Excerpt: ...er is sustained, with leave to amend. Request for Judicial Notice Defendant requests judicial notice of pleadings from Contra Costa County Superior Court case number C17‐00462. This Request is unopposed. The Request is granted. Evid. Code §§ 452, 453. Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A compl...

Excerpt: ...bjections, filed after his Reply and Separate Statement Response, are untimely under California Rule of Court 3.1354(a) and Plaintiff has not made a showing of good cause for their untimely filing. As a result, the Court disregards them. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 11/18/19 ‐ 2 ‐ Analysis Continuance As a threshold issue, Counsel for Plaintiff requests a continuance pursuant to CCP § 437c(h)....

Excerpt: ... column is used by the moving party for its material facts with citations to the evidence below the fact. The right column is reserved for use by the opposing party. (See, California Rule of Court, Rule 3.1350(h).) Defendant's separate statement references issues that Defendant believes are relevant to the case, but does not include actual statements of fact. For example, “whether there is a CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPA...

Excerpt: ...SACC alleges causes of action for violation of California's unfair competition law under both an unlawful (first cause of action) and unfair (second cause of action) theory of liability. She also alleges a third cause of action for declaratory relief. Cross‐Defendant demurs pursuant to Code Civ. Proc. §§ 430.10(e) and (a). Although the CrossDefendant references subsection (a) in its Notice of Demurrer, there is no argument regarding jurisdict...

Excerpt: ...e motion must be filed and served within fifteen days after service of the memorandum of costs, plus five days for mailing. (CRC 3.1700(b)(1).) The Court, however, may extend the deadline on its own motion, for up to 30 days. (CRC 3.1700(b)(3); Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 155.) In this instance, the final day was March 28th. The motion was filed that day, but was not served until April 4th. Give...

Excerpt: ...ium agreements (as well as the prayer for injunctive relief and for attorneys' fees) should be stricken. For the following reasons, the motion is denied. As a threshold issue, the Court declines to take judicial notice of the unpublished case Sanai v. Corelogic Info. Res. (October 16, 2018) 2018 Cal.App. Unpub. LEXIS 7023. California Rules of ‐ 5 ‐ Court Rule 8.1115(a) prohibits the Court (and parties) from citing or relying on opinions not c...

Excerpt: ...hat the Premium Agreement that she executed with Cross‐Defendant BBBB Bonding Corporation dba Bad Boys Bail Bonds is a “consumer credit contract” pursuant to § 1799.90. In her FACC she alleges that “[t]he Premium Agreement is a consumer credit contract within the definition of Civil Code section 1799.90(a)(4).” The opposition, however, argues that the Premium Agreement is a consumer credit contract pursuant to both subsection (a)(4) an...

Excerpt: ...del of the residence located on the subject property and performing other improvements on the Alamo property. (Cmplt, paragraphs 15, 16) Plaintiffs hired Matoza for the hillside stabilization work pursuant to a contract, dated November 3, 2015. (Cmplt, paragraph 18) The Complaint further alleges that “Matoza is an officer and director of Defendant Henry Matoza Construction, Inc. (“HMCI”) and is listed on the personnel record of the general ...

Excerpt: ...shall file and serve an answer by February 25, 2019. Defendant demurs to the first cause of action for Intentional Infliction of Emotional Distress and the second cause of action for Negligent Infliction of Emotional Distress as to all plaintiffs and demurs to the entire SAC as to Plaintiff Richard Stritt. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 02/11/19 ‐ 3 ‐ IIED (cause of action one) The Court previous...

Excerpt: ... out of a restaurant building fire. The owner of the building, Frangieh, and the owner of the restaurant, Guistomangia, Inc., were both insured. Frangieh was insured by National Surety Corporation. National Surety paid damages as a result of the fire and is subrogated to the rights of Frangieh. Guistomangia was insured by Golden Eagle Insurance Corporation. Golden Eagle paid damages as a result of the fire and is subrogated to the rights of the G...

Excerpt: ...e the Court's previous admonition concerning the filing of unnecessarily voluminous papers, plaintiffs' motion for leave to amend takes up the entirety of Volume 12 of the court file. Plaintiffs' RJN. The Court rules as follows on plaintiffs' request for judicial notice, filed on November 29, 2018. Exhibits “A” through “U”: denied, as irrelevant to the issue of whether plaintiffs should be granted leave to amend. The pertinent facts are t...

Excerpt: ...to causes of action one, two and three, and overruled as to cause of action four. There are other demurrers pending in this case, which are scheduled in February. If the pleadings are settled after the Court rules on the various demurrers to the SAC, then Defendants shall file and serve an answer by February 25, 2019 or 14 calendar days after the Court's ruling on the last demurrer or motion to strike as to the SAC, whichever is later. If, howeve...

Excerpt: ...nrichment) and 15 (violation of Bus. & Prof. Code § 17200) for the failure to state a cause of action. Defendants have also demurred to causes of action 1 (breach of written contract) and 2 (breach of implied contract) for uncertainty. Causes of action 1 and 2 (breach of written and implied contracts) The demurrer to causes of action one and two is puzzling. These claims have been included in the complaint since the original complaint was filed ...

Excerpt: ...nant” or “Waste Connections”), Madera Disposal Systems, Inc., Potrero Hills Landfill, Inc., and Waste Solutions Group of San Benito, LLC (collectively, “Landfill Cross‐ CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 01/07/19 ‐ 11 ‐ Complainants”). The Cross Complaint alleges causes of action for: (1) declaratory and injunctive relief; (2) unreasonable search and seizure in violation of the fourth ame...

Excerpt: ...n this case, which are scheduled in January and February. If the pleadings are settled after the Court rules on the various demurrers to the SAC, then Defendant shall file and serve an answer by February 25, 2019 or 14 calendar days after the Court's ruling on the last demurrer or motion to strike as to the SAC, whichever is later. If, however, Plaintiffs are given leave to amend then Defendant need not respond until after the amended complaint i...

Excerpt: ...mount of $31, 215.00. The court finds Defendant to be the prevailing party and entitled to an award of fees pursuant to Civil Code section 1717. Both the promissory note and deed of trust executed by Plaintiffs contained provisions for an award of attorney's fees in all actions related to the loan. The Court finds that the fee provisions were broad enough to cover both contract and non‐contract causes of action. Although Defendant was not a sig...

Excerpt: ...d ignore pages 21‐24 and Levin's entire argument concerning nondiscriminatory reasons for its employment actions. In its discretion, the Court will consider the argument, but Levin is reminded to follow all rules in future filings. II. Background Plaintiff Joseph Irvin, an African‐American male, has worked for Levin since 1991. In his complaint, he alleges a series of incidents of racial harassment. In the 1990s, someone carved “WHITE POWER...

Excerpt: ...Plaintiff in charge of Buchanan Fields Golf Course (“BFGC”). On August 15, 2015, this court granted Hall's TRO and set a briefing schedule for the instant preliminary injunction. Specifically, the court ordered Sullivan: (1) to return complete and total control of BFGC, all of its operations, bank accounts, Secretary of State information, buildings and personal property to the Halls by August 15, 2018; (2) to return any funds taken from BFGC ...

Excerpt: ...deposit of $12,000 which must be applied to the delinquent rent. Tan was awarded attorney fees in the amount of $5000 and costs in the amount of $240 as the prevailing party. In 2016, the Wongs filed another Unlawful Detainer action against Tan, (Case No. RS16‐0235). This action was based on Tan's failure to pay rent and failure to purchase insurance for the subject property naming the Wongs as additional insureds. On the eve of trial, Tan surr...

Excerpt: ...le 2.112, which requires that each cause of action identify which plaintiff(s) are suing which defendant(s). Plaintiffs' opposition is not compelling. Given the number of parties involved in this case, Plaintiffs should take care to clearly identify which parties are involved in each cause of action. Plaintiffs failed to comply with rule 2.112, and therefore, the demurrer for uncertainty is sustained. Emotional Distress Claims The Court will addr...

Excerpt: ... stricken: Defendant Thao Kim Nguyen “committed two felonies, hit and run after collision that caused a serious injury and driving while intoxicated and causing serious injury and violated CVC 20001 and 23153.. [and]… was cited for at least one of these felonies.” (FAC p. 6.) Defendants argue that Plaintiff has already reviewed the Traffic Collision Report and received Defendants' discovery responses and that these allegations are false and...

Excerpt: ...P”) section 473 and 473.5 for extrinsic fraud or mistake. Defendant contends, and has submitted a declaration stating, that he did not receive actual notice of the lawsuit in time to file a responsive pleading. Opposition to the Motion was filed by plaintiff on July 31, 2018, which the Court has considered. No reply was filed. For the reasons stated below, the Motion is granted. CCP section 473.5 provides, (a) When service of a summons has not ...

Excerpt: ... in effect. The Court agrees with Defendant's analysis that the cases relied upon by Plaintiff were unconstitutional applications of the statue because the plaintiffs' substantive rights were impaired. In the case at bar, Plaintiff's claims against Defendant did not accrue until more than nine years after section 2305.10 went into effect. The Motion for New Trial is denied. ...

Excerpt: ...itive damages. It concerns emotional distress damages. Defendants have not cited any authority warranting striking such damages here. 2. Denied. The cited language in paragraph 33 of the FAC appears in the cause of action for battery alleged by plaintiff Cyrus G. solely against defendant Wilson. Punitive damages are properly alleged in this cause of action for battery. (The court does not know why the moving and opposition papers keep referring t...

Excerpt: ...t is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 08/06/18 ‐ 11 ‐ a proceeding in which by law a hearing is required to be given], shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was...