Excerpt: ...y further amended complaint on or before June 28, 2018. Preliminary Matters. Defendants' request for judicial notice is granted. The Court has not considered plaintiffs' sur‐reply, which was filed without leave of court on May 21; the governing statute does not authorize the filing of a sur‐reply. (Code Civ. Proc., § 1005.) The Statute of Limitations. Defendants' demurrer is sustained with leave to amend as to all causes of action, insofar a...

Excerpt: ...ceived a default judgment against Defendant in 1987 for $445,557. The current value of this judgment (with Alaska's 10.5% interest rate) is $1,868,991. Plaintiff has not collected any of this judgment from Defendant and she claims it is because she has been unable to locate him. In 2015, Plaintiff finally located Defendant in this County. On February 20, 2018, she filed an application for entry of judgment based on a sister‐state judgment pursu...

Excerpt: ...ff in a prior case whose claims of Breach of Contract, Negligence, and Intentional Misrepresentation did not survive a Court trial, and judgment was entered against Ms. Zarnegar and in favor of Mr. Hashemi on March 2, 2016. In that case, Ms. Zarnegar failed to prove, among other things, that she and Mr. Hashemi entered into a contract to remodel her home. However, the evidence showed some ‘shenanigans' with a realtor friend of Mr. Hashemi allow...

Excerpt: ...set forth in the Answer to Plaintiff's Complaint. ICW argues it is entitled to judgment in its favor because the Pollution Exclusion in the subject policies bar all of Plaintiff's claims. Defendant argues there is no dispute that the alleged contamination is property damage that falls within the scope of the exclusion provision of the policies issued to the Monroes. ICW seeks the same ruling relative to its cross‐complaint for declaratory relie...

Excerpt: ...nsurance policy on his property, which was in effect on February 17, 2016, when high winds damaged a boat dock and some fencing. (Complaint, p. 1, line 26, through 28.) The insurance policy was issued by Liberty Mutual, Safeco Insurance Company, General Insurance Company, “and each of them.” (Complaint, page 2, lines 12‐13.) Plaintiff made a claim, which was unreasonably denied. (Complaint, page 2, lines 10 through page 4, line 12.) The den...

Excerpt: ...th the claim‐presentation requirement is an element of the claim. A claim that fails to allege CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 05/23/18 ‐ 14 ‐ compliance fails to state a cause of action. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236 The court may not consider the evidence attached to plaintiff's Opposition. On a demurrer, the court may only consider the face of the ple...

Excerpt: ...sory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) fraud; (7) violation of Bus. & Prof. Code § 17200 et seq.; (8) quiet title; and (9) declaratory relief. The Court also notes that Plaintiff's claim for (4) breach of contract & interference with 3rd party beneficiary contract is new in the SAC. This Court pre...

Excerpt: ...edural context. (See Beach Break Equities, LLC v. Lowell (2016) 6 Cal.App.5th 847, 852‐54.) There is an exception to the general rule when the defendant has engaged in conduct the court finds “inequitable.” However, this is a narrow exception, and the Court finds that it is not applicable here. The Textron decision is the appellate decision most closely on point. (See, Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.A...

Excerpt: ...ome detail how he proposes to amend and how that will cure the problems identified. Chevron shall file and serve its Answer to the TAC on or before June 1, 2018. Statute of Limitations A defendant may file a general demurrer to a complaint if the complaint shows on its face that it is barred by the statute of limitations. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) Chevron argues that the face of the pleadings and the matters of which the c...

Excerpt: ..., CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/18/18 ‐ 16 ‐ Defendant demurs to the Complaint pursuant to Civil Code § 430.10(e) on the following grounds: (1) Plaintiff's claims are time barred; (2) Plaintiff is not an appropriate class representative; (3) Plaintiff fails to allege a community of interest; and (4) Plaintiff fails to adequately allege facts supporting the predicate statutory violations of her 17200 claim. Defendant also demurs ...

Excerpt: ...terpretation is not permitted by section 108. The Board's main argument in its demurrer is that Black Diamond has failed to exhaust its administrative remedies. In support of its argument it relies on the pending administrative proceeding between Black Diamond and the Board: In re Black Diamond Electric, Inc. (CSLB No. 2016‐232). The Board argues that Black Diamond must go through the administrative proceeding and then take a writ from the proc...

Excerpt: ...hed. Plaintiff Dorothy Guillory is AmeriCare's president, but brings this action in her individual capacity. On or about October 15, 2004, the City of Richmond leased the property to AmeriCare for purposes of operating an adult‐care facility and “related services.” The Lease Agreement had an initial term of 5 years. But the parties dispute the renewal provisions. The City Council originally approved a lease for a 5‐year term, with the opt...

Excerpt: ... all causes of action are based on an underlying breach of a contract which is attached to the complaint. Defendant essentially argues that the allegations of the complaint are untrue, which of course does not constitute the basis for granting the motion (however styled). These arguments are matters to be presented at trial as evidence (or summary judgment motion), and the allegations of the complaint, however much the defendant disagrees with th...

Excerpt: ... DEPARTMENT: 09 HEARING DATE: 05/16/18 ‐ 9 ‐ Plaintiff argues the arbitration agreement should not be enforced because it is unconscionable. A court must order arbitration at the request of a party if it determines that an agreement to arbitrate the controversy exists unless it determines, among other things, that grounds exist for revocation of the agreement. (CCP § 1281.2 (b).) One such ground is that the agreement is unconscionable. (See ...

Excerpt: ...ed. Relevant Factual and Procedural Background The following was taken from the Administrative Record provided by Petitioner. On April 30, 2017 Petitioner was arrested for being a minor under 21 years of age and containing a B.A.C. of over .01% in violation of the California Vehicle Code. Petitioner's license was suspended after her arrest under the law of administrative per se. Petitioner requested and was granted a hearing with the DMV on Septe...

Excerpt: ...t to go further and determine whether or not other reasons, such as unconscionability, adhesion, mistake, etc., would also be a basis for denial of the petition. ...

Excerpt: ...ing there appears to be no meaningful difference between Terri and The Heath Company and therefore future references to Terri shall include The Heath Company. Plaintiffs Blair Heath Kenealy (“Blair”) and Holly Heath Fuller (“Holly”) filed a motion to vacate the arbitration award. The Heath Family Partners II, LP (the “Partnership”), has filed a petition to correct or vacate the arbitration award. The Partnership is not a party in this...

Excerpt: ...ll file and serve his amended complaint by May 29, 2018. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 05/14/18 ‐ 22 ‐ The Court has reviewed Defendants' attorney's declaration and finds that it complies with Code of Civil Procedure §435.5. It is, however, disappointing that Plaintiff's attorney did not take the opportunity to meet and confer. Defendants seek to strike Plaintiff's attorney fees claim on page 3...

Excerpt: ...d Negligence are barred by Ohio's applicable statute of repose (Ohio Revised Code 23.5.10), and the cause of action for Negligent Infliction of Emotional Distress is inappropriate and has no merit. (In the Opposition, Plaintiff concedes his cause of action for NIED is subsumed within the Negligence claim.) Standard of Review CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 05/14/18 ‐ 7 ‐ “The motion for summary ...

Excerpt: ...ations; (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; (6) fraud; and (7) slander of title. Defendant demurrers pursuant to Code of Civil Procedure § 430.10(e) to each cause of action. Request for Judicial Notice Defendant requests Judicial Notice of several Contra Costa County Recorder Documents. This Request is unopposed. The Cour...

Excerpt: ...es to the First Amended Complaint (“FAC”) filed by Plaintiff Ali Rezapour (“Plaintiff” or “Rezapour”). The FAC pleads causes of action for (1) declaratory judgment; (2) statutory violations; (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; (6) fraud; and (7) slander of title. Defendants demurrer pursuant to Code of Civil Pr...

Excerpt: ...f Civil Code § 2923.7; (4) violation of Civil Code § 2923.12; (5) violation of Civil Code § 2937; and (6) unfair business practices. Defendant demurs pursuant to Code of Civil Proc. § 430.10(e) and (f) on several grounds. For the following reasons, the Demurrer is sustained, with leave to amend. With respect to the second cause of action, Plaintiff may wish to consider whether to amend in light of prevailing authority which holds that “[w]h...

Excerpt: ...uant to Code of Civil Procedure § 437c. The MSA relates to five of the thirty causes of action of Plaintiff David Wong, M.D. (“Dr. Wong”) and Plaintiff San Ramon Endoscopy Center, Inc. (“SREC”) (collectively, “Plaintiffs”)'s Third Amended Complaint (“TAC”). For the following reasons, the MSA is granted‐in‐part and denied‐in‐part. A motion for summary adjudication may be granted only if it “completely disposes of a cause...

Excerpt: ...ther nurses in the same or similar locality and under similar circumstances (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215) and (2) Antioch has shown that it was not responsible for causing Plaintiff's injury (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132). Both grounds are highly disputed. STANDARD OF CARE Both parties have produced expert nursing witnesses on this issue. Antioch relies on the expert declaration of Julie Baird, ...

Excerpt: ...ch 27, 2018 and the hearing was set for May 10, 2018. Defendant has represented in his reply that the court clerk set the hearing date for this motion, which is the common practices of our court clerks. In addition, even if Defendant had requested the May 10, 2018 date the Court can still decide the merits of the motion. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1296.) Plaintiff has sued “Defendant, JASON KRISTAL, c/o REDWO...

Excerpt: ...‐ Punitive damages are available when a defendant acts with “oppression, fraud or malice” when breaching an obligation owed to a plaintiff. See Civil Code Section 3294(a). Malice includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others.” See Civil Code Section 3294(c)(1). Oppression is defined as “despicable conduct that subjects a person to cruel and u...

Excerpt: ...been received and that the judgment is subject to amendment to add such costs once they have been approved by the court. This would occur by operation of law if no motion to tax costs was timely filed by Plaintiff or after order of the court following the hearing on a motion to tax costs. Here a motion to tax costs was timely filed. Defendant prematurely filed his memorandum of costs prior to service of the notice of entry of judgment. Plaintiff ...

Excerpt: ...A COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 05/10/18 ‐ 24 ‐ Here, by verified petition and declarations, Petitioners allege a demand was made to inspect and copy the records of Respondent, The Sikh Center of the San Francisco Bay Area, “for a purpose reasonably related to such person's interest as members.” By way of letter in December 2017, Petitioners requested from Respondent Lally, in her capacity as presi...

Excerpt: ... the Court has considered its contents. For reasons stated below, the Petition is denied. Relevant Factual And Procedural Background Plaintiffs are former employees of Defendants and on February 1, 2018, Plaintiffs filed their Complaint against Defendants alleging sixteen causes of action such as race and age discrimination, wrongful termination, and non‐payment of wages. Defendants contend that prior to commencement of their employment with De...

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

Excerpt: ...��Oduah”). The SAC pleads causes of action for (1) breach of contract; (2) promissory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) fraud; (7) violation of Bus. & Prof. Code § 17200 et seq.; (8) quiet title; and (9) declaratory relief. The Court notes that the Plaintiff has filed a “Notice of Partial Tent...

Excerpt: ...on references certain settlement discussions. Ted objects on the ground that such discussions are inadmissible under Evidence Code section 1152. That section, however, “has no application where the evidence is not tendered as an admission of weakness by the party who settled or offered to settle, but for some other purpose.” (Lemer v. Boise Cascade (1980) 107 Cal. App. 3d 1, 9.) And as another court flatly proclaimed, “[c]ommunications made...

Excerpt: ...E: 04/30/18 ‐ 9 ‐ recorded the lis pendens cannot establish the “probable validity” of the real property claim by a preponderance of the evidence. [CCP § 405.32] (See Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1017.) “Probable validity” of the claim for purposes of avoiding expungement means that it is more likely than not that the party who asserted the real property claim will obtain a judgment on the claim in his or her...

Excerpt: ...osta County (the “County”). For the reasons stated below, the Motion is granted without leave to amend. Code of Civil Procedure (“CCP”) section 436 permits the court to “strike out any irrelevant, false, or improper matter inserted in any pleading.” For a prayer for punitive damages to be valid, some basis for punitive damages must be pleaded. (Clauson v. Superior Court (1988) 67 CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPART...

Excerpt: ...rvice on behalf of a party. On March 16, 2018, Petitioners filed another proof of service by notice and acknowledgment under Code of Civil Procedure section 415.30, which did not rectify the problem. Nothing new has been filed CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 04/30/18 ‐ 6 ‐ since that time. Perhaps petitioner believed that the Court did not have the March 16, 2018 filing and that it remedied the pr...

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

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

Excerpt: ...l” HBOR violation; despite any frustration plaintiff may have experienced in dealing with multiple loan officers, plaintiff did succeed in having a series of applications for a loan modification considered by defendant. Also, plaintiff improperly conflates the procedural requirements of HBOR with the substantive decision of whether to offer plaintiff a loan modification; denying an application for a loan application based on a rationale that th...

Excerpt: ...ame parties bars Plaintiff's complaint and (2) Plaintiff's complaint is uncertain. In Defendant's memorandum of points and authorities Defendant also argues that Plaintiff's claim fails to state a cause of action. That ground was not included in the demurrer and will not be considered by the Court at this time. Res Judicata Defendant argues that Plaintiff's complaint is barred by res judicata because there was a final judgment on the merits in a ...

Excerpt: ...C”) appears to meet the definition in Article XIII, Section 3, which requires vessels of more than 50 tons' burden. That is alleged. (SAC, paragraph 12) Article XIII, Section 3 also requires that the vessels be “engaged in the transportation of freight or passengers.” That is also alleged, as the courts have interpreted that phrase. The phrase has been interpreted to mean that a vessel must be carrying goods that someone is paying to be tra...

Excerpt: ...pplicable to public entities. See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132. The first and second causes of action are both negligence claims pled against Doe Defendants. On the dangerous condition of public property claim, the City moves for summary judgment on four (4) grounds: (1) Plaintiff has no evidence that the City of Antioch created the dangero...

Excerpt: ...use plaintiff has dismissed this lawsuit with prejudice. Plaintiff argues that the lis pendens should not be expunged because the case needs to be reactivated due to defendant's breach of some unspecified stipulation. In pertinent part, Code of Civil Procedure section 405.30 provides as follows: “At any time after notice of pendency of action has been recorded, any party . . . may apply to the court in which the action is pending to expunge the...

Excerpt: ...ts ought to be stricken, because the Court is without authority to issue a writ directing any relief to such unidentified general assistance recipients. Third, the County contends that portions of the prayer for relief ought to be stricken, tracking the arguments made above. Sixth Cause of Action The motion is denied as to the sixth cause of action. If the County wished to argue that the entire sixth cause of action is legally defective, the appr...

Excerpt: ...Code section 13559, which states, 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 f...

Excerpt: ...et aside its order that cause existed to for dismissing Petitioner, that Petitioner's disability was not a convincing defense against the charges and that the prior discipline laid a solid foundation for dismissal. The Court has reviewed the petition, the administrative record, Bacon's declaration in support of the petition, as well as, the parties memoranda for and against granting the petition. For the reasons explained below, the petition for ...

Excerpt: ...process. Accordingly, the defaults are void, and must be set aside. (Code Civ. Proc., § 473, subd. (d).) The Court finds the supporting declarations more persuasive than the proofs of service, because defendants have at all pertinent times been represented by counsel and have otherwise vigorously pursued their legal rights. The Court finds it highly implausible that defendants, if they had been served with the First Amended Complaint, would have...

Excerpt: ... what are the parties' current positions related to the motion to enforce judgment. In addition, the Court notes that recently some of the parties have been submitting documents to this Court where it is not clear whether all parties were served with a copy of that document. This practice must not continue. Whether in a court filing or letter submitted to this Court, all parties must provide a copy of any and all such documents to all other parti...

Excerpt: ...rial in the disposition of the MSA. See CCP § 437c(q). Here, there were none. Request for Judicial Notice Firouzian requests judicial notice of a Contra Costa County Recorder document as well as several pleadings from this action. The Request is unopposed. The request is granted as to the Notice of Completion filed with the County Recorder and otherwise denied. Evid. Code §§ 452, 453. The Court need not take judicial notice of its own records....

Excerpt: ...h's request for judicial notice is granted. Defendant shall file an answer on or before April 19, 2018. Leave to amend is denied at this time. However, this aspect of the Court's ruling shall not prejudice plaintiffs' right to timely file a motion for leave to amend, should discovery or further investigation reveal new facts that would support the eliminated causes of action. The legal basis for this ruling is as follows. 1st C/A (Breach of Contr...

Excerpt: ...ion to ignore the Court's order, thus receiving the benefit of the preliminary injunction without the corresponding burden. Plaintiffs' counsel is admonished that such procedural gamesmanship may be punished by sanctions in future proceedings. The preliminary injunction, issued on February 7, 2018, is hereby immediately dissolved. Defendants are now free to pursue nonjudicial foreclosure proceedings against plaintiffs' residence as and when they ...