Excerpt: ...on on both the elements of breach of duty and causation. BREACH OF DUTY The School District acknowledges that California law imposes upon school districts a duty to carefully supervise students while they are on school premises during the school day, and that school districts may be held liable for injuries caused by the failure to exercise such care. (Memorandum of Points and Authorities, page 5, lines 21‐23) The School District contends it di...

Excerpt: ...ARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 12/20/18 ‐ 2 ‐ Code of Civil Procedure §877.6. (Going forward, Ghoneim and Chiba will be referred to as “Ghoneim”.) The party claiming that a settlement is not in good faith under Code of Civil Procedure §877.6 has the burden of proof on that issue. (Tech‐Bilt, Inc. v. Woodward‐Cycle & Associates (1985) 38 Cal.3d 488, 499 (“Tech‐Bilt”); City of Grand Terrace v. Superior Court (1...

Excerpt: ...a separate action for fraudulent transfer. The Court makes no finding on the issue of whether plaintiff's motion for leave to amend was properly served. The Court exercises its inherent judicial power to reconsider its previous order. (See, Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1249.) Upon further review of plaintiff's motion for leave to amend, the Court now finds that the motion should not have been granted...

Excerpt: ...t (“EBRPD”)'s demurrers without leave to amend. The motion is made pursuant to Code of Civil Procedure section 663. PG&E and EBRPD filed a joint opposition. For the following reasons, Petitioners' motion is denied. Analysis Motion to Vacate Judgment As a threshold issue, PG&E argues that a § 663 motion is unavailable here, relying primarily on Payne v. Rader (2008) 167 Cal.App.4th 1569. Payne held that “a section 663 motion does not lie to...

Excerpt: ...07/18 ‐ 7 ‐ Welcome Market's Motion. Welcome Market shows, and plaintiff acknowledges, that there is an agreement in place to arbitrate these disputes. Plaintiff, however, contends that the Court should refuse to enforce the agreement as unconscionable. To invalidate an arbitration agreement as unconscionable, a party must show that it is unconscionable both substantively and procedurally (though the two elements need not be present in the sa...

Excerpt: ...ss Buybacks, LLC from June 13, 2013 to March 1, 2016. (First Amended Complaint [FAC], ¶ 13.) Sprint alleged that Snyder d/b/a 31 Echo conspired with Wireless Buybacks and Brendan Skelly to unlawfully resell Sprint smart phones from 2011 through 2016, both before and during Snyder's employment with Wireless Buybacks. (See FAC, ¶¶ 16‐20.) When Snyder passed away in October of 2016, Sprint substituted Moore in as trustee of various Snyder trust...

Excerpt: ...eja and Vegas have dismissed their claims against Freshko. No dismissal was filed, but the Court takes this statement as an agreement with Freshko's argument, and therefore the Court sustains the demurrer without leave to amend as to Ceja and Vegas. Freshko argues that Olivares's claim against it is untimely because it was filed more than two years after the accident occurred. Olivares's cross‐ complaint alleges that the accident occurred on Ja...

Excerpt: ...l be deemed denied and she will remain in default. (No default judgment has been entered at present.) The arguments on this motion are surprisingly technical. The underlying facts are not really debated. It is fairly clear that the purported service on Fei Lan, as documented by the Proof of Service of Summons filed by plaintiff, was defective and ineffective. (That is not necessarily a criticism of plaintiff, who may well have had no better infor...

Excerpt: .../06/18 ‐ 5 ‐ and/or make such orders concerning the proceedings therein as may tend to avoid unnecessary costs and delay. See CCP Section 1048(a). The court does so here. COMMON QUESTIONS OF LAW OR FACT 1. Tcheong, LLC v. Peter Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant, Selina Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant (C17‐00563): This case was filed on April 6, 2017. Plaintiff...

Excerpt: ...only remaining claim of the FAC is for negligence. Defendant moves for summary judgment on two grounds: (1) that the statute of limitations bars Plaintiff's claims; and on the separate and independent ground that (2) Plaintiff cannot prove his alleged exposure to emission from the refinery caused his alleged injuries. For the following reasons, the MSJ is denied. Standard Code of Civil Procedure (“CCP”) §§ 437c(o)(1) and 437c(p)(2) provide ...

Excerpt: ...ed imposition of sanctions. In the previous motion, moving parties sought $24,173.50. In this motion, moving parties actually seek CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 12/06/18 ‐ 8 ‐ more sanctions, $27,653.66, apparently due to the cost of preparing this motion in addition to the last motion. As to the history of the matter, Judge Goode held hearings about discovery on January 11, February 15, and Apr...

Excerpt: ...jurisdictional prerequisite to a claim‐relief petition. When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779, internal citations omitted.) Accrual for this purpose is the same as accrual for purpose of the statute of limitati...

Excerpt: ...ranted for the reasons stated below. Personal Jurisdiction California courts may exercise jurisdiction over nonresidents “on any basis not inconsistent with the Constitution of this state or of the United States.” (CCP § 410.10.) The exercise of personal jurisdiction over a nonresident defendant comports with the Constitutions of California and the United States “ ‘if the defendant has such minimum contacts with the state that the assert...

Excerpt: ...sons, including mediation. Sticking to the most recent trial settings, trial was set for June 25, 2018, i.e., within the five‐year period. On April 26, 2018, the Court, on its own motion notified the parties that the trial was continued to July 30, 2018. This was based on unavailability of the Court, although the order did not so state. On June 14, 2018, the Court again continue the trial date, this time to August 6, 2018, again based on unavai...

Excerpt: ... MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 12/03/18 ‐ 2 ‐ these claims. If the two year statute of limitations applies then the claims are barred, unless equitable estoppel or tolling applies. If the four year statute of limitations applies then the claims are timely and may proceed. Statute of Limitations: 2 vs. 4 years The key issue here is whether the two year statute of limitations applies under CCP §339(1) or the four year state...

Excerpt: ... follows. A. Procedural History. Plaintiffs filed their complaint on June 28, 2018. Defendant filed its motion to compel arbitration on August 3. At the initial hearing on October 1, the Court requested additional briefing, and set an evidentiary hearing for the presentation of live oral testimony. The parties filed supplemental briefs on October 29, and responses to the supplemental briefs on November 5. On November 15, the Court heard oral test...

Excerpt: ... First Amended Complaint, defendants' current demurrer is addressed to only the Sixth and Seventh Causes of Action of the SAC. Sixth Cause of Action, Intentional Infliction of Emotional Distress The court overruled defendants' previous demurrer to this cause of action. The current demurrer is based on the same grounds. Accordingly, the demurrer to this cause of action is overruled. Further, the court's order on the previous demurrer said defendan...

Excerpt: ...Rios was a resident and patient of Defendant Lone Tree Convalescent (“Lone Tree”), a skilled nursing facility in Antioch. Plaintiff resided at the facility from December 27, 2017 through December 31, 2017. Plaintiff Rios died at the age of 91 on January 22, 2018. Plaintiffs allege Rios' death resulted from injuries received at the Lone Tree. At the time of her admission, Rios was known to be at risk for falls due to her weakness and other con...

Excerpt: ...f leave to amend. Its order further stated that any amended complaint “shall be filed and served on or before December 29, 2017.” (See Ex. A to Wagster Decl.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/19/18 ‐ 3 ‐ Plaintiff filed his First Amended Complaint on December 29, 2017, but failed to serve it on the two moving defendants by December 29, 2017. Plaintiff did not serve it on these defendants unt...

Excerpt: ...ty. The underlying claim arises from a prior case, in which James and Christine Dean sued Abacus Financial Group. At one point during that matter, Ms. Hinchman allegedly signed a declaration drafted by the Dean's counsel, Zelis. Amado claims that this violated various duties toward him and Abacus Financial. He issued subpoenas to Christine Dean and Zelis seeking information concerning the declaration, and the draft declaration itself. The matter ...

Excerpt: ... relevant time, Romdhane 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 proo...

Excerpt: ...arties whether or not the amended complaint changes any allegations regarding all parties because an amended complaint generally supersedes the original complaint for all purposes. (See 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 6:688, p. 6‐193; State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) The court does not work with one complaint for the parties that choose to answer rather...

Excerpt: ...s of $100,000 to $150,000. PLSCS characterizes the loans as “usurious, unconscionable, unfair, predatory, and fraudulent.” The only meat attempted to be placed on the bones of that string of pejorative adjectives, however, is the conclusory allegation that the loans charged interest rates in excess of what is lawfully allowed. 1st C/A‐Violation of California Civil Code § 1916.1 2nd C/A—Violation of Civil Code § 1916.2 At the outset, cro...

Excerpt: ...y the Cigna defendants with rigor, but it appears uncontested for purposes of this action that at least some Cigna entity is a health insurer, governed by the Knox‐Keene Act. ASH is Cigna's agent for claims administration. Diablo alleges that it has provided treatment for Cigna's insured patients, but that Cigna and ASH have underpaid Diablo. The FAC contains a number of listed causes of action, but for analytical purposes they may be grouped i...

Excerpt: ...ase real property. Plaintiff alleges that she has performed her obligations while Defendants have not. Plaintiff filed her complaint on June 23, 2017. On July 25, 2017, Defendant Sobayo, in pro per, filed answers on behalf of himself and his corporation, Kingsway. Plaintiff filed a motion to strike Defendants' separate answers and Defendant Sobayo's cross‐complaint. This Court denied the motion as it related to Defendant Sobayo individually, bu...

Excerpt: ... served as Levandowski's transactional attorney for roughly a decade and took part in many of the transactions that underlie Google's claims against Levandowski. Gardner filed a motion to quash the subpoena arguing that depositions of opposing counsel are presumptively invalid. The arbitration panel ultimately denied the motion. Standard of Review The Court first addresses the appropriate standard of review. Google contends that under Bak v. MCL ...

Excerpt: ...n Rodriguez was asked to address the following issue of statutory construction: whether Section 473(b)'s requirement that the “application for relief” be “in proper form” means verified discovery responses must be served with a motion for mandatory relief from a terminating sanction when that sanction was based on failure to respond to discovery. The Court answered, yes. An application for relief from a terminating discovery sanction is �...

Excerpt: ...on Service (“Northern”). The motion is denied because a genuine issue of material fact exists regarding the amount Lyon owes on the policy. In relevant part, the policy agreement between SCIF and Lyon provides as follows: “E. The premium shown on the Declarations, schedules and endorsement is an estimate. The final premium will be determined after this policy ends by using the actual premium basis and the proper classifications, rates and r...

Excerpt: ...intiff is suing Defendants for (1) tortious breach of the implied warranty of habitability, (2) contractual breach of the implied warranty of habitability, (3) breach of contract, Civil Code §3300, et seq., (4) breach of quiet enjoyment, Civil Code §1927, (5) private nuisance, Civil Code §3501, et seq., (6) premises liability, Civil Code §1714, (7) retaliation, Civil Code §1942.5, (8) negligence, (9) constructive eviction, (10) retaliatory e...

Excerpt: ...T: 09 HEARING DATE: 03/14/18 ‐ 9 ‐ Defendants Gold Star Mortgage Financial Group and Ernesto Gomez's demurrer to the second cause of action is sustained with leave to amend. “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional ...

Excerpt: ...y located at 2116, 2218, 2120, and 2122 Barrett Ave, Richmond, CA 94801 (the “Subject Property”). Plaintiff pleads thirteen causes of action relating to the circumstances of the money used to purchase the property as well as torts between the parties. Though styled as a “Motion for Restraining Orders and Preliminary Injunction,” the briefing appears to solely request a preliminary injunction. Furthermore, the Court notes this Department i...

Excerpt: ...tiff from pursuing the new legal theory set forth in the proposed Second Amended Complaint, but shall preclude plaintiff from pursuing the implied‐inlaw public easement theory. The Court rules as follows: Defendants Frederick Hill, Pamela Hill, Andrew Bassak and Rebecca Bassak's motion for summary adjudication is granted. A defendant meets its burden on a motion for summary adjudication by showing either that plaintiff's claims have no merit or...

Excerpt: ...at the pending motion for summary judgment may be treated as a motion for summary adjudication of the existing causes of action. Defendants have been put to the considerable expense of bringing the motion, and fairness demands that the motion be heard on its merits despite plaintiff's last‐ minute decision to try to amend his complaint. If, as the Court has tentatively decided, the motion for summary adjudication is granted, plaintiff shall omi...

Excerpt: ...tentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship, and (5) resulting damage. See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. Subtronic previously demurred to this cause of action on two grounds: (1) elem...

Excerpt: ... as 10359 San Pablo Avenue in El Cerrito. The lease was renewed in 2009. In 2014, the Wongs attempted to evict Ms. Tan for failure to pay the rent in September and October. They filed an action, Wong v. Tan (Contra Costa Superior Court Case No. RS14‐ 1020.) Defendant Tan successfully defended that action. On March 18, 2016, the Wongs filed another unlawful detainer, Contra Costa Superior Court Case No. RS16‐0235. (See Defendant's RJN, Ex. B.)...

Excerpt: ...Court to undertake a two‐step analysis. First, the Court must determine if the conduct Dr. Braunstein allegedly engaged in is activity protected by section 425.16. If the Court answers that question in the negative, the analysis stops and the motion must be denied. If the Court answers that question affirmatively, the Court must then analyze Karkanen's probability of prevailing on the merits. Navellier v. Sletten (2002) 29 Cal.4th 82, 88‐89; ...

Excerpt: ...es, 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 finds that the departme...

Excerpt: ...al requested is $9,550 for 19.1 hours by Michael S. Burk (at $500 per hour), $29,980 for 82.8 hours of work by Emily Fowler (at $350 per hour), and $3,553.31 in CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/12/18 ‐ 8 ‐ costs. Plaintiff argues that the request is excessive because the hourly rates are too high and the hours include time spent on matters other than the Anti‐SLAPP motion. Plaintiff argues tha...

Excerpt: ...gn the 1999 deed, or that she did not. Defendant's effort to knock out plaintiff's duress theory is being rejected today for procedural reasons (line 9). But the briefing on that motion is nevertheless revealing: Facing a limitations attack on her claim of having been coerced into signing a deed 19 years ago, plaintiff seeks to rescue that claim from limitations by giving it away substantively – attesting that she actually didn't sign the deed ...

Excerpt: ... by matters that can be judicially noticed. [Citations.] [Citation.]' [Citation.]” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/01/18 ‐ 2 ‐ This action arises out of a motor vehicle accident that occurred on or about May 25, 2014. Plaintiff Andrew Mark Robinson was injured when his ...

Excerpt: ...here there is more than one appellate court decision, and such appellate decisions are in conflict,” the inferior tribunal “can and must make a choice between the conflicting decisions.”). WCA2 contends the Court ought to follow the Fifth District Court of Appeal's decision in Esparza v. KS Indus., L.P. (2017) 13 Cal.App.5th 1228 (“Esparza”). Opposing the Motion, plaintiff Landen Ely (“Ely”) contends the Court ought to follow the Fo...

Excerpt: ...d Parties”). The demurrer is opposed by cross‐complainant Cherokee Simeon Venture I, LLC (“CSV”). The requests for judicial notice are granted. The demurrer is overruled. The Cherokee Fund Parties shall file an answer on or before March 16, 2018. The Court finds that the two causes of action stated against the Cherokee Fund Parties are not barred by res judicata. (See, Wells Fargo Bank, N.A. v. Weinberg (2014) 227 Cal.App.4th 1, 7.) Also,...

Excerpt: ... alleges that defendant “negligently . . . continued to apply vacuum extraction (VE) . . . . after three failed attempts; continued to apply VE for more than 10 minutes; used forceps after multiple failed VE attempts; failed to follow protocol regarding the use of VE and use of forceps; failed to perform CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/01/18 ‐ 5 ‐ an episiotomy; failed to adequately monitor t...

Excerpt: ...ce set for April 17, 2018 is off calendar. It appears that none of the parties are arguing that the fee motions should be stayed pending the appeal by 7 Stars Holistic Foundation, Inc. and Zeaad Handoush. If any party plans to argue that one or more of the pending attorneys' fees motions should be stayed pending appeal that party shall file and serve a motion to stay on or before March 16, 2018. The hearing on any such motion shall be on April 12...

Excerpt: ... interest supporting the request and the substantial probability of prejudice without the sealing, and 2. A substantial probability that the interest will be prejudiced without the sealing. Moreover, Defendant has failed to show that less restrictive means would be ineffective. ...

Excerpt: ...and fair dealing, and (7) promissory estoppel against Defendants. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 02/28/18 ‐ 6 ‐ The Demurrer is sustained, with leave to amend. Code of Civil Procedure (“CCP”) § 411.35 requires a party bringing a complaint arising out of professional negligence against an engineer to file and serve a certificate of merit on or before the date the complaint or cross‐complain...

Excerpt: ...alleges that Defendant has a Maintenance, Operations and Transportation Department, which is overseen by an assistant superintendent, and that this department is located in San Ramon while Defendant's headquarters are in located in Danville. (FAC ¶8.) In addition, the department has four divisions, including one for transportation, and each division is headed by a director. (FAC ¶8.) The transportation division has 70 school buses, 15 vans, and...

Excerpt: ...extent that the motion may be treated as a motion to reconsider under Code of Civil Procedure section 1008, it is untimely. 2. TIME: 9:00 CASE#: MSC16‐01293 CASE NAME: SCHORNO VS. GANN‐DESIMONE HEARING ON MOTION FOR REQUESTING CHANGE OF CCC JUDGE, VENUE OR DISMISSAL / FILED BY NANCY S. GANN‐DESIMONE * TENTATIVE RULING: * Defendant's motion Requesting Change of CCC Judge, or Change of Venue, or Dismissal of Case” is denied. To the extent t...

Excerpt: ...nal service was required. (Id., subd. (d).) Plaintiff attempted to serve defendant with a statement of damages on October 2, 2017. (Dudensing Dec., Exh. “F”.) However, this attempted service was made at a Green Street address in San Francisco, and defendant alleges that he has at all pertinent times resided at a Taraval Street address. (Byrd Dec., ¶ 1.) Further, plaintiff took defendant's default only three days later, on October 5, 2017, an...

Excerpt: ...m, for documents relating to two other identified potential buyers of the property, and the reasons why those sales did not go through. Plaintiffs reason that there may be relevant information in the documents concerning knowledge or disclosure of the alleged problems with the property. Plaintiffs acknowledge that they did not serve any Notice to Consumer on the putative buyers under Code of Civil Procedure § 1985.3. They state conclusorily that...

Excerpt: ...e had not carried its burden on the element of causation sufficient to warrant a grant of summary judgment. The Court's prior tentative ruling focused on the fact that both the pedestrian and the driver had stated that there were no obstructions to their views. At argument, however, plaintiff persuasively pointed out that the evidence on which the Court relied concerned visibility to the crosswalk itself, but did not address the issue of whether ...

Excerpt: ...c Redacted Version”. A great deal of it – whole pages at a time – is simply blacked out. Moreover, from what can be read in the moving papers, it appears that Jacobs bases his motion principally on the declaration of his expert, Dr. Bickler. But the Bickler declaration has not been filed at all – not even in a “public redacted version”. It just plain isn't there. It's not in the court file, and there is no indication in the computer t...

Excerpt: ... the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone. Corkland v. Boscoe (1984) 156 Cal.App.3d 989. A court's power to make factual determinations under Code of Civil Procedure § 664.6 (entry of judgment pursuant...

Excerpt: ...e, or neglect” caused him to fail to respond to the Order to Show Cause that resulted in the dismissal of the case. Indeed, the declaration neither uses the words “mistake,” “inadvertence,” “surprise” or “neglect;” nor does it express any thoughts that could be construed as any of those things. ...

Excerpt: ...nguage. Further, the opposing parties have not demonstrated prejudice. Travelers filed and served a notice of lien almost 11 months ago, on March 30, 2017. The need to litigate or compromise this lien was obvious long before plaintiff and defendants entered into their settlement agreement. Also, the opposing parties do not explain why litigating the lien in a separate action would somehow be more efficient than litigating the lien in this action....

Excerpt: ... District, after counsels met and conferred pursuant to CCP § 430.41, only the first cause of action for Dangerous Condition of Public Property is subject to the demurrer. Standard of Review The role of demurrer is to test the legal 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 libera...

Excerpt: ...ovision in the Isadore contract did not apply to Constanza. In order to be entitled to an award of fees, the party claiming a right to such an award must “establish that the opposing party actually would have been entitled to receive them if he or she had been the prevailing party.” Leach v. Home Savings & Loan (1986) 185 Cal.App.3d 1295, 1307. See also Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC. (2008) 162 Cal. App. 4th 858. ...

Excerpt: ...Bulleri”) and defendant Dominator, Inc. (“Dominator”) entered into a contract whereby Dominator was to restore the Polara. Needless to say, a dispute arose, the details of which it is not necessary to recount here. Vencill Mediation and Decision Following protracted litigation, the parties mediated this matter before William C. Vencill. The parties had stipulated that Mr. Vencill's determination would be a final resolution of this dispute; ...

Excerpt: .... Next came Phase 2 ‐‐ collection of the judgment ‐‐ with Plaintiffs propounding Post Judgment Interrogatories, separate Sets #1 to each of the three judgment debtors, and Request for Production of Documents, Sets #1 on 2/25/16, which were never responded to. Thereafter, Plaintiffs obtained Orders of Examination on 8/5/16 for appearance of Sharon Hinchman and Henry Amado on 9/8/16, but since there had been no effective service, the hearin...

Excerpt: ...tate a cause of action, and has again failed to do so. The demurrer as to the only remaining cause of action, negligence, is sustained without leave to amend. ...

Excerpt: ...udgment on the pleadings and motion for summary judgment. B. Declaratory Relief. The controversy presented to the Court for decision concerns Article VII of the Covenants, Conditions and Restrictions (“CC&Rs”) governing plaintiff's condominium. (Defendant's Supplemental Exhibit 16.) Specifically, the dispute concerns assessments levied by defendant for common area expenses. 1. Background. Plaintiff's CC&Rs define the “Project” as being 52...

Excerpt: ...ther plaintiff is suing as the representative of her deceased mother's estate, or on her own behalf, or both. The County argues that the Complaint is demurrable because plaintiff was required to comply with the Government Claims Act by filing an administrative claim before suing, and has not done so. As the County notes, however, the Complaint allege that plaintiff has complied with a claims procedure. If that is not true, demurrer is not the way...

Excerpt: ...y filed an answer to the complaint. Defendants' motion is based on the argument that the complaint does not state any cause of action. Plaintiff Dean Kim has sued Defendants James Totah and Giovanni Cruz for negligence and fraud. “‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resu...

Excerpt: ...as an arbitration provision in the contracts between itself and its members, including plaintiff. This Court (Judge Spanos) denied the petition to compel arbitration, holding that the purported arbitration provision was not part of the parties' contractual relationship. The Court of Appeal affirmed in an unpublished opinion. Having thus defeated defendant's attempt to force this dispute into arbitration, plaintiff now seeks an award of the attorn...

Excerpt: ...arise directly under the dual‐tracking provisions of the Homeowners' Bill of Rights (HBOR). Some or all of the other causes of action may at least be affected by those provisions, in that they appear to appeal to the asserted illegality of the alleged dual tracking here as part of the bases for these other claims. For that reason, the Court draws the attention of the parties to a consideration apparently overlooked by both sides: the dual‐tra...

Excerpt: ...) which is at a right angle to Walnut Boulevard in Walnut Creek. The Roadway is 30 feet wide and terminates in a 50‐foot‐wide cul‐de‐sac. The Coney property is south of the Dossa property and is closer to the cul‐de‐sac. The Dossa property is to the north of the Coney property and is closer to Walnut Boulevard. The core, but not the entirety, of the parties' dispute is whether the Coneys are permitted to park vehicles along the edge o...

Excerpt: ...tion to deny the motion. The Court sustained defendant Wells Fargo's demurrer to the original complaint in June 2017, giving leave to file a first amended complaint within 30 days. That deadline for amendment was extended by agreement or court order, so as to give the parties time to discuss settlement. The last extension of time, however, ran out in November 2017. There is no evident excuse for plaintiffs' failure to file their amended complaint...

Excerpt: ...2) violation of Civil Code § 2923.6: dual tracking; (3) wrongful foreclosure; (4) promissory estoppel; (5) promissory fraud; (6) intentional misrepresentation; (7) negligent misrepresentation; (8) negligence & negligence per se; (9) violations of Civil Code § 1788 et seq.: The Rosenthal Fair Debt Collection Practices Act; and (10) violations of Business & Professions Code § 17200, et seq.: Fraudulent, Unlawful, and Unfair Business Practices. D...

Excerpt: ...ted” between the parties. (Cmplt, paragraph 18) Defendant Orinda Academy contends that Plaintiff's employment was “at will,” since the employee handbook was changed in August 2015 and all employees so advised of the change to “at will” employment by the new employee handbook. (Cmplt, paragraph 10) An employee CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/15/18 ‐ 11 ‐ claiming employment is not “a...

Excerpt: ... alternatively adjudication on April 28, 2017. As part of their motion, Defendants submitted two surveys that showed where the relevant easements were located. (See Humann Decl. and Chapman Decl., filed April 28, 2017.) Plaintiff filed his opposition to this motion on July 13, 2017. Plaintiff did not include a survey of the relevant easements, and instead explained that, “I have not yet obtained a survey as I was waiting to obtain the basic inf...

Excerpt: ...o a party's motion). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/15/18 ‐ 2 ‐ Here, moving party fails to identify any new fact, law, or circumstance that would permit the Court to reconsider its prior orders. As a result, the Court is without jurisdiction to hear the Motion, and it is therefore denied. ...

Excerpt: ...ts respective issues. There is no reason why discovery cannot proceed in this civil case, as the two actions are not dependent on each other. (See Scott v. Industrial Accident Commission (1956) 46 Cal.2d 76, 83.) Defendant's cited authority (Contractors State License Board v. Superior Court (1960) 187 Cal.App.2d 557, 562‐563) is inapplicable since it was to prevent the administrative board from taking further action in a disciplinary proceeding...

Excerpt: ...ntion improperly includes a claim for punitive damages. Defendants argue that leaving the scene of an accident is not malicious under Civil Code Section 3294. However, this argument must be brought by way of a motion. The Rules of Civil Procedure do not allow an attack on a part of a cause of action by demurrer or by an opposition to a motion for leave to file a pleading, which is conceded. See Daniels v. Select Portfolio Servicing, Inc. (2016) 2...

Excerpt: ... March 24, 2015, plaintiff Veronica Wang was a pedestrian crossing the bottom of the Highway 24 cloverleaf offramp in a marked crosswalk. (The moving papers identify it as the exit from eastbound 24, but cursory examination shows it to be the exit from from westbound 24. The detail is not material.) She was struck and injured by defendant Yvonne Pope‐Lane, who was a driver exiting Highway 24 onto northbound Pleasant Hill Road. As relevant here,...

Excerpt: ...ued discovery subpoenas that intrude into the protected private sphere of Plaintiff and her children. Specifically, the Motion seeks to quash subpoenas issued by Defendants on the Employment Development Department (“EDD”), the financial aid departments of UC Berkeley and CSU San Diego, Covered California, and California's Department of Health Care Services. For reasons explained below, the Motion is granted. Legal Standard Code of Civil Proce...

Excerpt: ...Lincoln Prop. Co., N.C., Inc. v. Travelers Indem. Co. (2006) 137 Cal.App.4th 905, 916. Further, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” Kittredge Sports Co. v. Super. Ct. (1989) 213 Cal.App.3d 1045, 1048. The opposition argues that the proposed first amended cross‐complaint (“1ACC”) is a sham pleading. It generally avers that this is so because the 1AC...

Excerpt: ...fendants' request for judicial notice is granted in part. The Court takes judicial notice of Exhibits “B” through “F”, documents on file in this action. The Court does not take judicial notice of Exhibit “A”, because the subject building permit is not dispositive of any cause of action. 1st and 2nd C/As (Fraud). The motion is granted without leave to amend as to the First and Second Causes of Action for fraud and deceit. Plaintiffs ha...

Excerpt: ...y relief and the second cause of action to set aside the default judgment due to extrinsic fraud is granted. This court has previously examined the issue of the propriety of substitute service on Plaintiff in the early stages of this case, on demurrer. The court was restrained by the demurrer rules, which compelled this court to accept all allegations in the complaint as true. See Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The complaint alleged t...

Excerpt: ...riate. (See, SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.) The Court finds defendants' detailed opposition declaration substantially more persuasive than plaintiffs' conclusory opening declaration. Further, plaintiffs' own opening declaration demonstrates that (1) plaintiffs came into default on their loan, and (2) plaintiffs' application for a loan modification was considered and denied. (Sioson Dec., ¶ 5 and ¶¶ ...

Excerpt: ...ge that “Cross‐Defendants['] breaches of fiduciary duty were done with malice, fraud or oppression toward the TRUST entitling the TRUST to an award of punitive damages according to proof at trial.” The motion to strike is denied. Punitive damages may only be awarded “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294(a).) As elaborated on below, the...

Excerpt: ..., responses were due on 12/22/17 and less than a week later, the Motion was filed. Responses with objection were served on 1/3/18, and without objection on 1/18/18, followed by verifications on 1/25/18. Discovery disputes where further responses are requested are required by Local Rule 3.300 to be submitted to a Discovery Facilitator. Rather than require Defendants to comply with that Local Rule, file another motion, and participate in the Discov...

Excerpt: ...n affirmative defense in the Answer to the Complaint. The issue of whether there is an entitlement to precondemnation damages is an issue to be determined by the court before the jury determines the issue of compensation. Therefore, the appropriate procedure is to bifurcate the trial. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 897‐898; see also City of Perris v. Stamper (2016) 1 Cal.5th 576, 594.) If the parties accept this ruling, t...

Excerpt: ... 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 stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38...

Excerpt: ...motion to dissolve the preliminary injunction, once defendants have made a general appearance. Defendants were served with process, and with the moving papers, through corporate agents for service on January 9 and 10, 2018. This gave defendants only four days more than the bare minimum of 16 court days' notice. As a practical matter, defendants have likely not had adequate time to retain counsel and prepare timely opposition papers. Second, the C...

Excerpt: ... sanctions, it was improper and frivolous. (Defendant had previously sought reconsideration of one of the sanction awards, which was denied.) Moreover, although the ostensible basis of the motion to release lien was that the property was not owned by Defendant, but by Star Wars Revocable Living Trust, no evidence was submitted showing that the trust actually owns the property. Finally, if a sale of the property was recorded before the abstract of...

Excerpt: ...dismissal of co‐defendant Special Default Services, Inc., which has filed a declaration of non‐monetary status. A. Procedural Problems. 1. The Moving Papers. There are several procedural problems with the moving papers filed on November 13, 2017. These include the following. First, defendant Trinity refers to evidence that has not been supplied to the Court. The separate statement refers to a “Declaration of Johnelle Gomez,” and various e...

Excerpt: ...; (3) negligent failure to fulfill promise; (4) fraud; (5) negligent CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 02/05/18 ‐ 10 ‐ misrepresentation in loan modification; (6) violation of Bus. & Prof. Code § 17200 et seq.; (7) quiet title; (8) declaratory relief; and (9) injunctive relief. Defendant demurs pursuant to Code Civ. Proc. § 430.10(e) through (g) on several grounds. The Court notes that many of the...

Excerpt: ...ty was valued at $2.8 million, that the property was to be an investment property, sold quickly, that Longmire would not reside there, and that Longmire's income was $21,000 per month or more. (Complaint ¶ 10.) These misrepresentations allegedly induced Plaintiff to loan Longmire and Roesner $1.85 million. (¶ 13.) The loan went into default, and Plaintiff acquired the property at a nonjudicial foreclosure sale. (¶ 15.) Plaintiff seeks damages ...

Excerpt: ...negligence is denied. The motion for summary adjudication as to the second cause of action for premises liability is granted. I. Background Plaintiff Michael Thompson, represented in this case by his guardian ad litem Samarra Taylor, fell from a GameTime Play System playground structure at the Gehringer Elementary School. At the time, he was almost seven years old. The following facts are taken from those undisputed among the parties. The play ar...

Excerpt: ... see also Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 02/02/18 ‐ 6 ‐ Here, Plaintiff has alleged two causes of action – Cancellation of Deed, and Quiet Title. Plaintiff transferred the subject property in 2014 to his then‐wife, Defendant Xueyan Cui, as her sole property. Cui sold the property in March of 2016 to the Irwin and Betty K...

Excerpt: ... (“IIED”), 8) negligent infliction of emotional distress (“NIED”), and 9) injunctive relief. Defendant Anna Shane asserts that each of Plaintiffs' causes of action are not actionable because they relate to communications subject to the anti‐SLAPP statute. The motion is granted as to the fifth cause of action (wrongful use of administrative proceedings), and as to all allegations concerning Defendant's alleged communications with the Dis...

Excerpt: ... disability discrimination after he slipped and fell on an outdoor sports court during recess on December 17, 2014. Following the injury, plaintiff requested and was denied various accommodations. (See Complaint, ¶ 26.) Defendant now moves to strike paragraph 53 of the complaint and paragraph 5 of the Prayer, which seek punitive damages. Punitive damages are recoverable in actions for discrimination. (See Commodore Home Systems, Inc. v. Superior...

Excerpt: ...g Handermann to serve the Asbuns by publication under Code of Civil Procedure § 415.50 in the Florida Times‐Union. The Times‐Union published notices related to this case on October 3, 10, 17, and 24, 2016. On December 5, 2016, default against the Asbuns was entered. On July 17, 2017, the Court entered a default judgment against the Asbuns. This motion followed on November 6, 2017. The basis for the motion is Code of Civil Procedure § 473.5(...

Excerpt: ...policies and practices. (Complaint, ¶¶ 1, 2.) Prior complaints led to settlements between the District and other parties in 2009 and 2010. (¶ 3.) Plaintiff continued to receive complaints even after those settlements, so it presented the District with a request for a structured settlement in 2013. (¶ 4.) After more than a year of negotiations, the parties entered into an Interim Settlement Agreement in March 2015. Under the terms of the Agree...

Excerpt: ...d Omissions policy to insure itself for any liability arising out of the performance of processing and facilitating payroll taxes for its clients. (¶ 10.) Defendant Scottsdale issued Affordable a “Business and Management Indemnity Policy.” (¶ 12.) It issued a renewal policy on identical terms a year later, but the following year issued another “renewal” with a broader Endorsement 8 set of exclusions. (¶ 12‐15.) On May 10, 2013, the A...

Excerpt: ...ice, and on any terms as may be proper, allow a party to amend any pleading… ” (CCP § 473(a)(1).) While judicial policy favors resolution of all disputed matters between the parties, the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/01/18 ‐ 2 ‐ court finds the public nuisance cause of action fails to state a cause of action as it is timebarred. “Ordinarily, the judge will not consider the validity of ...

Excerpt: ... prevailed based on her statute of limitations defense. A judgment, representing Redig's fees and costs, was entered on that cause of action. However, it is important to remember here the procedural history of the case. The Kizors had sued Redig on both fraud and breach of contract theories. The breach of contract theory had been removed from the case on demurrer, well before the fraud cause of action was tried. Following the judgment on the frau...

Excerpt: ...e claims alleged against Defendants are real property claims. The Court's ruling on the real property claim issue is included in this ruling for completeness. The Court continued the hearing to allow supplemental briefing on whether or not Plaintiffs have met their burden by showing its claims have probable validity. (See Code of Civil Procedure § 405.30, 405.32.) Code of Civil Procedure § 405.30 allows a property owner to file a motion to remo...

Excerpt: ...y an order of the Court. Three, plaintiff has failed to file a proof of service showing that defendants were given notice of this hearing. Four, even if the foregoing were not true, the case is more than five years old and was never reduced to judgment. The Court would dismiss it under the five year statute. ...

Excerpt: ...ling order in the near future. The parties, as well as support staff involved in e‐filing, are urged to review that order carefully and abide by its terms. The Court considers that to rule on the petition to compel arbitration (the “Petition”) brought by defendant TWC Dealer Group, Inc. (“TWC”), it must first understand the precise nature of the claims brought and relief requested by plaintiff Shannon Hamrick (“Hamrick”). Therefore,...