Excerpt: ...im into settling this matter. The Kliments now bring a demurrer to Ahmmed's complaint. The Court grants the various requests for judicial notice. Breach of Written Contract This cause of action fails. The complaint fails to allege or attach a written contract between the Kliments and Ahmmed to mediate at no cost to Ahmmed. Of course, the existence of a written contract is a prerequisite to maintaining a cause of action for breach of written contr...

Excerpt: ... apparently on three grounds. First, it says the MSA designates only an “arbitral seat,” which does not require that the arbitration physically take place in Houston, but rather only that Houston is the “jurisdiction where the arbitration takes place legally.” (Opp. 4:17‐18.) Second, Harder contends that the arbitration clause is unenforceable because it forces Harder to waive prompt payment penalties. (Opp. 8:11‐12.) Third, Harder ar...

Excerpt: ...tement of Undisputed Material Facts “SUMF” 1‐3.) Mrs. Pascua's widower brought this suit for wrongful death against the driver of the vehicle, Manuel Carillo (“Mr. Carillo” or “the Driver”), the County of Contra Costa, and the City. Plaintiff has dismissed the case against Contra Costa County and settled with the Driver. The final remaining defendant, the City, now moves for summary judgment. The causes of action against the City ar...

Excerpt: ...nd (5) FEHA failure to hire. Defendants ask for summary judgment or summary adjudication of each of Plaintiff's five causes of action. Exhaustion of Administrative Remedies As to all claims, Defendants argue that Plaintiff did not exhaust his administrative remedies as to Defendant Purlyah, Inc. because while Plaintiff received a right to sue letter from DFEH, it named the defendant company as Diablo Valley Bowl instead of Purlyah, Inc. Diablo Va...

Excerpt: ...text each side's interests must be “balanced”); see also, id., at 393 (“trial courts have available options to address plaintiffs' legitimate rights and need for protection from unjustified delay of the unlawful detainer proceeding”). The Asuncion court observed that deciding whether to stay an unlawful detainer action requires a preliminary injunction analysis. See, Asuncion v. Superior Court of San Diego County (1980) 108 Cal.App.3d 141...

Excerpt: ...because of a nearby tree root. Plaintiff's complaint is on a Judicial Council Form. She alleges two causes of action: (1) “general negligence”; and (2) “premises liability.” The general negligence cause of action is directed against the City of Brentwood. It alleges the City failed to properly maintain the lamp in a nearby streetlight. The light was out, making it difficult for her to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPAR...

Excerpt: ...d Fifth Causes of Action. Background This case concerns the shooting death of Mitchell Hardy, Jr. on July 14, 2015 at an apartment complex in Richmond known as the Monterey Pines Apartments and the obligations of indemnity and defense as between the property owner and manager, on the one hand, and the security company they hired, on the other. The property owner is Eastshore Manor I (“EMI”). The property manager is Evans Property Management, ...

Excerpt: ...gence and breach of contract. This case arises out of an October 2015 fire that occurred in the stove at an apartment owned by Defendants and leased by Plaintiffs. Legal Standard CCP sections 437c(o) and 437c(p)(2) supply the standard for deciding the MSJ. Section 437c(o) says: A cause of action has no merit if either of the following exists: (1) One or more elements of the cause of action cannot be separately established, even if that element is...

Excerpt: ... to BNYM and the recording of the trustee's deed upon sale on August 1, 2018. The trustee's sale of the subject property took place more than a year after the filing of the First Amended Complaint on June 23, 2017. Plaintiff also seeks to add a cause of action for Cancellation of Instruments. Plaintiff seeks a judgment cancelling the August 1, 2018 trustee's deed upon sale that conveyed the property to BNYM and the deed of trust upon which the tr...

Excerpt: ... Defendants demurred to the First Amended Complaint as to Plaintiff Veronica Salcedo. Defendants did not demur to the claims brought by the minors, Gisele and Isabel Salcedo. The demurrer is based on a statute of limitations argument. Code of Civil Procedure section 335.1 states that there is a two year statute of limitations for actions for “injury to… an individual caused by the wrongful act or neglect of another.” The accident happened o...

Excerpt: ...Defendants Miao Lan Lana Yu, Harmony Beauty Med Spa and Harmony Beauty Spa through their authorized real estate brokers, Defendants Mardel Realty and Loans, Inc. and Doris De Leon made an offer to purchase real property, owned by the Sonja Colbert Living Trust, located at 1006 Regatta Point in Hercules. Plaintiffs allege the offer was accepted and consideration in the form of $10,000 was exchanged, binding the agreement. Defendants allegedly brea...

Excerpt: ...r. Defendants/Cross‐Complainants Tony Wong and Yvonne's Motion for Judgment on the Pleadings as to Plaintiff's First Amended Complaint is denied. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/22/19 ‐ 4 ‐ Background Defendants/Cross‐Complainants Tony and Yvonne Wong own commercial real property at 134 East 10th Street in Pittsburg. Cross‐Defendants Badr Sanae Azze and Naser Sanae Azze currently occupy t...

Excerpt: ...ny further amended complaint on or before September 26, 2019. Plaintiff shall comply strictly with the conditions on leave to amend set forth at the end of this ruling. The basis for this ruling is as follows. A. The First Cause of Action. The First Cause of Action is for negligent misrepresentation. Defendant Bank's demurrer is sustained on four grounds. First, as pleaded, this cause of action is barred by the applicable three‐year statute of ...

Excerpt: ...uld be futile or impossible to cure a pleading defect by amendment, the court should sustain the demurrer without leave to amend. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) It is the plaintiff's burden to show how the complaint can be amended to state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The First Cause of Action. The first cause of action is for breach of fiduciary duty. Successful pleading...

Excerpt: ...Plaintiff opposes these requests, arguing that defendant has waived its right to an appraisal and that the questions remaining after two years of litigation mainly involve contract interpretation rather than the amount of the property and business income losses. Analysis The statutorily mandated fire insurance policy gives both insurer and insured the right to an appraisal if they cannot agree “as to the actual cash value or the amount of loss....

Excerpt: ...he Paul H. Stavig Family Revocable 1976 Trust, fka The Paul and Lorraine Stavig Revocable Living Trust, dated February 11, 1976 (“Plaintiff” or “Andrade”). The FAC pleads causes of action against CareTrust Senior Management for (5) Fraudulent Transfer – Actual Fraudulent Intent (CC § 3439.04(a)(1)); (8) Fraudulent, Unlawful & Unfair Business Practices (Cal. Bus. & Prof. Code § 17200); (9) conspiracy; (10) constructive trust; and (11) ...

Excerpt: ... complaint on April 25, 2017, alleging that she fell at the Safeway in Lafayette, California on June 25, 2015 due to some form of liquid that another Safeway customer had dropped on the floor near the check stand and suffered a traumatic brain injury. Unknown Safeway employees then helped her to her feet, but did so negligently, causing her to suffer a syncope episode, a second fall, and further injuries. Plaintiff consistently provided this vers...

Excerpt: ...sonal injury case. A truck driven by defendant Joel Mangiaracina was stopped on a railroad track owned by BNSF Railway Company in Contra Costa County. A train struck the truck, flinging it into the air. It returned to earth in a nearby waterway, the Middle River, landing on plaintiff MacKenzie Crane, who was on a raft. Contra Costa County files the instant demurrer, arguing it has no liability in this case because of a ruling in a related federal...

Excerpt: ... language in the Contract providing for indemnity to the fullest extent permitted by law for all losses. (Undisputed Material Fact No. 20, 28, 29; DBI”s Additional Fact Nos. 5 and 6.) Background This is a construction defect case. It involves alleged defects at a subdivision called CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/08/19 ‐ 4 ‐ Brighton Station. The original builder was Western Pacific Housing, ...

Excerpt: ...leave to amend. Request for Judicial Notice Defendant's unopposed Requests for Judicial Notice are granted. Evid. Code §§ 452, 453. Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” (Doe v. City of Los Angeles (2007) 42 Cal.4th ...

Excerpt: ...the terms of the settlement agreement on the record before the Court. (See, Reporter's Transcript attached as Ex. A to Isola Decl. and Ex. A to Hooshmand Decl.) The parties agreed that the settlement could be enforced pursuant to Code of Civil Procedure section 664.6. (Reporter's Transcript at 8:2‐4.) The terms stated on the record were that (1) the Mahoneys would pay Hooshmand $40,000 within 30 days after a settlement agreement is executed, (2...

Excerpt: ...posed answer was indeed attached to another document in the Court's file. Defendant's motion appears to be procedurally compliant with CCP § 473(b). As to the merits, Defendant Jeffrey Rose Melenudo motion brings this timely motion, pursuant to CCP § 473(b), to set aside the default and default judgment entered on March 20, 2019. Melenudo moves to set the default and any judgment taken against him on the ground CONTRA COSTA SUPERIOR COURT MARTI...

Excerpt: ...description of the subject real property is set forth in the Order to Show Cause, filed on July 18, 2019. This relief is conditioned on the posting an undertaking in the sum of $ 7,500, on or before August 23, 2019. The basis for this ruling is as follows. A. Preliminary Matters. The parties' requests for judicial notice are granted. Plaintiffs are directed to properly tab their exhibits in all future filings; the exhibits to the request for judi...

Excerpt: ... Price emailed a letter to Torru's attorney confirming her “intent to reject [the arbitrator's] decision pursuant to Business & Professions Code section 6204.” (Price Decl. Ex. H.) Price filed a lawsuit against (MSL19‐02514) on April 25, 2019. (RJN 1.) Price later filed additional documents that clearly specified that she rejected the arbitrator's award, however, those were filed more than 30 days after the arbitrator's award was served. La...

Excerpt: ...as (who has also filed her own reply in support of the motion). Request for Judicial Notice Omni requests judicial notice of several documents in its moving papers and on reply. The Requests are not opposed. The Requests are granted. (Evid. Code §§ 452, 453.) Brief Procedural History Plaintiff initially filed a Motion to Enforce the Dissolution Judgment against Juras in the family law division of the Contra Costa County Superior Court on Septem...