Excerpt: ...they filed the present lawsuit, alleging that defendant had not timely processed or acted on their modification request in various ways. Defendant demurred to the original complaint in this case. Plaintiffs' counsel refused to engage in the required meet‐and‐confer, and filed no opposition to the demurrer. The demurrer was sustained with leave to amend. The ruling addressed a variety of individual problems with individual causes of action. Ov...

Excerpt: ...on are asserted for intentional fraud, negligent misrepresentation, fraudulent concealment, financial elder abuse, and (as against Deak) professional negligence. What they all have in common, however, is that they are all squarely based on only a single allegedly wrongful act, namely cross‐defendants' submission to the Kensington Municipal Advisory Council and the Contra Costa County Planning Commission of a land survey performed by Deak, and a...

Excerpt: ...ring that any action on the contract must be brought in Illinois. The Court gave defendant time to file a motion to dismiss on the basis of that clause. This is that motion, and it is granted. The case is dismissed. The Agreement between the parties – “Rapid Standard Terms and Conditions of Sale” (attached to the Complaint) – contains a “Choice of Law” provision. It states, “The parties expressly agree that the terms, execution, and...

Excerpt: ...attorney did not tell plaintiff why he thought the SAC was incorrectly alleged. Plaintiff asks that this Court drop the demurrer from calendar. The Court denies this request. The Court finds that the meet and confer process here was sufficient, as plaintiff has been informed about the problems with his complaint from the previous challenges to the pleadings and the Court's rulings on those challenges. Indeed, as will be seen, this ruling is but a...

Excerpt: ...n failing to satisfy the requirement of meeting and conferring as required by Code of Civil Procedure § 430.41. The statute requires that the meet‐and‐confer must occur “in person or by telephone”. Here, there was only a single exchange of letters – a medium less likely to involve any real discussion or give‐and‐take. Indeed, the motion to strike (Line 8) well illustrates the point, with PLSCS expressly agreeing to part of the moti...

Excerpt: ...mplaint only in response to defendant's motion to dismiss for lack of an operative complaint. The Court allowed the amendment, but in May 2018 it again sustained a demurrer to the entire FAC. The tentative was to deny leave to amend. At hearing plaintiffs persuaded the Court to allow one more amendment as to at least part of the complaint. The record (and the Court's recollection) do not disclose what parameters the Court set for amendment (other...

Excerpt: .... 32, 33, 54, 55, 61, 62; Plaintiff's Additional Fact Nos. 4‐7, 13; Comstock Decl. at 8:16‐20; Fullerton Decl., ¶ 21, 24, 31.) The court discussed the facts of this case at length in its ruling on August 3, 2018, denying Dr. Jacobs's motion for summary judgment. It will not repeat that extended discussion here. Suffice it to say that plaintiff has submitted admissible evidence from his expert, Dr. Fullerton, that Dr. Miranda breached the sta...

Excerpt: ..., without leave to amend. The court sustains RHA's demurrer to the Fourth and Fifth Causes of Action, with leave to amend. Plaintiff shall file and serve any amended complaint on or before October 12, 2018. If plaintiff elects not to amend, defendants shall file and serve their Answer on or before October 26, 2018. The Court notes at the outset that plaintiff questions whether there has been adequate meetand‐confer. Plaintiff counsel says there...

Excerpt: ...). However, that arbitration is stayed pending litigation of the remainder of this case, at least for now. Plaintiffs purchased a residence in Orinda. They allege that shortly after the purchase, they discovered that considerable water was draining onto their property from (among other alleged sources) two neighboring properties owned by defendants the Govedniks and the Hassards. The latter owners have asserted that they have a drainage easement ...

Excerpt: ...the Order After Hearing hereon. If he elects not to do so, then defendants' answer to the existing complaint will be due 30 days after the passage of that deadline. This is a medical malpractice action. The complaint alleges that defendants performed a hip replacement on plaintiff. When plaintiff experienced various adverse developments afterward, defendants kept telling him that there was nothing wrong with the hip replacement, and the cause of ...

Excerpt: ...n in its role as a “consultant” performing preconstruction services. Taber's additional proffered grounds for summary judgment, however, are unmeritorious. Background Education Code § 17406 authorizes an alternative to the typical design‐build approach for school facilities under which the school district and a contractor instead enter into a “lease/leaseback” arrangement. The district leases the real property to a contractor for a min...

Excerpt: ...ve counsel at the time. In the event that plaintiffs obtain a new attorney for this case in the interim, however, defendant is encouraged to agree to a reasonable extension of that deadline to allow new counsel to consider his or her options. Absent stipulation, plaintiffs' new counsel may request an extension ex parte.) The Court notes at the outset that plaintiff's present counsel apparently refused all invitations to engage in the meet‐and�...

Excerpt: ...ees. It grants the Employers' motion to vacate the judgments, because those judgments were improvidently entered in violation of the stay created by Code of Civil Procedure § 916(a). Background of this Motion The Labor Commissioner held hearings to decide a dispute over unpaid wages between the petitioners in this consolidated case (Employers) and the respondents in this case (Employees). The result of the hearings was the issuance of twelve Ord...

Excerpt: ...t's answer or other response will be due in ordinary course. (Other defendants who have answered the Second Amended Complaint may, but need not, separately answer the Third.) If plaintiffs do not file an amendment by the deadline, they will be deemed to have abandoned the premises‐ liability count, and B&C Transit must file its answer within 14 days after the due date for the amendment. Negligence Plaintiffs allege that B&C Transit designed a t...

Excerpt: ...rds from the investigating police agency. Davis filed a motion to quash the subpoena, on insubstantial asserted grounds. The motion was denied. The district has now noticed the deposition of the investigating detective, along with a request for production of more or less the same set of records. As before, neither the police department, nor the deponent, nor the DA has raised any objections. But as before, Davis moves to quash. As before, the mot...

Excerpt: ...otions to compel. This case concerns plaintiff's allegations (to oversimplify a little) that defendants, former employees, breached their duties to plaintiff and departed, taking trade secrets with them. Plaintiff has admittedly faced a difficult and frustrating situation resulting from the merry‐ goround of counsel on the defense side, which has resulted in unresponsiveness and delays in resolving otherwise routine litigation matters. Neverthe...

Excerpt: ...ows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof.” (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.) Here, John Muir has met its burden of showing that plaintiffs are unable to establish the required element of causation. John M...

Excerpt: ... ensure payment of property taxes and insurance. As plaintiff acknowledges, the amount of the required payments into escrow was subject to annual adjustment. Plaintiff, however, persisted in making payments in the same, unadjusted amount, ignoring the annual notices of increases in the required escrow payment amounts, and repeated warnings that she was underpaying. She alleges that instead she was paying the taxes and interest directly, so that w...

Excerpt: ...t can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Defendants assert three separate grounds for the motion. The Court is convinced by the first argument, that the case is moot. It is therefore both unnecessary and inappropriate to address the merits‐based arguments. Background Facts According to the complaint, plaintiffs are owners of separate parcels of property in the area known as Freethy Indust...

Excerpt: ...elects not to do so, defendants' answer to the present complaint will be due fourteen days after expiration of plaintiff's deadline to amend. RJN. Defendants' request for judicial notice is denied as either irrelevant (Exhs. “A” and “B”) or unnecessary (Exh. “C”). The Court does not need to take judicial notice of earlier‐filed documents in the same action, and it does not see the relevance of the federal action to this demurrer. Th...

Excerpt: ...ourt's previous ruling. Indeed, Plaintiff's opposition focuses more on why she thinks the previous ruling was wrong, than on what is new and different in the SAC to cause the ruling to change. Plaintiff is suing Defendant based on the alleged failure of Defendant's employee, Nancy Pfeiffer Hazen, to advise Plaintiff that she should have had a higher amount of underinsured motorist coverage. Plaintiff's husband was killed in a bicycle‐vehicle co...

Excerpt: ... requests for fees, costs, and prejudgment interest. Petitioner's counsel, however, denies that any such offer was made. He provides an e‐mail he sent on June 19, evidencing a counter‐offer to respondents' offer. It is hardly likely that the parties would be negotiating any settlement amount in the face of an open offer to stipulate to confirmation of the full arbitration award. The Court (giving respondents' counsel the benefit of the doubt)...

Excerpt: ... cause why this Court should not reconsider and reverse the Court's decision of July 13, 2018, granting the motion of respondents in this case (Employees) for attorney fees pursuant to Labor Code § 98.2(c). See Le Francois v. Goel (2005) 35 Cal.4th 1094 (trial court may reconsider possibly erroneous ruling on its own motion). In response to Employers' present motion, Employees cite Palagin v. Paniagua Construction (2013) 222 Cal.App.4th 120. Nei...

Excerpt: ...Muir Orthopedics order it? If neither of them did, why was a Muir Orthopedics Medical Clearance Request Form sent to plaintiff's primary care physician and why did plaintiff see that physician for medical clearance on June 18, 2015? (Undisputed Material Fact (“UMF”) 4; Disputed Material Fact (“DMF”) 3, 5, 6; Plaintiff's Additional Fact (“PAF”) 4, 8; Ex. C to Billups‐Slone Decl., p. 112; Ex. I to Billups‐Slone Decl., Phillipy Depo....

Excerpt: ...aintiff works for a third floor tenant at the Property. She alleges that on the morning of February 4, 2015, she was sexually assaulted and injured in the second floor women's restroom by a homeless man who had entered the unlocked building the night before and wandered around it naked, exhibiting signs of mental incapacitation and/or substance abuse. While the restrooms on the third floor were locked, those on the second and first floors were no...