Excerpt: ...trike. That is not correct. In its September 6, 2019 tentative ruling concerning those matters, the Court said: Today's rulings are not intended to foreclose plaintiffs from including additional or different causes of action against any defendant, such as breach of contract, in their second amended complaint; and on its own motion the Court grants leave to amend in that respect. (September 6, 2019 Tentative Ruling, Line 18.) The reply says that A...

Excerpt: ...arbitration,” within the meaning of the statute. Second, even if it were a consumer arbitration, the statute is obviously intended to protect the consumer, not the non‐consumer. Respondent asserts that in this dispute he is the “little guy”, which may or may not be true – but if it is, that's all the more reason why this isn't a “consumer arbitration” within the contemplation of the statute, which aims to protect “little guy” co...

Excerpt: ...itur. They disagreed, however, on whether the reversal and remand have the effect of reopening discovery in general, and expert designation and discovery in particular (the original discovery cutoff having previously passed before the dismissal). The Court invited the parties to brief the question. Defendants have accordingly filed what they label as a motion to reopen discovery. The label is not quite right, given that defendants' (correct) posi...

Excerpt: ...r case. Goldstein, a Judge of this court, has made rulings in that misdemeanor case with which plaintiff disagrees. Plaintiff contends that Goldstein is disqualified by bias and is required to recuse himself. He further contends that Baskin, the Presiding Judge of this court, is under a duty to ensure that Goldstein complies with all laws, including by recusing himself. The theory of the sixth cause of action is that Goldstein, by refusing to rec...

Excerpt: ... amended complaint is therefore dismissed with prejudice. The case was originally filed as a petition to compel underinsured‐motorist arbitration under Vehicle Code § 11580.2. After some initial scheduling agreements, however, the parties agreed to the filing of a first amended complaint seeking a declaration that Rascon is an Insured Person, followed by an uninsured‐motorist arbitration. The Court understands the effect of this amendment as...

Excerpt: ...ic order after hearing specifying what is to be stricken from the original complaint, and their time to otherwise respond to the complaint will run from that date. In light of this ruling, the CMC now set for September 24 is continued to December 16. Meet and Confer After a previous continuance so that the parties could meet and confer as required by statute, Counsel for defendants has filed a declaration in support of the motion for punitive dam...

Excerpt: ...rove she suffered any damages, and damages are an essential element of each of these causes of action. The motion for summary adjudication as to the Third Cause of Action, for Defamation, is denied. Defendants have not met their initial burden to prove plaintiff did not suffer any reputational damage or persuaded the court on this motion that plaintiff is not entitled to recover presumed damages for reputational damage for defamation per se. (See...

Excerpt: ...ed to file any opposition. The Court (Judge Allen) denied plaintiff's § 473 motion for relief. Earlier this year the court of appeal reversed that denial, holding that plaintiff should have been given a chance to oppose the motion. Chevron now renews its motion on its original papers, and plaintiff has filed her full opposition papers. Plaintiff's Legal Theory. Plaintiff brings two causes of action under the Fair Employment and Housing Act: reta...

Excerpt: ...ch plaintiff paid $650,000 to purchase promissory notes from Dunken, secured by the proceeds received by the Dunken firm from settlement or victory in the underlying class actions. In this suit, plaintiff complains that he has not been paid a penny on this investment. He seeks a preliminary injunction, the precise contours of which are not very well explained or defined in his motion. But apparently the general idea is to prevent payment or dispe...

Excerpt: ...ken into account in denying or granting future leave to amend. The Court concurs in defendant's view that at least the misidentification of the proper defendant should have been resolved by discussion between counsel. Defendant demurs to the entire complaint on the ground that it erroneously names the Sheriff's Department as the defendant in the case, but the Sheriff's Department is not a separate entity capable of being sued. The Court agrees, a...

Excerpt: ... the Parties' Basic Cases Brachium is a start‐up medical tech company, with three main founders – Shebab, Akeel, and Wong. For some time the company, acting mainly through Wong and an outside consultant (Niro), were negotiating with TronVest and the Chen family for outside funding. Brachium's complaint in this action (filed on direction of Shebab and Akeel) accuses Wong and Niro of mismanaging the negotiations with TronVest, giving away too m...

Excerpt: ...mes, but only on a narrow and specific ground: Plaintiffs had pending, or were about to file, a modification application or an appeal from denial of same. Civil Code § 2923.6 therefore called for putting off the sale until those could be acted on, either approved or denied. Defendant's papers show without contradiction that by now, plaintiffs' appeal has been rejected. That eliminates the statutory basis for the previously granted relief. (It al...

Excerpt: ...on before this motion was filed. The motion is thus uncontested and is granted to that extent. Defendant further asks that this action be dismissed because the dispute will be fully resolved in arbitration. So it should be, and so the Court hopes. Nevertheless, it is standard practice to retain jurisdiction over arbitrable cases, whether they are filed as substantive lawsuits or as petitions to compel arbitration. Not only is there the possibilit...

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 09/13/19 ‐ 2 ‐ The Arbitration Agreement This case was filed as a derivative shareholder's action and an action involuntary dissolution of a corporation. Plaintiffs, the minority shareholders in Defendant Wings For 2 Singhs, Inc., allege that defendants, the majority shareholders, violated their fiduciary duties and abused their majority power in order to control the corporate activiti...

Excerpt: ...from the FAC. As it must for purposes of ruling on both the demurrers and the motions to strike, the Court accepts as true all of the well‐pleaded factual allegations contained in the FAC. Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967. The Court is not, however, required to accept as true contentions, deductions, or legal conclusions. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. This case arises from problems plaintiffs encountered...

Excerpt: ...y is their private property, and the bicyclists have no right to use it. Plaintiffs' attack was two‐ fold. They asserted that defendant District had the power and responsibility to see to it that bicycle traffic is excluded. Plaintiffs failed at this part of their attack, which was defeated on the District's motion for judgment on the pleadings. Plaintiffs and the District have since agreed that each side would bear its own attorney fees and co...

Excerpt: ...llegations. This dispute has had a long and winding history, with several docket numbers and several layers of pleadings. For purposes of the present motion, however, those can be ignored. The issues on this motion are presented identically as if this were simply an original lawsuit filed by the Gannons against Coldwell Banker and the Argabright defendants. The Gannons bought a residence from the Argabrights, in which Coldwell Banker acted as the...

Excerpt: ...the file and cannot be located by the clerk's office. The Court is working from a copy faxed by counsel (thanks for that), but it is neither file‐stamped nor complete, with all exhibits after Exh. A missing. Plaintiff is requested to provide a substitute copy of it, with exhibits, for filing so that the Court's file will be complete. The Parties and the Dispute Plaintiff Brachium is a health technology company headquartered in San Ramon. Defend...

Excerpt: ...o allow for meaningful rulings. This is a case for breach of warranty and violation of the Song‐ Beverly Act, based on alleged unrepairable defects in a vehicle purchased as certified pre‐owned. Plaintiff purchased the car in 2013, and (according to his suit) he encountered a long train of significant problems with it. He demanded repurchase in February 2016, and filed this suit in March 2016. More than two years later, in July 2018, defendan...

Excerpt: ... says “Disputed fact … Defendant is unable to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 08/30/19 ‐ 5 ‐ confirm or deny and reserves a right to submit evidence in dispute.” Of course, that is not remotely how summary judgment in California works. On this motion, Jang bears the burden of persuasion that there is no triable issue of material fact and that Jang is entitled to judgment as a matter of law. ...

Excerpt: ... But the basic reason for denial is the same for all five: There is no attempt to provide serious evidence of damages, let alone to show that the amount of damages is established to a summary‐judgment standard. In a nutshell, these are what may be called “liability‐only” summary adjudication motions. Such motions are flatly impermissible under California summary judgment procedures. Form of Plaintiffs' Papers A word is in order at the out...

Excerpt: ...a difference in several respects. Most notably, the “partnership agreement” belatedly attached to the complaint, and alleged to embody the terms of the asserted oral contract, includes only plaintiff and defendant Jaca as contractual parties. Plaintiff is very vague as to how he has any contractual relationship at all with the other two defendants, Mountain Movers and Roquemore. And on a directly related note, the motion also does not specify...

Excerpt: ...icial Notice Baniqued seeks judicial notice of the complaint in this matter. The request is denied as superfluous. The complaint is contained in the Court's file and is before the Court in connection with the anti‐SLAPP motion. Anti‐SLAPP Motion Before reaching the merits of the anti‐SLAPP motion, the Court notes that Mancheno sought – and received – multiple extensions of time to oppose the anti‐SLAPP motion. The last extension, gran...

Excerpt: ...perty, presumably their residence. The applications are granted. Plaintiff issued public works payment bonds for a construction project undertaken by Northern Pacific. Northern Pacific and the Koeberers signed indemnification agreements agreeing to indemnify plaintiff against any liabilities on the bonds. The indemnification agreements included obligations to deposit sums to secure any such indemnification. Plaintiff has made demands for deposits...

Excerpt: ...e purchase agreement. Defendant (then represented by counsel) answered and filed a crosscomplaint, alleging that plaintiff had cost him commission payments by inadequately servicing the underlying customers. In October 2018 Mendrin's attorney substituted out, and Mendrin has been in pro per since then. Mendrin did not appear at a CMC held a couple weeks after the substitution. In the fall of 2018 plaintiff began talking (first with defendant's at...

Excerpt: ...Civil Code § 2924(a)(6) and (f); (4) declaratory relief; (5) violation of Civil Code §§ 2923.5 and 2923.55; and (6) breach of contract. This case was previously dismissed on MJOP on grounds of res judicata. The Court of Appeal reversed that decision, holding that res judicata did not apply. The court did not rule on the other bases for MJOP previously asserted, however, remanding for that decision. Defendants have since refiled their motion an...

Excerpt: .... Realistically, the present ruling is simply reducing to writing what both sides, represented by competent lawyers, have known since at least when the answer was filed, if not earlier: Absent any agreement among the parties to something else, this property will be partitioned and sold (though these parties can be among the bidders if they choose). (For that reason, the Court disregards the concern about a mediation being scheduled. That's a poin...

Excerpt: ...se. There are three sequential transactions involved. In 2009 plaintiff borrowed $80,000 from the Walter E. Lawson Family Trust, secured by a property at 239 1st St., Richmond. The loan was not a purchase‐money loan; plaintiff intended to use the proceeds for property improvement. The loan called for interest‐only payments at a 12% interest rate, with the principal payable as a balloon in December 2012. The parties agree that although the int...

Excerpt: ...ypically a petition for relief from filing a tort claim is brought as an independent proceeding before any tort lawsuit is filed. Here, however, the proposal is to add a new governmental defendant (the State) to the existing lawsuit, based on subsequent discovery of the State's involvement. Further, if this were to be played “by the book”, an independent proceeding for relief would be filed, and once granted, a separate lawsuit against the St...

Excerpt: ... has since deposited the full bond amount in court. It does not appear that anyone contends American Contractors could have any further liability in the matter to anyone. If American Contractors were in the case only as a defendant, that would be a good argument for dismissing it out of the case entirely, and letting it go on its way. The joker, however, is that American Contractors has filed a cross‐complaint against a considerable number of c...

Excerpt: ...uires meet‐andconfer in person or by telephone. Defendants' attorney wrote a letter, but did not follow up with a call. Plaintiff's attorney apparently ignored the letter. Both attorneys are admonished that any repetition of such conduct invites sanctions. Background Facts This dispute arises from the alleged defective condition of the residential property tenant plaintiffs rented from landlord defendants. (Compl. at ¶ 20.) Plaintiffs allege t...

Excerpt: ...nction would not be appropriate. (See, City of San Jose v. MediMarts, Inc. (2016) 1 Cal.App.5th 842, 850; O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1463‐64.) Plaintiffs' Complaint and OSC papers are problematic in a number of respects. The following are some of the key problems. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/26/19 ‐ 12 ‐ Procedural Problems.  Plaintiffs' filed their ap...

Excerpt: ...ner's injury. Petitioner's parents had an auto policy with respondent carrier. Petitioner was walking to his parents' parked car when he was hit and injured by an uninsured motorist. His theory is that this brings him within the policy's coverage as an Insured Person. Hence, he seeks to initiate an uninsured‐motorist arbitration. The carrier's position is that petitioner was injured as a pedestrian, not a motorist, and hence he is simply outsid...

Excerpt: ... complaint recites that it attaches the key transactional and title documents (such as the grant deed and the deed of trust) as exhibits to the complaint, in fact what is attached bears no resemblance to the recited documents. It appears to be a set of internet printouts of unknown, sketchy origin and no apparent relevance. (Also, the exhibits are not tabbed as required by the CRC and local rules.) The deed of trust is provided by defendants in t...

Excerpt: ...ge. Some of the defendants were never served, and apparently still haven't been served. The defendants that were served all demurred. The Court sustained all such demurrers, mostly with leave to amend, with the direction that any such amendments be filed in a single, consolidated first amended complaint. Plaintiff missed the deadline for amending, but then obtained counsel and filed the FAC. The FAC names seven defendants. One of these is Contra ...

Excerpt: ... out of his request for assistance with obtaining CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/19/19 ‐ 13 ‐ employment in the field of water and liquid waste treatment plant and systems operations. Specifically, plaintiff alleges that DOR failed to provide him with and properly implement an Individualized Plan for Employment (IPE) related to his desired participation in Solano Community College Bay Area Con...

Excerpt: ...ion. Defendant has filed a demurrer that, while technically meritorious, is entirely pointless as a practical matter and will have no effect but to force plaintiff to replead its claims in a more appeal‐proof form. The demurrer is unopposed, and it is sustained with leave to amend. Any amended complaint must be filed and served by August 2, 2019. (A housekeeping matter first: Defendant's points and authorities and meet‐and‐confer declaratio...

Excerpt: ...rs in Pittsburg. Immediately adjacent to plaintiff's property is an open field belonging to UPI, where (the complaint alleges) there has been an ongoing problem with transient activity, trash, and high vegetation. Plaintiff alleges that in 2013 a transient living on UPI's property started a fire that spread onto plaintiff's facility, and that in 2015 a “similar incident” (not otherwise elaborated on) occurred. In August 2018, defendant Belche...

Excerpt: ... was ordered transferred to this County by order dated September 28, 2015. Thereafter, however, nothing happened in the case at all. The reasons for that are not entirely clear from the file. But based on the motion and the attorneys' representations at a recent CMC, it appears that the transfer did not occur simply because plaintiff did not take the steps necessary for the transfer, particularly payment of the required fee. The matter then langu...

Excerpt: ...y allege fraud. Taken together, they allege that cross‐defendants falsely misrepresented that the prior kitchen contractor was licensed, and was being replaced only due to his illness. They also misrepresented that they had obtained permits for the kitchen remodeling project. In fact (the causes of action allege), the job was unpermitted; the prior contractor had been fired for botched electrical work; and the prior work was substandard. Cross�...

Excerpt: ...on to plaintiff was to give her more time to file the opposition. The Court has accordingly considered it. But it fails to persuade. At the outset, plaintiff correctly points out that the several theories argued in the motion are affirmative defenses, which must be alleged in defendant's answer. Defendant's answer (filed in pro per) does not expressly allege any of these theories. As the present motion clearly seeks to adduce these defenses and p...

Excerpt: ... (first sentence and the Offer itself), 55, 56, 57, 59 (first sentence and the Offer itself), 60, 61, 62, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76.) Background Plaintiff, James Reed, is the trustee of a life insurance trust that he created for the benefit of his estate‐planning client, decedent Priscilla Allen. The company that originally wrote the insurance policy was Central Life Insurance Company. Through a series of transactions, the ...

Excerpt: ...e two lis pendens at issue in this case: one recorded August 21, 2017 and one recorded April 17, 2019. (See defendants' RJN Exs. B and H.) It is not clear if the 2019 lis pendens was recorded with the County since defendants' notice of motion refers to the filed lis pendens and defendants' copy of the 2019 lis pendens does not include a stamp from the Recorder's Office. Plaintiff's opposition states that she “recorded and filed” a Notice of P...

Excerpt: ... the subcontractors involved in these litigations can usefully be sorted into four categories, with different results as to whether they should or should not be included in a general reference and whether the subcontractors' complaints should or should not be consolidated into the main action. 1. Subcontractors Whose Work Is Potentially at Issue in the Thompson‐LTC Dispute The Court's prior indications rested to a large extent on its understand...

Excerpt: ...of California.” The Court accepts the stipulation. More than that, the Court salutes the parties for taking the initiative to present this issue, which (the Court infers) has stood as a roadblock to possible settlement. Accordingly, each side has filed a summary adjudication motion limited to this single issue. Unfortunately, however, the Court concludes that both motions must be denied. The applicability of § 3333.4 to this accident turns on ...

Excerpt: ...Z, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/07/19 ‐ 12 ‐ On March 11, 2018, Petitioner Mousa Rafiq Khouri was arrested in Alameda County on the suspicion of driving under the influence in violation of Vehicle Code § 23152(a). Petitioner was advised of the “implied consent” (Vehicle Code § 23612) and allegedly refused a chemical test. The arresting officer, Officer Zimmerman, obtained a warrant to draw Petitioner's blood. The blood tes...

Excerpt: ...nt; but an order on a motion (even a dispositive one) is not the “notice of entry of judgment or dismissal” referred to in CRC 3.1700(a)(1). The judgment was not filed until May 3, after the memorandum of costs. Some $1,500 of cross‐defendants' costs are the $500 filing fee for three nominally separate but substantially identical summary judgment motions, filed on behalf of three cross‐defendants. The Court commented at the time that thes...

Excerpt: ...d, and it is also granted. Both cross‐complaints seek indemnity as to Plaintiffs' claims, and both indemnity claims rest entirely on the assumption (perhaps arguendo) that Safeguard may have tort liability directly to plaintiffs. However, as discussed further below, Safeguard owes no tort duty to third parties for injuries sustained on the subject property. This forecloses Safeguard's liability on the cross‐complaints too. Standard CONTRA COS...

Excerpt: ...t calling for fixed interest payments, plus payments into an escrow account intended (the Court gathers) to ensure payment of property taxes and insurance. As plaintiff acknowledges, the amount of the required payments into escrow was subject to annual adjustment. Plaintiff, however, persisted in making payments in the same, unadjusted amount, ignoring the annual notices of increases in the required escrow payment amounts, and repeated warnings t...

Excerpt: ...ct not to do so, ManorCare's answer to the remaining causes of action will be due two weeks after that date. Plaintiff Counsel's Failure to Meet and Confer In its ruling of March 8, 2019 (the time of the previous demurrer), the Court expressly criticized plaintiffs' counsel for failing to engage in the required meet‐and‐confer with defendant's counsel, and expressly warned that any repetition of that failure would result in consequences, incl...