Excerpt: ...91, 92, 94, 95, 97; Plaintiff's Additional Fact (“PAF”) Nos. 101, 106, 107, 108, 109, 110, 111, 116, 117, 121, 122, 123, 124, 126, 127, 128, 129, 130, 132, 159); 2. the County created the dangerous condition or had actual or constructive notice of it (DMF Nos. 29, 32, 37, 46, 47, 49, 51, 58, 59, 91, 96; PAF No. 101, 113, 121, 131, 132, 136, 137); and, 3. the County approved all pertinent design features before construction; (DMF 58, 59, CONTR...

Excerpt: ...dants argue that each claim fails to state a cause of action and is uncertain. Agency Much of Plaintiffs' arguments in support of their complaint rely on allegations that defendants Augustine and NCA were the agents of Lal and Cheap Homes. Paragraph 11 states that “Plaintiffs are informed and believe and thereon allege that at all times mentioned herein, Defendants, and each of them, were the agents, servants or employees of their Co‐Defendan...

Excerpt: ...loyer‐required business expenses. Plaintiff, Paula Henson, the auntemployer, claims that Sosine charged personal expenses to an employer credit card. Sosine now demurs to the Second Cause of Action of Henson's FAC, which alleges a cause of action for treble damages under Penal Code section 496 (c). In pertinent part, Penal Code section 496 provides as follows: (a) Every person who buys or receives any property that has been stolen or that has b...

Excerpt: ... first submission and then failed to timely process the second, belatedly rejecting it as untimely. The evidence does not support plaintiff's claims. Plaintiff's counsel understood that the nearly $1.5 million judgment needed to be renewed before the ten year period expired on April 3, 2019. Plaintiff's counsel emailed an Application for Renewal of Judgment to Galaxy Process Servers on March 4, 2019. See Goodman Decl., para. 11; Keshinshirian Dec...

Excerpt: ...of the judgment and bringing this motion. (Butler‐Rupp v. Lourdeux (2007) 154 Cal.App.4th 918, 924‐ 928; CCP 685.040; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.) Plaintiffs' moving papers sought fees relating to their lead attorney Bruce Zelis at $400/hour for 43.1 hours, collections attorney Paula Grohs at $300/hour for 56.4 hours, and appellate specialist Gary Garfinkle at $800/hour for 155 hours. Defendants dispute the propriety of the...

Excerpt: ... and fire road in Briones Regional Park. (Facts 16, 76.) They allege that their properties were damaged by flooding and excessive mud deposits when the creek channel behind their homes filled with water, became obstructed, and breached the banks onto their properties on the evening of January 10, 2017. (Facts 128‐129.) They contend this damage was caused by defendant, East Bay Regional Park District because defendant owns and operates the Lafay...

Excerpt: ...t's tentative ruling, unless a stipulation has been reached by the parties. Plaintiff Mohamed A. Ibrahim, as Trustee of the Mohamed A. Ibrahim 2015 Trust (“Plaintiff” or “Ibrahim”) filed a complaint for breach of contract against Defendant Pastime Foods, LLC, an Arizona limited liability company (“Defendant” or “Pastime Foods”). Plaintiff seeks an order for a writ of attachment against Defendant in the amount of $345,303.40, but d...

Excerpt: ...it has taken the deposition of the claims adjuster and conducted other discovery and better knows what it can actually prove regarding oppression, fraud, or malice. Background This is an insurance bad faith case. The complaint alleges that plaintiff, Kapu Properties LLC, owns a residential real property located at 648 Fourth Street in Richmond, California (the “Property”). Kapu leased the Property to a tenant. On December 7, 2018 the house on...

Excerpt: ..., CALIFORNIA DEPARTMENT: 21 HEARING DATE: 10/30/19 ‐ 12 ‐ This argument lacks merit: the issue of whether the parties entered into an arbitration agreement is an issue that the trial court must always decide. (9 USCS § 4 [if there is a dispute over the existence of an arbitration agreement “the court shall proceed summarily to the trial thereof”]; Code Civ. Proc., § 1281.2 [the court shall order arbitration “if it determines that an a...

Excerpt: ...niel Wondrusch and Jordan Wondrusch were seriously injured in an automobile accident caused by Defendant Jason Daniel Gregory on March 25, 2017 in Livermore, California. (Complaint ¶¶8‐ 10). Defendant Jason Daniel Gregory was allegedly driving under the influence at over 100 miles per hour on a suspended license at the time of the crash. (Complaint ¶¶12‐ 13). He allegedly had a criminal history of driving under the influence. (Complaint �...

Excerpt: ...their exhibits as required by CRC 3.1110(f) and Local Rule 3.42(3). In addition, Plaintiffs failed to mark the relevant portions of deposition testimony in a manner that calls attention to the testimony as required by CRC 3.1116(c). The Raposos (see line 3) also failed to mark the relevant portions of deposition testimony in a manner that calls attention to the testimony as required by CRC 3.1116(c). Abreu failed to include the first page of any ...

Excerpt: ...f the complaint. Yet Defendant was in default when the normal deadline to file this motion expired. The Court is not convinced that imposing such a deadline was intended by the statute, but in any event, the Court has discretion to hear a motion filed more than 60 days after service. (Code of Civil Procedure § 425.16(f).) Given that Defendant's motion was filed within 60 days of the order setting aside her default, the Court exercises its discre...

Excerpt: ...to allege fraud with the required specificity. In the SAC, Plaintiff alleges that Davis made representations to Plaintiff (by making statements to Boguess and Ryan). Davis is alleged to be a “shareholder, owner, office, director, manager, employee, agent or representative of Terra Steward, Foshay Electric and Kodiak Moon.” (SAC ¶3.) Davis's business card stated that he worked for all three companies. (SAC ¶¶6, 14.) Davis represented to Pla...

Excerpt: ...presented by the same real estate agent and brokerage, defendants Mayra Davalos and SPRE, respectively (collectively, “Moving Defendants”). (Complaint, ¶17.) Plaintiffs allege that Cervantes informed Davalos that he was planning on hiring a surveyor to double check the boundaries of the Subject Property, having noticed that the fence shared with a neighboring property was in an unusual position. In response, Davalos stated that Cervantes nee...

Excerpt: ...Defendant in the amount of $345,303.40, but does not identify any specific bank accounts or real property. This motion was previously on for hearing on October 9, 2019. The Court agreed to accept letter briefs on the issue of whether the Court has the authority to attach assets outside of California. For the following reasons, the application is denied. Factual Background Defendant executed a Note Payable in Plaintiff's favor in the amount of $30...

Excerpt: ...unsel understood that the nearly $1.5 million judgment needed to be renewed before the ten year period expired on April 3, 2019. Plaintiff's counsel emailed an Application for Renewal of Judgment to Galaxy Process Servers on March 4, 2019. This is supported by counsel's declaration and the declaration from Galaxy. See Goodman Decl., para. 11; Keshinshirian Decl., 6. Interestingly, the documents allegedly submitted in support this point to not act...

Excerpt: ...int (“SAC”). Defendant moves on the grounds that the FAC does not allege facts sufficient to support an award of punitive damages based on malice, oppression, or fraud as required by Civil Code § 3294. The Court granted Defendant's previous motion to strike punitive damages allegations from Plaintiffs' First Amended Complaint but gave Plaintiffs leave to amend. For the following reasons, the Court grants the instant motion, without leave to ...

Excerpt: ...plicated several law enforcement officers from five east bay police agencies. For the reasons that follow, the petition is denied. Standard of Review When a public employee challenges an employer's disciplinary action in a mandamus proceeding, the trial court is required to exercise its independent judgment on the evidence. Wences v. City of Los Angeles, 177 Cal.App. 4th 305, 314 (2009). An abuse of discretion is established if the trial court de...

Excerpt: ...aton (“Plaintiff”). The Complaint pleads a single cause of action for violation of the Federal Employers' Liability Act (“FELA”) arising out of Mr. Eaton's death from cancer. Defendant moves for summary judgment on the grounds that (1) Plaintiff's claim is barred by the three‐year statute of limitations; (2) Plaintiff cannot show that BNSF's negligence, if any, caused CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARI...

Excerpt: ...ds causes of action for (1) professional negligence and (2) fraud of false pretenses, deceptions, and conspiracies. Defendants demur on the grounds that (1) there is no allegation of an attorney‐client relationship between Nisperos or the State Bar and Plaintiff (and as a consequence Nisperos and the State Bar did not owe her a duty of care); (2) Plaintiff's professional negligence claim against the State Bar is barred as a matter of law for fa...

Excerpt: ...efendants Mr. Umeda and Luis Carrillo (collectively, “Co‐defendants” or “Cotrustees”) are the Cotrustees of the Trust pursuant to the Third Amendment. The papers submitted show that Mr. Umeda drafted the estate plan for Decedent, and Luis Carrillo was the decedent's caregiver, lifelong friend, and real property manager. Decedent's son, Plaintiff Donald Houghton (intending no disrespect and for clarity, “Donald”), alleges that the Th...

Excerpt: ...efendant in the amount of $345,303.40, but does not identify any specific bank accounts or real property. For the following reasons, the application is denied. Factual Background Defendant executed a Note Payable in Plaintiff's favor in the amount of $300,000. Complaint at ¶ 16. The Note provided for an interest and principal payment schedule and required late charges for each installment that remained unpaid more than 15 days after the due date...

Excerpt: ...ause of action in the cross‐complaint on the ground each fails to state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10 (e).) Cross‐ Defendant also demurs to each cause of action on the ground they are ambiguous and unintelligible, thus subject to a special demurrer for uncertainty. (Code of Civil Procedure § 430.10(f).) The limited role of a demurrer is to test the legal sufficiency of a complaint. It rai...

Excerpt: ...der the “total picture,” including “the condition of the court calendar, the dilatory conduct by plaintiff, prejudice to defendant of an accelerated trial date, and the likelihood of eventual mandatory dismissal if the early trial date is denied.” Salas v. Sears, Roebuck (1986) 42 Cal.3d 342, 349. This is a complicated, multi‐party construction defect case involving the installation of over 19,000 linear feet of a public sanitation syst...

Excerpt: ...lly “Gaffney” and “Downs”, respectively). The Complaint pleads causes of action for discrimination on the basis of sex; hostile work environment sexual harassment; quid pro quo sexual harassment; retaliation; failure to prevent discrimination and harassment; and constructive discharge in violation of public policy. For the following reasons, the Motion for Summary Judgment, or, in the alternative, Summary Adjudication, is granted in part ...

Excerpt: ...njunction. CCP § 527(a) authorizes issuance of injunctions before trial “if sufficient grounds exist therefor.” Injunctions will rarely be granted (absent specific statutory authority) where a suit for damages provides a clear remedy. Thayer Plymouth Center, Inc. v. Chrysler Motors (1967) 255 Cal.App.2d 300, 307; Pacific Designs Sciences Corp. v. Sup.Ct. (Maudlin) (2004) 121 Cal.App.4th 1100, 1110. Conversely, injunctive relief is more likel...

Excerpt: ...s Jordan Schuster and Jacob Lynn. Code of Civil Procedure section 425.16 allows a party to strike a claim that is based upon protected activity using a two‐step process. “ ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity, that is, by demonstrating that the facts underlying the plaintiff's complaint fit one of the categories spelled out...

Excerpt: ...ttempt to state claims for declaratory relief based on an easement by necessity and declaratory relief based on an easement by implication against Defendants. Defendants demur pursuant to Code of Civil Procedure § 430.10(e) and (f) on several grounds. For the following reasons, the demurrer is sustained, without leave to amend. Judicial Notice CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/30/19 ‐ 12 ‐ Defen...

Excerpt: ...n and Emily Shenson and Plaintiffs David Mariampolski and Megan Frantz (collectively, “Plaintiffs”). The FAC and the FAC‐A plead causes of action against the Park District for (4) nuisance; (4‐ a) withdrawal of lateral support; (4‐b) inverse condemnation; and (6) dangerous condition of public property. For the following reasons, the Demurrer is sustained‐in‐part, and overruled‐in‐part. Request for Judicial Notice The Park Distri...

Excerpt: ...bility on the part of Dr. Lee several years after they suit, based upon conversations with an expert consultant. Shortly thereafter, they filed a Doe amendment on September 25, 2018, naming Dr. Lee as Doe 1. Dr. Lee now demurs to the complaint. He argues that the complaint contains no charging allegations against him and that it is uncertain. (CCP § 403.10 (e), (f).) A party who is ignorant of the name of a defendant or the basis for a defendant...

Excerpt: ...y February 13, 2019. Plaintiff filed her original complaint on April 26, 2018 and therein alleged that she was injured when a steel fire door unexpected closed on her. However, after discovery had commenced and the statute of limitations had expired, plaintiff discovered a mistake in her complaint. (See Code of Civ. Proc. § 335.1.) The parties stipulated to allow plaintiff to file an amended complaint, which removed the language relating to a st...

Excerpt: ... Drill Tech's agent or “middle man” for the purpose of purchasing supplies from preselected vendors for use on the Work of Improvement project at SFO International Airport, wherein Plaintiff was a subcontractor. DLD would be paid a 10% commission, calculated as a markup on the costs of goods and delivery charges. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/30/19 ‐ 16 ‐ A dispute arose. Plaintiff allege...

Excerpt: ...e Of Action. The First Cause of Action is for breach of contract. Defendants move for summary judgment in part on the ground that this cause of action is barred by the applicable four‐year statute of limitations. (See, Code Civ. Proc., § 337, subd. (a).) Plaintiff sues on two invoices that came due on May 9, 2010. However, plaintiff did not file suit until August 8, 2017, more than seven years later. The issue presented is whether the two invo...

Excerpt: ...xamination of physical items. Bailey v. Superior Court (1970) 4 Cal.App.3d 513, 520‐ 21. The court finds that testing appears reasonably calculated to lead to the discovery of admissible evidence. In making this finding, the court is in no way intimating how it would rule on the admissibility of any results in a further motion for summary adjudication or trial. Test results will be subject to a protective order limiting use to this case. The pa...

Excerpt: ...ed within four years, the petition to vacate or correct an award must be served and filed within 100 days after the service of the award on the petitioner. [Citation.] The same 100‐day limitation applies when vacation or correction of the award is sought by response. … To this latter rule there is only one exception. When the party petitions the court to confirm the award before the expiration of the 100‐day period, respondent may seek vaca...

Excerpt: ... is filed. See Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1604; Lorenz v. Commercial Acceptance Insurance Co. (1995) 40 Cal.App.4th 981, 989. Plaintiff's counsel takes issue with Mr. Bowie's explanation that he “somehow never saw the email” advising him of the January Case Management Conference and the judge's instruction to defense counsel to respond to the Complaint and appear. Plaintiff's counsel also disputes that Mr. Bowie had provide...

Excerpt: ...ARD OF REVIEW “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Cal. Code Civ. Proc. § 437c(c). “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgme...

Excerpt: ...ditional Fact Nos. 8, 11, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28.) Further, plaintiffs' claim is not barred as a matter of law by the Statute of Frauds or the Uniform Electronic Transactions Act. Plaintiffs allege that a contract was formed for them to purchase defendants' home in San Ramon California on July 28, 2014 for $1,754,399.00 with no set time for performance. (SAC, ¶ 7.) The contract was extended several times over the years. Defen...

Excerpt: ...��50 partnership in a company known as Side CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/16/19 ‐ 16 ‐ X Side. The parties brought several claims against each other at trial in Circuit Court of the State of Oregon, County of Jackson, Hon. Timothy Gerking presiding. The Oregon court directed verdict for plaintiff Cathy Chapman on several claims, and issued a limited judgment as to the jury awards on competing...

Excerpt: ...T: 21 HEARING DATE: 01/16/19 ‐ 4 ‐ Amended Complaint (“TAC”) filed by Plaintiff Michael J. Hickey and Plaintiff Mercedes V. Hickey (collectively “Plaintiffs” or “the Hickeys”). The TAC alleges claims for (1) wrongful foreclosure; (2) unfair business practices; (3) cancellation of trustee's deed; (4) declaratory relief; (5) violation of Civil Code § 2923.7; (6) violation of Civil Code § 2924.17; (7) violation of Civil Code § 292...

Excerpt: ...nce and negligent hiring. Bernardino is CrossDefendant Clean Carts' president, owner, and chief executive officer and signed the Service Agreement on behalf of Clean Carts. The motion is made on the ground the interests of justice will be served by allowing the filing of the amended cross‐ complaint. Here, Plaintiff Bruce Lohmann was injured when the “Gatekeeper wheel” abruptly and unexpectedly locked on the Safeway shopping cart that he wa...

Excerpt: ...T MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/16/19 ‐ 12 ‐ Defendant demurs pursuant to Code of Civ. Proc. § 430.10(e) and (f) on several grounds. For the following reasons, the Demurrer is sustained, with leave to amend. Request for Judicial Notice Defendant requests judicial notice of several documents from the Contra Costa County Recorder Office. Plaintiff objects to this Request. Defendant's request for Judicial Notice is grante...

Excerpt: ...vidually by their first names to avoid confusion.) David alleges that he took over the mortgage payments and other carrying costs for the property beginning in 2010, and he and his parents intended that he take title. But due to a series of recording errors, this never occurred. In a 2011 deed, David erroneously transferred his 50% interest in the property to his parents, instead of the other way around. A 2015 deed corrected this, purporting to ...

Excerpt: ...TRO or Injunctive Relief) Causes of Action. Pursuant to CCP § 437c(f) and (o), Defendants move for summary adjudication on the ground each cause of action lack merits because the Strassers cannot establish one or more elements of the right to a prescriptive or equitable easement over the dispute triangle. Defendants have not established they are entitled to summary adjudication of these causes of action as a matter of law. “The motion for summ...

Excerpt: ...nst Defendant was due to extrinsic fraud, attorney mistake, and excusable neglect. For the following reasons, the motion is granted. Request for Judicial Notice Plaintiff requests judicial notice of several facts. This Request is unopposed. However, whether Defendants Siamak Shemirani or Hasan Redzic had valid contractors' licenses or whether Caspian Enterprise, Inc. has ever been licensed in California is not susceptible to judicial notice. The ...

Excerpt: ...reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code of Civil Procedure §473(b).) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/09/19 ‐ 13 ‐ Courts are clear that the deadline to seek to set aside a default is six months from the entry of the default. “The six‐month time limit for granting statutory relief is jurisdictional and the cou...

Excerpt: ... granted herein. See Order Shortening Time on Order to Show Cause Why a Preliminary Injunction Should Not Issue, and an Expedited Discovery Order. It now determines whether the preliminary injunction should issue. BACKGROUND 1. Stearns' business Plaintiff Stearns asserts that it is a nationwide market leader in the mortgage industry. It does not do business with homeowners seeking mortgage loans; rather, it courts mortgage brokers who then deal d...