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