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