Excerpt: ...ty. The underlying claim arises from a prior case, in which James and Christine Dean sued Abacus Financial Group. At one point during that matter, Ms. Hinchman allegedly signed a declaration drafted by the Dean's counsel, Zelis. Amado claims that this violated various duties toward him and Abacus Financial. He issued subpoenas to Christine Dean and Zelis seeking information concerning the declaration, and the draft declaration itself. The matter ...

Excerpt: ...ase real property. Plaintiff alleges that she has performed her obligations while Defendants have not. Plaintiff filed her complaint on June 23, 2017. On July 25, 2017, Defendant Sobayo, in pro per, filed answers on behalf of himself and his corporation, Kingsway. Plaintiff filed a motion to strike Defendants' separate answers and Defendant Sobayo's cross‐complaint. This Court denied the motion as it related to Defendant Sobayo individually, bu...

Excerpt: ...y the Cigna defendants with rigor, but it appears uncontested for purposes of this action that at least some Cigna entity is a health insurer, governed by the Knox‐Keene Act. ASH is Cigna's agent for claims administration. Diablo alleges that it has provided treatment for Cigna's insured patients, but that Cigna and ASH have underpaid Diablo. The FAC contains a number of listed causes of action, but for analytical purposes they may be grouped i...

Excerpt: ...s of $100,000 to $150,000. PLSCS characterizes the loans as “usurious, unconscionable, unfair, predatory, and fraudulent.” The only meat attempted to be placed on the bones of that string of pejorative adjectives, however, is the conclusory allegation that the loans charged interest rates in excess of what is lawfully allowed. 1st C/A‐Violation of California Civil Code § 1916.1 2nd C/A—Violation of Civil Code § 1916.2 At the outset, cro...

Excerpt: ...arties whether or not the amended complaint changes any allegations regarding all parties because an amended complaint generally supersedes the original complaint for all purposes. (See 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 6:688, p. 6‐193; State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) The court does not work with one complaint for the parties that choose to answer rather...

Excerpt: ... served as Levandowski's transactional attorney for roughly a decade and took part in many of the transactions that underlie Google's claims against Levandowski. Gardner filed a motion to quash the subpoena arguing that depositions of opposing counsel are presumptively invalid. The arbitration panel ultimately denied the motion. Standard of Review The Court first addresses the appropriate standard of review. Google contends that under Bak v. MCL ...

Excerpt: ...on Service (“Northern”). The motion is denied because a genuine issue of material fact exists regarding the amount Lyon owes on the policy. In relevant part, the policy agreement between SCIF and Lyon provides as follows: “E. The premium shown on the Declarations, schedules and endorsement is an estimate. The final premium will be determined after this policy ends by using the actual premium basis and the proper classifications, rates and r...

Excerpt: ...n Rodriguez was asked to address the following issue of statutory construction: whether Section 473(b)'s requirement that the “application for relief” be “in proper form” means verified discovery responses must be served with a motion for mandatory relief from a terminating sanction when that sanction was based on failure to respond to discovery. The Court answered, yes. An application for relief from a terminating discovery sanction is �...

Excerpt: ...at the pending motion for summary judgment may be treated as a motion for summary adjudication of the existing causes of action. Defendants have been put to the considerable expense of bringing the motion, and fairness demands that the motion be heard on its merits despite plaintiff's last‐ minute decision to try to amend his complaint. If, as the Court has tentatively decided, the motion for summary adjudication is granted, plaintiff shall omi...

Excerpt: ...tiff from pursuing the new legal theory set forth in the proposed Second Amended Complaint, but shall preclude plaintiff from pursuing the implied‐inlaw public easement theory. The Court rules as follows: Defendants Frederick Hill, Pamela Hill, Andrew Bassak and Rebecca Bassak's motion for summary adjudication is granted. A defendant meets its burden on a motion for summary adjudication by showing either that plaintiff's claims have no merit or...

Excerpt: ...y located at 2116, 2218, 2120, and 2122 Barrett Ave, Richmond, CA 94801 (the “Subject Property”). Plaintiff pleads thirteen causes of action relating to the circumstances of the money used to purchase the property as well as torts between the parties. Though styled as a “Motion for Restraining Orders and Preliminary Injunction,” the briefing appears to solely request a preliminary injunction. Furthermore, the Court notes this Department i...

Excerpt: ...T: 09 HEARING DATE: 03/14/18 ‐ 9 ‐ Defendants Gold Star Mortgage Financial Group and Ernesto Gomez's demurrer to the second cause of action is sustained with leave to amend. “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional ...

Excerpt: ...intiff is suing Defendants for (1) tortious breach of the implied warranty of habitability, (2) contractual breach of the implied warranty of habitability, (3) breach of contract, Civil Code §3300, et seq., (4) breach of quiet enjoyment, Civil Code §1927, (5) private nuisance, Civil Code §3501, et seq., (6) premises liability, Civil Code §1714, (7) retaliation, Civil Code §1942.5, (8) negligence, (9) constructive eviction, (10) retaliatory e...

Excerpt: ...al requested is $9,550 for 19.1 hours by Michael S. Burk (at $500 per hour), $29,980 for 82.8 hours of work by Emily Fowler (at $350 per hour), and $3,553.31 in CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/12/18 ‐ 8 ‐ costs. Plaintiff argues that the request is excessive because the hourly rates are too high and the hours include time spent on matters other than the Anti‐SLAPP motion. Plaintiff argues tha...

Excerpt: ...tentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship, and (5) resulting damage. See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. Subtronic previously demurred to this cause of action on two grounds: (1) elem...

Excerpt: ... as 10359 San Pablo Avenue in El Cerrito. The lease was renewed in 2009. In 2014, the Wongs attempted to evict Ms. Tan for failure to pay the rent in September and October. They filed an action, Wong v. Tan (Contra Costa Superior Court Case No. RS14‐ 1020.) Defendant Tan successfully defended that action. On March 18, 2016, the Wongs filed another unlawful detainer, Contra Costa Superior Court Case No. RS16‐0235. (See Defendant's RJN, Ex. B.)...

Excerpt: ...Court to undertake a two‐step analysis. First, the Court must determine if the conduct Dr. Braunstein allegedly engaged in is activity protected by section 425.16. If the Court answers that question in the negative, the analysis stops and the motion must be denied. If the Court answers that question affirmatively, the Court must then analyze Karkanen's probability of prevailing on the merits. Navellier v. Sletten (2002) 29 Cal.4th 82, 88‐89; ...

Excerpt: ...es, 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 finds that the departme...

Excerpt: ...here there is more than one appellate court decision, and such appellate decisions are in conflict,” the inferior tribunal “can and must make a choice between the conflicting decisions.”). WCA2 contends the Court ought to follow the Fifth District Court of Appeal's decision in Esparza v. KS Indus., L.P. (2017) 13 Cal.App.5th 1228 (“Esparza”). Opposing the Motion, plaintiff Landen Ely (“Ely”) contends the Court ought to follow the Fo...

Excerpt: ... by matters that can be judicially noticed. [Citations.] [Citation.]' [Citation.]” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/01/18 ‐ 2 ‐ This action arises out of a motor vehicle accident that occurred on or about May 25, 2014. Plaintiff Andrew Mark Robinson was injured when his ...

Excerpt: ...ce set for April 17, 2018 is off calendar. It appears that none of the parties are arguing that the fee motions should be stayed pending the appeal by 7 Stars Holistic Foundation, Inc. and Zeaad Handoush. If any party plans to argue that one or more of the pending attorneys' fees motions should be stayed pending appeal that party shall file and serve a motion to stay on or before March 16, 2018. The hearing on any such motion shall be on April 12...

Excerpt: ... alleges that defendant “negligently . . . continued to apply vacuum extraction (VE) . . . . after three failed attempts; continued to apply VE for more than 10 minutes; used forceps after multiple failed VE attempts; failed to follow protocol regarding the use of VE and use of forceps; failed to perform CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/01/18 ‐ 5 ‐ an episiotomy; failed to adequately monitor t...

Excerpt: ...d Parties”). The demurrer is opposed by cross‐complainant Cherokee Simeon Venture I, LLC (“CSV”). The requests for judicial notice are granted. The demurrer is overruled. The Cherokee Fund Parties shall file an answer on or before March 16, 2018. The Court finds that the two causes of action stated against the Cherokee Fund Parties are not barred by res judicata. (See, Wells Fargo Bank, N.A. v. Weinberg (2014) 227 Cal.App.4th 1, 7.) Also,...

Excerpt: ...alleges that Defendant has a Maintenance, Operations and Transportation Department, which is overseen by an assistant superintendent, and that this department is located in San Ramon while Defendant's headquarters are in located in Danville. (FAC ¶8.) In addition, the department has four divisions, including one for transportation, and each division is headed by a director. (FAC ¶8.) The transportation division has 70 school buses, 15 vans, and...

Excerpt: ...and fair dealing, and (7) promissory estoppel against Defendants. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 02/28/18 ‐ 6 ‐ The Demurrer is sustained, with leave to amend. Code of Civil Procedure (“CCP”) § 411.35 requires a party bringing a complaint arising out of professional negligence against an engineer to file and serve a certificate of merit on or before the date the complaint or cross‐complain...

Excerpt: ... interest supporting the request and the substantial probability of prejudice without the sealing, and 2. A substantial probability that the interest will be prejudiced without the sealing. Moreover, Defendant has failed to show that less restrictive means would be ineffective. ...

Excerpt: ...extent that the motion may be treated as a motion to reconsider under Code of Civil Procedure section 1008, it is untimely. 2. TIME: 9:00 CASE#: MSC16‐01293 CASE NAME: SCHORNO VS. GANN‐DESIMONE HEARING ON MOTION FOR REQUESTING CHANGE OF CCC JUDGE, VENUE OR DISMISSAL / FILED BY NANCY S. GANN‐DESIMONE * TENTATIVE RULING: * Defendant's motion Requesting Change of CCC Judge, or Change of Venue, or Dismissal of Case” is denied. To the extent t...

Excerpt: ... the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone. Corkland v. Boscoe (1984) 156 Cal.App.3d 989. A court's power to make factual determinations under Code of Civil Procedure § 664.6 (entry of judgment pursuant...

Excerpt: ...c Redacted Version”. A great deal of it – whole pages at a time – is simply blacked out. Moreover, from what can be read in the moving papers, it appears that Jacobs bases his motion principally on the declaration of his expert, Dr. Bickler. But the Bickler declaration has not been filed at all – not even in a “public redacted version”. It just plain isn't there. It's not in the court file, and there is no indication in the computer t...

Excerpt: ...e had not carried its burden on the element of causation sufficient to warrant a grant of summary judgment. The Court's prior tentative ruling focused on the fact that both the pedestrian and the driver had stated that there were no obstructions to their views. At argument, however, plaintiff persuasively pointed out that the evidence on which the Court relied concerned visibility to the crosswalk itself, but did not address the issue of whether ...

Excerpt: ...m, for documents relating to two other identified potential buyers of the property, and the reasons why those sales did not go through. Plaintiffs reason that there may be relevant information in the documents concerning knowledge or disclosure of the alleged problems with the property. Plaintiffs acknowledge that they did not serve any Notice to Consumer on the putative buyers under Code of Civil Procedure § 1985.3. They state conclusorily that...

Excerpt: ...nal service was required. (Id., subd. (d).) Plaintiff attempted to serve defendant with a statement of damages on October 2, 2017. (Dudensing Dec., Exh. “F”.) However, this attempted service was made at a Green Street address in San Francisco, and defendant alleges that he has at all pertinent times resided at a Taraval Street address. (Byrd Dec., ¶ 1.) Further, plaintiff took defendant's default only three days later, on October 5, 2017, an...

Excerpt: ...nguage. Further, the opposing parties have not demonstrated prejudice. Travelers filed and served a notice of lien almost 11 months ago, on March 30, 2017. The need to litigate or compromise this lien was obvious long before plaintiff and defendants entered into their settlement agreement. Also, the opposing parties do not explain why litigating the lien in a separate action would somehow be more efficient than litigating the lien in this action....

Excerpt: ...e, or neglect” caused him to fail to respond to the Order to Show Cause that resulted in the dismissal of the case. Indeed, the declaration neither uses the words “mistake,” “inadvertence,” “surprise” or “neglect;” nor does it express any thoughts that could be construed as any of those things. ...

Excerpt: ...Bulleri”) and defendant Dominator, Inc. (“Dominator”) entered into a contract whereby Dominator was to restore the Polara. Needless to say, a dispute arose, the details of which it is not necessary to recount here. Vencill Mediation and Decision Following protracted litigation, the parties mediated this matter before William C. Vencill. The parties had stipulated that Mr. Vencill's determination would be a final resolution of this dispute; ...

Excerpt: ... March 24, 2015, plaintiff Veronica Wang was a pedestrian crossing the bottom of the Highway 24 cloverleaf offramp in a marked crosswalk. (The moving papers identify it as the exit from eastbound 24, but cursory examination shows it to be the exit from from westbound 24. The detail is not material.) She was struck and injured by defendant Yvonne Pope‐Lane, who was a driver exiting Highway 24 onto northbound Pleasant Hill Road. As relevant here,...

Excerpt: ...ued discovery subpoenas that intrude into the protected private sphere of Plaintiff and her children. Specifically, the Motion seeks to quash subpoenas issued by Defendants on the Employment Development Department (“EDD”), the financial aid departments of UC Berkeley and CSU San Diego, Covered California, and California's Department of Health Care Services. For reasons explained below, the Motion is granted. Legal Standard Code of Civil Proce...

Excerpt: ...fendants' request for judicial notice is granted in part. The Court takes judicial notice of Exhibits “B” through “F”, documents on file in this action. The Court does not take judicial notice of Exhibit “A”, because the subject building permit is not dispositive of any cause of action. 1st and 2nd C/As (Fraud). The motion is granted without leave to amend as to the First and Second Causes of Action for fraud and deceit. Plaintiffs ha...

Excerpt: ...Lincoln Prop. Co., N.C., Inc. v. Travelers Indem. Co. (2006) 137 Cal.App.4th 905, 916. Further, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” Kittredge Sports Co. v. Super. Ct. (1989) 213 Cal.App.3d 1045, 1048. The opposition argues that the proposed first amended cross‐complaint (“1ACC”) is a sham pleading. It generally avers that this is so because the 1AC...

Excerpt: ... 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 against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38...

Excerpt: ...motion to dissolve the preliminary injunction, once defendants have made a general appearance. Defendants were served with process, and with the moving papers, through corporate agents for service on January 9 and 10, 2018. This gave defendants only four days more than the bare minimum of 16 court days' notice. As a practical matter, defendants have likely not had adequate time to retain counsel and prepare timely opposition papers. Second, the C...

Excerpt: ...y relief and the second cause of action to set aside the default judgment due to extrinsic fraud is granted. This court has previously examined the issue of the propriety of substitute service on Plaintiff in the early stages of this case, on demurrer. The court was restrained by the demurrer rules, which compelled this court to accept all allegations in the complaint as true. See Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The complaint alleged t...

Excerpt: ...n affirmative defense in the Answer to the Complaint. The issue of whether there is an entitlement to precondemnation damages is an issue to be determined by the court before the jury determines the issue of compensation. Therefore, the appropriate procedure is to bifurcate the trial. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 897‐898; see also City of Perris v. Stamper (2016) 1 Cal.5th 576, 594.) If the parties accept this ruling, t...

Excerpt: ..., responses were due on 12/22/17 and less than a week later, the Motion was filed. Responses with objection were served on 1/3/18, and without objection on 1/18/18, followed by verifications on 1/25/18. Discovery disputes where further responses are requested are required by Local Rule 3.300 to be submitted to a Discovery Facilitator. Rather than require Defendants to comply with that Local Rule, file another motion, and participate in the Discov...

Excerpt: ...ge that “Cross‐Defendants['] breaches of fiduciary duty were done with malice, fraud or oppression toward the TRUST entitling the TRUST to an award of punitive damages according to proof at trial.” The motion to strike is denied. Punitive damages may only be awarded “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294(a).) As elaborated on below, the...

Excerpt: ...riate. (See, SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.) The Court finds defendants' detailed opposition declaration substantially more persuasive than plaintiffs' conclusory opening declaration. Further, plaintiffs' own opening declaration demonstrates that (1) plaintiffs came into default on their loan, and (2) plaintiffs' application for a loan modification was considered and denied. (Sioson Dec., ¶ 5 and ¶¶ ...

Excerpt: ... sanctions, it was improper and frivolous. (Defendant had previously sought reconsideration of one of the sanction awards, which was denied.) Moreover, although the ostensible basis of the motion to release lien was that the property was not owned by Defendant, but by Star Wars Revocable Living Trust, no evidence was submitted showing that the trust actually owns the property. Finally, if a sale of the property was recorded before the abstract of...

Excerpt: ...ty was valued at $2.8 million, that the property was to be an investment property, sold quickly, that Longmire would not reside there, and that Longmire's income was $21,000 per month or more. (Complaint ¶ 10.) These misrepresentations allegedly induced Plaintiff to loan Longmire and Roesner $1.85 million. (¶ 13.) The loan went into default, and Plaintiff acquired the property at a nonjudicial foreclosure sale. (¶ 15.) Plaintiff seeks damages ...

Excerpt: ...; (3) negligent failure to fulfill promise; (4) fraud; (5) negligent CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 02/05/18 ‐ 10 ‐ misrepresentation in loan modification; (6) violation of Bus. & Prof. Code § 17200 et seq.; (7) quiet title; (8) declaratory relief; and (9) injunctive relief. Defendant demurs pursuant to Code Civ. Proc. § 430.10(e) through (g) on several grounds. The Court notes that many of the...

Excerpt: ...dismissal of co‐defendant Special Default Services, Inc., which has filed a declaration of non‐monetary status. A. Procedural Problems. 1. The Moving Papers. There are several procedural problems with the moving papers filed on November 13, 2017. These include the following. First, defendant Trinity refers to evidence that has not been supplied to the Court. The separate statement refers to a “Declaration of Johnelle Gomez,” and various e...