Excerpt: ...ng or “merely offensive” comments in the workplace,' and it cannot be ‘occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.' [Citation] Whether the harassment is sufficiently severe or pervasive to create a hostile work environment ‘must be assessed from the “perspective of a reasonable person belonging to [the same protected class a...

Excerpt: ...is in pro per. The Complaint pleads causes of action for (1) “violation of the Administrative Procedure Act, under the California Commercial Codes section 1207 through 3505” and (2) “cancelation of instruments for Defendants' failure to reconvey Plaintiff's deed of trust and promissory note.” For the following reasons, the Motion for Summary Judgment is granted. Standard A “motion for summary judgment shall be granted if all the papers ...

Excerpt: ...ke sure that the exhibits they file with this Court are properly tabbed. Using a filing service does not relieve attorneys of their obligation to ensure that documents are properly tabbed. Defendants point out that they did not receive the opposition by fax as was stated in the proof of service attached to the opposition. Defendants also state that they did not receive all the opposition documents until September 9, 2019. (Pearson decl. ¶¶5‐6...

Excerpt: ...ay strike out “any irrelevant… matter asserted in any pleading.” CCP § 436. “Irrelevant matter” means immaterial allegation. (CCP § 431.10(c).) “An immaterial allegation in a pleading is… A demand for judgment requesting relief not supported by the allegations of the complaint or cross‐complaint.” (Code Civ. Proc., § 431.10(b)(3).) As to striking the request for attorney's fees, the motion is granted. Defendants argue there i...

Excerpt: ...m. on November 15, 2019 in Department 14 of this Court. Plaintiff's complaint alleges that his wife, Katherine Louis Loforte‐Delgadillo, died in 2017. Her estate included a house located at 2495 Reliez Valley Road, in Martinez, California, that was either not fully completed or needed substantial repairs. Plaintiff alleges the house was worth $1.6 million in its diminished condition and that repairs would have cost $250,000. Plaintiff was jaile...

Excerpt: ... Hathaway Homeservices Drysdale Properties and its agents or employees not related to this instant lawsuit or otherwise required by law.” The Court modifies the injunction as follows: Defendant shall not communicate with the individual Plaintiffs or agents or employees of Pearson Properties except as required for this lawsuit or as follows: (1) Defendant may communicate with the Plaintiffs (or their agents) related to buyers obtaining loans for...

Excerpt: ...Complaint, FFIC has “no ability to respond to the complaint and has no obligation to meet any judgment in the action.” Memorandum of Points and Authorities (“MPA”) 5:1‐15. There is no requirement that a Complaint brought under Probate Code § 550 et seq name the insurer as a party. Probate Code § 552(a) expressly requires that the estate of a decedent insured is to be named as a party and sued on behalf of the insurer. It states, in re...

Excerpt: ...ly challenges the settlement with Lourdes Mahay (“Lourdes”). In this three car accident, Lourdes claims medical specials of $39,591, lost wages of $19,500, and $1 million in general damages related to her right hand injury. Popp contends she has zero liability for the accident and therefore cross‐defendant's $250,000 settlement is “out of the ball park” in relation to Lourdes' claimed damages of $1,059,091.04. At the very least, Popp re...

Excerpt: ...September of 2017. Plaintiff alleges the blood tests revealed she had massive systemic infections, including sepsis, infective endocarditis, C‐diff, and colitis with bleeding ulcers. Plaintiff alleges she was prematurely discharged because insurance would not pay for a longer stay. In October of 2017, after Mrs. Kalnoki became blind and lost all sensation in her legs, and was near death, she was admitted to John Muir Hospital, with a diagnosis ...

Excerpt: ... plaintiff's ownership interest in their corporation. Plaintiff was granted a 20% ownership interest in Sutter‐Tacoma, a recycling and document destruction business, in recognition for his services as manager of its Tacoma facility. (TAC, ¶ 7, 8.) This ownership interest was complete by the end of 2012 and it vested immediately. (¶ 8.) In December 2013, Sutter‐Tacoma and several other companies merged to form The Sutta Company, Inc. (¶ 9.)...

Excerpt: ...V's Administrative Per Se hearing is contrary to the weight of the evidence. Background Facts Petitioner, Dedanim Adams, prior to his arrest on September 18, 2016, was the holder of California Driver's License Number B6999306, issued by Respondent, Department of Motor Vehicles. Adams was arrested for an alleged violation of Vehicle Code § 23132(a) & (b) by Officer Jeremy Anselmi of the California Highway Patrol in Contra Costa County. Petitioner...

Excerpt: ...cts Plaintiffs' continued use and access of the easement. However, Defendants may replace the concrete driveway with pavers as described in Gibson's declaration. There is no evidence that the pavers will unreasonably CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 09/11/19 ‐ 2 ‐ interfere with Plaintiffs' use of the easement area and as such, Plaintiffs' will not be harmed by the placement of the pavers. The part...

Excerpt: .... The Enforceability of Dual Selection Clauses. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 08/28/19 ‐ 7 ‐ The contractual language at issue here reads as follows: Any litigation arising out of this Agreement shall be brought by either party in a court of competent jurisdiction located in Tarrant County, Texas. Fay argues that this language must be treated as an unenforceable venue selection clause, and not a...

Excerpt: ...apers. Ough's “Separate Statement In Opposition” contains evidentiary objections, as well as extensive substantive argument that goes far beyond “the nature” of the factual dispute. (See Rule of Court 3.1350(f)(2); 3.1350(h).) The Court ignores the evidentiary objections made in the Separate Statement In Opposition, because they violate Rule of Court 3.1354. Although it was difficult to follow and should have been in the memorandum, the C...

Excerpt: ...ul Lowden. Plaintiff asks for a judgment of $112,053.20. Eric Thompson, a vice president of Plaintiff, states that Defendants borrowed $200,000 from Plaintiff in 2003. (Thompson Decl. ¶3.) The terms of the loan and personal guaranty are stated in Thompson's declaration and the loan documents are attached to the declaration. (Thompson Decl. ¶¶ 3‐5 and exhs. 1, 2 & 3.) Thompson states that Defendants defaulted on the loan on April 1, 2017 by f...

Excerpt: ...rification that Defendant's construction of the fence does not further encroach on Plaintiffs' property beyond the area subject to the Settlement Agreement. The motion is denied to the extent Plaintiffs' motion seeks removal of construction materials currently located within the area subject to the Settlement Agreement. Background Plaintiffs Aamir Shan and Nadia Shan own real property at 898 El Pintado Road in Danville. Plaintiffs' adjoining neig...

Excerpt: ...nc. to serve as his agent in the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 08/28/19 ‐ 16 ‐ purchase of commercial property at 321 Hartz Avenue in Danville, California. FAC at ¶ 7, Ex. 1; see also FAC ¶ 9, Ex. 2. Through defendants, Plaintiff entered into a purchase and sale agreement for the property on July 10, 2018. Id. at ¶ 8. Plaintiff deposited $100,000 towards the purchase price. Id. at ¶ 11. Near...

Excerpt: ...e down payment, and from the time of purchase until 2010, each party paid one half of the costs of maintaining the Property, including mortgage, insurance, and repairs. Ramirez Dec. ¶ 5‐7. Plaintiff converted the garage and the rear yard to a dwelling for himself (the Backyard Unit). Id. Defendant and his family lived, and continue to live, in the main house. Ramirez Dec. Id. In 2008, Plaintiff moved out of the Backyard Unit and leased it to a...

Excerpt: ... No. 1. Defendants' opening evidence exhaustively demonstrates that at all pertinent times defendants had a good faith belief that CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 08/14/19 ‐ 23 ‐ plaintiffs' loan was in default, and made numerous good faith attempts to work with plaintiffs to cure the default. (Fact Nos. 1‐53 and evidence there cited.) Defendants did not discover the mistake made by CoreLogic Ta...

Excerpt: ...ether the statute of limitations otherwise applicable to a claim will expire before or after the following times, a claim rejected in whole or in part is barred as to the part rejected unless, within the following times, the creditor commences an action on the claim or the matter is referred to a referee or to arbitration: If the claim is due at the time the notice of rejection is given, 90 days CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DE...

Excerpt: ...‐ significantly to symptoms obviously requiring immediate medical attention – Maya Johnson's inability to breathe. Dr. Lee presents no evidence to refute that characterization of the case. To the extent any evidence is nevertheless necessary on this issue, there is a triable issue of fact whether Maya Johnson said in Dr. Lee's presence that she could not breathe 6‐7 minutes before he took any measures to address that problem and whether thi...

Excerpt: ...nt; intentional misrepresentation; violation of Civil Code Sections 1102 and 2079; breach of fiduciary duty; and professional negligence, alleging that Defendants sellers and real estate brokers and agents CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 08/14/19 ‐ 17 ‐ concealed and failed to disclose an encumbrance on the Property during the sale, and that Defendants Pacific Union, Kelly Wood, and Dana Green (to...

Excerpt: ...w trial motion and the appeal. Plaintiffs have failed to demonstrate diligence in bringing the matter to trial and have not shown the existence of “impossibility, impractibility or futility” in timely commencing the trial. Ongoing settlement negotiations with defendants do not provide a statutory excuse to the mandatory deadlines. Nor does plaintiffs' belated decision to bring in Doe defendant Berkadia rescue the case. The five‐year period ...

Excerpt: ...dard applicable to deciding the motion. The Court considers that it must first determine the standard that governs the disposition of the motion. As it must, the Court starts with the relevant statutory language. Subdivision c of section 3295 of the Civil Code says, in relevant part: No pretrial discovery by the plaintiff shall be permitted with respect to [the financial condition of the defendant] unless the court enters an order permitting such...

Excerpt: ...pon three grounds: (1) inadvertence, surprise, mistake or excusable neglect under Code of Civil Procedure (“CCP”) §473(b), (2) the service of summons did not result in actual notice under CCP §473.5 and (3) the underlying dispute was between Kessler and Roesner's business, not Roesner as an individual. CCP §473(b) A motion based upon CCP §473(b) must be filed within a reasonable time after discovery of the default or default judgment and ...

Excerpt: ...that event, the time for response to any Second Amended Complaint will be the normal time provided by law. The court grants defendants' Unopposed Request for Judicial Notice filed 6/7/19. It takes judicial notice of the existence and contents of the Exhibit A attached to the Request, that is, plaintiff's May 28, 2019 government claim. 1. Factual background. Taken together, the May 28, 2019 government claim and the FAC allege that defendants commi...

Excerpt: ...h Plate Properties, LLC., pursuant to joint venture agreements. Contrary to Defendants Gianni's representations and promises, construction was never started and/or completed on any of the projects. Plaintiff has made written demands for repayment for its investment. Plaintiff filed this action breach of contract, breach of covenant of good faith and fair dealing, breach of fiduciary duty and duty of loyalty, intentional and negligent misrepresent...

Excerpt: ...��CCP”) section 430.10(e), and are uncertain under CCP section 430.10(f). Chamberlain also moves to strike the prayer for punitive damages. The Court notes at the outset an issue not directly addressed by the parties. It is not entirely clear to the Court whether the relevant cause of action is for products liability, with three different theories ((1) design defect; (2) manufacturing defect; and/or (3) failure to warn), or if design defect, ma...

Excerpt: ...mmonly known as 3220 Camino Diablo, Lafayette, California. According to the Complaint and motion, the property is made up of three separate tax parcels, APN Nos. 177‐070‐002, 171‐070‐004, and 171‐070‐005. The motion was brought pursuant to CCP § 872.710(b), which provides, “partition as to concurrent interests in the property shall be as of right,” absent waiver. Code Civ. Proc., § 872.720(a) provides, “If the court finds that...

Excerpt: ...Care Center (“Tampico”). Apolonia was 90 years old and a full‐time resident of Tampico. (Cmplt, paragraphs 1, 2) She fell on August 7, 2017. No one witnessed her fall, but the Complaint alleges that Apolonia had been given a strong prescription drug, Depacote, with known side‐ effects of weakness and lack of coordination, yet the staff at Tampico did not raise her bedrails to avoid the risks associated with taking the new drug. (Cmplt, pa...

Excerpt: ...ional Fact (“PAF”) Nos. 2‐10, 14, 15, 16, 19, 21, 28, 29‐34, 36, 37‐40, 44‐59, 61‐65,75 78‐81, 84‐88, 90, 91, 100, 108; Pltf's Ex. A, Malzahn Depo., at 98:1‐10; 177:6‐10; 178:13‐179:2; Pltf's Ex. B, MacCaskie Depo., at 96:16‐97:2; Pltf's Ex. D, Bunes Depo., at 131:25‐132:20; Pltf's Ex. E, Glasper Depo., at 45:3‐15; 46:15‐25; 50:20‐ 51:9; Pltf's Ex. G and/or Ex. A to Isvoranu Decl., Haywood Depo., at 86:9‐17; 21...

Excerpt: ...ion of liability clause in the master contract reads as follows: 9.2 Unless otherwise provided by applicable law, seller's aggregate liability, if any, in damages or otherwise, shall not exceed 125% of the total contract price paid to seller by buyer for the applicable products furnished that gave rise to the claim. The Court finds plaintiff Cypress's interpretation of this clause far more plausible than defendant Canadian's interpretation. The p...

Excerpt: ... (“Thomas”). Thomas was driving his truck to a work site for his roofing company. Plaintiffs are Se and Pearl Yuen (“Plaintiffs”), the parents of Sui Yuen. They filed a form complaint, alleging a motor vehicle cause of action, with an exemplary damages attachment. See FAC, filed April 10, 2019. The remainder of the facts herein are taken from the exemplary damages attachment to the FAC. Sui Yuen was 60 years old. He was deaf and communica...

Excerpt: ...��) and their related business entity, Bass Medical Group (“Bass Medical”). Dr. Mack and Dr. Araim practice in Tulare County. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 07/24/19 ‐ 12 ‐ Bass Medical is headquartered in Contra Costa County. See Declaration of Mark Canepa (“Canepa Decl.”), paragraph 4, 7 and Exhibit A. Plaintiffs filed their Complaint on November 5, 2018. Plaintiffs claim that Defendant...

Excerpt: ...nd (3) unjust enrichment, and sued the corporate Defendant for (4) injunctive relief to get corporate documents. Defendants have demurred to each cause of action for the failure to state a claim. On the first three causes of action, Defendants argue that the amended complaint is a sham pleading and the statute of limitations has expired. On the first claim for fraud, Defendants also argue that reliance has not been alleged. As to the fourth claim...

Excerpt: ...R remedies statute, provides in pertinent part as follows: (h) A court may award a prevailing borrower reasonable attorney's fees and costs in an action brought pursuant to this section. A borrower shall be deemed to have prevailed for purposes of this subdivision if the borrower obtained injunctive relief or was awarded damages pursuant to this section. [Emphasis added.] The Hardie decision holds that section 2924.12 authorizes the award of atto...

Excerpt: ...relief action on February 28, 2017. Annie's filed its cross‐complaint for declaratory relief on April 3, 2017. The sole dispute in both complaints concerned whether defendant had properly exercised a lease renewal option as defendant maintained or had converted to a month‐to‐month tenancy as plaintiff maintained. The court granted defendant's motion for summary judgment, accepting defendant's interpretation of the contract. Despite losing o...

Excerpt: ...h defendant, the manner in which the current motion was briefed leaves the issue of gross negligence inadequately addressed. 1. Background. On December 29, 2017, plaintiff tripped and fell at Forma Gym in Walnut Creek, California while entering the shower due to a mat whose edges were raised. He broke his hip. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 07/24/19 ‐ 8 ‐ Defendant moves for summary judgment, arg...

Excerpt: ...y been decided by the Alameda Superior Court in 3050 College Avenue Homeowners Association v. Azari, et al., Case No. RG19014082 in a petition brought by 3050 College Avenue Homeowners Association to correct the same arbitration award (in two awards, one, dated February 28, 2018 and the other, August 20, 2018). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 07/17/19 ‐ 4 ‐ The filing of this case in Contra Costa ...

Excerpt: ... on the pleadings, a court may consider a party's judicially noticed admissions which cannot reasonably be controverted.) Accordingly, judgment is entered in favor of plaintiff and against defendant Anderson in the amount of $77,066.64. With respect to prejudgment interest, none of the requests for admission specifically related to Civil Code 8800(a) and the issue of whether or not “a good faith dispute” ever existed between the parties. The ...

Excerpt: ...These are violations of California Rules of Court, rule 3.1113 (d) and (f). The parties are reminded to comply with all applicable rules in the future. The Court also notes that Defendants' notice of motion listed the language to be stricken with a line drawn through the middle of that language. This practice made it more difficult for the Court to read and should not be repeated in the future. Defendants Mark Kackley and Kackley Real Estate, LLC...

Excerpt: ...erican Motors Corp. (1983) 144 Cal.App.3rd 1, 8.) IFE unreasonably delayed in filing its Roe amendment, causing specific prejudice to Flores. Background The plaintiff insurance companies filed this case on November 29, 2016, against IFE and others to recover money they paid for losses caused by a fire that broke out at the kitchen in the Pear Street Bistro in 2014. IFE filed a cross‐complaint for indemnity on January 17, 2017 against various na...

Excerpt: ...st for a preliminary injunction. The motion has not been opposed by any of the named defendants. The motion appears to be well founded, and accordingly is granted. This relief is conditioned on (1) the timely posting of an undertaking in the initial sum of $10,000, in favor of defendant Orion Pacific Traders, Inc. (“Orion”), and (2) the timely filing of a CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 07/10/19 �...

Excerpt: ...T: 21 HEARING DATE: 07/10/19 ‐ 6 ‐ Defendants demur to each cause of action in the TAC for the failure to state a claim pursuant to Code of Civil Procedure §430.10(e). Defendants make two arguments. First, Defendants argue that the second and third causes of action for fraud and negligent misrepresentation fail because there are no allegations showing the trustee relied on statements from the Defendants. Second, Defendants argue that the all...

Excerpt: ...laintiff” or “Harms”) is in pro per. The Demurrer relates to the First Amended Complaint (“FAC”) for breach of contract, violation of the laws of equity, and violation of Civil Code § 2941. For the following reasons, the Demurrer is sustained, with leave to amend. Request for Judicial Notice The Bank of New York's unopposed Request for Judicial Notice is granted. Evid. Code §§ 452, 453. Legal Standard “The function of a demurrer is...

Excerpt: ... represent in this PAGA lawsuit. As set forth below, the amended pleading brings Plaintiff essentially “full circle” to where he was after his original Complaint. GENERAL ALLEGATIONS Defendant employed Plaintiff as a truck driver to deliver petroleum products from about February 4, 2015 through June 14, 2017. Throughout his employment, Plaintiff was a nonexempt employee. (FAC, paragraphs 3, 10) WAGE AND HOUR ALLEGATIONS Robinson signed a meal...

Excerpt: ...Complaint (“FAC”). 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. Request for Judicial Notice Plaintiffs request the Court take judicial notice of the Complaint. While the Court takes judicial notice of the existence of the complaint and its contents, the Court may not take judicial notice of the truth...

Excerpt: ...intiffs shall file any amended complaint on or before August 2, 2019. Background This is a personal injury action arising from a motor vehicle accident. Plaintiffs allege that Defendant's vehicle collided with Plaintiffs' vehicle, and that Defendant then “fled the scene of the incident.” (Complaint, ¶ 5.) Analysis The right to claim punitive damages is governed by Civil Code section 3924. A plaintiff must adequately allege facts showing “m...

Excerpt: ...apers from plaintiff addressing the following matters. These papers shall be filed on or before July 10, 2019. Defendants may file supplemental responsive papers on or before July 17, 2019. 1. The Denial Of Plaintiff's Application. On January 7, 2019, defendant Fay issued a written denial of plaintiff's application for a loan modification. (Paterno Dec., Exh. 2.) Plaintiff alleges that he did not receive this written denial directly. (Greene Dec....

Excerpt: ...; (2) promissory estoppel; (3) fraud and concealment; (4) negligent misrepresentation; (5) common counts: money lent and money had and received; (6) conversion; (7) financial elder abuse; and (8) unlawful and unfair business practices (Bus. & Prof. C. § 17200). Defendants demur to all but the first and the fifth causes of action. For the following reasons, the Demurrer is overruled as to the Second, Sixth, Seventh and Eighth Causes of Action, an...

Excerpt: ...ly injured by Dr. Dudum on March 6, 2017 and by Dr. Robertshaw on April 17, 2017, following treatment for a significant work injury on March 3, 2017. (See court's 11/28/18 ruling on the demurrer by Dr. Robertshaw and Proposed Amended Complaint at 2:24‐25 and 3:25‐4:22.) However, Plaintiff did not file her Complaint until May 30, 2018. Because the face of the complaint disclosed that the one‐year prong of the statute of limitations for medic...

Excerpt: ...C This is an interference with contractual relations and interference with prospective economic advantage case. Plaintiff Anthony Belcher (“Belcher”) is an independent contractor for an LLC, called Westech Environmental (“Westech”); it does environmental, health and safety work for various clients, including Defendant CSAA Insurance Services, Inc. (“CSAA”). In this lawsuit, Plaintiff Belcher contends that CSAA has deliberately interfe...

Excerpt: ... at Board of Registered Nursing (“BRN”) to set aside its decision of May 23, 2018. Petitioner also seeks cost of suit and reasonable attorney's fees. Petitioner argues the discipline against her registered nurse license and public health nurse certificate fails for two reasons: (1) there is no clear and convincing evidence of gross negligence on the part of Petitioner and (2) Petitioner's processing of the resident's pills at the non‐nursin...

Excerpt: ...n for summary judgment. This ruling included an analysis of the Court's preliminary assessment that the subject limitation of liability clause does not apply, reading as follows: C. The Limitation of Liability Clause. C‐1. The Written Contracts. The limitation of liability clause in the master contract reads as follows: 9.2 Unless otherwise provided by applicable law, seller's aggregate liability, if any, in damages or otherwise, shall not exce...

Excerpt: ...laintiff deems proper. Plaintiff was granted a 20% ownership interest in Sutter‐Tacoma, a recycling and document destruction business, in recognition for his services as manager of its Tacoma facility. (SAC, ¶ 7, 8.) This ownership interest was complete by the end of 2012 and it vested immediately. (¶ 8.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 06/26/19 ‐ 11 ‐ In December 2013, Sutter‐Tacoma and sev...

Excerpt: ...the California Bane Act. Defendant demurs to the Second and the Fourth Causes of Action. Defendant previously demurred to the original complaint's Second and Fourth Causes of Action. On April 24, 2019, the Court sustained that demurrer with leave to amend. For the following reasons, the Demurrer here is sustained, with leave to amend. Request for Judicial Notice Defendant requests judicial notice of the Verified First Amended Complaint. Plaintiff...

Excerpt: ...ion is removed there will no longer be a basis for plaintiff's request for attorney's fees. However, plaintiff rightly notes that a provision in a contract for an award of attorney's fees can support such an award even on tort theories provided the language is not restricted to contract theories. (See Palmer v. Shawback (1993) 17 Cal.App.4th 296, 299 (“Nothing in Code of Civil Procedure section 1021 limits its application to contract actions”...

Excerpt: ...utine lemon law case. Plaintiff purchased a 2015 Dodge Challenger from Michael Stead's Auto Depot on January 23, 2015. The total purchase price, including warranties and financing, came to $61,751.95. Almost immediately, plaintiff began experiencing a myriad of problems with the car. She and/or her husband repeatedly brought the car into the dealership for different problems. They also had the bad luck of running over an object on the freeway and...

Excerpt: ...he defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary‐judgment‐like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing suf...

Excerpt: ...2019. The Proof of Service for Defendant indicates substituted service on February 16, 2019 at 912 Santa Cruz Drive, Pleasant Hill, California 94523 wherein the process server left the Summons and Complaint with a “JOHN DOE.” The Declaration of Diligence regarding service indicates that on this date (the process server's fourth attempt at 912 Santa Cruz Drive) the process server informed an Indian male in his 30s, appearing to be a competent ...

Excerpt: ...adings as to the entire complaint. Thus, the motion will be denied if there is any valid claim in the complaint. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) section 7:312, p.7(I)‐91 [if challenging the entire pleading, “your motion may be denied if any one cause of action… is held to state facts sufficient to constitute a cause of action…”]; See, also, Warren v. Atchison, T. & S. F. Ry. C...

Excerpt: ...but, as an alternative, that any requirement of doing so was excused for various reasons. The court did not expect to see any additional demurrers, given that it had already overruled the prior demurrers and was allowing only limited changes in the complaint. However, defendant now demurs to the First Cause of Action, for quiet title, on a new ground not raised on the previous demurrer – that a person in plaintiff's position has insufficient ti...

Excerpt: ...chael Gianni approached Gevon Polgar, principal of The Polgar Group, the plaintiff, with a proposed real estate investment. Gianni intended to purchase and develop a property located at 2 Ramon Court in Danville. Gianni represented that he had secured a loan from Defendant Triumph Capital Partners, but not for the entire amount needed to acquire the property. Plaintiff entered into a joint venture/investment agreement with Gianna and Defendant To...

Excerpt: ...government claim was presented and plaintiff has cited no authority permitting that defect to be cured by subsequent amendment in the same action. (See Le Mere v. Los Angeles Unified School Dist. (April 30, 2019) 35 Cal.App.5th 237, 246‐247.) Therefore, leave to amend is denied and this case is dismissed. The dismissal is without prejudice because it is not on the merits. The court has made no factual findings in this case about when the cause ...

Excerpt: ... money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 06/12/19 ‐ 12 ‐ Plaintiff has provided evidence that the claim is based upon express or implied agreements arising fro...

Excerpt: ...ause of action for conversion. The demurrer is sustained, with leave to amend, on the second cause of action for fraud. Plaintiff shall prepare an order for filing with the Court. Plaintiff and Foshay's requests for judicial notice are granted only as to the existence of the identified documents. First Cause of Action. Plaintiff added Foshay to this cause of action in the FAC under the alter ego theory. 1. Violation of Court Order Argument Foshay...

Excerpt: ...to the family trust that changed her share of assets from about 5% to about 50%. The Keading family trust has been the subject of prior litigation, most significantly Contra Costa Superior Court case MSP16‐00402, which addressed a petition to appoint a trustee, confirm trust ownership, and find intentional interference with expected inheritance, fraud, conversion, and elder abuse on Kenton's part. A judgment in excess of $2 million was entered ...

Excerpt: ...tificates Series 2005‐9 (“Defendant” or “US Bank”) (collectively, “Defendants”). Plaintiff Benson Eugene Shiner (“Plaintiff” or “Shiner”) opposes the Demurrer. The Complaint pleads causes of action for (1) violation of Civ. Code § 2924.17; (2) negligent misrepresentation; (3) violation of the Rosenthal Fair Debt Collection Practices Act, Civ. Code § 1788; and (4) violation of Bus. & Prof. Code § 17200. For the following r...

Excerpt: ...s denied, and he assumed his motion was continued to February 27, 2019 and then granted. The assertions conflict with the facts. Mr. Speights' motion for reconsideration was denied on January 9, 2019. The hearing was to have been held at 9:00 a.m. that morning but no party called to contest the tentative ruling which was posted on January 8th. Mr. Speights claims that he called the department just before noon CONTRA COSTA SUPERIOR COURT MARTINEZ,...

Excerpt: .... Any amended complaint shall be filed and served on or before June 12, 2019. The rulings on the motion to strike appear at the end of this ruling. To avoid confusion over names in this family dispute, this ruling will refer to crosscomplainant by his first name, Dan. First Cause of Action, Declaratory Relief: The demurrer to this cause of action is overruled. Cross‐defendants admit that at least a portion of this count states a cause of action...

Excerpt: ...he state of Alaska before trial and has not been back to Alaska since. (Comp. ¶¶8‐12.) Plaintiff is seeking damages for her injuries from that accident, as well as punitive damages. (Comp. ¶¶21‐22.) Defendant has demurred to the complaint, arguing that Plaintiff's claim is barred by res judicata and the applicable statute of limitations. Res Judicata / Claim Preclusion The parties have not addressed whether California or Alaska law would ...

Excerpt: ...fendants, under the circumstances of this case. (See, Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296‐297 [denial of leave to add alter ego theory six weeks before trial was error]; Landis v. Superior Court of Los Angeles County (1965) 232 CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 05/29/19 ‐ 3 ‐ Cal.App.2d 548, 557 [“it seems unreasonable to deny a party the right to amend where the only appare...

Excerpt: ... order, defendant sent an amount as payment in full and plaintiff accepted it. That constitutes an accord and satisfaction. (See CC § 1521‐1523; see Potter v. Pacific Coast Lumber Co. (1951) 37 Cal.2d 592, 597.) Relief has already been granted as to the March 8, 2018 judgment, and that judgment is no longer operative so as to be set aside. Defendant failed to pay pre‐lawsuit invoices when due. It owed something. Further, after it was served ...

Excerpt: ...f Paulo Kirchhoff Soares Fernandes (“Plaintiff” or “Fernandes”). The Motion previously came on for hearing on April 10, 2019. The Court expressed concerns regarding service and asked for additional briefing on the issue of whether the parties can “contract around” the Hague Convention's service requirements. For the following reasons, the Court grants the motion to quash. Factual Background As a married couple, Plaintiff and Defendant...

Excerpt: ...his could not have happened before the default. Counsel for respondents, Ms. Maloney, concedes to repeatedly indicating that an answer was forthcoming, including: 1) in the 45 days after the petition was served during which both counsel worked through a defect in the petition (Maloney Decl., ¶ 4); 2) in December, 2018, when Ms. Maloney indicated, in response to questions about the answer, “We'll get this going” (id., Exh. C); and 3) in Febru...

Excerpt: ...se a component was damaged during maintenance, leading the fryer to overheat. This occurred because of negligence by an employee of settling defendant Ania. However, plaintiff also claims that some or all of the losses would have been avoided but for the negligence of defendant International CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 05/22/19 ‐ 16 ‐ Fire Equipment Co. (“International”) in servicing the f...

Excerpt: ...gan Frantz (collectively, “Plaintiffs”). The SAC pleads causes of action against the Park District for (4) nuisance; (5) withdrawal of lateral support; (6) inverse condemnation; and (8) dangerous condition of public property. The Park District demurs to Plaintiffs' causes of action for nuisance, withdrawal of lateral support, and inverse condemnation. At the outset, the Court notes that it previously overruled the Park District's demurrer to ...

Excerpt: ...T: 21 HEARING DATE: 05/22/19 ‐ 8 ‐ Plaintiff's opposition fails to follow the specific instructions from this Court in its ruling on the judgment on the pleadings. There were also several other rule violations, which are discussed in Defendant's reply. If Plaintiff decides to contest this ruling, Plaintiff's attorney should be prepared to discuss the various rule violations. On the merits of this demurrer, the Court finds that Plaintiff has n...

Excerpt: ...erruled as to the Sixth Cause of Action for Declaratory Relief. Cross‐ Complainant shall file and serve the amended complaint on or before June 12, 2019. Background On or about January 6, 2014, Plaintiff Bruce Lohmann was pushing one of Safeway's shopping cart into Safeway Store #1215, located at 660 Bailey Road in Pittsburg. The Gatekeeper security wheel on the cart locked, causing the causing the cart to abruptly cease movement. Plaintiff's f...

Excerpt: ...ant for (4) injunctive relief to get corporate documents. Defendants have demurred to each cause of action for the failure to state a claim. On the first three causes of action, Defendants argue that the statute of limitations has expired and that the fraud claim has not been alleged with require specificity. As to the fourth claim, Defendants argue that Plaintiffs are not shareholders of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMEN...

Excerpt: ... plaintiff's insured, Roem Corporation. Roem's property is located at 3815 Delta Fair Boulevard in Antioch, California (the “Property”). Plaintiff paid Roem for the loss and obtained an assignment of rights. It now seeks to recover in excess of $870,000.00 from the City and a contractor that the City used for weed abatement, defendant Pacific Coast Landscape Management, Inc. The City has filed a series of demurrers on this case. The sole caus...

Excerpt: ...n 1:30 and 4:00 p.m. on May 14, 2019. If the tentative ruling is contested, oral argument will take place on May 15, 2019 at 9 a.m. in Department 21. In the meantime, the court encourages the parties to work together to narrow the issues and limit the length of the complaint. The parties should meet and confer to reach agreement, if possible, on which officials must be named in any amended petition and which need not be and to reach agreement reg...

Excerpt: ...iet title and declaratory relief causes of action into separate causes of action to address each of the alleged different encroaching improvements. The proposed First Amended Answer seeks to clarify that the statute of limitations affirmative defense is directed to each alleged encroachment separately. Motions for leave to amend the pleadings are directed to the sound discretion of the court. “The court may…in its discretion, after notice to ...

Excerpt: ...‐complaints is to have a complete determination of a controversy among the parties in one action, thus avoiding circuity of action and duplication of time and effort.].) The Court has overruled defendant's demurrer to the Fourth Cause of Action in the First Amended Complaint. This in turn has independently necessitated that the trial and issue conference dates be vacated, obviating any prejudice to plaintiffs that might otherwise have been caus...

Excerpt: ...act Nos. 12, 13; Plaintiff's Additional Material Fact (“PAMF”) Nos. 1, 2, 5,13, 14, 15, 31.) Further, even if that fact were undisputed, defendants have not met their initial burden to show they did not increase the risks inherent in the activity by selecting a facility that catered to minors rather than to adults. (Plaintiff's Additional Fact Nos. 7, 8, 9, 10, 11, 12, 23, 29, 30, 32, 33, 38, 39, 40, 43, 44.) Finally, because defendants' lega...

Excerpt: ...the default entered October 1, 2018. Counsel for Defendants brings this motion on the grounds that the default taken against Defendant was due to attorney mistake and because service was improper. For the following reasons, the motion is granted. Request for Judicial Notice Both parties request judicial notice of several documents. Neither Request is opposed. Both Requests are granted. Evid. Code §§ 452, 453. Factual Background The underlying c...

Excerpt: ...covery ruling on January 9, 2019, a court admonishment to respond at the February 5, 2019 case management conference, and tentative rulings advising defendant that terminating sanctions were imminent on February 27, 2019 and again on April 3, 2019. Terminating sanctions are warranted where parties repeatedly refuse to abide court orders to provide discovery. Colisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617‐20. As defendant has st...

Excerpt: ...ment 21. In the meantime, the court encourages the parties to work together to narrow the issues and limit the length of the complaint. The parties should meet and confer to reach agreement, if possible, on which officials must be named in any amended petition and which need not be and to reach agreement regarding whether the County may or must be named. Following is the tentative ruling: Respondents' general and special demurrers are sustained, ...

Excerpt: ...reach of express and implied warranty. For the following reasons, the Demurrer is sustained‐in‐part, with leave to amend, and overruled‐in‐part. The Court also notes that Plaintiff alleges that “[u]pon verification of the product defects, Plaintiff will move to convert this action into a class action” and that counsel for Plaintiff alludes to “all similarly situated consumers” in his brief opposition. However, no class allegations...

Excerpt: .... Background Plaintiff Shahabi was the owner of Café Pascal, a coffee and pastry shop at the Harbor Gate Shops shopping center. Defendant Harbor Gate Partners, L.P. leased the space to Shahabi. Harbor Gate's general partner is defendant Ronald Nahas. Defendant Crosspoint Realty Services, Inc., managed the shopping center; a director, D. Carter Hemming is also a defendant. The original lease, dated November 4, 2011, was to expire January 6, 2015....

Excerpt: ...s only to the second and the fourth cause of action. For the following reasons, the Demurrer is sustained, with leave to amend. Request for Judicial Notice Defendant Requests judicial notice of correspondence between counsel for Plaintiff and counsel for Defendant. Plaintiff does not object to this Request. The Request is denied; the correspondence is not the proper subject of judicial notice. Brief Factual Background This case arises out of a si...

Excerpt: ...ests solely within the sound discretion of the trial judge, and his decision to consolidate, or his refusal to do so, will not be reviewed except upon a clear showing of abuse of discretion. [Citation.]” (Fisher v. Nash Bldg. Co. (1952) 113 Cal.App.2d 397, 402.) The Court is not convinced that consolidation is appropriate at this time. After the pleadings are settled, however, the parties may re‐raise this issue by noticed motion. The Court a...

Excerpt: ...rcotte (“Marcotte”), is a small property management company, providing on‐site management services to seven apartment complexes in the East Bay. (Fact 1 – Undisputed) Plaintiff Julie Aiello (“Aiello” or “Plaintiff”) worked at various MDC properties as an on‐site property manager, commonly called a “Community Director,” during her period of employment from 1993 until her “separation” in 2017. (Fact 2 – Undisputed) For t...

Excerpt: ...5, 2019. Background The FAC alleges that Chris Donati made a first settlement agreement with an entity called “Ignite Farms 1” and a second settlement agreement with an entity called “Ignite Farms 2.” Donati then assigned his rights under the settlement agreements to plaintiff Sun Beef, LLC. Subsequently, the agreements were breached and over $1.5 million was not paid. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: DEPT. 21 ...

Excerpt: ...f” or “Fernandes”) and Defendant Natalie Lozitsky (“Lozitsky” or “Defendant”) purchased property, located at 57 Matisse Court, in Pleasant Hill. The subject property was originally held by the couple as joint tenants. (Cmplt, paragraphs 1, 2) Fernandes paid the sum of $450,000 toward the purchase of the property. (Cmplt, paragraph 4) Prior to the close of escrow, Plaintiff was “forced to return to Brazil due to his employment.” ...

Excerpt: ...rgument lacks merit; plaintiff has not demonstrated either procedural or substantive unconscionability. A. Procedural Unconscionability. 1. Unequal Bargaining Power. Plaintiff acknowledges that procedural unconscionability applies when the parties have “unequal bargaining power.” However, plaintiff provides no evidence of unequal bargaining power in the case at bar. Plaintiff's principal Mr. Zuniga is a litigation lawyer and business owner; h...

Excerpt: ...rial Specialist” and Industrial Hygienist. He is “licensed through the Department of Occupational Safety and Health as an Asbestos Consultant and is also an approved trainer for general industry standards through the United States Department of Occupational Health Safety Agency (“OSHA”). (FAC, paragraph 1) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 04/03/19 ‐ 5 ‐ Belcher is an “at will” contract ...

Excerpt: ...tate of Sui Yuen; (2) include a claim for exemplary damages; and (3) correct a typographical error in the spelling of Plaintiff Se Yuen (inadvertently filed as “Si Yeun.” Plaintiffs move pursuant to Code of Civil Procedure § 473 and 576. Defendants do not object to the typographical error correction, but do object to any amendment to include claims by the Plaintiffs as the successors‐in‐interest under CCP § 377.32 for the Estate of Sui ...

Excerpt: ... complaint at any stage of the proceedings, up to and including trial [citations]…” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is “ ‘inexcusable delay and probable prejudice to the opposing party'… [Citation.]” (Ibid; see also, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (even assuming there is unreasonable delay, “it is an abuse of discret...

Excerpt: ...ing party shall specifically state the grounds for the objection under Code of Civil Procedure section 641. Parties shall appear on April 24 for a further hearing on appointment of a referee. I. Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 04/03/19 ‐ 11 ‐ Petitioner Bayview Builders, Inc., is the general contractor on a project to build a home at 7039 Broadway Terrace in Oakland. Respondent Green Va...