Excerpt: ...ment interest is an element of damages, not of costs. Hence, absent a stipulation like the one applicable to Line 3, a request for an award of prejudgment interest should be presented either before judgment is entered, or by way of a new trial motion. North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824. Even if the procedural problem is ignored (and no party has raised it), the motion is substantively unmeritorious. On a tort claim, ...

Excerpt: ...k of personal jurisdiction. It did make a motion to dismiss Eaves 1 for forum non conveniens. After discovery and a second round of briefing, the Court denied that motion on October 20, 2016. Shell made no such motion in Eaves 2. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 17 HEARING DATE: 04/26/18 ‐ 2 ‐ Shell answered Eaves 1 on October 27, 2016 and Eaves 2 on May 30, 2017. In doing so, it entered a general appearance. By en...

Excerpt: ...olving adjudication of complex issues of legal and beneficial title to property.” (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 394.) The Court has denied plaintiffs' motion because this civil action does not involve such issues. The First, Fifth and Sixth Causes of Action are based on alleged irregularities in the service and posting of the notice of trustee's sale. (See Complaint, ¶¶ 29‐31.) Plaintiffs acknowledge in their opening ...

Excerpt: ...r. Gordon and his Trust”). For reasons stated below, the Motion to Strike is granted, the Demurrer is overruled, and the MJOP is denied in part, and granted in part. Relevant Factual And Procedural Background This is a personal injury‐premises liability case. Plaintiff, Konstantinos Sakellariou (“Plaintiff”), alleges that he was injured at a property owned, operated, and maintained by the defendants in this matter. The following facts wer...

Excerpt: ...'s parents“ refused to have their son apologize or take responsibility for a dreadful decision.” (2) The portion of the Instagram post where Defendant stated that N.Y.'s parents “refused to have their son apologize/take responsibility for a poor decision.” All other alleged defamatory statements are stricken from the complaint. Legal Standard “Resolution of an anti‐SLAPP motion [or special motion to strike] involves two steps. First, ...

Excerpt: ...court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means ex...

Excerpt: ...uding during trial. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) “The rule of liberality is particularly important where, as in the present case, an amendment is sought to an answer.” (Dunzweiler v. Superior Court of Alameda County (1968) 267 Cal.App.2d 569, 576 (defendant permitted to plead plaintiff's negligence). Plaintiffs argue they will be prejudiced if the amendment is allowed because vehicle inspections, depositions, and a med...

Excerpt: ...ors' good faith motion. See Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4th 1550, 1561, fn. 5 (“The amount of discovery – if any – to be allowed and the scope of the good faith settlement proceeding rests in the sound discretion of the trial court.”); City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1265 (appropriate for “the objecting nonsettlor to move for a continuance of the hearing, if necessary, for t...

Excerpt: ...ne was negotiating with State Farm, who advised him that while it represented Bravos, it could not accept service on his behalf. State Farm specifically requested that it be notified when the cross‐complaint was served, or before seeking entry of a default. Eventually, Romdhane obtained an order permitting service by publication. On October 13, 2017, however, Romdhane managed to personally serve Bravos, according to a proof of service dated Oct...

Excerpt: ...ference that “both sides had agreed to a jury trial. I did not know that my demand was sufficient to secure my rights, and the whole proceeding was conducted so quickly that I did not think to ask the court about the issue.” There is some apparent miswording in the declaration, i.e., the discussion was that both sides had agreed to a court trial, and presumably Ms. Longmire means that she did not know that her demand was insufficient to secur...

Excerpt: ...ender, rested on Rad's debt to the HOA for failure to pay HOA assessments. Spinnaker thereafter obtained the present California judgment on sister‐state judgment, pursuant to Code of Civil Procedure § 1710.25. Defendant Rad now moves to vacate the judgment pursuant to Code of Civil Procedure § 1740. The motion is granted. Venue As the last, most cursory item in his motion, Rad states that Contra Costa County is the improper venue for the judg...

Excerpt: ...t last fall. Plaintiff/cross‐defendant Korb filed a demurrer to it. On December 15, 2017 the Court took that demurrer off‐calendar because Romero had responded by proposing to amend his pleading in response to what he said were “good points” made by his opponent. The Court granted Romero leave to file his First Amended Cross‐Complaint by January 15, 2018, and expressly directed the parties to meet and confer before that filing in the ho...

Excerpt: ...� 6 ‐ motion for leave to amend the complaint to correct typographical errors and to add two causes of action—Declaratory Relief and Injunctive Relief. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may …, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading…” Code of Civil Procedure § 473. Judicial policy favor...

Excerpt: ...Code of Civil Procedure § 430.10(e).) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 04/20/18 ‐ 9 ‐ The SAC alleges or can reasonably be construed to allege the following. The plaintiffs and the lead defendant, Gerald Knopoff, are siblings, the children of Leon Knopoff. When Leon died, the children were left $7 million in a trust. But when the trustee, Gerald Knopoff, distributed the funds, each child received ...

Excerpt: ...or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. In addition, “[a] party seeking reconsideration also must provide a satis...

Excerpt: ...e addressed at the same time in the motions and demurrers. The defendants raise several arguments in their demurrer. First, defendants argue that plaintiff lacks standing. “In general terms, in order to have standing, the plaintiff must be able to allege injury—that is, some ‘invasion of the plaintiff's legally protected interests.' (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 862, p. 320; see Code Civ. Proc., § 367 [‘Every ...

Excerpt: ...The Crawford decision does not hold otherwise. That decision addressed “issues concerning the contractual duty to defend in a noninsurance context [italics in original].” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547.) Footnote 12 of the decision states that the issue of contractual liability for defense costs, as raised in a general contractor's cross‐complaints against subcontractors during construction litigation that...

Excerpt: ...ld otherwise. That decision addressed “issues concerning the contractual duty to defend in a noninsurance context [italics in original].” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547.) Footnote 12 of the decision states that the issue of contractual liability for defense costs, as raised in a general contractor's cross‐complaints against subcontractors during construction litigation that has not been concluded, may be d...

Excerpt: ...awford decision does not hold otherwise. That decision addressed “issues concerning the contractual duty to defend in a noninsurance context [italics in original].” (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 547.) Footnote 12 of the decision states that the issue of contractual liability for defense costs, as raised in a general contractor's cross‐complaints against subcontractors during construction litigation that has n...

Excerpt: ...n it, examined the allegations of the FAC, not the allegations of the original complaint. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/19/18 ‐ 9 ‐ Second Cause of Action, Intentional Misrepresentation: The demurrer to this cause of action is overruled. In challenging this cause of action, defendant cites the rule that fraud must be pleaded specifically and argues the FAC is insufficiently specific in explai...

Excerpt: ...y false and/or intentionally misleading fact allegations relating to Plaintiff's failure to exhaust his administrative remedies.” (Def. Memo of P & A, 2:5‐6.) Defendants contend the complaint falsely alleges that Plaintiff exhausted his administrative remedies necessary to maintain a FEHA claim. “‘Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH.' [Citation.] Exha...

Excerpt: ...a Dang, D.D.S. (“Dr. Dang”) at the time she passed away. Plaintiffs move pursuant to Code of Civil Procedure (“CCP”) section 425.13, which governs the amendment of complaints to include claims for punitive damages against health care providers: In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court ent...

Excerpt: ...sses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby.” Here, the principal arguments for bifurcating the issue of causation are (a) economy and efficiency, and (b) the ends of justice. Typically, when considering economy and efficiency, the Court is best informed by a detailed showing of how bifurcation will save trial time; viz. a list of which witnesses will testify in a bifurcated tria...

Excerpt: ...�litigation procedures apply to each of the homes, and no opposition has been presented on that point. The motion does not provide the Court with a sense of how long the pre‐litigation process will take. The Court sets a case management conference for July 16, 2018, at 8:30 a.m. On or before July 11, 2018, the parties shall file a joint case management statement (a manuscript statement; do not use the Judicial Council form). That case managemen...

Excerpt: ...ief of no more than 10 pages and any additional evidence on or before June 28. Defendants may each file and serve a supplemental brief of no more than 10 pages and any additional evidence on or before July 12, 2018. Thereafter the Court will hold a hearing on whether plaintiff has shown a probability of prevailing on the merits of its claims against the defendants. Plaintiff sued various defendants, including attorneys Mark Lapham and Owen Mascot...

Excerpt: ... heirs, as well as heirs making individual claims. In this motion, Defendants Synthes, Inc. and Norian Corporation seek summary adjudication of plaintiffs' claims for elder abuse, violation of the Unfair Competition Law (UCL), conspiracy, and negligence per se, as well as plaintiffs' plea for attorney's fees. II. Motions for Summary Adjudication A. Standards on Summary Judgment/Adjudication A motion for summary judgment/adjudication “shall be g...

Excerpt: ...ismissal was not in fact caused by the attorney's mistake, inadvertence, surprise or neglect.” In this instance, counsel fails to set forth any basis upon which, had he appeared at the hearing, a further extension of the deadline for service of a complaint filed January 9, 2017, would have been granted, given that a previous extension had been allowed. Plaintiff may appear (by telephone through Court Call) to address this issue ...

Excerpt: ...idable.” (Complaint, Par. 11.) The sole named defendant in the action is Alvernaz Partners, LLC, which purchased the property at the trustee's sale, but against whom plaintiff alleges no wrongful conduct. Plaintiff recorded a lis pendens. Alvernaz moves to expunge the lis pendens on the grounds that (1) it is invalid because plaintiff did not serve it on Alvernaz; and (2) plaintiff cannot show a probability of prevailing on the merits of the ac...

Excerpt: ... motion could have been filed at that time), it did respond (about a month late), and the parties engaged in some meet and confer efforts, which resulted in supplemental responses. While Sentinel may consider the responses to be wholly inadequate, especially given the provision in the statute that objections are waived by a failure to respond in a timely manner, the local rule exempts from the Discovery Facilitator Program only those circumstance...

Excerpt: ...ce. Given that, whether counsel for Bank of America's statement with respect to receiving the subpoena by mail is hearsay is immaterial. Second, Bank of America's contention that plaintiff has no cause of action, and specifically that whether Ms. Smith had authority to sign the documents is legally immaterial is not properly raised as an objection to discovery. The cases relied on by Bank of America concern circumstances where the court itself de...

Excerpt: ...p.4th 566, 604.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 04/16/18 ‐ 3 ‐ In this instance, Mr. Luria has not complied with the Court's January 9, 2018, order, either by submitting code‐complaint responses or paying the sanction award. (The Court notes that while Mr. Luria stated that he no longer has possession or control of certain documents, that statement, by itself is not sufficient. Code of Civil Pr...

Excerpt: ...s plaintiff wishes to plead have been known all along, so there is no prejudice. Prejudice requires more than the additional costs of defending against new facts and theories. (See Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1109 (Prejudice does not mean a result which is unfavorable, it means a result which is unfair); Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 75 (“To be sure without the amendment he might have won his lawsuit; with it,...

Excerpt: ...ssal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiffs' counsel for approval as to form. The basis for the Court's ruling is as follows. A. Request for Judicial Notice. Defendant seeks judicial notice of the recorded deed of trust and assignment of deed of trust. This unopposed request is granted. (See, Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752‐761.) B. Individual Cau...

Excerpt: ...e BHGRE's present claim. Plaintiff Wells Fargo obtained a default judgment in this case against defendant Mason‐McDuffie in the amount of $54,420.68. Wells Fargo seeks to collect that judgment by levying on MasonMcDuffie's bank account at Union Bank. BHGRE, however, asserts in this motion that it has a superior right to the funds. It points out that nearly all the funds in the account come from an insurer's refund to Mason‐McDuffie of an over...

Excerpt: ... of several county recorder documents. This request is unopposed. The request is granted. Evid. Code §§ 452, 453. Setting Aside the Foreclosure Sale “A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender.” Moeller v. Lien (1994) 25 Cal.App.4th 822, 831. “As a general rule, a trustee's sale is complete upon acceptance of the final bid.” Nguyen v. Calhoun (2003) 105 Cal...

Excerpt: ...rnal failure. Defendant Sears Roebuck and Co. distributed the freezer and obtained it from defendant Midea. CSAA brings causes of action against Midea for strict liability, negligence, and breach of warranty. Midea moves for summary judgment on the basis that no evidence shows that a defect in the freezer in fact caused the fire. It also seeks to dispose of the breach of warranty claim based upon a lack of privity between it and CSAA's insured, M...

Excerpt: ...hich relief may be granted” is a procedural label used in federal court, not California court. The state‐court equivalents are a demurrer, or a motion for judgment on the pleadings (MJOP). (See Code of Civil Procedure §§430.10, 438.) Because defendant has filed a document captioned “Answer” (about which more shortly), the Court treats this as an MJOP. Second: The miscaptioning of defendant's motion is of little consequence to the outcom...

Excerpt: ... position to be able to do. Parish is no longer an employee of defendant District. Moreover, although defendant is understandably reticent concerning the circumstances as to the termination of Parish's employment, it is not difficult to infer (from the administrative leave that preceded the termination) that Parish may have left the District on less than friendly terms. Plaintiffs make no effort to explain how the District is supposed to be able ...

Excerpt: ...�employee) to engage defendant Rana as a broker to negotiate the Thekkeks' purchase of a 49% interest in Corona from the Ferrers. Having discussed the deal with the Ferrers, Rana engaged his long‐time attorney Sandbank to draft the deal documents. Then in 2014, Singh and Rana negotiated to buy the Thekkeks' interest in Corona. Again Rana arranged for Sandbank to draft the deal documents. The gist of the present lawsuit is the Thekkeks' allegati...

Excerpt: ...t 1:10 with Motion to Vacate filed 2/2/18 at 1:15.) Neither of these, however, is supported by any evidence or testimony under oath. A plaintiff seeking to vacate a default judgment on grounds such as these has both statutory and non‐statutory remedies. The former include remedies under Code of Civil Procedure §§ 473(b),(d) and 473.5. The nonstatutory remedy includes a suit in equity or a motion based on a claim of extrinsic fraud or mistake....

Excerpt: ...gh May, 2017 when her position was eliminated. She brings six claims related to her termination: 1) disability discrimination; 2) failure to accommodate a disability; 3) failure to engage in the good faith interactive process; 4) retaliation; 5) failure to pay wages due upon termination; and 6) wrongful termination. At the time of her hiring, plaintiff executed a document entitled the “Working Agreement” (Agreement). This 11‐page document i...

Excerpt: ...t, rule 3.1110, subd. (f); Local 3.42, subd. (3).) Plaintiffs' attorneys, who practice in the law firm CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 13 ‐ JT Legal Group, APC, are hereby admonished that future failures to tab exhibits in this or other cases may result in an award of monetary sanctions, the disregard of non‐conforming documents, or both. 1. Irreparable Harm. In February 2018, defenda...

Excerpt: ...stee's sale, and the Ninth Cause of Action, for quiet title. These causes of action lack merit because plaintiff has failed to allege a tender of the sums due under the subject note and deed of trust, and has failed to allege facts showing a valid exception to the rule requiring CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 12 ‐ tender. (See, Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439 [the ten...

Excerpt: ...er Decl., ¶ 21 a, b, d, e, f; Pltf's Ex. 10, p. 151.) Telecare argues it is entitled to summary judgment for three reasons: (1) plaintiff's action against it is barred by the statute of limitations; (2) plaintiff cannot establish it was negligent; and (3) plaintiff cannot establish that any negligence by Telecare caused her injuries. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/12/18 ‐ 4 ‐ 1. Statute of li...

Excerpt: ... may “deny leave when the proposed amendment or amended pleading is insufficient to state a cause of action or defense.” (Congleton v. Nat'l Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 62.) The Court notes a trial date of July 16, 2018, continued upon stipulation of the parties from November 22, 2017. While this motion for leave to amend is not brought on the “eve” of trial, discovery has been closed. The City also has a pending mot...

Excerpt: ...est the granting of Plaintiffs' motion then that party should follow the normal rules for contesting a tentative ruling. Although not raised by the parties, the Court notes that the moving party on this motion failed to comply with all the requirements in California Rules of Court, Rule 3.1324. The parties should comply with this rule, as well as all Rules of Court, at all times. There is “a policy of great liberality in permitting amendments t...

Excerpt: ...e of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a crosscomplaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross‐complaint...

Excerpt: ...s facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. Rule 2.550(d). In addition, the mot...

Excerpt: ...'s motion for attorney fees for the special motion to strike filed against the Original Complaint; (2) 7 Stars Holistic Foundation, Inc. and Zeaad Handoush's motion for attorney fees for both its special motions to strike; (3) Antwon Cloird's motion for attorney fees for the special motion to strike the Original Complaint and (4) Richmond Patient's Group, William Koziol, Darrin Parle, Alexis Parle, and Cesar Zepeda's motion for attorney fees for ...

Excerpt: ...murrer. The Demurrer is opposed (filed as an “Answer” to Defendant's Demurrer) by plaintiffs, in pro per, Greg and Ramona Mayon (collectively “Plaintiffs”). Defendant replied. For the reasons stated below, Defendant's Demurrer is overruled. Defendant shall file an answer on or before April 27, 2018. Brief Factual and Procedural Background Defendant is the landlord and owner of the mobilehome park where Plaintiffs reside. Generally, Plaint...