Excerpt: ..., 2020. The Moraga Country Club Homeowners' Association brought a cross‐ complaint against EBMUD for (1) breach of contract, (2) nuisance and (3) declaratory relief. The Cross‐ Complaint alleges that there were two landslides in 2016 on EBMUD's property and were caused by EBMUD's actions. (Cross‐Comp. ¶10.) EBMUD has not repaired the landslides and as a result an emergency access road cannot be used by residents of the HOA. (Cross‐Comp. ...

Excerpt: ...ing, and presents specific facts which Plaintiff contends she could truthfully allege, if she were given leave to amend her FAC, to demonstrate her claim is not barred by the statute of limitations and is otherwise legally viable. Facts Alleged Plaintiff Meier alleges she was the owner of real property commonly known as Lot 9, Mallard Dr., Point Richmond, California (the "Property"). (FAC ¶¶ 2, 7.) The Property was encumbered by a deed of trust...

Excerpt: ...(1), arguing that defendants' motion is frivolous. That motion is scheduled to be heard on September 3, 2020. It is supported by a confusing document consisting of 48 numbered pages, with exhibits interspersed. Notwithstanding a footer that refers only to that motion, the document appears to contain the Memorandum of Points and Authorities filed in support of the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/30/...

Excerpt: ...tion of California Unfair Competition law; (4) breach of contract; (5) negligent misrepresentation; (6) elder abuse; and (7) breach of fiduciary duty. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/30/20 ‐ 17 ‐ Defendant demurs to all but Plaintiff's first cause of action pursuant to Code of Civil Procedure § 430.10(e). For the following reasons, the Demurrer is sustained, with leave to amend. Any amended co...

Excerpt: ...earing that Thursday. As the Court pointed out, a reply here was due “not less than five days” before the hearing. Although Code of Civil Procedure section 12a allows an extra day to complete certain matters when the due date falls on a weekend or holiday, that section does not apply here. (Steele v. Bartlett (1941) 18 Cal.2d 573, 574 [section 12a does not apply to acts that must be “performed ‘not less' than or ‘not later' than a given...

Excerpt: ...iolation of Civil Code § 2924.17, violation of Civil Code § 2924, violation of Civil Code § 2924c, and Unfair Competition in violation of Business and Professions Code § 17200 et seq. ("UCL"). A temporary restraining order was issued on February 20, 2020 to prevent RTR from proceeding with a nonjudicial foreclosure sale of her residence, and on February 24, 2020, Plaintiff filed her motion for preliminary injunction supported by Donham's decl...

Excerpt: ...more than $5,000….” 2. Paragraph 15 page 4, lines 25‐27, “Defendants' [sic] conduct in breaching Section 1942.5 has been fraudulent, malicious, and oppressive….” 3. Plaintiffs' prayer for relief, page 5, line 4, “Punitive Damages pursuant to Civil Code Sections 1942.4 and 1942.5” Defendants move to strike the allegations regarding punitive damages on the ground the conclusory and vague allegations in the FAC are insufficient to su...

Excerpt: ...UPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/23/20 ‐ 18 ‐ The parties' unopposed requests for judicial notice are granted. The District's request for monetary sanctions is denied. The basis for this ruling is as follows. A. The Failure To Seek An Order For Publication. A‐1. Petitioner's Failure Violated The Statutory Scheme. The Court agrees with the District's argument that PG&E was required to seek an order for publi...

Excerpt: ...d previously and as recited by the Court of Appeal in Case No. A153576 in the First Appellate District, are that plaintiffs and defendants entered into an agreement in December 2015 for defendants to pay off a May 2012 Stipulated Judgment of $1.155 million in installment payments from December 5, 2015 to January 4, 2018, for a total CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/23/20 ‐ 22 ‐ reduced sum of $1...

Excerpt: ...side from a footnote in the reply. Since Mapp did not address the promissory estoppel claim in his moving papers or offer any legal authorities in support of his position that there can be no claim for promissory estoppel against him, the motion for summary judgment is denied. Insurance Agent Liability Technically, Mapp's motion arguing that he cannot be liable as an agent of AAA was for summary judgment, not adjudication. However, both sides add...

Excerpt: ..., LLC in the amount of $422,157. The amount is the sum of unpaid rent ($35,317) and late fees ($39,229), damages for water damage to the Premises ($2,800), damage to the telecommunication system ($1,000), stolen furniture ($10,000), attorneys' fees to date ($233,811), and estimated attorneys' fees and costs through trial ($100,000). For the following reasons, the application is denied. Request for Judicial Notice Both parties' unopposed Requests ...

Excerpt: ...Global” or “Petitioner”). The Petition names 1827 H. Place, Inc. as a respondent as the real property in interest which filed a claim to the proceeds that was paid by Respondents. That party has not made an appearance in the action to date. For the reasons stated, the demurrer is sustained, without leave to amend. The Material Allegations of the First Amended Petition Global alleges it has a claim to excess proceeds of a tax sale of real pr...

Excerpt: ...�SACC”) filed by Alamo Group, LLC (“Cross‐Complainant” or “Alamo Group”). The SACC alleges causes of action for (1) rescission; (2) negligent misrepresentation; (3) professional negligence; and (4) equitable indemnity. The Hites demurrer to the first and second causes of action pursuant to CCP § 430.10(e). For the following reasons, the Demurrer is overruled. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DAT...

Excerpt: ...hreaten to cause irreparable injuries, ones that cannot be adequately compensated in damages”]. See also, Tahoe Keys Property Owners' Assn. v. State Water Resources Control Bd. (1994) 23 Cal.App.4th 1459, 1471 [discussing “irreparable injury”].) If, as plaintiff contends, defendant Mehrzad Azari has caused Pine Hollow Enterprises to pay excessive attorney fees, this is an injury that can be adequately compensated by an award of monetary dam...

Excerpt: ...of Mount Diablo, went wrong. Defendant Contra Costa Community College District, a public entity, owns, operates, maintain, and control Diablo Valley College. Prior to the incident the District organized regular events called “Club Day” at the DVC campus. Club Day is a recurring school‐sponsored event where different school clubs and other groups set up booths to give students information about the various organizations and opportunities. De...

Excerpt: ...Fact Nos. 8, 9, 11, 12, 13; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203, 1210, 1212‐ 1213; CCP § 437c (e).) Background This case arises out of an accident that occurred on February 27, 2016, when plaintiff slipped and fell at the Walmart store on Loveridge Road in Pittsburg, California, allegedly due to liquid on the floor. The incident was captured on surveillance video. The video establishes that the incident occurred about 3...

Excerpt: ... shall be served and filed on or before July 23, 2020. Background Defendant and cross‐ complainant Venturi rented premises from plaintiff and crossdefendant Smok ‘N Bones for the operation of a tap house, LaMorinda Taphouse, LLC. The Second Amended Cross‐Complaint (“SACC”) alleges the two parties used the same realtor, Wiener, for negotiation of the lease. Venturi and LaMorinda were unable to open the new business as soon as they wanted...

Excerpt: ...tter” means immaterial allegation. (CCP § 431.10(c).) “An immaterial allegation in a pleading is… A demand for judgment requesting relief not supported by the allegations of the complaint or cross‐complaint.” (Code Civ. Proc., § 431.10(b)(3).) The Court rules as follows: As to the Texas Penal Code, the Court has no jurisdiction to provide remedies under Texas law. Motion to strike is granted without leave to amend. As to Article 1, Se...

Excerpt: ...e Lease term was five years with an option to renew, provided Plaintiff gave written notice no later than 90 days before expiration of the lease. Plaintiff did not exercise the option in writing. Plaintiff alleges the parties came to an oral agreement to extend the lease in 2014 to 2021. The Lease also contained a right of first refusal provision, allowing Plaintiff the right to purchase the property if the Wongs ever sought to sell it. On or abo...

Excerpt: ...ate it owned in San Francisco. The Accountants (for present purposes, the distinction between the accounting firm and David Bott, the individual accountant, is immaterial) demur to the complaint, contending that the professional negligence cause of action is time‐barred. Relevant Standards and Authority The Court must accept all the factual allegations of the complaint as true for purposes of ruling on the demurrer. (Blank v. Kirwan (1985) 39 C...

Excerpt: ...ntinues to believe this motion is not proper procedurally in important respects. Background This is an interpleader action filed by a life insurance company after a dispute between three claimants to the proceeds of the policy could not be resolved. The claimants are the decedent's wife (Scott), mother (Beasley), and brother (Mims). The decedent acquired the policy in 2000 through his employment with BART, named Beasley and Mims as beneficiaries ...

Excerpt: ...PARTMENT: 33 HEARING DATE: 06/25/20 ‐ 12 ‐ The Court signed the order appointing a guardian ad litem for Mateus Moniz on June 24, 2020. Since a guardian ad litem has now been appointed, the Court will proceed to the merits of this demurrer. Julia demurs to causes of action two and five. Mateus demurs to causes of action three and four. Plaintiff correctly argues that the demurrer did not identify the statutory basis for the demurrer. However,...

Excerpt: ...hurch, hereinafter “LOPC”) and co‐worker, David Englebrekston: (1) Slander Per Se, (2) Libel Per Se, and (3) Trade Libel. He alleges that Mr. Englebrekston told “LOPC management” that plaintiff was "abusive" toward janitorial staff working on the church premises. (Complaint, ¶¶14‐16.) Having first met and conferred with plaintiff pursuant to Code of Civil Procedure § 430.41, defendants demur to the complaint. They argue that, pursu...

Excerpt: ...Defendants are referred to collectively as the “Brookfield Defendants” for purposes of this ruling), Joe Guerra, and Josh Roden (Guerra and Roden referred to as the “Individual Defendants”; the California Corporate Defendants and Individual Defendants referred to as the “Defendants” for purposes of this ruling). For the reasons set forth, the Court rules as follows: (a) demurrer to second cause of action for fraud – sustained, with ...

Excerpt: ... Plaintiff failed to underline or highlight the relevant portions of the deposition transcripts. Not only is this required by California Rules of Court, Rule 3.1116(c), but the Court finds compliance with this rule helpful when reviewing deposition transcripts. Breach of Contract, Specific Performance, Covenant of Good Faith and Fair Dealing In 2016, Plaintiff and Defendant Rose Family Properties entered into a lease (“the Agreement”). The Ag...

Excerpt: ...opment Corporation (“Plaintiff” or “Novin Corp”). For the reasons set forth, the motion to strike paragraph 5 of the prayer is granted in part, and the motion to strike paragraph CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/25/20 ‐ 25 ‐ 6 of the prayer is granted, with leave to amend based on this ruling and the Court's concurrent ruling on Defendants' demurrers. Defendants' motion to strike was fil...

Excerpt: ...d its tentative ruling on the merits of the motion should the Bypass Authority convince the Court that service was proper. Service on All Defendants The State Route 4 Bypass Authority seeks to condemn certain property located in Brentwood using eminent domain. (Comp. ¶¶1‐4.) The Bypass Authority listed various defendants in its complaint that it alleges are “persons who appear of record or are known by Plaintiff to have or claim an interest...

Excerpt: ...his wholly owned company, Kenzie Consulting, Inc. (“plaintiffs”) filed this action in June 2019 against defendants Hart Pearson Cunningham and his wholly owned companies, Lender Scout Corporation (“Lender Scout”), Alansis.Com, Inc. (“Alansis”), and Speak With A Geek, Inc. (“SWAG”). (Collectively referred to herein as CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/18/20 ‐ 20 ‐ “defendants”)...

Excerpt: ...iberately became intoxicated, and then proceeded to operate a motor vehicle at high speed and in a reckless manner on West Leland Road in Pittsburg California. As a direct and proximate result of Defendant's voluntary and willful intoxication, she caused her motor vehicle to collide with an automobile operated by Ruby Houston and occupied by her granddaughter, Akilah Houston, a minor.” Complaint at Ex‐2. Analysis California Civil Code section...

Excerpt: ...ender its $300,000 policy limits to resolve the claim. It declined to do so. But later it paid $5 million to settle a subsequent breach of contract and bad faith lawsuit that the injured plaintiff, Lewis, brought after receiving an Assignment of Rights from Smith. FPIC then brought this action against its attorneys. Defendants now move for summary judgment, arguing that FPIC cannot establish causation, damages, or duty. This is a close case, with...

Excerpt: ...rt made an oral order at a hearing on defendants' motion for terminating sanctions that plaintiff submit to: (1) panograph x‐rays; (2) full mouth x‐rays; and (3) full mouth photograph. The court signed its written order to that effect on January 8, 2020. The written Order also states that plaintiff shall make the appointment for the x‐rays within two weeks of the court's signing the order. (See Ex. A to Yu Decl. filed 2/13/20.) Defendant's ...

Excerpt: ...ng Requirement. Defendants must support a motion for summary judgment with competent evidence in order to shift to the plaintiff the burden of coming forward with opposition evidence. (See generally, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854‐855; Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 50.) In other words, if the defendants' showing would not support a judgment, it does not shift the burden of coming forward ...

Excerpt: ...ties referred their dispute to a referee, retired Superior Court Judge Bonnie Sabraw. After a trial, Judge Sabraw ruled against West One and awarded attorney's fees to CMG. West One now moves to Set Aside Judge Sabraw's Final Statement of Decision. For the reasons stated below, the motion is denied. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/11/20 ‐ 2 ‐ Facts CMG and West One executed a “Correspondent L...

Excerpt: ...t jurisdictional discovery and for the parties to file supplemental papers to address the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/11/20 ‐ 17 ‐ Court's ability to exercise personal jurisdiction over Brookfield Residential Properties, Inc. Plaintiff shall file a supplemental brief and any supplemental evidence in support of its opposition at least nine (9) Court days prior to the continued hearing, and s...

Excerpt: ...201(a)(1). Plaintiff's attorneys are ordered to provide the court clerk in D33 with two redacted copy of exhibit 6 that remove the social security number on or before June 25, 2020. A cover letter should be included to ensure these documents are delivered to D33. Defendants' exhibits A and B contain the social security number of the Plaintiff. The last two pages in exhibit F also contain the social security number of the Plaintiff. These are also...

Excerpt: ...edge or consent of Plaintiff, purchased two more motorcycles and equipment, by forging Plaintiff's name for the approval of the loans from Suzuki Finance. Defendant defaulted on the loans. Collection agencies demanded payment from Plaintiff. Plaintiff filed this action for Fraud and Misrepresentation, Breach of Contract, Negligence, and Indemnity. Defendant failed to file an answer and Plaintiff's request for entry of default was granted. Upon Pl...

Excerpt: ...“PHH”) (collectively, “Defendants”). The CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/04/20 ‐ 10 ‐ Demurrer relates to the First Amended Complaint (“FAC”) filed by Plaintiff Saviour Azzopardi (“Plaintiff” or “Azzopardi”). The FAC alleges cause of action for (1) wrongful foreclosure; (2) declaratory relief; (3) cancellation of instruments; and (4) to set aside trustee's sale. Defendants d...

Excerpt: ...collectively, “Plaintiffs”)'s claims for (1) elder abuse, (2) violation of resident's rights, and (3) wrongful death. Plaintiffs oppose the motion. For the reasons discussed further below, the motion is denied. Burden of Proof on Motion to Compel Arbitration Code of Civil Procedure (“CCP”) § 1281.2 creates a summary proceeding for resolving petitions to compel arbitration. “A petition to compel arbitration ‘is in essence a suit in eq...

Excerpt: ...ment, since they cannot perform the future services described in the settlement and they have not filed a motion to enforce the settlement under Code of Civil Procedure § 664.6. 2. Whether Phillips' acceptance of the settlement check after filing the motion means he intends to affirm the settlement, rather than seeking to vacate it; 3. If Phillips still intends to try to vacate or rescind the settlement, whether he has returned the settlement pa...

Excerpt: ...taneously pending, the trial court in which the unlimited action is pending [1] may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or [2] it may consolidate the actions. (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 385 [Bracketed numbers added].) While Martin‐Bragg and other cases mention consolidation as a theoretical possibility, plaintiff has failed to cite the Court to a decision wher...

Excerpt: ...ntiff has shown the threat of irreparable harm, in the form of the loss of a unique parcel of real property. The Factual Merits. The evidence is in conflict. The Court does find it somewhat odd that plaintiff had in his possession a full written agreement for the repayment of arrearages, CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/27/20 ‐ 7 ‐ if the agreement was just a working draft that had not been appr...

Excerpt: ...) § 1008 on the grounds that had it known the Court would grant the motion it would have argued that Defendant's performance was a condition concurrent rather than a condition precedent (as it argued at the hearing). Code of Civil Procedure § 1008(a) provides that a party affected by a prior court order may, “based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconside...

Excerpt: ...s dispute over the charges with the Illinois‐based merchant, plaintiff The Parts Place, Inc. Plaintiff obtained a judgment in California for $10,418.39 based on the Illinois sister‐state judgment. Defendants now move to vacate that judgment, arguing that Illinois lacked personal jurisdiction over them, they were not properly served, and, their motions are timely. For the reasons stated below, each defendant's motion is granted. Factual backgr...

Excerpt: ...ows. A. The Pleading Of Plaintiffs' Complaint. A motion for summary adjudication “necessarily includes a test of the sufficiency of the complaint.” (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117‐18.) In this context, the courts consider the motion under the same standards applicable to a motion for judgment on the pleadings. (Id.) B. The First And Second Causes of Action. The First and Second Causes of Action a...

Excerpt: ...uise Wilkins (the Brown plaintiffs). Both complaints allege injuries to the plaintiffs resulting from a fence owned and maintained by Caltrans. Code of Civil Procedure section 437c(c) provides, in relevant part: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Based on the papers sub...

Excerpt: ...Theatre in Antioch. Over time, the business grew and changed into a real estate ownership, management and development company. George Stamm (“George I”) left the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/20/20 ‐ 18 ‐ business to his children, George II and Mary Ann Balocco. This created two factions of owners, Plaintiffs (Stamm Family) and Defendants (Balocco Family.) On February 17, 2017, the Stamm ...

Excerpt: ...Buck, an employee of the County's Regional Medical Center, failed to tell her during an emergency room encounter on February 7, 2018, that she had a serious heart condition that required hospitalization and/or a cardiac consultation. Further, plaintiffs, who are the husband and minor son of Sarah, claimed they did not have sufficient knowledge or suspicion for the statute of limitations to start to run until August 27, 2018. Plaintiffs then prese...

Excerpt: ...nnot be completed while the unit is occupied, if the landlord has obtained all necessary permits prior to giving the tenants notice to vacate and thereafter makes the repairs without unnecessary delay. Plaintiffs fail to allege facts implicating § 8.22.260(a)(10). They did not vacate their apartment as a result of a notice to vacate after Defendants had obtained permits to make repairs. Rather, they vacated their apartment as a result of a fire....

Excerpt: ...es of action against Kingsmead (1) to set aside trustee's sale, (2) cancellation of instrument, (3) wrongful foreclosure, (4) breach of contract, and (5) declaratory relief. Plaintiffs have both opposed the instant motion and filed a declaration with a proposed First Amended Complaint. For the following reasons, the Court grants the MJOP, with leave to amend. The Court does not consider new legal theories advanced in the FAC on the present motion...

Excerpt: ...Petitioner”). The Petition names 1827 H. Place, Inc. as a respondent as the real property in interest which filed a claim to the proceeds that was paid by Respondents. That party has not made an appearance in the action to date. For the reasons stated, the demurrer is SUSTAINED, with leave to amend. Summary of Material Allegations of the Petition Global alleges it has a claim to excess proceeds of a tax sale of real property located in Contra C...

Excerpt: ...st 8, 2016. Ms. Baker suffered from Alzheimer's disease and the primary focus of choosing Defendant Tiffany Court as a residential facility was its advertised specialty in caring for patients with Alzheimers. On June 18, 2016, at approximately 7:45 p.m., Ms. Baker was found outside, lying on the ground. Ms. Baker had wandered from the facility, without her walker, and had suffered a fall. Ms. Baker had severely fractured her humerus, requiring su...

Excerpt: ... 01/30/20 ‐ 23 ‐ arbitration of the claims and to stay the action pending arbitration. Gervasio opposes the petition on several grounds, including on the ground that he did not execute the arbitration agreements attached to the petition. For the reasons set forth, the Court finds that a valid and enforceable arbitration agreement exists. The petition is GRANTED under the terms of this ruling, and the action is stayed pending completion or ter...

Excerpt: ...in April 2016 with a policy limit of $65,000. (D's Ex. 3; SAC ¶11.) Plaintiff had several pieces of jewelry stolen that were worth approximately $50,000. (D's Ex. 11 and 34.) However, because of the limitation on thefts of jewelry stated in the written policy, CSAA only paid $2,500 for the stolen jewelry. (Hughes Decl.¶¶32 and 34; D's Ex. 34 and 36.) CSAA paid Plaintiff $29,957 on this claim. (D's Ex. 36.) Had all of Plaintiff's jewelry been c...

Excerpt: ...on which a reasonable trier of fact could conclude that Becker's conduct exhibited a conscious disregard of Benjamin's safety or was despicable. Becker's motion for summary adjudication that plaintiffs may not recover punitive damages against him is therefore granted. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/30/20 ‐ 10 ‐ The Law Of all the classes of cases in which punitive damages are sought, the most ...

Excerpt: ...eld in contempt for failure to comply with this Court's August 14, 2019 judgment which required production of the landfill records at issue in this case. The Court finds that the August 14, 2019 judgment was not automatically stayed for the reasons described further, below, but declines to order sanctions at this time. Defendants have until February 28, 2020 to either produce the tags at issue or apply for a discretionary stay of the August 14, 2...

Excerpt: ... discovery or further investigation reveal new facts supporting such a claim. Background Defendant Laura Lee Kaiser is a licensed registered nurse employed by Defendant John Muir. During her employment with John Muir, Defendant Kaiser improperly accessed and CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/23/20 ‐ 9 ‐ reviewed Plaintiffs' Confidential Medical Information (“CMI”). At no relevant time was Def...

Excerpt: ...tion, however, in ruling on a motion under section 877.6 is not unlimited and should be exercised in view of the equitable goals of the statute, in conformity with the spirit of the law and in a manner that serves the interests of justice.” (Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865, 873.) “Equity is the aim of section 877.6. The dual equitable goals of section 877.6 are ‘equitable sharing of costs amon...

Excerpt: ...ed their right to judgment as a matter of law. Documents “filed” under seal At the outset, the court addresses defendants' attempt to file all papers in support of their motion other than the Notice of Motion under Seal. Rule of Court 2.551 does not permit a party to file documents under seal just because the parties have executed a Stipulated Protective Order. (CRC 2.551 (a).) Rather, a party wishing to file a document under seal must file a...

Excerpt: ...st in property through a deed of trust that was recorded contrary to the intent and instructions of the trustor is analogous to obtaining such an interest through forgery. (See, Wutzke v. Bill Reid Painting Serv. (1984) 151 Cal.App.3d 36, 43‐44. See also, Trout v. Taylor (1934) 220 Cal. 652, 656 [an undelivered deed or a deed in blank is void]. Cf. Buck v. Superior Court of Orange County (1965) 232 Cal.App.2d 153, 162 [“[w]here a person who h...

Excerpt: ...quiet title to real property commonly known as 1100 Russelman Park Road in Clayton (property referred to as 1160 Russelmann Park in some documents.) Plaintiff alleges it owns the property by virtue of its purchase at a trustee's sale held on February 17, 2011 pursuant to a non‐judicial foreclosure sale. Plaintiff's ownership came through the second Deed of Trust. On November 21, 2005, Defendant Victor Weber borrowed $450,000. Weber used the pro...

Excerpt: ...esota Avenue and (2) illegal parking along Minnesota Avenue. Both issues are challenged under Code of Civil Procedure section 1085. Center Median Petitioner argues that the center median along Minnesota Avenue in front of Petitioner's property was not constructed in accordance with the Conditions of Approval for subdivision 8311 (which is next to Petitioner's property on Minnesota Avenue). Petitioner alleges that the Conditions of Approval for su...

Excerpt: ...assigned their rights against the Defendants and Cross‐Defendants to Hassan. Hassan moves pursuant to Code of Civil Procedure § 473(a) to name himself as the cross‐complainant and strike the Planks from the cross‐complaint filed on October 13, 2017. He also moves pursuant to Code of Civil Procedure § 474 to amend the cross‐complaint to name six additional cross‐defendants: H. Max Peyvan, Renee Peyvan, Massoud Fanaieyan, Richard Kraber...

Excerpt: ...amounts owed Plaintiff ICC under the Indemnity that preclude summary judgment. Plaintiff's motion for summary judgment is therefore DENIED. Factual Summary ICC asserts two causes of action in its complaint: a first cause of action for breach of contract based on breach of a General Indemnity Agreement against Defendant Amana Engineering & Construction, Inc. (“Amana”), its president Defendant A. Nasser Jandali (“Jandali”), and Defendant Na...

Excerpt: ...park" as to be inconsistent with the objectives of the good faith requirement. The Settlement Agreement includes the key terms: 1. Goldtab's insurance company would pay Plaintiff $1.6 million in exchange for a release of Plaintiff's claims against Mr. Levy, Goldtab, and associated entities, specifically including Goldtab's franchisor, “2946033 Canada, Inc. dba The Mad Science Group” (“MSG”). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNI...

Excerpt: ...et and conferred only by letter, and not “in person or by telephone” as the governing statute requires. (See, Code Civ. Proc, § 430.41, subd. (a).) The parties shall comply with the meet‐and‐confer statute in the context of any renewed demurrer. The Public Entity Defendants. Plaintiff alleges that that defendants County Connection and County Connection Link are public entities. (Complaint, ¶ 2.) However, plaintiff has improperly ignored...

Excerpt: ...the cross‐complaint is a SLAPP because it was filed in retaliation for a discovery dispute in this case. Colbert's motion misunderstands the relevant inquiry in the first prong of an anti‐SLAPP motion and has this Court questioning whether Cross‐Complainants are entitled to their attorney fees for having to oppose this motion. It has been long established that in order for a complaint to be within the anti‐ SLAPP statute, the “critical ...

Excerpt: ... case using the “lodestar” method, which simply involves multiplying the number of hours spent by the hourly compensation of each attorney to arrive at a base value. Komarova v. National Credit Acceptance, Inc. (2009, 1st Dist) 175 Cal App 4th 324). The hours spent and the rates charged must be reasonable, as determined by the standard rates and hours charged to fee‐paying clients. The court finds that the hourly rate of $400 is too high gi...

Excerpt: ...nged because Plaintiff cannot show the lis pendens is based on real property claims (Code of Civil Procedure § 405.31) and because Plaintiff cannot produce evidence showing a probable validity of the real property claim CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/09/20 ‐ 2 ‐ (Code of Civil Procedure § 405.32). Plaintiff has the burden on both these issues. (Code of Civil Procedure §405.30; see also, Kir...

Excerpt: ...fendant Almaden Associates, LLC (“Almaden” or “AA”), and Defendant Corrie Development Corporation, a California corporation (“CDC”) (collectively, “Defendants”). Plaintiffs seek an order for issuance of a writ of attachment against the entity defendants, Almaden Associates and Corrie Development Corporation in the amount of $1,401,500.00, but does not identify any specific bank accounts or real property. For the following reasons,...

Excerpt: ...om the Richmond Police Department. Dorton says that those officers employed excessive force during the course of that arrest. Apparently with limited exceptions, Dorton was then incarcerated from November 24, 2018 to approximately March 14, 2019. In late March or early April of 2019, Dorton retained present counsel to pursue this matter. Counsel engaged in a factual investigation of the matter, apparently consisting of (1) sometime between May 13...

Excerpt: ...the medical office building located at 400 Taylor Boulevard in Pleasant Hill. On or about July 20, 2006, Dr. Patel and Dr. Sirott formed 400 Taylor and on March 26, 2007, Dr. Patel and Dr. Sirott entered into the Operating Agreement for 400 Taylor LLC. Drs. Sirott and Patel were and still are the managers of 400 Taylor. There had been a vacant suite at the Subject Property since the inception of 400 Taylor, LLC in March of 2007. On October 30, 20...

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: ...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: ...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: ...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: ...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: ... 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: ...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: ...uir Health. However, at no relevant time were Defendants Kaiser or John Muir Health responsible for the medical care and treatment of J.K. Defendant John Muir Health learned that Defendant Kaiser, during her employment with John Muir, improperly accessed and reviewed Plaintiffs' Confidential Medical Information (“CMI”). On or about April 10, 2017, for the first time, Plaintiffs were informed by John Muir that Defendant Kaiser had, “without ...

Excerpt: ...n his payments, under a written agreement. Plaintiff alleges Defendant Bee Automotive obtained the vehicle for services on April 10, 2017. Plaintiff learned of Bee's possession of the vehicle when Defendant Bee applied for permission to sell the vehicle. On June 14, 2017, Plaintiff's counsel sent a demand for the vehicle to Bee Automotive, along with a tender of the amount provided by law for storage, towing, etc. The tender was rejected. Plainti...

Excerpt: ...s, Presumptions, and Findings of Fact In ruling on a motion to compel arbitration, the trial court shall order parties to arbitrate “if it determines that an agreement to arbitrate the controversy exists[.]” “[T]he party CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 09/05/19 ‐ 19 ‐ seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence,...

Excerpt: ...laintiff's Additional Fact (“PAF”) Nos. 38, 39, 42‐60, 62.) Further, section 846 does not apply to either Amtrak or BNSF even as to their duties as owners of an estate in real property if they are liable of willful misconduct, and there is a triable issue of fact whether they are. (PAF 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33.) As for the individual issues that defendants want adjudicated: 1. Plaintiff's negligence claims ...

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: ... 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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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...