Excerpt: ...he body of the complaint.) The next day, Plaintiff applied ex parte for a temporary restraining order. The Court (Judge Weil) heard the ex parte Application, granted the TRO, and entered an Order to Show Cause to show why a preliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. It is unclear whether anyone appeared to oppose the ex parte, but no written opposition was filed. For the following reasons t...

Excerpt: ...ts and evidence. The Court observes that it would have been better practice to file a single motion on behalf of all three movants – or, at least, to agree with the other side that three nominally separate motions would be supported by a single copy of the voluminous supporting papers. (The opposing party, AMR, properly filed a single set of opposition papers to all three motions.) Be that as it may, however, the motions obviously may be consid...

Excerpt: ...gement of fees is denied. Summary adjudication as to the third cause of action for breach of fiduciary duty is granted. Defendants' motion for summary judgment/adjudication as to the cross‐complaint is denied. The requests of plaintiffs Johnny L. and Mary E. Moore for sanctions, both under Code of Civil Procedure section 128.7 and for the late‐filed Exhibits O and P, are denied. I. Procedural Issues Plaintiffs' memorandum of points and author...

Excerpt: ...to act as to Sherwood's other discovery responses. It denies both sides' requests for sanctions. In addition, on its own motion, the Court strikes Sherwood's answer to the cross‐complaint under Code of Civil Procedure § 436. See Cal‐Western Business Services v. Corning Capital Group (2013) 221 Cal.App.4th 304. (Ordinarily this step would be preceded by an order to show cause, but the Court notes that Sherwood itself argues that this is the a...

Excerpt: ... Friedman's misdiagnosis to conform to an onerous gluten‐free diet. She asserts damages in the form of unnecessary expense (in obtaining food) and inconvenience and emotional distress (in avoiding restaurants, social situations, and the like). She alleges no physical harm from the misdiagnosis. Friedman moves on the basis that Manning's action is barred by the statute of limitations. The statute of limitations for malpractice claims against a h...

Excerpt: ...uest for continuance of the demurrer hearing. He was properly and timely served with the demurrer, however, nearly a month before his opposition was due. He states no grounds why he was unable to respond timely, or why he needs more time, beyond an unexplained reference to the holidays and the Butte County fire – but with no suggestion how, if at all, the fire could have affected plaintiff's ability to prepare an opposition. (Plaintiff lives in...

Excerpt: ...d by ISI. Plaintiff alleges that the device caught fire, causing him personal injury in a variety of ways. His complaint did not name ISI as a defendant, He instead incorrectly sued Greg Otto, an executive of ISI, alleging that ISI was a dba of Mr. Otto. The Court previously granted Mr. Otto's motion to quash service for lack of personal jurisdiction, noting that plaintiff had not sued the correct entity. Although plaintiff did not take the hint ...

Excerpt: ... successive theory is shot down by clear proof or by defendants' own admissions in discovery. Defendants' brief spends several pages recounting an anecdote about Dennis Rodman, the relevance of which eludes the Court. A more appropriate pop‐culture reference might be Maxwell Smart: “Would you believe….?” Defendants argue that they should not be stuck with what they characterize as a sloppy and inadequate answer filed by their former attor...

Excerpt: ...courier service, that is fine. Absent such a stipulation or court order, however, e‐mail is not a proper means of service. The Court is not aware of any such stipulation or court order. (Defendant has filed no response to the motion.) The motion rests on the assertion that in her vexatious‐litigant motion (Line 20), defendant has violated HIPAA and various other privacy laws by disclosing a confidential custody evaluation conducted in the Mar...

Excerpt: ... motion for summary adjudication of the claim for attorney's fees under Code of Civil Procedure § 1021.5 is granted. Because summary adjudication is being denied as to one cause of action, necessarily the motion for summary judgment is denied. I. Procedural Issues Counsel are reminded to comply with the Rules of Court as to motion papers generally and summary judgment motions specifically. The Church's exhibits are unwieldy as a result of this f...

Excerpt: ...t‐title action on December 23, 2014, seeking to void the deed of trust then held by Countrywide. The lead named defendant was America's Wholesale Lender (hereinafter AWL), which she believed to be the corporate lender and deed‐of‐trust holder in the underlying transaction. Also named as defendants were National City Bank (not otherwise involved in this motion), and unidentified “all persons known or unknown”, etc., as is standard practi...

Excerpt: ...b of depicting her as an innocent college student at a university in Illinois, who never had any formal or informal involvement in Bara's business. Her name surfaced in Bara's business paperwork only because the mother, without Singh's knowledge or approval and reportedly by clerical error, included Singh's name as an officer and agent for service of process in some of the paperwork. The motion papers raised eyebrows maybe just a little as to how...

Excerpt: ...ff within 30 days of today. Plaintiff seeks production of three documents or sets of documents: (1) the District's incident reports and witness statements concerning the incident of 10/14/16; (2) the District's incident report concerning plaintiff's asthma attack on 11/16/16; and (3) reports (with student names redacted) of other prior complaints and incidents involving defendant Kuta. The District's opposition papers attempt no justification wha...

Excerpt: ... uninhabitable a home owned by Insalaco and occupied by Lomax. The parties dispute the exact date of the landslide, but it occurred sometime in February, 2017. Various neighboring landowners, including the County of Contra Costa, are also involved via cross‐ complaints. There are a welter of complaints and cross‐complaints pleaded by the numerous parties against each other. For purposes of the present four summary judgment motions, however, m...

Excerpt: ... this Court could grant that could redress the breaches the plaintiff alleges here, or to restore these parties to a working contractual relationship. This Court is routinely accustomed to admonishing juries and parties that the existence of a dispute is no proof of what the proper outcome should be. In the highly unusual setting of this case, however, the mere existence of a bitter and comprehensive disagreement between the plaintiff and the def...

Excerpt: ...sitions. None of the other defendants was served with this motion; however, none of the other defendants has filed a first appearance in this case. This motion was filed based upon allegations in the original complaint. Since then plaintiffs have filed two amended complaints, but there appears to be no dispute that cause of action one remains the same in different versions of the complaint. Plaintiffs' motion for summary adjudication as to the fi...

Excerpt: ...e § 1281.2 creates a summary proceeding for resolving petitions to compel arbitration. “A petition to compel arbitration ‘is in essence a suit in equity to compel specific performance of a contract.'” Rosenthal v. Great Western Fin. Securities Corp. (1996) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/09/18 ‐ 12 ‐ 14 Cal.4th 394, 411 (internal citation omitted). In these summary proceedings the trial ...

Excerpt: ...t he has received nothing from her. This is unacceptable. Anything filed with the Court must be served on the other party, and proof of such service must be filed with the Court. Although initially pleaded with a number of other causes of action (such as fraud), this is in substance an action to collect a debt. The parties reached a mediated settlement in 2016, under which defendant Niakan was to make payments totaling $46,000 to plaintiff Robins...

Excerpt: ...a First Amended Complaint on October 25, as evidenced by a file‐stamped copy provided with their opposition papers. No such pleading is found in the Court's physical file, however; it has apparently been delayed, mislaid, or misfiled by the clerk's office. Plaintiffs are requested to provide another physical copy. Second, plaintiffs' opposition papers do not comply with CRC 3.1110(f) and Local Rule 3.42 concerning tabbing of exhibits. Counsel i...

Excerpt: ... relief available for certain causes of action; they are not a cause of action in themselves. E.g., Hiliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391. Accordingly, defendants properly proceed by a motion to strike rather than a demurrer. This motion raises questions as to both the level of alleged conduct that is substantively required to support recovery of punitive damages, and what level of specificity is required in a pleading seeking...

Excerpt: ...t the broker defendants. The parties should be prepared to discuss that topic at the CMC scheduled for November 28. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/02/18 ‐ 6 ‐ This is a dispute over a home purchase. Plaintiffs are the purchasers. Defendant Cain was the seller. Defendants Haus and Renjen & Assocs. were the brokers. It is uncontested that the sales contract, as between seller and buyers, include...

Excerpt: ... substance of the proposed first supplemental complaint is a request for a declaratory judgment as to the res judicata/collateral estoppel effect of a judgment in this case in barring a hypothetical future case that defendants may or may not file on the same subject matter in the future. That's not a cause of action, by declaratory judgment or otherwise; it's a proposed defense to a lawsuit that hasn't even been threatened yet, let alone filed. (...

Excerpt: ...arded to him in the marital dissolution judgment. There is a complication in the case, however, which may present an obstacle to treating this as an ordinary fraud‐tort case. The transaction of which plaintiff complains was not merely a private matter occurring between the parties outside of court. Rather, the parties submitted a formal stipulation in 2016 in their family‐law case (in San Joaquin Superior Court), modifying the 2006 divorce ju...

Excerpt: ...iff, Jose Luis Ramirez‐Ceniceros, sues in two capacities: as an insured (as to his claim for loss of cash), and as the assignee of an insured (as to his claim for personal injury inflicted by his coinsured, Flores). Plaintiff and defendant Jose Flores, aka Agustin Chavez, were lessees of a house located at 2813 Carob Street in Antioch. Their agreement with their landlord required them to have renters' insurance. On October 25, 2014 they went to...

Excerpt: ...defendant's reply brief. Defendant filed this motion with no declaration of compliance with § 439. As a reading of the briefs make clear, the case plainly called for meet‐and‐confer. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 12 ‐ Defendant's motion rests on its argument that plaintiff's second amended complaint must be dismissed because she does not allege that she exhausted administrative r...