Excerpt: ...ied. This motion was previously before the Court on October 5. In its tentative ruling the Court continued the motion to this date. The District's original motion simply ignored the express allegation in the second amended complaint that plaintiff had exhausted administrative remedies by filing an administrative claim form, attached to the SAC as an exhibit. Plaintiff pointed this out in her opposition. Only in its reply brief – which is to say...

Excerpt: ...lly to vacate the judgment, demonstrating that the Hawaii court had never properly obtained jurisdiction over him because of defects in the manner in which the HOA supposedly served Rad with process in the Hawaii action. Rad now moves for attorney fees incurred in winning his motion to vacate the judgment. The motion is denied. Rad identifies no statutory or contractual provision that entitles him to recover attorney fees for this victory. Rad re...

Excerpt: ... accordingly cross‐complained against ADP. ADP demurs to the cross complaint. The demurrer is sustained in part without leave to amend, and overruled in part. Specifically, the demurrer is sustained without leave as to all causes of action on the part of the individual cross‐complainants, and Los Montañas's second and third causes of action (warranty and implied indemnity). It is overruled as to Los Montañas's first, fourth, and fifth cause...

Excerpt: ...led to file the ex parte application papers. Counsel should bring those papers to the hearing. (If plaintiffs proffered any opposing papers, they should bring those as well.) The Court will honor Judge Weil's ruling. Without seeing the application, however, the Court is more than a little puzzled as to why this motion was exempted from the Facilitator program. The motion calls on the Court to conduct at least a line‐by‐line review of an inch�...

Excerpt: ...ase other than plaintiffs' claims that defendant is in violation of a non‐compete agreement. The problem is that the causes of action pleaded in the original complaint (or in the first amended complaint, which only added two new plaintiffs) did not segregate themselves neatly into arbitrable and non‐arbitrable causes of action. As pleaded, only the second cause of action could clearly be categorized (as non‐arbitrable). While it may be appr...

Excerpt: ...rements caused material harm – meaning that without the procedural violations, plaintiffs would have succeeded in refinancing their defaulted mortgage and saving their property from foreclosure. That failing underlay the Court's rulings sustaining demurrers to prior iterations of the complaint. In the SAC, plaintiffs made their last‐hurrah effort to allege materiality. In its September 28 tentative ruling on this demurrer, the Court commented...

Excerpt: ...�� from using Calle Arroyo road in Diablo. The Court notes that this motion was filed before the First Amended Complaint was filed. However, the parties are in agreement that this motion may apply to the FAC even though the documents were filed in the reverse order. The Court also notes with disapproval that the District has not submitted a declaration showing compliance with the meet and confer requirement for a motion for judgment on the pleadi...

Excerpt: ...cussion. Plaintiff's opposition brief mostly addresses these issues as though no prior demurrer or ruling had occurred. The Court granted leave to amend CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 21 ‐ on most counts, but its legal analysis included specific comments on what plaintiff would have to allege to patch up the deficiencies in the FAC. At this juncture, then, the opening question for the ...

Excerpt: ...ons following the school's sexual assault disciplinary process and appeal. The writ is brought on the grounds that the College's administrative procedure violated California and federal law; violated fundamental principles of fairness by prohibiting John from using an attorney as his advisor, in violation of federal law; depriving him of a fair trial; depriving him of his right to confront and cross‐examine his accuser; employing a process that...

Excerpt: ...ctual allegations. The closest it comes to alleging any facts is that Ecker “made [unspecified] false statements against of the plaintiff Anas Ali [which plaintiff identifies as his true name], referenced by citation number 34‐269551”, and that Ecker “failed to provide prima facie evidence supporting his false documents that plaintiff was/is ‘BLACK' and ‘DRIVING' referenced on citation number 34‐269551.” The FAC does not provide a...

Excerpt: ...se of Action. The Windeler defendants are not named in the Fifth and Seventh Causes of Action. In the ruling on the companion demurrer by defendant Littman Trust, the Court has granted plaintiffs leave to file an amended complaint adding a single cause of action for declaratory relief, as against the Littman Trust and Windeler Development Group. The Windeler defendants shall file an answer that is timely with reference to service of the amended c...

Excerpt: ...he declarations filed by counsel for this and other defendants, plaintiff's counsel has simply failed and refused to engage in the meet‐andconfer required by statute. Plaintiff's response essentially concedes demurrability on at least some points but requests leave to amend. That, counsel needs to realize, is what meet‐andconfer is intended to address. If there are any future requests for leave to amend, plaintiff's CONTRA COSTA SUPERIOR COUR...

Excerpt: ...se of Action. The Windeler defendants are not named in the Fifth and Seventh Causes of Action. In the ruling on the companion demurrer by defendant Littman Trust, the Court has granted plaintiffs leave to file an amended complaint adding a single cause of action for declaratory relief, as against the Littman Trust and Windeler Development Group. The Windeler defendants shall file an answer that is timely with reference to service of the amended c...

Excerpt: ... of action (as permitted), defendants also purport to seek summary adjudication of numerous sub‐issues contained within those causes of action, such as specific paragraphs of the SAC requesting particular items of damages, or “all claims and/or damages” arising from particular alleged defects. None of that is procedurally permissible as a subject for summary adjudication. As Plaintiff points out, items (d)‐(aa) do not dispose of an entire...

Excerpt: ...n amount some three times the jurisdictional maximum for limited cases. Although the motion is not so styled, the Court treats this as (in part) a motion for relief from a judgment that was beyond the jurisdiction of the court. So considered, the motion is granted, and the judgment entered on July 6, 2017 is vacated. Because the problem is a jurisdictional one, the vacatur applies to both defendants. Relief from the judgment, however, is not reli...

Excerpt: ... case against her former employer, asserting claims of sexual harassment. Defendant cross‐complained, alleging that plaintiff hacked defendant's electronic records and deleted a substantial amount of material, including students' report cards. The latter accusation is the subject of a felony case filed against defendant, which (as far as the Court knows) is still pending. The Court has previously entered a partial stay of some proceedings in th...

Excerpt: ...2017. Since then, however, defendants have simply refused to participate in this litigation. They refused to participate in court‐ordered mediation, saying that they were considering filing bankruptcy (and asking plaintiff's counsel to stop “harassing” them). They failed to appear at multiple case management conferences. They did not oppose plaintiff's motion to compel various forms of discovery, but have not complied in any way with the Co...

Excerpt: ...rning her mental disability. But her claim itself centers directly on the alleged existence and results of that CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/19/18 ‐ 5 ‐ disability; without the disability she has no claim. Plaintiff has thus directly put her own mental state at issue, alleging (among other things) that she lacked capacity to agree to and sign an alleged quitclaim deed in 1999. She cannot exp...

Excerpt: ...ere all served on April 7, 2017. Each defendant responded to each discovery request with a blanket paragraph of rote objections, each substantially identical to the objections made to the hundreds of other discovery requests cumulatively made to the responding defendant and all the other defendants. On the face of these “responses”, there was no pretense of any good‐faith attempt to respond, nor to provide objections actually CONTRA COSTA S...

Excerpt: ...e to strike the Answer on account of these deficiencies. At this time, there is an Answer on file, and it contains denials and affirmative allegations sufficient to defeat the present motion. If the Answer should be stricken, plaintiff should move to strike it. If it is not stricken, however, it defeats the present motion. Among other advantages, that order of procedure would create an opportunity for plaintiff's counsel to meet and confer with d...

Excerpt: ...irst Amended Complaint, even though some of them are deleted altogether due to the Court's prior demurrer ruling.) Defendants District, Yurkovich, and Perry demur to what are labeled as the sixth and seventh causes of action. The demurrer is sustained. Leave to amend is allowed, one final time, as to the seventh cause of action. Leave to amend is denied as to the sixth cause of action. Any amended complaint (which, to avoid hopeless confusion, wi...

Excerpt: ...acts to constitute a cause of action, the court follows the same rules it does on a demurrer. It considers only the material alleged on the face of the challenged pleading and matters of which it can take judicial notice. (Ibid.; Code of Civil Procedure § 438(d); see Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548.) Here, on its face, the complaint states a cause of action that defendant breached his agreement to sell the ...

Excerpt: ...er's order, because defendant failed to file the bond required by statute. Section 98.2(c) “establishes a one‐way fee‐shifting scheme, whereby unsuccessful appellants [employers] pay attorney fees while successful appellants may not obtain such fees.” Sonic Calabasas v Moreno (2011) 59 Cal.4th 1109, 1129. The purpose is to discourage unmeritorious appeals from administrative wage claim determinations, and to encourage prompt payment there...

Excerpt: ...ior representation of Pearl on related subject matter. 6. TIME: 9:00 CASE#: MSC16‐ 01082 CASE NAME: TROMBADORE GONDEN LAW GROUP VS. SMITH HEARING ON MOTION TO VACATE DEFAULT JUDGMENT FILED BY ROBERT WILLIAM SMITH, MARC PEARL * TENTATIVE RULING: * Marc Pearl's motion to vacate default judgment is granted. The default entered on March 21, 2017 and the default judgment entered on September 1, 2017 are ordered vacated. Pearl shall file and serve th...

Excerpt: ...as served with it. Furthermore, she does not suggest that she has any meritorious defense to the suit, and she does not proffer any proposed answer to the complaint. It is pointless to grant defendant an opportunity to defend against the claim if she has no defense. Defendant does make a brief mention of her statement to plaintiff's attorney that this debt had been resolved by Kemper Group. However, she does not identify who Kemper Group is, or h...