Excerpt: ...endangered, rare, or threatened species.” In making its decision, the Court considered the entire property as the Project Site. Real Party filed a motion for a new trial in which Respondents joined. The key issue in this motion is whether the Project Site should be the entire property or just the new building footprint. Real Party argues that the recently published opinion, Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, provi...

Excerpt: ...RisoftDev CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/24/22 ‐ 2 ‐ in return for 2,500,000 shares of stock equaling 25% of authorized shares of Plaintiff RisoftDev. Plaintiff alleges Defendants Chatfield and McVay breached the agreement and conspired to retain and use RisoftDev's propriety information and trade secrets. Defendant Joel McVay was one of the senior investment partners at Chatfield and lead con...

Excerpt: ...tion. Plaintiff Keaton Hall (“Hall”) opposes. He contends that AAA NCNU has failed to meet its burden of demonstrating the existence of an agreement to arbitrate this controversy. Existence of an Agreement to Arbitrate The right to compel arbitration depends on the existence of an agreement to arbitrate. (Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1128.) AAA NCNU bears the burden of proving the existence of an arbitration agreem...

Excerpt: ...r to the TAC, the Court issued an Order after Hearing (the “Order”), sustaining the demurrer without leave to amend. Plaintiff now moves for a new trial. While such a motion is ordinarily made only after a trial of an issue of fact to the court or a jury, it may also be filed after the court has tried a pure CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/24/22 ‐ 31 ‐ issue of law by sustaining a challenge...

Excerpt: ...er decision, or the verdict or other decision is against law.” (Code of Civil Procedure § 657(6).) Section 657 applies to writ proceedings. (Code Civ. Proc., § 1110.) ADUs Real Parties and Respondents argue that the ADUs will be included in the same footprint as the single‐family homes and are not intended to function as a separate household. The Court previously considered that the ADUs will be in the same footprint as the single‐family ...

Excerpt: ...G DATE: 03/24/22 ‐ 13 ‐ Any amended complaint shall be filed and served on or before April 4, 2022. Background Plaintiff purchased a 2014 Ford Escape on September 4, 2013, which had a large variety of defects "at the time of purchase, or within one‐year [sic] thereafter," which substantially impair the use, value, or safety of the Escape. (Complaint, ¶¶8, 10, 33.) In connection with the purchase, plaintiff received an express written warr...

Excerpt: ...ound Plaintiff Creekside Walk Ventures, LLC ("Creekside") alleges it is the owner of an apartment complex in El Cerrito known as Creekside Walk Apartments (the "Project"). On May 2, 2019, Creekside filed suit against the general contractor for the Project, Arbor Building Group, Inc., initiating in this Court the case Creekside Walk Ventures, LLC v. Arbor Building Group, Inc., et al., MSC19‐ 00881 ("Creekside 1 "). (Defs. RJN‐1.) The Creekside...

Excerpt: ...of action is overruled. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/24/22 ‐ 2 ‐ Factual Background Plaintiffs purchased a single‐family residence located in San Ramon from defendants Kumar Muthukumar and Ushu Muthukumar. (FAC ¶¶ 11, 13.) Defendant Serafino Bianchi was a licensed real estate agent who was the listing agent for the sellers. FAC ¶ 13.) Plaintiffs allege that after they purchased the prop...

Excerpt: ...to Code of Civil Procedure sections 430.10(e) and (f) as uncertain because the Complaint's Exhibit B contradict the Complaint's allegations and fail to allege facts to support Plaintiff's own performance; (2) Second Cause of Action for Conversion pursuant to Code of Civil Procedure sections 430.10(e) and (f) for failure to state a cause of action because the Complaint's Exhibit B states that title to the products does not transfer to the Plaintif...

Excerpt: ...section 226. The 12th cause of action seeks “waiting time penalties” (relief afforded employees who are not timely paid wages due and owing) under Labor Code sections 201 and 203. As Defendants observe, these causes of action are “derivative” in that the damages allegedly owing under sections 226 and 203 result from other alleged conduct—here, the failure to pay Stephens for meal and rest breaks (that alleged conduct is separately the b...

Excerpt: ...efendants together. (CCP §430.10 (f).) Any amended complaint shall be filed and served on or before April 7, 2022. If plaintiff amends again, the Court anticipates that it will make a final ruling on the validity of the Second Cause of Action on the next demurrer, without further leave to amend. In the event of any further demurrer, plaintiff shall file a redlined copy of the amended complaint, so the Court can track the changes The Court denies...

Excerpt: ...es. (Complaint, ¶11.) Plaintiff was admitted to Shields Richmond Nursing Center (“Shields”) for skilled rehabilitation services on June 21, 2020, and again on September 3, 2020, after he was hospitalized. (Complaint, ¶13.) In January 2022, plaintiff filed this lawsuit for negligence and elder abuse claims related to his residency at the facility. (Declaration of Otis L. O'Cain, ¶1‐2.) Defendants, Shields Nursing Center, Inc. and William ...

Excerpt: ...led to judgment as a matter of law. (Code Civ. Proc. § 438 (d); Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2010) p. 7:292.) As such, a motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. (RichardsonTunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061; Burnett v. Chimney Sweep (2004) 123 Cal...

Excerpt: ...n the same day the case was filed. Defendant's default was taken on January 27, 2022. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/17/22 ‐ 9 ‐ Less than a week after his default was entered, on February 2, 2022, defendant filed this motion pursuant to Code of Civil Procedure section 473(b). Defendant states he and plaintiff were married and co‐habitated as a couple for more than a decade before filing for...

Excerpt: ...ally on the ground that Favro's costs are not apportioned among the parties. MOFD asserts that it should have a judgment entered only for its proper share. Morris contends that since the jury reached no verdict as to her, she is not responsible for any part of the costs. All plaintiffs object to the costs associated with CalTrans, which settled out of the matters long before trial. The moving parties also object to various specific items of the c...

Excerpt: ... should not be sanctioned. Plaintiff's ex parte application to seal the proceedings was granted on July 27, 2020. At that time, Defendants had not been served with the summons and complaint; they had no notice and no opportunity to oppose. (Defendants were served almost a year later in April 2021.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/17/22 ‐ 21 ‐ In its application to seal the proceedings, Plaintif...

Excerpt: ...units owned by Mr. Luecker and by Robert J. Mann, now deceased. (3AC ¶¶ 1, 5, 7.) Plaintiff alleges he is the personal representative of the estate of Robert J. Mann. (3AC ¶ A p. 5.) Based on the 3AC and Exhibit A attached, Robert J. Mann was granted a joint tenancy interest in Unit #63 of the condominium development. (3AC ¶¶ 1, 8, Exh. A.) As relevant to Mr. Luecker's demurrer, the original complaint was filed in the name of "Estate of Robe...

Excerpt: ... that defendants were guilty of ‘oppression, fraud, and malice' simply pleaded a claim for punitive damages in the language of the statute authorizing such damages. . . . Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.”)) Whether a plaintiff has a basis to request punitive damages in an action for elder abuse turns on whether the she has pleaded enough facts to support ...

Excerpt: ...then submitted an ex parte request to file a second amended petition. Petitioners did not file an opposition to the demurrer, but by attempting to amend their petition the Court understands that Petitioners may oppose this demurrer. Respondents' demurrer to the claims based on the Downtown Martinez Jail Demolition Project and the County Administrative Building are sustained. As explained below, challenges to those projects are time‐barred. It s...

Excerpt: ...s International shall prepare the order after hearing on this demurrer. Fire Wings Concord The Court previously overruled the demurrer to cause of action three against Fire Wings Concord (“Concord”.) The first amended cross‐complaint made no substantive changes to the third cause of action. Concord has again demurred to the third cause of action. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/17/22 ‐ 6 �...

Excerpt: ...s for violation of the Homeowner Bill of Rights (“HBOR”). Plaintiff has adequately alleged the HBOR violation of conducting a trustee's sale while a complete application for a loan modification was pending. (Complaint, ¶¶ 12‐24, 26‐29, and 34. See Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1275 [a plaintiff adequately alleged an HBOR cause of action by alleging that a complete application was pending at the time ...

Excerpt: ...iffs are entitled to punitive and exemplary damages in the amount to be proven at trial"); (2) Prayer ¶ 3 ("For punitive damages as the Court see fit") to the extent sought against Yudien; and (3) Prayer ¶ 4 ("For reasonable attorney's fees") to the extent sought against Yudien. Background Plaintiffs have sued Jordan Yudien for breach of fiduciary duty in the third cause of action of the Complaint. Yudien was counsel for defendants Constance Ki...

Excerpt: ...wen Yao received her third injection of Faslodex in her right and left buttocks. (Comp. ¶7.) After the injections, Yao's left leg became paralyzed and after one week the paralysis was replaced with pain. (Comp. ¶9.) It is alleged that the nurse's injection of Faslodex into the leg buttock was the cause of the paralysis. (Comp. ¶¶7‐9.) A defendant meets its burden on a motion for summary judgment by showing either that plaintiff's claims hav...

Excerpt: ...n additional deposition of Plaintiff's representative Azad Amiri limited to addressing the facts and issues set forth in the amendments to the First Amended Complaint ("FAC") made in the 2AC; and (3) Plaintiff shall pay the actual reasonable CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 03/16/22 ‐ 3 ‐ cost of the court reporter's fees incurred by Defendants for the additional deposition of Azad Amiri, estimated...

Excerpt: ...ond, and third causes of action of the complaint are also overruled. Defendant shall file his answer to the Complaint by March 30, 2022. Background Plaintiff Reginald Jackson brings a complaint for quiet title against his brother, defendant Lambert Jackson. The property subject to the action is a residential property located at 5254 Bayview Street in Richmond ("Bayview Property"). (For clarity, this ruling will refer to the parties by their first...