Excerpt: ...1771, 1778 n.3. Petitioner makes a number of arguments against the suspension order, most of them insubstantial. One of her attacks, however, has substance: DMV's lack of a showing that the officer administering the Draeger breath test was properly trained. Both parties agree that a Draeger test result is inadmissible in a DMV administrative per se (APS) hearing under Title 17 if the officer is not shown to have been properly trained. (The Court ...

Excerpt: ...l be deemed denied and she will remain in default. (No default judgment has been entered at present.) The arguments on this motion are surprisingly technical. The underlying facts are not really debated. It is fairly clear that the purported service on Fei Lan, as documented by the Proof of Service of Summons filed by plaintiff, was defective and ineffective. (That is not necessarily a criticism of plaintiff, who may well have had no better infor...

Excerpt: ...eja and Vegas have dismissed their claims against Freshko. No dismissal was filed, but the Court takes this statement as an agreement with Freshko's argument, and therefore the Court sustains the demurrer without leave to amend as to Ceja and Vegas. Freshko argues that Olivares's claim against it is untimely because it was filed more than two years after the accident occurred. Olivares's cross‐ complaint alleges that the accident occurred on Ja...

Excerpt: ...ss Buybacks, LLC from June 13, 2013 to March 1, 2016. (First Amended Complaint [FAC], ¶ 13.) Sprint alleged that Snyder d/b/a 31 Echo conspired with Wireless Buybacks and Brendan Skelly to unlawfully resell Sprint smart phones from 2011 through 2016, both before and during Snyder's employment with Wireless Buybacks. (See FAC, ¶¶ 16‐20.) When Snyder passed away in October of 2016, Sprint substituted Moore in as trustee of various Snyder trust...

Excerpt: ...07/18 ‐ 7 ‐ Welcome Market's Motion. Welcome Market shows, and plaintiff acknowledges, that there is an agreement in place to arbitrate these disputes. Plaintiff, however, contends that the Court should refuse to enforce the agreement as unconscionable. To invalidate an arbitration agreement as unconscionable, a party must show that it is unconscionable both substantively and procedurally (though the two elements need not be present in the sa...

Excerpt: ...s of $100,000 to $150,000. PLSCS characterizes the loans as “usurious, unconscionable, unfair, predatory, and fraudulent.” The only meat attempted to be placed on the bones of that string of pejorative adjectives, however, is the conclusory allegation that the loans charged interest rates in excess of what is lawfully allowed. 1st C/A‐Violation of California Civil Code § 1916.1 2nd C/A—Violation of Civil Code § 1916.2 At the outset, cro...

Excerpt: ... the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone. Corkland v. Boscoe (1984) 156 Cal.App.3d 989. A court's power to make factual determinations under Code of Civil Procedure § 664.6 (entry of judgment pursuant...

Excerpt: ...nal service was required. (Id., subd. (d).) Plaintiff attempted to serve defendant with a statement of damages on October 2, 2017. (Dudensing Dec., Exh. “F”.) However, this attempted service was made at a Green Street address in San Francisco, and defendant alleges that he has at all pertinent times resided at a Taraval Street address. (Byrd Dec., ¶ 1.) Further, plaintiff took defendant's default only three days later, on October 5, 2017, an...

Excerpt: ...m, for documents relating to two other identified potential buyers of the property, and the reasons why those sales did not go through. Plaintiffs reason that there may be relevant information in the documents concerning knowledge or disclosure of the alleged problems with the property. Plaintiffs acknowledge that they did not serve any Notice to Consumer on the putative buyers under Code of Civil Procedure § 1985.3. They state conclusorily that...

Excerpt: ...e had not carried its burden on the element of causation sufficient to warrant a grant of summary judgment. The Court's prior tentative ruling focused on the fact that both the pedestrian and the driver had stated that there were no obstructions to their views. At argument, however, plaintiff persuasively pointed out that the evidence on which the Court relied concerned visibility to the crosswalk itself, but did not address the issue of whether ...

Excerpt: ...c Redacted Version”. A great deal of it – whole pages at a time – is simply blacked out. Moreover, from what can be read in the moving papers, it appears that Jacobs bases his motion principally on the declaration of his expert, Dr. Bickler. But the Bickler declaration has not been filed at all – not even in a “public redacted version”. It just plain isn't there. It's not in the court file, and there is no indication in the computer t...

Excerpt: ...as an arbitration provision in the contracts between itself and its members, including plaintiff. This Court (Judge Spanos) denied the petition to compel arbitration, holding that the purported arbitration provision was not part of the parties' contractual relationship. The Court of Appeal affirmed in an unpublished opinion. Having thus defeated defendant's attempt to force this dispute into arbitration, plaintiff now seeks an award of the attorn...

Excerpt: ...arise directly under the dual‐tracking provisions of the Homeowners' Bill of Rights (HBOR). Some or all of the other causes of action may at least be affected by those provisions, in that they appear to appeal to the asserted illegality of the alleged dual tracking here as part of the bases for these other claims. For that reason, the Court draws the attention of the parties to a consideration apparently overlooked by both sides: the dual‐tra...

Excerpt: ...ther plaintiff is suing as the representative of her deceased mother's estate, or on her own behalf, or both. The County argues that the Complaint is demurrable because plaintiff was required to comply with the Government Claims Act by filing an administrative claim before suing, and has not done so. As the County notes, however, the Complaint allege that plaintiff has complied with a claims procedure. If that is not true, demurrer is not the way...

Excerpt: ...y filed an answer to the complaint. Defendants' motion is based on the argument that the complaint does not state any cause of action. Plaintiff Dean Kim has sued Defendants James Totah and Giovanni Cruz for negligence and fraud. “‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resu...

Excerpt: ...udgment on the pleadings and motion for summary judgment. B. Declaratory Relief. The controversy presented to the Court for decision concerns Article VII of the Covenants, Conditions and Restrictions (“CC&Rs”) governing plaintiff's condominium. (Defendant's Supplemental Exhibit 16.) Specifically, the dispute concerns assessments levied by defendant for common area expenses. 1. Background. Plaintiff's CC&Rs define the “Project” as being 52...

Excerpt: ...) which is at a right angle to Walnut Boulevard in Walnut Creek. The Roadway is 30 feet wide and terminates in a 50‐foot‐wide cul‐de‐sac. The Coney property is south of the Dossa property and is closer to the cul‐de‐sac. The Dossa property is to the north of the Coney property and is closer to Walnut Boulevard. The core, but not the entirety, of the parties' dispute is whether the Coneys are permitted to park vehicles along the edge o...

Excerpt: ...tion to deny the motion. The Court sustained defendant Wells Fargo's demurrer to the original complaint in June 2017, giving leave to file a first amended complaint within 30 days. That deadline for amendment was extended by agreement or court order, so as to give the parties time to discuss settlement. The last extension of time, however, ran out in November 2017. There is no evident excuse for plaintiffs' failure to file their amended complaint...

Excerpt: ... March 24, 2015, plaintiff Veronica Wang was a pedestrian crossing the bottom of the Highway 24 cloverleaf offramp in a marked crosswalk. (The moving papers identify it as the exit from eastbound 24, but cursory examination shows it to be the exit from from westbound 24. The detail is not material.) She was struck and injured by defendant Yvonne Pope‐Lane, who was a driver exiting Highway 24 onto northbound Pleasant Hill Road. As relevant here,...

Excerpt: ...g Handermann to serve the Asbuns by publication under Code of Civil Procedure § 415.50 in the Florida Times‐Union. The Times‐Union published notices related to this case on October 3, 10, 17, and 24, 2016. On December 5, 2016, default against the Asbuns was entered. On July 17, 2017, the Court entered a default judgment against the Asbuns. This motion followed on November 6, 2017. The basis for the motion is Code of Civil Procedure § 473.5(...

Excerpt: ...negligence is denied. The motion for summary adjudication as to the second cause of action for premises liability is granted. I. Background Plaintiff Michael Thompson, represented in this case by his guardian ad litem Samarra Taylor, fell from a GameTime Play System playground structure at the Gehringer Elementary School. At the time, he was almost seven years old. The following facts are taken from those undisputed among the parties. The play ar...

Excerpt: ... see also Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 02/02/18 ‐ 6 ‐ Here, Plaintiff has alleged two causes of action – Cancellation of Deed, and Quiet Title. Plaintiff transferred the subject property in 2014 to his then‐wife, Defendant Xueyan Cui, as her sole property. Cui sold the property in March of 2016 to the Irwin and Betty K...

Excerpt: ... (“IIED”), 8) negligent infliction of emotional distress (“NIED”), and 9) injunctive relief. Defendant Anna Shane asserts that each of Plaintiffs' causes of action are not actionable because they relate to communications subject to the anti‐SLAPP statute. The motion is granted as to the fifth cause of action (wrongful use of administrative proceedings), and as to all allegations concerning Defendant's alleged communications with the Dis...

Excerpt: ... disability discrimination after he slipped and fell on an outdoor sports court during recess on December 17, 2014. Following the injury, plaintiff requested and was denied various accommodations. (See Complaint, ¶ 26.) Defendant now moves to strike paragraph 53 of the complaint and paragraph 5 of the Prayer, which seek punitive damages. Punitive damages are recoverable in actions for discrimination. (See Commodore Home Systems, Inc. v. Superior...

Excerpt: ...policies and practices. (Complaint, ¶¶ 1, 2.) Prior complaints led to settlements between the District and other parties in 2009 and 2010. (¶ 3.) Plaintiff continued to receive complaints even after those settlements, so it presented the District with a request for a structured settlement in 2013. (¶ 4.) After more than a year of negotiations, the parties entered into an Interim Settlement Agreement in March 2015. Under the terms of the Agree...