Excerpt: ...he body of the complaint.) The next day, Plaintiff applied ex parte for a temporary restraining order. The Court (Judge Weil) heard the ex parte Application, granted the TRO, and entered an Order to Show Cause to show why a preliminary injunction should not be granted, enjoining the Trustee's Sale of the Subject Property. It is unclear whether anyone appeared to oppose the ex parte, but no written opposition was filed. For the following reasons t...

Excerpt: ...ts and evidence. The Court observes that it would have been better practice to file a single motion on behalf of all three movants – or, at least, to agree with the other side that three nominally separate motions would be supported by a single copy of the voluminous supporting papers. (The opposing party, AMR, properly filed a single set of opposition papers to all three motions.) Be that as it may, however, the motions obviously may be consid...

Excerpt: ...gement of fees is denied. Summary adjudication as to the third cause of action for breach of fiduciary duty is granted. Defendants' motion for summary judgment/adjudication as to the cross‐complaint is denied. The requests of plaintiffs Johnny L. and Mary E. Moore for sanctions, both under Code of Civil Procedure section 128.7 and for the late‐filed Exhibits O and P, are denied. I. Procedural Issues Plaintiffs' memorandum of points and author...

Excerpt: ...to act as to Sherwood's other discovery responses. It denies both sides' requests for sanctions. In addition, on its own motion, the Court strikes Sherwood's answer to the cross‐complaint under Code of Civil Procedure § 436. See Cal‐Western Business Services v. Corning Capital Group (2013) 221 Cal.App.4th 304. (Ordinarily this step would be preceded by an order to show cause, but the Court notes that Sherwood itself argues that this is the a...

Excerpt: ... Friedman's misdiagnosis to conform to an onerous gluten‐free diet. She asserts damages in the form of unnecessary expense (in obtaining food) and inconvenience and emotional distress (in avoiding restaurants, social situations, and the like). She alleges no physical harm from the misdiagnosis. Friedman moves on the basis that Manning's action is barred by the statute of limitations. The statute of limitations for malpractice claims against a h...

Excerpt: ...uest for continuance of the demurrer hearing. He was properly and timely served with the demurrer, however, nearly a month before his opposition was due. He states no grounds why he was unable to respond timely, or why he needs more time, beyond an unexplained reference to the holidays and the Butte County fire – but with no suggestion how, if at all, the fire could have affected plaintiff's ability to prepare an opposition. (Plaintiff lives in...

Excerpt: ...d by ISI. Plaintiff alleges that the device caught fire, causing him personal injury in a variety of ways. His complaint did not name ISI as a defendant, He instead incorrectly sued Greg Otto, an executive of ISI, alleging that ISI was a dba of Mr. Otto. The Court previously granted Mr. Otto's motion to quash service for lack of personal jurisdiction, noting that plaintiff had not sued the correct entity. Although plaintiff did not take the hint ...

Excerpt: ... successive theory is shot down by clear proof or by defendants' own admissions in discovery. Defendants' brief spends several pages recounting an anecdote about Dennis Rodman, the relevance of which eludes the Court. A more appropriate pop‐culture reference might be Maxwell Smart: “Would you believe….?” Defendants argue that they should not be stuck with what they characterize as a sloppy and inadequate answer filed by their former attor...

Excerpt: ...courier service, that is fine. Absent such a stipulation or court order, however, e‐mail is not a proper means of service. The Court is not aware of any such stipulation or court order. (Defendant has filed no response to the motion.) The motion rests on the assertion that in her vexatious‐litigant motion (Line 20), defendant has violated HIPAA and various other privacy laws by disclosing a confidential custody evaluation conducted in the Mar...

Excerpt: ... motion for summary adjudication of the claim for attorney's fees under Code of Civil Procedure § 1021.5 is granted. Because summary adjudication is being denied as to one cause of action, necessarily the motion for summary judgment is denied. I. Procedural Issues Counsel are reminded to comply with the Rules of Court as to motion papers generally and summary judgment motions specifically. The Church's exhibits are unwieldy as a result of this f...

Excerpt: ...t‐title action on December 23, 2014, seeking to void the deed of trust then held by Countrywide. The lead named defendant was America's Wholesale Lender (hereinafter AWL), which she believed to be the corporate lender and deed‐of‐trust holder in the underlying transaction. Also named as defendants were National City Bank (not otherwise involved in this motion), and unidentified “all persons known or unknown”, etc., as is standard practi...

Excerpt: ...b of depicting her as an innocent college student at a university in Illinois, who never had any formal or informal involvement in Bara's business. Her name surfaced in Bara's business paperwork only because the mother, without Singh's knowledge or approval and reportedly by clerical error, included Singh's name as an officer and agent for service of process in some of the paperwork. The motion papers raised eyebrows maybe just a little as to how...

Excerpt: ...ff within 30 days of today. Plaintiff seeks production of three documents or sets of documents: (1) the District's incident reports and witness statements concerning the incident of 10/14/16; (2) the District's incident report concerning plaintiff's asthma attack on 11/16/16; and (3) reports (with student names redacted) of other prior complaints and incidents involving defendant Kuta. The District's opposition papers attempt no justification wha...

Excerpt: ... uninhabitable a home owned by Insalaco and occupied by Lomax. The parties dispute the exact date of the landslide, but it occurred sometime in February, 2017. Various neighboring landowners, including the County of Contra Costa, are also involved via cross‐ complaints. There are a welter of complaints and cross‐complaints pleaded by the numerous parties against each other. For purposes of the present four summary judgment motions, however, m...

Excerpt: ... this Court could grant that could redress the breaches the plaintiff alleges here, or to restore these parties to a working contractual relationship. This Court is routinely accustomed to admonishing juries and parties that the existence of a dispute is no proof of what the proper outcome should be. In the highly unusual setting of this case, however, the mere existence of a bitter and comprehensive disagreement between the plaintiff and the def...

Excerpt: ...sitions. None of the other defendants was served with this motion; however, none of the other defendants has filed a first appearance in this case. This motion was filed based upon allegations in the original complaint. Since then plaintiffs have filed two amended complaints, but there appears to be no dispute that cause of action one remains the same in different versions of the complaint. Plaintiffs' motion for summary adjudication as to the fi...

Excerpt: ...e § 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) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/09/18 ‐ 12 ‐ 14 Cal.4th 394, 411 (internal citation omitted). In these summary proceedings the trial ...

Excerpt: ...t he has received nothing from her. This is unacceptable. Anything filed with the Court must be served on the other party, and proof of such service must be filed with the Court. Although initially pleaded with a number of other causes of action (such as fraud), this is in substance an action to collect a debt. The parties reached a mediated settlement in 2016, under which defendant Niakan was to make payments totaling $46,000 to plaintiff Robins...

Excerpt: ...a First Amended Complaint on October 25, as evidenced by a file‐stamped copy provided with their opposition papers. No such pleading is found in the Court's physical file, however; it has apparently been delayed, mislaid, or misfiled by the clerk's office. Plaintiffs are requested to provide another physical copy. Second, plaintiffs' opposition papers do not comply with CRC 3.1110(f) and Local Rule 3.42 concerning tabbing of exhibits. Counsel i...

Excerpt: ... relief available for certain causes of action; they are not a cause of action in themselves. E.g., Hiliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391. Accordingly, defendants properly proceed by a motion to strike rather than a demurrer. This motion raises questions as to both the level of alleged conduct that is substantively required to support recovery of punitive damages, and what level of specificity is required in a pleading seeking...

Excerpt: ...t the broker defendants. The parties should be prepared to discuss that topic at the CMC scheduled for November 28. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/02/18 ‐ 6 ‐ This is a dispute over a home purchase. Plaintiffs are the purchasers. Defendant Cain was the seller. Defendants Haus and Renjen & Assocs. were the brokers. It is uncontested that the sales contract, as between seller and buyers, include...

Excerpt: ... substance of the proposed first supplemental complaint is a request for a declaratory judgment as to the res judicata/collateral estoppel effect of a judgment in this case in barring a hypothetical future case that defendants may or may not file on the same subject matter in the future. That's not a cause of action, by declaratory judgment or otherwise; it's a proposed defense to a lawsuit that hasn't even been threatened yet, let alone filed. (...

Excerpt: ... accordingly cross‐complained against ADP. ADP demurs to the cross complaint. The demurrer is sustained in part without leave to amend, and overruled in part. Specifically, the demurrer is sustained without leave as to all causes of action on the part of the individual cross‐complainants, and Los Montañas's second and third causes of action (warranty and implied indemnity). It is overruled as to Los Montañas's first, fourth, and fifth cause...

Excerpt: ...lly to vacate the judgment, demonstrating that the Hawaii court had never properly obtained jurisdiction over him because of defects in the manner in which the HOA supposedly served Rad with process in the Hawaii action. Rad now moves for attorney fees incurred in winning his motion to vacate the judgment. The motion is denied. Rad identifies no statutory or contractual provision that entitles him to recover attorney fees for this victory. Rad re...

Excerpt: ...ied. This motion was previously before the Court on October 5. In its tentative ruling the Court continued the motion to this date. The District's original motion simply ignored the express allegation in the second amended complaint that plaintiff had exhausted administrative remedies by filing an administrative claim form, attached to the SAC as an exhibit. Plaintiff pointed this out in her opposition. Only in its reply brief – which is to say...

Excerpt: ...ase other than plaintiffs' claims that defendant is in violation of a non‐compete agreement. The problem is that the causes of action pleaded in the original complaint (or in the first amended complaint, which only added two new plaintiffs) did not segregate themselves neatly into arbitrable and non‐arbitrable causes of action. As pleaded, only the second cause of action could clearly be categorized (as non‐arbitrable). While it may be appr...

Excerpt: ...led to file the ex parte application papers. Counsel should bring those papers to the hearing. (If plaintiffs proffered any opposing papers, they should bring those as well.) The Court will honor Judge Weil's ruling. Without seeing the application, however, the Court is more than a little puzzled as to why this motion was exempted from the Facilitator program. The motion calls on the Court to conduct at least a line‐by‐line review of an inch�...

Excerpt: ...rements caused material harm – meaning that without the procedural violations, plaintiffs would have succeeded in refinancing their defaulted mortgage and saving their property from foreclosure. That failing underlay the Court's rulings sustaining demurrers to prior iterations of the complaint. In the SAC, plaintiffs made their last‐hurrah effort to allege materiality. In its September 28 tentative ruling on this demurrer, the Court commented...

Excerpt: ...�� from using Calle Arroyo road in Diablo. The Court notes that this motion was filed before the First Amended Complaint was filed. However, the parties are in agreement that this motion may apply to the FAC even though the documents were filed in the reverse order. The Court also notes with disapproval that the District has not submitted a declaration showing compliance with the meet and confer requirement for a motion for judgment on the pleadi...

Excerpt: ...cussion. Plaintiff's opposition brief mostly addresses these issues as though no prior demurrer or ruling had occurred. The Court granted leave to amend CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 21 ‐ on most counts, but its legal analysis included specific comments on what plaintiff would have to allege to patch up the deficiencies in the FAC. At this juncture, then, the opening question for the ...

Excerpt: ...defendant's reply brief. Defendant filed this motion with no declaration of compliance with § 439. As a reading of the briefs make clear, the case plainly called for meet‐and‐confer. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 12 ‐ Defendant's motion rests on its argument that plaintiff's second amended complaint must be dismissed because she does not allege that she exhausted administrative r...

Excerpt: ...iff, Jose Luis Ramirez‐Ceniceros, sues in two capacities: as an insured (as to his claim for loss of cash), and as the assignee of an insured (as to his claim for personal injury inflicted by his coinsured, Flores). Plaintiff and defendant Jose Flores, aka Agustin Chavez, were lessees of a house located at 2813 Carob Street in Antioch. Their agreement with their landlord required them to have renters' insurance. On October 25, 2014 they went to...

Excerpt: ...arded to him in the marital dissolution judgment. There is a complication in the case, however, which may present an obstacle to treating this as an ordinary fraud‐tort case. The transaction of which plaintiff complains was not merely a private matter occurring between the parties outside of court. Rather, the parties submitted a formal stipulation in 2016 in their family‐law case (in San Joaquin Superior Court), modifying the 2006 divorce ju...

Excerpt: ...ctual allegations. The closest it comes to alleging any facts is that Ecker “made [unspecified] false statements against of the plaintiff Anas Ali [which plaintiff identifies as his true name], referenced by citation number 34‐269551”, and that Ecker “failed to provide prima facie evidence supporting his false documents that plaintiff was/is ‘BLACK' and ‘DRIVING' referenced on citation number 34‐269551.” The FAC does not provide a...

Excerpt: ...se of Action. The Windeler defendants are not named in the Fifth and Seventh Causes of Action. In the ruling on the companion demurrer by defendant Littman Trust, the Court has granted plaintiffs leave to file an amended complaint adding a single cause of action for declaratory relief, as against the Littman Trust and Windeler Development Group. The Windeler defendants shall file an answer that is timely with reference to service of the amended c...

Excerpt: ...he declarations filed by counsel for this and other defendants, plaintiff's counsel has simply failed and refused to engage in the meet‐andconfer required by statute. Plaintiff's response essentially concedes demurrability on at least some points but requests leave to amend. That, counsel needs to realize, is what meet‐andconfer is intended to address. If there are any future requests for leave to amend, plaintiff's CONTRA COSTA SUPERIOR COUR...

Excerpt: ...se of Action. The Windeler defendants are not named in the Fifth and Seventh Causes of Action. In the ruling on the companion demurrer by defendant Littman Trust, the Court has granted plaintiffs leave to file an amended complaint adding a single cause of action for declaratory relief, as against the Littman Trust and Windeler Development Group. The Windeler defendants shall file an answer that is timely with reference to service of the amended c...

Excerpt: ... of action (as permitted), defendants also purport to seek summary adjudication of numerous sub‐issues contained within those causes of action, such as specific paragraphs of the SAC requesting particular items of damages, or “all claims and/or damages” arising from particular alleged defects. None of that is procedurally permissible as a subject for summary adjudication. As Plaintiff points out, items (d)‐(aa) do not dispose of an entire...

Excerpt: ...ons following the school's sexual assault disciplinary process and appeal. The writ is brought on the grounds that the College's administrative procedure violated California and federal law; violated fundamental principles of fairness by prohibiting John from using an attorney as his advisor, in violation of federal law; depriving him of a fair trial; depriving him of his right to confront and cross‐examine his accuser; employing a process that...

Excerpt: ... case against her former employer, asserting claims of sexual harassment. Defendant cross‐complained, alleging that plaintiff hacked defendant's electronic records and deleted a substantial amount of material, including students' report cards. The latter accusation is the subject of a felony case filed against defendant, which (as far as the Court knows) is still pending. The Court has previously entered a partial stay of some proceedings in th...

Excerpt: ...2017. Since then, however, defendants have simply refused to participate in this litigation. They refused to participate in court‐ordered mediation, saying that they were considering filing bankruptcy (and asking plaintiff's counsel to stop “harassing” them). They failed to appear at multiple case management conferences. They did not oppose plaintiff's motion to compel various forms of discovery, but have not complied in any way with the Co...

Excerpt: ...n amount some three times the jurisdictional maximum for limited cases. Although the motion is not so styled, the Court treats this as (in part) a motion for relief from a judgment that was beyond the jurisdiction of the court. So considered, the motion is granted, and the judgment entered on July 6, 2017 is vacated. Because the problem is a jurisdictional one, the vacatur applies to both defendants. Relief from the judgment, however, is not reli...

Excerpt: ...rning her mental disability. But her claim itself centers directly on the alleged existence and results of that CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/19/18 ‐ 5 ‐ disability; without the disability she has no claim. Plaintiff has thus directly put her own mental state at issue, alleging (among other things) that she lacked capacity to agree to and sign an alleged quitclaim deed in 1999. She cannot exp...

Excerpt: ...ere all served on April 7, 2017. Each defendant responded to each discovery request with a blanket paragraph of rote objections, each substantially identical to the objections made to the hundreds of other discovery requests cumulatively made to the responding defendant and all the other defendants. On the face of these “responses”, there was no pretense of any good‐faith attempt to respond, nor to provide objections actually CONTRA COSTA S...

Excerpt: ...e to strike the Answer on account of these deficiencies. At this time, there is an Answer on file, and it contains denials and affirmative allegations sufficient to defeat the present motion. If the Answer should be stricken, plaintiff should move to strike it. If it is not stricken, however, it defeats the present motion. Among other advantages, that order of procedure would create an opportunity for plaintiff's counsel to meet and confer with d...

Excerpt: ...irst Amended Complaint, even though some of them are deleted altogether due to the Court's prior demurrer ruling.) Defendants District, Yurkovich, and Perry demur to what are labeled as the sixth and seventh causes of action. The demurrer is sustained. Leave to amend is allowed, one final time, as to the seventh cause of action. Leave to amend is denied as to the sixth cause of action. Any amended complaint (which, to avoid hopeless confusion, wi...

Excerpt: ...s for the exercise of jurisdiction. [Citation.]” (Shisler v. Sanfer Sports Cars, Inc. (2006) 146 Cal.App.4th 1254, 1259; see also Ziller Electronics Lab Gmbh v. Superior Court (1988) 206 Cal.App.3d 1222, 1232‐33.) A court may exercise two types of personal jurisdiction over a defendant: general jurisdiction and specific jurisdiction. Each is considered below. General Jurisdiction “General jurisdiction exists when a defendant is domiciled in...

Excerpt: ...ence of an actual attorney‐client relationship (such as in an initial engagement interview in which the attorney declines the representation), Steele quite rightly informed plaintiff right from the start that Steele would not be acting as plaintiff's attorney. Any unreasonable belief to the contrary on plaintiff's part would not establish a basis for privilege. The motion, however, appears to be either moot or premature or both. Steele advises ...

Excerpt: ...auses of action for (1) general negligence; (2) trespass; (3) conversion; (4) loss of use; (5) fraud; and (6) civil conspiracy. Defendants demur pursuant to Code of Civ. Proc. § 430.10(e) on the grounds that Mr. Harmen lacks standing and has failed to state facts sufficient to state his causes of action. For the following reasons, the Demurrer is sustained, without leave to amend. Request for Judicial Notice Defendants request judicial notice of...

Excerpt: ...hpoint Security Services, Inc. (Northpoint) to provide security services there. A perpetrator thereafter entered the Superfoot store brandishing a weapon, and grabbed Jason while demanding the cashier CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/12/18 ‐ 3 ‐ hand over the cash in the register. Huajin Li ran towards his son upon seeing that he was held hostage. The perpetrator shot Huajin Li, killing him. Pla...

Excerpt: ...ion; (4) fraudulent misrepresentation; (5) negligence; (6) violations of Bus. & Prof. Code § 17200 et seq.; and (7) quiet title (Code Civ. Proc. § 760.020). Only the quiet title claim is pleaded against Breckenridge. Breckenridge demurs pursuant to Code Civ. Proc. § 430.010(e) on the ground that it is a bona fide purchaser for value of the subject property at a nonjudicial foreclosure sale, and as a consequence the sale is invulnerable to Plai...

Excerpt: ...acts to constitute a cause of action, the court follows the same rules it does on a demurrer. It considers only the material alleged on the face of the challenged pleading and matters of which it can take judicial notice. (Ibid.; Code of Civil Procedure § 438(d); see Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 548.) Here, on its face, the complaint states a cause of action that defendant breached his agreement to sell the ...

Excerpt: ...er's order, because defendant failed to file the bond required by statute. Section 98.2(c) “establishes a one‐way fee‐shifting scheme, whereby unsuccessful appellants [employers] pay attorney fees while successful appellants may not obtain such fees.” Sonic Calabasas v Moreno (2011) 59 Cal.4th 1109, 1129. The purpose is to discourage unmeritorious appeals from administrative wage claim determinations, and to encourage prompt payment there...

Excerpt: ...ior representation of Pearl on related subject matter. 6. TIME: 9:00 CASE#: MSC16‐ 01082 CASE NAME: TROMBADORE GONDEN LAW GROUP VS. SMITH HEARING ON MOTION TO VACATE DEFAULT JUDGMENT FILED BY ROBERT WILLIAM SMITH, MARC PEARL * TENTATIVE RULING: * Marc Pearl's motion to vacate default judgment is granted. The default entered on March 21, 2017 and the default judgment entered on September 1, 2017 are ordered vacated. Pearl shall file and serve th...

Excerpt: ...as served with it. Furthermore, she does not suggest that she has any meritorious defense to the suit, and she does not proffer any proposed answer to the complaint. It is pointless to grant defendant an opportunity to defend against the claim if she has no defense. Defendant does make a brief mention of her statement to plaintiff's attorney that this debt had been resolved by Kemper Group. However, she does not identify who Kemper Group is, or h...