Bank of America's contention that plaintiff has no cause of action, and specifically that whether Ms. Smith had authority to sign the documents is legally immaterial is not properly raised as an objection to discovery. The cases relied on by Bank of America concern circumstances where the court itself de...

Excerpt: ... motion could have been filed at that time), it did respond (about a month late), and the parties engaged in some meet and confer efforts, which resulted in supplemental responses. While Sentinel may consider the responses to be wholly inadequate, especially given the provision in the statute that objections are waived by a failure to respond in a timely manner, the local rule exempts from the Discovery Facilitator Program only those circumstance...

Excerpt: ...idable.” (Complaint, Par. 11.) The sole named defendant in the action is Alvernaz Partners, LLC, which purchased the property at the trustee's sale, but against whom plaintiff alleges no wrongful conduct. Plaintiff recorded a lis pendens. Alvernaz moves to expunge the lis pendens on the grounds that (1) it is invalid because plaintiff did not serve it on Alvernaz; and (2) plaintiff cannot show a probability of prevailing on the merits of the ac...

Excerpt: ...ismissal was not in fact caused by the attorney's mistake, inadvertence, surprise or neglect.” In this instance, counsel fails to set forth any basis upon which, had he appeared at the hearing, a further extension of the deadline for service of a complaint filed January 9, 2017, would have been granted, given that a previous extension had been allowed. Plaintiff may appear (by telephone through Court Call) to address this issue ...

Excerpt: ...t 1:10 with Motion to Vacate filed 2/2/18 at 1:15.) Neither of these, however, is supported by any evidence or testimony under oath. A plaintiff seeking to vacate a default judgment on grounds such as these has both statutory and non‐statutory remedies. The former include remedies under Code of Civil Procedure §§ 473(b),(d) and 473.5. The nonstatutory remedy includes a suit in equity or a motion based on a claim of extrinsic fraud or mistake....

Excerpt: ...hich relief may be granted” is a procedural label used in federal court, not California court. The state‐court equivalents are a demurrer, or a motion for judgment on the pleadings (MJOP). (See Code of Civil Procedure §§430.10, 438.) Because defendant has filed a document captioned “Answer” (about which more shortly), the Court treats this as an MJOP. Second: The miscaptioning of defendant's motion is of little consequence to the outcom...

Excerpt: ...�employee) to engage defendant Rana as a broker to negotiate the Thekkeks' purchase of a 49% interest in Corona from the Ferrers. Having discussed the deal with the Ferrers, Rana engaged his long‐time attorney Sandbank to draft the deal documents. Then in 2014, Singh and Rana negotiated to buy the Thekkeks' interest in Corona. Again Rana arranged for Sandbank to draft the deal documents. The gist of the present lawsuit is the Thekkeks' allegati...

Excerpt: ... position to be able to do. Parish is no longer an employee of defendant District. Moreover, although defendant is understandably reticent concerning the circumstances as to the termination of Parish's employment, it is not difficult to infer (from the administrative leave that preceded the termination) that Parish may have left the District on less than friendly terms. Plaintiffs make no effort to explain how the District is supposed to be able ...

Excerpt: ...e BHGRE's present claim. Plaintiff Wells Fargo obtained a default judgment in this case against defendant Mason‐McDuffie in the amount of $54,420.68. Wells Fargo seeks to collect that judgment by levying on MasonMcDuffie's bank account at Union Bank. BHGRE, however, asserts in this motion that it has a superior right to the funds. It points out that nearly all the funds in the account come from an insurer's refund to Mason‐McDuffie of an over...

Excerpt: ...rnal failure. Defendant Sears Roebuck and Co. distributed the freezer and obtained it from defendant Midea. CSAA brings causes of action against Midea for strict liability, negligence, and breach of warranty. Midea moves for summary judgment on the basis that no evidence shows that a defect in the freezer in fact caused the fire. It also seeks to dispose of the breach of warranty claim based upon a lack of privity between it and CSAA's insured, M...

Excerpt: ... of several county recorder documents. This request is unopposed. The request is granted. Evid. Code §§ 452, 453. Setting Aside the Foreclosure Sale “A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender.” Moeller v. Lien (1994) 25 Cal.App.4th 822, 831. “As a general rule, a trustee's sale is complete upon acceptance of the final bid.” Nguyen v. Calhoun (2003) 105 Cal...

Excerpt: ...gh May, 2017 when her position was eliminated. She brings six claims related to her termination: 1) disability discrimination; 2) failure to accommodate a disability; 3) failure to engage in the good faith interactive process; 4) retaliation; 5) failure to pay wages due upon termination; and 6) wrongful termination. At the time of her hiring, plaintiff executed a document entitled the “Working Agreement” (Agreement). This 11‐page document i...

Excerpt: ...e of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a crosscomplaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross‐complaint...

Excerpt: ...murrer. The Demurrer is opposed (filed as an “Answer” to Defendant's Demurrer) by plaintiffs, in pro per, Greg and Ramona Mayon (collectively “Plaintiffs”). Defendant replied. For the reasons stated below, Defendant's Demurrer is overruled. Defendant shall file an answer on or before April 27, 2018. Brief Factual and Procedural Background Defendant is the landlord and owner of the mobilehome park where Plaintiffs reside. Generally, Plaint...

Excerpt: ...'s motion for attorney fees for the special motion to strike filed against the Original Complaint; (2) 7 Stars Holistic Foundation, Inc. and Zeaad Handoush's motion for attorney fees for both its special motions to strike; (3) Antwon Cloird's motion for attorney fees for the special motion to strike the Original Complaint and (4) Richmond Patient's Group, William Koziol, Darrin Parle, Alexis Parle, and Cesar Zepeda's motion for attorney fees for ...

Excerpt: ...s facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. Rule 2.550(d). In addition, the mot...

Excerpt: ...est the granting of Plaintiffs' motion then that party should follow the normal rules for contesting a tentative ruling. Although not raised by the parties, the Court notes that the moving party on this motion failed to comply with all the requirements in California Rules of Court, Rule 3.1324. The parties should comply with this rule, as well as all Rules of Court, at all times. There is “a policy of great liberality in permitting amendments t...

Excerpt: ... may “deny leave when the proposed amendment or amended pleading is insufficient to state a cause of action or defense.” (Congleton v. Nat'l Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 62.) The Court notes a trial date of July 16, 2018, continued upon stipulation of the parties from November 22, 2017. While this motion for leave to amend is not brought on the “eve” of trial, discovery has been closed. The City also has a pending mot...

Excerpt: ...er Decl., ¶ 21 a, b, d, e, f; Pltf's Ex. 10, p. 151.) Telecare argues it is entitled to summary judgment for three reasons: (1) plaintiff's action against it is barred by the statute of limitations; (2) plaintiff cannot establish it was negligent; and (3) plaintiff cannot establish that any negligence by Telecare caused her injuries. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 4 ‐ 1. Statute of li...

Excerpt: ...stee's sale, and the Ninth Cause of Action, for quiet title. These causes of action lack merit because plaintiff has failed to allege a tender of the sums due under the subject note and deed of trust, and has failed to allege facts showing a valid exception to the rule requiring CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 12 ‐ tender. (See, Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439 [the ten...

Excerpt: ...t, rule 3.1110, subd. (f); Local 3.42, subd. (3).) Plaintiffs' attorneys, who practice in the law firm CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 13 ‐ JT Legal Group, APC, are hereby admonished that future failures to tab exhibits in this or other cases may result in an award of monetary sanctions, the disregard of non‐conforming documents, or both. 1. Irreparable Harm. In February 2018, defenda...

Excerpt: ...re enjoined and restrained from the following acts, during the pendency of this lawsuit: (1) from selling, transferring, encumbering, conveying or otherwise disposing of any assets of New U Life; (2) from dissolving New U Life, and (3) from using any other entity, such as Strike First Nutrition, to sell New U Life's HGH Gel and testosterone related products. (4) Defendants shall keep and maintain complete and accurate books and records of account...

Excerpt: ...with CCP § 435.5. It has the same meet‐and‐confer requirements as CCP § 430.41 provides for demurrers. The new statute became effective on January 1, 2018. Here, the motion to strike was filed on February 27, 2018. Given the relative “newness” of the statute and there being no objection from the opposing party, the Court will “excuse” compliance this once. However, future motions to strike must comply with CCP § 435.5 or risk being...

Excerpt: ...aintiff must file the declaration required by CCP § 435.5 (a)(3). Before the next hearing, defendant should read the case of CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145, which makes clear that, unlike a natural person, a corporation may not represent itself in court proceedings or represent itself through a non‐attorney officer. Should an attorney fail to file a Notice of Appearance on behalf of Damax before t...

Excerpt: ...fiduciary duty and other similar claims. Answers and Cross‐complaints were filed on 6/17/16, and discovery was served on 7/13/16 by the Schulers, Stones and Turners (“clients”) to Reed (“attorney”), consisting of requests for admission, interrogatories and requests for production of documents. The first Motion to Compel was filed on 9/16/16 because attorney had provided no responses to the discovery requests. Attorney responded to the m...

Excerpt: ...s timely. Therefore, the case will be reassigned to a new judge and notice will be mailed to all parties/counsel. In the meantime, the motion for summary judgment/adjudication of Defendant Clare as to Plaintiff's complaint has been reviewed and the following tentative ruling posted. Neither this motion nor the tentative ruling appear to affect new Cross‐Defendant Jeff Nelson. However, if any party wishes to have the tentative ruling set aside a...

Excerpt: ...Court cannot conclude that collateral estoppel applies as a matter of law. As a result, the MSJ is denied. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/29/18 ‐ 6 ‐ Brief Background This case arises out of a landlord‐tenant relationship between two of the plaintiffs, Olga Chan and Feliciano Puerto, and the moving defendant, Sekk Investments. Chan and Puerto were tenants at a property in Concord. In the fal...

Excerpt: ...ion alleged that defendant Universe Ventures owed plaintiff CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 17 HEARING DATE: 03/29/18 ‐ 2 ‐ the amount of $18,006.65. Defendant cross‐complained for quiet title – that is, to extinguish the mechanic's lien. The case came to bench trial on December 18, 2017. Plaintiff's attorney was at the trial, but plaintiff itself failed to appear. Not surprisingly, the result was a complete v...

Excerpt: ...e effective, such a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. Yet, the release need not achieve perfection. See Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755. The determination of whether a release contains ambiguities is a matter of contractual construction. See Paralift, supra, 23 Cal.App.4th at 754‐ 755. An ambiguity exists when a party can identify an alternative,...

Excerpt: ...Edgardo Bejarano and plaintiff David Marks (collectively “Plaintiffs”). Defendants have filed a reply. For reasons stated below, the Motion is granted. Relevant Factual and Procedural Background This is a personal injury case involving a motor vehicle collision. Plaintiffs were both riding a single bicycle when they were struck by a vehicle owned by defendant Claudio Escoto and driven by defendant Adrianna Escoto. It is undisputed that Plaint...

Excerpt: ...he calendar and the parties shall appear (appearance by CourtCall is acceptable) to discuss a new trial date and any other issues related to the continuance of the trial date and/or appropriate for a Case Management Conference. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 03/28/18 ‐ 2 ‐ Saicon seeks leave to amend its complaint to substitute Aurionpro's CEO and former CFO as Does 1 and 2 and to make various re...

Excerpt: ...tted 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). The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence. (Evid. Code §500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) This action arises out of a car accident that occurred on May 11, 2015 on De...

Excerpt: ... Washington, 98002 in conformity with lease and guaranty agreements entered by the parties. The notice to this motion lists only Regency as the moving party, and does not include any of the individual defendants. Thus, the Court only rules as to Regency regarding the motion to quash. However, the Court's ruling regarding the motion to stay for forum non conveniens is binding on all parties. Defendants Timothy Lehner and Deborah Lehner's motion is...

Excerpt: ...g or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or . . . should not be restrained from exercising the right claimed by him or her.” See SB Liberty, LLC v. Isla Verde Ass'n, Inc. (2013) 217 Cal.App.4th 272, 280; Continental Baki...

Excerpt: ...ted.) He declined, sending a hostile email complaining that she had been delaying the matter, declining the request (in all caps, underlined, and bold type). Longmire filed this motion on February 8, 2018. In support of her motion she states that she does not understand the requests, they appear to be complicated, and she is seeking to obtain counsel. In opposition, Kessler states that Longmire already has counsel in another matter raising the sa...

Excerpt: ...ion under CCP § 473. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) If plaintiff files a Second Amended Complaint all demurrers and motions to strike not already heard will automatically be dropped from the calendar. Third Cause of Action, Violation of Business and Professions Code section 17200 Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice and unfa...

Excerpt: ...n. Petitioner contends that Respondent omitted the documents she lists and that all of the documents were considered directly or indirectly by the Department in making its decision. Respondent is also alleged to have redacted items from the record and edited the transcripted testimony. Petitioner's request to augment the record is denied for three reasons. First, Petitioner did not produce any of the documents she seeks to add to the record at th...

Excerpt: ...1985) 167 Cal. App. 3d 544, 549; CRC 3.1300 (d).) The central issue in this case is who had the responsibility for verifying that plaintiff was well enough to under surgery by requesting that there be a metabolic panel test, ensuring it was done before permitting the surgery to proceed, and ensuring that the appropriate persons were provided the results for review. Plaintiff alleges that before the July 18, 2017 deposition of his CONTRA COSTA SUP...

Excerpt: ... attorney; and Meyers's law firm, Westpro Realty, Inc. In brief, plaintiffs allege that defendants contrived to evict plaintiffs from the premises by serving a series of inflated or unfounded three‐day notices to quit or pay rent and then filing two unmeritorious unlawful detainer actions (the second of which is apparently still pending). Plaintiffs also allege that defendant Pineda unlawfully applied plaintiffs' $2,000 security deposit to plai...

Excerpt: ...ing date, they may simply notify the Court of that intention and provide a stipulation in due course. The parties have stipulated to continue all hearings to April 13, in order to accommodate a serious personal situation for defendants' counsel. However, the Court also wishes to receive supplemental briefing on selected issues, as discussed below, and the proposed April 13 date would likely not provide enough time for the parties to prepare such ...

Excerpt: ...ered to meet and confer in person or by telephone, as required by Code of Civil Procedure § 430.41 (a). Meeting and conferring by letter, as occurred here, is not sufficient. Plaintiffs' Opposition to this motion was filed late. It was required to be served and filed on or before March 12, 2018. It was personally delivered on March 13, 2018. It was not filed until March 14, 2018. In its discretion, the court considers the late‐filed Opposition...

Excerpt: ...Plaintiff Manh Singh Khalsa is a Sikh man. On September 25, 2016, while driving home, he encountered defendants Chase Little, Colton LeBlanc, Dustin Albarado and Doe 26 at a red light at an intersection in Richmond. Little threw a beer can at plaintiff, and the others yelled at him. The cars proceeded beyond the intersection. At another red light, Little, LeBlanc, and Albarado exited their vehicle and punched at plaintiff through his open window....

Excerpt: ...tration Code of Civil Procedure § 1281.2 creates a summary proceeding for resolving petitions to compel arbitration. “A petition to compel arbitration ‘is in essence a suit in equity to compel specific performance of a contract.'” Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 411 (internal citation omitted). In these summary proceedings the trial court sits as a trier of fact, weighing all the affidavits, declarat...

Excerpt: ...s, she finally tendered a request for publication in March 2017, which was however rejected for lack of any supporting paperwork such as a showing of diligence. In June 2017 her renewed request to serve by publication was rejected with a direction that she check criminal dockets for relevant cases (because this case arises out of an alleged DUI accident). Plaintiff apparently misread this rejection as an approval, and proceeded to publish during ...

Excerpt: ...ior briefing order. The statements to which Fry's makes “objections” are arguments and characterizations of the state of the record, not evidence. Fry's is thus trying to sneak in a reply brief, not called for in the Court's order, by relabeling it as “objections.” In any event, the objections, such as they are, go to the weight the Court should give to the material presented by the March 19 Response, rather than its admissibility. On tha...

Excerpt: ... the consolidated or coordinated cases should be in Contra Costa County rather than San Mateo County. The Court notes that the defendants in both cases are on record as preferring Contra Costa. Plaintiff, for its part, argues unconvincingly against transferring either case. But, if one of the cases is to be transferred, plaintiff gives no indication which County it thinks would be more appropriate. If the Court sticks with its tentative view that...

Excerpt: ...nd obvious. Dangerous Condition To prevail on her dangerous condition cause of action, Government Code § 835, the relevant jury instruction, and prevailing authority require Grilho to prove each of the following: 1. That BART owned or controlled the property; 2. That the property was in a dangerous condition at the time of the incident; 3. That the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; 4. ...

Excerpt: ...on 430.10, subdivision (f), and the complaint fails to plead the facts with particularity as required in causes of action involving fraud. Pleading Standard for Fraud Actions Fraud actions are subject to a stricter pleading standard and allegations of fraud must be pleaded with particularity. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) (disapproved on other grounds.) The legal conclusion of �...

Excerpt: ....12; (4) negligence; and (5) violation of Cal. Bus. & Prof. Code § 17200. On January 23, 2018, Plaintiff filed an Ex Parte Application for Temporary Restraining Order. The Court heard the Ex Parte Application, granted the TRO, and entered an Order to Show Cause to show why a preliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. The OSC was originally set for February 22, 2018. The parties stipulated ...

Excerpt: ...int which allege that defendants have been sued repeatedly for elder abuse caused by understaffing and lack of staff training, have received repeated Statements of Deficiencies from the California Department of Public Health (the “Department”) regarding similar concerns, and have been repeatedly cited by the Department regarding similar concerns. To obtain enhanced remedies in an elder abuse action, the plaintiff must prove a pattern of reckl...

Excerpt: ... per se. The Court understands this to mean that Plaintiff dismisses the fourth cause of action as that cause of action appears to based solely on a negligence per se argument. Without the fourth cause of action, the Antioch Defendant is only sued in cause of action three. Therefore, this Court must decide whether summary judgment is appropriate based solely on cause of action three. Defendant argues that the assumption of risk defense applies. A...

Excerpt: ... per se. The Court understands this to mean that Plaintiff dismisses the fourth cause of action as that cause of action appears to based solely on a negligence per se argument. Without the fourth cause of action, the Antioch Defendant is only sued in cause of action three. Therefore, this Court must decide whether summary judgment is appropriate based solely on cause of action three. Defendant argues that the assumption of risk defense applies. A...

Excerpt: ...atus quo until a judgment is entered. See Lenard v. Edmonds (1957) 151 Cal.App.2d 764, 769. In determining whether to issue a preliminary injunction, a court considers two factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a prel...

Excerpt: ... shall state that it is also in favor of co‐defendant BDFTW, whose declaration of non‐monetary status was not timely contested. (Civ. Code, § 2924l, subd. (c).) The basis for this ruling is as follows. RJNs. Defendant Wells Fargo's requests for judicial notice are granted. (See, Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752‐761.) 1st, 2nd, and 3rd C/As. Plaintiffs have failed to allege a “material” violation of the...

Excerpt: ...nt a government claim asserting facts that support a negligent hiring, training, and supervision cause of action; 2) uncertainty; and 3) failure to allege facts establishing a cause of action. (Notice at p. 3.) However, Defendants withdrew their government claim argument because defense counsel inadvertently failed to file the requests for judicial notice and exhibits that would have provided the factual basis for such an argument. (Reply at pp. ...

Excerpt: ...blish that he is “a person who generally understands the system's operation and possesses sufficient knowledge and skill to properly use the system and explain the resultant data …” (People v. Lugashi (1988) 205 Cal.App.3d 632, 640.) Mr. LaMunyon identifies himself as an “Associate” who has “access to certain of Chase's records,” but he does not explain the duties of an Associate within plaintiff's organization. Mr. LaMunyon doe...

Excerpt: ...fendant'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 collision in which the motorist at fault had only $100,000 in liability coverage. Because Plaintiff's policy had only $100,000 for uninsured/underinsured motorist coverage, Plaintiff received nothing on her underinsured coverage after the tortfeasor's carrie...

Excerpt: ...ts held title of the property, but the Plaintiffs were given exclusive possession of the property. (Comp. Ex. A; Pet. Ex. A.) Both of Alison's parents passed away by 2015 and Alison's brother, Defendant Russell Manaday, received the parents' interest in the real property. (Comp. ¶¶9; Pet. ¶¶2‐3.) Recently, the parties have been involved in a dispute regarding the property where it seems that both parties have made some claim to the property...

Excerpt: ...on that ground. On Sladek's demurrer to the First Amended Complaint, the court granted leave to amend these causes of action. The court found that Plaintiff's lack of diligence most likely prevented delayed discovery beyond 2013 for Plaintiff's claims for fraud, breach of fiduciary duty, breach of good faith and negligent misrepresentation. Plaintiff's personal realtor, Jim Calhoun, had informed Plaintiff “sometime” in 2013 that she was not o...

Excerpt: ...s monetary and terminating sanctions. That section provides that every pleading submitted to the court certifies “to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose…(2) The claims …are warranted by existing law or by a nonfrivolous argument [for a change in the law]...

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/05/18 ‐ 14 ‐ the trustee, which ultimately resulted in a judgment over $800,000, plus prejudgment interest of $225,000, and attorney fees of $440,000. The current application relates to the expenses of enforcing the judgment and defending the trustee's appeal. (The trial court judgment, issued by a private judge, was affirmed, with one exception.) The order is sought primarily pursu...

Excerpt: ...motion followed. In response to the motion, plaintiff has filed proposed responses, which his counsel states already have been served, and are attached to his supporting declaration as Exhibit B. Those responses are not verified, are dated October 27, 2017, and have no proof of service. They also contain objections, but in each case also provide an answer. All answers, however, either deny the statement or state that plaintiff lacks sufficient in...

Excerpt: ...9 HEARING DATE: 03/05/18 ‐ 3 ‐ “Partition is a remedy much favored by the law.” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) “If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (Code Civ. Proc., § 8...

Excerpt: ... outset, plaintiff argues that defendant failed to meet and confer as required by Code of Civil Procedure § 433.5(a)(2). This motion, however, was filed before that section came into effect. Moreover, defendant's counsel recounts that she offered to discuss the issues in the motion to strike after the fact. This is a medical malpractice action. Much of the verified complaint is taken up in alleging the history of defendant's treatment, not of pl...

Excerpt: ... recounts the procedural history of this case and Waraich, to the extent relevant to the disposition of this motion. This case was filed in May 2015. In September 2015 the Court (Judge Spanos) denied the petition to compel arbitration brought by Fry's. Fry's appealed that ruling, and it was affirmed by the First District Court of Appeal. The remittitur was issued on January 19, 2018. The instant motion followed on January 31, 2018. Waraich was a ...

Excerpt: ...ific, the building owner, and Schindler, the company contracted to maintain the elevator at the time of the accident (and now). Sierra Pacific and Schindler in turn cross‐complained against Otis, the company that performed a modernization of the elevator in 2005‐06 and then held the maintenance contract until late 2012. A threecornered jury trial resulted in a substantial recovery for Zapotoczny as against both Sierra Pacific and Schindler, e...

Excerpt: ... want to heed the Court's comments on the need for her to decide what her case really is (see line 1). 9. TIME: 9:00 CASE#: MSC17‐00140 CASE NAME: MARY STORELLI VS. ROSE SATORI HEARING ON MOTION FOR SUMMARY ADJUDICATION FILED BY ROSE SATORI * TENTATIVE RULING: * Defendant's motion for summary adjudication is denied. The motion would not dispose of an entire cause of action, but only one branch of a cause of action. It is therefore impermissible...

Excerpt: ...ntained provisions for plaintiff to collect attorney fees incurred in enforcing the notes. As plaintiff acknowledges, these are the kind of fee clauses rendered bilateral under § 1717. Plaintiff argues that that statute does not apply here (at least not fully), because some of its pleaded causes of action were on purportedly non‐contractual theories such as open book, misrepresentation, and estoppel. At base, however, all of plaintiff's pleade...