Excerpt: ... merit. The Kuemeller Defendants' special motion to strike pursuant to CCP Section 425.16 is very similar to the special motion to strike made by Defendant Polizzis and their Trusts. The reason for this is obvious. The Kuemmeler Defendants are not alleged to have any personal criminal liability. (Cmplt, paragraph 24(a)) The Kuemmeler Trust owns 21.7% of the property at issue in the case, 389 South, in Alamo, California 94507. (Cmplt, paragraphs 7...

Excerpt: ...1771, 1778 n.3. Petitioner makes a number of arguments against the suspension order, most of them insubstantial. One of her attacks, however, has substance: DMV's lack of a showing that the officer administering the Draeger breath test was properly trained. Both parties agree that a Draeger test result is inadmissible in a DMV administrative per se (APS) hearing under Title 17 if the officer is not shown to have been properly trained. (The Court ...

Excerpt: ...he body of the complaint.) The next day, Plaintiff applied ex parte for a temporary restraining order. The Court (Judge Weil) heard the ex parte Application, granted the TRO, and entered an Order to Show Cause to show why a preliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. It is unclear whether anyone appeared to oppose the ex parte, but no written opposition was filed. For the following reasons t...

Excerpt: ...to act as to Sherwood's other discovery responses. It denies both sides' requests for sanctions. In addition, on its own motion, the Court strikes Sherwood's answer to the cross‐complaint under Code of Civil Procedure § 436. See Cal‐Western Business Services v. Corning Capital Group (2013) 221 Cal.App.4th 304. (Ordinarily this step would be preceded by an order to show cause, but the Court notes that Sherwood itself argues that this is the a...

Excerpt: ...ts and evidence. The Court observes that it would have been better practice to file a single motion on behalf of all three movants – or, at least, to agree with the other side that three nominally separate motions would be supported by a single copy of the voluminous supporting papers. (The opposing party, AMR, properly filed a single set of opposition papers to all three motions.) Be that as it may, however, the motions obviously may be consid...

Excerpt: ...gement of fees is denied. Summary adjudication as to the third cause of action for breach of fiduciary duty is granted. Defendants' motion for summary judgment/adjudication as to the cross‐complaint is denied. The requests of plaintiffs Johnny L. and Mary E. Moore for sanctions, both under Code of Civil Procedure section 128.7 and for the late‐filed Exhibits O and P, are denied. I. Procedural Issues Plaintiffs' memorandum of points and author...

Excerpt: ...of the judgment. (C.C.P. §§ 685.070, 685.080.) The Kizors seek $64,554.03. They also set forth the amount of the total judgment (after some corrections). The total number still needs to be confirmed. For example, the Kizors' papers state that the Court awarded them $72,336.53 in costs. (Kizor MPA, p. 3, line 4.) In the Court's order of September 20, 2018, however, the Court found total costs for the case of $72,527.77, but awarded only $24,175....

Excerpt: ...low the Motion is denied without prejudice. This is a personal injury matter involving a pool‐ diving incident resulting in Plaintiff's broken neck. Plaintiff was a high‐school senior when he attended a graduation party at CrossDefendants' home. Plaintiff dove into the Cross‐Defendants' pool and broke his neck when Plaintiff's head hit the pool floor. As a result of that injury, Plaintiff is now a quadriplegic. Plaintiff filed a complaint a...

Excerpt: ... of interest by the major shareholders who were looking for a quick cash‐out. Specifically, they alleged that the proxy statement issued by Abaxis was inadequate. Plaintiff filed moving papers seeking a temporary restraining order blocking the sale. The matter was set for hearing more than once, but was never heard. On October 5, 2018, plaintiff filed a motion to approve dismissal of the action pursuant to Code of Civil Procedure section 581(b)...

Excerpt: ... damages and calculates interest at the legal rate from the date of the original judgment, May 13, 2008. Background Plaintiff Lola Davis filed a complaint in 2007 against the Cityfed Capital Inc., Derek Wheat and Victor Gess. She alleged that the individual defendants agreed to start a company with her, but in the end the company went nowhere and Plaintiff was the only one to fund it. She sued the defendants for breach of contract, interference w...

Excerpt: ...l be followed. If not, the parties “may agree on a method of appointing an arbitrator and that method shall be followed.” In the absence of an agreed method, or if the agreed method cannot be followed, “the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.” Even then, the Court does not select an arbitrator, but “shall nominate five persons from lists of persons supplied jointly by the parties to ...

Excerpt: ...se party, allow, upon any terms as may be just, an amendment to any pleading…” (CCP § 473.) At any time before or after commencement of trial, the court may allow an amendment to a pleading in furtherance of justice. (Code Civ. Proc., § 576; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) “There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.” (Berman v. Bromberg (1997) 56 C...

Excerpt: ...Unruh Civil Rights CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPARTMENT HEARING DATE: 12/10/18 ‐ 6 ‐ Act (Civil Code § 51), and 4) intentional infliction of emotional distress (“IIED”). The demurrer is overruled. UHCA shall file and serve its answer by December 24, 2018. UHCA demurs to the entirety of the complaint on the basis that the complaint fails to join a necessary party under Code of Civil Procedure (“CCP”)...

Excerpt: ... successive theory is shot down by clear proof or by defendants' own admissions in discovery. Defendants' brief spends several pages recounting an anecdote about Dennis Rodman, the relevance of which eludes the Court. A more appropriate pop‐culture reference might be Maxwell Smart: “Would you believe….?” Defendants argue that they should not be stuck with what they characterize as a sloppy and inadequate answer filed by their former attor...

Excerpt: ... Friedman's misdiagnosis to conform to an onerous gluten‐free diet. She asserts damages in the form of unnecessary expense (in obtaining food) and inconvenience and emotional distress (in avoiding restaurants, social situations, and the like). She alleges no physical harm from the misdiagnosis. Friedman moves on the basis that Manning's action is barred by the statute of limitations. The statute of limitations for malpractice claims against a h...

Excerpt: ... motion for summary adjudication of the claim for attorney's fees under Code of Civil Procedure § 1021.5 is granted. Because summary adjudication is being denied as to one cause of action, necessarily the motion for summary judgment is denied. I. Procedural Issues Counsel are reminded to comply with the Rules of Court as to motion papers generally and summary judgment motions specifically. The Church's exhibits are unwieldy as a result of this f...

Excerpt: ...t‐title action on December 23, 2014, seeking to void the deed of trust then held by Countrywide. The lead named defendant was America's Wholesale Lender (hereinafter AWL), which she believed to be the corporate lender and deed‐of‐trust holder in the underlying transaction. Also named as defendants were National City Bank (not otherwise involved in this motion), and unidentified “all persons known or unknown”, etc., as is standard practi...

Excerpt: ...uest for continuance of the demurrer hearing. He was properly and timely served with the demurrer, however, nearly a month before his opposition was due. He states no grounds why he was unable to respond timely, or why he needs more time, beyond an unexplained reference to the holidays and the Butte County fire – but with no suggestion how, if at all, the fire could have affected plaintiff's ability to prepare an opposition. (Plaintiff lives in...

Excerpt: ...courier service, that is fine. Absent such a stipulation or court order, however, e‐mail is not a proper means of service. The Court is not aware of any such stipulation or court order. (Defendant has filed no response to the motion.) The motion rests on the assertion that in her vexatious‐litigant motion (Line 20), defendant has violated HIPAA and various other privacy laws by disclosing a confidential custody evaluation conducted in the Mar...

Excerpt: ...d by ISI. Plaintiff alleges that the device caught fire, causing him personal injury in a variety of ways. His complaint did not name ISI as a defendant, He instead incorrectly sued Greg Otto, an executive of ISI, alleging that ISI was a dba of Mr. Otto. The Court previously granted Mr. Otto's motion to quash service for lack of personal jurisdiction, noting that plaintiff had not sued the correct entity. Although plaintiff did not take the hint ...

Excerpt: ..., the summons and complaint were not served within 3 years from the filing of this case. Plaintiff had ample opportunity to properly obtain an order for publication but failed to timely do so. Case is dismissed pursuant to CCP §583.210 et seq.” After plaintiff orally argued the matter on August 9, 2018, the court adopted the tentative ruling as its order and ordered the case dismissed. The formal order granting defendants' motion was signed on...

Excerpt: ... Goel (2005) 35 Cal. 4th 1094, 1105, n. 4.) In this instance, Jarboe points out that the Court's prior decision contains an erroneous statement of fact, i.e., that Parr had not given a PAGA notice to the LWDA at an important time in the process. Indeed, Parr had given such a notice on September 21, 2017, a fact not contested by the opposing parties. This affected the Court's reasoning, because, as the order stated, “with proper notice to all co...

Excerpt: ...opposition, which the Court has reviewed. Plaintiff is entitled to reply at the hearing. Accordingly, the Court sets forth tentative views based on the papers filed to date, and the parties must appear. Plaintiff moves for summary judgment, asserting that this is a straight‐forward postforeclosure unlawful detainer, i.e., that the plaintiff foreclosed on the property in a non‐judicial foreclosure complying with all statutory notice requiremen...

Excerpt: ...event sexual harassment. Plaintiff Tonya Guice was hired as a full‐time security guard in February 2017. When Plaintiff was hired, she was provided a copy of Defendant's Arbitration Policy and Agreement as a mandatory condition of her hiring. The Agreement contained the following language, “By accepting and/or continuing employment with the Company, you agree to the terms of this Policy and Agreement.” Plaintiff has refused to submit to arb...

Excerpt: ...l is not a California resident, and therefore is not protected by the statute. As to Union Oil, plaintiffs argue that defendants have failed to separate costs involving Ashland from those involving Union Oil. In addition, plaintiffs argue that the specific costs requested are not shown to be reasonable and recoverable. Finally, they argue that defendants have not shown a reasonable possibility that they will prevail. They do not argue that they a...

Excerpt: ...ons, Inc. (“Lucky”), an Idaho corporation (collectively, “Plaintiffs”). Plaintiffs filed a request to file an extended page length in their opposition. That request is granted. No reply was filed. By way of the Motion, Defendants seek to strike the entirety of Plaintiffs' verified complaint (the “VC”) containing four causes of action for: 1) Libel Per Se; 2) Slander Per Se; 3) Intentional CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORN...

Excerpt: ...urt. The parties should be prepared to address whether that is proper. Until that issue is resolved, the Court is not inclined to proceed with the motion. If that issue can be resolved, the Court offers the following observations. Legal Standards: The Legislature's express command that PAGA settlements be approved by the court necessarily implies that there is some substantive dimension to the review. See Labor Code Section 2699(l). The Court's r...

Excerpt: ...ourth causes of action for negligence and violation of Business & Professions Code section 17200 are overruled. The unopposed requests for judicial notice are granted. (Evid. Code § 452.) I. Background In 2005, Plaintiffs Amir Shenas and Azadeh Vaezizadeh refinanced a property located at 4071 Lilac Ridge Rd. in San Ramon. Defendant Bank of New York is the current beneficiary of the loan. Defendant Bayview Loan Servicing, LLC services the loan. D...

Excerpt: ...d by Defendant DeVries. Plaintiffs is suing the State of California, Department of Transportation (“Caltrans”) for (1) premises liability ‐ dangerous condition of public property per Government Code section 835 and (2) general negligence. Caltrans has demurred to the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/29/18 ‐ 14 ‐ second cause of action. In that cause of action, Plaintiff alleges that Caltra...

Excerpt: ...rces, Inc. (“Cross‐Defendant or “IR”) demurs to the all causes of action alleged against it on the ground Cross‐Complainant failed to file a certificate of merit, pursuant to CCP § 411.35. The certificate must be filed before or concurrently with the complaint or cross‐ complaint. Failure to file a certificate is a ground for demurrer or motion to strike. (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359‐360; CCP § 411.35(g)....

Excerpt: ...ond Amended Complaint (“ASAC”) filed on October 19, 2018. Defendants shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiff's counsel for approval as to form. Despite the serious concerns expressed in the Court's interim ruling of October 25, 2018, and in Part A‐3 of this ruling below, the Court exercises its discretion not to award monetary sancti...

Excerpt: ...5.16 provides that “any cause of action against a person arising from any act. . . in furtherance of the person's right to petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE...

Excerpt: ...b of depicting her as an innocent college student at a university in Illinois, who never had any formal or informal involvement in Bara's business. Her name surfaced in Bara's business paperwork only because the mother, without Singh's knowledge or approval and reportedly by clerical error, included Singh's name as an officer and agent for service of process in some of the paperwork. The motion papers raised eyebrows maybe just a little as to how...

Excerpt: ...e § 1281.2 creates a summary proceeding for resolving petitions to compel arbitration. “A petition to compel arbitration ‘is in essence a suit in equity to compel specific performance of a contract.'” Rosenthal v. Great Western Fin. Securities Corp. (1996) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/09/18 ‐ 12 ‐ 14 Cal.4th 394, 411 (internal citation omitted). In these summary proceedings the trial ...

Excerpt: ...a First Amended Complaint on October 25, as evidenced by a file‐stamped copy provided with their opposition papers. No such pleading is found in the Court's physical file, however; it has apparently been delayed, mislaid, or misfiled by the clerk's office. Plaintiffs are requested to provide another physical copy. Second, plaintiffs' opposition papers do not comply with CRC 3.1110(f) and Local Rule 3.42 concerning tabbing of exhibits. Counsel i...

Excerpt: ...t he has received nothing from her. This is unacceptable. Anything filed with the Court must be served on the other party, and proof of such service must be filed with the Court. Although initially pleaded with a number of other causes of action (such as fraud), this is in substance an action to collect a debt. The parties reached a mediated settlement in 2016, under which defendant Niakan was to make payments totaling $46,000 to plaintiff Robins...

Excerpt: ...sitions. None of the other defendants was served with this motion; however, none of the other defendants has filed a first appearance in this case. This motion was filed based upon allegations in the original complaint. Since then plaintiffs have filed two amended complaints, but there appears to be no dispute that cause of action one remains the same in different versions of the complaint. Plaintiffs' motion for summary adjudication as to the fi...

Excerpt: ...of action) are stricken. Courts use a two‐step process for determining whether an action or claims(s) is a SLAPP suit subject to a special motion to strike. Plaintiffs' claims must (1) arise out of Defendants' protected speech and (2) must lack even minimal merit. See Navallier v. Sletten (2002) 29 Cal.4th 82, 88‐89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. The court first determines whether Plaintiffs' claims arise out o...

Excerpt: ... that the property Alamo leased from Diablo did not conform to the promised specifications. Emo‐Gizella Hites and George Hites (“the Hites”) originally leased the property to Alamo, and Diablo is the successor in interest to the Hites. The demurrer is overruled. Diablo asserts that each of Alamo's causes of action fail to state facts sufficient to constitute a cause of action because the lease agreement stated that the property would be lea...

Excerpt: ...'s six causes of action, pursuant to CCP § 437c(f). Defendant Robert Half, International's Motion for Summary Judgment is denied. Defendant failed to establish there are no triable issues of material fact as to each of Plaintiff's six causes of action. Defendant's Motion for Summary Adjudication is granted in part and denied in part. Background Plaintiff Sandra Fabian was a contracted employee to Defendant Robert Half International. Plaintiff be...

Excerpt: ...is a small Brentwood auto dealership. Defendant Carl Watkins is its President/CEO. (UMF 1.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/08/18 ‐ 8 ‐ Plaintiff Muranishi had his own auto dealership in Livermore, called EMotors. In April 2013, he asked Watkins for permission to sell 21 of his cars off Brentwood Motorsports' lot because his lot failed. (UMF 2.) Watkins agreed. Thereafter, Brentwood Motorsports...

Excerpt: ...(Welfare & Inst. Code § 15610.30) and (2) Deed Reformation (Civil Code § 3399). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/08/18 ‐ 15 ‐ This motion came on previously for hearing on October 10, 2018. At that time, Plaintiff objected to the Reply evidence filed by Defendant. The Court permitted both parties to file supplemental briefs by October 24, 2018. The hearing on the motion was continued to Novemb...

Excerpt: ...ks to strike the entirety of Plaintiffs' verified complaint (the “VC”) containing four causes of action for: 1) Libel Per Se; 2) Slander Per Se; 3) Intentional Interference with Economic Interest; and 4) Unfair Business Practices. For the reasons stated below, the Motion is granted. The Court notes that Defendant is not the only defendant in this matter, and this ruling does not preclude Plaintiffs' alleged causes of action as to the other de...

Excerpt: ... Affinito's evidentiary objections, filed on October 15, 2018. Nos. 1, 2, 7, 19, 47, 50, 51: sustained in part. Unverified pleadings are not evidence. However, the filing date of the original Complaint is relevant to the statute of limitations analysis, and the allegations of the Third Amended Complaint define the scope of the issues that can be decided by the pending motions. Also, the Court can take judicial notice of the probate petition and t...

Excerpt: ...w no later than June 26, 2018. However, Huang canceled the contract on June 29, 2018. Crowd Fund therefore filed this action for specific CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 11/05/18 ‐ 7 ‐ performance and recorded a lis pendens against the Property. Huang now moves to expunge the lis pendens. Defendant Zeng, who offered to purchase the Property on June 30, 2018 for a predominantly seller‐financed am...

Excerpt: ...ion of the trial court.” (Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738, 746‐ 747.) The California court has discretion to stay the state proceedings in favor of the federal action. (Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co. (1993) 15 Cal.App.4th 800, 804.) According to Caiafa, the court should “consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly ...

Excerpt: ...n October 22, 2018, is also granted. Neither side has filed evidentiary objections. Plaintiffs' objection to defendant's reply memorandum is overruled. Defendant's counsel is directed to properly serve opposition and reply papers in the future. The Court notes that it has received only a reply memorandum; the Court has not received a reply separate statement, or any reply evidence. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 H...

Excerpt: ... relief available for certain causes of action; they are not a cause of action in themselves. E.g., Hiliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391. Accordingly, defendants properly proceed by a motion to strike rather than a demurrer. This motion raises questions as to both the level of alleged conduct that is substantively required to support recovery of punitive damages, and what level of specificity is required in a pleading seeking...

Excerpt: ...t the broker defendants. The parties should be prepared to discuss that topic at the CMC scheduled for November 28. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/02/18 ‐ 6 ‐ This is a dispute over a home purchase. Plaintiffs are the purchasers. Defendant Cain was the seller. Defendants Haus and Renjen & Assocs. were the brokers. It is uncontested that the sales contract, as between seller and buyers, include...

Excerpt: ... substance of the proposed first supplemental complaint is a request for a declaratory judgment as to the res judicata/collateral estoppel effect of a judgment in this case in barring a hypothetical future case that defendants may or may not file on the same subject matter in the future. That's not a cause of action, by declaratory judgment or otherwise; it's a proposed defense to a lawsuit that hasn't even been threatened yet, let alone filed. (...