Excerpt: ...n, which the Court denied. (The Court has received no Order After Hearing thereon, however.) That result is not necessarily dispositive of this demurrer, however, because the denial rested in part on matters shown in the evidence on the motion, but not pleaded in the complaint – notably the point that plaintiff was in arrears in her payments even before the 2010 transfer of the HELOC (and cessation of sending monthly notices). The Court rejects...

Excerpt: ...a previous lawsuit on the same subject matter. In that case the Court ordered the Gannons to provide specified discovery, concluding that they had waived objections by failing to respond timely. The Court commented: The Court was informed at a CMC earlier this week that plaintiffs served responses late last week, including some objections. If the scope or merit of the objections were at issue, that would require a new discovery motion; indeed, it...

Excerpt: ...gument lacks merit. The Court interprets § 435.5 as applying only when a given party brings two successive motions to strike. RJNs. Argabright's request for judicial notice of documents filed in other actions is granted. The Gannons' request for judicial notice of Argabright's answer in this action is denied as superfluous; the pleadings in this action are before the Court as a matter of course. However, the Court appreciates the courtesy of pro...

Excerpt: .... Ford Motor Co., 119 Cal.App.3d 757, 826‐828, overruled on other grounds in Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 37 n.6.) A limited statutory exception is set forth in Civil Code § 3294(d), as follows: “Damages may be recovered pursuant to this section in an action pursuant to Chapter 4 (commencing with Section 377.10) of Title 3 of Part 2 of the Code of Civil Procedure based upon a death which resulted from a homicide for which t...

Excerpt: ...tore located at 1340 North Main Street. Defendant Jennifer Meza was the store manager and plaintiff's supervisor. Defendant Nick Botsford was Plaintiff's supervisor and district manager. Plaintiff alleges defendants were aware of his disabilities at all relevant times. Plaintiff alleges that at various times throughout his employment, Defendants denied reasonable accommodations. One of the accommodations requested by plaintiff's healthcare provid...

Excerpt: ...ainst a long list of its subcontractors and suppliers to this action – some, the Court determined, with good reason; but others, including Villara, not so. The only dispute between Thompson and Villara themselves is Villara's claim to collect what it says is a substantial sum Thompson owes it. The Court, after lengthy inquiry, determined that that claim has no factual connection to the Thompson‐LTC dispute, except that LTC is withholding the ...

Excerpt: ... the tentative to seek leave to amend, he should come to the hearing prepared to explain how he proposes to amend as against the Police Defendants and why it will be sufficient. The FAC arises from two incidents occurring on August 7, 2018. Only the second incident, however, has to do with the Police Defendants. Plaintiff alleges that defendant Torchia, a Tri Delta bus driver, “called the Brentwood Police and falsely reported that [plaintiff] w...

Excerpt: ...heir answers by January 3, 2020. Defendants Stroud Development and Alexander Stroud filed nearly identical demurrers to the FAC and filed a joint reply. The Court's ruling below applies equally to the two demurrers. Meet and confer process Plaintiff argues that the meet and confer process was insufficient because Alexander Stroud (acting as a self‐represented party) did not call Plaintiff's attorney, but only sent an email. Plaintiff is correct...

Excerpt: ...as to the parallel demurrer of the Mt. Diablo USD. Any amended complaint shall be filed and served on or before January 10, 2019. If plaintiff elects not to amend, defendants' time to answer the remaining parts of the case will run from then. If plaintiff contests the tentative to seek leave to amend claims as to which leave is denied, she should appear at the hearing prepared to discuss in detail how she proposes to amend and how the proposed am...

Excerpt: ... third parties and others that Jane Doe is a slut, meaning unchaste. These facts are sufficient to support a claim for punitive damages against defendant Russell for her personal actions even in the absence of her being responsible for the actions of defendant Cesar Gracie. The court rules as follows regarding the demurrers of defendant Russell: 12. TIME: 9:00 CASE#: MSC19‐01160 CASE NAME: DOE VS. GRACIE HEARING ON DEMURRER TO COMPLAINT FILED B...

Excerpt: ...ht on the questions previously posed. The Court may not have been as clear as it intended in one respect, however: It was inviting the parties to identify and elaborate on evidence already filed, arguments already made, and undisputed/disputed facts already cited, in the original motion papers. It did not intend to invite either side to expand its arguments and factual assertions to include new matter – only to better explain what had already b...

Excerpt: ...ise overruled. Plaintiffs may file and serve a second amended complaint by December 20, amending as to the common count and/or as to any claim based on the $43,000 loan. If they elect not to do so, defendants' time to answer the remaining portions of the FAC will run from that date. This is a family dispute over a common residence. Plaintiffs are the parents of defendant Cleo Madriaga; Ryan is Cleo's husband. Plaintiffs purchased a large house in...

Excerpt: ...that defendant realtors were (perhaps) colluding with a third‐party buyer, Crowder, to arrange to profit at their client's expense by putting the property into foreclosure, buying it out, and selling it at a substantial profit. But that theory is found in the present complaint only between the lines, with insufficient allegations as to (for example) whether Crowder would have been willing to buy the property before foreclosure, and what was or ...

Excerpt: ...T MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/15/19 ‐ 11 ‐ This is a personal injury case arising out of an automobile accident. Plaintiff alleges that he was struck by a vehicle being operated by Defendant Jarrard while walking. Complaint at ¶ 14. He alleges that the subject sidewalk area where he was struck was owned and controlled by Defendant County. Id. at ¶¶ 15, 16. The Complaint alleges causes of action for (1) negligence, ...

Excerpt: ...siness premises at 3100 Delta Fair Boulevard, Antioch. TRC is a commercial tenant of Landlords at those premises, operating a dialysis center there. This case originated with a trip and fall accident in the parking area of the premises. Plaintiff Sandra Roman, having received treatment at TRC, was being escorted from the TRC facility by a paratransit driver from Acclaim Mobility, LLC to a waiting vehicle. The Acclaim driver stopped to chat with a...

Excerpt: ...answer to the complaint. (In its previous ruling the Court said it couldn't find one in the file, but the electronic docket shows it was filed and it has since been placed in the Court's file.) A defendant who has already answered is not then allowed to demur. This is admittedly only a matter of labeling. An MJOP serves essentially the same purpose as a demurrer, namely to test the legal sufficiency of the complaint's allegations; and it may be f...

Excerpt: ...nts had business relationships in the Real Estate and Mortgage Industry, and worked with one another in the construction, rehabilitation, and sales of properties in the Greater Bay Area. Mancheno and Defendant Brian Baniqued were partners and co‐owners of real estate franchise entitled Century 21 Pinnacle. Plaintiff alleged in the original complaint that defendants conspired to provide falsified/ forged/manipulated documents and false testimony...

Excerpt: ...ckground Plaintiff has second or third mortgage interests in multiple properties owned by defendant real estate developer Kevin Hampton. (Complaint, 8:16‐17.) In 2004, plaintiff became inspired by Hampton, and therefore began investing with him, due to Hampton's strong vision to redevelop properties in Richmond and surrounding areas in a booming real estate market. (Complaint, 2:18‐23.) Plaintiff successfully received repayments from Hampton ...

Excerpt: ...to partition real property. Plaintiffs, the Nelsons, were the two‐thirds owners of the property; defendant Riley was the one‐third owner. In October 2018 the Court (Judge Fenstermacher) entered an order granting plaintiffs' motion to partition the property by private sale. The order determined the parties' shares in the property, and directed that a referee would be appointed to conduct the sale. The referee was appointed by subsequent order....

Excerpt: ...red per CRC 3.1110(f) and Local Rule 3.42. In the future, all filings must be properly tabbed. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/08/19 ‐ 11 ‐ Standing Schmier asserts that he is a holder of deeds of trust on 728 Laurel Drive and 3269 Judith Lane. (Schmier RJN 3‐6.) Code of Civil Procedure § 405.30 allows a “nonparty with an interest in the real property affected” by a lis pendens to “app...

Excerpt: ...but not in the body of the Complaint), (4) negligence, and (5) unfair business practices (violation of Bus. & Prof. Code § 17200 et seq.). Plaintiff's present motion, however, does not invoke either of the latter two causes of action as support for a preliminary injunction, and their substantive content is essentially derivative of the claims plaintiff makes for breach of contract and § 2937. Legal Standard The ruling on an application for prel...

Excerpt: ...to dismissal as against this defendant. The complaint, filed in pro per, is quite cursory, alleging in highly conclusory terms that the two defendants are engaged in debt collection and have committed various violations of the Federal Debt Collection Practices Act and California Debt Collection Practices Act. (Actually, the complaint is studiously informative as to whether there are two defendants, or just one operating under two names – a poin...

Excerpt: ... evidence, if any, they envision being presented at the eventual trial of this case. Certainly if there were allegations along the lines of intentional racial discrimination or the like, it would be hard to see how the City could bar discovery into the potentially discriminatory motives or actions of the people involved. As the City points out, however, no claim of that kind is pleaded. So what evidence, if any, does the City itself plan to proff...

Excerpt: ...ed action No. C17‐00838, Judge Austin overruled Freshko's demurrer to Mr. Olivares' First Amended Complaint. Judge Austin held that Mr. Olivares had adequately pleaded a delayed discovery theory that could support tolling the statute of limitations. Substantially the same allegations cited by Judge Austin in support of his ruling are set forth in the Amended Cross‐Complaint filed in this action on December 17, 2018. The Court will not reconsi...

Excerpt: ...intrusion, and neighbors, claiming management has failed to remedy these problems despite numerous requests and complaints by plaintiff. (FAC ¶ 14.) Garcia is the on‐site manager for Bayo Vista. Defendant's demurrer is based on her asserted immunity under Government Code § 820.2, which states, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omissio...

Excerpt: ... objections on behalf of Centrox and Viera, even when those objections were made – and even less so now that Black Diamond has itself agreed to produce the same range of documents.) The Court agrees with the recommendation of the Discovery Facilitator that there is potential discoverable relevance to the documents at issue. A key factual issue in the case will be whether Black Diamond was aware, at the time of this project, that its subcontract...

Excerpt: ...e defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract. (b) The motion shall be made on the grou...

Excerpt: ...rwise overruled. Wong may file and serve his second amended cross‐complaint within 28 days. If he chooses not to amend, the answer to the remaining portion of the FAXC will be due within 28 days after that deadline. Futility All but one of Wong's causes of action are asserted as derivative claims on behalf of Brachium, Inc. (Cross‐defendants argue that none of these causes of action can be asserted by Wong personally, and he concedes they're ...

Excerpt: ...he implied covenant of good faith and fair dealing; (3) rescission; (4) lost profits; and (5) elder abuse. For the following reasons, the demurrer is overruled. Cross‐Defendants must file and serve their answer within 28 days. Request for Judicial Notice Cross‐Defendants request Judicial Notice of the Arthur Brandt Declaration in support of Diablo Contractors' Opposition to Fidelity's Application for Right to Attach Order. The Court need not ...

Excerpt: ...e defenses set forth in the answer”. Code of Civil Procedure § 438(c)(2)(B). Plaintiff's motion purports to be to the entire answer, asking that it be stricken. But part of the answer is defendant's general denial. Plaintiff does not purport to show, via matters deemed admitted or otherwise, that the general denial is unmeritorious. To do that, he would have to show that every element of every cause of action in plaintiff's first amended compl...

Excerpt: ...or anticipatory breach of the succession contract. He accordingly argues that the succession contract dispute must be tried to a jury as a breach‐of‐contract damages claim. Having read the briefs and cases cited, however, the Court must agree with defendant that no such damages claim will lie prior to the death of the alleged promisor. Plaintiff's only remedies available for the asserted anticipatory breach are entirely equitable, not involvi...

Excerpt: ...prises. Blake is alleging that Jesse promised that Blake would inherit family business, but Jesse has changed his mind. Blake claims there is an enforceable contract, and Jesse disagrees. In addition, Blake is also suing because Blake's employment at the car wash was terminated. Contract Claims (C/A 1, 2, 8, 9, 10, 11, 12 and 13) Defendants seek to dispose of the following contract claims: (1) Breach of Contract, (2) Breach of Implied Covenant of...

Excerpt: ...ous analysis need not be repeated. In particular, there still remains (1) no basis for asserting that USS‐Posco had any special relationship with plaintiff, such that it could be liable for mere nonfeasance; and (2) no basis for blaming USS‐Posco, as opposed to defendant Belcher, for having started the fire. What is new this time around is a slight shift in the focus of plaintiff's theory of liability, as expressed in its opposition brief. Pl...

Excerpt: ...efendants (Bert Dunken and Jason Weeks). “California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable.” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 146 (citation omitted).) The party opposing “bears the ‘substantial' burden of proving why it should not be enforced.” (Id. at 147.) The law governing this motion is concisely an...

Excerpt: ... weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) The trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute. “This determination involves two considerations: (1) whether there is a valid agreement...

Excerpt: ...laintiff to place her foot on the most appropriate piece of equipment for the exercise, namely an exercise block or step. Instead (plaintiff's evidence contends), Agredano had plaintiff rest her foot on the outer surface of a treadmill, an inappropriate surface for a number of reasons. (Defendants do not concede that this was negligent, but their present motion effectively assumes that a jury could so find.) Plaintiff slipped and injured herself....

Excerpt: ...entify each cause of action or issue on which they seek summary adjudication as required by CRC 3.1350(d). The separate statement does not follow the format requirements set forth in CRC 3.1350(h). In addition, the separate statement does not cite to specific evidence following each fact. Instead, each fact is followed by citations to the entire declaration of Athan Magganas and the complaint. No specific paragraphs in the declaration or complain...

Excerpt: ... a formal stay of the case because of Fifth Amendment concerns. They note that Mr. Martin has been charged with a felony arising from the same alleged facts. They further note that while Ms. Martin has not been charged, the complaint accuses her of potentially criminal acts, with which she could still be charged. This kind of problem is usually handled at Case Management Conferences rather than by formal motion. Plaintiffs have not opposed the mo...

Excerpt: ...ndant company (Garaventa Enterprises, or GE), but concerned about his position there. He asked GE's general counsel, Bonnifield, who told him that he was an at‐will employee. Colvis then met with attorneys from the Downey Brand firm, his present litigation counsel. At issue on this motion is the e‐mail traffic from that 2015 consultation, which occurred between Downey Brand attorneys and Colvis's work e‐mail address at GE. In 2018 GE and it...

Excerpt: ... filings. (See CRC 3.1110(f).) The numerous exhibits to the Complaint, the Ex Parte Application, and the Reply are all untabbed. This has caused the Court's staff considerable inconvenience.  RJN. Defendants' unopposed request for judicial notice of recorded documents is granted.  Reply. The Court has exercised its discretion to consider plaintiff's reply papers, despite their being filed one court day late. Plaintiff is directed to comply ...

Excerpt: ...hs 6‐8, 13, 129, 150, 152, and 153, because they contain improper allegations against these individuals. That portion of the motion is denied, because these allegations remain proper to support claims against defendant on an agency theory. 3. TIME: 9:00 CASE#: MSC16‐01005 CASE NAME: BRENNON B. VS. WCCUSD HEARING ON DEMURRER TO 2nd Amended COMPLAINT FILED BY WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT, et al. * TENTATIVE RULING: * Defendant scho...

Excerpt: ...or June 1, and the order after hearing was filed on June 29. The Court noted then that plaintiffs and their then‐counsel, Mr. Boasberg, had entirely ceased participating in the case, including their failures to respond to discovery, to obey several orders compelling discovery responses, to pay court‐ ordered sanctions, and to oppose the terminating‐sanctions motion. It later transpired that Boasberg was suspended, and then disbarred. That w...

Excerpt: ... ‐ recover all her post‐offer costs, and her reasonable expert witness costs incurred after the offer. The Court rejects plaintiff's assertion that the § 998 offer was not made in good faith. Plaintiff attempts no serious factual showing that the expert witness fees incurred were unreasonable. This was an expert‐intensive case. Plaintiff made a six‐figure § 998 offer of her own, and asked the jury to award a seven‐figure verdict. Plai...

Excerpt: ... First Cause of Action for violations of Civil Code § 2923.6. The version of the statute in effect during 2018, when the alleged violations took place, did not prohibit dual tracking. Further, plaintiffs have failed to show a “material” HBOR violation because they have failed to offer evidence that they qualified for a loan modification, and that an appeal from the denial of their application for a loan modification would have been successfu...

Excerpt: ...so named as a defendant. Several of the complaint's causes of action are asserted only against the employee defendants (Demeter, Milton, and Herrero), and those causes of action have not been demurred to. With one exception, the Court sustains the employee defendants' demurrers to all challenged causes of action, with leave to amend, for the same reasons stated on Guaranteed's demurrer (Line 6). The exception is the 11th cause of action, for “i...

Excerpt: ...e § 338(a).) It requires the defendant to have “engaged in a pattern of conduct the intent of which was to follow, alarm, place under surveillance, or harass the plaintiff.” (Civ. Code § 1708.7(a)(1).) To establish this element, the plaintiff “shall be required to support his or her allegations with independent corroborating evidence.” (Id.) Plaintiff pleads actions in 2016 and 2017 that, if proven, would support a stalking claim within...

Excerpt: ...ts have not filed an answer as to the other causes of action, they shall file and serve such answer on or before February 15, 2019. This case arises out of plaintiff's claim that defendants rented her uninhabitable premises at 1300 Roosevelt Ave., #420, Richmond, an apartment complex known as The Hacienda. General Rules Applicable to Claims against Public Entities California public entities are liable only as provided by statute. (Eastburn v. Reg...

Excerpt: ...vailing on the First Cause of Action for violations of Civil Code § 2923.6. The version of the statute in effect during 2018, when the alleged violations took place, did not prohibit dual tracking. Further, plaintiffs have failed to show a “material” HBOR violation because they have failed to offer evidence that they qualified for a loan modification, and that an appeal from the denial of their application for a loan modification would have ...

Excerpt: ...he forum for the original evidentiary hearing, that would properly qualify as new and different facts under § 1008 only if there were a showing why this fact could CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPARTMENT HEARING DATE: 02/01/19 ‐ 7 ‐ not have been adduced at the evidentiary hearing. But as it stands, the newly adduced fact is not properly before the Court at all, because it would not show what DMV would have ne...

Excerpt: ... negotiate toward a possible resolution. This time there has been no stipulation. Neither, however, has defendant filed any opposition to the motion for preliminary injunction. Repeated calls to the attorneys have given no better information. Plaintiffs' counsel has stated simply that the matter is going forward, and defendant's counsel has not responded to messages. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPARTMENT HEARING ...