Excerpt: ...NTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 12/18/19 ‐ 6 ‐ This is a wrongful eviction case. Plaintiff Karen Jackson is a 74‐year‐old woman who resided in the bottom floor of a three‐story home since 2011. (Complaint, ¶1‐2.) Defendants, John Philip Dolan and Hien Nguyen, were her landlords who lived upstairs. Plaintiff alleges, inter alia, that her art studio leaked when it rained, damaging her art sup...

Excerpt: ...fter notice to the other party, set aside any void judgment or order.” “The inclusion of the word ‘may' in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) A judgment is void on its face if the court lacked personal or subject matter jurisdiction. Such judgment is subject ...

Excerpt: ...nt to plaintiff's counsel for approval as to form. The basis for this ruling is as follows. A. Procedural Matters. A‐1. The Death of Neal McDonald. Plaintiff's counsel appears to be requesting the Court's advice on how to address the death of former plaintiff Neal McDonald. The Court declines to offer such advice, for two reasons. First, this is a hearing on a demurrer; there is no pending motion to substitute in a new party. Second, it is the ...

Excerpt: ...t Agreement (“Agreement”). (Senn Dec., Exh. “A”.) The Agreement explicitly states that it is a purchase agreement, and not a loan: THIS IS NOT A LOAN. Merchant is selling a portion of a future revenue stream to VCG at a discount, not borrowing money from VCG. There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by VCG. … (Id., p. 1.) The Agreement also states that it is gov...

Excerpt: ..., LLC, signed the original five‐year lease in 2009 with the previous owner, James Fregosi. (See FAC, Exhibit A.) The lease required plaintiff to execute any estoppel certificate requested by the landlord. By its terms, that lease expired in 2014, but plaintiff had the option to extend for another five years, which it did. Plaintiff and Mr. Fregosi executed a formal amendment of the lease on June 29, 2015. (FAC, Exhibit B.) The amendment express...

Excerpt: ...2020 at 8:30 a.m. in Department 21. Petitioner requests that this Court compel the City of Walnut Creek to reinstate Permit B140273 and the October 9, 2014 revisions without any additional conditions, obligations or impediments. The Court's ruling is only as to Petitioner's claim for a writ of mandate. In October 2018, The Court granted a motion to bifurcate and ordered that the writ proceeding would be heard first, followed by the remaining lega...

Excerpt: ...n arbitration award from defendant John L. Valentine. It began with a complaint filed on July 15, 2016 alleging a single cause of action ‐‐ that Valentine had fraudulently conveyed a valuable real property located at 8010 Camino Tassajara in Pleasanton, California (the “Property”) to irrevocable trusts he had set up for his children to avoid paying plaintiff. Later, plaintiff added two causes of action for deceit, the Third and the Fourth...

Excerpt: ...ificates, Series 2006‐3 (“Bank of New York”) (collectively, “Defendants”). The Demurrer relates to the First Amended Complaint (“FAC”) filed by Plaintiff Robert Peralta, as Trustee of the Beatriz Peralta Revocable Trust (“Plaintiff” or “Peralta”). The FAC alleges causes of action for (1) violations of HBOR (Civil Code §§ 2923.5 and 2923.7); (2) violation of SBOR (Civil Code § 2920.7); and (3) violation of California's unf...

Excerpt: ...on: (1) Breach of Implied Warranty of Habitability; (2) Battery; (3) Negligence; (4) Nuisance; (5) Intentional Infliction of Emotional Distress; (6) Negligent Infliction of Emotional Distress; (7) Breach of Contract; and (8) Breach of Covenant of Quiet Enjoyment. After meeting and conferring with plaintiff's counsel, one of the defendants, G6 Hospitality Property, LLC, filed a demurrer to all causes of action except the third on the basis that th...

Excerpt: ...ndent. (Code Civ. Proc., §§ 1281.2(c), and 1281.4.) The basis for this ruling is as follows. A. Factual Background Petitioners were the buyers of residential real estate in Byron, California in early 2015. They bring this petition to compel arbitration with the seller (respondent, Christopher Derek CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 11/27/19 ‐ 2 ‐ McMullen) based on the form arbitration clause in t...

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: ...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: ...th both Glover and the County. Again, barring a complete defense win, the County envisions a final trial on damages. Or, the County suggests the court impanel two different juries, the first jury trying the design immunity defense and then liability, and the second jury being sworn to hear the damages trial only if needed. The County maintains that both trifurcation and straight bifurcation with two different juries would result in judicial econo...

Excerpt: ...commendations and sought to challenge some of them via motion to compel. In her motion to quash various subpoenas, she primarily challenged the recommendations as to cell phone records. To clarify the scope of the medical record subpoenas, her motion sought to quash the subpoenas “to the extent they seek records beyond what the discovery facilitator has recommended." In opposition, UPS agreed to limit the date range of the subpoenas. UPS did no...

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: ... 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: ..., Defendant Christine Freeding, owns real property located at 910 El Pintado Road, acquired in 2015. A survey of the properties revealed Freeding's permanent improvements, including a driveway gate, walk‐in gate, areas of the sport court and landscaping encroached on Plaintiffs' property (“Encroachment Area”.) The parties reached a settlement on October 10, 2018. Defendant agreed to purchase from Plaintiffs all of the Encroachment Area prop...

Excerpt: ... Inc. v. Woodward‐Cycle & Associates (1985) 38 Cal.3d 488, 499 (“Tech‐Bilt”); City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, 1264.) The party asserting that the settlement was not made in good faith must demonstrate that the settlement is “so far out of the ballpark in relation to [the TechBilt] factors as to be inconsistent with the equitable objectives of the statute.” (Tech‐Bilt, supra, 38 Cal.3d at 499...

Excerpt: ...oject”) and the 1992 Willow Pass Road Frontage Improvement Project (the “Improvement Project”). (Undisputed Material Fact No. 56; Disputed Material Fact Nos. 19, 52, 54, 57, 60, 61, 62; County's Additional Fact Nos. 15, 16, 19, 22, 24, 25, 26, 27, 37, 38, 39, 44; County's Ex. 3, Emigh Decl., ¶ 2, 3, 5, 6, , 7, 8, 9, 11, 12, 13, 14, 15, 18; Ex. 7, Kersevan Decl., ¶ 6, 7, 8, 9, 10; see also any additional evidence cited elsewhere this rulin...

Excerpt: ...ber 18, 2019. Defendant's counsel shall pay plaintiff's counsel $900 in compensatory attorneys' fees. Background Plaintiffs seek to reform their property grant deeds to include property vacated by the City of Richmond, which they claim they now own. (Opposition, 6:8‐7:24.) They filed the complaint for CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 11/06/19 ‐ 18 ‐ reformation and quiet title on January 28, 2019...

Excerpt: ...ercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.' [Citation.] Code of Civil Procedure sections 473 and 473.5 authorize challenges to defaults and default judgments on various grounds within certain periods.” (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) Background Plai...

Excerpt: ...rney fees of $8,700.00. As Defendant is not a natural person, Plaintiff seeks to attach “any property” of Defendant. Plaintiff has not filed an undertaking. Defendant opposes the application and contends it is entitled to an offset based on its counterclaims. At the outset, the Court notes that the Declaration of Avi Minkoff in support of the Application is printed on both sides, in violation of California Rule of Court, rule 2.102 and the ex...

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: ...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: ...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: ..., 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...nswered, and, moreover, has asserted affirmative defenses that, if proven, might prove a defense for the claims against Eastgate and Raman. (Cf. Adams Mfg. & Eng. Co. v. Coast Centerless Grinding Co. (1960) 194 Cal.App.2d 649, 655 (if it appears that the defaulting defendant's liability is dependent on the answering defendant being held liable, default judgment is not proper). Here, Volvo has pleaded defenses that the accident was entirely the fa...

Excerpt: ... parties executed a lease which provided for a five‐year rental terminating on December 31, 2015. (Complaint, Exh. A.) Paragraph 52.1 stated: “Lessee shall have two (2) – five year options to renew the lease. Base Rent shall increase 2% annually during the Option terms.” No notice requirement for exercise of the option appeared in the provision. But the contract separately included a general notice provision that “[a]ll notices required...

Excerpt: ...eliver petroleum products from about February 4, 2015 through June 14, 2017. Throughout his employment, Plaintiff was a non‐exempt employee. (Cmplt, paragraph 10) According to Robinson, SC Fuels denied him and other non‐exempt employees' the meal and rest breaks to which they were entitled. (Cmplt, paragraph 11) Based on his meal and rest break claims, Plaintiff contends that SC Fuels did not pay him and other non‐exempt employees all wages...

Excerpt: ... Twenty hours later, the fire re‐ignited. (See Complaint, Exh. 1.) Subrogated to its insured, plaintiff now brings a claim against the District to recover amounts paid due to the rekindled fire. Plaintiff alleges that District personnel failed to inspect equipment and confirm that the fire had been completely extinguished. The District demurs on governmental immunity grounds. II. The demurrer based on governmental immunity is sustained. CONTRA ...

Excerpt: ... 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 CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 03/27/19 ‐ 2 �...

Excerpt: ...s ruling is as follows. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 03/20/19 ‐ 17 ‐ A. Evidentiary Matters. A‐1. Judicial Notice. Defendants' request for judicial notice, filed on March 5, 2019, is granted. The Court further takes judicial notice of the full procedural history of plaintiffs' first civil action, as discussed below. (See, Notice of Related Case, filed on 2‐1‐19.) Plaintiffs' objection to ...

Excerpt: ...:40 p.m. At the scene of the accident, Truong immediately complained of pain to her left shoulder and abdomen. (Fact 3 – Undisputed) Truong was taken to the Emergency Department at Defendant John Muir Medical Center in Walnut Creek by paramedics. Plaintiff complained of pain to her abdomen, left shoulder, neck and low right lower quadrant. (Fact 4 – Undisputed) Truong was seen in the Emergency Department by Eric Kenly, M.D. and trauma surgeon...

Excerpt: ...ntiff Donna Cooper and Plaintiff Tommy G. Cooper (collectively, “Plaintiffs”). The SAC pleads causes of action for (1) violation of Consumer Credit Reporting Agencies Act; (2) slander; (3) libel; (4) intentional interference with prospective economic advantage; (5) negligent interference with prospective economic advantage; (6) declaratory relief; and (7) violation of Bus. & Prof. Code § 17200 et seq. For the following reasons, the Demurrer ...

Excerpt: ...ause of action for dangerous condition of public property against Contra Costa County. The motion is granted. “The court may . . . , after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars.” (Code Civ. Proc. § 473.) “[I]t is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his ca...

Excerpt: ...iff Manijeh Peyvan alleges the accident occurred on N. Civic Center Drive at Brio Drive in Walnut Creek. Defendant Shabir Ahmad operated the motor vehicle involved in the collision. Plaintiff alleges the vehicle operated by Defendant was owned/entrusted by EAN Holdings, LLC and Enterprise Rent‐a‐Car of San Francisco, LLC. Pursuant to Cal. Code of Civil Procedure (“CCP”) § 438, Defendants move for judgment on the pleadings on the ground P...

Excerpt: ... for the writ of mandate will be continued from Monday, March 25, 2019, at 9 a.m., to Wednesday, March 27, 2019, at 1:30 p.m., in this Department. 2. The parties are each permitted to file one final brief before the March 27th hearing, not to exceed fifteen pages in length. The briefs should address why or why not a writ should be issued, making sure to cite the pages in the administrative record that support the arguments. The parties should not...

Excerpt: ...er compensation for allegedly working out of classification from June 15, 2017 until September 18, 2017. (Amended Petition, paragraph 74) Mark Peterson (“Peterson”) resigned as District Attorney on June 14, 2017. (Amended Petition, paragraph 67) Petitioner contends that he discharged the duties of the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 03/13/19 ‐ 8 ‐ District Attorney, “with like authority and ...

Excerpt: ...as only to be avoided by issuance of the injunction. [Citation.]" (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) The purpose of the preliminary injunction, theoretically, is to preserve the status quo and prevent irreparable harm pending trial on the merits. (White v. Davis (2003) 30 Cal.4th 528, 554.) For the reasons below, the Court in its discretion, finds a preliminary injunction shoul...

Excerpt: ...ep process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least ‘minimal merit.' [Citations.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061; see also, Baral v. Schnitt...

Excerpt: ... to Plaintiff's Complaint for quiet title. With respect to Plaintiff's motion, the Court may not entertain a Motion for Reconsideration absent a showing of new or different facts, law, or circumstances. Code of Civil Procedure § 1008(e); Le Francois v. Goel (2005) 35 Cal.4th 1094, 1101‐04 (provisions of CCP § 1008 are jurisdictional in relation to a party's motion). The Court has carefully reviewed Plaintiff's papers and they do not identify ...

Excerpt: ...Code §§ 452, 453. On reply, Plaintiff requests judicial notice of an unspecified criminal proceeding purportedly against the Defendant, but provides no case number or case name or other identifying information. The request is denied. Analysis The Court may not entertain a Motion for Reconsideration absent a showing of new or different facts, law, or circumstances. Code of Civil Procedure § 1008(e). The requirements of Code of Civil Procedure �...

Excerpt: ...MENT: 21 HEARING DATE: 02/27/19 ‐ 15 ‐ (collectively, TPP) could purchase and develop real property at 2 Ramon Court in Danville. TPP had acquired some funding from defendant Triumph Capital Properties, but Triumph could not fund the entire amount. So TPP made a written offer to Polgar whereby Polgar would fund the bridge loan in return for a 51% interest in the property. Polgar agreed and entered into a related partnership agreement with TPP...

Excerpt: ... of his employment with Mr. Copy, Inc., an insured of Plaintiff Hartford Accident & Indemnity Company. Plaintiff‐in‐Intervention James H. Stehr (“Plaintiff” or “Stehr” herein) was injured on November 25, 2014, when his car was struck from the rear by Defendant Judith Lindsay. The car striking Stehr was co‐owned by Defendants Judith Lindsay and Ladd Lindsey. Stehr filed his complaint for damages, including punitive damages, on March ...

Excerpt: ...e in a row that Plaintiff's opposition has failed to include a table of contents and authorities despite submitting a memorandum that is over 10 pages. (See, CRC 3.1113(f). The Court pointed this failure out in its ruling on the doctor defendants' demurrer to the SAC. It is perplexing that Plaintiff's attorney continues to violate this rule. Any further violations of this rule or other applicable Rules of Court may result in sanctions. Before fil...

Excerpt: ...“Defendants”). Plaintiff filed a First Amended Complaint on November 21, 2018 as well as an ex parte application for temporary restraining order. The First Amended Complaint (“FAC”) alleges the following causes of action: (1) set aside trustee sale; (2) cancellation of trustee deed; (3) quiet title; (4) breach of oral contract; (5) breach of written contract; (6) wrongful foreclosure; (7) promissory estoppel; (8) negligence; (9) negligent...

Excerpt: ...nctions.” The motion is granted to the extent described below. The motion has two parts. The court will address the Discovery Order part first. 1. Discovery Order filed September 19, 2018. Code of Civil Procedure section 473 (d) provides, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of ...

Excerpt: ...ship on the property at 1125 Detroit Avenue. At the time of the incident, plaintiff also leased 1121 Detroit Avenue, which he now owns. Both were used as part of plaintiff's business. At some point in 2016 (the record is unclear), Donald White parked a trailer on defendant's property and lived in it. On June 18, 2016, at around 8:00 p.m., a fire broke out from this trailer, damaging both properties and two vehicles. Both businesses were closed fo...

Excerpt: ... October 22, 2013. According to his will and court order of June 17, 2014, his estate was to be divided among his three adult sons—John H. Quihillalt, Richard R. Quihillalt, and David E. Quihillalt. Plaintiff John Quihillalt, and Defendants David E. Quihillalt, Richard R. Quihillalt, and Sandra Millard are co‐owners of real property located at 3220 Camino Diablo, Lafayette, California. The property is made up of three separate tax parcels. (A...

Excerpt: ...a County. Because plaintiffs allege the existence of a settlement agreement that contains a provision selecting Alameda County as the proper venue, the motion is granted. Code of Civil Procedure section 395.5 provides the possible venue options for an action against a corporation: A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occu...

Excerpt: ...of action on the terms stated below or as requested on page 5, lines 9‐14, of his Opposition. If plaintiff chooses to amend, any amended complaint shall be filed and served on or before March 1, 2019. If plaintiff does not amend, defendant Raymundo shall file and serve her Answer on or before March 15, 2019. The SAC alleges the following. On February 27, 2010, defendant, Melissa Raymnudo, signed and subsequently recorded a Memorandum of Option ...

Excerpt: ...ch 22, 2019. The basis for this ruling is as follows. A. Preliminary Matters. The exhibits to the declaration of Hooman Yavi, filed on November 26, 2018, are not CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 02/20/19 ‐ 9 ‐ tabbed. (See, Cal. Rules of Court, rule 3.1110, subd. (f).) Cross‐defendant is directed to tab its exhibits in all future filings. Despite the efforts of cross‐defendant's counsel, cross�...

Excerpt: ... is not pled with particularity against Foshay. From the Complaint, it is clear that Plaintiff entered into a written purchase order for commercial solar modules with Defendant Kodiak Moon Corporation (“Kodiak Moon”). The material terms of the purchase order were: that Kodiak Moon would supply Plaintiff with 2,664 units of SPR‐E19‐ 320w Sunpower Modules at a cost of $192.00 per unit, for a total price of $511,488.00. (Cmplt, paragraph 11 ...

Excerpt: ...that remain in the TAC on or before March 13, 2019. If there is a further meet and confer, defendant shall state specifically whether the meet and confer occurred in person or by telephone, pursuant to CCP § 430.41 (a) and (a)(3)(A). This is a case involving damage caused by a fire that started in the City of Antioch's Los Medanos Spillway and Wasteway (the “Wasteway”) and spread to property owned by plaintiff's insured, Roem Corporation. Ro...

Excerpt: ...ince defendant has never been convicted of a felony. Further, reference CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 02/13/19 ‐ 7 ‐ to criminal conduct involving theft is not pertinent to the cause of action because the particular risk complained of here is sexual harassment, not theft. See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054. To the extent plaintiff suggests that she would like to introduce...

Excerpt: ...m. A‐1. The Written Contracts. Plaintiff Cypress has failed to negate the existence of a triable issue of fact concerning the $ 150,000 bond premium it seeks to recover as breach of contract damages. There is no contractual language, either in the master contract or in the three subject purchase orders, suggesting that such a premium can fairly be characterized as part of the “price” to be paid for the subject solar modules. (See, Cal. U. C...

Excerpt: ... of petition or free speech under the United States Constitution or California Constitution in connection with a public issue.” See CCP Section 425.16(b)(1) The claim may appear in a complaint, petition or cross‐complaint. See CCP Section 426.16(h); Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929. Here, the Cross‐Complaint of Defendant/Cross‐Complainant, Justin Mendoza, (“CrossComplainant”...

Excerpt: ...) I. Prior Good Faith Settlement Determination EBMUD once again argues that the good faith settlement in the consolidated actions does not bar this case. In its good faith order, the Court stated: “[Sharjo] is entitled to the fullest protection afforded by Code of Civil Procedure section 877.6(c).” (March 21, 2017 Good Faith Settlement Order in Consolidated Case No. C15‐01227 [Order], p. 1.) The Court declined at the time to rule on the ind...

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...