Excerpt: ...e is no stay on discovery in any part of the consolidated case unless required by law and then to the least extent possible. Case No. C20‐02325 continues a longstanding battle between factions of the Garaventa family following the death of their mother, Mary Garaventa, in 2015. Cases may be consolidated in the court's discretion when they involve “a common question of law or fact.” (CCP § 1048 (a); Todd‐Stenberg v. Dalkon Shield Claimant...

Excerpt: ...ction for concealment fraud are sustained, with one last opportunity to amend. Plaintiffs shall file any further amended complaint on or before April 8, 2021. The demurrers to the Second Cause of Action for professional negligence are overruled. The basis for this ruling is as follows. A. The First Cause of Action (Fraud). A‐1. Causation. Defendants argue that the Court's ruling on a much earlier demurrer is dispositive of the present demurrers...

Excerpt: ...oving vehicle accident, plaintiff, a minor, was treated at John Muir between October 2018 and January 2019. (See Separate Statement of Material Facts, “SSMF,” No. 1.) At John Muir, he underwent multiple procedures involving vacuum assisted closure (“VAC”) placement to treat his bilateral thigh wounds. (See SSMF, No. 2.) It appears that plaintiff contends that during one of these procedures, a wound VAC sponge was inappropriately left in o...

Excerpt: ...Horner”)'s Second Amended Complaint (“SAC”). The SAC alleges thirteen causes of action: (1) elder abuse; (2) negligent breach of fiduciary duty; (3) intentional breach of fiduciary duty; (4) negligent fraud; (5) intentional fraud; (6) negligent infliction of emotional distress; (7) intentional infliction of emotional distress; (8) negligent breach of contract; (9) intentional breach of contract; (10) breach of the covenant of good faith and...

Excerpt: ...tract with him in spring 2017. The complaint alleges that the contract called for Plaintiff to perform legal research at an hourly rate. The complaint further alleges that Boskovich breached that contract by failing to pay Plaintiff for his work. Boskovich also allegedly defrauded Plaintiff in that Boskovich never intended to pay Plaintiff for his work. Bhatia and Theos Medical Systems are alleged to have been third‐party beneficiaries of the c...

Excerpt: ..., the demurrer is overruled and the motion to strike is denied. Defendant shall answer on or before March 15, 2021. Background Plaintiffs are two property owners or occupants of property near a landfill operated by defendant. They bring this putative class action based on offensive odors that they allege escaped the landfill that interfered with their property rights. They allege two causes of action: (1) private and public nuisance and (2) negli...

Excerpt: ...e first time that the court has ruled on the validity of plaintiff's claims. (See McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303‐ 304.) However, plaintiff is not permitted to add any new legal theories or causes of action. Further, the court is unlikely to grant leave to amend repeatedly, so if plaintiff intends to amend, she should make her best attempt to cure the defects noted in this ruling when she files her Fourth Amended Compl...

Excerpt: ...each cause of action because the Cross‐Complaint does not contain general allegations that are incorporated into each cause of action. Tajiri may amend the Second Cause of Action if he decides that removal of the First deprives him of any allegations he needs for the Second. Any amended Cross‐Complaint shall be filed and served on or before March 19, 2021. If Tajiri does not amend, Uber shall file and serve its Answer to the Cross‐ Complain...

Excerpt: ...at substitute service was improper. Substitute service must include service on a competent member of the household or a person apparently in charge of the business and then mailing the documents to the individual. (Code of Civil Procedure section 415.20.) What constitutes a competent member of the household or a person apparently in charge is construed liberally. For example, substitute service was found to be proper when served on a store clerk ...

Excerpt: ... nominal party in this litigation. (See Civ. Code, § 2924l.) Defendant's demurrer is overruled as to the First Cause of Action, and is sustained without leave to amend as to the Second Cause of Action. Defendant shall file an answer on or before March 18, 2021. The basis for this ruling is as follows. A. The First Cause of Action. The First Cause of Action is for violation of Civil Code section 2923.7, part of the Homeowner Bill of Rights (“HB...

Excerpt: ...led thirteenth in Defendants' memorandum and reply) causes of action are overruled, and (b) the special demurrer for uncertainty to the tenth cause of action under the Unruh Civil Rights Act is sustained, with leave to amend. Factual Background from the Complaint Plaintiffs allege they were tenants residing in one‐half of a duplex in Richmond from December 2016 through March 31, 2020. (Compl. ¶ 1.) Defendants are the owners and landlords. (Com...

Excerpt: ...nd confer before filing this demurrer were insufficient. Counsel failed to engage in such efforts “in person or by telephone.” (Code Civ. Proc., §430.41(a).) However, failure to meet and confer in compliance with the statute is not a permissible basis for either sustaining or overruling a demurrer. Given the improbability that meeting and conferring in the correct format would change the results here, the Court proceeds with its ruling. Back...

Excerpt: ...o personal involvement in the accident that gave rise to Plaintiff's claims. Plaintiff counters that Defendant Valencia's liability in this action is distinct from her role as a director and officer and arises instead from the facts that Valencia personally owned the vehicle involved in the accident; the insurance policy for the vehicle is in Valencia's name; and Valencia personally trained the driver of the vehicle. Defendant Valencia replies th...

Excerpt: ...olation of Labor Code section 1102.5. (The Court notes here that the 3AC originally contained a second cause of action, but that cause of action was dismissed in September 2020.) Brief Factual Background The factual background is taken from the 3AC. The Court recites these alleged facts merely to provide a background for its discussion and analysis of the MSJ; the Court is not accepting the factual allegations of the 3AC (or any inferences drawn ...

Excerpt: ...olution of Marriage proceeding in Santa Clara County Superior Court. At the time, Plaintiff resided in Santa Clara County. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 01/29/21 ‐ 12 ‐ Defendant Jeanne Schmidt is Plaintiff's sister and former Guardian ad Litem and conservator. Defendant Thomas Kenefick is an attorney and fiancé of Schmidt. Both reside in Massachusetts. Plaintiff filed this action alleging Defe...

Excerpt: ... to strike the reference to attorney's fees in paragraph 4 of the Prayer and the motion to strike paragraph 5 of the Prayer in its entirety (seeking the recovery of pre‐judgment interest) are granted as unopposed. The ruling regarding paragraphs 12, 13, 16, 18, 21, 22, and 23 of the FACC is more complicated and requires a discussion of general principles before it can be stated. The key issue on this motion is whether the owner of property dama...

Excerpt: ...s ruling.) Background This is a wrongful death suit filed by plaintiff, Gladys Torres, concerning the death of her 87 year‐old mother, Georgina Gonzalez, due to the alleged medical malpractice of defendant Kim. Dr. Kim performed a five‐hour robotic surgery Gonzalez on April 8, 2017 to address a mass on the right colon. Plaintiff asserts that Gonzalez' spleen was nicked during the surgery. Several days after the surgery, Gonzalez went into sep...

Excerpt: ...ee for Banc of America Mortgage Securities, Inc. Mortgage Pass‐Through Certificates, Series 2005‐I (“Wells Fargo”), and Defendant Barrett Daffin Frappier Treder & Weiss, LLP (“BDFTW”) (collectively, “Defendants”). The First Amended Complaint (“FAC”) alleges causes of action for (1) declaratory relief, (2) violation of Civil Code § 2923.6; (3) violation of Civ. Code § 2923.55, (4) breach of contract, (5) breach of the covenan...

Excerpt: ..., 5th, 6th, 7th, 18th, 26th, 27th, 28th, 29th, and 30th causes of action against Scherer and Pelican, and the 31st cause of action against Pelican. For the reasons set forth, the Court rules as follows: (a) as to the 4th C/A (conversion), 5th C/A (Pen. Code § 496), 6th C/A (UCL), 7th C/A (negligence), 29th C/A (negligent interference with prospective economic advantage), and 30th C/A (intentional interference with prospective business advantage)...

Excerpt: ...e broker and sales agent who represented Plaintiffs in the purchase of their home. Defendants have filed a demurrer to the SAC being heard concurrently with this motion. The details of the transaction and claims alleged in the SAC are set forth in the tentative ruling on the demurrer. Defendants move to strike various allegations of the SAC related to five categories of damages: (1) "tort of another" damages (Mot. ¶¶ 1, 7, 10, 17, 21, 24); (2) ...

Excerpt: ...endant Contra Costa County Department of Conservation and Development as the “County.”) In brief, this case relates to Defendants' proposed construction of an addition to their home. Ashar (Defendants' neighbor) contends that the addition would unlawfully impede the views she presently enjoys from her home, and also would invade her privacy, since the deck Defendants seek to add to their home would provide Defendants a view into her bathroom ...

Excerpt: ...eneral Indemnity Company demurs to two of them: the Third Cause of Action, for negligence; and the Fourth, for financial elder abuse. The complaint alleges that plaintiffs are over the age of 65. They live in Orinda. They purchased homeowner's insurance from USAA. Under the insurance contract, USAA promised to insure against sudden and accidental direct physical loss to tangible property, to pay for physical damage and loss of use, and to pay the...

Excerpt: ...g, and (3) premises liability. Only the first and third causes of action are alleged against Higgins Chapel. Defendant demurs to Plaintiff's causes of action for negligence and premises liability pursuant to Code of Civil Procedure (“CCP”) § 430.10(e). For the following reasons, the Demurrer is sustained, without leave to amend. Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (H...

Excerpt: ... time homebuyers, purchased a residence in Richmond (the "Property") through an escrow that closed on July 10, 2015. (SAC ¶¶ 7, 9, 13.) Defendant Pacific Union is a licensed real estate broker, defendant Joy is a licensed real estate agent employed by Pacific Union, and they represented both the seller and buyer in the purchase and sale transaction. (SAC ¶¶ 2, 3, 7.) The Property was advertised by Defendants as having a "Legal in‐law unit!!...

Excerpt: ...ed a Complaint for breach of guaranty against Defendant Robin Zeman (“Defendant” or “Zeman”). Plaintiff seeks an order for issuance of a writ of attachment against Defendant in the amount of $515,922. The application is opposed. For the following reasons, the application is denied. Evidentiary Objections CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 01/22/21 ‐ 35 ‐ Declaration of David A. Rey Defendant ...