Excerpt: ...ARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 12/20/18 ‐ 2 ‐ Code of Civil Procedure §877.6. (Going forward, Ghoneim and Chiba will be referred to as “Ghoneim”.) The party claiming that a settlement is not in good faith under Code of Civil Procedure §877.6 has the burden of proof on that issue. (Tech‐Bilt, Inc. v. Woodward‐Cycle & Associates (1985) 38 Cal.3d 488, 499 (“Tech‐Bilt”); City of Grand Terrace v. Superior Court (1...

Excerpt: ...l be followed. If not, the parties “may agree on a method of appointing an arbitrator and that method shall be followed.” In the absence of an agreed method, or if the agreed method cannot be followed, “the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.” Even then, the Court does not select an arbitrator, but “shall nominate five persons from lists of persons supplied jointly by the parties to ...

Excerpt: ... of interest by the major shareholders who were looking for a quick cash‐out. Specifically, they alleged that the proxy statement issued by Abaxis was inadequate. Plaintiff filed moving papers seeking a temporary restraining order blocking the sale. The matter was set for hearing more than once, but was never heard. On October 5, 2018, plaintiff filed a motion to approve dismissal of the action pursuant to Code of Civil Procedure section 581(b)...

Excerpt: ...of the judgment. (C.C.P. §§ 685.070, 685.080.) The Kizors seek $64,554.03. They also set forth the amount of the total judgment (after some corrections). The total number still needs to be confirmed. For example, the Kizors' papers state that the Court awarded them $72,336.53 in costs. (Kizor MPA, p. 3, line 4.) In the Court's order of September 20, 2018, however, the Court found total costs for the case of $72,527.77, but awarded only $24,175....

Excerpt: ...sons, including mediation. Sticking to the most recent trial settings, trial was set for June 25, 2018, i.e., within the five‐year period. On April 26, 2018, the Court, on its own motion notified the parties that the trial was continued to July 30, 2018. This was based on unavailability of the Court, although the order did not so state. On June 14, 2018, the Court again continue the trial date, this time to August 6, 2018, again based on unavai...

Excerpt: ...only remaining claim of the FAC is for negligence. Defendant moves for summary judgment on two grounds: (1) that the statute of limitations bars Plaintiff's claims; and on the separate and independent ground that (2) Plaintiff cannot prove his alleged exposure to emission from the refinery caused his alleged injuries. For the following reasons, the MSJ is denied. Standard Code of Civil Procedure (“CCP”) §§ 437c(o)(1) and 437c(p)(2) provide ...

Excerpt: ...ed imposition of sanctions. In the previous motion, moving parties sought $24,173.50. In this motion, moving parties actually seek CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 12/06/18 ‐ 8 ‐ more sanctions, $27,653.66, apparently due to the cost of preparing this motion in addition to the last motion. As to the history of the matter, Judge Goode held hearings about discovery on January 11, February 15, and Apr...

Excerpt: ...opposition, which the Court has reviewed. Plaintiff is entitled to reply at the hearing. Accordingly, the Court sets forth tentative views based on the papers filed to date, and the parties must appear. Plaintiff moves for summary judgment, asserting that this is a straight‐forward postforeclosure unlawful detainer, i.e., that the plaintiff foreclosed on the property in a non‐judicial foreclosure complying with all statutory notice requiremen...

Excerpt: ...l is not a California resident, and therefore is not protected by the statute. As to Union Oil, plaintiffs argue that defendants have failed to separate costs involving Ashland from those involving Union Oil. In addition, plaintiffs argue that the specific costs requested are not shown to be reasonable and recoverable. Finally, they argue that defendants have not shown a reasonable possibility that they will prevail. They do not argue that they a...

Excerpt: ... Goel (2005) 35 Cal. 4th 1094, 1105, n. 4.) In this instance, Jarboe points out that the Court's prior decision contains an erroneous statement of fact, i.e., that Parr had not given a PAGA notice to the LWDA at an important time in the process. Indeed, Parr had given such a notice on September 21, 2017, a fact not contested by the opposing parties. This affected the Court's reasoning, because, as the order stated, “with proper notice to all co...

Excerpt: ...urt. The parties should be prepared to address whether that is proper. Until that issue is resolved, the Court is not inclined to proceed with the motion. If that issue can be resolved, the Court offers the following observations. Legal Standards: The Legislature's express command that PAGA settlements be approved by the court necessarily implies that there is some substantive dimension to the review. See Labor Code Section 2699(l). The Court's r...

Excerpt: ...rces, Inc. (“Cross‐Defendant or “IR”) demurs to the all causes of action alleged against it on the ground Cross‐Complainant failed to file a certificate of merit, pursuant to CCP § 411.35. The certificate must be filed before or concurrently with the complaint or cross‐ complaint. Failure to file a certificate is a ground for demurrer or motion to strike. (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359‐360; CCP § 411.35(g)....

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 11/15/18 ‐ 4 ‐ The Court will send out a separate e‐filing order in the near future. The parties, as well as support staff involved in e‐filing, are urged to review that order carefully and abide by its terms. The Court notes that in the stipulation and order filed on October 19, 2018, the parties stipulated to consolidate three related derivative actions. As part of this stipulati...

Excerpt: ...quirements for taking a lump‐sum rollover of her 30‐year accrued retirement as an employee of the Alameda County Superior Court (Alameda Court). She alleges that she was told the process for calculating her final retirement benefit would take months, that in the meantime she could take monthly benefits, and that once the calculations were done she could take a lump‐sum rollover. Her later request for rollover was denied based on her initial...

Excerpt: ...ted. The court received Defendant's supplemental papers. Plaintiffs filed their supplemental papers 5 days late. The court has considered all papers. I. THE ARBITRATION AGREEMENT IN THE RELEVANT CC&R'S IS SUBJECT TO THE FEDERAL ARBITRATION ACT The Federal Arbitration Act (“FAA”), 9 U.S.C. Section 2, provides, in part, that a “written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controver...

Excerpt: ...ATE: 11/01/18 ‐ 8 ‐ Background This multi‐plaintiff construction defect case concerns several homes in Oakley built by Meritage. Plaintiffs own one of them: 124 Copper Knoll Way. Their sellers, John and Denise Aragon, brought a construction defect case against Meritage in 2010. (Separate Statement of Undisputed Material Facts [“SSMF”] No. 1.) While the Aragons do not appear to have signed the relevant settlement agreement, they dismisse...

Excerpt: ...leave to amend. Teichert was aware that “weld discontinuities” might have constituted a breach of the warranty of fitness in March 2018, but did not bring its motion for leave to amend until September 2018. (Hilberg Dec., Exh. 2 [response to form interrogatory 314.2].) However, the Court also finds that cross‐defendant Northwest Pipe Company has not demonstrated substantial prejudice. (See, Mesler v. Bragg Management Co. (1985) 39 Cal.3d 29...

Excerpt: ...efense – sustained, without leave to amend. Second affirmative defense – sustained, without leave to amend. Third affirmative defense – sustained, with one opportunity to amend. Sixth affirmative defense – overruled. Seventh affirmative defense – sustained, with one opportunity to amend. Eighth affirmative defense – overruled. Ninth affirmative defense – overruled. Tenth affirmative defense – sustained, with one opportunity to ame...

Excerpt: ...ference that “both sides had agreed to a jury trial. I did not know that my demand was sufficient to secure my rights, and the whole proceeding was conducted so quickly that I did not think to ask the court about the issue.” There is some apparent miswording in the declaration, i.e., the discussion was that both sides had agreed to a court trial, and presumably Ms. Longmire means that she did not know that her demand was insufficient to secur...

Excerpt: ...ne was negotiating with State Farm, who advised him that while it represented Bravos, it could not accept service on his behalf. State Farm specifically requested that it be notified when the cross‐complaint was served, or before seeking entry of a default. Eventually, Romdhane obtained an order permitting service by publication. On October 13, 2017, however, Romdhane managed to personally serve Bravos, according to a proof of service dated Oct...

Excerpt: ...uding during trial. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) “The rule of liberality is particularly important where, as in the present case, an amendment is sought to an answer.” (Dunzweiler v. Superior Court of Alameda County (1968) 267 Cal.App.2d 569, 576 (defendant permitted to plead plaintiff's negligence). Plaintiffs argue they will be prejudiced if the amendment is allowed because vehicle inspections, depositions, and a med...

Excerpt: ...ors' good faith motion. See Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4th 1550, 1561, fn. 5 (“The amount of discovery – if any – to be allowed and the scope of the good faith settlement proceeding rests in the sound discretion of the trial court.”); City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1265 (appropriate for “the objecting nonsettlor to move for a continuance of the hearing, if necessary, for t...

Excerpt: ...ismissal was not in fact caused by the attorney's mistake, inadvertence, surprise or neglect.” In this instance, counsel fails to set forth any basis upon which, had he appeared at the hearing, a further extension of the deadline for service of a complaint filed January 9, 2017, would have been granted, given that a previous extension had been allowed. Plaintiff may appear (by telephone through Court Call) to address this issue ...

Excerpt: ...idable.” (Complaint, Par. 11.) The sole named defendant in the action is Alvernaz Partners, LLC, which purchased the property at the trustee's sale, but against whom plaintiff alleges no wrongful conduct. Plaintiff recorded a lis pendens. Alvernaz moves to expunge the lis pendens on the grounds that (1) it is invalid because plaintiff did not serve it on Alvernaz; and (2) plaintiff cannot show a probability of prevailing on the merits of the ac...

Excerpt: ... motion could have been filed at that time), it did respond (about a month late), and the parties engaged in some meet and confer efforts, which resulted in supplemental responses. While Sentinel may consider the responses to be wholly inadequate, especially given the provision in the statute that objections are waived by a failure to respond in a timely manner, the local rule exempts from the Discovery Facilitator Program only those circumstance...

Excerpt: ...ce. Given that, whether counsel for Bank of America's statement with respect to receiving the subpoena by mail is hearsay is immaterial. Second, Bank of America's contention that plaintiff has no cause of action, and specifically that whether Ms. Smith had authority to sign the documents is legally immaterial is not properly raised as an objection to discovery. The cases relied on by Bank of America concern circumstances where the court itself de...

Excerpt: ...p.4th 566, 604.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 04/16/18 ‐ 3 ‐ In this instance, Mr. Luria has not complied with the Court's January 9, 2018, order, either by submitting code‐complaint responses or paying the sanction award. (The Court notes that while Mr. Luria stated that he no longer has possession or control of certain documents, that statement, by itself is not sufficient. Code of Civil Pr...

Excerpt: ...s plaintiff wishes to plead have been known all along, so there is no prejudice. Prejudice requires more than the additional costs of defending against new facts and theories. (See Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1109 (Prejudice does not mean a result which is unfavorable, it means a result which is unfair); Gonzales v. Brennan (1965) 238 Cal.App.2d 69, 75 (“To be sure without the amendment he might have won his lawsuit; with it,...

Excerpt: ...ssal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiffs' counsel for approval as to form. The basis for the Court's ruling is as follows. A. Request for Judicial Notice. Defendant seeks judicial notice of the recorded deed of trust and assignment of deed of trust. This unopposed request is granted. (See, Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752‐761.) B. Individual Cau...

Excerpt: ...ion under CCP § 473. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) If plaintiff files a Second Amended Complaint all demurrers and motions to strike not already heard will automatically be dropped from the calendar. Third Cause of Action, Violation of Business and Professions Code section 17200 Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice and unfa...

Excerpt: ...ted.) He declined, sending a hostile email complaining that she had been delaying the matter, declining the request (in all caps, underlined, and bold type). Longmire filed this motion on February 8, 2018. In support of her motion she states that she does not understand the requests, they appear to be complicated, and she is seeking to obtain counsel. In opposition, Kessler states that Longmire already has counsel in another matter raising the sa...

Excerpt: ...n. Petitioner contends that Respondent omitted the documents she lists and that all of the documents were considered directly or indirectly by the Department in making its decision. Respondent is also alleged to have redacted items from the record and edited the transcripted testimony. Petitioner's request to augment the record is denied for three reasons. First, Petitioner did not produce any of the documents she seeks to add to the record at th...

Excerpt: ... relevant time, Romdhane was negotiating with State Farm, who advised him that while it represented Bravos, it could not accept service on his behalf. State Farm specifically requested that it be notified when the cross‐complaint was served, or before seeking entry of a default. Eventually, Romdhane obtained an order permitting service by publication. On October 13, 2017, however, Romdhane managed to personally serve Bravos, according to a proo...

Excerpt: ...ty. The underlying claim arises from a prior case, in which James and Christine Dean sued Abacus Financial Group. At one point during that matter, Ms. Hinchman allegedly signed a declaration drafted by the Dean's counsel, Zelis. Amado claims that this violated various duties toward him and Abacus Financial. He issued subpoenas to Christine Dean and Zelis seeking information concerning the declaration, and the draft declaration itself. The matter ...

Excerpt: ...f leave to amend. Its order further stated that any amended complaint “shall be filed and served on or before December 29, 2017.” (See Ex. A to Wagster Decl.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/19/18 ‐ 3 ‐ Plaintiff filed his First Amended Complaint on December 29, 2017, but failed to serve it on the two moving defendants by December 29, 2017. Plaintiff did not serve it on these defendants unt...

Excerpt: ...al requested is $9,550 for 19.1 hours by Michael S. Burk (at $500 per hour), $29,980 for 82.8 hours of work by Emily Fowler (at $350 per hour), and $3,553.31 in CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/12/18 ‐ 8 ‐ costs. Plaintiff argues that the request is excessive because the hourly rates are too high and the hours include time spent on matters other than the Anti‐SLAPP motion. Plaintiff argues tha...

Excerpt: ... as 10359 San Pablo Avenue in El Cerrito. The lease was renewed in 2009. In 2014, the Wongs attempted to evict Ms. Tan for failure to pay the rent in September and October. They filed an action, Wong v. Tan (Contra Costa Superior Court Case No. RS14‐ 1020.) Defendant Tan successfully defended that action. On March 18, 2016, the Wongs filed another unlawful detainer, Contra Costa Superior Court Case No. RS16‐0235. (See Defendant's RJN, Ex. B.)...

Excerpt: ...tentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship, and (5) resulting damage. See Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126. Subtronic previously demurred to this cause of action on two grounds: (1) elem...

Excerpt: ...Court to undertake a two‐step analysis. First, the Court must determine if the conduct Dr. Braunstein allegedly engaged in is activity protected by section 425.16. If the Court answers that question in the negative, the analysis stops and the motion must be denied. If the Court answers that question affirmatively, the Court must then analyze Karkanen's probability of prevailing on the merits. Navellier v. Sletten (2002) 29 Cal.4th 82, 88‐89; ...

Excerpt: ...es, in part, as follows: [Following] an order of suspension or revocation of the person's privilege to operate a motor vehicle after the hearing pursuant to Section 13558, the person may file a petition for review of the order in the court of competent jurisdiction in the person's county of residence. . . .The review shall be on the record of the hearing and the court shall not consider other evidence. If the court finds that the departme...

Excerpt: ...s monetary and terminating sanctions. That section provides that every pleading submitted to the court certifies “to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose…(2) The claims …are warranted by existing law or by a nonfrivolous argument [for a change in the law]...

Excerpt: ...9 HEARING DATE: 03/05/18 ‐ 3 ‐ “Partition is a remedy much favored by the law.” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) “If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (Code Civ. Proc., § 8...

Excerpt: ...motion followed. In response to the motion, plaintiff has filed proposed responses, which his counsel states already have been served, and are attached to his supporting declaration as Exhibit B. Those responses are not verified, are dated October 27, 2017, and have no proof of service. They also contain objections, but in each case also provide an answer. All answers, however, either deny the statement or state that plaintiff lacks sufficient in...

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 03/05/18 ‐ 14 ‐ the trustee, which ultimately resulted in a judgment over $800,000, plus prejudgment interest of $225,000, and attorney fees of $440,000. The current application relates to the expenses of enforcing the judgment and defending the trustee's appeal. (The trial court judgment, issued by a private judge, was affirmed, with one exception.) The order is sought primarily pursu...

Excerpt: ...on that ground. On Sladek's demurrer to the First Amended Complaint, the court granted leave to amend these causes of action. The court found that Plaintiff's lack of diligence most likely prevented delayed discovery beyond 2013 for Plaintiff's claims for fraud, breach of fiduciary duty, breach of good faith and negligent misrepresentation. Plaintiff's personal realtor, Jim Calhoun, had informed Plaintiff “sometime” in 2013 that she was not o...

Excerpt: ...extent that the motion may be treated as a motion to reconsider under Code of Civil Procedure section 1008, it is untimely. 2. TIME: 9:00 CASE#: MSC16‐01293 CASE NAME: SCHORNO VS. GANN‐DESIMONE HEARING ON MOTION FOR REQUESTING CHANGE OF CCC JUDGE, VENUE OR DISMISSAL / FILED BY NANCY S. GANN‐DESIMONE * TENTATIVE RULING: * Defendant's motion Requesting Change of CCC Judge, or Change of Venue, or Dismissal of Case” is denied. To the extent t...

Excerpt: ...; (3) negligent failure to fulfill promise; (4) fraud; (5) negligent CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 02/05/18 ‐ 10 ‐ misrepresentation in loan modification; (6) violation of Bus. & Prof. Code § 17200 et seq.; (7) quiet title; (8) declaratory relief; and (9) injunctive relief. Defendant demurs pursuant to Code Civ. Proc. § 430.10(e) through (g) on several grounds. The Court notes that many of the...

Excerpt: ...ty was valued at $2.8 million, that the property was to be an investment property, sold quickly, that Longmire would not reside there, and that Longmire's income was $21,000 per month or more. (Complaint ¶ 10.) These misrepresentations allegedly induced Plaintiff to loan Longmire and Roesner $1.85 million. (¶ 13.) The loan went into default, and Plaintiff acquired the property at a nonjudicial foreclosure sale. (¶ 15.) Plaintiff seeks damages ...

Excerpt: ... sanctions, it was improper and frivolous. (Defendant had previously sought reconsideration of one of the sanction awards, which was denied.) Moreover, although the ostensible basis of the motion to release lien was that the property was not owned by Defendant, but by Star Wars Revocable Living Trust, no evidence was submitted showing that the trust actually owns the property. Finally, if a sale of the property was recorded before the abstract of...

Excerpt: ...dismissal of co‐defendant Special Default Services, Inc., which has filed a declaration of non‐monetary status. A. Procedural Problems. 1. The Moving Papers. There are several procedural problems with the moving papers filed on November 13, 2017. These include the following. First, defendant Trinity refers to evidence that has not been supplied to the Court. The separate statement refers to a “Declaration of Johnelle Gomez,” and various e...