Excerpt: ...ing under that issue are essentially the same ones as those raised in the demurrer, and they do not stand thoroughly briefed at present – especially on the plaintiff side. As the Court will explain, it has some questions about plaintiff's case, but wants to hear more about plaintiff's counter‐ arguments. However, the Court does have some concern about the possibility that the corporate defendant's assets may be dispersed beyond retrieval betw...

Excerpt: ...ENT: 12 HEARING DATE: 06/28/19 ‐ 5 ‐ before July 26, 2019. If plaintiffs elect not to amend, the Sheehys' time to answer the remaining parts of the FAC will run from that date. The FAC's Allegations This case concerns defendants' alleged attempts to economically harm plaintiffs' equestrian facility in Blackhawk. Defendant Pestana worked as a professional equestrian trainer at another facility. Defendants Daniel and Marcia Sheehy leased and ra...

Excerpt: ...a neighboring property (the Wen parties, who have since settled out). The plaintiffs are Jeffrey and Shannon Jones, both acting as trustees of a family trust. Shannon Jones, who is an attorney, is acting as the attorney of record for both plaintiffs. The Wens filed a cross‐complaint against the Hiteses, former owners of the 5945 Bruce property (from whom the Joneses bought it). According to the Joneses, in the course of discovery they learned t...

Excerpt: ...he case, however, is that plaintiff Nace was never either the owner of the property, or the debtor on the mortgage, or the person suffering foreclosure. That person was Laura Rogers. Plaintiff alleges that he is a tenant of Rogers on part of the property. (Defendants assert that they can disprove that allegation via judicial notice. The unlawful detainer CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/21/19 ‐ 6 ...

Excerpt: ...f action because it is mooted by the ruling on the first CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/14/19 ‐ 5 ‐ cause of action. If plaintiff is willing to dismiss the second cause of action, therefore, it will be in a position to submit an appropriate form of judgment (submitting it to defendant's counsel for approval as to form). RJN. Plaintiff's request for judicial notice is denied. The pleadings are ...

Excerpt: ...able trial. The Court's intention is to convene a bench trial to try all declaratory‐relief claims and equitable issues in the case, probably with post‐trial briefing to follow the presentation of evidence. This will include all issues as to the physical extent and non‐physical aspects (e.g., parking rights) of all real property involved in the case, including easements. This includes, among other things, whether the 2003 grant deed is vali...

Excerpt: ...—“For punitive damages,” SAC 16: 4. Motion granted without leave to amend. Punitive damages are governed by Civil Code § 3294, which specifically requires the Plaintiff to plead and prove by clear and convincing evidence that a defendant has been CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/14/19 ‐ 7 ‐ guilty of oppression, fraud, or malice. “In order to survive a motion to strike an allegation of ...

Excerpt: ...ed into any contract that obligates SBI to join a general reference. That means, plainly enough, that SBI cannot be obliged to do so. And second, it appears that SBI's legal involvement is simply its own collection effort. No one has asserted that SBI's materials are in any way at fault in any of the issues or problems CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/31/19 ‐ 13 ‐ claimed to exist with the LTC p...

Excerpt: ...with Thompson is granted. The parties are to meet and confer as to selection of a referee, as well as to the terms of the general reference and the manner of sharing the referee's fees. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/31/19 ‐ 8 ‐ 3. LTC moves to sever its bilateral dispute with Thompson from the disputes between Thompson and its various subcontractors. That motion is denied without prejudice. A...

Excerpt: ...re able to file a reply responding to the opposition. The Court will consider the late filed opposition, but if plaintiff files late papers in the future they may be stricken or disregarded. In a nutshell: The Court sustained defendants' demurrer to the original complaint, but granted leave to amend, commenting on what kinds of allegations would be necessary to avoid defeat at the pleadings stage. Plaintiff has now made those allegations. Defenda...

Excerpt: ...rust, however, it is hoped that the present pair of mirror‐image motions are the final scene of the final act of this drama. The Court entered judgment as between the Kosis and the Trust on May 1, 2019. By agreement among these parties (and with the express or tacit consent of the Bankruptcy Court), there remains only one issue to be decided: Who is the “prevailing party” in the Kosi/Trust portion of these cases, for purposes of awarding at...

Excerpt: ...change in the law. Even if the motion were jurisdictionally proper, it raises no valid grounds. Plaintiffs' principal argument is that while the Court held that fees must be disallowed because of the restrictions of Government Code § 25845(c), the motion is governed instead by subdivision (b) of that section. No such argument was made by their then‐lawyer on their original motion, and for good reason. Subdivision (b) allows an award to the Cou...

Excerpt: ...tutions Code § 15657. Likewise, the Court's ruling on the demurrer as to Health & Safety Code § 1430(b) resolves the question of whether plaintiff properly states a claim for damages, attorney's fees, and injunctive relief thereunder. Treble damages are available where certain actions are taken against senior citizens. (Civ. Code § 3345.) Factors include whether the defendant knew the conduct was directed to a senior citizen, and whether a sen...

Excerpt: ...ed the TRO, and entered an order to show cause why a preliminary injunction should not be granted, calendared for April 12, 2019. The parties stipulated to continue the hearing date, presumably so that the bank could consider plaintiffs' then‐pending modification application. Plaintiffs' motion for a preliminary injunction is continued to June 21, 2019 at 9:00 a.m. The TRO remains in place. Either side may file and serve appropriate supplementa...

Excerpt: ...tigation reveal new facts supporting such a claim. Plaintiff seeks punitive damages in her negligence cause of action, in which she alleges that defendants negligently failed to account for approximately $ 75,000 in mortgage loan payments. (Complaint ¶ 44 and ¶ 50.) Plaintiff has not alleged an intentional tort cause of action, and plaintiff's negligent accounting theory does not support a claim for punitive damages. More specifically:  Plai...

Excerpt: ...Hence, plaintiff suggests, the District should not be entitled to costs as though it had actually won the lawsuit. There are a number of overlapping flaws in the suggestion. First, the contention is not true to the statute. “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code of Civil Procedure § 1032(b).) A “prevailing party” includes...

Excerpt: ...cation that (1) Plaintiff does not have a claim for dangerous condition of public property, or (2) BART has immunity. The Court finds that BART has not shifted its burden on several issues, and on the remaining issues there are triable issues of material fact. Indeed, while BART presents more or less the same substance in a variety of different wrapping papers, it's the same substance under different section headings. Dangerous Condition A claim ...

Excerpt: ...sed 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, defendant served a notice of inspection of the vehicle. After some initial scheduling discussion, plaintiff's counsel informed defendant's counsel in September 2018 that plaintiff had sold the car and thus couldn't produce ...

Excerpt: ... participate. As was discussed at the recent CMC, although the complaint identifies the Estate as the plaintiff, there is neither the identification of any actual person who is the representative of the Estate, nor any probate order designating anyone as such representative. There also is no allegation of any survivors purporting to bring a wrongful death action on their own behalfs. The Court gathers that the person(s) who arranged for counsel t...

Excerpt: ... also sought orders compelling responses to interrogatories and document requests. That part of these motions was put over to the present date, with an invitation for each moving defendant to file and serve a supplemental statement explaining which (if any) of these other discovery responses are still genuinely needed, in light of the order deeming matters admitted. Incense Specialties has filed the supplemental statement invited in the Court's r...

Excerpt: ...of no consequence to this demurrer, as the map is readily available elsewhere in the file and there is no dispute about which map was adopted by the City Council and is now challenged. The Court, however, invites plaintiffs to file a “corrected first amended complaint” attaching the map (and otherwise making no changes). Plaintiffs' FAC challenges the district map drawn by the City Council for future City Council elections. The City demurs to...

Excerpt: ... creating and overseeing maintenance of the dangerous condition, and the City of Richmond, for maintaining it. Both defendants move for summary CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 05/03/19 ‐ 2 ‐ judgment. The State contends that summary judgment must be granted because (1) plaintiff cannot prove the island constituted a dangerous condition of public property; (2) the State has design immunity; and (3)...

Excerpt: ...would be, if the Court were to conclude that Thompson is in a position to join the subcontractors in the general reference. (Counsel for the subcontractors are not required to appear at this hearing, if they do not wish to be heard. But anyone who does wish to be heard on the above topics, would do well to speak up now. If the Court orders a general reference on the basis of its conclusion that the subcontractors can be joined into a general refe...

Excerpt: ...this defendant. The remainder of the complaint makes it clear that plaintiffs were much more conversant than this defendant with the alleged defects in the premises. Plaintiffs propose to amend to assert what amounts to a promissory fraud claim based on defendant's recent alleged assurances of repairs. That's more a wholly new claim than an amendment of the old one, but the Court will allow it to be asserted. The Court points out that the require...

Excerpt: ...ntively, as with the IIED tort, the Court cannot see that plaintiff is alleging anything sufficient here to rise to the level of outrageousness that would be required to state a viable claim for punitive damages. As an additional point, defendant argues that Plaintiff cannot get punitive damages because Defendant is a corporate entity and the allegations are insufficient as to it. “When the defendant is a corporation, ‘[a]n award of punitive ...

Excerpt: ... date of February 8, 2019, at 9:00 a.m. On the preceding afternoon the Court posted its tentative ruling denying the petition to compel on multiple grounds (including the res judicata effect of a prior unsuccessful petition). Petitioners did not contest the tentative ruling. Instead, they filed a voluntary dismissal of the action without prejudice, which was stamped filed as of 8:17 a.m. on the morning of the 8th, prior to the 9:00 hearing time. ...

Excerpt: ... v. County of L.A. (1989) 207 Cal.App.3d 946, 950‐51.) Facts On March 26, 2018 a journalist made a California Public Records Act to the Contra Costa Community College District for records regarding one of the District's trustees, Timothy Farley. The reason for the request was apparently that the reporter believed a harassment complaint had been made against Farley concerning an incident that had occurred several years earlier. On April 2, 2018 ...

Excerpt: ...s demurrable because it is not an independent cause of action. As for elder abuse: Both sides brief this issue as though it were being presented for the first time. In fact, the Court (Department 15) previously undertook a lengthy and detailed analysis of the requirements for pleading an elder abuse claim based on negligent caretaking, and concluded that the original complaint did not allege a sufficient claim. That analysis included consideratio...

Excerpt: ...h evidentiary matters. There is very little actual evidence presented on this motion, and no testimony at all from either side. Robinson complains that the “statement of relevant facts” found in LBG's opposition brief is not evidence but only assertions of counsel, which is quite true. But Robinson's own motion papers are likewise unsupported by anything like a declaration or other detailed evidence. His opening brief supports its factual ass...

Excerpt: ... Court rules on procedural and evidentiary issues as follows.  Summary Adjudication. The District purports to seek summary adjudication as alternative relief. However, the District's papers are not organized with reference to individual causes of action as is required when seeking such relief. (CRC 3.1350(b) and (d).) Further, the District's attempt to seek summary adjudication is undercut by the District's own argument that the Complaint's th...

Excerpt: ...o weeks after that date. The first cause of action alleges that Wireless Buybacks failed to defend John Snyder, and later plaintiff as his successor, in the Sprint Action. The Court is now in a better position to assess this argument, after defendants belatedly provided a copy of the original Sprint complaint (although the Court notes that neither side has provided Sprint's first amended complaint). The demurrer to this cause of action is overrul...

Excerpt: ...her method such as e‐mail is agreed). Defendant's demurrer is put back on calendar for April 19, 2019, at 9:00 a.m. Plaintiffs' opposition is due on April 5. Defendant's reply, if any, is due on April 12. Plaintiffs file what they caption as a motion for reconsideration under Code of Civil Procedure § 1008. Considered as such, it cannot be granted because of the intervening entry of final judgment. E.g., Safeco Ins. Co. v. Architectural Facade...

Excerpt: ...y incorrect. The notice of motion does not state each issue on which summary adjudication was sought as required by CRC 3.1350(b). In addition, the issues identified in the separate statement do not appear to be issues that are appropriate for summary adjudication. (CCP 437c(f)(1) [“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or ...

Excerpt: ... then threw out on anti‐SLAPP grounds. Defendant Shane, seeking the best way to resolve this impasse, proposes that the Court should appoint its own expert surveyor under Evidence Code § 730. Each side has already obtained a professional boundary survey, but the two surveys reach different results. Shane posits this as a “tie‐breaker” survey. The problem is that a neutral survey is not certain to resolve anything. Indeed, frankly, it is ...

Excerpt: ...ion, and injunctive relief. There are a number of important flaws in these causes of action, both individually and collectively – starting with plaintiff's entire disregard for the rules of pleading claims against public entities, and for the statutory limits on the availability of such claims. The Court need not address each cause of action or each defect separately, however, for there is a single dispositive principle that shows not only that...

Excerpt: ...or the Court's ruling on the merits. Defendant attaches certain bankruptcy documents in support of two propositions: (1) that plaintiffs and defendants have agreed to the figure for the loan balance as of the date of sale, and; (2) that certain issues were litigated in bankruptcy court in December 2018 and January 2019, and should not be relitigated here. The first proposition is moot, because plaintiffs again stipulate to the loan balance in the...

Excerpt: ...raud‐based counts in the original complaint, holding that a claim of fraud in connection with a medical malpractice case is legally viable only if it is alleged that the defendants actually knew of the falsity of the statements they allegedly made. The Court allowed leave to amend to allow plaintiff to make that allegation, if he could. He has now done so, alleging expressly that “Defendant Toma knew the ‐ 8 ‐ representations were false w...

Excerpt: ...t doubt on that account but provides no admissible evidence.) Plaintiff argues that defendants did not act diligently in seeking relief. At first cut, though, defendants' explanation suggests that the delay in filing this motion was likewise attributable to the same asserted problems with Mr. Judson. The motion, however, is not accompanied by a proposed answer or other response, as required by the statute. “Application for this relief shall be ...

Excerpt: ... provide any tabs for its exhibits, in clear violation of CRC 3.1110(f) and Local Rule 3.42. Plaintiff, on the other hand, provided so many tabs for exhibits and CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 03/08/19 ‐ 3 ‐ exhibits to the exhibits that the tabs were of limited usefulness. For example, there are four tabs labeled “Exhibit A”. The Relation of the Parties, and Substance of the Lawsuit Plaintif...

Excerpt: ...d he wants them to be part of the record in this case, he must immediately serve and file them. In these lodged papers, plaintiff complains that the Opposition was not served on him by email or fax and that he wants additional time. However, the file does not reflect any order requiring service by email or fax. Therefore, under Code of Civil Procedure § 1005(c), service by overnight delivery was sufficient. Furthermore, Code of Civil Procedure �...

Excerpt: ...rious defects. The third page of the notice of motion, presumably containing a statement of the relief requested and the signature block of plaintiffs' counsel, is missing. The opening memorandum is 20 pages long, without leave of court and without a table of authorities. (CRC 3.1113(d) and (f).) The deposition excerpts submitted with the reply papers are set out within the text of counsel's declaration, rather than in the manner prescribed by th...

Excerpt: ...ed not to disclose or retain any social media content not directly relevant to whether or not plaintiffs were engaged in BHO manufacturing. Seterus must refrain from reviewing any particular content any further than is reasonably required to ascertain whether it is responsive. This case arises from a tragic explosion occurring during plaintiffs' uncle's manufacture of butane honey oil, in which plaintiffs were badly burned. They assert premises l...

Excerpt: ...s detailed at length in the Court of Appeal's first ruling, of August 23, 2017. To make a long story short, in 2007 the County (specifically the Department of Conservation & Development, Building Inspection Division – hereinafter DCD) issued two Notices To Comply to petitioner homeowners, asserting that there were permitting problems with their use and occupancy of two adjoining properties in Oakley. The DCD never proceeded with any administrat...

Excerpt: ... Amended Complaint by April 2, 2019. First Cause of Action (Civil Code §§ 2923.5, 2923.55). Leaving aside the question of which of these two statutes applies (one being on the books in 2018, the other in 2019), the only violation alleged is that Select did not give plaintiff notice that he could request various documents. The allegation of harm to plaintiff resulting from this lack of notice is in ¶ 16(a)(1): “The failure to provide Plaintif...

Excerpt: ...s are directed to tab their exhibits in all future filings. (See CRC 3.1110(f).) Respondent's RJN. Respondent's request for judicial notice is granted. Res Judicata. The present petition is barred by res judicata. (See petitioners' Exhibit 2 [8‐1‐18 order denying arbitration in Case No. N18‐0674].) Prior orders denying arbitration must generally be given res judicata effect. (See Lounge‐A‐Round v. GCM Mills, Inc. (1980) 109 Cal.App.3d 1...

Excerpt: ... ‘aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal merit.' [Citations.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.) Background On August 29, 2018, Plaintiff Paul Hantke as trustee of the Alex W. Hantke Survivor's Trust (“Hantke”) filed a lawsuit against R...

Excerpt: ...be brought to strike any “irrelevant, false, or improper matter inserted in any pleading”. (Code of Civil Procedure § 436.) When ruling on a motion to strike, a court applies the same rules as applicable to a demurrer: The court may consider only matters shown on the face of the complaint or of which it may take judicial notice. (Code of Civil Procedure § 437(a); see Circle Star Center Associates, L.P. v. Liberate Technologies (2007) 147 Ca...

Excerpt: ...tice are unopposed and granted. Defendant must file and serve an answer within 30 days. Plaintiff argues that personal jurisdiction exists for two reasons. First, defendant appeared at a case management conference and a restraining order hearing. (Code of Civil Procedure § 410.50(a) [general appearance is equivalent to personal service].) Second, defendant satisfies the “minimum contacts” required for California jurisdiction based on purpose...

Excerpt: ...rty at issue. CDC sent an e‐mail giving notice of its intention to contest the tentative, raising several issues addressed in the briefs and the tentative. (That's not a criticism of CDC; that's what contesting a tentative is for.) At the actual hearing on January 18, however, CDC chose not to go into any of the points mentioned in its e‐mail. Instead, it raised an argument it concededly had not mentioned at all in CONTRA COSTA SUPERIOR COURT...

Excerpt: ... they have seen in the settlement agreement has affected their Opposition. On or before March 1, 2019 the moving parties may file and serve a Supplemental Reply Brief responding to the Supplemental Opposition Brief. None of the supplemental briefs may exceed three pages. This case concerns an alleged failure to disclose problems affecting a house in Alamo that plaintiff purchased. Plaintiff filed suit on August 31, 2018, and a first amended compl...