Excerpt: .... Ford Motor Co., 119 Cal.App.3d 757, 826‐828, overruled on other grounds in Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 37 n.6.) A limited statutory exception is set forth in Civil Code § 3294(d), as follows: “Damages may be recovered pursuant to this section in an action pursuant to Chapter 4 (commencing with Section 377.10) of Title 3 of Part 2 of the Code of Civil Procedure based upon a death which resulted from a homicide for which t...

Excerpt: ...gument lacks merit. The Court interprets § 435.5 as applying only when a given party brings two successive motions to strike. RJNs. Argabright's request for judicial notice of documents filed in other actions is granted. The Gannons' request for judicial notice of Argabright's answer in this action is denied as superfluous; the pleadings in this action are before the Court as a matter of course. However, the Court appreciates the courtesy of pro...

Excerpt: ...a previous lawsuit on the same subject matter. In that case the Court ordered the Gannons to provide specified discovery, concluding that they had waived objections by failing to respond timely. The Court commented: The Court was informed at a CMC earlier this week that plaintiffs served responses late last week, including some objections. If the scope or merit of the objections were at issue, that would require a new discovery motion; indeed, it...

Excerpt: ...n, which the Court denied. (The Court has received no Order After Hearing thereon, however.) That result is not necessarily dispositive of this demurrer, however, because the denial rested in part on matters shown in the evidence on the motion, but not pleaded in the complaint – notably the point that plaintiff was in arrears in her payments even before the 2010 transfer of the HELOC (and cessation of sending monthly notices). The Court rejects...

Excerpt: ...ainst a long list of its subcontractors and suppliers to this action – some, the Court determined, with good reason; but others, including Villara, not so. The only dispute between Thompson and Villara themselves is Villara's claim to collect what it says is a substantial sum Thompson owes it. The Court, after lengthy inquiry, determined that that claim has no factual connection to the Thompson‐LTC dispute, except that LTC is withholding the ...

Excerpt: ...tore located at 1340 North Main Street. Defendant Jennifer Meza was the store manager and plaintiff's supervisor. Defendant Nick Botsford was Plaintiff's supervisor and district manager. Plaintiff alleges defendants were aware of his disabilities at all relevant times. Plaintiff alleges that at various times throughout his employment, Defendants denied reasonable accommodations. One of the accommodations requested by plaintiff's healthcare provid...

Excerpt: ...as to the parallel demurrer of the Mt. Diablo USD. Any amended complaint shall be filed and served on or before January 10, 2019. If plaintiff elects not to amend, defendants' time to answer the remaining parts of the case will run from then. If plaintiff contests the tentative to seek leave to amend claims as to which leave is denied, she should appear at the hearing prepared to discuss in detail how she proposes to amend and how the proposed am...

Excerpt: ...heir answers by January 3, 2020. Defendants Stroud Development and Alexander Stroud filed nearly identical demurrers to the FAC and filed a joint reply. The Court's ruling below applies equally to the two demurrers. Meet and confer process Plaintiff argues that the meet and confer process was insufficient because Alexander Stroud (acting as a self‐represented party) did not call Plaintiff's attorney, but only sent an email. Plaintiff is correct...

Excerpt: ... the tentative to seek leave to amend, he should come to the hearing prepared to explain how he proposes to amend as against the Police Defendants and why it will be sufficient. The FAC arises from two incidents occurring on August 7, 2018. Only the second incident, however, has to do with the Police Defendants. Plaintiff alleges that defendant Torchia, a Tri Delta bus driver, “called the Brentwood Police and falsely reported that [plaintiff] w...

Excerpt: ...ht on the questions previously posed. The Court may not have been as clear as it intended in one respect, however: It was inviting the parties to identify and elaborate on evidence already filed, arguments already made, and undisputed/disputed facts already cited, in the original motion papers. It did not intend to invite either side to expand its arguments and factual assertions to include new matter – only to better explain what had already b...

Excerpt: ... third parties and others that Jane Doe is a slut, meaning unchaste. These facts are sufficient to support a claim for punitive damages against defendant Russell for her personal actions even in the absence of her being responsible for the actions of defendant Cesar Gracie. The court rules as follows regarding the demurrers of defendant Russell: 12. TIME: 9:00 CASE#: MSC19‐01160 CASE NAME: DOE VS. GRACIE HEARING ON DEMURRER TO COMPLAINT FILED B...

Excerpt: ...that defendant realtors were (perhaps) colluding with a third‐party buyer, Crowder, to arrange to profit at their client's expense by putting the property into foreclosure, buying it out, and selling it at a substantial profit. But that theory is found in the present complaint only between the lines, with insufficient allegations as to (for example) whether Crowder would have been willing to buy the property before foreclosure, and what was or ...

Excerpt: ...ise overruled. Plaintiffs may file and serve a second amended complaint by December 20, amending as to the common count and/or as to any claim based on the $43,000 loan. If they elect not to do so, defendants' time to answer the remaining portions of the FAC will run from that date. This is a family dispute over a common residence. Plaintiffs are the parents of defendant Cleo Madriaga; Ryan is Cleo's husband. Plaintiffs purchased a large house in...

Excerpt: ...siness premises at 3100 Delta Fair Boulevard, Antioch. TRC is a commercial tenant of Landlords at those premises, operating a dialysis center there. This case originated with a trip and fall accident in the parking area of the premises. Plaintiff Sandra Roman, having received treatment at TRC, was being escorted from the TRC facility by a paratransit driver from Acclaim Mobility, LLC to a waiting vehicle. The Acclaim driver stopped to chat with a...

Excerpt: ...nts had business relationships in the Real Estate and Mortgage Industry, and worked with one another in the construction, rehabilitation, and sales of properties in the Greater Bay Area. Mancheno and Defendant Brian Baniqued were partners and co‐owners of real estate franchise entitled Century 21 Pinnacle. Plaintiff alleged in the original complaint that defendants conspired to provide falsified/ forged/manipulated documents and false testimony...

Excerpt: ...T MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/15/19 ‐ 11 ‐ This is a personal injury case arising out of an automobile accident. Plaintiff alleges that he was struck by a vehicle being operated by Defendant Jarrard while walking. Complaint at ¶ 14. He alleges that the subject sidewalk area where he was struck was owned and controlled by Defendant County. Id. at ¶¶ 15, 16. The Complaint alleges causes of action for (1) negligence, ...

Excerpt: ...answer to the complaint. (In its previous ruling the Court said it couldn't find one in the file, but the electronic docket shows it was filed and it has since been placed in the Court's file.) A defendant who has already answered is not then allowed to demur. This is admittedly only a matter of labeling. An MJOP serves essentially the same purpose as a demurrer, namely to test the legal sufficiency of the complaint's allegations; and it may be f...

Excerpt: ...ckground Plaintiff has second or third mortgage interests in multiple properties owned by defendant real estate developer Kevin Hampton. (Complaint, 8:16‐17.) In 2004, plaintiff became inspired by Hampton, and therefore began investing with him, due to Hampton's strong vision to redevelop properties in Richmond and surrounding areas in a booming real estate market. (Complaint, 2:18‐23.) Plaintiff successfully received repayments from Hampton ...

Excerpt: ...red per CRC 3.1110(f) and Local Rule 3.42. In the future, all filings must be properly tabbed. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/08/19 ‐ 11 ‐ Standing Schmier asserts that he is a holder of deeds of trust on 728 Laurel Drive and 3269 Judith Lane. (Schmier RJN 3‐6.) Code of Civil Procedure § 405.30 allows a “nonparty with an interest in the real property affected” by a lis pendens to “app...

Excerpt: ...but not in the body of the Complaint), (4) negligence, and (5) unfair business practices (violation of Bus. & Prof. Code § 17200 et seq.). Plaintiff's present motion, however, does not invoke either of the latter two causes of action as support for a preliminary injunction, and their substantive content is essentially derivative of the claims plaintiff makes for breach of contract and § 2937. Legal Standard The ruling on an application for prel...

Excerpt: ...to partition real property. Plaintiffs, the Nelsons, were the two‐thirds owners of the property; defendant Riley was the one‐third owner. In October 2018 the Court (Judge Fenstermacher) entered an order granting plaintiffs' motion to partition the property by private sale. The order determined the parties' shares in the property, and directed that a referee would be appointed to conduct the sale. The referee was appointed by subsequent order....

Excerpt: ...to dismissal as against this defendant. The complaint, filed in pro per, is quite cursory, alleging in highly conclusory terms that the two defendants are engaged in debt collection and have committed various violations of the Federal Debt Collection Practices Act and California Debt Collection Practices Act. (Actually, the complaint is studiously informative as to whether there are two defendants, or just one operating under two names – a poin...

Excerpt: ... evidence, if any, they envision being presented at the eventual trial of this case. Certainly if there were allegations along the lines of intentional racial discrimination or the like, it would be hard to see how the City could bar discovery into the potentially discriminatory motives or actions of the people involved. As the City points out, however, no claim of that kind is pleaded. So what evidence, if any, does the City itself plan to proff...

Excerpt: ...e defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract. (b) The motion shall be made on the grou...

Excerpt: ... objections on behalf of Centrox and Viera, even when those objections were made – and even less so now that Black Diamond has itself agreed to produce the same range of documents.) The Court agrees with the recommendation of the Discovery Facilitator that there is potential discoverable relevance to the documents at issue. A key factual issue in the case will be whether Black Diamond was aware, at the time of this project, that its subcontract...

Excerpt: ...ed action No. C17‐00838, Judge Austin overruled Freshko's demurrer to Mr. Olivares' First Amended Complaint. Judge Austin held that Mr. Olivares had adequately pleaded a delayed discovery theory that could support tolling the statute of limitations. Substantially the same allegations cited by Judge Austin in support of his ruling are set forth in the Amended Cross‐Complaint filed in this action on December 17, 2018. The Court will not reconsi...

Excerpt: ...e defenses set forth in the answer”. Code of Civil Procedure § 438(c)(2)(B). Plaintiff's motion purports to be to the entire answer, asking that it be stricken. But part of the answer is defendant's general denial. Plaintiff does not purport to show, via matters deemed admitted or otherwise, that the general denial is unmeritorious. To do that, he would have to show that every element of every cause of action in plaintiff's first amended compl...

Excerpt: ...intrusion, and neighbors, claiming management has failed to remedy these problems despite numerous requests and complaints by plaintiff. (FAC ¶ 14.) Garcia is the on‐site manager for Bayo Vista. Defendant's demurrer is based on her asserted immunity under Government Code § 820.2, which states, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omissio...

Excerpt: ...rwise overruled. Wong may file and serve his second amended cross‐complaint within 28 days. If he chooses not to amend, the answer to the remaining portion of the FAXC will be due within 28 days after that deadline. Futility All but one of Wong's causes of action are asserted as derivative claims on behalf of Brachium, Inc. (Cross‐defendants argue that none of these causes of action can be asserted by Wong personally, and he concedes they're ...

Excerpt: ...he implied covenant of good faith and fair dealing; (3) rescission; (4) lost profits; and (5) elder abuse. For the following reasons, the demurrer is overruled. Cross‐Defendants must file and serve their answer within 28 days. Request for Judicial Notice Cross‐Defendants request Judicial Notice of the Arthur Brandt Declaration in support of Diablo Contractors' Opposition to Fidelity's Application for Right to Attach Order. The Court need not ...

Excerpt: ...or anticipatory breach of the succession contract. He accordingly argues that the succession contract dispute must be tried to a jury as a breach‐of‐contract damages claim. Having read the briefs and cases cited, however, the Court must agree with defendant that no such damages claim will lie prior to the death of the alleged promisor. Plaintiff's only remedies available for the asserted anticipatory breach are entirely equitable, not involvi...

Excerpt: ... weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) The trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute. “This determination involves two considerations: (1) whether there is a valid agreement...

Excerpt: ...laintiff to place her foot on the most appropriate piece of equipment for the exercise, namely an exercise block or step. Instead (plaintiff's evidence contends), Agredano had plaintiff rest her foot on the outer surface of a treadmill, an inappropriate surface for a number of reasons. (Defendants do not concede that this was negligent, but their present motion effectively assumes that a jury could so find.) Plaintiff slipped and injured herself....

Excerpt: ...prises. Blake is alleging that Jesse promised that Blake would inherit family business, but Jesse has changed his mind. Blake claims there is an enforceable contract, and Jesse disagrees. In addition, Blake is also suing because Blake's employment at the car wash was terminated. Contract Claims (C/A 1, 2, 8, 9, 10, 11, 12 and 13) Defendants seek to dispose of the following contract claims: (1) Breach of Contract, (2) Breach of Implied Covenant of...

Excerpt: ...efendants (Bert Dunken and Jason Weeks). “California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable.” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 146 (citation omitted).) The party opposing “bears the ‘substantial' burden of proving why it should not be enforced.” (Id. at 147.) The law governing this motion is concisely an...

Excerpt: ...ous analysis need not be repeated. In particular, there still remains (1) no basis for asserting that USS‐Posco had any special relationship with plaintiff, such that it could be liable for mere nonfeasance; and (2) no basis for blaming USS‐Posco, as opposed to defendant Belcher, for having started the fire. What is new this time around is a slight shift in the focus of plaintiff's theory of liability, as expressed in its opposition brief. Pl...

Excerpt: ...ing under that issue are essentially the same ones as those raised in the demurrer, and they do not stand thoroughly briefed at present – especially on the plaintiff side. As the Court will explain, it has some questions about plaintiff's case, but wants to hear more about plaintiff's counter‐ arguments. However, the Court does have some concern about the possibility that the corporate defendant's assets may be dispersed beyond retrieval betw...

Excerpt: ...ENT: 12 HEARING DATE: 06/28/19 ‐ 5 ‐ before July 26, 2019. If plaintiffs elect not to amend, the Sheehys' time to answer the remaining parts of the FAC will run from that date. The FAC's Allegations This case concerns defendants' alleged attempts to economically harm plaintiffs' equestrian facility in Blackhawk. Defendant Pestana worked as a professional equestrian trainer at another facility. Defendants Daniel and Marcia Sheehy leased and ra...

Excerpt: ...a neighboring property (the Wen parties, who have since settled out). The plaintiffs are Jeffrey and Shannon Jones, both acting as trustees of a family trust. Shannon Jones, who is an attorney, is acting as the attorney of record for both plaintiffs. The Wens filed a cross‐complaint against the Hiteses, former owners of the 5945 Bruce property (from whom the Joneses bought it). According to the Joneses, in the course of discovery they learned t...

Excerpt: ...he case, however, is that plaintiff Nace was never either the owner of the property, or the debtor on the mortgage, or the person suffering foreclosure. That person was Laura Rogers. Plaintiff alleges that he is a tenant of Rogers on part of the property. (Defendants assert that they can disprove that allegation via judicial notice. The unlawful detainer CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/21/19 ‐ 6 ...

Excerpt: ...f action because it is mooted by the ruling on the first CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/14/19 ‐ 5 ‐ cause of action. If plaintiff is willing to dismiss the second cause of action, therefore, it will be in a position to submit an appropriate form of judgment (submitting it to defendant's counsel for approval as to form). RJN. Plaintiff's request for judicial notice is denied. The pleadings are ...

Excerpt: ...able trial. The Court's intention is to convene a bench trial to try all declaratory‐relief claims and equitable issues in the case, probably with post‐trial briefing to follow the presentation of evidence. This will include all issues as to the physical extent and non‐physical aspects (e.g., parking rights) of all real property involved in the case, including easements. This includes, among other things, whether the 2003 grant deed is vali...

Excerpt: ...—“For punitive damages,” SAC 16: 4. Motion granted without leave to amend. Punitive damages are governed by Civil Code § 3294, which specifically requires the Plaintiff to plead and prove by clear and convincing evidence that a defendant has been CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/14/19 ‐ 7 ‐ guilty of oppression, fraud, or malice. “In order to survive a motion to strike an allegation of ...

Excerpt: ...re able to file a reply responding to the opposition. The Court will consider the late filed opposition, but if plaintiff files late papers in the future they may be stricken or disregarded. In a nutshell: The Court sustained defendants' demurrer to the original complaint, but granted leave to amend, commenting on what kinds of allegations would be necessary to avoid defeat at the pleadings stage. Plaintiff has now made those allegations. Defenda...

Excerpt: ...ed into any contract that obligates SBI to join a general reference. That means, plainly enough, that SBI cannot be obliged to do so. And second, it appears that SBI's legal involvement is simply its own collection effort. No one has asserted that SBI's materials are in any way at fault in any of the issues or problems CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/31/19 ‐ 13 ‐ claimed to exist with the LTC p...

Excerpt: ...with Thompson is granted. The parties are to meet and confer as to selection of a referee, as well as to the terms of the general reference and the manner of sharing the referee's fees. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/31/19 ‐ 8 ‐ 3. LTC moves to sever its bilateral dispute with Thompson from the disputes between Thompson and its various subcontractors. That motion is denied without prejudice. A...

Excerpt: ...rust, however, it is hoped that the present pair of mirror‐image motions are the final scene of the final act of this drama. The Court entered judgment as between the Kosis and the Trust on May 1, 2019. By agreement among these parties (and with the express or tacit consent of the Bankruptcy Court), there remains only one issue to be decided: Who is the “prevailing party” in the Kosi/Trust portion of these cases, for purposes of awarding at...

Excerpt: ...tutions Code § 15657. Likewise, the Court's ruling on the demurrer as to Health & Safety Code § 1430(b) resolves the question of whether plaintiff properly states a claim for damages, attorney's fees, and injunctive relief thereunder. Treble damages are available where certain actions are taken against senior citizens. (Civ. Code § 3345.) Factors include whether the defendant knew the conduct was directed to a senior citizen, and whether a sen...

Excerpt: ...change in the law. Even if the motion were jurisdictionally proper, it raises no valid grounds. Plaintiffs' principal argument is that while the Court held that fees must be disallowed because of the restrictions of Government Code § 25845(c), the motion is governed instead by subdivision (b) of that section. No such argument was made by their then‐lawyer on their original motion, and for good reason. Subdivision (b) allows an award to the Cou...

Excerpt: ...ed the TRO, and entered an order to show cause why a preliminary injunction should not be granted, calendared for April 12, 2019. The parties stipulated to continue the hearing date, presumably so that the bank could consider plaintiffs' then‐pending modification application. Plaintiffs' motion for a preliminary injunction is continued to June 21, 2019 at 9:00 a.m. The TRO remains in place. Either side may file and serve appropriate supplementa...

Excerpt: ...tigation reveal new facts supporting such a claim. Plaintiff seeks punitive damages in her negligence cause of action, in which she alleges that defendants negligently failed to account for approximately $ 75,000 in mortgage loan payments. (Complaint ¶ 44 and ¶ 50.) Plaintiff has not alleged an intentional tort cause of action, and plaintiff's negligent accounting theory does not support a claim for punitive damages. More specifically:  Plai...

Excerpt: ...Hence, plaintiff suggests, the District should not be entitled to costs as though it had actually won the lawsuit. There are a number of overlapping flaws in the suggestion. First, the contention is not true to the statute. “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code of Civil Procedure § 1032(b).) A “prevailing party” includes...

Excerpt: ... participate. As was discussed at the recent CMC, although the complaint identifies the Estate as the plaintiff, there is neither the identification of any actual person who is the representative of the Estate, nor any probate order designating anyone as such representative. There also is no allegation of any survivors purporting to bring a wrongful death action on their own behalfs. The Court gathers that the person(s) who arranged for counsel t...

Excerpt: ...sed 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, defendant served a notice of inspection of the vehicle. After some initial scheduling discussion, plaintiff's counsel informed defendant's counsel in September 2018 that plaintiff had sold the car and thus couldn't produce ...

Excerpt: ...cation that (1) Plaintiff does not have a claim for dangerous condition of public property, or (2) BART has immunity. The Court finds that BART has not shifted its burden on several issues, and on the remaining issues there are triable issues of material fact. Indeed, while BART presents more or less the same substance in a variety of different wrapping papers, it's the same substance under different section headings. Dangerous Condition A claim ...

Excerpt: ... also sought orders compelling responses to interrogatories and document requests. That part of these motions was put over to the present date, with an invitation for each moving defendant to file and serve a supplemental statement explaining which (if any) of these other discovery responses are still genuinely needed, in light of the order deeming matters admitted. Incense Specialties has filed the supplemental statement invited in the Court's r...

Excerpt: ...of no consequence to this demurrer, as the map is readily available elsewhere in the file and there is no dispute about which map was adopted by the City Council and is now challenged. The Court, however, invites plaintiffs to file a “corrected first amended complaint” attaching the map (and otherwise making no changes). Plaintiffs' FAC challenges the district map drawn by the City Council for future City Council elections. The City demurs to...

Excerpt: ... creating and overseeing maintenance of the dangerous condition, and the City of Richmond, for maintaining it. Both defendants move for summary CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/03/19 ‐ 2 ‐ judgment. The State contends that summary judgment must be granted because (1) plaintiff cannot prove the island constituted a dangerous condition of public property; (2) the State has design immunity; and (3)...

Excerpt: ...would be, if the Court were to conclude that Thompson is in a position to join the subcontractors in the general reference. (Counsel for the subcontractors are not required to appear at this hearing, if they do not wish to be heard. But anyone who does wish to be heard on the above topics, would do well to speak up now. If the Court orders a general reference on the basis of its conclusion that the subcontractors can be joined into a general refe...

Excerpt: ...this defendant. The remainder of the complaint makes it clear that plaintiffs were much more conversant than this defendant with the alleged defects in the premises. Plaintiffs propose to amend to assert what amounts to a promissory fraud claim based on defendant's recent alleged assurances of repairs. That's more a wholly new claim than an amendment of the old one, but the Court will allow it to be asserted. The Court points out that the require...

Excerpt: ...ntively, as with the IIED tort, the Court cannot see that plaintiff is alleging anything sufficient here to rise to the level of outrageousness that would be required to state a viable claim for punitive damages. As an additional point, defendant argues that Plaintiff cannot get punitive damages because Defendant is a corporate entity and the allegations are insufficient as to it. “When the defendant is a corporation, ‘[a]n award of punitive ...

Excerpt: ... v. County of L.A. (1989) 207 Cal.App.3d 946, 950‐51.) Facts On March 26, 2018 a journalist made a California Public Records Act to the Contra Costa Community College District for records regarding one of the District's trustees, Timothy Farley. The reason for the request was apparently that the reporter believed a harassment complaint had been made against Farley concerning an incident that had occurred several years earlier. On April 2, 2018 ...

Excerpt: ... date of February 8, 2019, at 9:00 a.m. On the preceding afternoon the Court posted its tentative ruling denying the petition to compel on multiple grounds (including the res judicata effect of a prior unsuccessful petition). Petitioners did not contest the tentative ruling. Instead, they filed a voluntary dismissal of the action without prejudice, which was stamped filed as of 8:17 a.m. on the morning of the 8th, prior to the 9:00 hearing time. ...

Excerpt: ...s demurrable because it is not an independent cause of action. As for elder abuse: Both sides brief this issue as though it were being presented for the first time. In fact, the Court (Department 15) previously undertook a lengthy and detailed analysis of the requirements for pleading an elder abuse claim based on negligent caretaking, and concluded that the original complaint did not allege a sufficient claim. That analysis included consideratio...

Excerpt: ...h evidentiary matters. There is very little actual evidence presented on this motion, and no testimony at all from either side. Robinson complains that the “statement of relevant facts” found in LBG's opposition brief is not evidence but only assertions of counsel, which is quite true. But Robinson's own motion papers are likewise unsupported by anything like a declaration or other detailed evidence. His opening brief supports its factual ass...

Excerpt: ... Court rules on procedural and evidentiary issues as follows.  Summary Adjudication. The District purports to seek summary adjudication as alternative relief. However, the District's papers are not organized with reference to individual causes of action as is required when seeking such relief. (CRC 3.1350(b) and (d).) Further, the District's attempt to seek summary adjudication is undercut by the District's own argument that the Complaint's th...

Excerpt: ...o weeks after that date. The first cause of action alleges that Wireless Buybacks failed to defend John Snyder, and later plaintiff as his successor, in the Sprint Action. The Court is now in a better position to assess this argument, after defendants belatedly provided a copy of the original Sprint complaint (although the Court notes that neither side has provided Sprint's first amended complaint). The demurrer to this cause of action is overrul...

Excerpt: ...ion, and injunctive relief. There are a number of important flaws in these causes of action, both individually and collectively – starting with plaintiff's entire disregard for the rules of pleading claims against public entities, and for the statutory limits on the availability of such claims. The Court need not address each cause of action or each defect separately, however, for there is a single dispositive principle that shows not only that...

Excerpt: ... then threw out on anti‐SLAPP grounds. Defendant Shane, seeking the best way to resolve this impasse, proposes that the Court should appoint its own expert surveyor under Evidence Code § 730. Each side has already obtained a professional boundary survey, but the two surveys reach different results. Shane posits this as a “tie‐breaker” survey. The problem is that a neutral survey is not certain to resolve anything. Indeed, frankly, it is ...

Excerpt: ...y incorrect. The notice of motion does not state each issue on which summary adjudication was sought as required by CRC 3.1350(b). In addition, the issues identified in the separate statement do not appear to be issues that are appropriate for summary adjudication. (CCP 437c(f)(1) [“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or ...

Excerpt: ...her method such as e‐mail is agreed). Defendant's demurrer is put back on calendar for April 19, 2019, at 9:00 a.m. Plaintiffs' opposition is due on April 5. Defendant's reply, if any, is due on April 12. Plaintiffs file what they caption as a motion for reconsideration under Code of Civil Procedure § 1008. Considered as such, it cannot be granted because of the intervening entry of final judgment. E.g., Safeco Ins. Co. v. Architectural Facade...

Excerpt: ...or the Court's ruling on the merits. Defendant attaches certain bankruptcy documents in support of two propositions: (1) that plaintiffs and defendants have agreed to the figure for the loan balance as of the date of sale, and; (2) that certain issues were litigated in bankruptcy court in December 2018 and January 2019, and should not be relitigated here. The first proposition is moot, because plaintiffs again stipulate to the loan balance in the...

Excerpt: ...raud‐based counts in the original complaint, holding that a claim of fraud in connection with a medical malpractice case is legally viable only if it is alleged that the defendants actually knew of the falsity of the statements they allegedly made. The Court allowed leave to amend to allow plaintiff to make that allegation, if he could. He has now done so, alleging expressly that “Defendant Toma knew the ‐ 8 ‐ representations were false w...

Excerpt: ... provide any tabs for its exhibits, in clear violation of CRC 3.1110(f) and Local Rule 3.42. Plaintiff, on the other hand, provided so many tabs for exhibits and CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 03/08/19 ‐ 3 ‐ exhibits to the exhibits that the tabs were of limited usefulness. For example, there are four tabs labeled “Exhibit A”. The Relation of the Parties, and Substance of the Lawsuit Plaintif...

Excerpt: ...t doubt on that account but provides no admissible evidence.) Plaintiff argues that defendants did not act diligently in seeking relief. At first cut, though, defendants' explanation suggests that the delay in filing this motion was likewise attributable to the same asserted problems with Mr. Judson. The motion, however, is not accompanied by a proposed answer or other response, as required by the statute. “Application for this relief shall be ...

Excerpt: ...d he wants them to be part of the record in this case, he must immediately serve and file them. In these lodged papers, plaintiff complains that the Opposition was not served on him by email or fax and that he wants additional time. However, the file does not reflect any order requiring service by email or fax. Therefore, under Code of Civil Procedure § 1005(c), service by overnight delivery was sufficient. Furthermore, Code of Civil Procedure �...

Excerpt: ...rious defects. The third page of the notice of motion, presumably containing a statement of the relief requested and the signature block of plaintiffs' counsel, is missing. The opening memorandum is 20 pages long, without leave of court and without a table of authorities. (CRC 3.1113(d) and (f).) The deposition excerpts submitted with the reply papers are set out within the text of counsel's declaration, rather than in the manner prescribed by th...

Excerpt: ...ed not to disclose or retain any social media content not directly relevant to whether or not plaintiffs were engaged in BHO manufacturing. Seterus must refrain from reviewing any particular content any further than is reasonably required to ascertain whether it is responsive. This case arises from a tragic explosion occurring during plaintiffs' uncle's manufacture of butane honey oil, in which plaintiffs were badly burned. They assert premises l...

Excerpt: ...s detailed at length in the Court of Appeal's first ruling, of August 23, 2017. To make a long story short, in 2007 the County (specifically the Department of Conservation & Development, Building Inspection Division – hereinafter DCD) issued two Notices To Comply to petitioner homeowners, asserting that there were permitting problems with their use and occupancy of two adjoining properties in Oakley. The DCD never proceeded with any administrat...

Excerpt: ... Amended Complaint by April 2, 2019. First Cause of Action (Civil Code §§ 2923.5, 2923.55). Leaving aside the question of which of these two statutes applies (one being on the books in 2018, the other in 2019), the only violation alleged is that Select did not give plaintiff notice that he could request various documents. The allegation of harm to plaintiff resulting from this lack of notice is in ¶ 16(a)(1): “The failure to provide Plaintif...

Excerpt: ...ndant company (Garaventa Enterprises, or GE), but concerned about his position there. He asked GE's general counsel, Bonnifield, who told him that he was an at‐will employee. Colvis then met with attorneys from the Downey Brand firm, his present litigation counsel. At issue on this motion is the e‐mail traffic from that 2015 consultation, which occurred between Downey Brand attorneys and Colvis's work e‐mail address at GE. In 2018 GE and it...

Excerpt: ...or June 1, and the order after hearing was filed on June 29. The Court noted then that plaintiffs and their then‐counsel, Mr. Boasberg, had entirely ceased participating in the case, including their failures to respond to discovery, to obey several orders compelling discovery responses, to pay court‐ ordered sanctions, and to oppose the terminating‐sanctions motion. It later transpired that Boasberg was suspended, and then disbarred. That w...

Excerpt: ... a formal stay of the case because of Fifth Amendment concerns. They note that Mr. Martin has been charged with a felony arising from the same alleged facts. They further note that while Ms. Martin has not been charged, the complaint accuses her of potentially criminal acts, with which she could still be charged. This kind of problem is usually handled at Case Management Conferences rather than by formal motion. Plaintiffs have not opposed the mo...

Excerpt: ...entify each cause of action or issue on which they seek summary adjudication as required by CRC 3.1350(d). The separate statement does not follow the format requirements set forth in CRC 3.1350(h). In addition, the separate statement does not cite to specific evidence following each fact. Instead, each fact is followed by citations to the entire declaration of Athan Magganas and the complaint. No specific paragraphs in the declaration or complain...

Excerpt: ... filings. (See CRC 3.1110(f).) The numerous exhibits to the Complaint, the Ex Parte Application, and the Reply are all untabbed. This has caused the Court's staff considerable inconvenience.  RJN. Defendants' unopposed request for judicial notice of recorded documents is granted.  Reply. The Court has exercised its discretion to consider plaintiff's reply papers, despite their being filed one court day late. Plaintiff is directed to comply ...

Excerpt: ...hs 6‐8, 13, 129, 150, 152, and 153, because they contain improper allegations against these individuals. That portion of the motion is denied, because these allegations remain proper to support claims against defendant on an agency theory. 3. TIME: 9:00 CASE#: MSC16‐01005 CASE NAME: BRENNON B. VS. WCCUSD HEARING ON DEMURRER TO 2nd Amended COMPLAINT FILED BY WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT, et al. * TENTATIVE RULING: * Defendant scho...

Excerpt: ... First Cause of Action for violations of Civil Code § 2923.6. The version of the statute in effect during 2018, when the alleged violations took place, did not prohibit dual tracking. Further, plaintiffs have failed to show a “material” HBOR violation because they have failed to offer evidence that they qualified for a loan modification, and that an appeal from the denial of their application for a loan modification would have been successfu...

Excerpt: ... ‐ recover all her post‐offer costs, and her reasonable expert witness costs incurred after the offer. The Court rejects plaintiff's assertion that the § 998 offer was not made in good faith. Plaintiff attempts no serious factual showing that the expert witness fees incurred were unreasonable. This was an expert‐intensive case. Plaintiff made a six‐figure § 998 offer of her own, and asked the jury to award a seven‐figure verdict. Plai...

Excerpt: ...so named as a defendant. Several of the complaint's causes of action are asserted only against the employee defendants (Demeter, Milton, and Herrero), and those causes of action have not been demurred to. With one exception, the Court sustains the employee defendants' demurrers to all challenged causes of action, with leave to amend, for the same reasons stated on Guaranteed's demurrer (Line 6). The exception is the 11th cause of action, for “i...

Excerpt: ... they have seen in the settlement agreement has affected their Opposition. On or before March 1, 2019 the moving parties may file and serve a Supplemental Reply Brief responding to the Supplemental Opposition Brief. None of the supplemental briefs may exceed three pages. This case concerns an alleged failure to disclose problems affecting a house in Alamo that plaintiff purchased. Plaintiff filed suit on August 31, 2018, and a first amended compl...

Excerpt: ...rty at issue. CDC sent an e‐mail giving notice of its intention to contest the tentative, raising several issues addressed in the briefs and the tentative. (That's not a criticism of CDC; that's what contesting a tentative is for.) At the actual hearing on January 18, however, CDC chose not to go into any of the points mentioned in its e‐mail. Instead, it raised an argument it concededly had not mentioned at all in CONTRA COSTA SUPERIOR COURT...

Excerpt: ...tice are unopposed and granted. Defendant must file and serve an answer within 30 days. Plaintiff argues that personal jurisdiction exists for two reasons. First, defendant appeared at a case management conference and a restraining order hearing. (Code of Civil Procedure § 410.50(a) [general appearance is equivalent to personal service].) Second, defendant satisfies the “minimum contacts” required for California jurisdiction based on purpose...

Excerpt: ...be brought to strike any “irrelevant, false, or improper matter inserted in any pleading”. (Code of Civil Procedure § 436.) When ruling on a motion to strike, a court applies the same rules as applicable to a demurrer: The court may consider only matters shown on the face of the complaint or of which it may take judicial notice. (Code of Civil Procedure § 437(a); see Circle Star Center Associates, L.P. v. Liberate Technologies (2007) 147 Ca...

Excerpt: ... ‘aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal merit.' [Citations.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.) Background On August 29, 2018, Plaintiff Paul Hantke as trustee of the Alex W. Hantke Survivor's Trust (“Hantke”) filed a lawsuit against R...

Excerpt: ...s are directed to tab their exhibits in all future filings. (See CRC 3.1110(f).) Respondent's RJN. Respondent's request for judicial notice is granted. Res Judicata. The present petition is barred by res judicata. (See petitioners' Exhibit 2 [8‐1‐18 order denying arbitration in Case No. N18‐0674].) Prior orders denying arbitration must generally be given res judicata effect. (See Lounge‐A‐Round v. GCM Mills, Inc. (1980) 109 Cal.App.3d 1...

Excerpt: ...e § 338(a).) It requires the defendant to have “engaged in a pattern of conduct the intent of which was to follow, alarm, place under surveillance, or harass the plaintiff.” (Civ. Code § 1708.7(a)(1).) To establish this element, the plaintiff “shall be required to support his or her allegations with independent corroborating evidence.” (Id.) Plaintiff pleads actions in 2016 and 2017 that, if proven, would support a stalking claim within...

Excerpt: ...vailing on the First Cause of Action for violations of Civil Code § 2923.6. The version of the statute in effect during 2018, when the alleged violations took place, did not prohibit dual tracking. Further, plaintiffs have failed to show a “material” HBOR violation because they have failed to offer evidence that they qualified for a loan modification, and that an appeal from the denial of their application for a loan modification would have ...

Excerpt: ...he forum for the original evidentiary hearing, that would properly qualify as new and different facts under § 1008 only if there were a showing why this fact could CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPARTMENT HEARING DATE: 02/01/19 ‐ 7 ‐ not have been adduced at the evidentiary hearing. But as it stands, the newly adduced fact is not properly before the Court at all, because it would not show what DMV would have ne...

Excerpt: ... negotiate toward a possible resolution. This time there has been no stipulation. Neither, however, has defendant filed any opposition to the motion for preliminary injunction. Repeated calls to the attorneys have given no better information. Plaintiffs' counsel has stated simply that the matter is going forward, and defendant's counsel has not responded to messages. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPARTMENT HEARING ...

Excerpt: ...ts have not filed an answer as to the other causes of action, they shall file and serve such answer on or before February 15, 2019. This case arises out of plaintiff's claim that defendants rented her uninhabitable premises at 1300 Roosevelt Ave., #420, Richmond, an apartment complex known as The Hacienda. General Rules Applicable to Claims against Public Entities California public entities are liable only as provided by statute. (Eastburn v. Reg...