Excerpt: ...rict, sues to quiet title and moves for a summary judgment that the entire Easement is extinguished. Defendant, BNSF, raises several arguments why factual issues remain or why the District is not entitled to such a judgment as a matter of law. The District's motion is granted. The Court concludes that the District is correct in its construction of the parties' contract language as to what event terminates the easement in question. But even if BNS...

Excerpt: ...pport of this cause of action. Plaintiffs own the property located at 5945 Bruce Drive in Danville, apparently a semi‐rural property with a barn and horses on it, having purchased it in May 2016. (FAC ¶ 11.) Their property was damaged when earth from the property uphill from them at 5950 Bruce Drive slid onto their land in February 2017 (the “East Slide”). (¶ 17.) There was a second slide at the end of February 2017 (the “South Slide”...

Excerpt: ... construction project to alleviate traffic congestion in the City of San Pablo. (Complaint ¶6.) CCTA and EBMUD disputed, and currently dispute, who would pay for these relocation efforts. (Complaint, Exhibit A, and ¶¶11, 19.) In 2013, before any of the work was performed, EBMUD and CCTA entered into an agreement that the work would be performed by EBMUD and CCTA would pay EBMUD's invoices for it, but both parties would retain all rights and wo...

Excerpt: ...plaintiff Denise Walker; $7,500 to Cleve Walker; and $500 to Lindsey Walker. (For clarity, and meaning no disrespect, the Court will use first names.) Each side has filed a memorandum of costs – plaintiffs on the basis that they prevailed at trial, and defendants on the basis that they had made a § 998 offer for less than plaintiffs ended up winning at trial. Plaintiffs move to strike defendants' memorandum of costs on the ground that defendan...

Excerpt: ...t be better for all concerned, though, to put this over a short period so that both sides can address the questions in writing. If the attorneys prefer, they can save themselves an appearance tomorrow by e‐mailing their agreement to a further hearing date and briefing schedule. The Court's questions are numbered and indented. The Scope of the Claims in the FAC. 1. As the Court understands it, all claims made in the FAC against PacFin and/or Boo...

Excerpt: ...f Civil Code § 2923.6 by failing to make a determination on Britton's completed package for loan modification; and (2) for violation of Civil Code § 2923.7 in that no single point of contact was provided to Britton after CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/11/19 ‐ 3 ‐ she commenced communicating with Wells Fargo regarding a loan modification. (Co‐plaintiff Sherry DeLaura has dropped out of the ...

Excerpt: ...activity over this last summer as trial approached. This Line 8 is a motion directed at certain causes of action in plaintiffs' First Amended Complaint (FAC). Shortly after this motion was filed, plaintiff was given leave to file a Second Amended Complaint (SAC) asserting certain additional causes of action. Showing better cooperation and common sense than has marked some other aspects of this litigation, the parties agreed (1) that the summary a...

Excerpt: ...o the two contractual interference, claims, but sustained it with leave to amend as to the cause of action for promissory fraud. The basis for the ruling was that the FAC failed to allege that plaintiffs acted in reliance on defendant Daniel Sheehy's alleged promise to take a break and lay low from the facility for several months. Further, plaintiffs were damaged by Sheehy's tortious interference rather than by his promise not to interfere. The p...

Excerpt: ...onceded Counts Plaintiff responds to the present demurrer by offering to dismiss without prejudice half of her twelve asserted causes of action, namely the 4th (retaliation), 7th (intentional infliction of emotional distress), 9th (whistleblower), 10th (defamation), 11th (Civil Code § 51.7), and 12th (Civil Code § 52.4). No such dismissal document has been filed, however, so the Court treats the offer as a concession of the demurrer as to these...

Excerpt: ...ract is generally four years. (Code of Civil Procedure § 337.) “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) This motion suffers from serious procedural flaws on both sides. ...

Excerpt: .... (2010) 186 Cal.App.4th 383, 387‐388.) When a plaintiff moves for summary judgment, she has the initial burden. (Ibid.) “That burden can be met if the plaintiff ‘has proved each element of the cause of action entitling the party to judgment on that cause of action.' (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant ‘to show that a triable issue of one or more material facts exists as ...

Excerpt: ...amaging effect of the alleged wrongful act.' [Citations.]” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110‐11.) “A plaintiff in a medical malpractice action must satisfy the requirements of both the one‐year and the three‐year limitations periods.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1190.) “The injury commences both the three‐year and the one‐year limi...

Excerpt: ...y; (3) failure to reasonably accommodate; (4) failure to engage in good faith interactive process; (5) failure to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/25/19 ‐ 7 ‐ take reasonable steps to prevent and/or correct discrimination and/or retaliation; (6) retaliation; and (7) constructive discharge in violation of public policy. Defendants demur to the first cause of action for harassment on the basis of ...

Excerpt: ...er order. 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, these three cases all concern a corporate‐control battle a...

Excerpt: ...its principal, defendant Christopher Music), under which plaintiff would scout for suitable properties available for Proud Start. When she found one, plaintiff would then arrange a sale, being paid a commission by the seller. And then, at some later point, plaintiff would act as the broker in reselling the property for Proud Start. The obvious catch in this set‐up, at least as to the first contemplated transaction (Proud Start's purchase), is t...

Excerpt: ...ere, and he has not carried it. Accordingly, the motion is denied. Plaintiff's complaint is unverified, but he has also filed his own declaration under oath. Plaintiff is apparently under the impression that his vehicle was towed (and is subject to sale) because of a purported lien by a lender – in other words, that his car was repossessed. He goes to some lengths to show that in fact there is no lender lien on his vehicle. But that is a good w...

Excerpt: ...n for summary judgment of his complaint. I. Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/18/19 ‐ 13 ‐ The parties to this dispute have battled for many years over property at 7090 Camino Tassajara in Pleasanton. Briefly, Clancy exchanged Danville property to buy approximately 33 acres from Corrie Development Corporation – now represented by Pete Klein as personal representative of Mr. Sidney Co...

Excerpt: ...nd in any event, it is appropriate to conduct an CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/18/19 ‐ 11 ‐ impromptu case management conference to confirm what remains to be done in this action, and how it is going to be accomplished. The Court appreciates the spirit of the opposition brief's statement that the Trust “will spare the Court a full statement of the tortured history of this litigation”. Blu...

Excerpt: ...ction 2033.420 allows for recovery of the costs and fees incurred in having to prove a fact that was denied in response to RFAs, though subject to some important exceptions – most importantly, when there was “reasonable ground to believe that that party would prevail on that matter”. PSIC complains that plaintiff refused to admit that a copy of the policy was mailed to him (RFA 5), pointing out that plaintiff did not dispute that fact in op...

Excerpt: ...they filed the present lawsuit, alleging that defendant had not timely processed or acted on their modification request in various ways. Defendant demurred to the original complaint in this case. Plaintiffs' counsel refused to engage in the required meet‐and‐confer, and filed no opposition to the demurrer. The demurrer was sustained with leave to amend. The ruling addressed a variety of individual problems with individual causes of action. Ov...

Excerpt: ...1) professional negligence, (2) negligent supervision, (3) negligent misrepresentation, (4) breach of written contract, and (5) breach of oral contract. Planned Parenthood is a defendant in all causes of action, while Weinstein is defendant in causes of action one and three. Defendants have demurred to each plaintiff's claims for the failure to state a cause of action based on the statute of limitations being expired. (Plaintiff does not contest ...

Excerpt: ...nds asserted in the MJOP. Plaintiff, as the prevailing party on the appeal, filed a memorandum of costs. Defendant now moves to strike it. The motion is granted in part. (See also below for more comments and directions concerning case management.) Defendant points out that the memorandum of costs was untimely filed, not having been filed within 40 days of the Court of Appeal's remittitur as required by CRC 8.278(c). Witkin sets out the settled la...

Excerpt: ...easonably pertinent to forming an opinion on the medical issues presented in the case, such as pertinent medical history and the mechanics of how plaintiff was struck during the accident. The Court regards plaintiff's objections on these points as baseless and asserted in bad faith. Plaintiff's substantive defense as to the related‐questions issues is half‐hearted, summarizable as “there's no authority directly on point so therefore it must...

Excerpt: ...ters, Stryker's motion for leave to file under seal is itself noticed for February 9, which is not only long after this motion, but indeed after the trial date. That timing quirk aside, moreover, Stryker presents no substantive discussion at all as to why there is any justification for filing this evidence under seal. There is only a completely conclusory assertion that the materials in question are confidential, signed by an attorney and not any...

Excerpt: ...ng whether she is or is not the proper person to represent the trust and the estate in a non‐probate action. In response to an OSC, Ontifade produced probate documents and other evidence establishing her standing in these respects, and the Court announced itself satisfied. That determination, however, went only to whether Ontifade is the right person to be a plaintiff here. The Court did not address whether, in pursuing this action, she needs a...

Excerpt: ...ction on her home. Defendants demur on the basis that plaintiff's causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. (See Code of Civil Procedure § 430.10(e)‐(f).) The demurrer is overruled. Defendants shall answer by January 18, 2019. Fraud “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b)...

Excerpt: ...on are asserted for intentional fraud, negligent misrepresentation, fraudulent concealment, financial elder abuse, and (as against Deak) professional negligence. What they all have in common, however, is that they are all squarely based on only a single allegedly wrongful act, namely cross‐defendants' submission to the Kensington Municipal Advisory Council and the Contra Costa County Planning Commission of a land survey performed by Deak, and a...

Excerpt: ...ring that any action on the contract must be brought in Illinois. The Court gave defendant time to file a motion to dismiss on the basis of that clause. This is that motion, and it is granted. The case is dismissed. The Agreement between the parties – “Rapid Standard Terms and Conditions of Sale” (attached to the Complaint) – contains a “Choice of Law” provision. It states, “The parties expressly agree that the terms, execution, and...

Excerpt: ...attorney did not tell plaintiff why he thought the SAC was incorrectly alleged. Plaintiff asks that this Court drop the demurrer from calendar. The Court denies this request. The Court finds that the meet and confer process here was sufficient, as plaintiff has been informed about the problems with his complaint from the previous challenges to the pleadings and the Court's rulings on those challenges. Indeed, as will be seen, this ruling is but a...

Excerpt: ...n failing to satisfy the requirement of meeting and conferring as required by Code of Civil Procedure § 430.41. The statute requires that the meet‐and‐confer must occur “in person or by telephone”. Here, there was only a single exchange of letters – a medium less likely to involve any real discussion or give‐and‐take. Indeed, the motion to strike (Line 8) well illustrates the point, with PLSCS expressly agreeing to part of the moti...

Excerpt: ...mplaint only in response to defendant's motion to dismiss for lack of an operative complaint. The Court allowed the amendment, but in May 2018 it again sustained a demurrer to the entire FAC. The tentative was to deny leave to amend. At hearing plaintiffs persuaded the Court to allow one more amendment as to at least part of the complaint. The record (and the Court's recollection) do not disclose what parameters the Court set for amendment (other...

Excerpt: ..., without leave to amend. The court sustains RHA's demurrer to the Fourth and Fifth Causes of Action, with leave to amend. Plaintiff shall file and serve any amended complaint on or before October 12, 2018. If plaintiff elects not to amend, defendants shall file and serve their Answer on or before October 26, 2018. The Court notes at the outset that plaintiff questions whether there has been adequate meetand‐confer. Plaintiff counsel says there...

Excerpt: ...). However, that arbitration is stayed pending litigation of the remainder of this case, at least for now. Plaintiffs purchased a residence in Orinda. They allege that shortly after the purchase, they discovered that considerable water was draining onto their property from (among other alleged sources) two neighboring properties owned by defendants the Govedniks and the Hassards. The latter owners have asserted that they have a drainage easement ...

Excerpt: .... 32, 33, 54, 55, 61, 62; Plaintiff's Additional Fact Nos. 4‐7, 13; Comstock Decl. at 8:16‐20; Fullerton Decl., ¶ 21, 24, 31.) The court discussed the facts of this case at length in its ruling on August 3, 2018, denying Dr. Jacobs's motion for summary judgment. It will not repeat that extended discussion here. Suffice it to say that plaintiff has submitted admissible evidence from his expert, Dr. Fullerton, that Dr. Miranda breached the sta...

Excerpt: ...the Order After Hearing hereon. If he elects not to do so, then defendants' answer to the existing complaint will be due 30 days after the passage of that deadline. This is a medical malpractice action. The complaint alleges that defendants performed a hip replacement on plaintiff. When plaintiff experienced various adverse developments afterward, defendants kept telling him that there was nothing wrong with the hip replacement, and the cause of ...

Excerpt: ...n in its role as a “consultant” performing preconstruction services. Taber's additional proffered grounds for summary judgment, however, are unmeritorious. Background Education Code § 17406 authorizes an alternative to the typical design‐build approach for school facilities under which the school district and a contractor instead enter into a “lease/leaseback” arrangement. The district leases the real property to a contractor for a min...

Excerpt: ...ees. It grants the Employers' motion to vacate the judgments, because those judgments were improvidently entered in violation of the stay created by Code of Civil Procedure § 916(a). Background of this Motion The Labor Commissioner held hearings to decide a dispute over unpaid wages between the petitioners in this consolidated case (Employers) and the respondents in this case (Employees). The result of the hearings was the issuance of twelve Ord...

Excerpt: ...ve counsel at the time. In the event that plaintiffs obtain a new attorney for this case in the interim, however, defendant is encouraged to agree to a reasonable extension of that deadline to allow new counsel to consider his or her options. Absent stipulation, plaintiffs' new counsel may request an extension ex parte.) The Court notes at the outset that plaintiff's present counsel apparently refused all invitations to engage in the meet‐and�...

Excerpt: ...t's answer or other response will be due in ordinary course. (Other defendants who have answered the Second Amended Complaint may, but need not, separately answer the Third.) If plaintiffs do not file an amendment by the deadline, they will be deemed to have abandoned the premises‐ liability count, and B&C Transit must file its answer within 14 days after the due date for the amendment. Negligence Plaintiffs allege that B&C Transit designed a t...

Excerpt: ...rds from the investigating police agency. Davis filed a motion to quash the subpoena, on insubstantial asserted grounds. The motion was denied. The district has now noticed the deposition of the investigating detective, along with a request for production of more or less the same set of records. As before, neither the police department, nor the deponent, nor the DA has raised any objections. But as before, Davis moves to quash. As before, the mot...

Excerpt: ...otions to compel. This case concerns plaintiff's allegations (to oversimplify a little) that defendants, former employees, breached their duties to plaintiff and departed, taking trade secrets with them. Plaintiff has admittedly faced a difficult and frustrating situation resulting from the merry‐ goround of counsel on the defense side, which has resulted in unresponsiveness and delays in resolving otherwise routine litigation matters. Neverthe...

Excerpt: ...ows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof.” (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086.) Here, John Muir has met its burden of showing that plaintiffs are unable to establish the required element of causation. John M...

Excerpt: ... 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 that she was underpaying. She alleges that instead she was paying the taxes and interest directly, so that w...

Excerpt: ...t can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Defendants assert three separate grounds for the motion. The Court is convinced by the first argument, that the case is moot. It is therefore both unnecessary and inappropriate to address the merits‐based arguments. Background Facts According to the complaint, plaintiffs are owners of separate parcels of property in the area known as Freethy Indust...

Excerpt: ...elects not to do so, defendants' answer to the present complaint will be due fourteen days after expiration of plaintiff's deadline to amend. RJN. Defendants' request for judicial notice is denied as either irrelevant (Exhs. “A” and “B”) or unnecessary (Exh. “C”). The Court does not need to take judicial notice of earlier‐filed documents in the same action, and it does not see the relevance of the federal action to this demurrer. Th...

Excerpt: ...ourt's previous ruling. Indeed, Plaintiff's opposition focuses more on why she thinks the previous ruling was wrong, than on what is new and different in the SAC to cause the ruling to change. Plaintiff is suing Defendant based on the alleged failure of Defendant's employee, Nancy Pfeiffer Hazen, to advise Plaintiff that she should have had a higher amount of underinsured motorist coverage. Plaintiff's husband was killed in a bicycle‐vehicle co...

Excerpt: ...dings and orders in federal district court case Curl v. CitiMortgage, Case No. 14‐cv‐01829. This request is opposed. The request is granted. Evid. Code §§ 452, 453. Analysis Both sides brief this demurrer much as if there had been no prior rulings on point. In fact, however, the Court's ruling on the demurrer to plaintiff's second amended complaint is quite sufficient to dispose of the present demurrer, because nothing material has changed....

Excerpt: ... is a personal injury case involving a vehicle collision. Plaintiff's complaint alleges that on March 17, 2016, plaintiff was a pedestrian when she was struck by a vehicle driven by defendant Jose Concepcion Solorio. (See Attachment to Complaint, at p. 2.) On June 26, 2017 plaintiff filed her form complaint for damages against the driver, Jose Solorio, and the vehicle's registered owner, Maria Solorio. The complaint also included Doe defendants 1...

Excerpt: ...s follows (block capitals omitted): Plaintiffs' decedent, Jovante Prothro, was shot and killed by Dewaun Rice. The City of Richmond, the Office of Neighborhood Safety and/or Devone Boggan knew or should have known that Dawaun Rice was a danger to the public at large at [sic] more particularly, plaintiffs' decedent. Defendants and each of them had information that should have been brought to the police department regarding the violent and criminal...

Excerpt: ...aintiffs entered into a Residential Purchase Agreement with seller, Kenneth Pregler. Pregler owned the property from October 1, 2004 to October 2, 2014. Defendants Solano Pacific Corporation and Rob Nubla were the selling brokers on the property sale at issue in this case. There is no substantive distinction between the two for purposes of this motion, and they will be referred to as the Brokers. The McGuires' property adjoins the Brenkles' prope...

Excerpt: ...§ 3294. Section 3294(c) provides, in pertinent part: (1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant and with a willful and conscious disregard for the rights and safety of others. (2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) Fraud means an inten...

Excerpt: ...rted responses to each such discovery request, including both substantive answers and various objections. None of those responses, however, was verified. The Hesses' motions raise two distinct sets of problems. First, they correctly note (as plaintiffs effectively concede) that all of these responses were required to be verified, and were not. Second, they argue that even if plaintiffs provide verifications before hearing on the motions, many of ...

Excerpt: ...ells's employer), on one hand, and Larios on the other; where relevant those distinctions will be addressed. Otherwise, the analysis applies equally to all defendants' motions. Relevant Allegations Plaintiff Joseph LaCome is an attorney licensed to practice law in Texas and currently practicing immigration law in California. (Comp. ¶7.) He works on immigration cases, including with some detained clients at the West County Detention Facility in R...

Excerpt: ...in Iran – and centering more specifically on whether a certain legal document (a power of attorney, or POA) was or was not forged. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 08/03/18 ‐ 2 ‐ The parties are all sisters of each other, or their respective husbands. The plaintiffs are a wife and husband, residing in California – Shahrzad Bakhtiari (Shahrzad), and her husband Sia Bakhtiari. The defendants are ...

Excerpt: ...f action that go beyond what was alleged in the Plaintiffs' government tort claim. For the reasons set forth further below, the demurrer is sustained, without leave to amend. Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420. A complaint “is sufficient if it alleges ultimate rather than evidentiary facts” (Doe ...

Excerpt: ... cause why this Court should not reconsider and reverse the Court's decision of July 13, 2018, granting the motion of respondents in this case (Employees) for attorney fees pursuant to Labor Code § 98.2(c). See Le Francois v. Goel (2005) 35 Cal.4th 1094 (trial court may reconsider possibly erroneous ruling on its own motion). In response to Employers' present motion, Employees cite Palagin v. Paniagua Construction (2013) 222 Cal.App.4th 120. Nei...

Excerpt: ... requests for fees, costs, and prejudgment interest. Petitioner's counsel, however, denies that any such offer was made. He provides an e‐mail he sent on June 19, evidencing a counter‐offer to respondents' offer. It is hardly likely that the parties would be negotiating any settlement amount in the face of an open offer to stipulate to confirmation of the full arbitration award. The Court (giving respondents' counsel the benefit of the doubt)...

Excerpt: ...d the Complaint does not state facts sufficient to support a claim for punitive damages. “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Because defendant has already filed an Answer to the Complaint, a motion for judgmen...

Excerpt: ...Muir Orthopedics order it? If neither of them did, why was a Muir Orthopedics Medical Clearance Request Form sent to plaintiff's primary care physician and why did plaintiff see that physician for medical clearance on June 18, 2015? (Undisputed Material Fact (“UMF”) 4; Disputed Material Fact (“DMF”) 3, 5, 6; Plaintiff's Additional Fact (“PAF”) 4, 8; Ex. C to Billups‐Slone Decl., p. 112; Ex. I to Billups‐Slone Decl., Phillipy Depo....

Excerpt: ...aintiff works for a third floor tenant at the Property. She alleges that on the morning of February 4, 2015, she was sexually assaulted and injured in the second floor women's restroom by a homeless man who had entered the unlocked building the night before and wandered around it naked, exhibiting signs of mental incapacitation and/or substance abuse. While the restrooms on the third floor were locked, those on the second and first floors were no...

Excerpt: ... amount to be secured by the attachment is $110,239.31, which includes attorney fees, estimated at $8,000. Since defendant is a corporation, Plaintiff seeks to attach “any property” of defendant. An undertaking has not been filed. Defendant California Optical Corp. (dba CalOptix) appears specially for the sole purpose of objecting to jurisdiction and maintaining its right to opposes the application for right to attach order. Defendant opposes...

Excerpt: ... the violations of sexual misconduct and dating violence. As to the most serious charge of sexual assault, however, the Court finds no procedural or substantive error in the disciplinary proceedings or result, and hence the petition is denied as to that violation and the resulting expulsion. Because the Respondent in the disciplinary proceeding is the Petitioner in this Court, and the Complainant in the disciplinary proceeding is not a party at a...

Excerpt: ...ery, trespass, trespass, and infliction of emotional distress. Obviously those allegations cannot be taken literally as to UPS, which as a corporate entity is incapable of doing any of these things except through human agents. The Complaint does not expressly allege that the individual defendant (Defroscia) was an employee of UPS and acting in the course of his employment, though the Court assumes that that is what plaintiff has in mind (and UPS'...

Excerpt: ... Plaintiff is a California resident. Defendant resides in South Carolina. This case arises out of defendant Miao's operation of the Biang‐Wang.com website. In a nutshell, plaintiff contends that third parties have defamed plaintiff in materials posted on that website. He contends that defendant Miao has a contractual duty to delete such defamatory material from his website. Plaintiff asserts causes of action for breach of contract; tortious bre...

Excerpt: ...ubject to the Protective Order previously entered in this case. The District's opposition brief stresses the legal concerns arising if such material is produced without either the parents' consent or a court order. Right – but getting that court order is what these motions are for. The District doesn't really deny plaintiff's representation that in meet‐andconfer, the District didn't raise any real objection to this discovery other than needi...

Excerpt: ...er, Seterus makes no serious effort to show the relevance of the matters inquired into, and no such relevance is obvious from the interrogatories. The Court cannot see how plaintiffs' possible use of drugs at other times and other places could bear on their CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/27/18 ‐ 2 ‐ responsibility for their relative's alleged manufacture of BHO. That is true even if the drug s...

Excerpt: ...en REIT, LP (“Evergreen”); and Store It REIT, Inc. (“Store It”). Evergreen owns TIC 4. Store It is the limited partner of Evergreen. (Store It is now in bankruptcy and not involved in this motion.) The sole defendant is River Oaks Storage, LLC (“defendant”). The first three causes of action in the complaint (breach of contract, specific performance, and declaratory relief) all asserted the same substantive claim, arising under a contr...

Excerpt: ...iff requests a lodestar multiplier of 1.2. The Court does not think the multiplier is justified. Plaintiff won this case, but it did so partly on the basis of TWCM's admissions. The initial merits briefing by both sides was sufficiently scanty that the Court found it necessary to call for further and better briefs on contract construction. And while the course of this litigation was unjustifiably protracted by TWCM's strategy and tactics, that fa...

Excerpt: ...es or can reasonably be construed to allege the following. The plaintiffs and the lead defendant, Gerald Knopoff, are siblings, the children of Jean and Leon Knopoff. When Leon died, the children were left $7 million in a trust. But when the trustee, defendant Gerald Knopoff, distributed the funds, each child received only $140,000. (SAC, ¶ 9.) Gerald told plaintiffs the loss of money in the Trust was “due to bad economy and that he had been n...

Excerpt: ...grees, and so the motion is denied. Paragraphs 45‐47 of the complaint allege: An actual controversy has arisen and now exists between Plaintiffs and CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/20/18 ‐ 11 ‐ Defendant DCSD with respect to the DCSD's obligations under the Ordinance Code. Specifically, Plaintiffs contend that the DCSD has an obligation under the Ordinance Code to provide security to Diablo r...

Excerpt: ...laintiff has filed a response expressly stating that she does not oppose Dr. Waechter's motion. It is accordingly granted. The Court notes that, given that plaintiff is apparently convinced that Dr. Waechter was not to blame and that she has no grounds for opposing summary judgment, plaintiff and her counsel should properly have voluntarily dismissed this case as against Waechter, or at least stipulated to such a dismissal. ...

Excerpt: ...e argues that the arbitration agreement at issue is unconscionable, and accordingly cannot be enforced. Waiver The Court must consider six factors to determine whether BACR has waived any right it might have had to insist the present dispute with Saeteurn be arbitrated: (1) Whether [BACR's] actions are inconsistent with the right to arbitrate; (2) Whether the “litigation machinery has been substantially invoked” and the parties “were well i...

Excerpt: ...and conferred via email. That is facially insufficient. Further, defendant's counsel (Mr. Kensok) states that he made repeated requests to meet and confer even after the filing, but counsel would not do so. In reply (not a sworn declaration), plaintiff's counsel essentially verifies Kensok's assertion, stating that he insisted on a meeting at his office (not, for example, by telephone), and insisted that it be recorded. Besides being uncooperativ...

Excerpt: ...zation of the documents involved. The Court agrees with plaintiff's legal argument, and so plaintiff's motion for summary judgment is granted. This case arises from a line of credit originally extended by First Interstate Bank to Emery Bay Baseball, a now‐dissolved corporation (not sued here). Defendant Kaufman provided a personal guaranty for the line of credit. First Interstate Bank then merged into plaintiff Wells Fargo, which continued to l...

Excerpt: ...e argues that the arbitration agreement at issue is unconscionable, and accordingly cannot be enforced. Waiver The Court must consider six factors to determine whether BACR has waived any right it might have had to insist the present dispute with Saeteurn be arbitrated: (1) Whether [BACR's] actions are inconsistent with the right to arbitrate; (2) Whether the “litigation machinery has been substantially invoked” and the parties “were well i...

Excerpt: ... Mahajan moves to expunge on the basis of § 405.32, providing for expungement if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim on which the lis pendens rests. “Unlike most other motions, when a motion to expunge is brought, the burden is on the party opposing the motion to show the existence of a real property claim. (See § 405.30.)” (Kirkeby v. Supe...

Excerpt: ... sought in the application. 3. The application is supported by no evidence or proof whatsoever. The standardized form contains no content other than checked boxes, and thus no factual assertions. It states that it relies on the Verified Complaint – but in fact the Complaint is not verified. 4. The unverified Complaint, even if it were under oath, is insufficient to establish a right to recover. Assuming that the application relates to the two v...

Excerpt: ...or Court pursuant to Labor Code § 98.2(a). The notices were initially rejected by the clerk's window because petitioners did not proffer any appeal bonds, as required by § 98.2(b) “[a]s a condition to filing an appeal”. Petitioners sought an ex parte order requiring the clerk to accept the notices of appeal, pointing out that under Code of Civil Procedure § 995.240 they were entitled to seek waiver of the bond requirement upon a showing of...

Excerpt: ...nder Code of Civil Procedure § 664.6. Nor did the subsequent Notice of Settlement of Entire Case, filed in June 2017, provide either any stipulation or any terms of settlement. At present, the case has not been dismissed, and defendant is in default. There is not, however, any judgment under § 664.6 or otherwise, nor any court order adopting or incorporating the terms of any settlement, nor any court document requiring defendant to pay any mone...

Excerpt: ...f defendants Kenneth Turnage and Kenneth R. Turnage II General Contractor, Inc. On September 24, 2016, plaintiff participated in an off‐site charity event, as a member of the wiffle ball team formed by his employer, Defendant Turnage. The wiffle ball team consisted of other employees and non‐employees. Plaintiff's participation was optional. The tournament ended at about 4:00 p.m. Later, after stopping home for a shower, plaintiff attended an...

Excerpt: ...r Estates Inc. joins the motion, but it does not appear in the papers that that entity has any direct ground for a disqualification motion, and it will be disregarded.) The Court must first comment on the chronology of all this. Black and Weston have represented plaintiff in this action since it was first filed in July 2016. Danilovich has been in the case for some time. Yet the topic of disqualification did not come up until new counsel for Dani...

Excerpt: ...ve service, in this out of status of limitation case.” The Court has no confident idea exactly what defendant thinks she is asking for, or on what basis. As near as the Court can make out, she is again asking for relief from her prior default and the default judgment against her. That was already ruled on, and defendant presents even less semblance of grounds for any such relief now. This motion, whatever it is intended to be, is denied. ...

Excerpt: ... do not purport to show any such basis for relief. Third, the asserted basis for relief is that the parties settled the case as stated in a settlement agreement attached to the motion – but in fact nothing is attached to the motion, and no such settlement agreement is in the Court's file. Fourth, the dismissal filed by plaintiff in 2015 was absolute and unconditional, with no reservation of jurisdiction under Code of Civil Procedure § 664.6. T...

Excerpt: ...bstantive basis stated in the FAC for recovery of plaintiff's attorney fees. In opposition plaintiff argues that it may recover fees under Code of Civil Procedure § 1021.5 because it is pursuing a matter of public interest. Plaintiff does not elaborate on this assertion, however, and there is nothing in the FAC that could support it. Plaintiff's argument is that it is alleging fraud, and fraud is a bad thing, so therefore the allegations are wit...

Excerpt: ...'s file that any attempts at meet and confer were made. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/06/18 ‐ 5 ‐ Compounding its failure to meet and confer, it appears that when the Flandermeyers offered to stipulate to amend their complaint, Werner refused to so stipulate. Resolving a motion to strike punitive damages by way of a stipulated amendment is, of course, precisely the sort of resolution that the...

Excerpt: ... proposed order with a declaration confirming that no responses were served prior to the hearing. In the event that defendant has served responses prior to the hearing, no matters will be deemed admitted. The motion to compel responses to document requests is granted. Defendant Yunck must serve responses to plaintiff's first set of document requests (served on or about February 22, 2018), without objections, within 30 days following service of th...

Excerpt: ...lodge a proposed order with a declaration confirming that no responses were served prior to the hearing. In the event that defendant has served responses prior to the hearing, no matters will be deemed admitted. The motion to compel responses to document requests is granted. Defendant Ewing must serve responses to plaintiff's first set of document requests (served on or about February 22, 2018), without objections, within 30 days following servic...

Excerpt: ...olation of Civil Code § 2923.6; (2) violation of Civil Code § 2923.7; (3) negligence; (4) unfair business practices; and (5) violation of civil code § 2923.5. Defendants' demurrer is sustained without leave to amend. The Court will discuss each cause of action in turn. As an overview, however, this is a very straightforward matter. The Court sustained these defendants' demurrer to the First Amended Complaint (FAC), largely because it did not a...

Excerpt: ...procedural grounds, which the Court discusses in more detail below. That result, however, appears to be contrary to the preferences and expectations of both sides, each of which seems genuinely to desire the Court's rulings on the merits issues presented in both motions. These procedural problems are simply ignored in the moving and opposition papers. Neither side's motion pays any attention to the technical defects its own motion raises. Nor has...

Excerpt: ...efendant's requests for admission. On defendant's motion, therefore, this Court granted defendant's motion to deem matters admitted. Those deemed admissions are conclusively fatal to plaintiff's entire case. Having thus admitted the falsity of his entire case, plaintiff has no further case to pursue. This result was not inevitable. In its tentative ruling granting the motion to deem matters admitted, the Court went out of its way to point out to ...

Excerpt: ... response, plaintiff filed a Request for Dismissal, dismissing the entire action and all causes of action. The Court accepted the request and entered the dismissal on April 10, 2018. Plaintiff now files a motion to set aside the dismissal. He states no facts in support of this motion, however, nor does he argue any legal basis for his motion beyond quoting the California CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE...

Excerpt: ...ses of action (and thus as to the complaint as a whole). On still other causes of action the Court denied the motion, but did not view those contentions as frivolous. Having secured a ruling that defendant's anti‐SLAPP motion was frivolous in part, plaintiffs now bring the present motion for attorney fees under subd. (c)(1) of the anti‐SLAPP statute, Code of Civil Procedure § 425.16(c)(1): “If the court finds that a special motion to strik...

Excerpt: ...motion on May 10, 2018, but the parties stipulated to hearing it concurrently with St. Mark Pittsburg's motion. (See Credit Suisse First Boston Mortgage Capital, LLC v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th 1290, 1301 [“The statutorily mandated minimum notice period for summary judgment may be waived by the parties…”].) The Court addresses both motions in this ruling. The motion of St. Mark Pittsburg is granted to the exte...

Excerpt: ...istricting map by which they argue this could be done, and effectively ask the Court to adopt that map as mandatory. The motion is denied. Plaintiff's Complaint, and the Setting for This Motion Plaintiffs' complaint generally alleges that the District's current at‐large voting structure impermissibly dilutes the votes of racial minorities, namely Latinos and black people. The result of the District's at‐large voting system is that it deprives...

Excerpt: ... of habitability, assets a lengthy list of alleged unhealthy or unacceptable conditions in the building. These allegations have previously been made in two prior litigations between the same two parties. Merriouns asserted the same list of defects in her answer to the landlord's unlawful detainer case. She also asserted uninhabitability as her cause of action in a small claims case against the landlord. Both of those cases went to trial, and in b...

Excerpt: ...wn and operate a number of Pizza Hut restaurants. The present lawsuit is an insurance coverage dispute, concerning coverage for two employment lawsuits brought against plaintiffs. The Oregel suit was filed in this County in 2012 against Pacpizza. It asserted class‐action claims for alleged failures to reimburse employees' employment‐related expenses, in violation of Labor Code § 2802. It also included derivative causes of action under the UC...

Excerpt: .... The matter was continued a second time so that Defendant could respond to Plaintiffs' unauthorized supplemental opposition. Defendant failed to comply with California Rules of Court, Rule 3.1113(f). Tables of authorities and contents are generally useful (and required in memoranda over 10 pages) and would have been especially useful given Defendant's oversized brief. The Sequential Litigations Between These Parties Palma I: Palma sued Sabhlok f...

Excerpt: ...ed to comply with all the requirements in California Rules of Court, Rule 3.1324. The parties should comply with this rule, as well as all Rules of Court, at all times. There is “a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations]…” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is “‘ine...

Excerpt: ...Disputed Material Fact Nos. 10, 16, 17, 26 and Plaintiff's' Additional Fact Nos. 36, 40, 42‐47.) In their Opposition, plaintiffs state they are “withdrawing and dismissing, without prejudice, as to Defendant Scott Clare,” the first, second, third, fourth, and seventh causes of action. No dismissal has been filed, however. The court therefore grants summary adjudication as to those causes of action as to defendant Scott Clare. Clare has made...

Excerpt: ...they complained about encroachments on their easement. (Disputed Material Fact Nos. 21, 31, 39; Additional Fact Nos. 10, 11, 12, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 30(2), 33, 35, 40, 41, 42, 43, 44.) (A numbering problem exists in the Coneys' Separate Statement of Additional Facts, with some numbers being repeated two or three times. The number 30(2) above refers to the second occurrence of the number 30.) Background The central issue on...