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: ...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: ...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: ...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: ...se party, allow, upon any terms as may be just, an amendment to any pleading…” (CCP § 473.) At any time before or after commencement of trial, the court may allow an amendment to a pleading in furtherance of justice. (Code Civ. Proc., § 576; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) “There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.” (Berman v. Bromberg (1997) 56 C...

Excerpt: ...Unruh Civil Rights CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPARTMENT HEARING DATE: 12/10/18 ‐ 6 ‐ Act (Civil Code § 51), and 4) intentional infliction of emotional distress (“IIED”). The demurrer is overruled. UHCA shall file and serve its answer by December 24, 2018. UHCA demurs to the entirety of the complaint on the basis that the complaint fails to join a necessary party under Code of Civil Procedure (“CCP”)...

Excerpt: ... MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 12/03/18 ‐ 2 ‐ these claims. If the two year statute of limitations applies then the claims are barred, unless equitable estoppel or tolling applies. If the four year statute of limitations applies then the claims are timely and may proceed. Statute of Limitations: 2 vs. 4 years The key issue here is whether the two year statute of limitations applies under CCP §339(1) or the four year state...

Excerpt: ...Rios was a resident and patient of Defendant Lone Tree Convalescent (“Lone Tree”), a skilled nursing facility in Antioch. Plaintiff resided at the facility from December 27, 2017 through December 31, 2017. Plaintiff Rios died at the age of 91 on January 22, 2018. Plaintiffs allege Rios' death resulted from injuries received at the Lone Tree. At the time of her admission, Rios was known to be at risk for falls due to her weakness and other con...

Excerpt: ... First Amended Complaint, defendants' current demurrer is addressed to only the Sixth and Seventh Causes of Action of the SAC. Sixth Cause of Action, Intentional Infliction of Emotional Distress The court overruled defendants' previous demurrer to this cause of action. The current demurrer is based on the same grounds. Accordingly, the demurrer to this cause of action is overruled. Further, the court's order on the previous demurrer said defendan...

Excerpt: ... follows. A. Procedural History. Plaintiffs filed their complaint on June 28, 2018. Defendant filed its motion to compel arbitration on August 3. At the initial hearing on October 1, the Court requested additional briefing, and set an evidentiary hearing for the presentation of live oral testimony. The parties filed supplemental briefs on October 29, and responses to the supplemental briefs on November 5. On November 15, the Court heard oral test...

Excerpt: ... Affinito's evidentiary objections, filed on October 15, 2018. Nos. 1, 2, 7, 19, 47, 50, 51: sustained in part. Unverified pleadings are not evidence. However, the filing date of the original Complaint is relevant to the statute of limitations analysis, and the allegations of the Third Amended Complaint define the scope of the issues that can be decided by the pending motions. Also, the Court can take judicial notice of the probate petition and t...

Excerpt: ...n October 22, 2018, is also granted. Neither side has filed evidentiary objections. Plaintiffs' objection to defendant's reply memorandum is overruled. Defendant's counsel is directed to properly serve opposition and reply papers in the future. The Court notes that it has received only a reply memorandum; the Court has not received a reply separate statement, or any reply evidence. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 H...

Excerpt: ...w no later than June 26, 2018. However, Huang canceled the contract on June 29, 2018. Crowd Fund therefore filed this action for specific CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 11/05/18 ‐ 7 ‐ performance and recorded a lis pendens against the Property. Huang now moves to expunge the lis pendens. Defendant Zeng, who offered to purchase the Property on June 30, 2018 for a predominantly seller‐financed am...

Excerpt: ...t Lemuel Sirvonn Wilson, Jr., and owned by defendant Savee Pralourng, struck her car. Three of Ms. Reyes' children were passengers and two died at the scene. The third – plaintiff Luciano Reyes, on whose behalf Ms. Reyes brings the action as guardian ad litem – survived. Besides the negligence‐based claims against the driver and owner of the other vehicle, plaintiffs also bring claims for dangerous conditions of public property against seve...

Excerpt: ...th Thomas Truston to purchase a floating home, currently situated at 7000 Orwood Road in Brentwood. Plaintiffs allege in the proposed amended complaint, which the court has granted in the accompanying motion, the subject floating home was brought to Bethel Island and Cruiser Haven Marina in 2008. On information and belief, Plaintiffs believe that Defendants have not dredged Orwood Slough and at present the slough is too shallow in several places ...

Excerpt: ...LC; and Affinia Default Services, LLC (collectively, “Defendants”). The Complaint alleges a cause of action for (1) declaratory relief and (2) violation of Cal. Civ. Code § 2924.11. A week later, Plaintiff moved ex parte for a temporary restraining order. The Court heard the Ex Parte Application, granted the TRO, and entered an Order to Show Cause to show why a preliminary injunction should not be granted, enjoining the Trustee's Sale of the...

Excerpt: ...“VSAC”). The Motion is opposed by the plaintiffs (“Plaintiffs”) in this matter. No reply was filed. For the reasons stated below, the Motion is granted. Governing Law Code of Civil Procedure (“CCP”) section 425.16 governs special motions to strike (“anti‐SLAPP” motions). A defendant's anti‐ SLAPP motion may only target claims arising from any act of the defendant in furtherance of the defendant's right of petition or free spee...

Excerpt: ...loyee Le'James Riggins, lasting no more than one hour. The Court would then take the matter under submission and issue an order after hearing. The parties should also be prepared to set a briefing schedule on the following issues: (1) whether plaintiff Rose Dixon can be compelled to arbitrate, given defendant Tesla's failure to offer evidence that Ms. Dixon is a party to the arbitration agreement, and; (2) if Ms. Dixon cannot be compelled to arbi...

Excerpt: ...See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158. CACI Section 1003 sets out the elements of a premises liability claim. A defendant was negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the defendant knew or, through the exercise of reasonable care, should have known about it; and (3) the defendant failed to repair the condition, protect against harm from the ...

Excerpt: ...omez and Exenia Guadalupe Garcia Casan, by and through Guardian ad Litem Melisa Casian Gomez (collectively, “Plaintiffs”). The SAC pleads causes of action for (1) vehicle negligence; (2) vicarious governmental liability – employee – Gov. Code § 815.2 & 820; (3) vicarious governmental liability – contractor – Gov. Code § 815.4; (4) negligence; (5) dangerous condition of public property; and (6) wrongful death. Only causes of action (...

Excerpt: ....5 requires a plaintiff to bring her action against a “health care provider based upon such person's alleged professional negligence” within three years after the date of injury or within one year after plaintiff discovers, or through reasonable diligence should have discovered, the injury, whichever comes first. See also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897 (emphasis added) The one year statute of limitations begins to run “when th...

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: ... for breach of oral contract pled against Defendant Derek Beal, the demurrer is sustained with leave to amend. Defendant demurs to each component of the breach of oral contract claim. Since four oral agreements made between Derk and Derek are pled in one cause of action, if anyone is valid, the cause of action will survive since a party cannot demur to a part of a cause of action. See Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 99...

Excerpt: ...ndant demurs pursuant to Code of Civil Procedure § 430.10(e) on the grounds that Plaintiff fails to state facts sufficient to constitute a cause of action for unlawful detainer and pursuant to Code of Civil Procedure § 430.10(f) on the grounds that the complaint is uncertain. As a threshold matter, uncertainty is a disfavored ground for demurring to a complaint. See, e.g., Khoury v. Maly's of California (1993) 14 Cal.App.4th 612, 616; 1 Weil & ...

Excerpt: ...he Second Amended Complaint (“SAC”) filed by Plaintiff Ali Rezapour and Plaintiff Aurora Rezapour (collectively, “Plaintiffs”). The SAC pleads causes of action for (1) declaratory judgment; (2) statutory violations (Civil Code § 2924(a)(6), § 2924.17, § 1227); (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; and (6) slander ...

Excerpt: ... the FAC, however, statute of limitations is not a cause of action. Standard of Review A defendant meets its burden on a motion for summary judgment by showing either that plaintiff's claims have no merit or that there is a complete defense to the claims. (Code of Civil Procedure § 437c(p)(2).) A defendant can show this by providing factually devoid discovery responses from plaintiff or by providing admissible evidence that negates Plaintiff's c...

Excerpt: ...rrer is sustained without leave to amend, as to all causes of action set forth in the First Amended Complaint (“FAC”). Defendants shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that judgment to plaintiff for approval as to form. The basis for this ruling is as follows. Plaintiff's deed of trust shows a maturity date of July 1, 2034. (FAC, Exh. “A”, p. 2; defendants' RJN, Ex...

Excerpt: ...all be filed and served no later than August 16, 2018. Code of Civil Procedure (“CCP”) § 473(a) gives the Court discretion in deciding whether to allow an amended pleading. There is “a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations]…” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is ...

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: ... 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: ...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...

Excerpt: ...nst WCF is the fifth cause of action, for breach of the implied warranty of merchantability under Civil Code section 1791.1 and 1794. As against Ford, all of the causes of action pled in the complaint remain pending. As a second preliminary matter, the Court notes that the Slausons do not oppose the petition as CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 07/23/18 ‐ 14 ‐ it pertains to WCF. That is, the Slauso...

Excerpt: ...to switch tactics and “add a summary adjudication claim” of the third cause of action for fraud or alternatively, have the court treat its motion as one for judgment on the pleadings with respect to fraud. With respect to the alternative request, this court has already ruled on the sufficiency of the pleadings, including the fraud cause of action. See Notice of Entry of Order [overruling Renee Hilliard, M.D.'s demurrer to all three causes of ...

Excerpt: ...timely. However, plaintiff is admonished that the court does not consider service by regular mail to be proper for Oppositions and Reply Briefs. (See CCP § 1005 (c).) In the future, plaintiff should also use more standard terminology in responding to demurrers and motions, labeling his opposing memorandum of points and authorities as an Opposition, not an Objection. This will aid the Clerk's Office in properly labeling it. Second Cause of Action...

Excerpt: ...by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or n...

Excerpt: ...ange its Order because Plaintiff has allegedly circumvented the stay against Merrill Lynch by seeking discovery, documents and depositions from it to prosecute the other named Defendants. See Willey Decl., paragraphs 5‐7 and Exhibits B, C and D. There is nothing wrong with this. First, the parties' agreement to stay the case did not, in any way, limit discovery. Merrill Lynch never raised the issue, and it did not request any limit CONTRA COSTA...

Excerpt: ...cient time to respond would be requiring an idle act creating further delay. The motion is not untimely because Local Rule 3.301(a)(2) provides that service of the Request for Assignment of Discovery Facilitator shall be deemed the proper filing of a Discovery Motion for purposes of the rule requiring that Discovery Motions be filed within forty‐five (45) days of service of the discovery responses. The Court finds that the local rule is not inc...

Excerpt: ...ing documents on a “rolling” basis pursuant to the subpoena. The Court will consider Plaintiff's request for attorney's fees for the period prior to February 2018 which were necessitated by Merrill Lynch's initial delay in responding to the subpoena. Parties to appear to address attorney's fees. ...

Excerpt: ...ly rent in the amount of $2883 payable on the 30th day of each month. The rent shall be paid to the law firm of McCarthy & Holthus, LLP, who shall hold all accumulating rent in its trust account, subject to further order of the Court. Upon entry of judgment in this action, the accumulated rent shall be paid to the prevailing party. Third, Plaintiff shall file and serve a declaration under penalty of perjury, every two months, confirming that all ...

Excerpt: ...ovide a formal response to Plaintiffs' Second Request for Production of Documents which complies with the Code of Civil Procedure as previously ordered by the Court. A judge has broad discretion to impose sanctions for violations of court orders, including those intended to compel compliance with a party's disclosure and discovery obligations. The Court has the authority to impose more drastic sanctions, such as issue sanctions, evidence sanction...

Excerpt: ...ion of Business and Professions Code section 17200 et seq.). The Court addresses each cause of action separately below. Breach of Contract In light of the Court's ruling on Kessler's anti‐SLAPP motion, the Court need not, and therefore does not, address the demurrer to the breach of contract cause of action pled in Longmire's cross‐complaint. Fraud It appears that the cross‐complaint attempts to state a claim for fraud based on one or more ...

Excerpt: ...eir motion is 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(o)(1) and 437c(p)(2) provide the relevant legal standard for deciding the MSJ. Section 437c(o)(1) provides, in relevant part: A cause of action has no merit if one or more of ...

Excerpt: ...urt notes that Kessler filed a reply brief supporting the antiSLAPP motion on June 12, 2018. The reply was due to be filed on June 11, 2018. The Court strikes the late‐filed reply brief and declines to consider it. Section 425.16(f) As a preliminary matter, the Court rejects Longmire's position that CCP section 425.16(f) requires the Court to deny the motion. Section 425.16(f) imposes a requirement on the clerk of the court to schedule an anti�...

Excerpt: ...hed to Defendants' pleadings belies this argument, which the Court finds disingenuous. The email from Plaintiff dated May 10, 2018, (Exhibit D to the moving papers), unequivocally extends to May 18, 2018 Defendants time to respond to the Second Amended Complaint. The parties had been in the process of discussing the possible demurrer to the Second Amended Complaint. Plaintiff's “surprise attack” of filing the Request to Enter Default on May 1...

Excerpt: ...t petition before the Court by way of a noticed motion. The Court has considered carefully the material the parties have presented, and rules as follows. Background Work and Injury History Fernandez began working for Contra Costa County in either 1996 or 1998. (The briefing and the administrative record diverge on this date. For purposes of this ruling, the distinction is immaterial.) On three separate occasions, she was injured at work. In July ...

Excerpt: ...ons WSI argues generally that Chevron has a time bar problem and that Chevron has not alleged sufficient facts to rely on the discovery rule. In the first instance, the demurrer does not identify which specific causes of action suffer from a limitations problem, or what the applicable statute(s) of limitations are. The Court is left to guess. On its own, this failure to support the contention that one or more of the causes of action is time‐bar...

Excerpt: ...uant to Code of Civil Procedure section 2016.040. Defendants and each of them shall have the right to take and complete Plaintiff's deposition. ...

Excerpt: ...s sale. No undertaking is required at this time, based on the information set forth in plaintiff's application for a fee waiver. (See, Code Civ. Proc., § 995.240 [undertaking may be waived for indigent party].) The purpose of this three‐month injunction is to allow the legal merits of plaintiff's complaint to be decided by demurrer. The Court finds a demurrer to be a more appropriate procedural vehicle for deciding that purely legal question. ...

Excerpt: ...his 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. The answer included with the moving papers is deemed filed and served on all parties who have appeared in this action as of the date of this order. The Court sets a case management conference for 9:00 a.m. in Department 15 on August 9, 2018. At that time, the parties should be prepared to set a tr...

Excerpt: ...n Loan Servicing, LLC (“Defendant” or “Shellpoint”). The Demurrer relates to the Second Amended Complaint (“SAC”) filed by Plaintiff Dean Oduah (“Plaintiff” or “Oduah”). The SAC pleads causes of action for (1) breach of contract; (2) promissory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) ...

Excerpt: ...sory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) fraud; (7) violation of Bus. & Prof. Code § 17200 et seq.; (8) quiet title; and (9) declaratory relief. The Court also notes that Plaintiff's claim for (4) breach of contract & interference with 3rd party beneficiary contract is new in the SAC. This Court pre...

Excerpt: ...ations; (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; (6) fraud; and (7) slander of title. Defendant demurrers pursuant to Code of Civil Procedure § 430.10(e) to each cause of action. Request for Judicial Notice Defendant requests Judicial Notice of several Contra Costa County Recorder Documents. This Request is unopposed. The Cour...

Excerpt: ...es to the First Amended Complaint (“FAC”) filed by Plaintiff Ali Rezapour (“Plaintiff” or “Rezapour”). The FAC pleads causes of action for (1) declaratory judgment; (2) statutory violations; (3) unlawful and attempted foreclosure; (4) cancelation of recorded documents; (5) unfair business practices in violation of Bus. & Prof. Code § 17200, et seq.; (6) fraud; and (7) slander of title. Defendants demurrer pursuant to Code of Civil Pr...

Excerpt: ...ing there appears to be no meaningful difference between Terri and The Heath Company and therefore future references to Terri shall include The Heath Company. Plaintiffs Blair Heath Kenealy (“Blair”) and Holly Heath Fuller (“Holly”) filed a motion to vacate the arbitration award. The Heath Family Partners II, LP (the “Partnership”), has filed a petition to correct or vacate the arbitration award. The Partnership is not a party in this...

Excerpt: ...ll file and serve his amended complaint by May 29, 2018. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 05/14/18 ‐ 22 ‐ The Court has reviewed Defendants' attorney's declaration and finds that it complies with Code of Civil Procedure §435.5. It is, however, disappointing that Plaintiff's attorney did not take the opportunity to meet and confer. Defendants seek to strike Plaintiff's attorney fees claim on page 3...

Excerpt: ...d Negligence are barred by Ohio's applicable statute of repose (Ohio Revised Code 23.5.10), and the cause of action for Negligent Infliction of Emotional Distress is inappropriate and has no merit. (In the Opposition, Plaintiff concedes his cause of action for NIED is subsumed within the Negligence claim.) Standard of Review CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 05/14/18 ‐ 7 ‐ “The motion for summary ...