Excerpt: ...ollectively, “Plaintiffs”). This is an unlawful foreclosure case. The Complaint pleads causes of action for (1) violation of Civil Code § 2924; (2) violation of Civil Code § 2923.6(c); (3) violation of Civil Code § 2923.7; (4) violation of Civil Code § 2924.9; (5) violation of Civil Code § 2924.10; (6) negligence; (7) unfair business practices (Bus. & Prof. Code § 17200, et seq.); and (8) cancellation of instruments (Civil Code § 3412)...

Excerpt: ...its. In support of their special demurrer, defendants pointed out many inconsistent or otherwise confusing allegations that render plaintiffs' complaint ambiguous and unintelligible. Plaintiffs failed to address the special demurrer in their opposition memorandum, leaving the special demurrer functionally unopposed. (See, Cal. Rules of Court, rule 8.54, subd. (c) [“[a] failure to oppose a motion may be deemed a consent to the granting of the mo...

Excerpt: ...f action for (1) declaratory relief, and (2) violation of Civil Code § 2923.6. Plaintiffs moved ex parte for a temporary restraining order on August 23, 2019. The Court heard the ex parte application, granted the TRO, and entered an order to show cause why a preliminary injunction should not be granted calendared for September 26, 2019. The parties stipulated to continue the hearing date and the matter is now before the Court. For the following ...

Excerpt: ...llowing reasons, Defendant's motion is denied. Papers Before the Court On or about December 12, 2019, Plaintiff filed a document titled “Plaintiff Tami Ware's Amended Statement of Disputed Facts and Additional Undisputed Material Facts in Opposition to CSAA's Motion for Summary Judgment or Alternatively Summary Adjudication.” This document is untimely, and no arguments or evidence have been offered to show good cause for its inclusion in the ...

Excerpt: ...Astro Construction (“Riley,” “Astro,” or “Plaintiff”)'s First Amended Complaint (“FAC”). The FAC alleges seven causes of action for: (1) breach of oral contract, (2) complaint for services, (3) promissory estoppel, (4) fraud, (5) violation of prompt payment statute, (6) recovery on payment bond, (7) enforce of stop payment notice, and includes a prayer for punitive damages. Defendants move for summary judgment pursuant to Code of ...

Excerpt: ...een made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. Section 100...

Excerpt: ...TINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 12/19/19 ‐ 18 ‐ This case presents the question whether a tenant who raises habitability claims as an affirmative defense in an unlawful detainer action and receives a partial rent reduction based on such claims may thereafter file a civil lawsuit seeking recovery for personal injuries and emotional distress based, at least in part, on those same habitability claims. Under the circumstances of th...

Excerpt: ... unopposed request for judicial notice is granted. Defendant 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. 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 pleade...

Excerpt: ... in the Company was owned by a third party.) This ruling refers to Kerry Murphy as Defendant and Michael Verlander as Plaintiff, however, this ruling also applies to Margaret Murphy and Janet Verlander. Together the parties operated a winery for a number of years. In 2015, Plaintiff sold his shares in those companies to Defendant pursuant to a Purchase and Sales Agreement. The parties signed the PSA on May 11, 2015 and escrow closed on this agree...

Excerpt: ...he plaintiffs' property, outside the easement area, without express permission from plaintiffs or plaintiffs' counsel. Plaintiffs have failed to present any evidence that the construction activities of defendant have occurred, or may occur, at unreasonable times. As a result, the Court declines to limit the schedule of any ongoing activities incidental to construction. The undertaking is set in the amount of $5,000. (Code Civ. Proc. §§ 529, 995...

Excerpt: ...n Lafayette. (FAC, ¶¶6, 11.) Defendants acted as a dual agent representing both the plaintiff (buyer) and seller in the transaction. (FAC, ¶¶12‐13.) Plaintiff alleges that defendants represented the lot as “buildable” without any basis, and that plaintiff purchased the lot in reliance on that statement and lack of disclosures. Plaintiff contends that the lot was not buildable, and that he incurred significant damages resulting from his ...

Excerpt: ...aying no role in the foreclosure process. This relief is conditioned on plaintiff posting an undertaking in the sum of $ 1,000.00, on or before December 20, 2019. The basis for this ruling is as follows. A. Preliminary Matters. Plaintiff's evidentiary objections, filed on October 4, 2019, are moot. Mr. Nejat filed a supplemental declaration on November 14, 2019, and plaintiff has not filed evidentiary objections directed to that supplemental decl...

Excerpt: ...ts “on any basis not inconsistent with the Constitution of this state or of the United States.” (Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17.) “‘When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.'” Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17, internal quotation marks omitted.) “If the pl...

Excerpt: ...the tripartite membership works among the American Dental Association, California Dental Association and the component societies for each county in California. She states the both CCDS and MCDS approved Dr. Clark's request to remain in the CCDS, notwithstanding the fact that she may no longer live, work, or practice in Contra Costa. (RossPatchin Decl., ¶15(A).) The CDA recognized and approved the transfer exception as a final resolution to Dr. C...

Excerpt: ...um of $ 1,000.00, on or before November 22, 2019. The basis for this ruling is as follows. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/07/19 ‐ 6 ‐ A. Preliminary Matters. Plaintiff's evidentiary objections, filed on October 4, 2019, are sustained. Mr. Nejat has not established personal knowledge of the matters that are the subject of his declaration, has not stated his qualifications as a custodian of reco...

Excerpt: ...tiff offers no evidence that defendant Mehrzad Azari is mismanaging the subject businesses in a manner that is causing harm to the businesses; plaintiff simply objects to the amount of compensation that Mr. Azari is receiving from the profits of the businesses. This is an objection that can be fully remedied through an award of monetary damages. A‐2. The Threat of Disruption. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARI...

Excerpt: ...not addressing the substance of the motion now, the Opposition that plaintiff filed on 11/4/15 raises several issues that require discussion. First, plaintiff argues that defendant has no right to bring this motion because the motion is based on the same grounds as defendant's previous motion and thus violates CCP § 437c (f)(2). However, the court denied defendant's previous motion “without prejudice,” so this argument lacks merit. Second pl...

Excerpt: ...4, constitute “new law” within the meaning of CCP § 1008. (See Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal.App.4th 197, 205‐206, overruled on other grounds in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) Those cases do not change the analytical framework for deciding a Petition like this. Each case applied the framework established by Wood v. Superior Court (1985) 166 Cal.App.3d 1138, 1148‐1150, overruled...

Excerpt: ...) is the former Head of School for Orinda Academy, during the relevant period. The causes of action against Graydon have been dismissed as a result of Defendants' demurrer to Plaintiff's Complaint. Orinda Academy hired Plaintiff Mitchell Goldman as a full‐time math teacher in January 1988 in the middle of the school‐year. He signed four written teacher agreements in the first few school years he taught at Orinda Academy. That practice ceased ...

Excerpt: ...Does that mean that every promotion likewise results in a new employment? That the County may or must go back and pay Kensok for his unused vacation as of the date he first entered upper management in 2012 and pay him for those hours at the lower rate he was earning then rather than at the presumably higher rate in 2018? While the County's apparent policy of paying unused vacation at an employee's final rate causes what Kensok perceives to be a h...

Excerpt: ...TC's business due to the dissension amongst the parties and an appointment of a receiver is necessary to protect and preserve Plaintiff's property, the “Requested Information” (the books and records of CITC). Although Plaintiff disputes CITC's books and records are joint assets, the Court is “authorized to appoint a receiver ‘in an action . . . between partners or others jointly owning or interested in any property or fund . . . where it ...

Excerpt: ...1. There Is No Jurisdiction. A judgment was entered in favor of the individual defendants on May 15, 2019. The entry of this judgment deprived the Court of jurisdiction to hear any motion for reconsideration concerning the individual defendants. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859, fn. 29 [“[a]fter entry of judgment, the superior court did not have jurisdiction to entertain or decide a motion for reconsideration”]; A...

Excerpt: ...ment or writing made in a place open to the public or a public forum in connection with an issue of public interest”. Plaintiffs are suing Sinclair for making allegedly disparaging and false statements about New U Life, its products and Goldstein. Plaintiffs' complaint focuses on statements about: (1) the side effects of the Plaintiffs' product, (2) that Goldstein stated no one with cancer should use the product, (3) that Goldstein stated woman...

Excerpt: ...constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” The parties focus on whether the statements involved a matter of public interest. After the filing of this motion, the California Supreme Court added a second prong of analysis when determining if something is protected activity under (e)(4). In FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 t...

Excerpt: ...i restaurant in Concord, California under the name, “Naan N Curry,” in Concord, CA. See Declaration of Muhammed Akbar (“Akbar Decl., paragraphs 2, 3, 4) A year prior to the restaurant's opening, Atique Rehman (“Rehman”), Akbar's brother‐inlaw, incorporated Ariana. The purpose of the incorporation was to own and operate Naan “N” Curry, located at 2068 Salvio Street in Concord. Akbar is the President of Ariana Food. See Akbar Decl.,...

Excerpt: ... negligence; (2) invasion of privacy; and (3) negligent infliction of emotional distress. For the following reasons, the Demurrer is overruled. Factual Background In March 2018, a journalist made a California Public Records Act request to the District for records regarding Plaintiff Timothy Farley, a recent, former president of the District's Governing Board. (Compl. at ¶ 6.) On April 2, 2018, the District disclosed some documents, including a P...

Excerpt: ...th respect to that issue only. See CCP Section 1281.4. There is no stay of the underlying action or Sekk Diane's Cross‐Complaint for any other claims other than the third cause of action for Declaratory Relief Re: Contractual Indemnity. SUMMARY OF RELEVANT FACTS On or about August 12, 2015, Sekk Diane entered into a Purchase and Sale Agreement (“Diane Purchase Agreement”) for the sale and purchase of the property located at 1760 Diane Court...

Excerpt: ...respect to that issue only. See CCP Section 1281.4. There is no stay of the underlying action or Sekk Virginia's Cross‐Complaint for claims other than those concerning contractual indemnity and declaratory relief. SUMMARY OF RELEVANT FACTS On or about December 2015, Cross‐ Defendant Sekk Investments Virginia, LLC (“Sekk Virginia”) purchased 1120 Virginia Lane in Concord, California from Ridgegate. See Declaration of Charlie Chou (“Chou ...

Excerpt: ...ntiffs have failed to plead specific facts to establish punitive damages. For the following reasons, the motion is denied. Background This is a wrongful death action rising from decedent Benjamin Curry drowning in his high school physical education class. Plaintiffs allege that Aaron Becker, the physical education teacher, failed to appropriately supervise students, including Benjamin, during and after a swimming exercise. (FAC, ¶ 2‐4.) Analys...

Excerpt: ...he same motion, Gonzalez CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/27/19 ‐ 3 ‐ also moves for summary judgment as to the Complaint in subrogation filed by Plaintiff Republic Electric West (“REW”), the employer of Plaintiff Mejia. The second motion is filed by the general contractor on the project, New American Group, Inc. (erroneously sued as New American Homes, Inc.) (“NAGI”) as to the Complaint...

Excerpt: ...��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).) Defendants move to strike the following from Plaintiffs' Amended Complaint: Item 1: Page 7; ¶¶ 40‐44, All mention of Intentional Emotional Distress; Item 2: Page 8, ¶¶ 45‐48, All mention of Negligent Emotional Distress: The Court grants the mot...

Excerpt: ...) This is without prejudice to any petitions or actions that may be filed in the future once any small wireless facilities are actually installed or receive permits to be installed or the Policy contemplated by Ordinance Number 488 is actually adopted. Petitioners are a former city council member and a former mayor of San Ramon. They seek a Writ of Mandate invalidating a Resolution that the City adopted on January 8, 2019, Resolution No. 2019‐0...

Excerpt: ...worked for the Defendant as an Independent Sales Representative within Northern California. (Compl. at 3:19‐22, Ex. A at 1.) Defendant Zaner‐Bloser is a publishing company that develops, publishes and distributes educational materials. (Compl. at 2:1‐2.) Defendant is an Ohio corporation with its headquarters in Columbus, Ohio. (Compl. Ex. A at 1.) Plaintiff and Defendant first entered an agreement in October 2017. (Compl. at 3:20.) This wri...

Excerpt: ... arose out of the sexual molestation of minor Plaintiffs Bailee Burks and Peyton Burks by Leroy Perdue, their grandfather. Hon. Steven Austin held a settlement conference with the parties and a settlement was reached on December 19, 2018. The settlement entered into between the children, by and through their mother and Guardian Melissa Perdue, and Defendant Leroy Perdue on that date was a judicially supervised settlement, a settlement agreement w...

Excerpt: ...9 ‐ 2 ‐ 1. Background. This is a premises liability personal injury action arising out of an incident that occurred on November 15, 2013, when plaintiff's shoe became lodged in a hole in the floor at the business premises of her employer, YP Holdings. At the time of the incident, the hole was covered by carpet and was not observable. (Undisputed Material Fact (“UMF”) No. 10, 11, 12.) YP Holdings rents space at an office building in Concor...

Excerpt: ...ted to a railway crossing for Plaintiff to cross the railway and access the other side of his land. BNSF is seeking summary adjudication of causes of action (1) quiet title, (2) declaratory relief, (3) specific performance and (4) breach of contract. BNSF's motion does not address causes of action (5) trespass and (6) nuisance. Quiet Title (Cause of Action 1) Plaintiff alleges that BNSF was obligated to include a rail crossing and BNSF's removal ...

Excerpt: ...the hearsay rule applies or that Urroz is an appropriate witness to show that it applies. (See Evid. C. § 1271 and 1271 (c).) The court grants summary adjudication as to the Second Cause of Action, for Fraud, because plaintiff has not raised a triable issue of fact that the alleged misrepresentation after the auction sale caused her any damages. (See Undisputed Material Fact No. 8; Complaint, ¶ FR1.) Further, the court rules that the provision ...

Excerpt: ... 240 Cal.App.4th 246, 255‐256 (facts); Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 (that losing party believed court misapplied the law was not new law); cf. State of California v. Superior Court (2016) (new appellate decision issued five months after original order qualified as new law). Whatever legislative history plaintiff purports to have found, she could have found and presented it on defendant's original motion. It constitutes...

Excerpt: ...murred to the 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 on March 27, 2017, but the co...

Excerpt: ...s to the Second Cause of Action as to the City only. Leave to amend is granted because, while this is plaintiffs' Third Amended Complaint, these defendants were not added to the case until plaintiffs filed their First Amended Complaint. Further, the court has only ruled on the legal sufficiency of plaintiffs' allegations once, on the demurer to that version of the complaint. The Second Amended Complaint was superseded by the TAC before the court ...

Excerpt: ...tiff agreed to provide the residential property located at 30 Rio Vista in Orinda to Defendant and Defendant agreed to make monthly payments. Defendant allegedly breached the agreement by failing to pay rent for the period of July 23, 2018 through September 10, 2018. Plaintiff also alleges Defendant sawed down a medium‐sized oak tree located in the side yard, removed a light fixture from the bedroom, failed to maintain the yard, and dumped 60�...

Excerpt: ...e of Action. The first cause of action is for breach of fiduciary duty. Successful pleading of such a cause of action requires facts establishing that (1) defendants owed plaintiffs a fiduciary duty, (2) said duty was breached, and (3) the defendant's actions damaged the plaintiff. (Wolf v. Superior Court (1992) 107 Cal.App.4th 25.) A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is du...

Excerpt: ...resent duty of defense against plaintiffs' lawsuit. (See CCP § 437c (c); Disputed Material Fact Nos. 1, 2; Additional Material Fact Nos. 12, 14, 15, 17, 18, 19, 20, 23, 24, 26, 29, 30, 31, 32, 34.) 1. Background. On March 1, 2016, Ana Gonzalez was injured when she was struck by a car while eating lunch at a table on the common area sidewalk outside of Mariachi's restaurant in Walnut Creek in the Countrywood Shopping Center. Gonzalez had purchase...

Excerpt: ...action for misappropriation of trade secrets, customers and employees by plaintiff, Fresh Source, against the former President of its Northern Division, Scott Dagen, and Fresh Source's competitor, defendant HS &R Fresh. The FAC alleges the following causes of action: (1) Interference with Contract; (2) Interference with Prospective Economic Advantage; (3) Conversion; (4) Statutory Theft; (5) Violation of Business and Professions Code § 17200; (6...

Excerpt: ...il Code § 2923.6(d); (4) violation of Civil Code § 2923.7(b)(1); (5) negligence; and (6) violation of Bus. & Prof. Code § 17200 et seq. The fourth cause of action Plaintiff moved ex parte for a temporary restraining order on April 24, 2019. The Court heard the ex parte application, granted the TRO, and entered an order to show cause why a preliminary injunction should not be granted calendared for May 30, 2019. For the following reasons, the P...

Excerpt: ...trike under Code of Civil Procedure section 425.16 involves a twostep process. “Initially, the moving defendant [or cross‐defendant] bears the burden of establishing that the challenged allegations or claims ‘aris[e] from' protected activity in which the defendant [or cross‐defendant] has engaged. [Citations.] If the defendant [or cross‐defendant] carries its burden, the plaintiff [or cross‐complainant] must then demonstrate its claim...

Excerpt: ...fendant Jiulong Meng, Plaintiff Ying Lu purchased a condominium unit in Stockton. Meng used his own funds to purchase the unit for $58,500, while Plaintiff applied for a Home Equity Line of Credit to repay Meng for the purchase, which totaled $60,014.15. On December 13, 2017, Meng proposed in writing that instead of Plaintiff paying the interest owed to him, Plaintiff would make of loan of $35,000 to him for 2‐3 months. Plaintiff agreed. On or ...

Excerpt: ...he 10th day of each month, with the first payment due on June 10, 2019. These payments will be applied to plaintiff's mortgage loan account. In order to properly decide a request for a preliminary injunction, the Court must assess the likelihood that plaintiff will prevail on the merits. However, in the case at bar doing so is almost impossible at this time, because plaintiff has agreed to file an amended complaint, and that amended complaint is ...

Excerpt: ...nts for IIED. Instead, the City argues that as a public entity it cannot be liable for the actions of its employee. The City relies on Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900, which held that Government Code section 815 abolishes common law liability for public entities. In that case, the court upheld the dismissal of plaintiff's claim for wrongful termination in violation of public policy. Plaintiff points out t...

Excerpt: ...First Cause of Action (Right to Repair Act) The demurrers to the first cause of action are overruled. First, the parties dispute whether Civil Code sections 895 et seq. (the Right to Repair Act) apply. Plaintiffs allege they were told that the house was new when they bought it in 2013 and that a previous home on the property had been torn down. (Complaint, ¶¶ 16, 17.) Defendant argues that the property was built in 1951 but cites exhibits to th...

Excerpt: ...ve to amend to add a claim for strict liability as well as a claim based on an alleged breach of Health and Safety Code section 113790. However, the relief that plaintiff is requesting on all his causes of action is still only for damages related to his injuries. The proposed First Amended Complaint does not contain a request for injunctive relief. Nevertheless, plaintiff now moves for a preliminary injunction. A preliminary injunction may be gra...

Excerpt: ...ode of Civil Procedure § 473(b) must provide facts showing that the default and/or default judgment was entered through the defendant's “mistake, inadvertence, surprise, or excusable neglect.” Courts have defined inadvertence “as lack of heedfulness or attentiveness, inattention, fault from negligence.” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.) Excusable neglect is “neglect which might have been the act of a reasonably prude...

Excerpt: ...urt, rule 3.1110, subd. (f).). None of the exhibits to the opening Declaration of Chere' Tait, the reply declaration of Dominica Acosta, were tabbed, or the supplemental declaration of Dominica Acosta (filed on March 21, 2019) were tabbed. A. Contract Formation. The issue of whether the parties entered into an enforceable arbitration agreement is an issue that the trial court must always decide. (9 USCS § 4 [if there is a dispute over the existe...

Excerpt: ...tive relief, and (3) declaratory relief. Defendant moves for summary judgment against Plaintiff's claims for breach of contract and injunctive relief pursuant to Code of Civil Procedure (“CCP”) § 437c on several grounds. Plaintiff has opposed the MSJ and requested a continuance pursuant to CCP § 437c(h). For the following reasons, the court grants the request for a continuance. The hearing on the motion for summary judgment and motion for j...

Excerpt: ...e jewelry. During a meeting on or about October 20, 2015, Plaintiff met with Mapp and explained to him that she wished to purchase insurance to protect her personal property, and she specifically mentioned individual jewelry items she wished to protect. (First Amended Complaint (“FAC”), paragraph 6) Mapp informed Plaintiff about a CSAA insurance policy that Mapp represented would completely cover Plaintiff's property, inclusive of the jewelry...

Excerpt: ... Christopher Martini, an air conditioning technician, was injured during the course and scope of his employment with Atlas Heating & Air Conditioning. Defendants NEK Insurance, Inc. and NEK Life Insurance Planning, Inc. had arranged for Atlas to perform various repairs and/or maintenance to their air‐conditioning units located on the roof of their premises. On August 14, 2015, Plaintiff arrived at the premises located at 11481 San Pablo Avenue ...

Excerpt: ... WorldGrill, LLC and Fortress Restaurant, Selina Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant (Contra Costa Superior Court Case No. C17‐00563): This case was filed on April 6, 2017. Plaintiff Tcheong, LLC (“Tcheong”) filed a First Amended Complaint on July 28, 2017. The FAC alleges that on or around April 2016, Defendants Peter and Salina Ramirez, individually and dba The WorldGrill, LLC and Fortress Restaurant,...

Excerpt: ...te Connections US, Inc., Madera Disposal Systems, Inc., Potrero Hills Landfill, Inc., and Waste Solutions Group of San Benito, LLC (collectively, “Defendants”). ACWA moves for judgment pursuant to Code Civ. Proc. § 438(c)(1)(A) on the grounds that the undisputed facts establish as a matter of law that ACWMA has a justiciable cause of action against Defendants and that each of Defendants' remaining affirmative defenses lack merit. For the fol...

Excerpt: ... County of Santa Barbara (1994) 7 Cal.4th 725, 740‐741.) The basis for confirming the arbitration award is as follows. A. The Arbitrator's Powers. The parties' arbitration clause provides in pertinent part as follows: The prevailing party in any action to enforce the terms of this Agreement or otherwise to determine the rights and obligations of the parties shall be entitled to recover reasonable attorneys' fees, arbitration fees and costs and ...

Excerpt: ...eriod has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, ei...

Excerpt: ...gainst Defendant Panchal, Defendant John Muir Health and other John Muir doctors for failure to diagnose cauda equine syndrome from September 3, 2015, when he first presented at the Emergency Room at John Muir, to September 8, 2015, when Dr. Terrence Chen performed a laminectomy and L4‐5 microdiscectomy on Plaintiff. (Cmplt, paragraphs 8‐14, 16‐23) Plaintiff Nil Rahbin, Mousa's wife, asserts a claim for loss of consortium. (Cmplt, paragraph...

Excerpt: ...on to Set Aside Default.” The body of the motion presents argument for a Motion to Quash. Defendant brings this motion to quash pursuant to CCP § 418.10 which provides: A (a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of...

Excerpt: ...ry 21, 2016 at the age of 38. In the Second Amended Complaint, Plaintiff alleges one cause of action for wrongful death and seeks compensatory damages. Decedent presented to Dr. Padgett on July 16, 2013, for treatment of pain related to his lumbar radiculitis as well as complex regional pain syndrome involving his upper right arm. Michael was already taking a number of medicines for pain. Dr. Padgett continued Michael's CONTRA COSTA SUPERIOR COUR...

Excerpt: ...Code of Civil Procedure (“CCP”) § 438 as to the Seventh Cause of Action for Cancellation of Instruments and the Eighth Cause of Action for Declaratory Relief on the grounds that the FAC fails to state facts sufficient to constitute a cause of action against Omni. CCP § 438(c)(1)(B)(ii). For the following reasons, the Court grants the MJOP, without leave to amend. Standard The standard for granting a motion for judgment on the pleadings is e...

Excerpt: ... the Master Services Agreement (“MSA”) by failing to pay all amounts due under that agreement. Teksoft argues that payments flow only one way under the MSA – from SAI to Teksoft, not from Teksoft to SAI – and therefore the alleged breach is impossible. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/25/19 ‐ 12 ‐ However SAI's theory is that because the MSA prohibits Teksoft from contracting directly wi...

Excerpt: ...c., § 430.10, subd. (e).) Defendants shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiff for approval as to form. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/25/19 ‐ 18 ‐ 2nd C/A. The Second Cause of Action is for racial harassment. The Court finds that plaintiff has not alleged severe and pervasive harassment...

Excerpt: ... obtained a default sooner than permitted under that statutory scheme. (See Gov't C. § 6064 and CCP § 412.20 (a)(3) (total of 58 days necessary from first date of publication.) Further, petitioner's counsel should at least have asked respondent's known attorney whether the attorney would accept service of the petition, and advised the attorney that petitioner had filed the petition and was intending to take respondent's default. (See Smith v. L...

Excerpt: ...formerly known as Frances C. Rasimus (“Client”). The Estate's petition is denied. The Estate argues that the arbitration award should be vacated because the arbitrators “exceeded their powers.” (Code Civ. Proc., § 1286.2, subd. (a)(4).) The Court finds that this argument lacks merit. A. Subject Matter Jurisdiction. As is further discussed in Parts D and E below, the Estate cites no legal authority supporting the proposition that the defe...

Excerpt: ...all then serve HYJQ with the summons and complaint. In their first cause of action, Plaintiff alleges that a $6.5 million deed of trust on the Quail Walk Court property is a fraudulent transfer. (Comp. ¶22.) Plaintiff alleges that this deed of trust is void and seek a determination from this Court as to that fact. (Comp. ¶23 and Prayer for Relief 1.) Plaintiff did not sue the holder of this deed of trust, which has been identified as HYJQ. (See...

Excerpt: .../damages claims. Defendants argue that substantial time, effort, and money will be saved if the trial is bifurcated. Cal. Code of Civil Procedure § 598 authorizes the bifurcation of issues. It provides in pertinent part: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later t...

Excerpt: ...h of Plaintiff's causes of action in the Third Amended Complaint. Defendant argues that each claim fails to state a cause of action and is uncertain. Plaintiff opposes this demurrer with three separate filings. In those filings, he raises several arguments that can be addressed before reaching the merits of the demurrer. Plaintiff argues that Defendant failed to comply with California Rule of Court, Rule 3.1320. The Court agrees that Defendant di...

Excerpt: ...fferent facts, circumstances or law required by CCP Section 1008. The new declaration by Mr. Garcia states, in relevant part: 1. I previously executed a declaration on December 19, 2018, a copy of which is attached hereto as Exhibit F. In doing so, I intended to communicate that I was not previously served with Exhibits A‐E (Statements of Damages) to the Declaration of Mario Rosales, dated December 18, 2018, copies of which are attached hereto....

Excerpt: ...resenting himself. Plaintiff alleges that defendant Konstantine Demiris and Demiris' law firm negligently represented plaintiff in probate litigation over a relative's trust by failing to oppose the appointment of a particular trustee; failing to advise plaintiff to offer a meaningful settlement at mediation; failing to challenge the validity of the trust; failing to file a cross‐complaint for elder abuse; failing to advise that plaintiff had t...

Excerpt: ...ourt previously sustained a demurrer by Defendants to Plaintiff Ali Rezapour and Plaintiff Aurora Rezapour (collectively, “Plaintiffs”)'s Second Amended Complaint without leave to amend. That Demurrer came on for hearing on August 20, 2018; at the hearing, the Court affirmed its tentative ruling sustaining the demurrer to the Second Amended Complaint without leave to amend. Plaintiffs filed a notice of appeal of that order on September 28, 20...

Excerpt: ...corresponding legal discussions for several of his causes of action. Not to be outdone, Defendant provided no legal citations in his opposition. There are triable issues here as to the amount of damages. Plaintiff says in his declaration that he paid a total of $97,538.39 to the Defendants. (Silveira Decl. ¶5.) Plaintiff included a document, which includes the dates that he said he made the payments, but it is not clear when the document was cre...

Excerpt: ...ion for summary judgment/adjudication on the grounds: (1) it acted reasonably in its design of the Genie Pro‐Tech Scaffold, meeting all applicable industry standards and regulations, and is therefore not liable as a matter of law and (2) Genie met its standard of care in designing and distributing the Genie Pro‐Tech scaffold and is therefore not negligent as a matter of law. “[A]” product is defective in design either (1) if the product h...

Excerpt: ...ary Adjudication filed January 15, 2019 (“2019 MSA”). The Sanctions Motion seeks “at least $10,000 in sanctions from Plaintiff and his attorneys jointly.” MPAs at 10:9‐10. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 04/11/19 ‐ 3 ‐ Although the caption of the motion seeks dismissal of Plaintiff's motion for summary adjudication, there does not appear to be any such request in the briefing itself. The...

Excerpt: ...alth care provider for sexual battery would not, in most instances, fall within the statute because the defendant's conduct would not be directly related to the manner in which professional services were rendered.” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192.) The Court finds this general rule applicable to defendants. The Cooper decision on which defendants rely reaffirmed this general rule. ...

Excerpt: ... legally claim he had discrete employments with the County rather than one continuous employment involving different positions at different times. (See Petition, ¶ 54 (“The County . . . employed [petitioner] as a prosecutor continuously [since 1987]”, ¶ 57(“remained in the County's employ [from 1987 until February 28, 2018]”).) However, the court is not deciding that legal issue now or whether that issue can be resolved at the pleadings...

Excerpt: ...y adjudication to Plaintiff's sole remaining causes of action for (2) discrimination in violation of Gov't Code § 12940(a); (3) failure to take all reasonable steps necessary to prevent racial harassment (Gov't Code § 12940(k)); (4) retaliation in violation of Gov't Code § 12940(h); and (9) unfair business practices in violation of California Business and Professions Code §§ 17200‐17208. Defendant also moves for summary adjudication on its...

Excerpt: ...urt, rule 3.1110, subd. (f).) None of the exhibits to the opening Declaration of Chere' Tait, or the reply declaration of Dominica Acosta, were tabbed. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/28/19 ‐ 9 ‐ A. Contract Formation. The issue of whether the parties entered into an enforceable arbitration agreement is an issue that the trial court must always decide. (9 USCS § 4 [if there is a dispute over t...

Excerpt: ... from the complaint, the well‐pled facts of which the Court accepts as true for purposes of demurrer. Plaintiffs are all medical doctors. Each of them owns one share of Defendant Central East Bay IPA Medical Group, Inc. d/b/a Muir Medical Group IPA, through either: 1) a Common Stock Subscription Agreement; or 2) a Preferred Stock Shareholder Agreement, which also included a Preferred Stock Subscription Agreement (generally, the “agreements”...

Excerpt: ...elevant Arizona statutes. Petitioner domesticated the judgment in California, as respondents now reside here, by order dated January 14, 2019. (Code Civ. Proc. § 1710.25.) Respondents seek to vacate that judgment. A judgment may be vacated on any ground which would have been a defense to an action in the sister state, and respondents bear the burden of proof by a preponderance of the evidence. (Code Civ. Proc. §1710.40, subd. (a); see Tsakos Sh...

Excerpt: ...llectively, “Defendants”) oppose the motion. Procedural background Plaintiff filed a verified Complaint to set aside fraudulent transfer on August 17, 2017 against Defendants Diane Lehman and the Estate of Arnold Lehman, Sr. Defendants filed an answer on December 29, 2017. Plaintiff filed a Petition for Probate in Amador Superior Court on April 2, 2018. RJN Ex. B. Defendants moved to file a second amended answer which was deemed filed as of S...

Excerpt: ...lting and Endorsement Agreement (“Agreement”) entered into by Plaintiff Derek Dallas Carr, a professional football player in the National Football League, currently playing quarterback for the Oakland Raiders and Radd3, a software development company. The Agreement, entered into on July 7, 2016, provided Radd3 with the right to use Plaintiff's name, fame, voice, video, photographs, likeness, and any other means of endorsement by Plaintiff to ...

Excerpt: ...bd. (c) (1).) So “absent an intent to injure the plaintiff, ‘malice' requires more than a ‘willful and conscious' disregard of the plaintiffs' interests” and must include despicable conduct. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) A defendant must have been aware of the probable dangerous consequences of his conduct, and willfully and deliberately failed to avoid those consequences. (Mock v. Michigan Mille...

Excerpt: ...ause of action for deceit are: representation, falsity, knowledge of falsity, intent to deceive, and reliance and resulting damage (causation).” (Hamilton v. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/07/19 ‐ 14 ‐ Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.) “Fraud must be pled specifically; general and conclusory allegations do not suffice.” (Id.) “The particularity requireme...

Excerpt: ...oughly 1987. The City initially declined to allow this because certain CC&Rs, which governed the subdivision that included the property, restricted such development. Plaintiff obtained consent from over 50% of the owners to amend the CC&Rs. Thereafter, the City refused to permit development based on existing scenic easements covering the property. Plaintiff sues to, among other things, quiet title and permit his development. The City demurs on th...

Excerpt: ...contract; (2) breach of the covenant of good faith and fair dealing; (3) negligent misrepresentation; and (4) negligence. Only the first and second causes of action are alleged against Defendant. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 03/07/19 ‐ 2 ‐ Defendant moves for summary judgment on plaintiffs first cause of action for breach of contract and second cause of action for breach of the covenant of good...

Excerpt: ...f Tilden Park approximately 15 to 20 times. (Fact 3 – Undisputed) In this area of the park, Plaintiff expected dogs would play and chase each other and otherwise “roughhouse.” (Fact 5 – Undisputed) However, Plaintiff was firm in her view that “Maury did not play” with other dogs. (Plaintiff's Facts 4, 5) The couple had been walking and talking to each other for about an hour when they ran into Defendant Alexander Weber, who was walkin...

Excerpt: ...aims adjuster and/or the attorneys representing CSAA on this claim that he had sued CSAA on June 7, 2017 as an assignee of a breach of contract and insurance bad faith claim of another insured, Sui. CSAA further argues that it brought this petition at the first reasonable opportunity after those CSAA employees and agents learned of the non‐disclosure, and that the Sui/Pearson lawsuit against CSAA would cause a reasonable person, aware of all th...

Excerpt: ...tute a cause of action. For the foregoing reasons, the motion is denied in its entirety. Facts Alleged in the Complaint The parties entered into an agreement for the purchase of a show quality female standard schnauzer puppy for $2,500. (Complaint ¶ 6.) On June 9, 2017, plaintiffs paid a non‐refundable deposit of $1,000 and understood that they would have to pay the remaining $1,500 to take possession of the puppy. (Complaint ¶ 6.) On May 2, ...

Excerpt: ... the default was entered, but it was rejected. Code of Civil Procedure section 340.41 (a)(2) states, “If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30‐day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under pe...

Excerpt: ... bifurcation. The standard of review on a tax refund case under Rev. & Tax. Code Section 5140 confines the court to the administrative record, whether the issues are factual or legal in nature. When a taxpayer claims a valid valuation method was applied improperly, the court may overturn the assessment appeals board's decision only if there is no substantial evidence in the administrative record. See California Minerals, L.P. v. County of Kern (2...

Excerpt: ...standing discovery by December 11, 2017, awarded sanctions of $1,050 against Dees for his failure to respond to discovery and it ordered that the Requests for Admission were deemed admitted. Defendants ask this Court to set aside the Discovery Order based upon extrinsic mistake. Defendants explain that in order to set aside this order, they must show: “ ‘ “First, the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DA...

Excerpt: ...igence. For the following reasons, the Demurrer is overruled. Request for Judicial Notice Defendant requests judicial notice of several facts regarding his previous representation of Plaintiff as well as individual docket entries regarding case nos. C94‐03923 and C13‐01476. Though unclear, Plaintiff appears to object to this request. The Request is granted. Evid. Code §§ 452, 453. Legal Standard “The function of a demurrer is to test the ...

Excerpt: ...on or before March 13, 2019. However, Alameda County is also granted leave to amend its allegations regarding actual receipt of the Notice of Violation by Angela Calvillo or to better allege any claim of a continuous or repeated nuisance even after the incident of February 21, 2017. As to the latter claim, Alameda County may state such claim within the nuisance counts currently alleged or as one or two new standalone counts. If Alameda County ele...

Excerpt: ...: 1) the Wood Destroying Pests and Organisms Report (Termite Report); 2) the Roof Inspection Report, for which Specialty hired a third party (Roof Report); and 3) the Property Inspection Report (Property Report). After receiving the reports, plaintiffs closed escrow on May 21, 2014. According to plaintiffs, when their remodeling contractor, John Corbett, viewed the property to begin work, he saw major problems. Though the Termite Report did docum...

Excerpt: ...on (“LAFCO”) from dissolving the District without confirmation of voters as required by Government Code section 57077.1(b)(2)(A)(II). Petitioner/Plaintiff District alleges LAFCO has voted to dissolve the District without confirmation of the voters even though the District has obtained more than the number of valid protest signatures. The motion is made on the grounds the District requires adequate time and reasonable access to the protests to...

Excerpt: ...se of Action for Reformation in the Second Amended Complaint, pursuant to CCP § 437c and CRC, Rule 3.1350. Plaintiffs seek reformation of the First Amendment to the Operating Agreement of 400 Taylor Holdings, LLC as to 50% ownership of 400 Taylor Holdings, LLC. “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 judg...