Excerpt: ...rements caused material harm – meaning that without the procedural violations, plaintiffs would have succeeded in refinancing their defaulted mortgage and saving their property from foreclosure. That failing underlay the Court's rulings sustaining demurrers to prior iterations of the complaint. In the SAC, plaintiffs made their last‐hurrah effort to allege materiality. In its September 28 tentative ruling on this demurrer, the Court commented...

Excerpt: ...ase other than plaintiffs' claims that defendant is in violation of a non‐compete agreement. The problem is that the causes of action pleaded in the original complaint (or in the first amended complaint, which only added two new plaintiffs) did not segregate themselves neatly into arbitrable and non‐arbitrable causes of action. As pleaded, only the second cause of action could clearly be categorized (as non‐arbitrable). While it may be appr...

Excerpt: ...rs contain serious defects. The Court will not consider these opposition papers, and gives plaintiff two procedural options. First, plaintiff may submit the pending motion for the Court's decision as functionally unopposed. The Court would review only the moving papers, and would send out a ruling by the end of the day. Second, plaintiff may stipulate to (1) briefly continuing the existing issue conference and trial dates, (2) setting a new heari...

Excerpt: ...h the first directive, and the LWDA has not commented on the settlement. With respect to the second directive, the parties have responded with a declaration stating that the settlement allocation is based on “Plaintiff's willingness to provide a general release with a 1542 waiver thereby precluding plaintiff from raising other employment issues in the future; 2) since the case had been actively litigated for almost two years, the risk that plai...

Excerpt: ...t cannot determine whether the enactment relied upon was intended to impose an obligatory duty to take official action to prevent foreseeable injuries or whether it was merely advisory in character. [Citation]”).) In addition, a complaint against a public entity will ideally make clear whether plaintiff the plaintiff is claiming the public entity is directly liable under Government Code section 815 and/or 815.6 and a statutory or constitutional...

Excerpt: ...ing to bring their eleven (11) Penal Code claims against any party. The District Attorney's office (or U.S. Attorney with respect to the federal RICO claim) is the entity (or entities) who must prosecute those claims. No civil remedies are contained in the violations set out in the Complaint. NO CAUSE OF ACTION PLED AGAINST THE STATE OR ITS AGENCY, THE CSLB Regardless of the problems with standing, this demurrer is confined to the deficiencies in...

Excerpt: ...continued this demurrer so that the parties could meet and confer “in person or by telephone” as required by code of civil procedure § 430.41. The Court further ordered Plaintiff to file a declaration of compliance with § 430.41(a) by October 11, 2018. He has not done so. Although the Plaintiff is in pro per, the Court notes that pro per litigants are not entitled to special treatment and must follow the procedural rules that govern civil l...

Excerpt: ...LC; and Affinia Default Services, LLC (collectively, “Defendants”). The Complaint alleges a cause of action for (1) declaratory relief and (2) violation of Cal. Civ. Code § 2924.11. A week later, Plaintiff moved ex parte for a temporary restraining order. The Court 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...

Excerpt: ...k to be assigned “benefits because the premises are the very definition of unsafe...” Plaintiffs include what appears to be a copy‐andpaste rendition of Health and Safety Code section 17975 et seq. regarding tenant relocation assistance. In apparent efforts to improve the Petition's chance of success, Plaintiffs filed an “addendum to petition for writ of mandate” on October 5, 2018, three court days before the hearing and without a proo...

Excerpt: ... for “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Where, as here, the tactic or action is the filing of a motion, the party seeking sanctions must serve, but not file, the motion for sanctions, and give the other party 21 days to withdraw the motion. (C.C.P. § 128.5(f)(1)(B).) AUSD did so. XL did not withdraw the demurrer. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMEN...

Excerpt: ...e and two is granted in part and denied in part. The motion is granted as to the STA Notice. Paragraphs 26 and 27 are ordered stricken from the complaint. Otherwise the motion is denied. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/11/18 ‐ 10 ‐ Relevant Allegations Defendants seek to strike the first and second causes of action (libel per se and libel per quod) in the complaint. Defendants have not moved to...

Excerpt: ...te causes of action. The amended complaint may also include the changes listed in Plaintiff's request for leave to amend. Res Judicata Defendant argues that Plaintiff's complaint is barred by res judicata because there was a final judgment on the merits in a small claims action between the same parties. This argument was raised and rejected by this Court in the last demurrer. This appears to be an improper motion for reconsideration, however, occ...

Excerpt: ...al theories. Any amended complaint shall be filed and served on or before January 31, 2019. The basis for this ruling is as follows. Background Plaintiffs are the current owners of the Renaissance Square Apartments, located at 1825 Galindo Street, in Concord, California (the “Property.”) They sue defendant Signature Properties, Inc. over allegedly defective construction services that Signature provided for a prior owner under a contract with ...

Excerpt: ... these are the only causes of action in which defendant Seterus is named, defendant shall prepare a proposed judgement of dismissal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiffs for approval as to form. The basis for this ruling is as follows. A. The Fifth Cause of Action. The Fifth Cause of Action is for slander of title. The Court sustains defendant's demurrer to this cause of action on t...

Excerpt: ...omez and Exenia Guadalupe Garcia Casan, by and through Guardian ad Litem Melisa Casian Gomez (collectively, “Plaintiffs”). The SAC pleads causes of action for (1) vehicle negligence; (2) vicarious governmental liability – employee – Gov. Code § 815.2 & 820; (3) vicarious governmental liability – contractor – Gov. Code § 815.4; (4) negligence; (5) dangerous condition of public property; and (6) wrongful death. Only causes of action (...

Excerpt: ....5 requires a plaintiff to bring her action against a “health care provider based upon such person's alleged professional negligence” within three years after the date of injury or within one year after plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever comes first. See also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 (emphasis added) The one year statute of limitations begins to run “when th...

Excerpt: ...See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158. CACI Section 1003 sets out the elements of a premises liability claim. A defendant was negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the defendant knew or, through the exercise of reasonable care, should have known about it; and (3) the defendant failed to repair the condition, protect against harm from the ...

Excerpt: ...“VSAC”). The Motion is opposed by the plaintiffs (“Plaintiffs”) in this matter. No reply was filed. For the reasons stated below, the Motion is granted. Governing Law Code of Civil Procedure (“CCP”) section 425.16 governs special motions to strike (“anti‐SLAPP” motions). A defendant's anti‐ SLAPP motion may only target claims arising from any act of the defendant in furtherance of the defendant's right of petition or free spee...

Excerpt: ...loyee Le'James Riggins, lasting no more than one hour. The Court would then take the matter under submission and issue an order after hearing. The parties should also be prepared to set a briefing schedule on the following issues: (1) whether plaintiff Rose Dixon can be compelled to arbitrate, given defendant Tesla's failure to offer evidence that Ms. Dixon is a party to the arbitration agreement, and; (2) if Ms. Dixon cannot be compelled to arbi...

Excerpt: ... demurrer is sustained on the ground Petitioner/Plaintiff failed to allege facts sufficient to state a cause of action. (CCP § 430.10(e). Background Facts Petitioner/Plaintiff Peter J. Nowicki was a Fire Chief of the Morag‐Orinda Fire District. Petitioner's employer participated in the Contra Costa County Employees' Retirement Association (“CCCERA”), a public employees' retirement system. In compliance with his employment agreement, Nowick...

Excerpt: ...sanction order, and in turn that plaintiffs be sanctioned $2,950. She states that she does not own the property, because it is owned by the Start Wars Revocable Living Trust, the beneficiaries of which are minor children. She also states that Plaintiffs were aware of this before they placed a lien on the property. Finally, she states that the sanction award of October 24, 2017, should not have been granted. CONTRA COSTA SUPERIOR COURT MARTINEZ, C...

Excerpt: ...se of Action. The Windeler defendants are not named in the Fifth and Seventh Causes of Action. In the ruling on the companion demurrer by defendant Littman Trust, the Court has granted plaintiffs leave to file an amended complaint adding a single cause of action for declaratory relief, as against the Littman Trust and Windeler Development Group. The Windeler defendants shall file an answer that is timely with reference to service of the amended c...

Excerpt: ... case against her former employer, asserting claims of sexual harassment. Defendant cross‐complained, alleging that plaintiff hacked defendant's electronic records and deleted a substantial amount of material, including students' report cards. The latter accusation is the subject of a felony case filed against defendant, which (as far as the Court knows) is still pending. The Court has previously entered a partial stay of some proceedings in th...

Excerpt: ...2017. Since then, however, defendants have simply refused to participate in this litigation. They refused to participate in court‐ordered mediation, saying that they were considering filing bankruptcy (and asking plaintiff's counsel to stop “harassing” them). They failed to appear at multiple case management conferences. They did not oppose plaintiff's motion to compel various forms of discovery, but have not complied in any way with the Co...

Excerpt: ...n amount some three times the jurisdictional maximum for limited cases. Although the motion is not so styled, the Court treats this as (in part) a motion for relief from a judgment that was beyond the jurisdiction of the court. So considered, the motion is granted, and the judgment entered on July 6, 2017 is vacated. Because the problem is a jurisdictional one, the vacatur applies to both defendants. Relief from the judgment, however, is not reli...

Excerpt: ...se of Action. The Windeler defendants are not named in the Fifth and Seventh Causes of Action. In the ruling on the companion demurrer by defendant Littman Trust, the Court has granted plaintiffs leave to file an amended complaint adding a single cause of action for declaratory relief, as against the Littman Trust and Windeler Development Group. The Windeler defendants shall file an answer that is timely with reference to service of the amended c...

Excerpt: ...he declarations filed by counsel for this and other defendants, plaintiff's counsel has simply failed and refused to engage in the meet‐andconfer required by statute. Plaintiff's response essentially concedes demurrability on at least some points but requests leave to amend. That, counsel needs to realize, is what meet‐andconfer is intended to address. If there are any future requests for leave to amend, plaintiff's CONTRA COSTA SUPERIOR COUR...

Excerpt: ...ons following the school's sexual assault disciplinary process and appeal. The writ is brought on the grounds that the College's administrative procedure violated California and federal law; violated fundamental principles of fairness by prohibiting John from using an attorney as his advisor, in violation of federal law; depriving him of a fair trial; depriving him of his right to confront and cross‐examine his accuser; employing a process that...

Excerpt: ...ctual allegations. The closest it comes to alleging any facts is that Ecker “made [unspecified] false statements against of the plaintiff Anas Ali [which plaintiff identifies as his true name], referenced by citation number 34‐269551”, and that Ecker “failed to provide prima facie evidence supporting his false documents that plaintiff was/is ‘BLACK' and ‘DRIVING' referenced on citation number 34‐269551.” The FAC does not provide a...

Excerpt: ... of action (as permitted), defendants also purport to seek summary adjudication of numerous sub‐issues contained within those causes of action, such as specific paragraphs of the SAC requesting particular items of damages, or “all claims and/or damages” arising from particular alleged defects. None of that is procedurally permissible as a subject for summary adjudication. As Plaintiff points out, items (d)‐(aa) do not dispose of an entire...

Excerpt: ...only once. Due to the volume of material the parties have filed in connection with these motions, for clarity's sake, the particular motion(s) the analysis and disposition governs will be identified by the date and time of the motion's filing. Indemnity and Labor Code section 2860 (Pertains to AAA NCNU's motion filed at 10:11 a.m. on May 13, 2016 and the class's motion filed at 3:35 p.m. on May 13, 2016.) Both of the motions this tentative ruling...

Excerpt: ...aglins, in 2010, but they lost the property to foreclosure. Bank of New York purchased the property at a foreclosure sale on August 15, 2011. After the foreclosure sale, the property manager was originally defendant Tenant Access and later moving party Rockbridge Group, LLC. Rockbridge is the successor in interest to Tenant Access. Neither party has provided the precise date when Rockbridge took over from Tenant Access, but Tenant Access was stil...

Excerpt: ...nee Benham (“Benham”). This is an unlawful foreclosure case. The FAC pleads causes of action for (1) violation of Civil Code § 2923.6; (2) violation of § 2923.7; (3) negligence; (4) intentional misrepresentation; (5) negligent misrepresentation; and (6) unfair business practices. The Court previously sustained Defendant's demurrer to Plaintiff's original Complaint, which pled causes of action for (1) violation of Civil Code § 2923.6; (2) v...

Excerpt: ...d vehicle, but does not explain or identify why that would be. Furthermore, LaPlante does not explain which entity she had/has an auto policy with or which policy had/has the underinsured provision and/or any preservation of a crashed vehicle provision. From the FAC, one cannot know who the two individual employees are, who represented that they would keep the crashed vehicle for Plaintiff, or for which insurer they even worked. Hence, one cannot...

Excerpt: ...y settled Armstrong's claims against Daly, but did not settled Daly's crosscomplaint against Armstrong. Armstrong filed a second opposition to this motion on January 11, 2018 and Daly filed a timely reply. Daly's motion seeks to disqualify Armstrong's attorney Robert De Vries because De Vries represented Armstrong's brother, Richard Armstrong, during his deposition. Daly argues that De Vries' representation of Richard Armstrong at his deposition ...

Excerpt: ...en done in this case. The only discovery initiated was by Plaintiff's first counsel, Mark Corrinet, Esq., approximately two months after the initial lawsuit was filed almost five years ago. Mr. Corrinet propounded a first set of form interrogatories and a first document request. Following a disqualification motion, Mr. Corrinet withdrew as counsel, and Grover Perrigue substituted into the case on July 2, 2014. Mr. Perrigue did even less than Mr. ...

Excerpt: ...f escrow. And Paragraph 19 of the subject purchase agreement requires the arbitration of all such pre‐closure disputes, “whether or not arising from CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 01/24/18 ‐ 4 ‐ a Buyer default.” There is no reasonable interpretation of the pre‐closure arbitration provisions that simply ignores the language “whether or not arising from a Buyer default.” The CDI defend...

Excerpt: ...0836 CASE NAME: REILAND VS. JOHN MUIR HEALTH HEARING ON MOTION TO COMPEL COMPLIANCE WITH SUBPOENAS FILED BY CEP AMERICA ‐ CALIFORNIA * TENTATIVE RULING: * First, the matter does not appear to be exempt from the Discovery Facilitator Program. While that program exempts “[m]otions necessitated solely by a third party's refusal to comply with a subpoena[,]” (Local Rule 3.300(c)), this motion concerns Plaintiff's objections, not a third‐party...

Excerpt: ...amendment could remedy the defects.” (Dalton v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1570‐1571.) The burden is on the Plaintiff to establish the reasonable possibility that the defect is curable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff has failed to show how the defects are curable. As an initial matter, the Court notes that Plaintiff Nowicki's “Opposition” does not address the deficiencies raised by the ...

Excerpt: ...��) filed by Cross‐Plaintiff Jordan Bradshaw (“Cross‐Plaintiff” or “Bradshaw”). The CC alleges a single cause of action for unfair business practices in violation of Cal. Bus. & Prof. Code § 17200. Safety Environmental demurs to this claim pursuant to Code Civ. Proc. § 430.10(e) on the grounds that Bradshaw has not alleged sufficient facts regarding Safety's alleged wrongdoing, has not alleged sufficient facts regarding his standing...

Excerpt: ...018. Any amended complaint shall comply fully with the conditions on leave to amend set forth in Parts B and C of this ruling below. Defendant's motion is granted without leave to amend, as to the Fifth Cause of Action for “Injunction.” However, this aspect of the Court's ruling shall not prohibit plaintiffs from alleging facts supporting a claim for injunctive relief within the body of other causes of action, and seeking injunctive relief in...

Excerpt: ...ought within two years. There is no evidence that any exception applies. At the initially set hearing on this matter, plaintiff had submitted relevant argument, but it was not supported by a proper declaration. The court continued the matter to January 8, 2018, to enable plaintiff to submit a proper declaration and allowed defendant a reply. Plaintiff has provided a declaration. In that declaration, he states that he went to the clerk's office on...

Excerpt: ...ixing, in the settlement agreement, an allocation between economic and non‐ economic damages. Defendant County's objection is moot, because the settlement agreement does not attempt to fix such an allocation. (Supplemental Diestel Dec., ¶ 5.) This is a matter that the Court would decide post‐trial. (Rashidi v. Moser (2014) 60 Cal.4th 718, 722 [“when a pretrial settlement does not differentiate between economic and noneconomic losses, a pos...

Excerpt: ...acts to constitute a cause of action, the court follows the same rules it does on a demurrer. It considers only the material alleged on the face of the challenged pleading and matters of which it can take judicial notice. (Ibid.; Code of Civil Procedure § 438(d); see Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548.) Here, on its face, the complaint states a cause of action that defendant breached his agreement to sell the ...

Excerpt: ...er's order, because defendant failed to file the bond required by statute. Section 98.2(c) “establishes a one‐way fee‐shifting scheme, whereby unsuccessful appellants [employers] pay attorney fees while successful appellants may not obtain such fees.” Sonic Calabasas v Moreno (2011) 59 Cal.4th 1109, 1129. The purpose is to discourage unmeritorious appeals from administrative wage claim determinations, and to encourage prompt payment there...

Excerpt: ...as served with it. Furthermore, she does not suggest that she has any meritorious defense to the suit, and she does not proffer any proposed answer to the complaint. It is pointless to grant defendant an opportunity to defend against the claim if she has no defense. Defendant does make a brief mention of her statement to plaintiff's attorney that this debt had been resolved by Kemper Group. However, she does not identify who Kemper Group is, or h...

Excerpt: ...ior representation of Pearl on related subject matter. 6. TIME: 9:00 CASE#: MSC16‐ 01082 CASE NAME: TROMBADORE GONDEN LAW GROUP VS. SMITH HEARING ON MOTION TO VACATE DEFAULT JUDGMENT FILED BY ROBERT WILLIAM SMITH, MARC PEARL * TENTATIVE RULING: * Marc Pearl's motion to vacate default judgment is granted. The default entered on March 21, 2017 and the default judgment entered on September 1, 2017 are ordered vacated. Pearl shall file and serve th...

Excerpt: ... can be denied where there is “‘inexcusable delay and probable prejudice to the opposing party'… [Citation.]” (Ibid; see also, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (even assuming there is unreasonable delay, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.”).) Leave to amend can be denied where the proposed amendment is insuf...

Excerpt: ...n if the Court were to consider the burden request now, a cost of $1,200 is not particularly burdensome. The electronic records shall be produced. However, it appears that the burden with regard to the paper records may be extreme. The parties shall meet and confer prior to the hearing to determine if a sample of those records would be sufficient. The Balboa location. Defendant shall respond to discovery concerning the Balboa location. The statut...

Excerpt: ...ion to collect in excess of $160,000 allegedly owed on an agreement to rent equipment for use at the Camp Park and other construction projects. Defendant Federal Solutions Group, Inc., ordered the equipment and defendant Selina Singh guaranteed payment. Plaintiff filed its lawsuit on May 4, 2017. It served each defendant by substituted service on May 12, 2017. It did the required mailing on May 16, 2017. (See CCP § 415.20 (a), (b).) Service was ...