Excerpt: ...ficient facts showing entitlement to exemplary damages against Defendants. A motion to strike may be used to attack claims for damages that are not supported by the cause of action pleaded. The motion to strike may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See Civil Code § 3294; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53,...

Excerpt: ...ffs shall file and serve a second amended complaint by August 15, 2018. Defendants Leonard A. Faas Jr., Faas Enterprises, Inc. dba Walnut Creek Car Wash, and Walnut Creek Car Wash (“Faas”) demur to everything except the negligence cause of action in the First Amended Complaint arguing that each claim fails to state a cause of action. They also argue that the FAC is uncertain. Uncertainty As to uncertainty, Defendant argues that the FAC is unc...

Excerpt: ..., if the propounding party proves the truth of those facts at trial, he or she may seek an award of the reasonable costs and attorney fees incurred in proving those facts.” See CCP 2033.420(a). The court is required to award those costs and fees unless it finds the party who denied the requests “had reasonable ground to believe he would prevail on the matter” or “there was other good reason for failure to admit.” See CCP Section 2033.42...

Excerpt: ...sed because this Court does not have personal jurisdiction over the Defendant. Plaintiff's opposition directly addresses the personal jurisdiction issue and therefore Plaintiff had sufficient notice of this issue. Therefore, the Court construes Defendant's motion as a motion to quash and grants that motion. A court may exercise two types of personal jurisdiction over a defendant: general jurisdiction and specific jurisdiction. “General jurisdic...

Excerpt: ... one retained liability expert and plaintiff's treating orthopedist as a non‐retained expert. Therefore, it is puzzling that Defendant states: “Plaintiff's presentation of evidence in support of her damages claim will be involved and detailed. Cumulative of Plaintiff's treating medical providers (including treating physicians, surgeons and physical therapists), Plaintiff will have to call orthopedic experts, psychological experts, occupationa...

Excerpt: ...ant has timely made the first payment, and the next payment is not yet due. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 07/25/18 ‐ 13 ‐ Second, defendant has raised legitimate concerns about the language of the proposed notes and deeds of trust prepared by plaintiffs. Particularly troublesome is the deed of trust provision appointing plaintiffs as defendant's “attorney‐in‐fact.” Finally, it appears th...

Excerpt: ...nal misrepresentation or concealment. The elements which must be pleaded to allege a fraud or deceit claim are (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity; (3) intent to defraud or to induce reliance; (4) justifiable reliance, and (5) resulting damages. See CACI 1900; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363; Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4...

Excerpt: ...s about the language of the proposed notes and deeds of trust prepared by plaintiffs. Particularly troublesome is the deed of trust provision appointing plaintiffs as defendant's “attorney‐in‐fact.” Finally, it appears that the failure to record a deed of trust has not been material. Plaintiffs obtained and apparently have recorded an abstract of judgment in the sum of $ 45,000, even though there was no provision for such a remedy in the ...

Excerpt: ... when an elder abuse claim upon neglect is proper: The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and ...

Excerpt: ...tive notice of the motion seeking the August 8, 2016 order. Had she wished to state her claims she should have done so in connection with that motion. ...

Excerpt: ...hompson's motion for summary adjudication is granted as to cause of action 1 against Thompson and denied as to cause of action 1 against Waymire and the City; and granted as to causes of action 7 and 9. MSJ: Standing Respondents argue that Petitioner/Complainant Margaret Thompson (Margaret) does not have standing to bring this lawsuit and requests summary judgment against her. The writ petition and all of the remaining causes of action in the Sec...

Excerpt: ..., simply by sending written notice within thirty days of entering into the contract. Plaintiff appears not to have done that. By that simple act, plaintiff could have avoided all the alleged disadvantages of arbitration. Plaintiff also argues that she must pay to commence arbitration. As defendant says in its opposition, that is not so. See paragraph 5 on page 4 of the credit agreement. Plaintiff further asserts that she will not have certain pro...

Excerpt: ...s, the subject location did not pose a hazard to pedestrians when used with due care. Macerich also argues, in the alternative, that any defect was trivial or open and obvious as a matter of law, precluding recovery. Hines opposes. Evidentiary Issues Macerich's objection to Hines's request for judicial notice is overruled. The Court grants the request for judicial notice under Evidence Code section 452, subdivisions (c) and (h). Relevant Law To r...

Excerpt: ...(1) the claim upon which the attachment is based is one upon which an attachment may issue; (2) plaintiff has established the probable validity of the claim; (3) the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based, and (4) the amount to be secured by the attachment is greater than zero. See CCP Section 484.090(a); California Retail Portfolio Fund GmbH & Co. v. Hopkins Real Estate Group (2...

Excerpt: ...aintiff's application for temporary restraining order is based on its claims for trade secret misappropriation (first cause of action); unfair competition (fourth cause of action); and breach of contract against Defendant Nehls (second cause of action). Although the Complaint alleges a breach of contract claim against MacCarter (based exclusively on provisions of the Employee Handbook (Complaint at ¶ 14 and Ex. B)), Plaintiff sought a CONTRA COS...

Excerpt: .... Plaintiff, Martinez, has failed to raise a triable issue concerning whether defendant, Carvalho, was attempting to collect a consumer debt. Carvalho, has established his right to judgment as a matter of law. (CCP § 437c (c).) A. Background. In April 2005, plaintiff, Martinez, hired the law firm of Gagen, McCoy, McMahon, Koss, Markowitz & Raines (“Gagen, McCoy”) to provide legal services in connection with an employment matter. Gagen, McCoy...

Excerpt: ...ched that would resolve the objections to be raised in the demurrer.” (Code of Civil Procedure §430.41(a) (emphasis added).) Section 435.5(a) has a similar requirement for motions to strike. Defendants' attorney declares that she sent a letter to Plaintiff's attorney discussing the problems that Defendants had with the First Amended Complaint and asking Defendants' attorney to call her. Plaintiff's attorney did not receive a response to her le...

Excerpt: ...ts administrators or directors of care, Mark Callaway and Phylene Sunga. Defendants argue that neither count states a cause of action, and both need to be alleged more specifically. Defendants further argue that plaintiff may not sue the individual defendants. First Cause of Action, Elder Abuse The demurrer to this cause of action is overruled. Plaintiff alleges she was injured on August 8, 2015 while she was a resident at Lone Tree's skilled nur...

Excerpt: ...tration as an expeditious and costeffective way of resolving disputes.” (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843.) “Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration ‘if [the court] determines that an agreement to arbitrate the controversy exists.' (Code Civ. Proc., § 1281.2.)” (Hernandez v. Ross Stores, Inc. (2016) 7 Cal.App.5th 171, 176.) “...

Excerpt: ...osed. For the following reasons, the MSJ is granted. At the outset, the Court notes that Plaintiff's Exhibits to the Hennessee Declaration in support of the MSJ are not tabbed, in violation of Cal. Rules of Court, rule 3.1110, subd. (f). See also Local Rule 3.42, subd. (3). Defendants are directed to tab their exhibits in all future filings or risk monetary sanctions. Standard Code of Civil Procedure (“CCP”) §§ 437c(c) provides, in relevant...

Excerpt: ...ertainty and the failure to state a claim. The Court refers to the property currently owned by Plaintiff as “Plaintiff's Property”, and not as the “disputed slice”. The property currently owned by Klamczynska and Klamczynski is referred to as Lot 9. And the property currently owned by the Oznowiczes is referred to as Lot 8. Plaintiff argues that his property became landlocked in 1967 when Lots 8 and 9 engaged in a lot line adjustment and ...

Excerpt: ...ed Discovery (data storage). The Court finds that this cost is more properly viewed as overhead. Further, plaintiffs' counsel has not adequately explained why it is necessary to spend $ 20,000 each year for data storage, and has not adequately explained how the $ 375.00 allocation for this case was calculated. (Mikhov Dec., ¶ 9.) Other Disputed Items. The other disputed cost items are neither expressly allowed nor expressly disallowed under the ...

Excerpt: ...nded cross‐complaint on or before June 27, 2018. Meet and Confer Declaration (CCP § 430.41) Gregory L. McCoy, counsel for HomeSite, Tina Tomei and Darryl Phelps, filed a declaration stating he sent an email on April 4, 2018, listing the defects in the cross‐complaint and requested an opportunity to meet and confer. Cross‐Defendants' counsel, Christine Wheatley responded with an email, declining to make any modification to the cross‐compl...

Excerpt: ...e or at the same time as the answer to the complaint or cross‐complaint. (b) Any other cross‐ complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross‐complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. Section 426.50 also is relevant. It says:...

Excerpt: ...Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980. This is because California law has a strong preference for resolving disputes on their merits. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696. Here, the Court has before it conflicting declarations. One declaration indicates that personal service was effected. One declaration says there was not actual notice. Ordinarily, the Court would resolve that conflict in favor of granting the motio...

Excerpt: ...entative ruling, plaintiff's attorney of record, Vartkes Artinian, shall personally appear at the hearing. An appearance by CourtCall, or a special appearance by an attorney who is not counsel of record, shall not be allowed. The basis for this ruling is as follows. A. Evidentiary Matters. Defendants' request for judicial notice is granted. Plaintiff's evidentiary objections are overruled. Patrick Riquelme is a “Document Control Officer” for ...

Excerpt: ... a complaint. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. For purposes of a demurrer, all properly pleaded facts are admitted as true. Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is...

Excerpt: ...on, failure to comply with section 430.41 cannot be used as a reason to overrule or sustain a demurrer. (Code of Civil Procedure §430.41(a)(4).) Therefore, assuming Plaintiff is correct that Defendant failed to fully comply with section 430.41, the Court excuses any such failure and will rule on the merits of the demurrer. Defendant argues that Plaintiff's complaint is not proper as a civil matter, but should be raised (if at all) in a family la...

Excerpt: ...ceived a default judgment against Defendant in 1987 for $445,557. The current value of this judgment (with Alaska's 10.5% interest rate) is $1,868,991. Plaintiff has not collected any of this judgment from Defendant and she claims it is because she has been unable to locate him. In 2015, Plaintiff finally located Defendant in this County. On February 20, 2018, she filed an application for entry of judgment based on a sister‐state judgment pursu...

Excerpt: ...ff in a prior case whose claims of Breach of Contract, Negligence, and Intentional Misrepresentation did not survive a Court trial, and judgment was entered against Ms. Zarnegar and in favor of Mr. Hashemi on March 2, 2016. In that case, Ms. Zarnegar failed to prove, among other things, that she and Mr. Hashemi entered into a contract to remodel her home. However, the evidence showed some ‘shenanigans' with a realtor friend of Mr. Hashemi allow...

Excerpt: ...set forth in the Answer to Plaintiff's Complaint. ICW argues it is entitled to judgment in its favor because the Pollution Exclusion in the subject policies bar all of Plaintiff's claims. Defendant argues there is no dispute that the alleged contamination is property damage that falls within the scope of the exclusion provision of the policies issued to the Monroes. ICW seeks the same ruling relative to its cross‐complaint for declaratory relie...

Excerpt: ...nsurance policy on his property, which was in effect on February 17, 2016, when high winds damaged a boat dock and some fencing. (Complaint, p. 1, line 26, through 28.) The insurance policy was issued by Liberty Mutual, Safeco Insurance Company, General Insurance Company, “and each of them.” (Complaint, page 2, lines 12‐13.) Plaintiff made a claim, which was unreasonably denied. (Complaint, page 2, lines 10 through page 4, line 12.) The den...

Excerpt: ...th the claim‐presentation requirement is an element of the claim. A claim that fails to allege CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 05/23/18 ‐ 14 ‐ compliance fails to state a cause of action. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236 The court may not consider the evidence attached to plaintiff's Opposition. On a demurrer, the court may only consider the face of the ple...

Excerpt: ... DEPARTMENT: 09 HEARING DATE: 05/16/18 ‐ 9 ‐ Plaintiff argues the arbitration agreement should not be enforced because it is unconscionable. A court must order arbitration at the request of a party if it determines that an agreement to arbitrate the controversy exists unless it determines, among other things, that grounds exist for revocation of the agreement. (CCP § 1281.2 (b).) One such ground is that the agreement is unconscionable. (See ...

Excerpt: ...terpretation is not permitted by section 108. The Board's main argument in its demurrer is that Black Diamond has failed to exhaust its administrative remedies. In support of its argument it relies on the pending administrative proceeding between Black Diamond and the Board: In re Black Diamond Electric, Inc. (CSLB No. 2016‐232). The Board argues that Black Diamond must go through the administrative proceeding and then take a writ from the proc...

Excerpt: ...hed. Plaintiff Dorothy Guillory is AmeriCare's president, but brings this action in her individual capacity. On or about October 15, 2004, the City of Richmond leased the property to AmeriCare for purposes of operating an adult‐care facility and “related services.” The Lease Agreement had an initial term of 5 years. But the parties dispute the renewal provisions. The City Council originally approved a lease for a 5‐year term, with the opt...

Excerpt: ...t to go further and determine whether or not other reasons, such as unconscionability, adhesion, mistake, etc., would also be a basis for denial of the petition. ...

Excerpt: ...ed. Relevant Factual and Procedural Background The following was taken from the Administrative Record provided by Petitioner. On April 30, 2017 Petitioner was arrested for being a minor under 21 years of age and containing a B.A.C. of over .01% in violation of the California Vehicle Code. Petitioner's license was suspended after her arrest under the law of administrative per se. Petitioner requested and was granted a hearing with the DMV on Septe...

Excerpt: ... all causes of action are based on an underlying breach of a contract which is attached to the complaint. Defendant essentially argues that the allegations of the complaint are untrue, which of course does not constitute the basis for granting the motion (however styled). These arguments are matters to be presented at trial as evidence (or summary judgment motion), and the allegations of the complaint, however much the defendant disagrees with th...

Excerpt: ...ciding whether or not to consolidate two cases, the Court looks primarily at whether the actions involve common questions of law or fact. (Code of Civ. Proc. §1048(a).) The Court also considers whether consolidation would prejudice the parties. (See, e.g. State Farm Mut. Auto. Ins. Co. v. Superior Court of San Francisco (1956) 47 Cal.2d 428, 432.) In this case, Alcazar alleges in his verified complaint that Enriquez agreed to help Alcazar buy th...

Excerpt: ...as matters that may be judicially noticeable, but it may not consider other evidence presented by the parties. (Ibid.; see also, Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant argues that there is another action pending between the same parties and that there is a defect or misjoinder of parties. Defendant has offered no matters upon which the Court may take judicial notice and therefore the Court can only consider the complaint. The compl...

Excerpt: ...City pursues a General Plan Amendment to change the land use designation for that area from its current designation of Low Intensity Business/Light Industrial to Open Space, Parks and Recreation, Agriculture, Public Cultural and Institutional (hereinafter “Open Space”). Plaintiffs are property owners in Change Area 12. Some of them have pending development applications. Plaintiffs claim the City's adoption of the moratorium and pursuit of the...

Excerpt: ...re enjoined and restrained from the following acts, during the pendency of this lawsuit: (1) from selling, transferring, encumbering, conveying or otherwise disposing of any assets of New U Life; (2) from dissolving New U Life, and (3) from using any other entity, such as Strike First Nutrition, to sell New U Life's HGH Gel and testosterone related products. (4) Defendants shall keep and maintain complete and accurate books and records of account...

Excerpt: ...with CCP § 435.5. It has the same meet‐and‐confer requirements as CCP § 430.41 provides for demurrers. The new statute became effective on January 1, 2018. Here, the motion to strike was filed on February 27, 2018. Given the relative “newness” of the statute and there being no objection from the opposing party, the Court will “excuse” compliance this once. However, future motions to strike must comply with CCP § 435.5 or risk being...

Excerpt: ...aintiff must file the declaration required by CCP § 435.5 (a)(3). Before the next hearing, defendant should read the case of CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145, which makes clear that, unlike a natural person, a corporation may not represent itself in court proceedings or represent itself through a non‐attorney officer. Should an attorney fail to file a Notice of Appearance on behalf of Damax before t...

Excerpt: ...ion to ignore the Court's order, thus receiving the benefit of the preliminary injunction without the corresponding burden. Plaintiffs' counsel is admonished that such procedural gamesmanship may be punished by sanctions in future proceedings. The preliminary injunction, issued on February 7, 2018, is hereby immediately dissolved. Defendants are now free to pursue nonjudicial foreclosure proceedings against plaintiffs' residence as and when they ...

Excerpt: ...process. Accordingly, the defaults are void, and must be set aside. (Code Civ. Proc., § 473, subd. (d).) The Court finds the supporting declarations more persuasive than the proofs of service, because defendants have at all pertinent times been represented by counsel and have otherwise vigorously pursued their legal rights. The Court finds it highly implausible that defendants, if they had been served with the First Amended Complaint, would have...

Excerpt: ... what are the parties' current positions related to the motion to enforce judgment. In addition, the Court notes that recently some of the parties have been submitting documents to this Court where it is not clear whether all parties were served with a copy of that document. This practice must not continue. Whether in a court filing or letter submitted to this Court, all parties must provide a copy of any and all such documents to all other parti...

Excerpt: ...rial in the disposition of the MSA. See CCP § 437c(q). Here, there were none. Request for Judicial Notice Firouzian requests judicial notice of a Contra Costa County Recorder document as well as several pleadings from this action. The Request is unopposed. The request is granted as to the Notice of Completion filed with the County Recorder and otherwise denied. Evid. Code §§ 452, 453. The Court need not take judicial notice of its own records....

Excerpt: ...h's request for judicial notice is granted. Defendant shall file an answer on or before April 19, 2018. Leave to amend is denied at this time. However, this aspect of the Court's ruling shall not prejudice plaintiffs' right to timely file a motion for leave to amend, should discovery or further investigation reveal new facts that would support the eliminated causes of action. The legal basis for this ruling is as follows. 1st C/A (Breach of Contr...