Excerpt: ...s demurrer is the third, for negligence. In this cause of action, plaintiffs seek to hold USAA liable for the acts of a contractor it hired to repair hardwood flooring in their home. Plaintiffs claim the repair work was defective. Plaintiffs apparently fear that the contractor, Masters Distribution, Inc. (“MDI”), will be unable to pay a judgment if it is found liable. MDI is not represented in this action, and plaintiffs have taken its defaul...

Excerpt: ...intiff Paul Dier, Megan Lowe, and Nguyen (collectively, “Plaintiffs”)'s complaint for (1) assault, (2) battery, and (3) negligence. Only negligence is pled against Defendant Airbnb. Defendant Airbnb demurs to Plaintiffs' negligence 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. For the following reasons, the Demurrer is sustained, with ...

Excerpt: ...se. Plaintiff filed this action for breach of contract and common counts. In the answer, Defendant asserted a number of affirmative defenses, including that Plaintiff made misrepresentations about the gross annual sales of the business. Thus, he was not obligated to perform under the Agreement. The Purchase Agreement contained an arbitration provision. On September 27, 2016, the Court granted Plaintiff's unopposed motion to compel arbitration. Af...

Excerpt: ...al amendments reflected in Exhibit A to the Rehwald Declaration in support of the motion, except that Plaintiff may name Judith Horvath and Ronald Horvath only as defendants in the FAC but not as defendant Does 1 and 2, and Plaintiff shall revise paragraphs 3 and 4 of the proposed FAC accordingly; (2) Plaintiff may make additional allegations in the FAC Plaintiff believes may be necessary or appropriate, if any, to address the statute of limitati...

Excerpt: ...California State Department of Parks and Recreation ("Parks Dept.") or any other interested party should be joined in the action. Cross‐complainant/defendant Mr. Cervantes and the Intervenors have filed statements of position, and Mr. Cervantes filed a response to the Intervenors' statement of position. Neither Mr. Cervantes nor the Intervenors suggest that any parties should be joined other than potentially the Parks Dept. Mr. Cervantes conten...

Excerpt: ...Court and to the other side. If timely contested appear by Zoom or CourtCall at 10:45 a.m. (See website for links) Background In June of 2016, in response to plaintiff's helping defendant David Foutz's wife commence divorce proceedings, David called plaintiff's then‐wife, Donna Ward. (For clarity, the parties will be referred to by their first names. No disrespect is intended.) During this call, Donna and David conspired to (1) lure plaintiff h...

Excerpt: ...months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not ...

Excerpt: ...dure §877.6 had the burden of proof on that issue. (Tech‐Bilt, 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 ob...

Excerpt: ... before May 3, 2021. Factual Background Trident Plaza is a commercial office park in San Ramon comprised of five parcels. Plaintiffs Sponges and Mr. Gallucci each own a parcel in the office park. A Declaration of Covenants, Conditions & Restrictions ("CC&Rs") was recorded in November 1993 providing for the formation of nonprofit owners' association to own the common areas and manage the office park for the benefit of the owners. (Gallucci Decl. E...

Excerpt: ... demurrer to the first through eighth causes of action, as well as the eleventh cause of action for IIED is sustained. The District's demurrer to the twelfth cause of action for wrongful termination, as well as the thirteenth and fourteenth causes of action, is overruled. The demurrer by the remaining defendants (“Individual Defendants”) is sustained. Should any party contest this ruling, they should be prepared to discuss whether Nazir v. Un...

Excerpt: ...on for Leave to File a First Amended Complaint.” Defendants maintain the Court order the motion to be filed within two weeks of the CMC. However, that is not stated in the Court's Minute Order. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 04/16/21 ‐ 8 ‐ Secondly, motions for leave to amend the pleadings are directed to the sound discretion of the court. Ordinarily the judge will not consider the validity of ...

Excerpt: ...NT: 07 HEARING DATE: 04/16/21 ‐ 3 ‐ Defendant Spare Time moves for summary judgment on the grounds that the Membership Agreement signed by Plaintiff's mother and guardian ad litem, Melissa Xavier, waived all Plaintiff's claims and released Defendant from any liability for Plaintiff's alleged personal injuries resulting from any negligence on Defendant's part and/or arising out of the use of Defendant's facility. Defendant also moves on the gr...

Excerpt: ...to clean her attic and blow in new green fiber cellulose R‐38 for a total of $3,388.27. (Complaint, ¶10.) A deposit of $376.48 was paid and Attic Masters immediately started the work. (Ibid.) About 20 minutes after the job began, a hole in the suction hose allowed material sucked from the attic to enter and spread into the house. (Complaint, ¶11.) The hose was immediately turned off and Attic Masters attempted to clean to house and spray Lyso...

Excerpt: ...T: 07 HEARING DATE: 04/02/21 ‐ 4 ‐ Background This case involves allegations by Charles Gonzales that Alan Summers and SeronelloSummers Inc. (“Seronello‐Summers”), who are in the business of brokering residential mortgage loans, fraudulently concealed debt on property, while securing a second mortgage loan from Gonzales, which would result in losses for Gonzales. (See First Amended Complaint, filed June 9, 2020.) Summers and Seronello�...

Excerpt: ...lle Vitetta and Darryl Henline, her landlords, over habitability issues. Plaintiff's process server states that he served defendants on October 26, 2020, by personally serving them. The service was made at 1228 Roosevelt Avenue, in Richmond, California. Before conducting the service, plaintiff's attorney conducted an online search, which showed that defendants have owned that property since 2014. In addition, defendants list that property as thei...

Excerpt: ... her guardian ad litem Maria Munoz). Plaintiffs seek to amend their complaint to add claims for punitive damages against the Landsea Defendants (Landsea Homes of California, Inc. and Landsea Holdings Corporation) and allegations in support. For the reasons described further, below, the motion for leave to amend is granted. Analysis As a threshold issue, the Landsea Defendants argue, without authority, that Department 12's ruling granting their mo...

Excerpt: ...arbitrator, seeking to be awarded her attorneys' fees. Initially, that motion was set for hearing in November 2020. The motion was fully briefed, but unfortunately, the arbitrator fell ill and the motion could not be heard in November 2020. Fearing adverse consequences owing to the passage of time, Robertson filed her petition to correct the arbitration award, and to confirm the award as corrected, on December 30, 2020. Essentially, Robertson's p...

Excerpt: ...ersonal injury action. Plaintiff alleges that Defendant rear‐ended his vehicle when he was stopped for a red traffic signal. (Complaint at GN‐1.) He alleges that Defendant was under the influence at the time of the collision. (Id.) Plaintiff alleges that “Defendant showed reckless disregard for the rights and safety of Plaintiff when he intentionally consumed alcohol and drove his vehicle which led to Defendant crashing into Plaintiff and c...

Excerpt: ...he complaint to counsel, he is ordered to do so. Defendants are further granted leave to include any additional defenses identified after receipt of the complaint. Background Plaintiff John S. Richards is the former attorney for defendant Reuben J. Borg and his business, Reuben Borg Fence. Plaintiff filed this action on September 1, 2020 against his former client and Mr. Borg's girlfriend, Paula Machado. Plaintiff seeks to collect unpaid legal fe...

Excerpt: ...members of the rock band Journey over the use and licensing of the band's name and related trademarks, and a dispute over alleged breaches of fiduciary duty, corporate governance and claim for involuntary dissolution of the corporation Nightmare Productions, Inc. ("Nightmare"), among other issues. Schon and Cain are members of the general partnership Elmo Partners, also a plaintiff and cross‐defendant in the action. Plaintiffs/cross‐defendant...

Excerpt: ...y Zapotoczny was injured while riding in an elevator that suddenly malfunctioned. She sued Sierra Pacific Properties, Inc., the building owner, and Schindler Elevator Corp., the contractor servicing the elevators at the time. Sierra tendered its defense to Schindler and to Otis Elevator Company, who maintained the elevator prior to Schindler. Schindler accepted the tender; Otis did not. Sierra and Schindler cross‐complained against Otis for con...

Excerpt: ...rtau Voltaire was driving on Portero Avenue in El Cerrito, she stopped because the vehicle ahead of her slowed to go around a fallen tree. A separate tree (or tree branch—different paragraphs in the complaint differ in this respect) then fell on plaintiff's car and caused her injuries, requiring her to be taken to the hospital by ambulance. The tree was located in front of Hotel Mira Vista, which claims the City of El Cerrito is responsible for...

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: ...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: ...y be raised and argued at a later stage, but in light of the liberal standard applied to motions for leave to amend, leave is granted. Plaintiff shall file and serve the amended complaint on or before March 29, 2021. Background According to the plaintiff's allegations, plaintiff and Broken Arrow entered into a written Master Services Agreement (“MSA” or “the agreement”), which governed work that would later be performed on real property o...

Excerpt: ...ion is denied. Background Plaintiffs' request for sanctions arises out of Defendants' demurrer to Plaintiffs' Complaint. Counsel for Defendants failed to meet and confer prior to filing the demurrer and initially did not file a declaration showing compliance with Code of Civil Procedure § 430.41. The hearing on the demurrer was continued in order for Defendants to meet and confer. The Court overruled almost all of the demurrers. The Court sustai...

Excerpt: ...rt. There were two main issues in that decision; each party prevailed on one of the issues. As relevant here, Judge Donato ruled that a waiver of the allocation of payments as stated in Civil Code section 5655(a) is void as a matter of public policy. (Defendant's ex. 1.) After this decision, the parties stipulated to dismiss the federal court case and refile the case in state court. The stipulation stated the “[t]he new state court action will ...

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 ...