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: ...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: ...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...