Excerpt: ...1771, 1778 n.3. Petitioner makes a number of arguments against the suspension order, most of them insubstantial. One of her attacks, however, has substance: DMV's lack of a showing that the officer administering the Draeger breath test was properly trained. Both parties agree that a Draeger test result is inadmissible in a DMV administrative per se (APS) hearing under Title 17 if the officer is not shown to have been properly trained. (The Court ...

Excerpt: ...l be deemed denied and she will remain in default. (No default judgment has been entered at present.) The arguments on this motion are surprisingly technical. The underlying facts are not really debated. It is fairly clear that the purported service on Fei Lan, as documented by the Proof of Service of Summons filed by plaintiff, was defective and ineffective. (That is not necessarily a criticism of plaintiff, who may well have had no better infor...

Excerpt: ...eja and Vegas have dismissed their claims against Freshko. No dismissal was filed, but the Court takes this statement as an agreement with Freshko's argument, and therefore the Court sustains the demurrer without leave to amend as to Ceja and Vegas. Freshko argues that Olivares's claim against it is untimely because it was filed more than two years after the accident occurred. Olivares's cross‐ complaint alleges that the accident occurred on Ja...

Excerpt: ...ss Buybacks, LLC from June 13, 2013 to March 1, 2016. (First Amended Complaint [FAC], ¶ 13.) Sprint alleged that Snyder d/b/a 31 Echo conspired with Wireless Buybacks and Brendan Skelly to unlawfully resell Sprint smart phones from 2011 through 2016, both before and during Snyder's employment with Wireless Buybacks. (See FAC, ¶¶ 16‐20.) When Snyder passed away in October of 2016, Sprint substituted Moore in as trustee of various Snyder trust...

Excerpt: ...07/18 ‐ 7 ‐ Welcome Market's Motion. Welcome Market shows, and plaintiff acknowledges, that there is an agreement in place to arbitrate these disputes. Plaintiff, however, contends that the Court should refuse to enforce the agreement as unconscionable. To invalidate an arbitration agreement as unconscionable, a party must show that it is unconscionable both substantively and procedurally (though the two elements need not be present in the sa...

Excerpt: ... 2018. If he does not do so, the third cause of action will be deemed abandoned and crossdefendants must file and serve answers to the FAXC by August 27. The FAXC's first cause of action is for fraud; the second, for fraudulent concealment; and the third, for intentional infliction of emotional distress. The FAXC is lengthy, containing a detailed narrative of Romero's side of the story on this home‐remodeling contractor dispute. His actual CONT...

Excerpt: ...e argument for its relevance, and the Court assumes that the interrogatory responses might be helpful to plaintiff on the summary judgment motion. What plaintiff does not do, however, is to demonstrate any plausible excuse for not having sought this discovery more timely. As Jacobs points out, this is an unusual case in that his summary judgment motion has been in plaintiff's hands since last September. Plaintiff responded to it fully in January ...

Excerpt: ...kground On Monday, January 25, 2016, plaintiff was walking west, on the north sidewalk of Olympic Boulevard in Walnut Creek, California, just west of South Main Street. (Undisputed Material Fact (“UMF”) Nos. 2, 3.) As she was approaching the scene of the accident, she noticed a metal pole bent at an angle in her path of travel, approximately 50 feet in front of her. (UMF No. 3; see Ex. 5 to O'Donnell Decl. filed 6/8/18.) She believed she coul...

Excerpt: ...TE: 06/22/18 ‐ 2 ‐ (2) for defendants to cure the existing default on the mortgage (which defendants were supposed to pay, but on which plaintiff was the obligor); and (3) for defendants, if possible, to arrange to refinance the house or assume the mortgage, so as to relieve plaintiff of any debt obligation as to the property. If defendants did not cure the mortgage default, or if they did not or could not arrange to get plaintiff off the loa...

Excerpt: ...act nothing of the kind was attached or otherwise filed. Defendant does belatedly provide the proof of service now, however, as well as a declaration stating that a notice of motion bearing the date and time was served. In any event, it is apparent that plaintiff has been able to ascertain the date and respond to the motion. Plaintiff has also belatedly served discovery responses, none of which includes any objections. That moots the motion. Defe...

Excerpt: ... of the Court's prior grant of leave to amend. (The Court notes with disapproval that neither side has filed and served an Order After Hearing concerning either of those rulings.) In the meantime, however, the principal statute underlying plaintiffs' claims (Civil Code § 2923.6) ceased to be in force, having reached its sunset date without re‐enactment (at least not under the same section number). At a CMC in January the Court directed the att...

Excerpt: ...Dolores Street Community Services (together, “Wells”) when deciding Lillian Larios's motion and the evidence submitted by Larios when deciding Wells' motion. This appears to have been the intent of the defendants – Larios referenced evidence submitted by Wells in her motion, and Wells filed a joinder to Larios' motion. However, this intent was not clearly stated in the notice of motions and the Court wants to avoid any prejudice to Plaintif...

Excerpt: ...ill resend (and revise) the mailing, using both reported addresses for Ms. Toy. She is admonished, however, that if she wants to receive the court's mailings, she must see to it that she updates her address in the court's files. For the same reason, the Court is concerned to ensure that the 1390 Market address is a valid address for service of any papers on Ms. Toy. If that is not confirmed, then the present motions would have to be denied for la...

Excerpt: ...arge voting structure impermissibly dilutes the votes of racial minorities, namely Latinos and blacks. The result of the District's at‐large voting system is that it deprives racial minorities of the opportunity to elect the trustees that comprise the District's five‐member Board. The District's Board governs five cities – Richmond, San Pablo, Hercules, El Cerrito, and Pinole – and eight unincorporated areas. The totality of the circumsta...

Excerpt: ...30 days after service of the Order After Hearing hereon. If he elects not to do so, the case will be dismissed. Defendants' attorney, Thomas Crowell, submitted a declaration showing compliance with the meet and confer requirements in Code of Civil Procedure § 430.41. Plaintiff submitted a declaration stating that he does not recall Crowell calling him on April 11, 2018 to discuss the FAC. The Court accepts Crowell's statement that he discussed t...

Excerpt: ...of the Order After Hearing hereon. HOLA Preemption Wells first argues that the entire FAC is preempted by the federal Home Owners Loan Act (HOLA), 12 USC §§ 1461 et seq., and its implementing regulation, 12 CFR § 560.2. See generally, e.g., Lopez v. World S&L (2003) 105 Cal.App.4th 729. Such preemption is limited to federal savings banks, which Wells admittedly is not. Wells Fargo nevertheless argues that HOLA preemption applies here because t...

Excerpt: ...2 ‐ Code of Civil Procedure § 436(b) permits the court to grant, or deny, a motion to strike if the challenged pleading is not in conformity with an order of the court. However, It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it ...

Excerpt: ... serve the amended cross‐complaint on or before July 15, 2018. This case arises out of a disagreement over the purchase of a residence in Richmond. The cross‐complaint alleges that cross‐complainant Kingsway located a short‐sale property, available for purchase at $200,000 below market value. Kingsway and Gardner reached agreement in November 2016 to work together to buy the property and resell it. Their written agreements called for Gard...

Excerpt: ...denied in all other respects. The Court starts with the observation that this motion represents a failure to meet and confer. There is no formal requirement to do so in this setting, but prudent counsel on both sides would have given it more of a try before proceeding with motion practice. Probably the parties would have had to litigate at least the § 998 issue (absent a compromise of the issue, which was certainly a possibility). But a couple o...

Excerpt: ... claim for punitive damages from Plaintiff's complaint. Following that Order, on February 28, 2018, Plaintiff filed a first amended complaint (“FAC”) that, by comparison to the original complaint, substantially increases the factual allegations supporting a prayer for punitive damages in this case. Plaintiff's FAC alleges that Plaintiff, then a 5th or 6th grade student at the School, was subjected to disability discrimination after he slipped...

Excerpt: ...on or before July 15, 2018. Background This case arises out of a failed transaction for Thomas and Hilary Holden to sell 783 Los Palos Manor in Lafayette, California to cross‐defendant William Wahl. The Holdens alleged that the sale fell through after two checks (one for $50,000 and the other for $10,000) that Wahl placed as a deposit into an escrow administered by Fidelity were dishonored for insufficient funds. The CONTRA COSTA SUPERIOR COURT...

Excerpt: ...the case in Lines 10‐12). In that case she obtained an attachment as to one of Ng's assets, namely a note and deed of trust executed in Ng's favor by the Kellys, the defendants in this case. (Ms. Kelly is Ng's daughter; Mr. Kelly, his son‐in‐law.) In this action, plaintiff seeks to enforce the Kelly note in her capacity as a judgment creditor or potential judgment creditor of Ng. The timing of all this is complicated by the course of plaint...

Excerpt: ...AC until their reply. As best the Court can tell, defendants seek to strike the FAC because it is a sham pleading – by which defendants apparently mean nothing more than that the FAC is defective for the reasons argued in their demurrer. The Court rules on the demurrer in Line 20. The motion to strike adds nothing. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/15/18 ‐ 34 ‐ 22. TIME: 9:00 CASE#: MSC17‐015...

Excerpt: ...y 15, 2018. This dispute has been running in various courts for some time. Plaintiff first filed a small‐ claims case in this Court in 2016, alleging (in less detail) her difficulties in working with Seterus. She also filed a case in federal court for violation of a parallel federal statute, and the small‐claims case was removed to federal court under supplemental jurisdiction. In August 2017 the federal court granted summary judgment against...

Excerpt: ...f this ruling, the Case Management Conference now set for June19 is premature. The CMC is continued to October 31, 2018 at 8:30 a.m. This case arises out of plaintiff's claim that defendants rented her an uninhabitable premises, 1300 Roosevelt Ave., #420, Richmond, California. Defendants move for judgment on the pleadings as to the Fourth Cause of Action, Negligence, and Fifth Cause of Action, Intentional Infliction of Emotional Distress, arguing...

Excerpt: ... might be (at least part of) Bidsmart's response. There is nothing in the declaration identifying what that page is, though, let alone authenticating it under oath as accurate and complete. On the contrary, the page is presented simply as part of a meet‐andconfer letter. Without more, the Court has no way of reliably knowing what responses Bidsmart made or didn't make, let alone judging whether they are appropriate or not. The Court also notes ...

Excerpt: ... motion was not filed until May 2. Plaintiffs' reply asserts that the 30‐day deadline in the Local Rule is “intended as a deadline for a party to raise objection to the facilitator's recommendation, not the filing of a motion to compel after participation in the program.” The plain language of the Rule is contrary; it states that the 30‐day deadline is for filing and service of “a formal Discovery Motion”. That means either a motion t...

Excerpt: ...o sanctions are awarded. In the event that defendant has served responses prior to the hearing, no matters will be deemed admitted, but sanctions are awarded to Plaintiff in the amount of $1,000. The Court has read defendant's opposition brief, laying out in general terms the reasons why defendant thinks plaintiff should not be suing her. None of that is before the Court on this motion, however, and none of it bears on the present motion. This mo...

Excerpt: ...er, never filed the settlement agreement itself, or any § 664.6 judgment thereon. Nor did the Notice inform the Court of any of the terms of the settlement, beyond reporting that the date by which a final dismissal of the case would be filed was March 15, 2017. In particular, there is nothing by which the Court reserved jurisdiction to enforce the settlement. Because March 15 came and went with no dismissal filed, the Court sent an OSC why the c...

Excerpt: ... the other case were not pending. In this case, Uecker (as liquidating trustee) is suing defendants Ng and Wild Game to collect on a note and guaranty made by defendants in favor of Horwitz. Defendants are defending the case on the theory that the purported note and guaranty were sham transactions intended to conceal Horwitz's alleged equity participation in Wild Game by falsely depicting Horwitz's involvement as a debt. The Court of Appeal has h...

Excerpt: ...Code of Civil Procedure § 430.10(e) on the grounds that it did not owe a duty of care to Plaintiffs because it did not own, possess, or control the premises at the time of Plaintiffs' injury. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 2 ‐ The demurrer is overruled. Seterus must file and serve its answer to the TAC by June 29, 2018. Seterus demurred to the Second Amended Complaint on the exact sam...

Excerpt: ...cedural Setting At the outset, there is some imprecision and awkwardness about how this motion was filed and whether it is properly before the Court for decision. At a CMC the parties suggested that a major obstacle to possible settlement was disagreement as to the applicability of MICRA. The Court suggested that the parties might benefit if they could find a vehicle for presenting that “logjam” legal question to the Court for early decision,...

Excerpt: ...icable three‐year statute of limitations. (Code of Civil Procedure § 338(a).) Plaintiffs allege that defendants' recordation of a notice of default in April 2013, and their recordation of a notice of trustee's sale in July 2013, violated HBOR. (FAC, ¶¶ 25‐27.) Yet plaintiffs did not commence this action until December 2017, more than four years later. In their opposition memorandum plaintiffs seek to invoke the doctrine of equitable tollin...

Excerpt: ...o this Court as the appropriate venue. The first amended complaint asserts causes of action for (1) negligence, (2) negligent failure to carry sufficient liability insurance, and (3) vexatious failure to pay plaintiff's claim. The second and third causes of action do not exist in the law. Defendant owes no duty to plaintiff as to how much insurance he chooses to carry, so long as he carries the statutory minimum coverages. Plaintiff does not alle...

Excerpt: ...laint against Hertz, alleging that she had purchased insurance from Hertz. The cross‐ complaint asserted claims for bad‐faith denial and indemnification. Nowhere in the crosscomplaint, however, did Kuney state any amount for the compensatory or punitive damages sought. Nor did she serve any statement of damages. Because the cross‐complaint was basically one for indemnification, it might be argued that Kuney could not know the amount of her ...

Excerpt: ...ding.” Section 436 (b) permits the court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Section 437(a) provides that “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” As plaintiff tacitly concedes, there is no legal bas...

Excerpt: ...erous motions to compel discovery, with awards of sanctions. Plaintiffs have not complied with the Court's orders, nor have they paid the sanctions. They have simply ceased to respond. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 18 ‐ This is to the obvious prejudice of defendants, who have not been able to conduct meaningful discovery in the case. Plaintiffs have not responded to the present motion...

Excerpt: ...are denied. Liability of Ruggio In Special Verdict 1, the jury was asked whether each of Johnson and Ruggio were negligent. The jury answered “yes” as to both. In Special Verdict 2, the jury was asked whether each defendant's negligence “was a substantial factor in causing harm to [plaintiff]”. The jury answered “yes” as to defendant Johnson, but “no” as to defendant Ruggio. Plaintiff's principal argument is that the jury erred in...

Excerpt: ...t is surely not a documentintensive case. Nor is it a case that could reasonably be expected to generate any substantial volume of privileged documents on either side, aside from each attorney's routine case file. Nevertheless, the Court is presented with several inches of paper on points quite unlikely to yield any results of consequence for either side. Plaintiff served identical sets of document requests on the two individual defendants. Now a...

Excerpt: ...(2) violation of RESPA (12 CFR § 1024.41); (3) violations of Equal Credit Opportunity Act (15 USC § 1691); (4) violations of Business and Professions Code § 17200; (5) wrongful foreclosure; (6) negligence; (7) cancellation of deed; and (8) quiet title. As with their opposition to Defendant's demur to the Plaintiffs' first amended complaint, Plaintiff's opposition to the Defendant's demur to the second amended complaint is overlong. Plaintiff's...

Excerpt: ...ode of Civ. Proc. § 430.10(e) on several grounds. The demurrer is sustained without leave to amend as to the second cause of action. It is sustained with leave to amend as to the remaining causes of action. A Third Amended Complaint may be filed and served within 30 days after service of the Order After Hearing hereon. Request for Judicial Notice Defendant requests judicial notice of several county recorder documents as well as pleadings and ord...

Excerpt: ...ituted out”. (The Court notes that arguably it was improper for counsel to “substitute out” when the proposed substitute representation (a corporation appearing pro per) was unlawful; counsel should instead have moved to withdraw. As it appears that such a motion would have been consented to by the client, however, the Court will overlook the point for present purposes and accept that Priceless has no lawyer in this case.) Plaintiffs are co...

Excerpt: ...edural context. (See Beach Break Equities, LLC v. Lowell (2016) 6 Cal.App.5th 847, 852‐54.) There is an exception to the general rule when the defendant has engaged in conduct the court finds “inequitable.” However, this is a narrow exception, and the Court finds that it is not applicable here. The Textron decision is the appellate decision most closely on point. (See, Textron Financial Corp. v. National Union Fire Ins. Co. (2004) 118 Cal.A...

Excerpt: ...ome detail how he proposes to amend and how that will cure the problems identified. Chevron shall file and serve its Answer to the TAC on or before June 1, 2018. Statute of Limitations A defendant may file a general demurrer to a complaint if the complaint shows on its face that it is barred by the statute of limitations. (See Lee v. Hanley (2015) 61 Cal.4th 1225, 1232.) Chevron argues that the face of the pleadings and the matters of which the c...

Excerpt: ..., CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/18/18 ‐ 16 ‐ Defendant demurs to the Complaint pursuant to Civil Code § 430.10(e) on the following grounds: (1) Plaintiff's claims are time barred; (2) Plaintiff is not an appropriate class representative; (3) Plaintiff fails to allege a community of interest; and (4) Plaintiff fails to adequately allege facts supporting the predicate statutory violations of her 17200 claim. Defendant also demurs ...

Excerpt: ...ment interest is an element of damages, not of costs. Hence, absent a stipulation like the one applicable to Line 3, a request for an award of prejudgment interest should be presented either before judgment is entered, or by way of a new trial motion. North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824. Even if the procedural problem is ignored (and no party has raised it), the motion is substantively unmeritorious. On a tort claim, ...

Excerpt: ...nctions are awarded in favor of Ms. Sheedy. This motion comes as part – hopefully the last part – of an extraordinary set of discovery disputes in this case. These disputes occupy several volumes of the Court's case file despite the fact that nearly all of it has actually occurred before a Discovery Referee and not in court. It is to be feared that both sides' counsel have allowed this matter to become more personally rancorous than is profes...

Excerpt: ...Government Code § 946.6. “Section 946.6 is a remedial statute intended ‘to provide relief from technical rules that otherwise provide a trap for the unwary claimant.'” Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 275. Courts exercise their power to grant relief liberally, so as to preserve meritorious claims wherever possible. Any doubts are to be resolved in favor of permitting the suit to proceed. Viles v. Califo...

Excerpt: ...Code of Civil Procedure § 430.10(e).) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 04/20/18 ‐ 9 ‐ The SAC alleges or can reasonably be construed to allege the following. The plaintiffs and the lead defendant, Gerald Knopoff, are siblings, the children of Leon Knopoff. When Leon died, the children were left $7 million in a trust. But when the trustee, Gerald Knopoff, distributed the funds, each child received ...

Excerpt: ...� 6 ‐ motion for leave to amend the complaint to correct typographical errors and to add two causes of action—Declaratory Relief and Injunctive Relief. Motions for leave to amend the pleadings are directed to the sound discretion of the judge. “The court may …, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading…” Code of Civil Procedure § 473. Judicial policy favor...

Excerpt: ...t last fall. Plaintiff/cross‐defendant Korb filed a demurrer to it. On December 15, 2017 the Court took that demurrer off‐calendar because Romero had responded by proposing to amend his pleading in response to what he said were “good points” made by his opponent. The Court granted Romero leave to file his First Amended Cross‐Complaint by January 15, 2018, and expressly directed the parties to meet and confer before that filing in the ho...

Excerpt: ...ender, rested on Rad's debt to the HOA for failure to pay HOA assessments. Spinnaker thereafter obtained the present California judgment on sister‐state judgment, pursuant to Code of Civil Procedure § 1710.25. Defendant Rad now moves to vacate the judgment pursuant to Code of Civil Procedure § 1740. The motion is granted. Venue As the last, most cursory item in his motion, Rad states that Contra Costa County is the improper venue for the judg...

Excerpt: ... of several county recorder documents. This request is unopposed. The request is granted. Evid. Code §§ 452, 453. Setting Aside the Foreclosure Sale “A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender.” Moeller v. Lien (1994) 25 Cal.App.4th 822, 831. “As a general rule, a trustee's sale is complete upon acceptance of the final bid.” Nguyen v. Calhoun (2003) 105 Cal...

Excerpt: ...rnal failure. Defendant Sears Roebuck and Co. distributed the freezer and obtained it from defendant Midea. CSAA brings causes of action against Midea for strict liability, negligence, and breach of warranty. Midea moves for summary judgment on the basis that no evidence shows that a defect in the freezer in fact caused the fire. It also seeks to dispose of the breach of warranty claim based upon a lack of privity between it and CSAA's insured, M...

Excerpt: ...e BHGRE's present claim. Plaintiff Wells Fargo obtained a default judgment in this case against defendant Mason‐McDuffie in the amount of $54,420.68. Wells Fargo seeks to collect that judgment by levying on MasonMcDuffie's bank account at Union Bank. BHGRE, however, asserts in this motion that it has a superior right to the funds. It points out that nearly all the funds in the account come from an insurer's refund to Mason‐McDuffie of an over...

Excerpt: ... position to be able to do. Parish is no longer an employee of defendant District. Moreover, although defendant is understandably reticent concerning the circumstances as to the termination of Parish's employment, it is not difficult to infer (from the administrative leave that preceded the termination) that Parish may have left the District on less than friendly terms. Plaintiffs make no effort to explain how the District is supposed to be able ...

Excerpt: ...gh May, 2017 when her position was eliminated. She brings six claims related to her termination: 1) disability discrimination; 2) failure to accommodate a disability; 3) failure to engage in the good faith interactive process; 4) retaliation; 5) failure to pay wages due upon termination; and 6) wrongful termination. At the time of her hiring, plaintiff executed a document entitled the “Working Agreement” (Agreement). This 11‐page document i...

Excerpt: ...t 1:10 with Motion to Vacate filed 2/2/18 at 1:15.) Neither of these, however, is supported by any evidence or testimony under oath. A plaintiff seeking to vacate a default judgment on grounds such as these has both statutory and non‐statutory remedies. The former include remedies under Code of Civil Procedure §§ 473(b),(d) and 473.5. The nonstatutory remedy includes a suit in equity or a motion based on a claim of extrinsic fraud or mistake....

Excerpt: ...hich relief may be granted” is a procedural label used in federal court, not California court. The state‐court equivalents are a demurrer, or a motion for judgment on the pleadings (MJOP). (See Code of Civil Procedure §§430.10, 438.) Because defendant has filed a document captioned “Answer” (about which more shortly), the Court treats this as an MJOP. Second: The miscaptioning of defendant's motion is of little consequence to the outcom...

Excerpt: ...�employee) to engage defendant Rana as a broker to negotiate the Thekkeks' purchase of a 49% interest in Corona from the Ferrers. Having discussed the deal with the Ferrers, Rana engaged his long‐time attorney Sandbank to draft the deal documents. Then in 2014, Singh and Rana negotiated to buy the Thekkeks' interest in Corona. Again Rana arranged for Sandbank to draft the deal documents. The gist of the present lawsuit is the Thekkeks' allegati...

Excerpt: ...s, she finally tendered a request for publication in March 2017, which was however rejected for lack of any supporting paperwork such as a showing of diligence. In June 2017 her renewed request to serve by publication was rejected with a direction that she check criminal dockets for relevant cases (because this case arises out of an alleged DUI accident). Plaintiff apparently misread this rejection as an approval, and proceeded to publish during ...

Excerpt: ...ior briefing order. The statements to which Fry's makes “objections” are arguments and characterizations of the state of the record, not evidence. Fry's is thus trying to sneak in a reply brief, not called for in the Court's order, by relabeling it as “objections.” In any event, the objections, such as they are, go to the weight the Court should give to the material presented by the March 19 Response, rather than its admissibility. On tha...

Excerpt: ... attorney; and Meyers's law firm, Westpro Realty, Inc. In brief, plaintiffs allege that defendants contrived to evict plaintiffs from the premises by serving a series of inflated or unfounded three‐day notices to quit or pay rent and then filing two unmeritorious unlawful detainer actions (the second of which is apparently still pending). Plaintiffs also allege that defendant Pineda unlawfully applied plaintiffs' $2,000 security deposit to plai...

Excerpt: ... the consolidated or coordinated cases should be in Contra Costa County rather than San Mateo County. The Court notes that the defendants in both cases are on record as preferring Contra Costa. Plaintiff, for its part, argues unconvincingly against transferring either case. But, if one of the cases is to be transferred, plaintiff gives no indication which County it thinks would be more appropriate. If the Court sticks with its tentative view that...

Excerpt: ...tration Code of Civil Procedure § 1281.2 creates a summary proceeding for resolving petitions to compel arbitration. “A petition to compel arbitration ‘is in essence a suit in equity to compel specific performance of a contract.'” Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 411 (internal citation omitted). In these summary proceedings the trial court sits as a trier of fact, weighing all the affidavits, declarat...

Excerpt: ...ing date, they may simply notify the Court of that intention and provide a stipulation in due course. The parties have stipulated to continue all hearings to April 13, in order to accommodate a serious personal situation for defendants' counsel. However, the Court also wishes to receive supplemental briefing on selected issues, as discussed below, and the proposed April 13 date would likely not provide enough time for the parties to prepare such ...

Excerpt: ...1985) 167 Cal. App. 3d 544, 549; CRC 3.1300 (d).) The central issue in this case is who had the responsibility for verifying that plaintiff was well enough to under surgery by requesting that there be a metabolic panel test, ensuring it was done before permitting the surgery to proceed, and ensuring that the appropriate persons were provided the results for review. Plaintiff alleges that before the July 18, 2017 deposition of his CONTRA COSTA SUP...

Excerpt: ...ered to meet and confer in person or by telephone, as required by Code of Civil Procedure § 430.41 (a). Meeting and conferring by letter, as occurred here, is not sufficient. Plaintiffs' Opposition to this motion was filed late. It was required to be served and filed on or before March 12, 2018. It was personally delivered on March 13, 2018. It was not filed until March 14, 2018. In its discretion, the court considers the late‐filed Opposition...

Excerpt: ...Plaintiff Manh Singh Khalsa is a Sikh man. On September 25, 2016, while driving home, he encountered defendants Chase Little, Colton LeBlanc, Dustin Albarado and Doe 26 at a red light at an intersection in Richmond. Little threw a beer can at plaintiff, and the others yelled at him. The cars proceeded beyond the intersection. At another red light, Little, LeBlanc, and Albarado exited their vehicle and punched at plaintiff through his open window....

Excerpt: ...arties whether or not the amended complaint changes any allegations regarding all parties because an amended complaint generally supersedes the original complaint for all purposes. (See 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 6:688, p. 6‐193; State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) The court does not work with one complaint for the parties that choose to answer rather...

Excerpt: ...ase real property. Plaintiff alleges that she has performed her obligations while Defendants have not. Plaintiff filed her complaint on June 23, 2017. On July 25, 2017, Defendant Sobayo, in pro per, filed answers on behalf of himself and his corporation, Kingsway. Plaintiff filed a motion to strike Defendants' separate answers and Defendant Sobayo's cross‐complaint. This Court denied the motion as it related to Defendant Sobayo individually, bu...

Excerpt: ...y the Cigna defendants with rigor, but it appears uncontested for purposes of this action that at least some Cigna entity is a health insurer, governed by the Knox‐Keene Act. ASH is Cigna's agent for claims administration. Diablo alleges that it has provided treatment for Cigna's insured patients, but that Cigna and ASH have underpaid Diablo. The FAC contains a number of listed causes of action, but for analytical purposes they may be grouped i...

Excerpt: ...s of $100,000 to $150,000. PLSCS characterizes the loans as “usurious, unconscionable, unfair, predatory, and fraudulent.” The only meat attempted to be placed on the bones of that string of pejorative adjectives, however, is the conclusory allegation that the loans charged interest rates in excess of what is lawfully allowed. 1st C/A‐Violation of California Civil Code § 1916.1 2nd C/A—Violation of Civil Code § 1916.2 At the outset, cro...

Excerpt: ...fendant'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 collision in which the motorist at fault had only $100,000 in liability coverage. Because Plaintiff's policy had only $100,000 for uninsured/underinsured motorist coverage, Plaintiff received nothing on her underinsured coverage after the tortfeasor's carrie...

Excerpt: ...blish that he is “a person who generally understands the system's operation and possesses sufficient knowledge and skill to properly use the system and explain the resultant data …” (People v. Lugashi (1988) 205 Cal.App.3d 632, 640.) Mr. LaMunyon identifies himself as an “Associate” who has “access to certain of Chase's records,” but he does not explain the duties of an Associate within plaintiff's organization. Mr. LaMunyon doe...

Excerpt: ... outset, plaintiff argues that defendant failed to meet and confer as required by Code of Civil Procedure § 433.5(a)(2). This motion, however, was filed before that section came into effect. Moreover, defendant's counsel recounts that she offered to discuss the issues in the motion to strike after the fact. This is a medical malpractice action. Much of the verified complaint is taken up in alleging the history of defendant's treatment, not of pl...

Excerpt: ... recounts the procedural history of this case and Waraich, to the extent relevant to the disposition of this motion. This case was filed in May 2015. In September 2015 the Court (Judge Spanos) denied the petition to compel arbitration brought by Fry's. Fry's appealed that ruling, and it was affirmed by the First District Court of Appeal. The remittitur was issued on January 19, 2018. The instant motion followed on January 31, 2018. Waraich was a ...

Excerpt: ...ific, the building owner, and Schindler, the company contracted to maintain the elevator at the time of the accident (and now). Sierra Pacific and Schindler in turn cross‐complained against Otis, the company that performed a modernization of the elevator in 2005‐06 and then held the maintenance contract until late 2012. A threecornered jury trial resulted in a substantial recovery for Zapotoczny as against both Sierra Pacific and Schindler, e...

Excerpt: ... want to heed the Court's comments on the need for her to decide what her case really is (see line 1). 9. TIME: 9:00 CASE#: MSC17‐00140 CASE NAME: MARY STORELLI VS. ROSE SATORI HEARING ON MOTION FOR SUMMARY ADJUDICATION FILED BY ROSE SATORI * TENTATIVE RULING: * Defendant's motion for summary adjudication is denied. The motion would not dispose of an entire cause of action, but only one branch of a cause of action. It is therefore impermissible...

Excerpt: ...gn the 1999 deed, or that she did not. Defendant's effort to knock out plaintiff's duress theory is being rejected today for procedural reasons (line 9). But the briefing on that motion is nevertheless revealing: Facing a limitations attack on her claim of having been coerced into signing a deed 19 years ago, plaintiff seeks to rescue that claim from limitations by giving it away substantively – attesting that she actually didn't sign the deed ...

Excerpt: ...ntained provisions for plaintiff to collect attorney fees incurred in enforcing the notes. As plaintiff acknowledges, these are the kind of fee clauses rendered bilateral under § 1717. Plaintiff argues that that statute does not apply here (at least not fully), because some of its pleaded causes of action were on purportedly non‐contractual theories such as open book, misrepresentation, and estoppel. At base, however, all of plaintiff's pleade...

Excerpt: ...c Redacted Version”. A great deal of it – whole pages at a time – is simply blacked out. Moreover, from what can be read in the moving papers, it appears that Jacobs bases his motion principally on the declaration of his expert, Dr. Bickler. But the Bickler declaration has not been filed at all – not even in a “public redacted version”. It just plain isn't there. It's not in the court file, and there is no indication in the computer t...

Excerpt: ...nal service was required. (Id., subd. (d).) Plaintiff attempted to serve defendant with a statement of damages on October 2, 2017. (Dudensing Dec., Exh. “F”.) However, this attempted service was made at a Green Street address in San Francisco, and defendant alleges that he has at all pertinent times resided at a Taraval Street address. (Byrd Dec., ¶ 1.) Further, plaintiff took defendant's default only three days later, on October 5, 2017, an...

Excerpt: ...m, for documents relating to two other identified potential buyers of the property, and the reasons why those sales did not go through. Plaintiffs reason that there may be relevant information in the documents concerning knowledge or disclosure of the alleged problems with the property. Plaintiffs acknowledge that they did not serve any Notice to Consumer on the putative buyers under Code of Civil Procedure § 1985.3. They state conclusorily that...

Excerpt: ...e had not carried its burden on the element of causation sufficient to warrant a grant of summary judgment. The Court's prior tentative ruling focused on the fact that both the pedestrian and the driver had stated that there were no obstructions to their views. At argument, however, plaintiff persuasively pointed out that the evidence on which the Court relied concerned visibility to the crosswalk itself, but did not address the issue of whether ...

Excerpt: ... the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone. Corkland v. Boscoe (1984) 156 Cal.App.3d 989. A court's power to make factual determinations under Code of Civil Procedure § 664.6 (entry of judgment pursuant...

Excerpt: ...y filed an answer to the complaint. Defendants' motion is based on the argument that the complaint does not state any cause of action. Plaintiff Dean Kim has sued Defendants James Totah and Giovanni Cruz for negligence and fraud. “‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resu...

Excerpt: ...arise directly under the dual‐tracking provisions of the Homeowners' Bill of Rights (HBOR). Some or all of the other causes of action may at least be affected by those provisions, in that they appear to appeal to the asserted illegality of the alleged dual tracking here as part of the bases for these other claims. For that reason, the Court draws the attention of the parties to a consideration apparently overlooked by both sides: the dual‐tra...

Excerpt: ...ther plaintiff is suing as the representative of her deceased mother's estate, or on her own behalf, or both. The County argues that the Complaint is demurrable because plaintiff was required to comply with the Government Claims Act by filing an administrative claim before suing, and has not done so. As the County notes, however, the Complaint allege that plaintiff has complied with a claims procedure. If that is not true, demurrer is not the way...

Excerpt: ...as an arbitration provision in the contracts between itself and its members, including plaintiff. This Court (Judge Spanos) denied the petition to compel arbitration, holding that the purported arbitration provision was not part of the parties' contractual relationship. The Court of Appeal affirmed in an unpublished opinion. Having thus defeated defendant's attempt to force this dispute into arbitration, plaintiff now seeks an award of the attorn...

Excerpt: ...udgment on the pleadings and motion for summary judgment. B. Declaratory Relief. The controversy presented to the Court for decision concerns Article VII of the Covenants, Conditions and Restrictions (“CC&Rs”) governing plaintiff's condominium. (Defendant's Supplemental Exhibit 16.) Specifically, the dispute concerns assessments levied by defendant for common area expenses. 1. Background. Plaintiff's CC&Rs define the “Project” as being 52...

Excerpt: ...) which is at a right angle to Walnut Boulevard in Walnut Creek. The Roadway is 30 feet wide and terminates in a 50‐foot‐wide cul‐de‐sac. The Coney property is south of the Dossa property and is closer to the cul‐de‐sac. The Dossa property is to the north of the Coney property and is closer to Walnut Boulevard. The core, but not the entirety, of the parties' dispute is whether the Coneys are permitted to park vehicles along the edge o...

Excerpt: ...tion to deny the motion. The Court sustained defendant Wells Fargo's demurrer to the original complaint in June 2017, giving leave to file a first amended complaint within 30 days. That deadline for amendment was extended by agreement or court order, so as to give the parties time to discuss settlement. The last extension of time, however, ran out in November 2017. There is no evident excuse for plaintiffs' failure to file their amended complaint...

Excerpt: ... March 24, 2015, plaintiff Veronica Wang was a pedestrian crossing the bottom of the Highway 24 cloverleaf offramp in a marked crosswalk. (The moving papers identify it as the exit from eastbound 24, but cursory examination shows it to be the exit from from westbound 24. The detail is not material.) She was struck and injured by defendant Yvonne Pope‐Lane, who was a driver exiting Highway 24 onto northbound Pleasant Hill Road. As relevant here,...

Excerpt: ... disability discrimination after he slipped and fell on an outdoor sports court during recess on December 17, 2014. Following the injury, plaintiff requested and was denied various accommodations. (See Complaint, ¶ 26.) Defendant now moves to strike paragraph 53 of the complaint and paragraph 5 of the Prayer, which seek punitive damages. Punitive damages are recoverable in actions for discrimination. (See Commodore Home Systems, Inc. v. Superior...

Excerpt: ...policies and practices. (Complaint, ¶¶ 1, 2.) Prior complaints led to settlements between the District and other parties in 2009 and 2010. (¶ 3.) Plaintiff continued to receive complaints even after those settlements, so it presented the District with a request for a structured settlement in 2013. (¶ 4.) After more than a year of negotiations, the parties entered into an Interim Settlement Agreement in March 2015. Under the terms of the Agree...

Excerpt: ...negligence is denied. The motion for summary adjudication as to the second cause of action for premises liability is granted. I. Background Plaintiff Michael Thompson, represented in this case by his guardian ad litem Samarra Taylor, fell from a GameTime Play System playground structure at the Gehringer Elementary School. At the time, he was almost seven years old. The following facts are taken from those undisputed among the parties. The play ar...

Excerpt: ... see also Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 02/02/18 ‐ 6 ‐ Here, Plaintiff has alleged two causes of action – Cancellation of Deed, and Quiet Title. Plaintiff transferred the subject property in 2014 to his then‐wife, Defendant Xueyan Cui, as her sole property. Cui sold the property in March of 2016 to the Irwin and Betty K...

Excerpt: ... (“IIED”), 8) negligent infliction of emotional distress (“NIED”), and 9) injunctive relief. Defendant Anna Shane asserts that each of Plaintiffs' causes of action are not actionable because they relate to communications subject to the anti‐SLAPP statute. The motion is granted as to the fifth cause of action (wrongful use of administrative proceedings), and as to all allegations concerning Defendant's alleged communications with the Dis...

Excerpt: ...g Handermann to serve the Asbuns by publication under Code of Civil Procedure § 415.50 in the Florida Times‐Union. The Times‐Union published notices related to this case on October 3, 10, 17, and 24, 2016. On December 5, 2016, default against the Asbuns was entered. On July 17, 2017, the Court entered a default judgment against the Asbuns. This motion followed on November 6, 2017. The basis for the motion is Code of Civil Procedure § 473.5(...