Excerpt: ...d as to cause of action six and denied as to causes of action three, five and seven. Summary judgment is denied. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 03/09/22 ‐ 6 ‐ Plaintiff SRI Environmental sued the Defendants for (1) breach of oral agreement (Dutch), (2) common count (Dutch), (3) breach of duty of loyalty (Joseph Baughman), (4) conversion (Joseph Baughman), (5) deceit (all Defendants), (6) negligen...

Excerpt: ...r her success in vacating discipline and expenses imposed by respondent Board of Registered Nursing. While the court rejected many of petitioner's arguments, it did find that “the weight of the evidence did not support the Board's finding of gross negligence.” (SOD, pp.20‐22.) The court also found the Board violated due process in ordering petitioner to pay the Board's expenses in light of the insufficient evidence. Finally, the court order...

Excerpt: ...tory relief related to the easement. In this case, Tulloch moved to compel arbitration. Tulloch's motion was granted on August 14, 2019. (Order After Hearing, filed August 14, 2019.) The Vesces claims against Tulloch were ordered to arbitration and the claims against Pacific Union, Kelly Wood and Dana Green were stayed pending resolution of the arbitration. Arbitration has not been completed, although an interim award suggests that the Vesces wil...

Excerpt: ...Song‐Beverly Warranty Act; and (3) fraudulent inducement—concealment. Defendant demurs to Plaintiffs' third cause of action pursuant to Code of Civil Procedure (“CCP”) § 338(d) and CCP § 430.10(e) on the grounds that it is barred by the applicable statute of limitations. Defendant also demurs on the grounds that the third cause of action is barred by the economic loss rule. Finally, Defendant demurs to the third cause of action on the g...

Excerpt: ...Defendants argue that this is a procedurally defective renewed application for preliminary injunction. Specifically, that the motion does not comply with the requirements of Code of Civil Procedure (“CCP”) § 1008(b). That section provides that “[a] party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or d...

Excerpt: ...causes of action for motor vehicle, general negligence, and intentional infliction of emotional distress and seeks both compensatory and punitive damages. Defendants both move to strike Plaintiff's prayer for punitive damages and exemplary damages. For the following reasons the motion is granted, with leave to amend. The Court may strike allegations that are “irrelevant, false or improper matter” or any portion of a pleading “not drawn . . ...

Excerpt: ...nt (“FAC”) for (1) violation of Civ. Code § 2923.5; (2) negligence; (3) wrongful foreclosure; (4) unfair business practices (violation of Bus. & Prof. Code § 17200); and (5) cancellation of written instruments (Civ. Code § 3412). Defendant demurs to all Plaintiff's causes of action pursuant to Code of Civil Procedure (“CCP”) § 430.10(e) on several grounds. For the following reasons, the Demurrer is sustained, without leave to amend. R...

Excerpt: ...rike the word "first" in references in the SAC to the "first" amended complaint at the following page and line numbers of the SAC is granted: p. 2, lines 4, 7, 9, 15, 20, 23, and 28, page 3, lines 3, 11, 12, and 19, p. 10, line 22, and page 11, line 28. The motion CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 02/16/22 ‐ 4 ‐ to strike paragraph 56 and 57 of the SAC is also granted. The motion to strike paragraph...

Excerpt: ...amended complaint shall be filed and served by February 28, 2022. Background The FAC alleges, in sum, that plaintiffs are elders who were defrauded in a real property transaction. Specifically, William Brickner, a 71‐year old, and his wife who is 66 (FAC, ¶¶2‐3) bring this action through their attorney in fact / guardian ad litem, Deena Burke, to recover for the fraudulent purchase of a condo by Carol Concilio. Concilio, former attorney in ...

Excerpt: ...ndants"). For the reasons set forth, the general demurrer and special demurrer for uncertainty are overruled. Background Plaintiff John Rogan alleges that in February 2021, he consented to have a surgical procedure, specifically "a left anterior total hip arthroplasty, including ancillary services and the administration of anesthesia." (Compl. ¶ 7.) Defendants placed vials of spinal anesthetic and a blood clotting agent, tranexamic acid, both wi...

Excerpt: ...d by the statute of limitations. The court incorporates its ruling on the demurrer to the Second Amended CrossComplaint (“SACC”). In that ruling, the court granted limited leave to amend, as follows: (1) An amendment to paragraph 28 to state the date on which [Smith] was first provided the invoices attached as Exhibit 1 to the SACC or, if he cannot allege a specific date, at least whether he was provided those invoices before January 25, 2017...

Excerpt: ...he deficiencies in these causes of action. The special demurrer for uncertainty to the third cause of action is sustained, with leave to amend. Background Barbara Scramstad commenced this action by an interpleader complaint against defendants Sam Libicki and Christopher Johnson. Defendant Sam Libicki represented defendant CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 02/09/22 ‐ 16 ‐ Christopher Johnson in Mr. J...

Excerpt: ...otion for summary adjudication, are denied because defendant fails to shift the burden of proof to plaintiffs. Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 02/09/22 ‐ 2 ‐ A detailed recitation of facts was provided in the Court's ruling on plaintiffs' motion for summary judgment and need not be repeated here. Discussion From commencement to conclusion, the moving party bears the burden of persuasion...

Excerpt: .../22 ‐ 4 ‐ The tentative ruling on the UPI demurrer being heard concurrently sets forth a summary of the factual and procedural background of the case. A primary ground for the motion to strike is the untimeliness of the SAC after leave to amend was granted. Plaintiffs apparently attempted to file a motion to allow the late filing of the Second Amended Complaint ("SAC") in early January 2022. Though Plaintiffs' counsel declares that she revise...

Excerpt: ...with Ryan and Alex (Ryan's wife and former fiancé) for the purchase of defendants' home. The motion for summary judgment is denied. Summary adjudication is granted as to the sixth cause of action for elder abuse, but otherwise denied. The plaintiff has shown triable disputes of material fact, including, but not limited to whether a contract with Alex exists (Fact Nos. 10, 20, 44, 68, 78, 88, 98, 108), and whether Ryan owed a fiduciary duty to pl...

Excerpt: ...t A 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. (Code Civ. Proc., § 437c (c).) A moving plaintiff is not required to disprove any defenses asserted, but must persuade the Court there is no triable issue of material fact as to each element of each cause of action. (Code Civ. Proc., § 437...

Excerpt: ...led as to the Second Cause of Action. Background On or about March 30, 2006, Plaintiff Carol Meier, a married woman, obtained a mortgage loan in the amount of $600,000, secured by the property located at 61 Rudgear Drive, in Walnut Creek. Plaintiff allegedly defaulted on the loan on February 1, 2010. Defendant Attorney Lenders Services, Inc. was appointed as Trustee for the sale. On April 15, 2021, Defendant Attorney Lender Services conducted the...

Excerpt: ...Plaintiff entered into a Factoring Agreement with Defendant ROC Funding, a New York Limited Liability Company. Plaintiff alleges that even though she was in full compliance with her obligations under the Agreement, on September 4, 2019, Defendant entered a Judgment by Confession in the Supreme Court of the State of New York. Shortly after obtaining the Judgment, Defendant began levying against Plaintiff's bank accounts. Defendant ROC Funding clai...

Excerpt: ...ally allow amendments. The motion is granted. Plaintiff may file and serve the amended complaint by February 7, 2022. The trial court has discretion to allow amendments to the pleadings "in the furtherance of justice." (Code Civ. Proc., § 473.) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 ...

Excerpt: ...this conclusion. (Comp. p.3.) The complaint also alleges that “John Doe” is the surviving son of Decedent and sues him as nominal defendant. (Comp. Attachment 2.) Harlee Suida Tuttle was substituted in as John Doe and then served with the complaint. Defendants have demurred based on lack of standing. Code of Civil Procedure section 377.60 states who can bring a cause of action for wrongful death. As relevant here, the statute allows the follo...

Excerpt: ...on District (also “Con Fire”), Contra Costa County, and Erick Hoglund. Erik Hoglund filed a general denial on March 8, 2019. Plaintiffs filed an amended complaint (“FAC”) on March 29, 2019, and while it is unclear the FAC was ever served on Erik Hoglund, the allegations against him are substantially the same in both pleadings. Both the original complaint, as well as the FAC, allege that on 11/16/2017 at or about 12:47 pm Joanna Papageorge...

Excerpt: ...nd. The deadline to amend will be ten days after the date of the hearing on defendant Khawaja's demurrer, currently scheduled for February 9, 2022. Should plaintiff elect not to amend, defendants' time to answer will run from that date. I. Background Sometime during the night of January 31, 2021 or the early morning of February 1, 2021, while plaintiff and his wife were sleeping in their home, defendants Tara Khawaja and Mark Lewis Hinton (collec...

Excerpt: ...cause of action included in this case. Plaintiff sued Defendant for premises liability. Plaintiff was injured when he entered the Goodwill location while a couch was being moved. Plaintiff somehow connected with the couch or the dolly being used to move the couch and was injured in the process. Defendant is moving for summary judgment, arguing that the dangerous condition was open and obvious and thus, it was not foreseeable that Plaintiff would ...

Excerpt: ...��) Nos. 7, 14‐18, 21‐26, 29, 33, 36; Plaintiff's Additional Fact (“PAF”) Nos. 2‐5, 7‐14.) Background Plaintiff argues he was promised he would be given, and, in part, had already been given, an ownership interest in one of defendant Stephen Sutta's companies, but was never given the share certificates evidencing that interest and did not know that he would never receive the remaining ownership interest or any of the share certificate...

Excerpt: ...4.) A court must order arbitration if it determines that a valid agreement to arbitrate exists. Here, such agreement exists, as discussed below. Background This lawsuit was filed by plaintiff, Katherine Betz, who is a registered nurse who was employed by defendants from 2006 until 2021. The complaint alleges four causes of action: (1) Retaliation in Violation of Health & Saf. Code § 1278.5, (2) Retaliation in Violation of Cal. Labor Code § 1102...

Excerpt: ...rive, in Walnut Creek. Plaintiff allegedly defaulted on the loan on February 1, 2010. Defendant Attorney Lenders Services, Inc. was appointed as Trustee for the sale. On April 15, 2021, Defendant Attorney Lender Services conducted the Trustee's sale. At the auction, the Property was sold for $950,000 by credit bid from US Bank as Legal Title Trustee for the Truman Trust. The Trustee's Deed Upon Sale was recorded on May 3, 2021. Motion Defendant U...

Excerpt: ... declaratory relief against Defendant Bas of Tassajara II Homeowners Association (“HOA”) on November 2, 2018. Plaintiffs filed a First Amended Complaint (“FAC”) on May 20, 2021 which added causes of action for breach of fiduciary duty, breach of the CC&Rs, and negligent failure to maintain and/or repair property. The FAC brought in each of the HOA Board of Directors as a Doe Defendant, including Defendant Shawn Hanshaw (“Defendant” or...

Excerpt: ...conformity with the laws of this state.” (Code Civ. Proc., § 436, subd. (b). Cf. Center for Self‐ Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1552‐54 [the taking of a default judgment against a suspended corporate defendant is not a statutory right].) Of course, Performance Settlement will not be able to appear at court hearings, and will not be able to effectively represent itself in response to discov...

Excerpt: ...und This is a wrongful death and elder abuse case. Plaintiffs Brenda Roberts and Terri West are the daughters of decedent Ardist West, Sr., who died on March 4, 2019. Plaintiffs have CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 01/05/22 ‐ 2 ‐ reached a tentative settlement with Defendants. Ms. Lowanda West‐Brown, also a surviving daughter of Mr. Ardist West, Sr., is named a nominal defendant in this action. ...

Excerpt: ...Civil Procedure § 430.10(c).) The primary rights theory is applied to determine whether claims involve the same cause of action. (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) Under this theory, “the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798...

Excerpt: ...te the facts only briefly here. Plaintiff Annie Ko's husband, Peter Chong, died on September 2, 2018, following bleeding and complications from a tonsil biopsy performed by a private physician, Dr. Joel Ross, on August 31, 2018. Ko did not file this wrongful death lawsuit until two years later, on September 2, 2020, even though the statute of limitations on a claim for medical malpractice is one year “after the plaintiff discovers, or through t...

Excerpt: ...o, LLC, Plaintiff JFP‐AG/Longview, LLC, and Plaintiff JFP‐AG/Carthage, LLC (collectively, “Plaintiffs”)'s Verified Amended Complaint (“VAC”) for declaratory relief and contract reformation. Defendant demurs to Plaintiffs' cause of action for declaratory relief and two causes of action for contract reformation pursuant to Code of Civil Procedure (“CCP”) § 430.10 subsections (e), (d), and (f) on several grounds. As a threshold issu...

Excerpt: ...nants Thomas Milway and Megan Hansen sued Cross‐Defendants Charles and Sherry Wilcoxsons for declaratory relief (cause of action one) and quiet title (cause of action three). The remaining causes of action included in the second amended cross‐ complaint were brought against Henry and Anne Bailey and those claims have been ordered to arbitration. The notice of motion lists seven issues for summary adjudication. The issues include: 1) Cross‐C...

Excerpt: ...misrepresentation, as stated in plaintiff's Fifth Amended Complaint (“5AC”), filed on June 28, 2021. Defendants' MJOP is granted without leave to amend. Plaintiff still has two surviving causes of action, and the parties should be prepared to set a trial date at the next Case Management Conference on January 28, 2022. The Court previously granted defendants' MJOP as to the fraud and negligent misrepresentation causes of action in the Fourth A...

Excerpt: ...gment of dismissal, separate from any formal order on the demurrer, and shall submit that CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 12/29/21 ‐ 18 ‐ proposed judgment to plaintiff's counsel for approval as to form. The basis for this ruling is as follows. HAMP. Plaintiff's claims depend primarily on the legal conclusions alleged in paragraph 17 of the First Amended Complaint. Plaintiff here alleges that defe...

Excerpt: ...ank Trust National Association (“U.S. Bank”) (collectively, “Defendants”). Plaintiffs' motion to consolidate is denied. However, the unlawful detainer action is hereby stayed, subject to the conditions set forth below. Analysis Consolidation The Court of Appeal has held in pertinent part as follows: When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in ...

Excerpt: ...l determination in this action, Thomas K. Butt, as well as anyone acting on his behalf, shall not continue to post or otherwise disclose the City's confidential attorney‐client emails, or parts thereof, to any unauthorized person, without first obtaining a waiver by City Council. This includes, but is not limited to that material originally divulged on www.tombutt.com on November 5th and 16th, 2021. A proposed order in accordance with this tent...

Excerpt: ...dence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity. (See Code Civ. Proc., § 526, subd. (a)(3).)” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) “A preliminary injunction is proper only if there is a substantial basis to suppose that the defendant, if not restrained, will actually engage in the conduct sought to be enjoined.” (Ep...

Excerpt: ...rder arbitration if it determines that a valid agreement to arbitrate exists. Here, such agreement exists, as discussed below. Background Plaintiff alleges that he was recruited and hired by defendants to work for defendant RBF Investments, Inc. (“RBF”), having worked for many years in the pawn shop industry. On or about May 24, 2019, plaintiff entered into two agreements: an employment agreement and a shareholder agreement. His verified comp...

Excerpt: ...mplaint, given both her changes in counsel and additional facts learned through discovery. The Court disagrees with Defendant's attempt to distinguish a medical “disability” with a medical “condition” as grounds for prejudice in this matter, and the Court determines that Defendant is not prejudiced by Plaintiff filing the proposed Second Amended Complaint. Defendant also failed to rebut Plaintiff's claims that these additional causes of a...

Excerpt: ...r before March 1, 2017, and whether the agreements are sufficiently certain to be enforced. (Disputed Material Fact Nos. 13, 19, 21, 28, 29, 30, 31, 32; Plaintiff's Request for Judicial Notice filed 9/29/21; Def's Ex. B, Rios Depo. at 47:22‐25; 48:20‐21; 128:7‐25; 131:24‐132:2; 133:6‐20; 140:20‐22.) General background The Third Amended Complaint (“TAC”) of plaintiff, Jose Villalobos, alleges five causes of action concerning an all...

Excerpt: ...r ORDERED to jointly submit a list of potential arbitrators, or barring agreement on the list, to submit a list of arbitrators that meet the requirements of Civ. Code §1281.6. A. Factual and Procedural Background On or about November 6, 2020, the Leungs presented a Residential Purchase Agreement and Joint Escrow Instructions (“Contract”) to Cross‐Defendants Robert and Nicole Murgia (“Murgias” or “Cross‐Defendants”) for the purcha...

Excerpt: ...NIA DEPARTMENT: 21 HEARING DATE: 12/08/21 ‐ 10 ‐ On or about March 26, 2020, Plaintiff Yvette Mitchell purchased a pre‐owned 2018 Toyota Yaris from Defendant El Cerrito Automotive. Plaintiff made a down payment of $7,000 and financed the remainder with Defendant Westlake Financial Services. Shortly after purchase, Plaintiff noticed defects with the vehicle's electronics, structure and interior. Plaintiff alleges Defendant has been unable or...

Excerpt: ... care, did not breach a duty of care and did not cause Plaintiffs' injuries.” As to the Third Cause of Action for Loss of Consortium, Defendant asserts summary judgment should be granted in its favor because it “was not negligent and, thus, Plaintiff is not entitled to such relief from Defendant.” As explained below, the Court finds the following: (1) Defendant failed to meet its burden to establish the “independent contractor” status o...

Excerpt: ...termination in October of 2020. Plaintiff alleges employees of Defendant verbally and physically harassed him during the course of his employment on the basis of his sex or perceived sexual orientation. Plaintiff alleges his supervisors and other management members knew about the harassment by personally seeing the actions and hearing the comments, yet his employer failed to prevent the harassment from occurring. Demurrer Pursuant to Code of Civi...

Excerpt: ... the VP of Facility Services. (Compl. ¶ 6.) He alleges he made two complaints to StoragePro in March 2020 contending that the company was not undertaking proper COVID‐19 precautions, including failing to provide personal protective equipment for company employees. (Compl. ¶ 8.) He also complained to the company because it was allegedly performing work as an unlicensed contractor. (Compl. ¶ 9.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA...

Excerpt: ...—an obligation plaintiffs claim defendant has breached. The motion is denied. There are, at a minimum, factual disputes as to whether all conditions to performance have been satisfied. Background Luigi and Elena Gallo are the owners of servient tenement, 51 Hidden Hills Place ("the Gallo Property") in Danville, California. (Separate Statement of Undisputed Material Facts in Support of Motion, hereinafter “SSUMF,” No. 1, and response.) Joshu...

Excerpt: ...r (1) violation of Civ. Code § 2923.5; (2) violation of Civ. Code § 2924(a)(1); (3) negligence; (4) wrongful foreclosure; (5) interpleader pursuant to Code Civ. Proc § 386, Civ. Code §§ 2924j, CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 12/01/21 ‐ 13 ‐ 2924k; (6) unfair business practices (violation of Bus. & Prof. Code § 17200); and (7) cancellation of written instruments (Civ. Code § 3412). Defendant...

Excerpt: ...ri Law, LLP and Law Offices of Matthew M. Oliveri for (1) professional negligence (legal malpractice), (2) breach of contract, (3) breach of fiduciary duty and (4) intentional infliction of emotional distress. Cross‐Defendants demurred to each cause of action. The Court overruled the demurrer to the breach of contract claim and otherwise sustained the demurrer. Seddick then filed a first amended cross‐complaint for (1) breach of oral contract...

Excerpt: ...to amend. (CCP § 430.10 (e).) It is sustained as to BCI with leave to amend regarding the First, Second, Third, and Fourth Causes of Action and sustained without leave to amend as to the Fifth, Sixth, Seventh, and Eighth Causes of Action. (CCP § 430.10 (e).) Nothing in this ruling bars Smith from asserting affirmative defenses in his Answer to the Complaint. (See Opening Brief at 8:7‐10.) Leave to amend is limited. Smith may not amend to alle...