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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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...