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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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