Excerpt: ...rivers and Owners of the 2006 Infiniti License Plate #7TOJ708 and VIN #5N3AA08A36N802877 (“collectively Defendants”). It seeks to have the Court determine that the settlement between Defendants and Plaintiffs Deyma Ayala, Roberto Ayala, Leonardo Mata, Laura Pineda Gomez, Sylvia Erickson, and Bren Erickson (collectively “Plaintiffs”) is made in good faith. Defendants Nissan North America, Inc. and Nissan Motor Co., Ltd.'s (“Nissan”) op...

Excerpt: ...r M. Huerta. Progressive demurs on the grounds that Plaintiff lacks a contractual relationship with Mr. Huerta's insurer, SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 36 HEARING DATE: 07/21/2022 Progressive. Although there was no opposition, the Court now provides a substantive ruling. A. Standard on Demurrer A party against whom an answer has been filed may object by demurrer on the following grounds: (a) the answer ...

Excerpt: ...Good Faith Settlement (the “Application”) filed in this Court by Defendants/Cross Defendants Vince E. Culpepper and Anthony M. Stranger (the “Culpepper Defendants”) seeking judicial approval of a proposed settlement with Ramon Martinez Vazquez, Pablo Torres Montiel, and Juan Carlos Mendoza Montoya (“Plaintiffs”) and a release of the Jones Defendants' crossclaims. The Application is opposed by the Jones Defendants on the grounds that t...

Excerpt: ... plaintiff Daniel Ragaglia (“plaintiff”) alleges negligence and gross negligence based on his allegations that defendant's vehicle struck him while he was riding on his motorcycle on Highway 24 on April 22, 2019, causing significant injuries. Defendant moves the Court for an order to bifurcate this matter so that the issue of liability is tried separately from, and prior to, damages. Discussion Code of Civil Procedure § 598 permits a court t...

Excerpt: ...pose them each individually the following month. The notice stated that the depositions would take place via videoconference. Three business days before the first deposition, Defendants informed Plaintiffs that the depositions would take place in person. Plaintiffs refuse to appear in person and stated their preference for remote depositions due to COVID‐19 concerns. Plaintiffs “feel their health may be severely compromised due to possible CO...

Excerpt: ...ocedure sections 877 and 877.6. The Chatterjees are directed to prepare a proposed order on the motion consistent with this tentative ruling. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 36 HEARING DATE: 06/30/2022 Background This action arises out of a February 7, 2017 landslide that Plaintiffs Paul Vittimberga and Lisa Zobrist allege destroyed their home in Orinda located at 62 Van Tassel Lane. (Cowperthwaite Decl. ...

Excerpt: ...egal malpractice/professional negligence, (2) breach of fiduciary duty, and (3) breach of contract. Defendants demur on the grounds that “[t]he pleading does not state facts sufficient to constitute a cause of action.” (CCP § 430.10, subd. (e).) Defendants argue that the insufficiency of the Complaint is established by CCP section 340.6(a) which sets a statute of limitations for “action against an attorney for a wrongful act or omission . ...

Excerpt: ...e (“OSC”) Hearing, (2) failure to prosecute, and (3) failure to file a responsive declaration to the Court's OSC Hearing. The motion is opposed by Defendant Food Source (“Defendant” or “Food Source”) who asserts that Plaintiff is not entitled to mandatory nor discretionary relief under CCP § 473, subdivision (b). The Motion to Set Aside Dismissal is granted pursuant to the mandatory relief provisions of CCP § 473, subdivision (b). D...

Excerpt: ...other tenant families that either reside or resided in the apartment building located at 1760 Diane Court in Concord, brought this landlordtenant habitability case. A dispute has arisen regarding the one‐sided attorney's fees provisions in the Mold Notification Addendum and the Bedbug Addendum to the leases. Plaintiffs filed the First Amended Complaint on August 12, 2021, adding the Sixth Cause of Action for Declaratory Relief. Plaintiffs seek ...

Excerpt: ...‐ninth affirmative defenses for failure to plead sufficient facts, but otherwise overruled. The motion to strike is denied, as discussed below. Defendant has leave to amend. Any amended answer shall be filed and served on or before July 5, 2022. I. Background Plaintiffs filed this action on July 6, 2021 against their niece, defendant Domonique Trotter, based on their allegations that defendant improperly influenced her grandmother (plaintiffs' ...

Excerpt: ...are not supported by the record. These representations are in pertinent part as follows: • Letter to clerk. Plaintiff claims to have sent a letter to the court clerk, but provides three different dates for the letter: March 13, March 31, and May 3, 2022. The single letter attached to the motion, which is not authenticated, is dated May 3. Because the May 3 letter would have been an ex parte communication if received, the Court would have discar...

Excerpt: ...raventa. The demurrer is overruled as to the Second and Third Causes of Action; sustained without leave to amend as to the Fourth Cause of Action. Background This case stems from a dispute between the five Garaventa siblings (Joseph, Linda, Louisa, Silvio, Jr., and Marie) regarding the management of the family company and the Garaventa Family Marital Trust. Plaintiff Joseph Garaventa alleges he was terminated as CEO of the Garaventa Entities as p...

Excerpt: ...brought this habitability case, wherein they allege Defendant SEKK Investments Diane, LLC failed to remediate multiple uninhabitable conditions. The parties reached a settlement on October 13, 2021, but Defendant has not paid the settlement amount to Plaintiffs. The Settlement and Release (“SAR”) was fully executed on January 18, 2022, when Plaintiffs' counsel signed the Agreement. Motion Pursuant Code of Civil Procedure § 664.6, Plaintiffs ...

Excerpt: ...stitute a cause of action. (CCP §430.10(e).) For the following reasons, Defendants' demurrer is overruled in part and granted in part. Plaintiff is given leave to amend consistent with this opinion. The County's request for judicial notice is granted. (Cal. Evid. Code §452(b), 453.) Standard for Demurrer “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)...

Excerpt: ...al hearing was set for January 3, 2022 regarding Plaintiff's request to prove up damages for the default judgment. Plaintiff appeared pro per at the January 3, 2022 hearing and requested more time to set aside the default. The court continued the matter to March 21, 2022, and informed Defendant that she could file a motion to set aside default. Defendant retained counsel on January 4, 2022. Defendant filed the instant motion to set aside default ...

Excerpt: ...stitution as follows: § 13. Overturning erroneous judgments No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error compl...

Excerpt: ... this unlimited matter with the unlawful detainer (“UD”) proceeding RS22‐0041. For the following reasons, the motion to consolidate is denied. The Court of Appeal has held as follows: When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the...

Excerpt: ... or before June SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 36 HEARING DATE: 05/19/2022 10, 2022. Background Plaintiff Clive Hitchens and Meghan O'Bra began living together in May of 2015 in a lease property located at 881 San Simeon Drive in Concord. In October 2017, both parties signed for a purchase loan of the San Simeon property. Title was taken in Defendant O'Bra's name only. The parties broke up in 2020 but Pl...

Excerpt: ...f stock equaling 25% of authorized shares of Plaintiff Risoftdev. Plaintiff alleges Defendants breached the agreement and conspired to retain and use Risoftdev's propriety information and trade secrets. Defendant Joel McVay was one of the senior investment partners at Chatfield and lead contact for the Risoftdev‐Chatfield business deal. Motion Pursuant to Code of Civil Procedure § 1281.2, Defendant Joel McVay moves to compel arbitration and st...

Excerpt: ...ate and time on the motion. The proof of service attached to the moving papers shows the motion pleadings were served on the other parties by overnight mail on February 23, 2022, the same date they were filed and served without a hearing date. (See Braun Decl. Exh. 1.) The hearing date assigned to the motion by the Clerk on the face of the notice of motion after it was filed is June 9, 2022. The Court file does not contain any amended notice of t...

Excerpt: ...ncern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) Further, under section 128 of the Code of Civil Procedure, the Court has inherent discretionary power to “provide for the orderly conduct of proceedings before it.” (Code Civ. Proc., § 128, subd. (a)(3); see, People v. Alvarez (1996) 14 Cal.4th 155, 209.) ...

Excerpt: ... who was injured at work on December 12, 2017 after tripping on a 2x4 that was negligently nailed to the roof he was working on. (Complaint at ¶ 5.) Plaintiff filed a workers' compensation claim pursuant to the Workers' Compensation Act of the State of California and sought benefits under the California Labor Code and applicable regulations for his injuries. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 36 HEARING DAT...

Excerpt: ...st allege destroyed their home in Orinda. (Memo. ISO Mot. p. 2.) Defendants Steven Yee and June Yee own the property next door to the Plaintiffs' residence. (Memo ISO Mot. p. 2, ¶ 2.) They allege the defendants altered the natural flow of surface water across their properties which contributed to the landslide on Plaintiffs' property. (Memo ISO Mot. pp. 2‐3, ¶¶ 4, 5.) The Yees have filed a crosscomplaint for damages they contend their proper...

Excerpt: ...o to charity upon the deaths of the couple's two adult children. To lawfully avoid the potential massive tax penalties, which could exceed $100M, the Braddock trust developed a two‐step plan to assure the estate passed to the charities. The first step was approval of certain trust modifications by the probate court. The second step involved transferring the family's interest in nine entities from one Braddock family trust (Marital Trust) to ano...

Excerpt: ... Fact (“UMF”) Nos. 9, 11, 24; Plaintiffs' Additional Fact (“PAF”) Nos. 4, 5, 6, 8, 12, 19, 21, 22, 23, 24, 25, 27, 28, 32, 33, 34, 35, 36, 44, 45, 46 47, 65, 66, 74, 75.) Protective's alternative motion for summary adjudication is granted as to the First Cause of Action (UMF 27; PAF 78, 85, 88), the non‐recoverability of Brandt attorney's fees (UMF 5, 16, 27, 30, and 31; PAF 76, 78, 85, 88), and the non ‐recoverability of punitive dam...

Excerpt: ...nate forum is a ‘suitable' place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. …[Citation.]” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) “On a motion for forum non conveniens, the defendant, as the moving party, bears the burden of proof.” (Ibid.) The ultimate question is whether the balancing of the Stang...

Excerpt: ...e following reasons, Petitioner's Writ of Mandate denied. Petitioner's request for payment of attorney's fees pursuant to Government Code §800 is also denied. Statement of Facts: On September 3, 2020, Petitioner was convicted of violating Vehicle Code §23152 (b) for driving with a blood alcohol content of .08 or more. (Suppl. Points and Authorities in Support of Petition for Writ of Mandate, Ex. C at p.2 (hereinafter “Ex. C”).) This convict...

Excerpt: ...efault judgment was entered on December 14, 2021. Heath filed this motion on March 2, 2022, arguing that service was improper. This motion is based on Code of Civil Procedures sections 418.10, 473(d) and 473.5. The motion also includes section 473(b), but the Court found it unnecessary to consider that subsection. Where there has been proper service of summons, but lack of actual notice, section 473.5 applies. “Discretionary relief based upon a...

Excerpt: ...te with examples of plaintiff filing “unmeritorious motions, pleadings, or other papers …” The Court will consider plaintiff's oral argument, take the matter under submission, and issue an order after hearing. The Court rules as follows on procedural matters: • Plaintiff's request that the hearing on this Order To Show Cause be transferred to another judge is denied. • The Court concurs with plaintiff's position that an order declaring ...

Excerpt: ...ty boundary and the ownership of a freestanding garage. After plaintiffs filed the action, parties arrived at a settlement agreement in October 2018 during mediation before Mediator Hon. Mark Eaton. As part of the settlement, defendants Jeffrey and Sharon Steinman agreed the garage was on their neighbors' side of the property line. Parties agreed that they would seek a lot line adjustment and that the Steinmans would make all efforts and pay all ...

Excerpt: ...ss, and (6) claim for punitive damages. Only the first cause of action for negligence is pled against Defendant. Defendant demurs pursuant to Code of Civil Procedure (“CCP”) § 430.10(e) on the grounds that the TAC fails to allege facts sufficient to support a finding of foreseeability required to impose a duty on Defendant Tankersley. As a threshold issue, the Court declines to consider the Declaration of David Yen in support of Plaintiff's ...

Excerpt: ... the Dealer advertised the vehicle as a Kia Certified Pre‐Owned and the vehicle had passed a “165 Point Inspection.” Kia America's website also provides a copy of the Kia Certified Pre‐Owned inspection sheet and it is required to accompany every certified pre‐owned Kia. Plaintiff alleges he viewed the Dealer's advertising about the vehicle and the Pre‐Owned program prior to purchasing the vehicle. SUPERIOR COURT OF CALIFORNIA, CONTRA ...

Excerpt: ...hen states that, “Any Abstract of Judgment related to the Judgment may be recorded on 12/31/2021, or any date thereafter, if Defendant has not yet paid Plaintiff the remaining balance of $200,000. In such case, Defendant will make monthly payments to Plaintiff in the amount of $1,666.66 per month, for 10 years, with no interest, beginning on August 1, 2022.” (Settlement Agreement p. 1‐2.) After 10 years of payments, Defendants will have pai...

Excerpt: ...(Code Civ. Proc., § 1281.4.) A court must order arbitration if it determines that a valid agreement to arbitrate exists. Here, such an agreement exists. This case comes before the Court on remand following a previous denial of the petition. In a published decision, Gordon v. Atria Management Co., LLC (2021) 70 Cal.App.5th 1020, 1030, the First District Court of Appeal stated: The trial court erred in concluding that Randall lacked authority to b...

Excerpt: ...eeking leave to amend to (1) name Tyler Rad Holstein (“Holstein”) as a Defendant; (2) add claims for violations of the Unruh, Ralph and Bane Act; (3) remove claims and prayers for relief that are not recoverable in a survival action; (4) include allegations of Defendant Holstein's Post Traumatic Stress Disorder (“PTSD”) and Defendant Securitas' knowledge thereof; and (5) add allegations regarding Plaintiffs' status as successors in intere...

Excerpt: ...) As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: … (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law … The first question before the Court is whe...

Excerpt: ...§ 3273.10, and (4) violation of Bus. & Prof. Code § 17200 et seq, the body of the Complaint alleges only two causes of action: one for violation of Civil Code § 2923.6 (labeled first cause of action) and one for violation of Bus. & Prof. Code § 17200 et seq. (labeled third cause of action). For the following reasons, Plaintiff's motion for preliminary injunction is denied. The Temporary Restraining Order issued on February 14, 2022 is dissolv...

Excerpt: ...se of action and is fatally uncertain; and, (2) the third cause of action, for injunctive relief under the Consumer Legal Remedies Act (“CLRA”), both fails to state facts sufficient to constitute a cause of action and is fatally uncertain. Introduction & Preliminary Considerations Before specifically addressing the merits of Renew's contentions, the Court first deals with some preliminary matters as a backdrop to that endeavor. First, the Cou...

Excerpt: ...section 226. The 12th cause of action seeks “waiting time penalties” (relief afforded employees who are not timely paid wages due and owing) under Labor Code sections 201 and 203. As Defendants observe, these causes of action are “derivative” in that the damages allegedly owing under sections 226 and 203 result from other alleged conduct—here, the failure to pay Stephens for meal and rest breaks (that alleged conduct is separately the b...

Excerpt: ...efendants together. (CCP §430.10 (f).) Any amended complaint shall be filed and served on or before April 7, 2022. If plaintiff amends again, the Court anticipates that it will make a final ruling on the validity of the Second Cause of Action on the next demurrer, without further leave to amend. In the event of any further demurrer, plaintiff shall file a redlined copy of the amended complaint, so the Court can track the changes The Court denies...

Excerpt: ...RisoftDev CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/24/22 ‐ 2 ‐ in return for 2,500,000 shares of stock equaling 25% of authorized shares of Plaintiff RisoftDev. Plaintiff alleges Defendants Chatfield and McVay breached the agreement and conspired to retain and use RisoftDev's propriety information and trade secrets. Defendant Joel McVay was one of the senior investment partners at Chatfield and lead con...

Excerpt: ...to Code of Civil Procedure sections 430.10(e) and (f) as uncertain because the Complaint's Exhibit B contradict the Complaint's allegations and fail to allege facts to support Plaintiff's own performance; (2) Second Cause of Action for Conversion pursuant to Code of Civil Procedure sections 430.10(e) and (f) for failure to state a cause of action because the Complaint's Exhibit B states that title to the products does not transfer to the Plaintif...

Excerpt: ...G DATE: 03/24/22 ‐ 13 ‐ Any amended complaint shall be filed and served on or before April 4, 2022. Background Plaintiff purchased a 2014 Ford Escape on September 4, 2013, which had a large variety of defects "at the time of purchase, or within one‐year [sic] thereafter," which substantially impair the use, value, or safety of the Escape. (Complaint, ¶¶8, 10, 33.) In connection with the purchase, plaintiff received an express written warr...

Excerpt: ...r to the TAC, the Court issued an Order after Hearing (the “Order”), sustaining the demurrer without leave to amend. Plaintiff now moves for a new trial. While such a motion is ordinarily made only after a trial of an issue of fact to the court or a jury, it may also be filed after the court has tried a pure CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/24/22 ‐ 31 ‐ issue of law by sustaining a challenge...

Excerpt: ... should not be sanctioned. Plaintiff's ex parte application to seal the proceedings was granted on July 27, 2020. At that time, Defendants had not been served with the summons and complaint; they had no notice and no opportunity to oppose. (Defendants were served almost a year later in April 2021.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/17/22 ‐ 21 ‐ In its application to seal the proceedings, Plaintif...

Excerpt: ...units owned by Mr. Luecker and by Robert J. Mann, now deceased. (3AC ¶¶ 1, 5, 7.) Plaintiff alleges he is the personal representative of the estate of Robert J. Mann. (3AC ¶ A p. 5.) Based on the 3AC and Exhibit A attached, Robert J. Mann was granted a joint tenancy interest in Unit #63 of the condominium development. (3AC ¶¶ 1, 8, Exh. A.) As relevant to Mr. Luecker's demurrer, the original complaint was filed in the name of "Estate of Robe...

Excerpt: ... that defendants were guilty of ‘oppression, fraud, and malice' simply pleaded a claim for punitive damages in the language of the statute authorizing such damages. . . . Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.”)) Whether a plaintiff has a basis to request punitive damages in an action for elder abuse turns on whether the she has pleaded enough facts to support ...

Excerpt: ...s International shall prepare the order after hearing on this demurrer. Fire Wings Concord The Court previously overruled the demurrer to cause of action three against Fire Wings Concord (“Concord”.) The first amended cross‐complaint made no substantive changes to the third cause of action. Concord has again demurred to the third cause of action. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/17/22 ‐ 6 �...

Excerpt: ...s for violation of the Homeowner Bill of Rights (“HBOR”). Plaintiff has adequately alleged the HBOR violation of conducting a trustee's sale while a complete application for a loan modification was pending. (Complaint, ¶¶ 12‐24, 26‐29, and 34. See Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1275 [a plaintiff adequately alleged an HBOR cause of action by alleging that a complete application was pending at the time ...

Excerpt: ... is otherwise denied. Background Plaintiffs allege Defendant Camille Kimball decided to intoxicate herself with heroin and alcohol for several hours. She then drove in the wrong direction on I‐ 680 northbound. At 3:47 a.m., her vehicle came in contact with the vehicle driven by Nettie Darlene Perkett. Taurean Dorotae Lee was a passenger in Perkett's vehicle. Perkett and Lee died of the injuries resulting from the collision. Motion Pursuant to C...