Excerpt: ...laint against Hertz, alleging that she had purchased insurance from Hertz. The cross‐ complaint asserted claims for bad‐faith denial and indemnification. Nowhere in the crosscomplaint, however, did Kuney state any amount for the compensatory or punitive damages sought. Nor did she serve any statement of damages. Because the cross‐complaint was basically one for indemnification, it might be argued that Kuney could not know the amount of her ...

Excerpt: ...erous motions to compel discovery, with awards of sanctions. Plaintiffs have not complied with the Court's orders, nor have they paid the sanctions. They have simply ceased to respond. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 18 ‐ This is to the obvious prejudice of defendants, who have not been able to conduct meaningful discovery in the case. Plaintiffs have not responded to the present motion...

Excerpt: ...are denied. Liability of Ruggio In Special Verdict 1, the jury was asked whether each of Johnson and Ruggio were negligent. The jury answered “yes” as to both. In Special Verdict 2, the jury was asked whether each defendant's negligence “was a substantial factor in causing harm to [plaintiff]”. The jury answered “yes” as to defendant Johnson, but “no” as to defendant Ruggio. Plaintiff's principal argument is that the jury erred in...

Excerpt: ...cedural Setting At the outset, there is some imprecision and awkwardness about how this motion was filed and whether it is properly before the Court for decision. At a CMC the parties suggested that a major obstacle to possible settlement was disagreement as to the applicability of MICRA. The Court suggested that the parties might benefit if they could find a vehicle for presenting that “logjam” legal question to the Court for early decision,...

Excerpt: ...o this Court as the appropriate venue. The first amended complaint asserts causes of action for (1) negligence, (2) negligent failure to carry sufficient liability insurance, and (3) vexatious failure to pay plaintiff's claim. The second and third causes of action do not exist in the law. Defendant owes no duty to plaintiff as to how much insurance he chooses to carry, so long as he carries the statutory minimum coverages. Plaintiff does not alle...

Excerpt: ...icable three‐year statute of limitations. (Code of Civil Procedure § 338(a).) Plaintiffs allege that defendants' recordation of a notice of default in April 2013, and their recordation of a notice of trustee's sale in July 2013, violated HBOR. (FAC, ¶¶ 25‐27.) Yet plaintiffs did not commence this action until December 2017, more than four years later. In their opposition memorandum plaintiffs seek to invoke the doctrine of equitable tollin...

Excerpt: ...Code of Civil Procedure § 430.10(e) on the grounds that it did not owe a duty of care to Plaintiffs because it did not own, possess, or control the premises at the time of Plaintiffs' injury. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 2 ‐ The demurrer is overruled. Seterus must file and serve its answer to the TAC by June 29, 2018. Seterus demurred to the Second Amended Complaint on the exact sam...

Excerpt: ...ding.” Section 436 (b) permits the court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Section 437(a) provides that “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” As plaintiff tacitly concedes, there is no legal bas...

Excerpt: ...ituted out”. (The Court notes that arguably it was improper for counsel to “substitute out” when the proposed substitute representation (a corporation appearing pro per) was unlawful; counsel should instead have moved to withdraw. As it appears that such a motion would have been consented to by the client, however, the Court will overlook the point for present purposes and accept that Priceless has no lawyer in this case.) Plaintiffs are co...

Excerpt: ...t is surely not a documentintensive case. Nor is it a case that could reasonably be expected to generate any substantial volume of privileged documents on either side, aside from each attorney's routine case file. Nevertheless, the Court is presented with several inches of paper on points quite unlikely to yield any results of consequence for either side. Plaintiff served identical sets of document requests on the two individual defendants. Now a...

Excerpt: ...(2) violation of RESPA (12 CFR § 1024.41); (3) violations of Equal Credit Opportunity Act (15 USC § 1691); (4) violations of Business and Professions Code § 17200; (5) wrongful foreclosure; (6) negligence; (7) cancellation of deed; and (8) quiet title. As with their opposition to Defendant's demur to the Plaintiffs' first amended complaint, Plaintiff's opposition to the Defendant's demur to the second amended complaint is overlong. Plaintiff's...

Excerpt: ...ode of Civ. Proc. § 430.10(e) on several grounds. The demurrer is sustained without leave to amend as to the second cause of action. It is sustained with leave to amend as to the remaining causes of action. A Third Amended Complaint may be filed and served within 30 days after service of the Order After Hearing hereon. Request for Judicial Notice Defendant requests judicial notice of several county recorder documents as well as pleadings and ord...

Excerpt: ..., CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/18/18 ‐ 16 ‐ Defendant demurs to the Complaint pursuant to Civil Code § 430.10(e) on the following grounds: (1) Plaintiff's claims are time barred; (2) Plaintiff is not an appropriate class representative; (3) Plaintiff fails to allege a community of interest; and (4) Plaintiff fails to adequately allege facts supporting the predicate statutory violations of her 17200 claim. Defendant also demurs ...

Excerpt: ...edural context. (See Beach Break Equities, LLC v. Lowell (2016) 6 Cal.App.5th 847, 852‐54.) There is an exception to the general rule when the defendant has engaged in conduct the court finds “inequitable.” However, this is a narrow exception, and the Court finds that it is not applicable here. The Textron decision is the appellate decision most closely on point. (See, Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.A...

Excerpt: ...ome detail how he proposes to amend and how that will cure the problems identified. Chevron shall file and serve its Answer to the TAC on or before June 1, 2018. Statute of Limitations A defendant may file a general demurrer to a complaint if the complaint shows on its face that it is barred by the statute of limitations. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) Chevron argues that the face of the pleadings and the matters of which the c...

Excerpt: ...Government Code § 946.6. “Section 946.6 is a remedial statute intended ‘to provide relief from technical rules that otherwise provide a trap for the unwary claimant.'” Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275. Courts exercise their power to grant relief liberally, so as to preserve meritorious claims wherever possible. Any doubts are to be resolved in favor of permitting the suit to proceed. Viles v. Califo...

Excerpt: ...nctions are awarded in favor of Ms. Sheedy. This motion comes as part – hopefully the last part – of an extraordinary set of discovery disputes in this case. These disputes occupy several volumes of the Court's case file despite the fact that nearly all of it has actually occurred before a Discovery Referee and not in court. It is to be feared that both sides' counsel have allowed this matter to become more personally rancorous than is profes...

Excerpt: ...ment interest is an element of damages, not of costs. Hence, absent a stipulation like the one applicable to Line 3, a request for an award of prejudgment interest should be presented either before judgment is entered, or by way of a new trial motion. North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824. Even if the procedural problem is ignored (and no party has raised it), the motion is substantively unmeritorious. On a tort claim, ...

Excerpt: ...ender, rested on Rad's debt to the HOA for failure to pay HOA assessments. Spinnaker thereafter obtained the present California judgment on sister‐state judgment, pursuant to Code of Civil Procedure § 1710.25. Defendant Rad now moves to vacate the judgment pursuant to Code of Civil Procedure § 1740. The motion is granted. Venue As the last, most cursory item in his motion, Rad states that Contra Costa County is the improper venue for the judg...

Excerpt: ...t last fall. Plaintiff/cross‐defendant Korb filed a demurrer to it. On December 15, 2017 the Court took that demurrer off‐calendar because Romero had responded by proposing to amend his pleading in response to what he said were “good points” made by his opponent. The Court granted Romero leave to file his First Amended Cross‐Complaint by January 15, 2018, and expressly directed the parties to meet and confer before that filing in the ho...

Excerpt: ...� 6 ‐ motion for leave to amend the complaint to correct typographical errors and to add two causes of action—Declaratory Relief and Injunctive Relief. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may …, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading…” Code of Civil Procedure § 473. Judicial policy favor...

Excerpt: ...Code of Civil Procedure § 430.10(e).) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 04/20/18 ‐ 9 ‐ The SAC alleges or can reasonably be construed to allege the following. The plaintiffs and the lead defendant, Gerald Knopoff, are siblings, the children of Leon Knopoff. When Leon died, the children were left $7 million in a trust. But when the trustee, Gerald Knopoff, distributed the funds, each child received ...

Excerpt: ...gh May, 2017 when her position was eliminated. She brings six claims related to her termination: 1) disability discrimination; 2) failure to accommodate a disability; 3) failure to engage in the good faith interactive process; 4) retaliation; 5) failure to pay wages due upon termination; and 6) wrongful termination. At the time of her hiring, plaintiff executed a document entitled the “Working Agreement” (Agreement). This 11‐page document i...

Excerpt: ...t 1:10 with Motion to Vacate filed 2/2/18 at 1:15.) Neither of these, however, is supported by any evidence or testimony under oath. A plaintiff seeking to vacate a default judgment on grounds such as these has both statutory and non‐statutory remedies. The former include remedies under Code of Civil Procedure §§ 473(b),(d) and 473.5. The nonstatutory remedy includes a suit in equity or a motion based on a claim of extrinsic fraud or mistake....

Excerpt: ...hich relief may be granted” is a procedural label used in federal court, not California court. The state‐court equivalents are a demurrer, or a motion for judgment on the pleadings (MJOP). (See Code of Civil Procedure §§430.10, 438.) Because defendant has filed a document captioned “Answer” (about which more shortly), the Court treats this as an MJOP. Second: The miscaptioning of defendant's motion is of little consequence to the outcom...