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

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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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) ...