Excerpt: ... 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. For the following reasons, Defendant's MSJ is granted. Standard Code of Civil Procedure (“CCP”) §§ 437c(o)(1) and 437c(p)(2) provide the relevant legal standard for deciding the MSJ. Section 437c(o)(1) provides, in relevan...

Excerpt: ...ause of action. The demurrer is sustained, with leave to amend. Any amended complaint shall be filed and served on or before December 5, 2019. 1. Facts. The complaint alleges that Sarah Dell O'Connell was a 34‐year old wife and mother who experienced chronic nausea and weight loss from January through February 2018. On February 7, 2018, she fainted at home. She was transported by ambulance to CCRMC about 10 a.m., evaluated in the emergency room...

Excerpt: ...the First through Sixth Causes of Action, on the grounds the causes of action are defective because of misjoinder of parties; each cause of action fail to state facts sufficient to state a cause of action; and each cause of action is uncertain. Defendant Yu also maintains the dispute arising from the sale of the property was ultimately mediated between Plaintiff Colbert Trustee and Defendant Yu, and settled during mediation. The parties agreed to...

Excerpt: ...defendant Bosman, was once up for potential sale to Pacific West Communities, and was ultimately emptied, or largely emptied, as a result of code enforcement action by the City of Antioch. Facts The 4thAC alleges the following. Defendant Joe Bosman owns the Wilbur Avenue property. (¶ 2.) On the rear of his property he had 15 tenants who own mobile homes. He was charging them approximately $500/month. He claims that since 2004 he has advised his ...

Excerpt: ...e November 29, 2019. The court grants defendants' Request for Judicial Notice filed 9/23/19. It takes judicial notice of the existence and contents of the attached documents. The court disregards the Declaration of Armand Estrada filed 9/23/19 after paragraph 6. Neither a demurrer nor a Motion to Strike is an evidentiary motion. Statements about why paragraphs of the Complaint are uncertain are argument and should be contained in the Memorandum o...

Excerpt: ...of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/31/19 ‐ 30 ‐ Nevada, Case No. PR16‐00328 (the “Nevada Action”), appellate case Nos. 77763 (Nevada Supreme Court) and 77763 COA (Nevada Court of Appeals) have concluded. The parties shall update the court on the status of the Nevada Action at a Case Management Conference on June 3, 2020 at 8:30 a.m. in Department 33. Because of this ruling, the court decl...

Excerpt: .... Defendants have objected that this is procedurally improper, and the Court agrees with that objection. Plaintiffs rely on the Ward decision. (See, Ward v. Superior Court (1997) 55 Cal.App.4th 60.) The Court finds this decision distinguishable on two grounds. First, the Court of Appeal did not decide the question of whether a grant deed can properly be cancelled by means of an ordinary noticed motion — in the face of a procedural CONTRA COSTA ...

Excerpt: ...T MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/31/19 ‐ 7 ‐ The court may order the lis pendens expunged if: (1) the court finds that the pleading on which the notice is based does not contain a real property claim. (Cal. Code Civ. Proc. § 405.31); (2) if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Cal. Code Civ. Proc. § 405.32); and (3) t...

Excerpt: ...ingham and his wholly owned companies, Lender Scout Corporation (“Lender Scout”), Alansis.Com, Inc. (“Alansis”), and Speak With A Geek, Inc. (“SWAG”). Plaintiff alleges that, from 2002 through 2018, he provided administrative, executive and sales services for Mr. Cunningham and his “ever morphing array of wholly owned and controlled business entities,” most recently (2015‐2018) for Lender Scout, Alansis, and SWAG. (Complaint ¶�...

Excerpt: ...7.) This motion is denied. The court is not authorized to strike an entire complaint because one of several remedies may not be sufficiently pleaded. Apparently, the order that defendants really seek is one striking the “punitive damages allegations” from the Complaint. (See Opening Brief at 2:26.) But that description is not substantially better. “A notice of motion to strike a portion of a pleading must quote in full the portions sought t...

Excerpt: ...rris, seek to sue the City of Richmond for negligence and wrongful death of their mother, Rashanda Franklin. Petitioners' request is DENIED. RELEVANT FACTS The facts of this case are tragic. Ms. Franklin was killed on April 4, 2017 when her ex‐boyfriend, Lawyer Dashaun McBride (“McBride”), shot her inside her car in front of her children while en route to dropping them off at school. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTME...

Excerpt: ...petition containing a sufficient number of signatures, LAFCO now has a ministerial duty to order the dissolution of the District subject to an election by the voters. The dissolution of the local district is governed by the Cortese‐Knox‐Hertzberg Local Government Reorganization Act of 2000. (Government Code § 5600 et seq.) If the dissolution proceeding is initiated by an agency other than LAFCO, and the affected agency objects, the dissoluti...

Excerpt: ...d. Standard A “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.” Cal. Code Civ. Proc. § 437c(c). “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment a...

Excerpt: ...ERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/17/19 ‐ 16 ‐ Misjoinder of Parties Jarvis argues that he is an improper defendant in this case. Plaintiffs are suing related to disputes over a lease at 3880 Blackhawk Road, Danville. Plaintiffs entered into a lease with J/C Investments, Inc. Later, J/C Investments sold the property to Dentite Enterprises, LLC. Plaintiffs argue that Jarvis is a proper party because J/C Investmen...

Excerpt: ...on the court to compel plaintiff Anthony Alvarado, a former employee, to submit the claims made in his complaint for multiple violations of the California Labor Code to binding arbitration pursuant to the terms of two separate binding arbitration agreements entered into as a condition of his employment. Plaintiff was employed at different times by two auto dealerships owned by the defendant corporations, which are owned in common by the same fami...

Excerpt: ...for Summary Adjudication is denied. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Defendants' motion failed to completely dispose of the issue of duty. Background On July 20, 2016 Plaintiffs, Andrew Vasquez and Tiffany Copland‐Vasquez, rented an apartment at 1195 Saranap Avenue, #17 in Walnut Creek, from August 16, 2016 to...

Excerpt: ...e November 14, 2019. The basis for this ruling is as follows. A. Defendant's Status As A Bona Fide Purchaser. Plaintiffs allege in conclusory terms that defendant is not a bona fide purchaser for value. But they fail to allege any ultimate facts supporting that conclusion. The mere fact that a trustee's sale is continued one or more times does not indicate some problem with the nonjudicial foreclosure process: continuances are statutorily allowed...

Excerpt: ...all Cell Wireless Facilities Policy (the “Policy”) was validly adopted pursuant to that Ordinance. The Policy now governs the permitting and installation of small cell wireless facilities in the City of San Ramon. The Policy exempts such facilities from the Zoning Ordinance, so there is no longer any possible conflict between the Master Licensing Agreement and the Zoning Ordinance. The only question then is whether any small cell wireless fac...

Excerpt: ...is a component society of and chartered by the California Dental Association (“CDA”). Clark has been a member in good standing with CCDS for approximately 14 years and CDA for approximately 20 years. Petitioner has dual membership in component societies‐‐Contra Costa County and Marin County. Petitioner alleges she was nominated, ran unopposed, and was duly elected at the CCDS General Membership on or about October 17, 2017 to serve a seco...

Excerpt: ...torney, Defendant Thomas T. McCormick and the McCormick Law Firm. In February 2017, Plaintiffs and Defendants entered into a legal services agreement, whereby McCormick substituted in to represent Plaintiffs in a property dispute action brought against him by his sister, Marlene Smith in the case of Smith v. Smith. Contra Costa Case No. C15‐00305. Plaintiffs allege Defendants' handling of the Smith v. Smith case fell below the applicable standa...

Excerpt: ...concealment/intentional misrepresentation; (2) unjust enrichment; (3) breach of contract; (4) breach of express warranty; and (5) express indemnity. For the following reasons, the Demurrer is sustained‐in‐part, with leave to amend with respect to the first cause of action, and overruled‐in‐part with respect to the remaining causes of action. Request for Judicial Notice Defendants request judicial notice of the Plaintiffs' Complaint in thi...

Excerpt: ...7c(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 CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 10/03/19 ‐ 2 ‐ established, even if that element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action. Section 437c...

Excerpt: ...Unlicensed Contractor. A‐1. Defendant's Argument Lacks Merit. Defendant argues that plaintiffs' Complaint shows on its face that defendant was a licensed contractor. This forms the basis for most of defendant's sub‐arguments in support of striking specific requests for relief from the Complaint. The Court finds that defendant's argument lacks merit. Defendant relies on two exhibits to the Complaint: Exhibits “B” and “E.” Neither exhib...

Excerpt: ...ellaAndrade (“SVA”) was the Controller of SBJLG from approximately August 2010 through January 2016. Cross‐Complainant alleges SVA's responsibilities included handling SBJLG's confidential and sensitive financial matters. SVA knew that SBJLG had placed confidence in SVA's integrity to handle certain financial matters, including review of employee's time cards. Cross‐ Complainant alleges SVA breached the duty by knowingly placing her own i...

Excerpt: ...onvenience Disney Construction, Inc.'s work on the SMD1 Sewer Pump Station Project.” Notice at 2:1‐3. Defendant/Cross‐Complainant City of Lincoln (“the City” or “Lincoln”) opposes the MSA. For the following reasons the MSA is denied. Standard Pursuant to Code of Civil Procedure Section 437c(t), “a party may move for summary adjudication of a legal issue or claim for damages other than punitive damages that does not completely disp...

Excerpt: ...1‐362. The court has reviewed the declaration of Plaintiff and the later submitted medical records and has concluded that an error was made by the court. The default judgment is far in excess of the evidence produced at the hearing and hence must be set aside. However, vacating a default judgment because it is excessive does not affect the underlying default. It simply returns the case to the default status it had before the erroneous judgment ...

Excerpt: ...plus 5 days for mailing. (Code Civ. Proc. §§ 685.070; 1013.) Defendant timely served the motion but filed it late. This does not present a jurisdictional bar to its consideration. (Hoover Cmty. Hotel Dev. Corp. v. Thomson (1985) 168 Cal.App.3d 485, 488 [“a trial court has broad discretion in allowing relief from a late filing where, as here, there is an absence of a showing of prejudice to the opposing party”].) There is no prejudice here s...

Excerpt: ... in reality exist' and whether there would be ‘an inequitable result if the acts in question are treated as those of the corporation alone.' (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, at 538.) The courts consider numerous factors, including inadequate capitalization, commingling of funds and other assets of the two entities, the holding out by one entity that it is liable for the debts of the other, identical equitable...

Excerpt: ...SAC is sustained with leave to amend. The SAC has alleged eight causes of action against Omid: (1) breach of oral contract; (2) common count for money had and received; (3) accounting; (4) unjust enrichment; (5) conversion; (6) breach of the implied covenant of good faith and fair dealing; (7) fraud, and (8) breach of fiduciary duty. The CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/24/19 ‐ 3 ‐ SAC is based ...

Excerpt: ... hole on a public sidewalk in front of the Gesinee Defendants' business. She sued the Gesinee Defendants (and the City of Concord) for premises liability based upon negligence (count one), willful failure to warn, Civil Code §846 (count two) and dangerous condition of public property (count three). The Gesinee Defendants have brought a motion to strike arguing that counts two and three do not apply to them because there are no factual allegation...

Excerpt: ... registered process server for all of the attempts at personal service and for the substitute service on Defendant on December 21, 2009. Evidence Code Section 647 creates a presumption of valid service when the service is effectuated by a registered process server. See Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750. The process server also submitted a declaration, attesting to the mailing of an additional copy of the summons and complaint, as r...

Excerpt: ...uez/Glick settlement. Since there is no longer an opposition as to the good faith of Arriaga's settlement CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/17/19 ‐ 8 ‐ with Vazquez, the Court finds that that settlement is in good faith. In addition, the analysis below discussing Arriaga's settlement with Kidwell applies equally to Arriaga's settlement with Vazquez. The party claiming that a settlement is not in ...

Excerpt: ...de section 946.6 generally has the same meaning as under Code of Civil Procedure section 473. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal. 3d 270, 275, fn. 5.) Under section 473, an attorney's sudden and unexpected illness may support a finding of excusable neglect. See Contreras v. Blue Cross of Cal. (1988) 199 Cal.App.3d 945, 951 (attorney broke her wrist).) Here the declaration of petitioner's attorney states that petitioner...

Excerpt: ...aintiff's purported reliance on the Exchange's alleged promise to preserve the vehicle are speculative. Plaintiff's alleged damages are what she would have received in her “hypothetical products liability lawsuit against the manufacturer of her vehicle.” (TAC, paragraph 39) Any damages in these circumstances would CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/17/19 ‐ 3 ‐ be “merely possible” and cont...

Excerpt: ... is still Omni, just in a different representative capacity. Moreover, the Trustee could have conducted the requested discovery in the AP but failed to do so. In reaching this decision the court has fully considered the factors in CCP § 2024.050, which are as follows: “(1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reas...

Excerpt: ...her roof and then migrated into the interior, damaging the framing and her personal property. Pacific provided plaintiff a policy of insurance for the home. This dispute turns on whether the policy provides coverage for her losses. II. Motion for Summary Judgment Plaintiff's claims are for breach of contract and breach of the covenant of good faith and fair dealing. Pacific moves for summary judgment on the grounds that the undisputed evidence sh...

Excerpt: ...harged must be reasonable, as determined by the standard rates and hours charged to fee‐ paying clients. The Court finds that the hourly rates claimed by each of Plaintiffs' attorneys and paralegals are reasonable given their training and experience, as well as the customary rates charged in the Bay Area. The Court also finds that the hours claimed to have been spent in connection with this case are reasonable given the activities involved and ...

Excerpt: ...n, (2) trespass to chattels, and (3) intentional infliction of emotional distress. Defendants demur to the intentional infliction of emotional distress cause of action only, pursuant to Code of Civil Procedure § 430.10, subdivision (e) and on the grounds that Plaintiffs fail to state facts sufficient to constitute a cause of action for intentional infliction of emotional distress. For the following reasons, the Demurrer is overruled. Defendants ...

Excerpt: ...ound CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/03/19 ‐ 9 ‐ Plaintiff Badr Sanane Azze leased a commercial property at 134 East 10th St. in Pittsburg from defendants Tony and Yvonne Wong, which he operated as convenience store. His lease term was five years from 2010 to 2015. He could renew for five more years provided he gave written notice no later than 90 days before expiration. The lease also containe...

Excerpt: ...l file an amended complaint on or before February 7, 2019, addressing the matters agreed to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 01/03/19 ‐ 3 ‐ during the meet‐and‐confer process. The basis for this ruling is as follows. A. Meet And Confer. The Court commends the parties on having reached agreement on several matters that might otherwise have been the subject of the demurrer. (See, Lowry Dec., ¶ 3...

Excerpt: ...Todd G. Lewis, and Claudia Lewis, individually and in her capacity as executor of the Estate. The motion is denied as to Defendants Armanino, LLP and Gunter Hofmann. The civil action is stayed pending outcome of the arbitration, pursuant to Code of Civil Procedure § 1281.2(c). Background Plaintiffs filed this action for fraud, alleging Defendants coordinated a scheme to defraud Plaintiffs during the purchase of stocks of Omega Pacific Electric S...

Excerpt: ...and said motion will be dropped from the calendar. Plaintiff, Kenton Keading, files this action for legal malpractice against his former attorney. He is representing himself. Plaintiff alleges that defendant negligently represented him in a probate litigation over a relative's family trust by failing to oppose the appointment of a particular trustee, advising plaintiff not to offer anything meaningful in settlement, and failing to file a cross‐...

Excerpt: ...reliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. The OSC was originally set for May 10, 2018, then continued by the Court to July 12, 2018 so that it could be heard with Wells Fargo's demurrer to Plaintiffs Complaint. The hearing on that demurrer was vacated when Plaintiffs filed a First Amended Complaint and the hearing on the preliminary injunction was taken off calendar. At the hearing on the d...

Excerpt: ...The first iteration of the Motion was denied on procedural grounds for failure to comply with Code of Civil Procedure (“CCP”) section 473 and include proposed pleadings in the moving papers. The Motion was refiled on April 7, 2017. Again, the proposed pleading was not properly attached. On April 24, 2017, attorney for Yeyeclub filed a declaration and attached, finally, the proposed pleading—a “Motion to Quash Service.” (See Declaration ...

Excerpt: ...980) 104 Cal.App.3d 250, 252. The party asserting that the settlement was not made in good faith must demonstrate that the settlement is “so far out of the ballpark in relation to [the Tech‐ Bilt] factors as to be inconsistent with the equitable objectives of the statute.” Tech‐Bilt, Inc. v. Woodward‐Clyde & Assoc. (1985) 38 Cal.3d 488, 499‐500 (“Tech‐Bilt”). The criteria for the determination of a good faith settlement were ori...

Excerpt: ...at the moving party is entitled to a judgment as a matter of law.” Cal. Code Civ. Proc. § 437c(c). “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The court shall consider all of the evidence set forth in the papers, ...

Excerpt: ...y Hill Limited Partnership (“Ivy Hill”). Ivy Hill was formed to own, operate, and eventually sell the Ivy Hill Apartments, located at 1700 Botelho Drive, in Walnut Creek, CA. The property contained 116 apartments, of which 68 were market rate units and 48 were below market rate units. The Class A limited partners held interests in the market rate units and the Class B in the below market units. The debts of the Class A units were to be alloca...

Excerpt: ...uling on the demurrer to the First Amended Complaint (“FAC”), but that were not included in the SAC, as set forth below. No additional papers may be filed in support of or in opposition to the demurrer. The Court notes that, given the inconsistencies that have already arisen in the three versions of plaintiff's pleading on file so far, the Court has grave concerns about the good faith of plaintiff's increasingly implausible legal theory. Plai...

Excerpt: ...state a cause of action, and the pleading is uncertain. Pertinent Allegations of the Complaint This lawsuit concerns property located at 929 Juanita Court, El Sobrante, California. (Complaint, ¶ 1.) On December 10, 1968, defendants Judith Booker (formerly known as Judith Zieminski) and her then husband, Carl Zieminski, were deeded the Property as joint tenants. Judith and Carl subsequently filed for divorce in 1969 and received an interlocutory ...

Excerpt: ...ntified below. These briefs shall be filed on or before September 27, 2018. Responses to the supplemental briefs may be filed on or before October 4, 2018. In the Second Amended Cross‐Complaint, Cherokee Simeon Venture I, LLC (“CSV”) identifies two alleged breaches of contract: the first in paragraph 84(a), and the second in paragraph 84(b). The Court will refer to the first as “the Zeneca payment breach” and the second as the “capita...

Excerpt: ...junction, Plaintiffs Larena Hatley and Chance Daniels (“Plaintiffs”) were required to post a bond in the amount of $10,000 by July 19, 2018. However, Plaintiffs did not post the bond until July 20, 2018, and Mullan's counsel was not notified that the bond was posted until on or about August 1, 2018. Code of Civil Procedure section 533 states the grounds upon which the Court may dissolve an injunction: In any action, the court may on notice mo...

Excerpt: ...ainst John Muir on a theory of negligent hiring or negligent supervision. John Muir has failed to persuade the Court that there is good cause to stay discovery concerning those legal theories. However, the Court does not anticipate setting a trial date until the criminal proceeding is concluded and plaintiff has had an opportunity to conduct discovery as against Mr. Baca. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DAT...

Excerpt: ...ause of action for conversion and therefore the Court's summary of the allegations relates to those relevant to the libel claims. In 2014, Friends of Oakley received a permit to operate a low power FM Community service radio station, KLSN‐LP. Defendant Ponsano was appointed as the general manager of the station. (Comp. ¶10.) In November 2016, Ponsano asked Plaintiff to help him install a transmitter for the radio station. (Comp. ¶11.) The rad...

Excerpt: ...isco owns or controls an arroyo in Alameda County. Alameda County claims that erosion of the bank of this arroyo caused the collapse of an Alameda County Highway, Foothill Road, on February 22, 2017, causing an emergency road closure, emergency repairs, and costs in excess of $1.5 million. After the parties failed to reach a private resolution regarding the responsibility for these costs, Alameda County issued a notice of violation. San Francisco...

Excerpt: ... are the landlords. Defendants are the tenants of the commercial real property known as 1523 Giammona Dr., Walnut Creek, California (the “Property”). Plaintiffs filed their complaint alleging two causes of action: 1) Breach of Contract; and 2) Breach of the Implied Covenant of Goof Faith and Fair Dealing. Defendant corporation brings the instant motion seeking to file a cross‐complaint alleging claims arising out of the parties' contractual...

Excerpt: ... concerns the death of Plaintiffs' daughter, Marvelena Rady (“Marvelena”), which occurred as a result of Defendants' allegedly deficient medical/dental treatment. Defendants demur as to each of these cause of action on the bases that Plaintiffs' fail to allege facts sufficient to constitute a cause of action and the complaint is uncertain. (See Code of Civil Procedure (“CCP”) § 430.10(e)‐(f).) The demurrer is sustained with leave to am...

Excerpt: ... (collectively, “CCCERA” or “Respondents”) bring this motion for judgment on the pleadings pursuant to CCP § 438(c)(1)(B)(2), on the ground the Petition does not state facts sufficient to constitute a cause of action against CCCERA. Petitioner has not alleged facts CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/30/18 ‐ 11 ‐ showing Respondents had a clear and present ministerial duty to return Petiti...

Excerpt: ...and a bull on Highway 4. The bull was owned by Defendant DeVries. Plaintiffs is suing the State of California, Department of Transportation (“Caltrans”) for negligence and premises liability. Plaintiffs allege that Caltrans was negligent in its ownership, control, construction, operation and/or maintenance of the highway, including the fencing that separates the highway from DeVries' property. Plaintiffs also allege that Caltrans had actual a...

Excerpt: ... stay should remain in place until the Court adjudicates Black Diamond's petition for administrative mandamus. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/30/18 ‐ 18 ‐ The Court may order a stay only if it finds that CSLB is unlikely to prevail and that the public interest will not suffer as a result of the stay. (Code Civ. Proc. §1094.5(h)(1).) To determine whether the respondent is unlikely to prevail, ...

Excerpt: ...Civ. Code § 2924.12 for violation of Civ. Code § 2924.11; (2) violation of Civ. Code § 2923.7; (3) negligence; and (4) violation of Bus. & Prof. Code § 17200, et seq. For the following reasons, the Demurrer is sustained, with leave to amend. Request for Judicial Notice Defendant Wells Fargo requests judicial notice of several documents. This request is unopposed. The Court takes judicial notice of all but Exhibits G, H, I. Those documents are...

Excerpt: ...e prior owners, Brian and Susan Mandio. The Stubers have cross‐complained against the Mandios. The Mandios now demur to the Stubers' Second Amended Cross‐Complaint (“SACC”.) They argue that the entire SACC is barred by the ten‐year statute of repose set forth in CCP § 337.15 or, if a statute of limitations applies instead, because the SACC fails to sufficiently allege accrual of the causes of action was postponed by delayed discovery o...

Excerpt: ... refused to give Adelstein a 50% interest in it. She sued, alleging a variety of legal theories. Burr now moves for summary judgment, arguing that all claims are barred by a release that both parties signed before the successor trustee of Smith's trust would distribute the Property to Burr and cash gifts to each of Adelstein and Burr. Burr also argues that the cause of action for breach or oral agreement is barred by the statute of limitations or...

Excerpt: ...of his truck, searched and handcuffed. Plaintiff's truck was towed away. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/09/18 ‐ 7 ‐ On October 26, 2015, a citation was filed/issued against Plaintiff for failing to yield to traffic sign or signal in violation of Cal. Vehicle Code § 21461(a) and for driving on a suspended license in violation of CVC § 14601.1(a), arising out of the October 14, 2015 arrest. Pl...

Excerpt: ... Third Causes of Action. Defendant shall file an answer on or before August 24, 2018. The basis for this ruling is as follows. A The Second Cause of Action. The Second Cause of Action is for violation of Civil Code section 2924.11. Defendant's arguments in support of the demurrer lack merit as to this cause of action. First, plaintiff has adequately alleged that he submitted a “complete” application. (Civ. Code, § 2924.11, subds. (a) and (f)...

Excerpt: ...onditions 1. The allegations in the proposed Fifth Amended Complaint related to punitive damages must be removed before the complaint is filed. The Court has already granted a motion for summary adjudication as to punitive damages. 2. Plaintiff's claim for injunctive relief shall be removed as the Court has previously ruled in this case that “the claim for injunctive relief is just a remedy and not a cause of action. (Shell Oil v. Richter (1942...

Excerpt: ...lication contained an authorization for the union to collect monthly dues by automatic payroll deduction. Union membership was voluntary, not mandatory. The Union collects dues from over 9,000 public employees. (Undisputed Material Fact (“UMF”) 4.) In Article XIV, the union's Bylaws contain the following pertinent provisions concerning the payment of dues: “A. [M]embers . . . shall be required to pay dues . . . and shall tender with their a...

Excerpt: ...n to that in Daniels. (See, Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841‐842; Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 678 and 683.) The agreement in the case at bar first identifies a group of people, including heirs, and then refers to their “claims” collectively. The most reasonable interpretation of the agreement is that it was intended to cover wrongful death claims. Second, the Court is not persuaded that plai...

Excerpt: ...o put the issues connected with that writ petition before the Court by way of a noticed motion. The Court has considered carefully the material the parties have presented, and rules as follows. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/02/18 ‐ 7 ‐ Background Work and Injury History Santos began working for Contra Costa County in 1995. She argues that she is entitled to service‐connected disability reti...

Excerpt: ...me, until it was served with a notice of case management conference on January 17, 2018. Alternatively, Defendant maintains the failure to respond to the summons and complaint was due to mistake, inadvertence or excusable neglect. Defendant contends relief should be granted because the lack of notice was not caused by its avoidance of service or inexcusable neglect. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 08/...

Excerpt: ...on the court for grievances. In this case, Defendant's protected activity was petitioning the court for the domestic violence restraining orders. Plaintiff Alexander Gaddis filed a complaint alleging causes of action for Slander, Libel, and Intentional Economic Interference. Plaintiff and Defendant are engaged in a contentious divorce and custody proceedings. Plaintiff alleges that Defendant has tried to ruin his reputation with family and friend...

Excerpt: ... Plaintiff alleges that he purchased a house from Defendants based in part on the view the house had. (FAC ¶6.) However, after Plaintiff purchased the house he learned that the view was not as good as it was when the property was sold. (FAC ¶7) Plaintiff alleges that Defendants trimmed three feet off a hedge on a neighbor's property and when the hedge started to grow back it obstructed the view. (FAC ¶5.) Defendants demur to all three causes o...

Excerpt: ...he delay.” Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941. Even if Plaintiff was dilatory in seeking this Doe amendment, Defendant has not shown any real prejudice caused by the delay. ...

Excerpt: ...is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively. (b) Timing. A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer. Plaintiff's Notice states that she “moves for an order to strike Affirmative Defenses raised in D...

Excerpt: ...bor Code section 2699(l)(2) requires the parties to submit the settlement agreement to the LWDA at the same time they submit it to the court. Neither the motion nor Ms. Kraeber's declaration indicates that this has been done. Neither the Court nor the parties are free to ignore the requirements of the statute. Allocation of Settlement Proceeds Second, the Court is concerned about the parties' allocation of the settlement proceeds. As noted above,...

Excerpt: ...473(b); Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340. The six month limit is mandatory. A court has no authority to grant relief under Section 473(b), unless an application is made within the six month period. Id. at 345 (“[W]e hold that a court has no authority under Section 473, subdivision (b), to excuse a party's noncompliance with the six month time limit.”); Austin v. Los Angeles Unified School District (2016) 244 Cal...

Excerpt: ...to the Opposition. For the reasons discussed below, this motion is granted. Plaintiff shall file and serve the 1AC on or before August 3, 2018. Plaintiff seeks to amend the complaint to allege additional facts as well as to add causes of action for conversion, negligence, and civil damages under California Penal Code section 496. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/19/18 ‐ 12 ‐ Code of Civil Proced...

Excerpt: ...ens in the First Amended Complaint, 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. 2nd C/A. The Second Cause of Action is for intentional infliction of emotional distress. The Court has sustained the demurrer to this cause of action because plaintiff has failed ...

Excerpt: ...contract; (3) promissory estoppel; (4) breach of covenant of good faith and fair dealing; (5) negligence; and (6) unfair business practices. Previously, this Court overruled Defendant's demurrer to the causes of action for (2) breach of contract and (4) breach of the covenant of good faith and fair dealing. The Court sustained Defendant's demurrer to the causes of action for (1) violation of Civil Code § 2923.6; (3) promissory estoppel; (5) negl...

Excerpt: ...A 3/25/92 (“Plaintiffs”). The Motion is unopposed by Defendants. However, for a motion to seal, the opposition is really the people of the State of California and their interest in an open and transparent judicial system. The Court evaluates the Motion pursuant to California Rules of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/12/18 ‐ 10 ‐ Court, rules 2.550 and 2.551. California Rules of Court, rule 2...

Excerpt: ...f).) The California Supreme Court, in the Central Pathology decision that still defines the scope of the governing statute, stated in pertinent part as follows: “a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/12/18 ‐ 8 ‐ because the defendant's conduct would not be directly related t...

Excerpt: ...ce policy. Where a cause of action is based on the alleged breach of a written contract, “the terms must be set out verbatim in the body of the complaint, a copy of the written instrument must be attached and incorporated by reference or the complaint must plead the legal effect of a contract.” See Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458; Constr. Prot. Servs. Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4...

Excerpt: ..., so this motion was procedurally required absent a stipulation. ...

Excerpt: ...lternations to the show quality female Standard Schnauzer puppy (“Show Puppy”), including cropping the ears, and (2) from selling, hypothecating, transferring or conveying the Show Puppy to any third party. Plaintiffs shall post a bond of $10,000 by July 19, 2018. Plaintiffs' request for a preliminary injunction that orders Defendants to transfer the Show Puppy to Plaintiffs is denied without prejudice. CONTRA COSTA SUPERIOR COURT MARTINEZ, C...

Excerpt: ...ion of Donald Odell were not tabbed. The Court's denial of the petition is not based on the petition's failure to name the correct respondent. Petitioners should have named Ms. Argabright in her capacity as trustee, rather than the trust itself. The point is moot however, given that Ms. Argabright has appeared to oppose the petition in her capacity as trustee. Further, this is a technical pleading defect that could easily be corrected. The Court'...

Excerpt: ...mplaint on April 20, 2018, which pleaded causes of action for: (1) equitable indemnity, (2) total indemnity, (3) contribution, and (4) declaratory relief. In response, Cross‐Defendant Medallion Landscape Management, Inc. filed a demurrer on May 25, 2018. Cross‐Defendant demurs pursuant to Code of Civil Procedure § 430.10(e), on the grounds that the First‐Amended Cross‐Complaint fails to state any causes of action against it. For the foll...

Excerpt: ...Code § 2923.5; (2) violation of Civ. Code § 2923.7; (3) violation of Civ. Code § 2924.12; (4) negligence; and (5) violation of Cal. Bus. & Prof. Code § 17200. As a threshold matter, the Court notes that the Defendant's Notice of Demurrer is defective as it fails to comply with California Rule of Court 3.1110(b)(1); in lieu of the Court's location, the Notice displays a series of “X”s. Although the Plaintiff would appear to have waived thi...

Excerpt: ...use of Action for Negligence Per Se, the motion is denied. This cause of action arose out of a motor vehicle accident occurring on August 31, 2016, on SR‐24 Eastbound off‐ramp at Acalanes Road in Lafayette. Plaintiff Gail Swatzberg alleges Defendant Samer Majid Barance was driving under the influence of alcohol, in violation of Vehicle Code Section 23152. Defendant crashed his vehicle into the rear of Plaintiff's vehicle while she was stopped...

Excerpt: ...laintiff”) began working for Kindred Hospice Services (“Kindred Hospice”) around August of 2015. (Complaint at ¶ 4.) In or around September of 2017, Plaintiff witnessed another employee mishandling a patient. (Complaint at ¶ 4.) On November 15, 2017, Plaintiff filed a Complaint against Defendants. Plaintiff alleges that after she reported the witnessed abuse, Kindred Hospice retaliated against her by demeaning her in a meeting with manage...

Excerpt: ...ave to amend is liberally granted. (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is “ ‘inexcusable delay and probable prejudice to the opposing party'… [Citation.]” (Ibid; see also, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) There are other instances when leave to amend is properly denied. One of those instances is when the amendment is a sham pl...

Excerpt: ...C (“Leisure”) moves to strike the prayer for punitive damages (made as a check mark on a form complaint) from Plaintiff's Complaint. The issue presented is whether Plaintiff has pleaded sufficient facts to warrant recovery of punitive damages. Relevant Allegations Plaintiff alleges she was a hotel guest at the Clarion Inn on October 16, 2015, and she was sexually assaulted during her stay by a third party. (Complaint Attachment p. 1.) Plainti...

Excerpt: ...ed to comply with Code of Civil Procedure section 415.50 before serving by publication. Second, Acosta contends that Dorsey did not comply with the Court's February 14 Order concerning service by CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/28/18 ‐ 18 ‐ publication. The Court's February 14 Order The February 14 Order required Dorsey to: (1) Publish the summons, complaint, and statement of damages in the Con...

Excerpt: ...d to judgment as a matter of law. (CCP § 437c (c).) Triable issues of fact exist and/or Wilmington has not established it is entitled to judgment as a matter of law. (See law discussed below and Disputed Material Fact Nos. 1, 2, and 6; Plaintiff's Ex. 14, p. 3 (disclosing the Smith Deed of Trust); Ex. A to Bone Decl. filed 4/23/18, Fama Depo., at 19:8‐20:5; 22:5‐23:10; 43:9‐44:14; 51:25‐52:4; 58:3‐11; 59:1‐8; 61:6‐10; 69:10‐20; 7...

Excerpt: ...try on March 22, 2017 into a Memorandum of Understanding with real party in interest Pacific Gas and Electric (“PG&E”). EBRPD demurrers to the second cause of action on the grounds that (1) the cause of action to set aside project approval as contrary to planning and zoning law and park district ordinance 38 fails as a matter of law because (a) the park's decision is not subject to the City's general plan and tree protection ordinance and (b)...

Excerpt: ...thew and Arlene Sirott Family Trust, filed a cross‐complaint, against Dr. Patel, as a manager of 400 Taylor Holdings, LLC. Dr. Sirott's cross‐complaint is a derivative suit on behalf of 400 Taylor Holdings, LLC (“400 Taylor”), named as a nominal cross‐defendant. The cross‐complaint alleges Dr. Patel caused harm to 400 Taylor by improperly failing to consider the CRTC Lease Proposal to lease the vacant suite in the 400 Taylor building....

Excerpt: ...ich the unlimited action is pending [1] may stay the unlawful detainer action until the issue of title CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/21/18 ‐ 6 ‐ is resolved in the unlimited action, or [2] it may consolidate the actions. [Bracketed numbers added.] Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 385. While Martin‐Bragg and other cases mention consolidation as a theoretical possibility, p...

Excerpt: ...rally construed, with a view toward substantial justice.” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) Plaintiff Howard S. Leight & Associates, Inc. dba Leight Capital brings this action to quiet title to real property commonly known as 1100 Russelman Park Road in Clayton. Plaintiff seeks title, free and clear of all right, title, liens, and interests in the property created between 3‐14‐ 2001 and 2‐23‐2011. Plaintiff's o...

Excerpt: ...any disease. If he has not actually contracted either of these diseases, discovery of Plaintiff's past sexual history would be precluded as there would be no possibility that he had contracted the diseases from someone other than Defendant. If he has contracted either of these diseases, then the motion would be CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/07/18 ‐ 8 ‐ granted as the court finds that Defendan...

Excerpt: ...t misrepresentation; (4) negligence; (5) wrongful foreclosure; (6) violations of Business & Professions Code § 17200, et seq.; and (7) violation of HBOR (Civil Code § 2923.7). For the following reasons, the Demurrer is sustained, without leave to amend. Request for Judicial Notice Defendants request judicial notice of several Contra Costa County Recorder documents as well as pleadings from other actions in Contra Costa County as well as the Nor...

Excerpt: ...aint (“FAC”) filed by Plaintiff Lillian Morris (“Plaintiff” or “Morris”). The FAC pleads causes of action for (1) violation of Civil Code § 2923.7; (2) violation of Civil Code § 2923.6; (3) violation of Civil Code § 2924(b); (4) negligence; (5) intentional misrepresentation; (6) negligent misrepresentation; (7) promissory estoppel; (8) to set aside trustee's sale; (9) quiet title; (10) elderly financial abuse; and (11) unfair busin...

Excerpt: ...nification, (2) apportionment of fault; (3) declaratory relief; (4) slander of title; and (5) fraud. Defendants demur pursuant to Code of Civil Procedure § 430.10(e) and (f). For the following reasons, the Demurrer is sustained, without leave as to the cause of action for slander of title and with leave as to all other causes of action. Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.�...