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: ... 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: ...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: ...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: ...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: ...llegations where ‘it concludes as a matter of law that, assuming the truth of the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be satisfied.'” (Schermer v. Tatum (2016) 245 Cal.App.4th 912, 923 (“Schermer”).) “Class actions are permitted ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is i...

Excerpt: ...esponses June 26, 2018. Defendants did not seek to meet and confer about the responses until August 7, 2018, just a week before the 45‐day deadline to file a motion to compel. (Where responses are served through e‐filing, there is a two‐day extension on any deadlines. Service after close of business is deemed to have occurred the next day. (CRC 2.251(h)(2), (4).) The e‐mails of the 7th and 8th show that there was some good faith meeting a...

Excerpt: ...moving party, Phillips 66 bears the burden of proof on this issue. (Jobe v. City of Orange (2001) 88 Cal. App. 4th 412, 419 [award “requires that the claimant show that the cost of its legal victory transcended its personal interest”]; Evidence Code § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is as...

Excerpt: ...ts' unopposed requests for judicial notice are granted. Defendants' demurrer is sustained without leave to amend, as to the First, Second, and Fifth Causes of Action. The demurrer is moot as to the Third Cause of Action for fraud, because the Court has granted defendants' companion motion to strike that cause of action. The Court notes that the Third Cause of Action is stated only against defendant First American; it is not stated against defenda...

Excerpt: ...arbitration. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 378‐89. The critical issue here is whether Plaintiff's claims under Labor Code sections 558 and 1197.1 may be compelled to arbitration. There is a conflict on this issue as between Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 and Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, review granted March 21, 2018. Broadly speaking, Esparza says that section ...

Excerpt: ...zed wage statements, 4) failure to pay wages on termination, and 5) unfair business practices. Onyx demurs as to Robinson's individual claims (but not as to the class' claims) on the basis that res judicata applies because the parties previously settled a wage claim while it was before the Labor Commissioner. “In demurrer analysis, we test the sufficiency of the plaintiff's pleading against the relevant principles of law. (Linda Vista Villa...

Excerpt: ..., Sr. (collectively, “Plaintiffs”). Defendant moves pursuant to § 438(c)(1)(B)(ii) on the grounds that Plaintiffs cannot state facts sufficient to constitute a viable cause of action for violation of Bus. & Prof. Code § 17200, et seq. For the following reasons, the MJOP to the second cause of action for violation of Bus. & Prof. Code § 17200 is denied. Request for Judicial Notice Defendant has requested judicial notice of over three hundre...

Excerpt: ...ithout court approval; (4) preventing him from restoring control over the company's computers; (5) operating video surveillance at the business premises; and (6) making any loans or extraordinary transfers to the Garaventa Trust, without either unanimous Board approval or court approval. To the extent the issues overlap with those considered in the motion for a preliminary injunction in the related case (C18‐ 01450), the Court retains the same ...

Excerpt: ...bit J. The proposed settlement provides for Defendants to pay a total of $400,000 as follows: (1) $15,000 to the settlement administrator; (2) $133,333.33 in attorneys' fees and costs; (3) $5,000 to the Plaintiff as an enhancement award; (4) $106,500 to aggrieved employees pro rata via an “underpaid wage fund;” (5) $130,166.67 to a “penalties fund” which will go 75% to the State of California ($97,625) and 25% ($32,541.66) to aggrieved em...

Excerpt: ...uly 11. The creditors submitted the application to the court, through electronic filing, on July 11. Six days later, it was rejected by the clerk, because electronic filing was not appropriate for this type of application. When plaintiffs refiled, the deadline had passed. A number of cases concern circumstances in which a clerk rejects a document, causing the filing party to miss a critical deadline: Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 [...

Excerpt: ... Kizors' goals and demands. The Court, nonetheless believes that the Kizors did prevail, although not on all claims. While the Court is guided by Hsu v. Abbara (1995) 9 Cal.4th 863, which the Redigs rely on heavily, that case is of mixed help to the Redigs. It does state that “the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclos...

Excerpt: ...kansas law, add the affirmative defense of comparative fault under Arkansas law, and correct typographical errors. The law applies a general policy of liberality in permitting amendments to pleadings, where the opposing party will not be prejudiced by the amendment. (Harris v. City of Santa Monica (2013) 56 Cal. 4 th 203, 240.) While some cases have stated that unwarranted delay may be enough by itself to justify denial, such cases tend to be at ...

Excerpt: ... subdivision (a)(2) to enjoin “some act during the litigation [that]would result in waste, or great or irreparable injury[,]” and subdivision (a)(3) to prevent “some act in violation of the rights of another party to the action respecting the subject of the action.” In deciding to issue a preliminary injunction, the court must evaluate (1) the likelihood that plaintiff will prevail on the merits and (2) the interim harm the plaintiff is l...

Excerpt: ...uent HOA fees and where at any time during the period from April 2, 2011 through the date of Judgment in this case ALS either: (1) collected a payment from the homeowner and applied that payment to costs of collection before delinquent assessments were paid in full; and/or (2) either rejected a partial payment from the homeowner or charged the homeowner a partial payment fee; and/or (3) threatened or initiated non‐judicial foreclosure on assess...

Excerpt: ...arily, money judgments are not stayed pending appeal unless the appellant files an undertaking. (CCP § 917.1(a)(1).) The code provides an exception, however, for costs‐only judgments. (CCP § 917.1(d) [“no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.”) Because the attorney fees awarded were pursuant to contract, they are considered “costs” un...

Excerpt: ...itations set forth in Civil Code § 3439.09 (“Uniform Voidable Transactions Act”). Background Facts Plaintiff Sandra Rizzardi and Defendant Russell Rizzardi were married on October 23, 1976. Sandra and Russell separated on May 15, 1997 and a Stipulated Judgment on Reserved Issues was entered on July 7, 1998 in the Dissolution Action in Sacramento County. Russell Rizzardi was ordered to pay spousal support to Sandra Rizzardi. Russell Rizzardi ...

Excerpt: ...never alone” and that if anything happens, defendants will contact the customer “immediately.” (¶ 26.) On December 30, 2017, Shadow was attacked by another dog, suffering significant injuries that required surgery at a veterinary hospital. (¶ 12.) Defendants did not notify plaintiffs of the incident until December 31, 2017. (¶ 12.) There was no manager on site when the incident occurred, when plaintiffs asked to speak to one after they w...

Excerpt: ...ner's office for an autopsy. The motion is granted. Factual and Procedural Background (In stating the “facts,” below the court is not making factual findings. In cases, it states “facts” from plaintiff's additional facts even though defendant disputes those facts. It does this to show that even if those facts favor plaintiffs as strongly as claimed they are still insufficient.) Centerpoint does business under the names of Alta Vista Crema...

Excerpt: ...ithin the time otherwise allowed to respond to the complaint” files the motion. Mr. Christ did not file the motion with a responsive pleading, thus the issue is whether the motion was filed “within the time otherwise allowed to respond to the complaint.” It appears undisputed that Mr. Christ's responsive pleading was due on April 2, 2018, but that the parties extended that time to 14 days “after the conclusion of the mediation[.]” Concl...

Excerpt: ...ts”). The Demurrer relates to the First Amended Complaint (“FAC”) filed by Plaintiff Nab A. Hayfron (“Plaintiff” or “Hayfron”). The FAC states causes of action for (1) constructive fraud; (2) violation of Business & Professions Code §§ 17200 et seq.; (3) violations of HBOR; (4) violations of Civil Code § 2923.5; (5) cancellation of written instruments; (6) negligence; (7) intentional infliction of emotional distress; (8) slander ...

Excerpt: ... future, and; (2) whether plaintiffs are estopped from asserting waiver, in light of the fact that they opted out of the class action settlement in the consolidated Esqueda cases and commenced a new class action lawsuit. The Court rules as follows on the petition to compel arbitration, brought by all named defendants. Plaintiffs oppose the petition. The petition is denied. With regard to plaintiff Thomas A. Sacco, the Court finds that his arbitra...

Excerpt: ...cope of the response. The information sought, with respect to all of the hotels in the state, has some relevance to class certification, because it will help establish whether the individual plaintiff's claims are typical and common to the members of the putative class. Defendant's assertion that the hotels are quite different in material respects may be correct, but this needs to be tested through discovery, which may show that Defendant is corr...

Excerpt: ...enors object to the terms of the settlement. Intervenors contend that Code of Civil Procedure section 387 provides the Court authority to permit their intervention. The Court continued the hearing on settlement approval and instead set Intervenors' application for leave to intervene for hearing on July 26, 2018. Both plaintiff James Neil and defendant Hanlees have opposed intervention. Analysis under CCP section 387 CONTRA COSTA SUPERIOR COURT MA...

Excerpt: ...ounsel to keep track of their hours for purposes of a sanctions determination. PCB opposes the request, arguing, among other things, that a request for sanctions must be directed toward the opposition to a particular motion to compel, and that such a motion exists only for one narrow sub‐ category of discovery (responses to Special Interrogatories, Set One, and Request for Production of Documents, Set Two). While the Court has general authority...

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: ...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: ...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: ...vil Procedure section 1008, which requires (1) that the motion be filed within ten days after service of written notice of the order being reconsidered; and (2) that the moving party show “new or different facts, circumstances, or law” that justify reconsideration. The moving party must show that the new evidence could not, with reasonable diligence, have been discovered or produced for the previous motion. (New York Times v. Superior Court (...

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: ..., 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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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...