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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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