Excerpt: ...RING DATE: 07/10/20 ‐ 4 ‐ both defendants moved for summary judgment. The Court's tentative ruling was to grant that motion as to both defendants, on the ground that plaintiff's expert did not meet the requirements of Health & Safety Code § 1799.110(c) for experts testifying as to the standard of care for emergency medical treatment. At argument, however, plaintiff pointed out that his claims against the hospital extended more broadly than j...

Excerpt: ... (TAC), but not until Monday January 13, 2020. Rather than file a further demurrer, the District has filed a Motion to Dismiss and a Motion to Strike on both substantive and procedural grounds. The procedural grounds are that plaintiffs filed the TAC one court day late. The court denies both motions to the extent they are based on the late filing. The court will construe the Motion to Dismiss as a demurrer. So construed, the court sustains the de...

Excerpt: ...sitions (MLA) alleges that defendant Hom entered electronically into a loan transaction with LoanMe (not a party to this case), and defaulted on payments. MLA allegedly acquired the note and claim by purchase and assignment. The alleged arrears are $2,554.80, although by plaintiff's calculations that amount now comes to more than $10,000 with interest added. Hom answered and filed his cross‐ complaint, which had the effect of converting this to...

Excerpt: ...er shall promptly file a request for dismissal of this action. If the appeal is denied, petitioner will have exhausted its administrative remedy under the Education Code, and the Court will rule on the merits of the pending motion for preliminary injunction. While the Court is waiting to hear the outcome of the appeal, the Court continues the hearing on the motion to July 17, 2020, and requests that the parties be prepared to address the issues s...

Excerpt: ... (E.g., Wall Street Network, Ltd. v. New York Times, Inc. (2008) 164 Cal.App.4th 1171, 1176.) Plaintiffs' first ground for their motion is simply that the Court got it wrong on the law in granting summary judgment. In this respect, plaintiffs' counsel appear to be confusing this Court with the court of appeal. While it is true that a summary judgment is reviewed de novo, it isn't reviewed de novo (or in any other fashion) by the very court that i...

Excerpt: ...DATE: 07/10/20 ‐ 7 ‐ Background On or about June 14, 1947, a certain tract of land in Antioch was subdivided into lots and streets and represented on a map filed with the County Recorder. (Exhibit A to Complaint.) The 1947 Map depicted a street named Cesa Lane that starts on the south at Railroad Avenue and runs northerly, then turns easterly to Walter Way. There is no dispute that the City properly abandoned Cesa Lane by Resolution. On or ab...

Excerpt: ...ry in Las Vegas, Nevada. (Compl. ¶ 24) MM Development holds a judgment entered by a Nevada state court against defendant Linx Card, Inc. for $949,559.80, entered August 28, 2019, arising out of certain merchant processing services Linx Card provided to MM Development. (Compl. ¶¶ 25‐43, Exhs. B, D, E) A. The Claims MM Development has asserted claims against the defendants in this case for fraud, breach of contract, deceit, conversion, violati...

Excerpt: ...te of April 29, 2019 on the basis of the advanced age and ill health of the then‐plaintiff, Mr. Garrett. Unfortunately he proved to be medically unavailable to attend trial then, and even more lamentably he has since passed away. As is discussed in Lines 4 and 5, it is represented that his claims are now being pursued by the successor trustee of his family trust. Unusually, this motion rests not on any age or health problems of any party, but r...

Excerpt: ...may further amend his proposed pleading, if he thinks necessary, better to clarify the substantive basis for his self‐identification as the new plaintiff in the case. Background and Procedural History This case has a complicated procedural history, not entirely clear from the Court's file. The complaint was originally filed on September 10, 2018 by plaintiff Carl Garrett, suing in his own name. Garrett identified himself of the owner of the sub...

Excerpt: ... In this motion, plaintiff asks the Court to require that several stated categories of documents be produced for the Court's review. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/19/20 ‐ 8 ‐ The Pitchess Procedure Penal Code § 832.7(a) and Evidence Code §§ 1043‐1046 set up an exclusive procedure for discovery of certain police personnel files. Section 832.7(a) provides that with exceptions not applicabl...

Excerpt: ...ion (public policy), and the issue of emotional distress damages. Because summary adjudication is denied on some claims, summary judgment is also denied. Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/12/20 ‐ 2 ‐ Plaintiff Frank Colwell is Caucasian and complains of unlawful actions against himself and property because of his race. He alleges his employer did nothing to stop the behavior of anonymo...

Excerpt: ...does not shed any further light on what kind of “conduct” was being investigated, however, beyond asserting in his unsworn brief that this case “does not involve well founded allegations of sexual misconduct, physical violence, threats of violence, or sexual harassment. Nor does it involve allegations of drug‐related wrongdoing, criminal activity, or any other egregious misconduct.” This ambiguously worded statement, besides not being e...

Excerpt: ...ising from a destructive landslide that seriously harmed plaintiffs' residential property. Padilla moved for summary judgment, which was granted. This represented a total victory for Padilla. Padilla then filed his memorandum of costs as the prevailing party. The § 998 Offer Most of the costs sought consist of expert fees incurred after plaintiffs declined Padilla's Code of Civil Procedure § 998 offer. Section 998 is designed to encourage the s...

Excerpt: ...��30, 32.) I. Factual Background On September 4, 2016 at approximately 8:00 p.m., while riding his bike south along the northbound side of Big Break Road in the City of Oakley, 14‐year‐old Kaleb Vancil was struck by an oncoming truck going north, driven by Jerry McKinzie. McKinzie has testified that he did not see Kaleb. Kaleb is said to have left the sidewalk to pass two pedestrians headed the same direction as himself. Plaintiffs, Kaleb's p...

Excerpt: ...sentation) and the sixth cause of action (unfair business practices), but only to the extent that plaintiff may, if he chooses, amend to add Askew to his intentional misrepresentation cause of action. It is sustained without leave to amend as to the second cause of action (conversion). Meet and Confer The Court is not satisfied with either side's compliance with the letter and spirit of the requirement of meeting and conferring before filing this...

Excerpt: ... she healed with keloids and required special care before, during and following her surgical procedure. In or about 2004, Plaintiff had undergone an abdominoplasty. To avoid further keloid formations, she requested her surgeon use the same incision for her fibroid removal. Since the fibroid mass was large, the decision was made to make the incision through the umbilicus (belly button). Plaintiff alleges that after surgery, her belly button was op...

Excerpt: ...e Demurrer is sustained with leave to amend. Plaintiff may file and serve a first amended complaint by March 27. If plaintiff has no allegations to make of actual wrongdoing by this defendant, however, he may find it the better part of valor to drop the foreclosure trustee and proceed (if he can) only against the lender. Analysis Defendant asserts that the complaint is uncertain as against Clear Recon. Uncertainty is a disfavored ground for demur...

Excerpt: ...of plaintiffs John Doe and Jane Doe. Jane Doe was briefly involved in relationship with John Doe, which ended in May 2017. Defendant Russell was involved in a subsequent relationship with John Doe from August 2017 to August 2018 and again beginning in December 2018. Russell CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 03/06/20 ‐ 7 ‐ discovered and distributed a copy of the photograph to defendant Gracie becaus...

Excerpt: .... Shoreline's Allegations and Shapell's Demurrer This action arises out of the construction of a retirement community on property owned by defendant Shapell. FAC ¶¶ 9, 11. The FAC alleges that Shapell hired defendant SCM as the contractor for the project. FAC ¶ 13. On June 30, 2016, Plaintiff submitted a bid to SCM to perform the framing, based on architectural drawings, engineering specifications, and plans ("Design Documents") prepared by de...

Excerpt: ... less than $500; (3) either unsecured or secured by personal property, not real property (including fixtures); and (4) commercial in nature.” (Goldstein v. Barak Construction (2008) 164 Cal.App.4th 845, 852.) In issuing a writ of attachment, the court must make the following findings: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the cla...

Excerpt: ...ies to business customers. The assets of KBA Docusys were acquired by Kyocera. The present plaintiff, KBA Document Solutions, is the corporation formed by Kyocera to acquire the assets and carry on the acquired business. Part of the compensation for that acquisition was allocated to goodwill. Kim and Costa, as minority shareholders, received substantial six‐ figure payouts from the purchase. They were also required to sign new employment contra...

Excerpt: ...tion of Emotional Distress. Plaintiff shall file and serve the amended complaint on or before March 13, 2020. The Court sustains without leave as to the first three causes of action because plaintiff has voluntarily abandoned them. The Court has no occasion to analyze whether they would have survived demurrer otherwise. As to the two infliction torts, the existing complaint is unclear as to just what is intended to be adduced as the operative act...

Excerpt: ...ime to answer the remaining causes of action will run from that date. Defendants demur to causes of action (1) breach of fiduciary duty (demurrer by Pritchard), (2) fraud (demurrer by all), (7) breach of contract (demurrer by Martin and Pritchard), and (8) Business and Professions Code §17200 (demurrer by all) for failure to state a cause of action. The FAC is confused and contradictory as to the shareholdings of defendants in plaintiff. Kejet a...

Excerpt: ... Court takes judicial notice only that the notice of default was recorded – not that the default it asserts is factually established as having occurred. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 02/14/20 ‐ 16 ‐ 1st C/A. The demurrer to the First Cause of Action for breach of contract is overruled. A plaintiff may allege performance in conclusory terms. (Code of Civil Procedure § 457.) Also, the Court may...

Excerpt: ...ill be dismissed as against the County. Facts Alleged by Plaintiff The facts alleged in the SAC are straightforward, though quite conclusory in some respects. Plaintiff O'Brien alleges that at approximately 11:57 p.m. on April 7, 2017, he was walking south on the western edge of Berry Drive in Pacheco north of the intersection of Berry Drive and Center Avenue. SAC ¶ 14. That portion of the western side of Berry Drive had “a curb, and an appare...

Excerpt: ...dic Specialists. The motion is granted. Defendants have successfully shifted the burden to plaintiff to demonstrate a triable issue of material fact, and plaintiff has failed to introduce admissible evidence of defendants' breach of the standard of care, a necessary showing for medical negligence, and on his intentional misrepresentation cause of action. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 02/14/20 ‐ 8 ...

Excerpt: ...awsuits. The Court described their substance in granting consolidation: These three lawsuits present different plaintiffs and different forms of legal claims. Two of them are wrongful‐discharge claims asserted by terminated executives of Garaventa Enterprises. The third is a shareholder derivative action, challenging the action of Garaventa's management in (among other things) terminating those same two executives. Speaking in non‐legal terms...

Excerpt: ...se is set for Case Management Conference on September 7, 2020 at 8:30 a.m. The Merits.  Plaintiffs offer no legal authority supporting the proposition that the “boilerplate” nature of the subject fee agreement renders the agreement unenforceable. The Court notes that the subject matter of the representation was described as seeking damages “arising out of an accident/incident which resulted in personal injuries and/or death,” a descrip...

Excerpt: ...or to this motion, plaintiff filed two ex parte applications for appointment of a receiver and a temporary restraining order. The first ex parte application was denied, but plaintiff's counsel states that he received permission to re‐file the application. (Lapham Reply Decl. ¶¶ 4‐5.) The second ex parte application was also denied, but a hearing on the matter was scheduled with the ex‐ parte application used as the moving papers. Thus, th...

Excerpt: ...nt interference theory. (Undisputed or Disputed Material Fact Nos. 55, 56, 57, 58, 59, 61, 62, 63, 64, 76.) Further, Southport has not established it is entitled to judgment as a matter of law for the remedy it has requested as to either set of defendants. In this second of its two motions, Southport seeks an order that it is entitled to summary adjudication as to the First and Second Causes of Action of its FAC, which allege that Southport is en...

Excerpt: ...; and 9 (misrepresentation). It is denied as to cause of action 8 (PAGA). Third Cause of Action – Retaliation for Harassment Report Plaintiff's third cause of action is for retaliatory firing in violation of Gov. Code § 12940. It is uncontested that on January 8, 2016, plaintiff reported to the District that her immediate supervisor, Hull, had subjected her to various forms of sexual harassment. On February 1, 2016, she was notified in an eval...

Excerpt: ... trust recorded against the Property on June 29, 2016. The Gees have a recorded deed of trust filed earlier than that. The scheduled foreclosure sale rests on a recorded subordination agreement, purporting to subordinate the Gees' 2014 security interest to Funding Solutions's 2016 security interest. The central point of this lawsuit is the Gees' contention that that subordination agreement is simply a fraud, signed and recorded without their know...

Excerpt: ...ffs may file and serve a first amended complaint by February 28. If they elect not to do so, defendants' time to respond to the surviving portions of this complaint will run from that date. Points of Case Management First: Although the Court is holding that this action may be brought in addition to the case now pending in Department 33, it is obvious that this case should be transferred to that Department. Accordingly, on the Court's own motion t...

Excerpt: ...gs. It is not moot as to them, and the Court now rules on them. (Defendants forwent filing any timely opposition to the motion, and at the January 17 hearing the Court declined to allow them to file any opposition belatedly.) The motion is granted in part. Judgment on the pleadings is granted in plaintiff's favor on plaintiff's 12th cause of action, for disgorgement (including rejection of any affirmative defenses to that cause of action). As pla...

Excerpt: ...ess customers. KBA Docusys was acquired by Kyocera; the present plaintiff is the successor to that business. Part of the compensation for that acquisition was allocated to goodwill. Kim and Costa, as minority shareholders, received substantial six‐figure payouts from the purchase. They were also required to sign new employment contracts with the successor company. The new contracts included several restrictive terms now at issue:  A prohibit...

Excerpt: ...ion papers. Background Plaintiff is a lessor of chassis used by trucking companies to facilitate the hauling of cargo. When goods arrive at the Port of Oakland, the product is moved from the shipping container to waiting trucks by use of a chassis. (Linares Declaration, 2:2‐3.) Defendant, Linares Transport, Inc., is a transport company and customer of plaintiff. Plaintiff claims it is entitled to summary judgment against defendants, Carlos Lina...

Excerpt: ...he First Cause of Action, for Breach of Fiduciary Duty, remains, the court cannot grant summary judgment on that Cross‐Complaint. On August 10, 2015, Dhaliwal filed a Cross‐Complaint alleging three causes of action: CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/31/20 ‐ 2 ‐ (1) Breach of Covenant of Good Faith and Fair Dealing; (2) Defamation; and (3) Violation of Business and Professions Code § 17200. O...

Excerpt: ...timony establishes that the standard of care was met with respect to the care and treatment provided by the County healthcare providers, and that no act or omission caused plaintiff's condition. For the following reasons, the Court grants defendants' motion for summary judgment. Defendants shall prepare a judgment separate from the Order After Hearing hereon. Factual Background Plaintiff was diagnosed with gout in 2015 at Kaiser and treated with ...

Excerpt: ...concerns only the property rights of the landlord and the tenant under the relevant lease. The basic issue is who – the landlord property owner or the tenant licensed facility operator – is responsible for emptying the premises at the end of the lease. Because the Court concludes that Brookdale has no reasonable probability of proving this is the responsibility of the defendant landlord, and because the hardships of which it complains are ent...

Excerpt: ...rlooked because of frankly careless handling of documents by her staff. But what her motion does not account for is her receipt of a number of other pertinent documents, notably plaintiff's motion to deem matters admitted, with the RFAs attached thereto (to which Finley made no opposition), and the Order After Hearing deeming matters admitted after the motion was granted. Nor does Finley offer any explanation of her delay in seeking this relief. ...

Excerpt: ...inal judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.” (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507.) BMW's evidence shows that there was a class action filed in New Jerse...

Excerpt: ... is set to coincide with the time set in Line 16 for answer or response by Newsom/Presidium. These two defendants are Texas law firms. Along with two individual defendants, they moved to dismiss on the strength of contractual mandatory forum selection clauses, requiring that any litigation arising from the contracts must occur in Texas. The motion came for hearing on October 4, 2019. The Court denied the motion as to the individuals, because they...

Excerpt: ... requested, most notably of contact information for potential class members, on the basis that plaintiff has not established a basis for contending that there may be a viable class certification. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/24/20 ‐ 13 ‐ Defendants' position is, to say the least, not one favored by California case law. Indeed, defendants have cited no recent California decision in a wage‐a...

Excerpt: ...dia Intervenors' claims. The motion is denied. “Media Intervenors” is a shorthand reference to intervenors First Amendment Coalition, California Newspapers Partnership (d/b/a Bay Area News Group), KQED Inc., Investigative Studios, Inc., and The Center for Investigative Reporting. The City's MJOP focuses entirely on a narrow procedural argument about how the Media Intervenors come to be asserting their present claims under this docket number, ...

Excerpt: ...4. Plaintiff alleges that she checked in at the hotel on April 7, 2016 but was switched to another room the next day. Id. at ¶¶ 15, 16. On April 9, 2016 she “began to feel a bit of discomfort and itchiness” and the next day she “noticed she had bite marks all over her body.” Id. at ¶¶ 17, 18. She further alleges that she saw a bedbug on her towel and showed a bedbug that she caught in a cup to the front desk. Id. at ¶ 18, 19. Ultimat...

Excerpt: ...val of the subdivision map and currently has until 2022 to get final approval. (Pet. ¶¶ 13‐14.) Neff alleges that he has submitted the improvement plans, the final map and supporting documents required by the City “repeatedly” over the past ten years. (Pet. ¶ 15.) He submitted the required documents in 2010. (Pet. ¶ 16.) In 2015 the City thought some documents were missing, but later found them. (Pet. ¶ 17.) Then in June 2017, Neff rec...

Excerpt: ...er is sustained with leave to amend. Factual Background Plaintiff alleges that she suffered serious physical injuries and emotional distress when she was prevented from attending her father's funeral at Higgins Chapel. Plaintiff is estranged from her family. She alleges that she learned of her father's death from reading an obituary. She went to Higgins Chapel with her friend, only to discover that her father's service was in progress. She furthe...

Excerpt: ...endants' property onto plaintiffs' in two slides in February 2017, the East Slide and the South Slide, and a fire (starting on another property but spreading to defendants' property) on July 8, 2018 that threatened plaintiffs' property, though apparently the fire never actually reached plaintiffs' property. The East Slide is recurring. Defendants have failed to repair it since plaintiffs notified them about it in March 2017 and sued them in June ...

Excerpt: ...trike. That is not correct. In its September 6, 2019 tentative ruling concerning those matters, the Court said: Today's rulings are not intended to foreclose plaintiffs from including additional or different causes of action against any defendant, such as breach of contract, in their second amended complaint; and on its own motion the Court grants leave to amend in that respect. (September 6, 2019 Tentative Ruling, Line 18.) The reply says that A...

Excerpt: ...ts of the motion, the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed. Any doubt CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/10/20 ‐ 7 ‐ as to the granting of the motion must be resolved in favor of the opposing party. (Renna v. County of Fresno (2000) 78 Cal.App.4th 1, 5.) Factual Background Plaintiff Yaron was injured while playing golf ...

Excerpt: ...acts of the case are well known to the parties and have been discussed at length in the Court's prior rulings. In brief, plaintiffs own a property that has been seriously damaged by a landslide, and are suing a number of their neighbors and other parties for the damage. Defendant Padilla is plaintiffs' across‐the‐street neighbor, located just uphill from plaintiffs. The CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING D...

Excerpt: ...arbitration,” within the meaning of the statute. Second, even if it were a consumer arbitration, the statute is obviously intended to protect the consumer, not the non‐consumer. Respondent asserts that in this dispute he is the “little guy”, which may or may not be true – but if it is, that's all the more reason why this isn't a “consumer arbitration” within the contemplation of the statute, which aims to protect “little guy” co...

Excerpt: ...itur. They disagreed, however, on whether the reversal and remand have the effect of reopening discovery in general, and expert designation and discovery in particular (the original discovery cutoff having previously passed before the dismissal). The Court invited the parties to brief the question. Defendants have accordingly filed what they label as a motion to reopen discovery. The label is not quite right, given that defendants' (correct) posi...

Excerpt: ...r case. Goldstein, a Judge of this court, has made rulings in that misdemeanor case with which plaintiff disagrees. Plaintiff contends that Goldstein is disqualified by bias and is required to recuse himself. He further contends that Baskin, the Presiding Judge of this court, is under a duty to ensure that Goldstein complies with all laws, including by recusing himself. The theory of the sixth cause of action is that Goldstein, by refusing to rec...

Excerpt: ... amended complaint is therefore dismissed with prejudice. The case was originally filed as a petition to compel underinsured‐motorist arbitration under Vehicle Code § 11580.2. After some initial scheduling agreements, however, the parties agreed to the filing of a first amended complaint seeking a declaration that Rascon is an Insured Person, followed by an uninsured‐motorist arbitration. The Court understands the effect of this amendment as...

Excerpt: ...ic order after hearing specifying what is to be stricken from the original complaint, and their time to otherwise respond to the complaint will run from that date. In light of this ruling, the CMC now set for September 24 is continued to December 16. Meet and Confer After a previous continuance so that the parties could meet and confer as required by statute, Counsel for defendants has filed a declaration in support of the motion for punitive dam...

Excerpt: ...rove she suffered any damages, and damages are an essential element of each of these causes of action. The motion for summary adjudication as to the Third Cause of Action, for Defamation, is denied. Defendants have not met their initial burden to prove plaintiff did not suffer any reputational damage or persuaded the court on this motion that plaintiff is not entitled to recover presumed damages for reputational damage for defamation per se. (See...

Excerpt: ...ed to file any opposition. The Court (Judge Allen) denied plaintiff's § 473 motion for relief. Earlier this year the court of appeal reversed that denial, holding that plaintiff should have been given a chance to oppose the motion. Chevron now renews its motion on its original papers, and plaintiff has filed her full opposition papers. Plaintiff's Legal Theory. Plaintiff brings two causes of action under the Fair Employment and Housing Act: reta...

Excerpt: ...ch plaintiff paid $650,000 to purchase promissory notes from Dunken, secured by the proceeds received by the Dunken firm from settlement or victory in the underlying class actions. In this suit, plaintiff complains that he has not been paid a penny on this investment. He seeks a preliminary injunction, the precise contours of which are not very well explained or defined in his motion. But apparently the general idea is to prevent payment or dispe...

Excerpt: ...ken into account in denying or granting future leave to amend. The Court concurs in defendant's view that at least the misidentification of the proper defendant should have been resolved by discussion between counsel. Defendant demurs to the entire complaint on the ground that it erroneously names the Sheriff's Department as the defendant in the case, but the Sheriff's Department is not a separate entity capable of being sued. The Court agrees, a...

Excerpt: ...on before this motion was filed. The motion is thus uncontested and is granted to that extent. Defendant further asks that this action be dismissed because the dispute will be fully resolved in arbitration. So it should be, and so the Court hopes. Nevertheless, it is standard practice to retain jurisdiction over arbitrable cases, whether they are filed as substantive lawsuits or as petitions to compel arbitration. Not only is there the possibilit...

Excerpt: ...mes, but only on a narrow and specific ground: Plaintiffs had pending, or were about to file, a modification application or an appeal from denial of same. Civil Code § 2923.6 therefore called for putting off the sale until those could be acted on, either approved or denied. Defendant's papers show without contradiction that by now, plaintiffs' appeal has been rejected. That eliminates the statutory basis for the previously granted relief. (It al...

Excerpt: ... the Parties' Basic Cases Brachium is a start‐up medical tech company, with three main founders – Shebab, Akeel, and Wong. For some time the company, acting mainly through Wong and an outside consultant (Niro), were negotiating with TronVest and the Chen family for outside funding. Brachium's complaint in this action (filed on direction of Shebab and Akeel) accuses Wong and Niro of mismanaging the negotiations with TronVest, giving away too m...

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 09/13/19 ‐ 2 ‐ The Arbitration Agreement This case was filed as a derivative shareholder's action and an action involuntary dissolution of a corporation. Plaintiffs, the minority shareholders in Defendant Wings For 2 Singhs, Inc., allege that defendants, the majority shareholders, violated their fiduciary duties and abused their majority power in order to control the corporate activiti...

Excerpt: ...from the FAC. As it must for purposes of ruling on both the demurrers and the motions to strike, the Court accepts as true all of the well‐pleaded factual allegations contained in the FAC. Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967. The Court is not, however, required to accept as true contentions, deductions, or legal conclusions. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. This case arises from problems plaintiffs encountered...

Excerpt: ...y is their private property, and the bicyclists have no right to use it. Plaintiffs' attack was two‐ fold. They asserted that defendant District had the power and responsibility to see to it that bicycle traffic is excluded. Plaintiffs failed at this part of their attack, which was defeated on the District's motion for judgment on the pleadings. Plaintiffs and the District have since agreed that each side would bear its own attorney fees and co...

Excerpt: ...llegations. This dispute has had a long and winding history, with several docket numbers and several layers of pleadings. For purposes of the present motion, however, those can be ignored. The issues on this motion are presented identically as if this were simply an original lawsuit filed by the Gannons against Coldwell Banker and the Argabright defendants. The Gannons bought a residence from the Argabrights, in which Coldwell Banker acted as the...

Excerpt: ...the file and cannot be located by the clerk's office. The Court is working from a copy faxed by counsel (thanks for that), but it is neither file‐stamped nor complete, with all exhibits after Exh. A missing. Plaintiff is requested to provide a substitute copy of it, with exhibits, for filing so that the Court's file will be complete. The Parties and the Dispute Plaintiff Brachium is a health technology company headquartered in San Ramon. Defend...

Excerpt: ...o allow for meaningful rulings. This is a case for breach of warranty and violation of the Song‐ Beverly Act, based on alleged unrepairable defects in a vehicle purchased as certified pre‐owned. Plaintiff purchased the car in 2013, and (according to his suit) he encountered a long train of significant problems with it. He demanded repurchase in February 2016, and filed this suit in March 2016. More than two years later, in July 2018, defendan...

Excerpt: ... says “Disputed fact … Defendant is unable to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 08/30/19 ‐ 5 ‐ confirm or deny and reserves a right to submit evidence in dispute.” Of course, that is not remotely how summary judgment in California works. On this motion, Jang bears the burden of persuasion that there is no triable issue of material fact and that Jang is entitled to judgment as a matter of law. ...

Excerpt: ... But the basic reason for denial is the same for all five: There is no attempt to provide serious evidence of damages, let alone to show that the amount of damages is established to a summary‐judgment standard. In a nutshell, these are what may be called “liability‐only” summary adjudication motions. Such motions are flatly impermissible under California summary judgment procedures. Form of Plaintiffs' Papers A word is in order at the out...

Excerpt: ...a difference in several respects. Most notably, the “partnership agreement” belatedly attached to the complaint, and alleged to embody the terms of the asserted oral contract, includes only plaintiff and defendant Jaca as contractual parties. Plaintiff is very vague as to how he has any contractual relationship at all with the other two defendants, Mountain Movers and Roquemore. And on a directly related note, the motion also does not specify...

Excerpt: ...icial Notice Baniqued seeks judicial notice of the complaint in this matter. The request is denied as superfluous. The complaint is contained in the Court's file and is before the Court in connection with the anti‐SLAPP motion. Anti‐SLAPP Motion Before reaching the merits of the anti‐SLAPP motion, the Court notes that Mancheno sought – and received – multiple extensions of time to oppose the anti‐SLAPP motion. The last extension, gran...

Excerpt: ...perty, presumably their residence. The applications are granted. Plaintiff issued public works payment bonds for a construction project undertaken by Northern Pacific. Northern Pacific and the Koeberers signed indemnification agreements agreeing to indemnify plaintiff against any liabilities on the bonds. The indemnification agreements included obligations to deposit sums to secure any such indemnification. Plaintiff has made demands for deposits...

Excerpt: ...e purchase agreement. Defendant (then represented by counsel) answered and filed a crosscomplaint, alleging that plaintiff had cost him commission payments by inadequately servicing the underlying customers. In October 2018 Mendrin's attorney substituted out, and Mendrin has been in pro per since then. Mendrin did not appear at a CMC held a couple weeks after the substitution. In the fall of 2018 plaintiff began talking (first with defendant's at...

Excerpt: ...Civil Code § 2924(a)(6) and (f); (4) declaratory relief; (5) violation of Civil Code §§ 2923.5 and 2923.55; and (6) breach of contract. This case was previously dismissed on MJOP on grounds of res judicata. The Court of Appeal reversed that decision, holding that res judicata did not apply. The court did not rule on the other bases for MJOP previously asserted, however, remanding for that decision. Defendants have since refiled their motion an...

Excerpt: .... Realistically, the present ruling is simply reducing to writing what both sides, represented by competent lawyers, have known since at least when the answer was filed, if not earlier: Absent any agreement among the parties to something else, this property will be partitioned and sold (though these parties can be among the bidders if they choose). (For that reason, the Court disregards the concern about a mediation being scheduled. That's a poin...

Excerpt: ...se. There are three sequential transactions involved. In 2009 plaintiff borrowed $80,000 from the Walter E. Lawson Family Trust, secured by a property at 239 1st St., Richmond. The loan was not a purchase‐money loan; plaintiff intended to use the proceeds for property improvement. The loan called for interest‐only payments at a 12% interest rate, with the principal payable as a balloon in December 2012. The parties agree that although the int...

Excerpt: ...ner's injury. Petitioner's parents had an auto policy with respondent carrier. Petitioner was walking to his parents' parked car when he was hit and injured by an uninsured motorist. His theory is that this brings him within the policy's coverage as an Insured Person. Hence, he seeks to initiate an uninsured‐motorist arbitration. The carrier's position is that petitioner was injured as a pedestrian, not a motorist, and hence he is simply outsid...

Excerpt: ... has since deposited the full bond amount in court. It does not appear that anyone contends American Contractors could have any further liability in the matter to anyone. If American Contractors were in the case only as a defendant, that would be a good argument for dismissing it out of the case entirely, and letting it go on its way. The joker, however, is that American Contractors has filed a cross‐complaint against a considerable number of c...

Excerpt: ...uires meet‐andconfer in person or by telephone. Defendants' attorney wrote a letter, but did not follow up with a call. Plaintiff's attorney apparently ignored the letter. Both attorneys are admonished that any repetition of such conduct invites sanctions. Background Facts This dispute arises from the alleged defective condition of the residential property tenant plaintiffs rented from landlord defendants. (Compl. at ¶ 20.) Plaintiffs allege t...

Excerpt: ...nction would not be appropriate. (See, City of San Jose v. MediMarts, Inc. (2016) 1 Cal.App.5th 842, 850; O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463‐64.) Plaintiffs' Complaint and OSC papers are problematic in a number of respects. The following are some of the key problems. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/26/19 ‐ 12 ‐ Procedural Problems.  Plaintiffs' filed their ap...

Excerpt: ...ypically a petition for relief from filing a tort claim is brought as an independent proceeding before any tort lawsuit is filed. Here, however, the proposal is to add a new governmental defendant (the State) to the existing lawsuit, based on subsequent discovery of the State's involvement. Further, if this were to be played “by the book”, an independent proceeding for relief would be filed, and once granted, a separate lawsuit against the St...

Excerpt: ... complaint recites that it attaches the key transactional and title documents (such as the grant deed and the deed of trust) as exhibits to the complaint, in fact what is attached bears no resemblance to the recited documents. It appears to be a set of internet printouts of unknown, sketchy origin and no apparent relevance. (Also, the exhibits are not tabbed as required by the CRC and local rules.) The deed of trust is provided by defendants in t...

Excerpt: ...ge. Some of the defendants were never served, and apparently still haven't been served. The defendants that were served all demurred. The Court sustained all such demurrers, mostly with leave to amend, with the direction that any such amendments be filed in a single, consolidated first amended complaint. Plaintiff missed the deadline for amending, but then obtained counsel and filed the FAC. The FAC names seven defendants. One of these is Contra ...

Excerpt: ... out of his request for assistance with obtaining CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/19/19 ‐ 13 ‐ employment in the field of water and liquid waste treatment plant and systems operations. Specifically, plaintiff alleges that DOR failed to provide him with and properly implement an Individualized Plan for Employment (IPE) related to his desired participation in Solano Community College Bay Area Con...

Excerpt: ...ion. Defendant has filed a demurrer that, while technically meritorious, is entirely pointless as a practical matter and will have no effect but to force plaintiff to replead its claims in a more appeal‐proof form. The demurrer is unopposed, and it is sustained with leave to amend. Any amended complaint must be filed and served by August 2, 2019. (A housekeeping matter first: Defendant's points and authorities and meet‐and‐confer declaratio...

Excerpt: ...rs in Pittsburg. Immediately adjacent to plaintiff's property is an open field belonging to UPI, where (the complaint alleges) there has been an ongoing problem with transient activity, trash, and high vegetation. Plaintiff alleges that in 2013 a transient living on UPI's property started a fire that spread onto plaintiff's facility, and that in 2015 a “similar incident” (not otherwise elaborated on) occurred. In August 2018, defendant Belche...

Excerpt: ... was ordered transferred to this County by order dated September 28, 2015. Thereafter, however, nothing happened in the case at all. The reasons for that are not entirely clear from the file. But based on the motion and the attorneys' representations at a recent CMC, it appears that the transfer did not occur simply because plaintiff did not take the steps necessary for the transfer, particularly payment of the required fee. The matter then langu...

Excerpt: ...y allege fraud. Taken together, they allege that cross‐defendants falsely misrepresented that the prior kitchen contractor was licensed, and was being replaced only due to his illness. They also misrepresented that they had obtained permits for the kitchen remodeling project. In fact (the causes of action allege), the job was unpermitted; the prior contractor had been fired for botched electrical work; and the prior work was substandard. Cross�...

Excerpt: ...on to plaintiff was to give her more time to file the opposition. The Court has accordingly considered it. But it fails to persuade. At the outset, plaintiff correctly points out that the several theories argued in the motion are affirmative defenses, which must be alleged in defendant's answer. Defendant's answer (filed in pro per) does not expressly allege any of these theories. As the present motion clearly seeks to adduce these defenses and p...

Excerpt: ... (first sentence and the Offer itself), 55, 56, 57, 59 (first sentence and the Offer itself), 60, 61, 62, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76.) Background Plaintiff, James Reed, is the trustee of a life insurance trust that he created for the benefit of his estate‐planning client, decedent Priscilla Allen. The company that originally wrote the insurance policy was Central Life Insurance Company. Through a series of transactions, the ...

Excerpt: ...e two lis pendens at issue in this case: one recorded August 21, 2017 and one recorded April 17, 2019. (See defendants' RJN Exs. B and H.) It is not clear if the 2019 lis pendens was recorded with the County since defendants' notice of motion refers to the filed lis pendens and defendants' copy of the 2019 lis pendens does not include a stamp from the Recorder's Office. Plaintiff's opposition states that she “recorded and filed” a Notice of P...

Excerpt: ... the subcontractors involved in these litigations can usefully be sorted into four categories, with different results as to whether they should or should not be included in a general reference and whether the subcontractors' complaints should or should not be consolidated into the main action. 1. Subcontractors Whose Work Is Potentially at Issue in the Thompson‐LTC Dispute The Court's prior indications rested to a large extent on its understand...

Excerpt: ...of California.” The Court accepts the stipulation. More than that, the Court salutes the parties for taking the initiative to present this issue, which (the Court infers) has stood as a roadblock to possible settlement. Accordingly, each side has filed a summary adjudication motion limited to this single issue. Unfortunately, however, the Court concludes that both motions must be denied. The applicability of § 3333.4 to this accident turns on ...

Excerpt: ...Z, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/07/19 ‐ 12 ‐ On March 11, 2018, Petitioner Mousa Rafiq Khouri was arrested in Alameda County on the suspicion of driving under the influence in violation of Vehicle Code § 23152(a). Petitioner was advised of the “implied consent” (Vehicle Code § 23612) and allegedly refused a chemical test. The arresting officer, Officer Zimmerman, obtained a warrant to draw Petitioner's blood. The blood tes...

Excerpt: ...nt; but an order on a motion (even a dispositive one) is not the “notice of entry of judgment or dismissal” referred to in CRC 3.1700(a)(1). The judgment was not filed until May 3, after the memorandum of costs. Some $1,500 of cross‐defendants' costs are the $500 filing fee for three nominally separate but substantially identical summary judgment motions, filed on behalf of three cross‐defendants. The Court commented at the time that thes...

Excerpt: ...d, and it is also granted. Both cross‐complaints seek indemnity as to Plaintiffs' claims, and both indemnity claims rest entirely on the assumption (perhaps arguendo) that Safeguard may have tort liability directly to plaintiffs. However, as discussed further below, Safeguard owes no tort duty to third parties for injuries sustained on the subject property. This forecloses Safeguard's liability on the cross‐complaints too. Standard CONTRA COS...

Excerpt: ...t calling for fixed interest payments, plus payments into an escrow account intended (the Court gathers) to 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 t...

Excerpt: ...ct not to do so, ManorCare's answer to the remaining causes of action will be due two weeks after that date. Plaintiff Counsel's Failure to Meet and Confer In its ruling of March 8, 2019 (the time of the previous demurrer), the Court expressly criticized plaintiffs' counsel for failing to engage in the required meet‐and‐confer with defendant's counsel, and expressly warned that any repetition of that failure would result in consequences, incl...