Excerpt: ...s provided the Court a copy of the settlement agreement. It was later filed in the public file, as set forth below. On April 20, 2018, Lawson filed a motion to dismiss her individual claims with prejudice and the class claims without prejudice. That motion was unopposed. Attached as Exhibit 1 to Marcus Bradley's declaration supporting that motion was a copy of the settlement agreement. The first page of the settlement agreement indicates that the...

Excerpt: ...omplaint was received on the date in question. Pursuant to Evidence Code section 1272, this constitutes evidence that service did not occur. Plaintiff offers the proof of service of Michael Brocks, who attests to having served the documents. Because Mr. Brocks is not a registered process server, the proof of service does not create a presumption of service under Evidence Code section 647. On this showing, the Court considers it more likely that M...

Excerpt: ...er Civil Code section 930(b). Plaintiffs contend that the offers to repair made by Meritage during the prelitigation process did not comply with Civil Code sections 933 and 934; as such, according to plaintiffs, they need not continue with the prelitigation process. Plaintiffs also contend that the offers to repair did not comply with section 917. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 07/12/18 ‐ 4 ‐ Sec...

Excerpt: ..., that they are not shown to be reasonably necessary. No particular objection to any proposed cost is raised. Plaintiffs have responded with significant documentation of the fees. Harris has not replied. The matters for which reimbursement is sought all appear to fall within categories eligible for recovery, and were reasonably necessary, with the exception of $16,966.12 in costs for ordering medical and other records The expense for document sub...

Excerpt: ...nd provides a declaration of a process server saying as much. The process server also says that a proof of service was mailed to Attorney Higgins, who formerly represented plaintiff Williams. Attorney Higgins died in CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 06/28/18 ‐ 2 ‐ early 2018. Williams also argues that by virtue of the large number of coordinated cases making essentially the same claims about the 20...

Excerpt: ...t they have been willing to stipulate to a stay of this action all along. Dismissal under Section 583.150 Trilogy contends that the Court ought to exercise its discretion under CCP section 583.150 and dismiss this action with prejudice. The Court declines to exercise its discretion in that manner. Section 583.150 affirms that the Court has inherent discretionary authority to dismiss an action. Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005,...

Excerpt: ... that no one did so. Finally, he attaches documents from the same process server in another case in which a motion to quash was granted. While Defendant asserts that there was a finding in that case that the process server's proof of service was false, the documents provided show no such finding. Plaintiff has responded to the motion with a proof of service by a registered process server, which establishes a presumption of valid service. (Evidenc...

Excerpt: ...had a personal relationship, obtained entry to his house wrongfully, after their relationship ended, by using a realtor to provide access through a lock box while the property was being listed for sale. Actual damages are not an element of either cause of action. (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265 (trespass); Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82, 88 (invasion of privacy).) Further, each cau...

Excerpt: ...n conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement …are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” The Court will consider these issues in turn. Petitioner is a successful party. The Court issued a writ of mandate, based on its conclusion that, while the Department has wide discret...

Excerpt: ...omatic stay does not apply in this case because he is the plaintiff. At some point, an issue may arise as to whether the trustee in bankruptcy wishes to pursue the claim, but that issue is not before the Court at this point.) ...

Excerpt: ...ion by the Court that this would be inequitable is simply a result of the application of the case law to Travelers' theory, not an indication that evidence on that topic would have changed the result. With respect to the evidence of whether the subcontractor caused the damages, again, the issue arose from Travelers' theory of the case, which was that the evidence was not relevant, CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HE...

Excerpt: ...days after service of a written notice of the default, whichever is earlier. Upon such a showing, the court may set aside the default as long as the lack of actual notice “was not caused by his or her avoidance of service or inexcusable neglect[.]” Defendant asserts that he did not receive notice until about December 27, 2017, when he received a notice of levy. He states that his secretary, who was running the office while he was working on j...

Excerpt: ... not be dispositive of all or a significant number of the issues in the other matters. Second, any decision on the upcoming appeal would appear to be as much as two years in the future. Thus, waiting for that appellate result poses a significant risk of simply delaying the resolution of these matter without a substantial offsetting benefit. If all of the parties in any of these matters were to stipulate to a stay, the Court likely would grant the...

Excerpt: ... to an award to cover the costs of defense experts. (C.C.P. § 998(c)(1).) Such an award is discretionary, however. (“[T]he court … in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary[.]”) Once the defendant files a verified memorandum of costs (which it did), it is plaintiff's...

Excerpt: ...claimed by the Kizors are subject to a similar analysis. Accordingly, the parties should restructure their claims to fit with that analysis, and meet and confer concerning narrowing of the issues. After that has been done, the Court will consider any remaining issues concerning particular cost items. 6. TIME: 9:00 CASE#: MSC09‐01689 CASE NAME: KIZOR ET AL V. REDIG ET AL HEARING ON MOTION TO/FOR AWARD OF PREJUDGMENT INTEREST FILED BY ALAN KIZOR,...

Excerpt: ...er, is a more appropriate method of analysis. Counsel has offered relatively thin support for the use of the $700 hourly rate in calculating the lodestar amount. Assuming that the Court's determination starts with the submitted lodestar amount of $174,655, the total fee sought still amounts to a multiplier of 2.81. If a slightly lower hourly rate were used, the multiplier would be larger. While the case involved some degree of CONTRA COSTA SU...

Excerpt: ...ourt understands plaintiffs' view that their expert's testimony was more persuasive than that of defendant, there is no basis for setting aside the jury's verdict. With respect to the trial judge's ruling concerning the use of various photographs that were not included in the pre‐trial exhibit list, the ruling was well within the court's discretion. Even if the photographs had been provided in discovery, the pre‐ trial exhibit list is designe...

Excerpt: ...not disputed that Dr. Braunstein is the prevailing party for purposes of awarding fees and costs. Karkanen opposes by objecting to the amounts sought by Dr. Braunstein as fees and costs. Karkanen also opposes by contending that an award of fees and/or costs would be unconstitutional. Constitutionality of Awarding Fees and/or Costs Our Supreme Court already has considered and rejected the contention that awarding fees and/or costs to a party preva...

Excerpt: ...y further amended complaint on or before June 28, 2018. Preliminary Matters. Defendants' request for judicial notice is granted. The Court has not considered plaintiffs' sur‐reply, which was filed without leave of court on May 21; the governing statute does not authorize the filing of a sur‐reply. (Code Civ. Proc., § 1005.) The Statute of Limitations. Defendants' demurrer is sustained with leave to amend as to all causes of action, insofar a...

Excerpt: ...rvice on behalf of a party. On March 16, 2018, Petitioners filed another proof of service by notice and acknowledgment under Code of Civil Procedure section 415.30, which did not rectify the problem. Nothing new has been filed CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 04/30/18 ‐ 6 ‐ since that time. Perhaps petitioner believed that the Court did not have the March 16, 2018 filing and that it remedied the pr...

Excerpt: ...osta County (the “County”). For the reasons stated below, the Motion is granted without leave to amend. Code of Civil Procedure (“CCP”) section 436 permits the court to “strike out any irrelevant, false, or improper matter inserted in any pleading.” For a prayer for punitive damages to be valid, some basis for punitive damages must be pleaded. (Clauson v. Superior Court (1988) 67 CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPART...

Excerpt: ...E: 04/30/18 ‐ 9 ‐ recorded the lis pendens cannot establish the “probable validity” of the real property claim by a preponderance of the evidence. [CCP § 405.32] (See Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1017.) “Probable validity” of the claim for purposes of avoiding expungement means that it is more likely than not that the party who asserted the real property claim will obtain a judgment on the claim in his or her...

Excerpt: ...on references certain settlement discussions. Ted objects on the ground that such discussions are inadmissible under Evidence Code section 1152. That section, however, “has no application where the evidence is not tendered as an admission of weakness by the party who settled or offered to settle, but for some other purpose.” (Lemer v. Boise Cascade (1980) 107 Cal. App. 3d 1, 9.) And as another court flatly proclaimed, “[c]ommunications made...

Excerpt: ...��Oduah”). The SAC pleads causes of action for (1) breach of contract; (2) promissory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) fraud; (7) violation of Bus. & Prof. Code § 17200 et seq.; (8) quiet title; and (9) declaratory relief. The Court notes that the Plaintiff has filed a “Notice of Partial Tent...

Excerpt: ...tach order. A writ of attachment is a statutory remedy governed by CCP Section 484.090. Attachment is a harsh remedy because it causes the defendant to lose control of their property before the plaintiff's claim is adjudicated. See Martin v. Aboyan (1983) 148 Cal.App.3d 826, 831. Because of this, the statutory requirements are strictly construed. See Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1476. CCP Sect...