Excerpt: ...lternative, but it makes no effort to address any individual causes of action apart from all the other ones.) Bigelow's motion for summary adjudication is granted as to plaintiff's causes of action 1 (negligence), 3 (respondeat superior), 4 (negligent hiring and supervision), 5 (negligence per se), and 10 (negligent infliction of emotional distress). It is denied as to plaintiff's cause of action 11 (UCL). Accordingly, the motion for summary judg...

Excerpt: ...nswer the surviving portions of the complaint will run from then. Background Plaintiff Pamela Marquez alleges that she purchased a new 2018 Nissan Pathfinder from an unidentified “Seller” (presumably a dealership) on or about January 13, 2019 for personal, family, and/or household purposes. (Complaint, ¶¶4‐5.) With the purchase, plaintiff received various warranties from defendant. (Complaint, ¶7.) On multiple occasions, plaintiff has ha...

Excerpt: ...ed by Manor Care Health Services – Walnut Creek and other defendants which have been dismissed without prejudice, other than the fictitiously named defendants Does 1‐100. The caption shown on Plaintiff's Opposition to this Motion is erroneous and should be corrected on future filings (it shows the caption as "Diane Vega vs. HCR ManorCare Inc.; HCR ManorCare Services, Inc.; Heartland Employment Services, LLC; ManorCare of Walnut Creek, CA, LLC...

Excerpt: ... is granted. DCSC should present a separate judgment. Background Winston Cervantes is a homeowner in the community of Diablo who filed a cross‐complaint to address property referred to for convenience as the Cut‐Through, a path crossing certain private property in Diablo that is used by bicyclists and others to cross from Alameda Diablo to Mt. Diablo Scenic Blvd. Cervantes subsequently filed a verified First Amended Cross‐Complaint (FACC) n...

Excerpt: ...ction was filed by Robert Tiernan and a number of other Diablo homeowners against the Diablo Community Services District (DCSD) and other property owners whose properties are located on Calle Arroyo, a street in the Diablo community. The main action has been resolved by an Amended Judgment entered September 24, 2019. That Amended Quiet Title Judgment quieted title to Calle Arroyo as a private road owned by the property owners. The Court also gran...

Excerpt: ...elects not to do so, GM's time to answer the surviving portions of the complaint will run from then. Facts This is a "lemon law" case involving a 2015 GMC Sierra 1500 truck manufactured by defendant GM. (Compl. ¶ 4.) Plaintiff alleges she purchased the vehicle new on January 23, 2015 for her personal, family or household purposes. (Compl. ¶ 5.) She alleges the vehicle was manufactured and distributed by GM for sale in California, and implicitly...

Excerpt: ...e hearing to identify specifically what allegations they propose to add; whether those allegations were included in their pre‐filing governmental claims; why they will be sufficient; and why they weren't alleged before now. Background Plaintiff Neff has owned real property located at 1060 Minnesota Ave. in the City of Brentwood for over 30 years. Neff alleges that throughout his ownership of the property, he has been subjected to harassment fro...

Excerpt: ...30/20 ‐ 20 ‐ Plaintiff Ramil Safin alleges he was misclassified as an exempt employee. He began working for Defendant Ravig, Inc. in or around January 3, 2017 as a Systems Engineer. Plaintiff alleges that he spent most of his time performing tasks related to the wiring of customers' systems, and that he did not exercise independent discretion in performing his duties. Plaintiff alleged made written complaints on March 6, 9, and 10, of 2020 re...

Excerpt: ...7c(t) and the Stipulation that the parties filed on June 4, 2020, because she concedes the amount of damages is still currently disputed. (See Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097.) These cross‐motions were essentially invited by the court of appeal, and counsel have cooperated in bringing this dispute before the Court for ruling. Defendants (Sequoia, its Managing Member NSH Management of ...

Excerpt: ...tiff sues Mejia for defamation and false light based on statements allegedly made by Mejia. Plaintiff alleges that Mejia falsely published verbal and written statements that customers, employees and supervisors complained about plaintiff's poor performance and that plaintiff was terminated for poor performance. (Comp. ¶64.) Plaintiff alleges that defendants published these statements to their own employees and to third parties. (Comp. ¶65.) The...

Excerpt: ...tatements that Moeller has a mental illness, or exhibited behavior associated with such an illness, and statements that could be understood to charge that she is dishonest and does not properly run her facility, all of which would tend to injure plaintiffs in their business. Further, triable issues of fact exist concerning the context in which the statements were made, whether Pestana in fact made statements that could be understood to charge tha...

Excerpt: ...��, whatever that means. In the MSA, however, it is simply “Ericsson Inc.” The Court will stick with “plaintiff”. On March 1, 2012, plaintiff and Broken Arrow entered into a written master services agreement contract (MSA), with Broken Arrow identified as “Contractor.” The MSA covered and governed Defendant's work performed on the City of Richmond's real property. On or about April 5, 2017, Defendant authorized to begin work at around...

Excerpt: ...st cause of action. So treated, the motion is granted with leave to amend. Plaintiff may file and serve a first amended complaint by November 6. If he elects not to do so, defendants will have already answered the existing complaint. This motion is brought on the sole ground of limitations. Its answer therefore hinges on the answer to a single question: which statute of limitations applies to the first cause of action? Is it the three‐year limi...

Excerpt: ...published an interview with plaintiff related to his career and his book. (Comp. ¶8.) From May to November 2019, defendant began making various statements about plaintiff on defendant's various Twitter accounts. (Comp. ¶¶10‐15.) Defendant owns several accounts on the “popular social media site Twitter”. (Comp. ¶7.) These statements generally claimed that plaintiff was promoting conspiracy theories. A couple of tweets made reference to p...

Excerpt: ..., however, Homeguard's own evidence undermines its own assertions. It therefore has not carried its burden to shift any burden to cross‐complainants to disprove Homeguard's factual defense. Background In October of 2014, plaintiff James Nikides entered into a written agreement to purchase real property located at 5401 Martis Court in El Sobrante. Plaintiff had engaged the services of Defendant/Cross‐Complainant Yamille Kosowan, a licensed rea...

Excerpt: ...n filed a complaint against her with the Financial Industry Regulatory Authority (FINRA) in 2018. Johnson claimed she was damaged in connection with Plaintiff Tarr's investment advice and management of Johnson's $320,000 investment portfolio. Tarr alleges Johnson made with her investments with Tarr through the broker‐dealer Royal Alliance Associates in 2007 and 2008, and continued her investment relationship with Tarr in 2010 when Tarr moved to...

Excerpt: ... COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/02/20 ‐ 8 ‐ Facts Alleged This action asserts claims for personal injury and property damage arising out of an alleged incident on March 20, 2019. They allege defendant Jeremy Perkins committed vandalism on their vehicles and other property and inflicted emotional distress when he “stalked” Mr. Harrison at his home and threatened to return with a gun. As to GFOS, p...

Excerpt: ...Procedure § 425.16(b)(1) provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on th...

Excerpt: ...gment as a matter of law. (Material Fact Nos. 2, 3, 4, 6, 9, and 10; Additional Fact Nos. 1, 3, 4, 6, 8, and 9.) Plaintiffs' Motion for Summary Adjudication as to Guo/Lin's Fifth Cause of Action, for Trespass, in Guo/Lin's Cross‐Complaint is moot because the Cross‐Complaint has been dismissed. Trespass and Nuisance To establish trespass, plaintiffs must prove an intentional, or at least a negligent, entry onto their property. (See CACI 2000, ...

Excerpt: ...on already asserted in the initial complaint. Defendant opposes the motion on the following grounds: the proposed 1st amended complaint fails to allege sufficient facts to state any cause of action against Gary Ross; the plaintiff only alleges that Mr. Ross is the spouse of Marilyn Ross, who is named as a defendant in this action; the proposal to add Gary Ross as a defendant is merely retaliatory in nature, because plaintiff's husband is a named ...

Excerpt: ...se to the action", that the papers show "there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law". (§ 437c(a)(1) and (c).) A plaintiff meets her burden on summary judgment if plaintiff "'has proved each element of the cause of action entitling' [her] to judgment on that cause of action." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) A motion for summary adjudication under ...

Excerpt: ...ligence and premises liability. The Cross‐Complaint alleges causes of action for declaratory relief, complete indemnity, and equitable contribution. For the following reasons, the unopposed MSJ is granted. Standard Code of Civil Procedure § 437c(o)(1) and 437c(p)(2) provide the relevant legal standard for deciding the MSJ. Section 437c(o)(1) provides, in relevant part: A cause of action has no merit if one or more of the elements of the cause ...

Excerpt: ...G. Hayes and Hayes Insurance Agency, for defendants to serve as a Broker/Agent and provide plaintiff with insurance. (Corrected Second Amended Complaint (SAC), ¶10.) Defendants orally agreed to provide insurance brokerage services to procure various types of requested insurance at the lowest price for plaintiff. (SAC, ¶10.) Defendant Hayes would submit quotes for coverage identifying the types of coverage for each policy, its limits, and total ...

Excerpt: ...cial Notice filed 6/12/20. It takes judicial notice of the fact stated in the Request. First Cause of Action, Negligence This cause of action alleges that CVCHS owed a duty to exercise reasonable care to avoid injuring plaintiff and to prevent B.H. from sexually assaulting plaintiff, based on a special relationship with plaintiff and its knowledge of B.H.'s prior misconduct (¶ 25.a., b.), its duty to maintain its campus in reasonably safe condit...

Excerpt: ...he City's time to answer the remainder of the FAC will run from that time. Preliminary Matters The FAC is unconventional in format. Its first eleven or so pages consist not of numbered paragraphs, but of narrative advocacy (complete with photos) in a manner more consistent with a trial brief or settlement brief. If plaintiff chooses to amend, his counsel should proceed in more conventional format and content. Plaintiff complains that the notice o...

Excerpt: ...trance) that no other discovery mechanism really exists. The deposition is not crucial under the three (3) prong test of Carehouse Convalescent Hospital v. Superior Court 143 Cal.App.4th 1558, 1563, citing Spectra Physics vs. Superior Court 198 Cal.App.3rd 1487, 1496. The requirements for a deposition of opposing counsel are: 1. Does the proponent have practical means to obtain the information? 2. Is the information crucial to preparation of the ...

Excerpt: ...ll be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” Plaintiffs argue that Rivlin's motion is procedurally improper because it was not filed within the 60 day timeline, and a hearing on the motion was not set within 30 days. This motion was not filed until June 9, 2020 and the hearing was set for September 11, 2020. Plain...

Excerpt: ...ral‐question jurisdiction. After defendant moved for summary judgment, however, the District Court issued a sua sponte order remanding the case back to this Court, holding that no valid federal cause of action existed because the sole federal statute that plaintiff purported to sue on, IDEA, does not create a private cause of action for damages. Defendant contends that in light of this ruling, it was incumbent on plaintiff to dismiss her IDEA c...

Excerpt: ...ause of action (fiduciary duty), fourth cause of action (common count), fifth cause of action (constructive trust), and sixth cause of action (accounting). The Court does not agree, however, that plaintiff's claims under the Option Agreement, or otherwise pertaining to plaintiff's having or not having an interest in the company, are arbitrable. Further, because plaintiff's claims to establish his interest in the company are the necessary conditio...

Excerpt: ... case as applicable to his remaining claims. The Court is staying those claims and referring them to arbitration, but they nevertheless remain in the complaint at least for purposes of framing the issues for arbitration. Whether he may be entitled to plead or collect punitive damages as to those claims will be for the arbitrator to decide. Attorney Fees The same is true of his prayer for attorney fees. The Option Agreement contains no contractual...

Excerpt: ...ses of action for premises liability and negligence. Accordingly, the motion for summary judgment is denied. Standard “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure § 437c(c).) “[F]rom commencement to conclusion, the party moving for summary judgment bea...

Excerpt: ...It is otherwise overruled. The Complaint Plaintiffs allege that Wu was walking their dog Sophie, a miniature Shetland sheepdog. Defendant Irina Volkov was walking the Volkovs' dog Gus, allegedly trespassing in the common area of plaintiff's homeowner association. Gus attacked Sophie, resulting in severe injuries to Sophie. Plaintiff Yung came rushing out of plaintiffs' house to intervene and was himself bitten and injured by Gus. Plaintiffs alleg...

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

Excerpt: ... means Mr. Bridges, and “plaintiffs” means both him and his wife.) In addition, B&C was sued for equitable indemnity, contribution and declaratory relief by Blocka Construction. B&C has filed this motion for summary judgment seeking judgment in its favor for both the complaint and cross‐complaint, arguing that B&C was not negligent. Plaintiffs have opposed this motion, though Blocka Construction did not. (Blocka has since settled with CONTR...

Excerpt: ...em, Tracy Clark). The TAC alleges claims for negligence and premises liability. For the following reasons, the unopposed MSJ to the TAC is granted. Classic should submit a judgment accordingly. Standard Code of Civil Procedure § 437c(o)(1) and 437c(p)(2) provide the relevant legal standard for deciding the MSJ. Section 437c(o)(1) provides, in relevant part: A cause of action has no merit if one or more of the elements of the cause of action cann...

Excerpt: ...artinez were drinking to excess at the Hotel Mac with defendant Goshay present. Later, the three returned to Hill and Goshay's home. Plaintiff joined the three at Hill and Goshay's home after being invited over. Within a half an hour, Martinez became ill and was taken to a separate bedroom by Hill and Goshay. “Despite defendant Hill and Goshay's knowledge that Martinez had a history of violence after consuming alcohol, and without warning Plain...

Excerpt: ... that at approximately 11:57 p.m. on April 7, 2017, he was walking south on the western edge of Berry Drive in Pacheco when he was struck by a vehicle driven by defendant Roy Jarrard. (TAC ¶ 14.) That portion of the western side of Berry Drive had "a curb, and an apparent sidewalk area that abutted a fence along the eastern edge of Interstate 680." (TAC ¶ 15.) The pathway was "a dangerous condition as it was unpaved, was filled with mud, CONTRA...

Excerpt: ...ent as to PNC (unlike as to Clear Recon, see Line 13), she has not updated her factual allegations to reflect intervening events. For example, the FAC continues to allege that the foreclosure sale is scheduled for November 29, 2019 – but this pleading was filed in April 2020. The FAC gives the Court no information on what has happened since, or whether plaintiff still owns or occupies the property. This demurrer calls for a little more discussi...

Excerpt: ...f action (negligent misrepresentation). It is sustained with leave to amend as to all other causes of action. The Marra trustees may serve and file a first amended cross‐complaint by September 18. If they elect not to do so, the Horvaths' time to answer as to the surviving cause of action will run from that date. In light of this ruling and the upcoming summary judgment motion of plaintiff, the CMC now set for next Wednesday is continued to Nov...

Excerpt: ...d prepare and present a separate judgment. Opening Procedural Notes The Court notes with disapproval plaintiff's express refusal to meet and confer as required by statute. Given the result here and the minimal chances that any meet‐and‐confer would have been fruitful, however, the Court makes no more of the issue at this point. The Court also notes that although it had previously admonished plaintiff (himself a retired attorney) as to the ina...

Excerpt: ... parties' contract, but exercises its discretion to stay the action under Code of Civil Procedure § 410.30. The issue of arbitration is left to a Washington forum. Facts Plaintiffs Wang Brothers Investments LLC and Kai‐Wei Wang filed suit against Directing Lending and Fiuzi alleging a single cause of action for declaratory relief. They seek a declaration that defendants are not entitled to recover a $160,000 commission for their services in lo...

Excerpt: ...interrogatories seeking the bases for the affirmative defenses. 1 Weil & Brown, Civil Procedure Before Trial § 7.35.1 (Rutter Group 2018). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 08/21/20 ‐ 41 ‐ As for demurrers to answers – really? Chafetz, Civil Law and Motion Practice in Contra Costa County, Contra Costa Lawyer, November 2018, p. 33. The Court respectfully questions whether this demurrer is a good u...

Excerpt: ...OURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 08/21/20 ‐ 6 ‐ I. Factual Background Plaintiff and defendant were formerly a couple, though never married. They have a child in common, a daughter who is now an adult. In 1998, when the daughter was still an infant, the parties cooperated to purchase the property at issue – 10 Osborne Way, in Danville – to provide a place for defendant and the daughter to live in. Plaintiff paid the d...

Excerpt: ...ry law firm. In June 2019 that firm was joined by the Bauman firm (plaintiff's present counsel) by association of counsel, and the Bauman firm substituted in as sole counsel in August 2019. It was throughout this time period that defendant was seeking fruitlessly to obtain written discovery responses from plaintiff. The record reflects a long series of meet‐and‐confer efforts, in which defense counsel was asking for responses to previously se...

Excerpt: ...ees with the City on certain others. This ruling lays out the Court's views on the points of dispute. Whether an actual writ will be necessary, however, remains to be seen. The Court accordingly sets this motion over to September 4, 2020, at 10:00 a.m., for further review as to the state of compliance, CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/31/20 ‐ 21 ‐ noncompliance, or continued disagreement as to p...

Excerpt: ...cated at 1751 Diane Court in Concord. Plaintiffs signed a lease on or about May 11, 2013, but allege that they resided at the property since from about July 1, 2011, until their eviction in September 2016. Guo Min Li and Minghao Zhong were the owners of the apartment building during most of Plaintiffs' tenancy. Defendant Seek Investments, LLC purchased the apartment building on about June 10, 2015. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA...

Excerpt: ...pose. The trial court's prior judgment was entered after Groth's motion for summary adjudication was granted on his breach of contract cause of action, followed by a bench trial on the remaining causes of action. It was then reversed on appeal last November. I. Motion for Restitution The Gilads argue that they opted to pay Groth pursuant to a judgment that should not have been entered, and accordingly they are entitled to the return of their mone...

Excerpt: ...ured in two separate, otherwise unrelated auto accidents. The first occurred on May 10, 2018, in San Joaquin County. Defendant Vasquez, an employee of Advanced, was the other driver. The second accident occurred on May 7, 2019, in Contra Costa County. Defendant Antonio was the other driver. Guzman alleges that each of Vazquez and Antonio was negligent in their respective accidents. His complaint is very scanty in describing his injuries, but the ...

Excerpt: ...tion. Plaintiff may file and serve a second amended complaint by August 21. If she chooses not to do so, defendant's time to answer the surviving part of the FAC will run from then. Meet and Confer The Court stated on the prior demurrer that it was not satisfied with the attorneys' efforts to meet and confer. The Court remains unsatisfied this time around. Both sides' briefs reflect that inadequate dialog occurred about the subjects in this demur...

Excerpt: ...led late due to mistake on plaintiff's counsel's part, counsel has represented that the opposition brief was timely served. Defendants raise no objections on this basis and the Court has considered the opposition on its merits. A court assessing a demurrer accepts as true the facts pleaded in the complaint, but rejects contentions, deductions and conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Aubry v. Tri‐City Hospital ...