Excerpt: ...n is denied as to the disparate facilities claim, with the caveats stated below. The basis for this ruling is as follows. A. Preliminary Matters. 1. Attorney Fees. Plaintiff filed late and defective opposition papers on October 5 and October 11, 2018. At the initial hearing on October 18, the Court gave plaintiff the option of allowing defendant's motion to be treated as unopposed, or continuing the hearing and requiring plaintiff's counsel to pa...

Excerpt: ...ariety of arguments in support of its motion. It argues that plaintiff's expert does not have knowledge of current standards and practices. It argues that it had no duty to provide any records and that John Muir could have accessed the records electronically. It argues that Ewing had no authority to request medical records and implies she was negligent in not ensuring her request had been met. It argues that plaintiff was negligent. All these arg...

Excerpt: ... merit. The Kuemeller Defendants' special motion to strike pursuant to CCP Section 425.16 is very similar to the special motion to strike made by Defendant Polizzis and their Trusts. The reason for this is obvious. The Kuemmeler Defendants are not alleged to have any personal criminal liability. (Cmplt, paragraph 24(a)) The Kuemmeler Trust owns 21.7% of the property at issue in the case, 389 South, in Alamo, California 94507. (Cmplt, paragraphs 7...

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

Excerpt: ...1771, 1778 n.3. Petitioner makes a number of arguments against the suspension order, most of them insubstantial. One of her attacks, however, has substance: DMV's lack of a showing that the officer administering the Draeger breath test was properly trained. Both parties agree that a Draeger test result is inadmissible in a DMV administrative per se (APS) hearing under Title 17 if the officer is not shown to have been properly trained. (The Court ...

Excerpt: ...he body of the complaint.) The next day, Plaintiff applied ex parte for a temporary restraining order. The Court (Judge Weil) 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. It is unclear whether anyone appeared to oppose the ex parte, but no written opposition was filed. For the following reasons t...

Excerpt: ...to act as to Sherwood's other discovery responses. It denies both sides' requests for sanctions. In addition, on its own motion, the Court strikes Sherwood's answer to the cross‐complaint under Code of Civil Procedure § 436. See Cal‐Western Business Services v. Corning Capital Group (2013) 221 Cal.App.4th 304. (Ordinarily this step would be preceded by an order to show cause, but the Court notes that Sherwood itself argues that this is the a...

Excerpt: ...ts and evidence. The Court observes that it would have been better practice to file a single motion on behalf of all three movants – or, at least, to agree with the other side that three nominally separate motions would be supported by a single copy of the voluminous supporting papers. (The opposing party, AMR, properly filed a single set of opposition papers to all three motions.) Be that as it may, however, the motions obviously may be consid...

Excerpt: ...gement of fees is denied. Summary adjudication as to the third cause of action for breach of fiduciary duty is granted. Defendants' motion for summary judgment/adjudication as to the cross‐complaint is denied. The requests of plaintiffs Johnny L. and Mary E. Moore for sanctions, both under Code of Civil Procedure section 128.7 and for the late‐filed Exhibits O and P, are denied. I. Procedural Issues Plaintiffs' memorandum of points and author...

Excerpt: ...low the Motion is denied without prejudice. This is a personal injury matter involving a pool‐ diving incident resulting in Plaintiff's broken neck. Plaintiff was a high‐school senior when he attended a graduation party at CrossDefendants' home. Plaintiff dove into the Cross‐Defendants' pool and broke his neck when Plaintiff's head hit the pool floor. As a result of that injury, Plaintiff is now a quadriplegic. Plaintiff filed a complaint a...

Excerpt: ...of the judgment. (C.C.P. §§ 685.070, 685.080.) The Kizors seek $64,554.03. They also set forth the amount of the total judgment (after some corrections). The total number still needs to be confirmed. For example, the Kizors' papers state that the Court awarded them $72,336.53 in costs. (Kizor MPA, p. 3, line 4.) In the Court's order of September 20, 2018, however, the Court found total costs for the case of $72,527.77, but awarded only $24,175....

Excerpt: ... of interest by the major shareholders who were looking for a quick cash‐out. Specifically, they alleged that the proxy statement issued by Abaxis was inadequate. Plaintiff filed moving papers seeking a temporary restraining order blocking the sale. The matter was set for hearing more than once, but was never heard. On October 5, 2018, plaintiff filed a motion to approve dismissal of the action pursuant to Code of Civil Procedure section 581(b)...

Excerpt: ... damages and calculates interest at the legal rate from the date of the original judgment, May 13, 2008. Background Plaintiff Lola Davis filed a complaint in 2007 against the Cityfed Capital Inc., Derek Wheat and Victor Gess. She alleged that the individual defendants agreed to start a company with her, but in the end the company went nowhere and Plaintiff was the only one to fund it. She sued the defendants for breach of contract, interference w...

Excerpt: ...l be followed. If not, the parties “may agree on a method of appointing an arbitrator and that method shall be followed.” In the absence of an agreed method, or if the agreed method cannot be followed, “the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.” Even then, the Court does not select an arbitrator, but “shall nominate five persons from lists of persons supplied jointly by the parties to ...

Excerpt: ...se party, allow, upon any terms as may be just, an amendment to any pleading…” (CCP § 473.) At any time before or after commencement of trial, the court may allow an amendment to a pleading in furtherance of justice. (Code Civ. Proc., § 576; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) “There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.” (Berman v. Bromberg (1997) 56 C...

Excerpt: ...Unruh Civil Rights CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPARTMENT HEARING DATE: 12/10/18 ‐ 6 ‐ Act (Civil Code § 51), and 4) intentional infliction of emotional distress (“IIED”). The demurrer is overruled. UHCA shall file and serve its answer by December 24, 2018. UHCA demurs to the entirety of the complaint on the basis that the complaint fails to join a necessary party under Code of Civil Procedure (“CCP”)...

Excerpt: ...uest for continuance of the demurrer hearing. He was properly and timely served with the demurrer, however, nearly a month before his opposition was due. He states no grounds why he was unable to respond timely, or why he needs more time, beyond an unexplained reference to the holidays and the Butte County fire – but with no suggestion how, if at all, the fire could have affected plaintiff's ability to prepare an opposition. (Plaintiff lives in...

Excerpt: ...d by ISI. Plaintiff alleges that the device caught fire, causing him personal injury in a variety of ways. His complaint did not name ISI as a defendant, He instead incorrectly sued Greg Otto, an executive of ISI, alleging that ISI was a dba of Mr. Otto. The Court previously granted Mr. Otto's motion to quash service for lack of personal jurisdiction, noting that plaintiff had not sued the correct entity. Although plaintiff did not take the hint ...

Excerpt: ...courier service, that is fine. Absent such a stipulation or court order, however, e‐mail is not a proper means of service. The Court is not aware of any such stipulation or court order. (Defendant has filed no response to the motion.) The motion rests on the assertion that in her vexatious‐litigant motion (Line 20), defendant has violated HIPAA and various other privacy laws by disclosing a confidential custody evaluation conducted in the Mar...

Excerpt: ... successive theory is shot down by clear proof or by defendants' own admissions in discovery. Defendants' brief spends several pages recounting an anecdote about Dennis Rodman, the relevance of which eludes the Court. A more appropriate pop‐culture reference might be Maxwell Smart: “Would you believe….?” Defendants argue that they should not be stuck with what they characterize as a sloppy and inadequate answer filed by their former attor...

Excerpt: ... Friedman's misdiagnosis to conform to an onerous gluten‐free diet. She asserts damages in the form of unnecessary expense (in obtaining food) and inconvenience and emotional distress (in avoiding restaurants, social situations, and the like). She alleges no physical harm from the misdiagnosis. Friedman moves on the basis that Manning's action is barred by the statute of limitations. The statute of limitations for malpractice claims against a h...

Excerpt: ... motion for summary adjudication of the claim for attorney's fees under Code of Civil Procedure § 1021.5 is granted. Because summary adjudication is being denied as to one cause of action, necessarily the motion for summary judgment is denied. I. Procedural Issues Counsel are reminded to comply with the Rules of Court as to motion papers generally and summary judgment motions specifically. The Church's exhibits are unwieldy as a result of this f...

Excerpt: ...t‐title action on December 23, 2014, seeking to void the deed of trust then held by Countrywide. The lead named defendant was America's Wholesale Lender (hereinafter AWL), which she believed to be the corporate lender and deed‐of‐trust holder in the underlying transaction. Also named as defendants were National City Bank (not otherwise involved in this motion), and unidentified “all persons known or unknown”, etc., as is standard practi...

Excerpt: ..., the summons and complaint were not served within 3 years from the filing of this case. Plaintiff had ample opportunity to properly obtain an order for publication but failed to timely do so. Case is dismissed pursuant to CCP §583.210 et seq.” After plaintiff orally argued the matter on August 9, 2018, the court adopted the tentative ruling as its order and ordered the case dismissed. The formal order granting defendants' motion was signed on...

Excerpt: ...event sexual harassment. Plaintiff Tonya Guice was hired as a full‐time security guard in February 2017. When Plaintiff was hired, she was provided a copy of Defendant's Arbitration Policy and Agreement as a mandatory condition of her hiring. The Agreement contained the following language, “By accepting and/or continuing employment with the Company, you agree to the terms of this Policy and Agreement.” Plaintiff has refused to submit to arb...

Excerpt: ...l is not a California resident, and therefore is not protected by the statute. As to Union Oil, plaintiffs argue that defendants have failed to separate costs involving Ashland from those involving Union Oil. In addition, plaintiffs argue that the specific costs requested are not shown to be reasonable and recoverable. Finally, they argue that defendants have not shown a reasonable possibility that they will prevail. They do not argue that they a...

Excerpt: ...ons, Inc. (“Lucky”), an Idaho corporation (collectively, “Plaintiffs”). Plaintiffs filed a request to file an extended page length in their opposition. That request is granted. No reply was filed. By way of the Motion, Defendants seek to strike the entirety of Plaintiffs' verified complaint (the “VC”) containing four causes of action for: 1) Libel Per Se; 2) Slander Per Se; 3) Intentional CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORN...

Excerpt: ...opposition, which the Court has reviewed. Plaintiff is entitled to reply at the hearing. Accordingly, the Court sets forth tentative views based on the papers filed to date, and the parties must appear. Plaintiff moves for summary judgment, asserting that this is a straight‐forward postforeclosure unlawful detainer, i.e., that the plaintiff foreclosed on the property in a non‐judicial foreclosure complying with all statutory notice requiremen...

Excerpt: ...urt. The parties should be prepared to address whether that is proper. Until that issue is resolved, the Court is not inclined to proceed with the motion. If that issue can be resolved, the Court offers the following observations. Legal Standards: The Legislature's express command that PAGA settlements be approved by the court necessarily implies that there is some substantive dimension to the review. See Labor Code Section 2699(l). The Court's r...

Excerpt: ...ourth causes of action for negligence and violation of Business & Professions Code section 17200 are overruled. The unopposed requests for judicial notice are granted. (Evid. Code § 452.) I. Background In 2005, Plaintiffs Amir Shenas and Azadeh Vaezizadeh refinanced a property located at 4071 Lilac Ridge Rd. in San Ramon. Defendant Bank of New York is the current beneficiary of the loan. Defendant Bayview Loan Servicing, LLC services the loan. D...

Excerpt: ...5.16 provides that “any cause of action against a person arising from any act. . . in furtherance of the person's right to petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE...

Excerpt: ...d by Defendant DeVries. Plaintiffs is suing the State of California, Department of Transportation (“Caltrans”) for (1) premises liability ‐ dangerous condition of public property per Government Code section 835 and (2) general negligence. Caltrans has demurred to the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/29/18 ‐ 14 ‐ second cause of action. In that cause of action, Plaintiff alleges that Caltra...

Excerpt: ...rces, Inc. (“Cross‐Defendant or “IR”) demurs to the all causes of action alleged against it on the ground Cross‐Complainant failed to file a certificate of merit, pursuant to CCP § 411.35. The certificate must be filed before or concurrently with the complaint or cross‐ complaint. Failure to file a certificate is a ground for demurrer or motion to strike. (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359‐360; CCP § 411.35(g)....

Excerpt: ...ond Amended Complaint (“ASAC”) filed on October 19, 2018. Defendants shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiff's counsel for approval as to form. Despite the serious concerns expressed in the Court's interim ruling of October 25, 2018, and in Part A‐3 of this ruling below, the Court exercises its discretion not to award monetary sancti...

Excerpt: ... Goel (2005) 35 Cal. 4th 1094, 1105, n. 4.) In this instance, Jarboe points out that the Court's prior decision contains an erroneous statement of fact, i.e., that Parr had not given a PAGA notice to the LWDA at an important time in the process. Indeed, Parr had given such a notice on September 21, 2017, a fact not contested by the opposing parties. This affected the Court's reasoning, because, as the order stated, “with proper notice to all co...

Excerpt: ...b of depicting her as an innocent college student at a university in Illinois, who never had any formal or informal involvement in Bara's business. Her name surfaced in Bara's business paperwork only because the mother, without Singh's knowledge or approval and reportedly by clerical error, included Singh's name as an officer and agent for service of process in some of the paperwork. The motion papers raised eyebrows maybe just a little as to how...

Excerpt: ...ff within 30 days of today. Plaintiff seeks production of three documents or sets of documents: (1) the District's incident reports and witness statements concerning the incident of 10/14/16; (2) the District's incident report concerning plaintiff's asthma attack on 11/16/16; and (3) reports (with student names redacted) of other prior complaints and incidents involving defendant Kuta. The District's opposition papers attempt no justification wha...

Excerpt: ... uninhabitable a home owned by Insalaco and occupied by Lomax. The parties dispute the exact date of the landslide, but it occurred sometime in February, 2017. Various neighboring landowners, including the County of Contra Costa, are also involved via cross‐ complaints. There are a welter of complaints and cross‐complaints pleaded by the numerous parties against each other. For purposes of the present four summary judgment motions, however, m...

Excerpt: ... this Court could grant that could redress the breaches the plaintiff alleges here, or to restore these parties to a working contractual relationship. This Court is routinely accustomed to admonishing juries and parties that the existence of a dispute is no proof of what the proper outcome should be. In the highly unusual setting of this case, however, the mere existence of a bitter and comprehensive disagreement between the plaintiff and the def...

Excerpt: ...quirements for taking a lump‐sum rollover of her 30‐year accrued retirement as an employee of the Alameda County Superior Court (Alameda Court). She alleges that she was told the process for calculating her final retirement benefit would take months, that in the meantime she could take monthly benefits, and that once the calculations were done she could take a lump‐sum rollover. Her later request for rollover was denied based on her initial...

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 11/15/18 ‐ 4 ‐ The Court will send out a separate e‐filing 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 notes that in the stipulation and order filed on October 19, 2018, the parties stipulated to consolidate three related derivative actions. As part of this stipulati...

Excerpt: ... in an employment matter against Respondent's employer. Their attorney‐client hourly fee agreement (the “Fee Agreement”) contains an arbitration clause providing for arbitration of any dispute between the parties. (Decl. of Janis E. Eggleston, filed 8/31/18, attached as “Exhibit A,” Attorney‐Client Hourly Fee Agreement, at p. 8 ¶ 25.) Specifically, paragraph 25 (a) of the Fee Agreement provides for arbitration of fee disputes. JAMS A...

Excerpt: ...For the following reasons, the Defendant's Motion to Expunge Lis Pendens is granted. At the outset, the Court notes that the Plaintiff's Request for Judicial Notice in support of its Opposition to Defendant's Motion to Expunge Lis Pendens as well as the Declarations of Galen Gentry and Kristin Andrade are not tabbed, in violation of Cal. Rules of Court, rule 3.1110, subd. (f). See also Local Rule 3.42, subd. (3). Plaintiff is directed to tab her ...

Excerpt: ...sitions. None of the other defendants was served with this motion; however, none of the other defendants has filed a first appearance in this case. This motion was filed based upon allegations in the original complaint. Since then plaintiffs have filed two amended complaints, but there appears to be no dispute that cause of action one remains the same in different versions of the complaint. Plaintiffs' motion for summary adjudication as to the fi...

Excerpt: ...e § 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) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/09/18 ‐ 12 ‐ 14 Cal.4th 394, 411 (internal citation omitted). In these summary proceedings the trial ...

Excerpt: ...t he has received nothing from her. This is unacceptable. Anything filed with the Court must be served on the other party, and proof of such service must be filed with the Court. Although initially pleaded with a number of other causes of action (such as fraud), this is in substance an action to collect a debt. The parties reached a mediated settlement in 2016, under which defendant Niakan was to make payments totaling $46,000 to plaintiff Robins...

Excerpt: ...a First Amended Complaint on October 25, as evidenced by a file‐stamped copy provided with their opposition papers. No such pleading is found in the Court's physical file, however; it has apparently been delayed, mislaid, or misfiled by the clerk's office. Plaintiffs are requested to provide another physical copy. Second, plaintiffs' opposition papers do not comply with CRC 3.1110(f) and Local Rule 3.42 concerning tabbing of exhibits. Counsel i...

Excerpt: ... that the property Alamo leased from Diablo did not conform to the promised specifications. Emo‐Gizella Hites and George Hites (“the Hites”) originally leased the property to Alamo, and Diablo is the successor in interest to the Hites. The demurrer is overruled. Diablo asserts that each of Alamo's causes of action fail to state facts sufficient to constitute a cause of action because the lease agreement stated that the property would be lea...

Excerpt: ...'s six causes of action, pursuant to CCP § 437c(f). Defendant Robert Half, International's Motion for Summary Judgment is denied. Defendant failed to establish there are no triable issues of material fact as to each of Plaintiff's six causes of action. Defendant's Motion for Summary Adjudication is granted in part and denied in part. Background Plaintiff Sandra Fabian was a contracted employee to Defendant Robert Half International. Plaintiff be...

Excerpt: ...is a small Brentwood auto dealership. Defendant Carl Watkins is its President/CEO. (UMF 1.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/08/18 ‐ 8 ‐ Plaintiff Muranishi had his own auto dealership in Livermore, called EMotors. In April 2013, he asked Watkins for permission to sell 21 of his cars off Brentwood Motorsports' lot because his lot failed. (UMF 2.) Watkins agreed. Thereafter, Brentwood Motorsports...

Excerpt: ...(Welfare & Inst. Code § 15610.30) and (2) Deed Reformation (Civil Code § 3399). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/08/18 ‐ 15 ‐ This motion came on previously for hearing on October 10, 2018. At that time, Plaintiff objected to the Reply evidence filed by Defendant. The Court permitted both parties to file supplemental briefs by October 24, 2018. The hearing on the motion was continued to Novemb...

Excerpt: ...ks to strike the entirety of Plaintiffs' verified complaint (the “VC”) containing four causes of action for: 1) Libel Per Se; 2) Slander Per Se; 3) Intentional Interference with Economic Interest; and 4) Unfair Business Practices. For the reasons stated below, the Motion is granted. The Court notes that Defendant is not the only defendant in this matter, and this ruling does not preclude Plaintiffs' alleged causes of action as to the other de...

Excerpt: ...of action) are stricken. Courts use a two‐step process for determining whether an action or claims(s) is a SLAPP suit subject to a special motion to strike. Plaintiffs' claims must (1) arise out of Defendants' protected speech and (2) must lack even minimal merit. See Navallier v. Sletten (2002) 29 Cal.4th 82, 88‐89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. The court first determines whether Plaintiffs' claims arise out o...

Excerpt: ... Affinito's evidentiary objections, filed on October 15, 2018. Nos. 1, 2, 7, 19, 47, 50, 51: sustained in part. Unverified pleadings are not evidence. However, the filing date of the original Complaint is relevant to the statute of limitations analysis, and the allegations of the Third Amended Complaint define the scope of the issues that can be decided by the pending motions. Also, the Court can take judicial notice of the probate petition and t...

Excerpt: ...w no later than June 26, 2018. However, Huang canceled the contract on June 29, 2018. Crowd Fund therefore filed this action for specific CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 11/05/18 ‐ 7 ‐ performance and recorded a lis pendens against the Property. Huang now moves to expunge the lis pendens. Defendant Zeng, who offered to purchase the Property on June 30, 2018 for a predominantly seller‐financed am...

Excerpt: ...ion of the trial court.” (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746‐ 747.) The California court has discretion to stay the state proceedings in favor of the federal action. (Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804.) According to Caiafa, the court should “consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly ...

Excerpt: ...n October 22, 2018, is also granted. Neither side has filed evidentiary objections. Plaintiffs' objection to defendant's reply memorandum is overruled. Defendant's counsel is directed to properly serve opposition and reply papers in the future. The Court notes that it has received only a reply memorandum; the Court has not received a reply separate statement, or any reply evidence. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 H...

Excerpt: ...t the broker defendants. The parties should be prepared to discuss that topic at the CMC scheduled for November 28. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/02/18 ‐ 6 ‐ This is a dispute over a home purchase. Plaintiffs are the purchasers. Defendant Cain was the seller. Defendants Haus and Renjen & Assocs. were the brokers. It is uncontested that the sales contract, as between seller and buyers, include...

Excerpt: ... substance of the proposed first supplemental complaint is a request for a declaratory judgment as to the res judicata/collateral estoppel effect of a judgment in this case in barring a hypothetical future case that defendants may or may not file on the same subject matter in the future. That's not a cause of action, by declaratory judgment or otherwise; it's a proposed defense to a lawsuit that hasn't even been threatened yet, let alone filed. (...

Excerpt: ... relief available for certain causes of action; they are not a cause of action in themselves. E.g., Hiliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391. Accordingly, defendants properly proceed by a motion to strike rather than a demurrer. This motion raises questions as to both the level of alleged conduct that is substantively required to support recovery of punitive damages, and what level of specificity is required in a pleading seeking...

Excerpt: ...r. Sirott and Dr. Patel, who were the only two managers of both Taylor and CRTC, properly exercised their managerial responsibilities of both CRTC and Taylor with respect to the EBMOH lease proposal, another entity in which Patel was part owner. The resolution of whether Dr. Patel violated the non‐competition provision of the CRTC Operating Agreement, which is at issue in the arbitration, may be dispositive of the claims Patel has made against ...

Excerpt: ...ted. The court received Defendant's supplemental papers. Plaintiffs filed their supplemental papers 5 days late. The court has considered all papers. I. THE ARBITRATION AGREEMENT IN THE RELEVANT CC&R'S IS SUBJECT TO THE FEDERAL ARBITRATION ACT The Federal Arbitration Act (“FAA”), 9 U.S.C. Section 2, provides, in part, that a “written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controver...

Excerpt: ...ATE: 11/01/18 ‐ 8 ‐ Background This multi‐plaintiff construction defect case concerns several homes in Oakley built by Meritage. Plaintiffs own one of them: 124 Copper Knoll Way. Their sellers, John and Denise Aragon, brought a construction defect case against Meritage in 2010. (Separate Statement of Undisputed Material Facts [“SSMF”] No. 1.) While the Aragons do not appear to have signed the relevant settlement agreement, they dismisse...

Excerpt: ...leave to amend. Teichert was aware that “weld discontinuities” might have constituted a breach of the warranty of fitness in March 2018, but did not bring its motion for leave to amend until September 2018. (Hilberg Dec., Exh. 2 [response to form interrogatory 314.2].) However, the Court also finds that cross‐defendant Northwest Pipe Company has not demonstrated substantial prejudice. (See, Mesler v. Bragg Management Co. (1985) 39 Cal.3d 29...

Excerpt: ... of action in the Cross‐Complaint in the context of the appropriate jury instructions to be submitted to the jury. The court did not, as Plaintiffs contend, rule that Defendants “could have been entitled to attorney's fees” on those causes of action. Instead, the court suggested and counsel agreed that those causes of action and any corresponding claim for attorney's fees or other expenses should be severed and argued to the court after any...

Excerpt: ...efense – sustained, without leave to amend. Second affirmative defense – sustained, without leave to amend. Third affirmative defense – sustained, with one opportunity to amend. Sixth affirmative defense – overruled. Seventh affirmative defense – sustained, with one opportunity to amend. Eighth affirmative defense – overruled. Ninth affirmative defense – overruled. Tenth affirmative defense – sustained, with one opportunity to ame...

Excerpt: ...ten” or “Cross‐Complainant”). The SACC pleads causes of action for (1) equitable indemnity, (2) total indemnity, (3) contribution, and (4) declaratory relief. Cross‐Defendant demurs pursuant to Civil Procedure § 430.10(e) on the grounds that CrossComplainant's equitable indemnity claim is precluded by the “hold harmless” provision of the parties' contract and as a consequence its claims for total indemnity and declaratory relief al...

Excerpt: ...garding 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 stated, that aspect of the complaint is good again...

Excerpt: ...iary duty is sustained with leave to amend. Cross‐Complainant, Shannon B. Jones Law Group, Inc. (“SBJLG”) alleges Sandra VellaAndrade (“SVA”) was the Controller of SBJLG from approximately August 2010 through January 2016. Her responsibilities included handling all financial matters for the law group. SBJLG alleges she had a fiduciary duty of loyalty. She breached the duty by approving alleged overtime work by Olson without disclosing t...

Excerpt: ...th Thomas Truston to purchase a floating home, currently situated at 7000 Orwood Road in Brentwood. Plaintiffs allege in the proposed amended complaint, which the court has granted in the accompanying motion, the subject floating home was brought to Bethel Island and Cruiser Haven Marina in 2008. On information and belief, Plaintiffs believe that Defendants have not dredged Orwood Slough and at present the slough is too shallow in several places ...

Excerpt: ...t Lemuel Sirvonn Wilson, Jr., and owned by defendant Savee Pralourng, struck her car. Three of Ms. Reyes' children were passengers and two died at the scene. The third – plaintiff Luciano Reyes, on whose behalf Ms. Reyes brings the action as guardian ad litem – survived. Besides the negligence‐based claims against the driver and owner of the other vehicle, plaintiffs also bring claims for dangerous conditions of public property against seve...

Excerpt: ... accordingly cross‐complained against ADP. ADP demurs to the cross complaint. The demurrer is sustained in part without leave to amend, and overruled in part. Specifically, the demurrer is sustained without leave as to all causes of action on the part of the individual cross‐complainants, and Los Montañas's second and third causes of action (warranty and implied indemnity). It is overruled as to Los Montañas's first, fourth, and fifth cause...

Excerpt: ...lly to vacate the judgment, demonstrating that the Hawaii court had never properly obtained jurisdiction over him because of defects in the manner in which the HOA supposedly served Rad with process in the Hawaii action. Rad now moves for attorney fees incurred in winning his motion to vacate the judgment. The motion is denied. Rad identifies no statutory or contractual provision that entitles him to recover attorney fees for this victory. Rad re...

Excerpt: ...ied. This motion was previously before the Court on October 5. In its tentative ruling the Court continued the motion to this date. The District's original motion simply ignored the express allegation in the second amended complaint that plaintiff had exhausted administrative remedies by filing an administrative claim form, attached to the SAC as an exhibit. Plaintiff pointed this out in her opposition. Only in its reply brief – which is to say...

Excerpt: ... History Santos began working for Contra Costa County in 1995. She argues that she is entitled to service‐connected disability retirement benefits based on her orthopedic and consequential psychological injuries. Specifically, she contends that she is permanently incapacitated on a psychiatric basis and therefore unable to engage in any substantial gainful employment. Santos started work with the county as a clerk in 1995. In 2001 she worked in...

Excerpt: ...Court previously advised the parties, the Court will set trial and issue conference dates once the parties have participated in mediation. A. Preliminary Matters. Holding Company's request for judicial notice, filed on June 15, 2018, is granted. CSV's request for judicial notice, filed on August 30, 2018, is also granted. CSV's evidentiary objections, filed on August 30, 2018, are sustained. Holding Company's evidentiary objections, filed on Sept...

Excerpt: ...rah Shapero, are ordered to show cause why they should not be sanctioned in the sum of $ 900.00, jointly and severally, pursuant to sections 128.5 and 128.7 of the Code of Civil Procedure. On or before November 1, 2018, plaintiff shall file and serve a declaration signed by plaintiff's counsel. Attached to this declaration shall be a ‘redlined' copy of the “Amendment to Second Amended Complaint For Damages” filed on October 19, 2018. This r...

Excerpt: ..., Inc., Mt. Diablo Paper Stock, Inc., Oakley Disposal Service, Inc., Pittsburg Disposal & Debris Box Service, Inc. and Rio Vista Sanitation Service, Inc. (the “Corporate Defendants”) filed a demurrer to the complaint. Defendants Silvio Garaventa, Jr., Louisa Binswanger and Marie Adler filed joinders to the demurrer. Plaintiff Joseph Garaventa opposed the demurrer and Plaintiff Linda Garaventa Colvis filed a joinder to that opposition. The dem...

Excerpt: ...ated May 30, 1990, brings this action as co‐owner of the real property located at 3511 School Street. Cross‐Defendant Milton Bruzzone owns the adjacent Rosedale Street Property. There are two small parking areas along the western side and southern portion of the School Street Property, which Cross‐Complainant has labeled “Area B” that are in dispute. As alleged, Area B has always been within the School Property's side of the fence separ...

Excerpt: ...rements caused material harm – meaning that without the procedural violations, plaintiffs would have succeeded in refinancing their defaulted mortgage and saving their property from foreclosure. That failing underlay the Court's rulings sustaining demurrers to prior iterations of the complaint. In the SAC, plaintiffs made their last‐hurrah effort to allege materiality. In its September 28 tentative ruling on this demurrer, the Court commented...

Excerpt: ...ase other than plaintiffs' claims that defendant is in violation of a non‐compete agreement. The problem is that the causes of action pleaded in the original complaint (or in the first amended complaint, which only added two new plaintiffs) did not segregate themselves neatly into arbitrable and non‐arbitrable causes of action. As pleaded, only the second cause of action could clearly be categorized (as non‐arbitrable). While it may be appr...

Excerpt: ...led to file the ex parte application papers. Counsel should bring those papers to the hearing. (If plaintiffs proffered any opposing papers, they should bring those as well.) The Court will honor Judge Weil's ruling. Without seeing the application, however, the Court is more than a little puzzled as to why this motion was exempted from the Facilitator program. The motion calls on the Court to conduct at least a line‐by‐line review of an inch�...

Excerpt: ...h the first directive, and the LWDA has not commented on the settlement. With respect to the second directive, the parties have responded with a declaration stating that the settlement allocation is based on “Plaintiff's willingness to provide a general release with a 1542 waiver thereby precluding plaintiff from raising other employment issues in the future; 2) since the case had been actively litigated for almost two years, the risk that plai...

Excerpt: ...ing to bring their eleven (11) Penal Code claims against any party. The District Attorney's office (or U.S. Attorney with respect to the federal RICO claim) is the entity (or entities) who must prosecute those claims. No civil remedies are contained in the violations set out in the Complaint. NO CAUSE OF ACTION PLED AGAINST THE STATE OR ITS AGENCY, THE CSLB Regardless of the problems with standing, this demurrer is confined to the deficiencies in...

Excerpt: ...continued this demurrer so that the parties could meet and confer “in person or by telephone” as required by code of civil procedure § 430.41. The Court further ordered Plaintiff to file a declaration of compliance with § 430.41(a) by October 11, 2018. He has not done so. Although the Plaintiff is in pro per, the Court notes that pro per litigants are not entitled to special treatment and must follow the procedural rules that govern civil l...

Excerpt: ...t cannot determine whether the enactment relied upon was intended to impose an obligatory duty to take official action to prevent foreseeable injuries or whether it was merely advisory in character. [Citation]”).) In addition, a complaint against a public entity will ideally make clear whether plaintiff the plaintiff is claiming the public entity is directly liable under Government Code section 815 and/or 815.6 and a statutory or constitutional...

Excerpt: ...rs contain serious defects. The Court will not consider these opposition papers, and gives plaintiff two procedural options. First, plaintiff may submit the pending motion for the Court's decision as functionally unopposed. The Court would review only the moving papers, and would send out a ruling by the end of the day. Second, plaintiff may stipulate to (1) briefly continuing the existing issue conference and trial dates, (2) setting a new heari...

Excerpt: ...LC; and Affinia Default Services, LLC (collectively, “Defendants”). The Complaint alleges a cause of action for (1) declaratory relief and (2) violation of Cal. Civ. Code § 2924.11. A week later, Plaintiff moved ex parte for a 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...

Excerpt: ...k to be assigned “benefits because the premises are the very definition of unsafe...” Plaintiffs include what appears to be a copy‐andpaste rendition of Health and Safety Code section 17975 et seq. regarding tenant relocation assistance. In apparent efforts to improve the Petition's chance of success, Plaintiffs filed an “addendum to petition for writ of mandate” on October 5, 2018, three court days before the hearing and without a proo...

Excerpt: ... for “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Where, as here, the tactic or action is the filing of a motion, the party seeking sanctions must serve, but not file, the motion for sanctions, and give the other party 21 days to withdraw the motion. (C.C.P. § 128.5(f)(1)(B).) AUSD did so. XL did not withdraw the demurrer. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMEN...

Excerpt: ...e and two is granted in part and denied in part. The motion is granted as to the STA Notice. Paragraphs 26 and 27 are ordered stricken from the complaint. Otherwise the motion is denied. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/11/18 ‐ 10 ‐ Relevant Allegations Defendants seek to strike the first and second causes of action (libel per se and libel per quod) in the complaint. Defendants have not moved to...

Excerpt: ...te causes of action. The amended complaint may also include the changes listed in Plaintiff's request for leave to amend. Res Judicata Defendant argues that Plaintiff's complaint is barred by res judicata because there was a final judgment on the merits in a small claims action between the same parties. This argument was raised and rejected by this Court in the last demurrer. This appears to be an improper motion for reconsideration, however, occ...

Excerpt: ...arded to him in the marital dissolution judgment. There is a complication in the case, however, which may present an obstacle to treating this as an ordinary fraud‐tort case. The transaction of which plaintiff complains was not merely a private matter occurring between the parties outside of court. Rather, the parties submitted a formal stipulation in 2016 in their family‐law case (in San Joaquin Superior Court), modifying the 2006 divorce ju...

Excerpt: ...iff, Jose Luis Ramirez‐Ceniceros, sues in two capacities: as an insured (as to his claim for loss of cash), and as the assignee of an insured (as to his claim for personal injury inflicted by his coinsured, Flores). Plaintiff and defendant Jose Flores, aka Agustin Chavez, were lessees of a house located at 2813 Carob Street in Antioch. Their agreement with their landlord required them to have renters' insurance. On October 25, 2014 they went to...

Excerpt: ...defendant's reply brief. Defendant filed this motion with no declaration of compliance with § 439. As a reading of the briefs make clear, the case plainly called for meet‐and‐confer. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 12 ‐ Defendant's motion rests on its argument that plaintiff's second amended complaint must be dismissed because she does not allege that she exhausted administrative r...

Excerpt: ...�� from using Calle Arroyo road in Diablo. The Court notes that this motion was filed before the First Amended Complaint was filed. However, the parties are in agreement that this motion may apply to the FAC even though the documents were filed in the reverse order. The Court also notes with disapproval that the District has not submitted a declaration showing compliance with the meet and confer requirement for a motion for judgment on the pleadi...

Excerpt: ...cussion. Plaintiff's opposition brief mostly addresses these issues as though no prior demurrer or ruling had occurred. The Court granted leave to amend CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 21 ‐ on most counts, but its legal analysis included specific comments on what plaintiff would have to allege to patch up the deficiencies in the FAC. At this juncture, then, the opening question for the ...

Excerpt: ...fton Huffmaster, Falin Minetto and Daniel Minetto, Carla Cayson, Amani Hoopes, Heather and Hector Ochoa, and Marc and Stephanie Wong (collectively “Proposed Plaintiffs”). Plaintiffs move pursuant to Code of Civil Procedure § 473 and 576, and Rule 3.1324 of the California Rules of Court on the grounds that the First Amended Complaint “is necessary and proper, will not prejudice any defendant, is timely pursuant to prelitigation requirements...

Excerpt: ...o amend the First Amended Complaint. Accordingly, the Court will not grant leave to amend, unless plaintiff so requests and makes the appropriate showing needed. The basis for this ruling is as follows. A. The First Cause of Action. The Nature of Plaintiff's Theory. The First Cause of Action is labeled as one for breach of the implied covenant of good faith and fair dealing. However, plaintiff appears to be relying on both the breach of an expres...

Excerpt: ... out of the same transaction or series of transactions as the arbitration, and (2) there is a possibility of conflicting rulings on common issues of law or fact. See CCP Section 1281.2(c). Under California law, the court has significant discretion where (1) pending litigation between the parties involves overlapping non‐arbitrable issues, or (2) pending litigation between either party and a third party involves issues of law or fact common to t...