Excerpt: ...re is a triable issue of fact whether an exception to the rule of Privette, infra, and Sandoval, infra, applies. (Undisputed Material Fact (“UMF”) Nos. 2‐9, 11, 13, 14, 15, 16, 17, 18, 21, 26, 29, 35, 37.) Background This is a personal injury accident arising out of a worksite injury that occurred on June 1, 2016 when plaintiff, Kapferer, fell into an uncovered and unbarricaded trench excavated by SMI Demolition. Kapferer seeks compensation...

Excerpt: ...ARING DATE: 12/10/21 ‐ 22 ‐ for failure to state a cause of action and for uncertainty are sustained, with leave to amend; and all other general and special demurrers including the demurrers to the third cause of action are overruled. Factual Background The subject of the dispute is a residential real property located at 2020 Meadowlark Ln., Oakley, CA 94561 (the "Property"). Plaintiffs Melissa Hallstrom and Victor Hallstrom (the "Hallstroms"...

Excerpt: ... Misty Helfrick's Third Amended Cross‐Complaint for (1) concealment; (2) fraud/intentional misrepresentation; (3) contribution; (4) implied indemnity (against Patrick Helfrick only); (5) comparative indemnity (against Patrick Helfrick); (6) equitable indemnity (against Patrick Helfrick); and (7) declaratory relief. Because all parties share the same surname, the Court refers to them by first name. No disrespect is intended. For the following re...

Excerpt: ...x. C to Oparowski Decl., Dawn Giammona Depo. at pp. 198‐199; Ex. D to Oparowski Decl., Alex Giammona Depo., at pp. 252‐ 254 and 266‐268; Ex. E to Oparowski Decl., SMI PMQ Depo., at pp. 123‐ 124.) Because of this factual dispute, it is unnecessary for the court to decide now whether a reasonable trier of fact could conclude that the accident occurred due to the sole negligence of Integra and the other subcontractor, SMI; or whether plainti...

Excerpt: ...26, subd. (a)(3).)” (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.) “A preliminary injunction is proper only if there is a substantial basis to suppose that the defendant, if not restrained, will actually engage in the conduct sought to be enjoined.” (Epstein v. Superior Court (2011) 193 Cal.App.4th 1405, 1410.) Plaintiff has not provided evidence that Defendant intends to remove vegetati...

Excerpt: ...erts that the underlying incident occurred on March 5, 2019, and that the 2‐year statute of limitations ran on March 5, 2021, but the Complaint was not filed until August 19, 2021. On these procedural grounds alone, Defendant requests the Court dismiss the entire Complaint. The Court finds that Plaintiffs timely filed their Complaint and overrules Defendant's demurrer. Legal Standard CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: ...

Excerpt: ... respect to the first, third, fourth, and eighth causes of action, but sustained as to the second, fifth, sixth and seventh causes of action, with leave to amend, as further discussed below. To the extent that the motion to strike is not moot given the ruling on demurrer, it is denied. Any amended cross‐complaint shall be filed and CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 12/03/21 ‐ 12 ‐ served on or bef...

Excerpt: ...the following causes of action: 1) Negligence, 2) Gross Negligence, 3) Recklessness, 4) Negligent Hiring, 5) Negligent Supervision, and 6) Negligent Retention. Plaintiff seeks general and special damages, attorney's fees, pre‐ and post‐judgment interest, and punitive and exemplary damages. The Defendant argues the complaint must be dismissed because the Plaintiff has already attempted to sue Ilg and was barred by the statute of limitations fo...

Excerpt: ... complaint for (1) breach of contract‐consulting services agreement, (2) account stated, (3) alter ego liability, and (4) unjust enrichment. Causes CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 12/03/21 ‐ 29 ‐ of action (1) and (2) are stated solely against Defendant Wingtip Communications, Inc. (“Wingtip”) while (3) and (4) are stated against all Defendants (Wingtip, Defendant Hive80 LLC (“Hive80”), ...

Excerpt: ...ns set forth, the motion is granted. If this tentative ruling is timely contested, each side will be allowed 10 minutes to argue the matter. Factual Background Plaintiff Christopher Owens alleges that he was injured driving a cement truck at a construction site. The Moving Parties assert that Villages is the owner of the property under development where the accident happened. (Villages/Discovery Separate Statement of Undisputed Material Facts ("D...

Excerpt: ... before November 22, 2021. Factual Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 11/12/21 ‐ 14 ‐ Plaintiffs filed their complaint initiating this action against Antioch in October 2020. They allege causes of action for negligence, negligent hiring, retention, supervision and training, and wrongful death. Plaintiffs are the biological parents of a 16 year old student who was shot on the premises of De...

Excerpt: ...supply . . . [the following] missing information: when plaintiff first suspected that wrongdoing (other than elder abuse) contributed to her mother's death and why a reasonable investigation starting then would not have revealed the Digoxin study before May 10, 2018. The court explained, [Plaintiff's allegations] equate the date of plaintiff's discovery of the Digoxin study with the date of accrual of her wrongful death cause of action. But that ...

Excerpt: ... parties disagree over whether Petitioner are entitled to challenge the 2013 certification of the EIR. Respondents argue that Petitioner cannot challenge the 2013 EIR and instead is limited to arguing that the City should have prepared a supplemental EIR. (Unless otherwise specified the opposing parties will jointly be referred to as Respondents.) The standard of review will change depending on whether Petitioner can prevail in this initial argum...

Excerpt: ...motion was filed, Plaintiff dismissed Antioch Jeep from the action. For the reasons set forth, FCA's motion to compel arbitration is granted as to FCA and denied as moot as to Antioch Jeep. FCA's motion to stay the action is also granted, and the action is stayed pending conclusion of the arbitration. Factual Background Plaintiff Mr. Edwards filed a complaint in February 2021 alleging claims arising out of his acquisition of a Jeep Cherokee vehic...

Excerpt: ...s also denied, as moot. Factual Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 11/12/21 ‐ 18 ‐ Plaintiff Pentech Financial Services, Inc. ("Pentech") has sued Defendants for professional negligence and related claims arising out of the Defendants' representation of Pentech as a defendant in a partition action, Starcevic v. Pentech Financial Services, Inc. ("Starcevic Action" for convenience). Pentech ...

Excerpt: ...s granted. The judgment is vacated, defaults are set aside, the collection orders are recalled, and service of summons is quashed. However, with respect to this last point, defendants admit to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 11/12/21 ‐ 2 ‐ having received the complaint, and they are encouraged to voluntarily accept service. If service efforts prove difficult, the Court will entertain a motion to s...

Excerpt: ...pir Fasail dba Country Farm Produce entered in possession and continued to occupy the premises located at 576 Center Street in Moraga, until eviction on or about September 12, 2019. Defendant Gapir Fasail, individually, dba Country Farm Produce was served with the summons and complaint, by substitute service on March 13, 2020. The location of service of process was 2216 MacArthur Blvd in Oakland. Defendant failed to file a responsive pleading and...

Excerpt: ...of Civil Code §1941, 2) Breach of Contract, 3) Breach of Quiet Enjoyment, 4) Nuisance, 5) Premises Liability, 6)Negligence, 7) Retailiation in Violation of Civil Code §1942.5, 8)Violation of Richmond Rent Ordinance, and 9) Sexual Harassment. Plaintiff also makes a claim for punitive damages. The party moving for summary judgment has the burden of persuasion to show there is no triable issue of material fact and thus it is entitled to judgment a...

Excerpt: ...d on or before November 15, 2021 at 9:00 a.m. Alternatively, the Court extends the Temporary Restraining Order for 90 days to allow the parties an opportunity work out the reinstatement plan for the loan and for Plaintiffs to comply with the reinstatement. Background Plaintiffs Thomas and Charlotte Vaughns own real property located at 2201 San Mateo Street in Richmond. Plaintiffs purchased the property in December 2004. In February 2007, Plaintif...

Excerpt: ... served on or before November 15, 2021. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 11/05/21 ‐ 19 ‐ Request for Judicial Notice Defendant's unopposed request for judicial notice is granted. (Evid. Code §§ 452, 453.) Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A compl...

Excerpt: ...nd This is a continued hearing on defendant Kress's motion to consolidate this Civil Action with the Trust Case. By its ruling of September 24, 2021, the Court requested supplemental briefing from both parties regarding several issues. The terms Civil Case, Trust Case, and Probate Case are used as defined in the Court's September 24, 2021 ruling. The background facts relating to those cases as they pertain to the motion to consolidate are general...

Excerpt: ...action for declaratory relief and for a writ of mandate between different governmental entities concerning the provision of advanced life support (“ALS”) prehospital emergency medical services (“EMS”). Plaintiffs are a rural fire district, a city, and those two entities' joint powers entity (“JPA,” referring either to Joint Powers Authority or Joint Powers Agreement as the context requires (see Gov't C. § 6500)); and defendants, a co...

Excerpt: ...randum list each item that Defendants want stricken. Although not compliant with the Rules of Court, sufficient notice was given to Plaintiff. In the future, however, Defendants shall comply with the Rules of Court. On the merits, Defendants argue that Plaintiff went beyond the Court's previous ruling on Kong's demurrer when it amended the complaint. In amending the complaint, Plaintiff added a new theory that Kong gave Martin $100,000 and this m...

Excerpt: ...C/A (breach of fiduciary duty), 10th C/A (unfair business practices under Business and Professions Code § 17200 ("UCL")), 11th C/A (accounting), and 13th C/A (conversion and trespass). Plaintiffs state they intend to voluntarily dismiss the 8th C/A for breach of fiduciary duty and 11th C/A for accounting. (Opp. p. 2, ll. 19‐20.) Based on Plaintiffs' representation and the lack of substantive opposition to the demurrers to those causes of actio...

Excerpt: ...and impermissibly vague. (FAC, ¶ 18.) In any further amended complaint, plaintiffs shall allege separately numbered causes of action for each contract at issue, shall specify whether each contract was oral or written, and shall attach copies of any writings evidencing each written contract as properly tabbed exhibits. (See Cal. Rules of Court, rule 3.1110, subd. (f).) Further, plaintiffs shall allege facts supporting their theory that NYLife can...

Excerpt: ... the court's ruling on the last demurrer. In addition, plaintiff appears to have added at least one allegation of an injury specific to Fresenius: “a severe and infected wound at [decedent's] dialysis port.” (SAC, ¶ 38 a.) However, Fresenius has raised concerns that the Second Amended Complaint is still really just a form complaint, borrowed from complaints dealing with entirely different kinds of heath care facilities. In this connection, t...

Excerpt: ...onique Willson, and Jungle James Animal Adventures, LLC from maintaining conditions on the Willsons' property that constitute a public and private nuisance. Specifically, Plaintiffs allege the Willsons have placed a large shipping container and construction debris on their property, which is adjacent to the easement (driveway) burdening the Willson Property. Plaintiffs allege the container and debris interfere with Plaintiffs' rights to utilize t...

Excerpt: ..., alleging that something in the food they served caused him to break several teeth. (Case No. C17‐01774.) During the discovery process in that case, Barker came to believe that the law firm representing Panda had engaged in discovery abuses. He filed a separate lawsuit against Panda and its attorneys concerning this. (Case No. C19‐01582.) The defendants in that lawsuit failed to respond to the complaint in time, so Barker took their default....

Excerpt: ...Regina Linetskaya, received documents from the facility and was told to sign the fields requiring a signature, which she did. (Declaration of Regina Linetskaya, “Regina Decl.,” ¶3. For clarity, the parties will be referred to by their first names. No disrespect is intended.) The documents included an arbitration agreement. (See Declaration of Beverly Tahan, Ex. A.) Upon her admission to the facility, Lyudmila had recently been discharged fro...

Excerpt: ...all simultaneously file and serve on the other party supplemental papers and briefing addressing the issues set forth below by October 12, 2021. The parties may each file and serve a response to the other party's supplemental papers and briefing by October 19, 2021. A. The Pending Civil Action The Complaint in this action (the "Civil Action") was filed by Michelle Karen Roth (Ms. Roth") in her capacity as Conservator over the Estate of Richard Ma...

Excerpt: ... or Amended Answer shall be filed and served on or before October 8, 2021. The court incorporates its ruling on USAA's demurrer to plaintiffs' First Amended Complaint, which was initially issued as a tentative ruling on May 14, 2021. In that ruling, the court's impression was that it might be possible for plaintiffs to state a claim for negligence if USAA had sent a claims adjuster to their home and that, during an inspection, the adjuster had ne...

Excerpt: ...igence cause of action pursuant to Code of Civil Procedure (“CCP”) § 430.10(e) on the grounds that Plaintiffs have failed to allege Airbnb owed them a duty. As a threshold issue, the Court declines to overrule the demurrer on the grounds of perceived violations of the California Rules of Court and reaches the merits of the Defendants argument. For the following reasons, the Demurrer is sustained, without leave to amend. Legal Standard “The...

Excerpt: ... overruled, and the demurrers to the 36th and 37th causes of action are sustained, with leave to amend. Factual and Procedural Background This lawsuit involves claims by plaintiff MM Development Company doing business as Planet 13 ("MMD") for recovery of over $900,000 in proceeds from the sale of marijuana from its dispensary in Las Vegas, Nevada. MMD is a licensed dispensary under Nevada law and is operating under the registered fictitious busin...

Excerpt: ...kFactory, LLC, pending a final judgment or further Court order in this matter. A proposed order in accordance with this tentative ruling, along with the undertaking described below, shall be submitted to the Court no later than September 22, 2021. (See California Rules of Court, Rule 3.1150 (f).) Evidentiary Matters Murray's request for judicial notice of the complaint and cross‐complaint in this matter is granted. (Evid. Code, § 452 (d).) Mur...

Excerpt: ...greement between Defendant Michael Mansel and R.L. Milsner Insurance, Inc., after the asset sale Milsner conducted on or about February 3, 2016. Defendant Mansel is a licensed insurance producer. On or about February 1, 2016, Defendant and R L Milsner Insurance, Inc. entered into a written agreement for Mansel to sell and for Milsner to purchase Mansel's property and casualty book of insurance business, then residing with Granite Professional Ins...

Excerpt: ...e September 27, 2021. Background Plaintiff, Julie Ta, was interested in renovating her kitchen and contracted with defendant, a licensed contractor for “Cabinet, Mill work and Finish Cabinetry.” (Complaint, ¶¶3, 7, 25.) Defendant provided plaintiff with an invoice on October 29, 2019 for $19,139.85. (Id. at ¶8.) The invoice required 50% of the amount to be paid up front and the rest upon “installation.” (Id. at ¶9.) The invoice indica...

Excerpt: ...faith and fair dealing. Defendant demurs pursuant to Code of Civil Procedure (“CCP”) § 430.10(e) on the grounds that each of the causes of action in the SAC fail to state a cause of action. For the following reasons, the Demurrer is sustained, without leave to amend. Request for Judicial Notice Defendants' unopposed request for judicial notice is granted. Evid. Code §§ 452, 453. Evidentiary Objection Defendant objects to Plaintiff's declar...

Excerpt: ...go Allegations Against Him. The cases cited by plaintiffs do not support the proposition that plaintiffs can amend a judgment against one defendant to add an existing co‐defendant who would otherwise have a right to trial. (See, e.g., NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 775 [“[n]either Finelli nor Hurt, the sole shareholder and chief executive officer of Ph, was named as a party or served in his individual capacity”]; Ja...

Excerpt: ... Civil Procedure § 877.6 and the factors set forth in Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488. Background Plaintiff was approximately four years old when she suffered second and third degree burns entering a bathtub with scalding hot water in her apartment. Defendant Ramona Apartment Investors, LLC ("Owner") is the owner of the apartment building; defendant The Grupe Company dba Grupe Management Company ("Manager"...

Excerpt: ...tiff's injury. Defendant's evidence shows that Behymer treated Plaintiff on May 10, July 31 and August 9, 2019. (Behymer decl. ¶¶7‐9.) During the May 10 visit, Behymer did not see any signs that Plaintiff was experiencing pain and Plaintiff told Behymer that he felt relief after the visit. (Behymer decl. ¶7.) Defendant's evidence also shows that during the first visit, Plaintiff had been complaining of neck pain seven years. (Behymer decl. �...

Excerpt: ...ffs Michelle Barker and Stuart Barker are the owners of real property located at 59A Saddle Road in Walnut Creek. Defendants James Willson and Monique Willson are the owners of real property located at 59 Saddle Road. The Barker Property and Willson Property CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 09/03/21 ‐ 7 ‐ share a driveway and property line at the Willson Property's southern border. There were two e...

Excerpt: ...ersonally guaranteed by defendant David Lampach. Eagle Bay alleges California Cannabinoids failed to repay the loan when it came due. Eagle Bay filed its complaint for recovery of the amounts allegedly due from defendants on February 23, 2021. Eagle Bay filed proofs of service showing it served the summons and complaint by substituted service on California Cannabinoids on February 25, 2021, and on David Lampach on February 27, 2021. On Plaintiff'...

Excerpt: ...indicated on Exhibit C to the Declaration of Helen J. Kei. The strings placed by the survey work shall remain in place, but defendants may trim the flags with scissors to minimize “flapping” noises. The undertaking is set in the amount of $15,000, to be posted by defendants on or before August 20, 2021. (Code Civ. Proc. §§ 529, 995.710.) The Court observes that no evidentiary hearing was properly noticed and, despite several phone appearanc...

Excerpt: ...on or before August 27, 2021. If CVCHS elects to amend, it shall file a redlined copy of any amended cross‐complaint with its Opposition to any future demurrer so the court can track the changes. Background The court wrote comprehensively about this case in its ruling on the previous demurrer. It quotes a small portion of that ruling to set the context for the current one. This case presents the issue whether a cross‐defendant may continue to...

Excerpt: ...wanger II, Walter Binswanger III, and Silvio Garaventa, Jr. (CCP § 430.10 (e).) It is overruled as to Louisa Binswanger as to the Fifth Cause of Action and sustained as to all the other causes of action with leave to amend. (CCP § 430.10 (e).) Any amended complaint shall be filed and served on or before August 27, 2021. If defendants file a further demurrer, plaintiff shall file a redlined copy of the amended complaint with his Opposition, so t...

Excerpt: ... as follows: (1) Samah Sabry Awadalla (“Samah”); and (2) Ehab Halim Zaki Saad (“Ehab”). The Complaint alleges five causes of action: (1) Defamation against Samah; (2) Intentional Interference with Prospective Economic Relation against all Defendants; (3) Negligent Interference with Prospective Economic Relation against all Defendants; (4) Intentional Infliction of Emotional Distress against all Defendants; and (5) Negligent Infliction of ...

Excerpt: ...and Plaintiffs' Third Amended Complaint and the survivor declaration of Myrtle Jones accompanying it shall be filed by the Clerk. On May 21, 2021, the Court sustained Jeremy Williams' demurrer to the SAC. Under the Court's local rules, when neither party timely contested the Court's tentative ruling posted the day prior to the scheduled hearing, the tentative ruling became the final order on the demurrer. (Local Civ. R. 3.43(2).) The Court's ruli...

Excerpt: ...s overruled, and the motion to strike is denied. Defendant Hinds shall file an answer to the Fourth Amended Complaint on or before August 27, 2021. Plaintiffs' counsel is advised that the tables for plaintiffs' memoranda of points and authorities are consistently generated in a very small font size that is almost unreadable. In the future, all tables shall be set out in at least 12‐point font. The basis for the Court's ruling on the demurrer an...

Excerpt: ...AXC” for (1) contribution, (2) fraud and concealment and (3) declaratory relief. For the following reasons, Plaintiff's Demurrer is sustained with leave to amend. Background Facts This dispute arises from Plaintiff, Charles Helfrick's Complaint against Misty and Patrick Helfrick. (SAXC p. 3:10‐28.) Charles is Patrick's father, and Patrick and Misty are married, but in the middle of a divorce. The Complaint alleges that Charles and Patrick ent...

Excerpt: ...igence (against Defendant Save Mart Co., Inc. dba FoodMaxx), (2) professional negligence (against the demurring Defendants), and (3) professional negligence (against Defendant Sutter Bay Hospitals dba Sutter Delta Memorial Hospital). This is Defendants' second challenge to Plaintiff's claim for professional negligence. Defendants demur to Plaintiff's cause of action for professional negligence pursuant to Code of Civil Procedure § 430.10(e) and ...