Excerpt: ...ach of contract; (2) fraud; (3) negligence; (4) wrongful foreclosure; (5) constructive eviction; (6) breach of the covenant of good faith and fair dealing; (7) violation of California Bus. & Prof. Code §§ 17200 et seq.; and (8) declaratory relief. Defendants demur pursuant to Code of Civil Procedure § 430.10 et seq. on the grounds that Plaintiffs lack standing and that Plaintiffs fail to state facts giving rise to a cause of action. This Demur...

Excerpt: ...t, the opposition memorandum must be no more than 15 pages. (California Rules of Court, Rule 3.1113(d).) The opposition also failed to include a table of contents and authorities, which is required for all memorandum that exceed 10 pages. (Rule 3.1113(f).) The Court has exercised its discretion to consider the opposition memorandum despite these violations. Future violations may result in the Court refusing to consider the offending brief. Based ...

Excerpt: ...tion.' (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.' ” (S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.) Plaintiff has met its burden on summary judgment by showing that it has evidence to meet all elements of its common count claims. �...

Excerpt: ...ly meet and confer such that he qualified for an automatic extension of time to respond to the FAC. (Code Civ. Proc., § 430.41 (a)(2) [“the demurring party shall not be subject to default during the period of the extension”].) No default was taken during the relevant time period. The issue is therefore immaterial to the present demurrer. While the Court agrees that the meet and confer efforts were insufficient in that Mr. Hogge's counsel did...

Excerpt: ...s motion is granted. California Code of Civil Procedure (“CCP”) § 473 (b) provides in relevant part: CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 07/26/21 ‐ 2 ‐ “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable ne...

Excerpt: ... of leave to amend, they must appear at the hearing with any specific facts that could change the results discussed below. Background Plaintiffs own land in Lafayette (“Land”), which they acquired from John Barsell Jr. ("Barsell") in September 2005. (SAC, ¶¶1‐9.) Plaintiffs allege, on information and belief, that in 1974, as a condition of approval of a subdivision request by Barsell, Barsell agreed to a ten‐year moratorium on developin...

Excerpt: ... case shall be dismissed against Defendant Zeph Rose. Plaintiff has been designated a vexatious litigant. He filed this case after obtaining permission from the Presiding Judge. When giving Plaintiff permission to file this case, the Presiding Judge ordered Plaintiff to post a $1,000. Now, Defendant Rose seeks an order requiring Plaintiff to post an additional security in the amount of at least $75,000. Procedural Objections Plaintiff argues that...

Excerpt: ...e to file the action from among the available options. Code Civ. Proc. §395.5 (See Sea World, Inc. v. Superior Court (1970) 13 Cal.App.3d 100, 103 (discussing disjunctive nature of former constitutional provision, now enacted as statute in Code Civ. Proc. section 395.5, giving plaintiff a choice of bringing an action in any county that will satisfy one of the available venue options). There is a presumption that the county in which the plaintiff...

Excerpt: ...rt provided the correct statutory citation, along with two additional cases supporting the Court's ruling. After oral argument was complete, the Court amended its tentative ruling to add these legal authorities and granted the Defendant's motion for a protective order. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 07/12/21 ‐ 3 ‐ Plaintiff has now filed a motion for reconsideration of the Court's ruling on the p...

Excerpt: ...ial date in this case. On January 25, 2021, the Court gave notice to counsel that the trial was continued to August 30, 2021 as the department was unavailable on August 9, 2021. On June 7, 2021, Counsel for Defendant moved to continue the trial claiming that certain Defendant witnesses are scheduled to be in a trial in Butte County which is scheduled on the same date as this matter. Plaintiff opposes the motion to continue, asserting that the But...

Excerpt: ...�� which occurred before the two falls shown near the check stand in the video that Safeway produced. (See Undisputed Material Fact No. 8; Disputed Material Fact Nos. 1, 2, 9, 11; Nikolskaya Declaration; Discharge Summary from John Muir Medical Center attached as Ex. B to the N. Shahan Decl.; the video that Safeway produced; and the documents showing that Safeway did not produce all video that plaintiff requested.) Based on all the evidence the c...

Excerpt: ...oss‐Complainants”) Cross Complaint (“XC”) for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) rescission, (4) lost profits, and (5) elder abuse. Cross‐ Defendant moves for summary adjudication pursuant to Code of Civil Procedure § 437c against the causes of action for (3) rescission and (5) elder abuse on several grounds. For the following reasons, the Court grants‐in‐part and denies‐in‐pa...

Excerpt: ...as injured while he was participating in a nuisance abatement project in the City of Richmond. The owner of the property had hired plaintiff's employer to remove vehicles, boats, and sheds from the property. At the time, two public safety officers from the City of Richmond were present as well, “securing and rendering safe” the abatement project, specifically with respect to “unauthorized occupant issues.” Plaintiff was shot by a loaded a...

Excerpt: ...ackground Plaintiff Adriana Valdivia and Defendant Armando Ayala each own an undivided one‐half interest, as tenants in common, in Subject Property located at 935 Kilkenny Way in Pinole. Plaintiff alleges she was compelled to vacate the Property on May 15, 2019. Defendant has occupied the Property exclusively since Plaintiff vacated the Property. Before this action was CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE...

Excerpt: ...sta Deputy Sheriff Officer Kevin Escover responded to an automobile collision in Danville at approximately 8:09 p.m. Petitioner Michael Cho's vehicle had veered into a parked car. Petitioner admitted to drinking three glasses of wine prior to driving. According to Officer Escover, Petitioner showed objective signs of intoxication and performed poorly on the field sobriety tests. The preliminary alcohol screening (PAS; roadside breathalyzer) showe...

Excerpt: ....” (Further Opposition, filed on 5‐28‐21, p. 3, Part II‐B.) The matter now before the Court is titled as follows on the computer docket: “SPECIAL SET HEARING ON: RECONSIDERATION OF MOTION FOR SUMMARY JUDGMENT SET BY JUDGE BURCH.” It would appear that no party has a pending motion before the Court, either a motion for reconsideration or a motion for summary judgment. Rather, the parties have filed papers in response to Judge Burch's in...

Excerpt: ...nst their landlords for claimed habitability issues. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 06/14/21 ‐ 4 ‐ The landlords are a married couple, Dimas Cruz and Maria Vasquez. Upon appearing in this action, Cruz filed a cross‐complaint for indemnity and damages against his wife, Vasquez, on the theory that she was the one responsible for managing this rental property and she should have sole responsibilit...

Excerpt: ...ful foreclosure; (5) constructive eviction; (6) breach of the covenant of good faith and fair dealing; (7) violation of Bus & Prof. Code § 17200 et seq.; and (8) declaratory relief. Defendant demurs to the SAC pursuant to Code of Civil Procedure (“CCP”) § 430.10 on the grounds that Plaintiffs lack standing and fail to allege facts sufficient to state a cause of action. For the following reasons, the Demurrer is continued until August 30, 20...

Excerpt: ...based on the failure to state a cause of action and on uncertainty. The demurrer does not specify whether it is addressed to the entire complaint or to a particular cause of action as required by California Rules of Court, rule 3.1320(a). The memorandum and meet and confer letter did specify the challenged causes of action and there appears to be no prejudice to Plaintiff who addressed each challenged cause of action in his opposition. Therefore,...

Excerpt: ...led and served on or before May 13, 2021. Background Plaintiffs own land in Lafayette (“Land”), which they acquired from John Barsell Jr. ("Barsell") in September 2005. (FAC, ¶¶1‐9.) Plaintiffs allege, on information and belief, that in 1974, as a condition of approval of a subdivision request by Barsell, Barsell agreed to a ten‐year moratorium on developing the Land. (FAC, ¶10.) They allege Barsell never succeeded in subdividing the L...

Excerpt: ... 2018. Plaintiffs include as defendants the seller, Smurthwaite; Smurthwaite's real estate broker; and the escrow company, Fidelity. Smurthwaite cross‐complains against Fidelity and others. His causes of action include indemnity against all cross‐defendants, as well as specific claims against Fidelity alone: breach of contract, breach of fiduciary duty, and, in his Ninth Cause of Action, Negligence. The latter three causes of action are all b...

Excerpt: ...filing of a cross‐complaint. Plaintiff has requested and the Court takes judicial notice of the Registry of Actions in this matter, the Legislative Committee Commentary to California Assembly Bill codified by law as Civil Code 1952.3. Cal. Evid. Code §§ 452, 453. A cross‐complaint is only prohibited so long as the tenant remains in possession of the premises. See Gonzales v. Gem Properties (1974) 37 Cal.App.3d 1029, 1034 Code Civ. Proc., §...

Excerpt: ...sponse using Judicial Counsel form EA‐120. Both forms are in the format of a declaration under penalty of perjury by the party. The plain language of the Elder Abuse Act authorizes a trial court to issue a restraining order against any individual who has engaged in abusive conduct, as defined by statute, toward a person age 65 or older or a “dependent adult.” On the face of his Request, Petitioner acknowledges that he is 50 years old. “De...

Excerpt: ... Cucho struck the bus head‐on on San Pablo Road, injuring Ms. Ifraz. She sued the driver Mr. Cucho and defendant Mr. Pacahualo who was the registered owner of the vehicle. (References in this tentative ruling to "Mr. Cucho's truck" or "Mr. Cucho's vehicle" are for convenience and refer only to the vehicle he was driving, recognizing the vehicle was apparently titled to Mr. Cucho's father.) Ms. Ifraz added Scavengers as a defendant by a Doe amen...

Excerpt: ... and on a showing that “there is a reasonable possibility that the moving defendant will obtain judgment in the action”. (Code of Civil Procedure §1030(a).) If the defendant meets both criteria, the court “shall order that the plaintiff file the undertaking in an amount specified in the court's order as security for costs and attorney's fees.” (Code of Civil Procedure §1030(c).) The Court's finding on whether the defendant has a reasona...

Excerpt: ...0% tenancy‐in‐common interest in the subject real property. Defendants Gershon Luria and Irit Sanger, husband and wife, own the remaining undivided 50% tenancy‐in‐common interest in the property. Disputes have arisen as to the management of the Property and Plaintiffs sought to partition and sell the property. On November 28, 2017, the Court (Honorable Judge Edward Weil presiding) granted Plaintiffs' motion for summary adjudication for pa...

Excerpt: ...overruled. Paystack shall file and serve its Answer on or before April 5, 2021. The complaint alleges that Paystack hired Pareto on October 1, 2019 to provide negotiation coaching services because it was in discussions to sell itself to Stripe and wanted to obtain expert advice. (Complaint, ¶ 17, 18, 19.) Under the contract, Paystack was to pay Pareto $5,000 per month for its coaching services, plus 1% of the sales price if a sales contract was ...

Excerpt: ...cy and therefore the demurrer to the complaint is sustained with leave to amend. (This is the type of issue that counsel should have solved during the meet and confer process.) Defendant's other arguments that the complaint is uncertain are unpersuasive. Defendant demurs to the claim for fraudulent concealment on several different grounds. Defendant argues the fraudulent concealment claims fails because (1) it does not contain the level of detail...

Excerpt: ...een effectuated. On April 8, 2019, Prior Counsel for Plaintiff advised the court that a motion for publication for service was being prepared. The hearing was continued to August 20, 2019 and the court set it for an order to show cause why the case should not be dismissed for failure to serve the defendant and prosecute the case. On August 20, 2019, Prior Counsel advised the court that the “matter was out for service and Prior Counsel was in ta...

Excerpt: ...a court appointed referee sold the property. The Nelsons bought the property outright and John II received his share of the proceeds. Although the appeal was denied in 2020, final judgment has not yet been rendered. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 03/01/21 ‐ 9 ‐ In the instant action (“2019 Action”), John Riley et al v. Shirley Nelson et al; John Riley (Father of John Riley II in the 2017 Acti...

Excerpt: ...led a number of additional documents with the court. On February 8 the Court received from Plaintiff two similar documents entitled: “Summary of Hearing 1‐11‐ 2021, email filed to Dept. 36 before hearing 1.11.21”; and “Summary of Hearing 2‐1‐2021, emails filed to Dept. 36 before hearing 2.1.21” This court notes that these documents do not accurately reflect the proceedings before the court. Plaintiff has filed multiple “proposed...

Excerpt: ...) – sustained, with leave to amend, but demurrers for uncertainty overruled. Factual Background Plaintiff Liberty Business Advisors of San Francisco, Inc. ("Liberty") is a licensed California real estate broker. It alleges the company was engaged by defendant Mr. Nguyen to sell his business pursuant to a written Representation Agreement dated June 20, 2019. Plaintiff alleges five causes of action in its complaint for breach of contract, breach ...

Excerpt: ... sessions was recommended. The second deep cleaning resulted in bleeding that lasted for several hours and at the third cleaning, Plaintiff refused service and requested a different dentist. In July 2019, Defendant referred Plaintiff to UCSF because, she alleges, “Western Dental realized that the treatment they had recommended was not the right treatment” for her symptoms. Plaintiff therefore seeks damages for the medical (dental) malpractice...

Excerpt: ...der to show cause (“OSC”) on August 19, 2020. The OSC concerned defendant's unexcused failure to appear at the further case management conference on August 18, 2020. The OSC directed defendant to appear at a CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36 HEARING DATE: 02/22/21 ‐ 9 ‐ hearing on September 22, 2020, and to file a written response to the OSC by September 15, 2020, five court days before the hearing. On Septem...

Excerpt: ...(See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Introduction Plaintiff, Tarrar Enterprises, sues its insurer, Associated Indemnity Corp. (“AIC”), for property damage and other losses caused by the Covid‐19 epidemic and/or resulting shelter in place orders. AIC demurs to the complaint, arguing that the pandemic and the orders have not caused “direct physical loss or physical damage,” which is a prerequisite to coverage. Plaintiff arg...

Excerpt: ...edural Grounds Code of Civil Procedure section 437c(f)(2) provides, in relevant part, “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Emphasis added.) The Motion here purports to be made in the alternative, but requests both summary adjudication and summary judgment as to separate pleadings. Specifica...

Excerpt: ...Photocopies of Exhibits $ 170.80 Other (“313 hours of my time @ $300. per hour”) $ 93,900.00 Plaintiff has filed a Motion to Strike all of the Costs and asked the Court to take Judicial Notice of Exhibits “A” through “G” (court filings in the Northern District of California) attached to the Plaintiff's Request for Judicial Notice in Support of Plaintiff's Motion to Strike Memorandum of Costs, filed with the Court on September 18, 2020...

Excerpt: ...Wilson (collectively “Defendants”) in December 2018. Defendants jointly initiated fee arbitration proceedings with the Bar Association of San Francisco (“BASF”) to dispute Plaintiff's fee lien totaling approximately $18,000. In June 2019, after multiple filings by Defendants (who were the “Plaintiffs” in the BASF proceeding), Defendant (Plaintiff – BASF) Wilson filed a notice that he had “never been a plaintiff” in the arbitrati...

Excerpt: ...1. Plaintiffs Shachar Hadar and Ester Koyler are husband and wife and own an undivided 50% tenancy‐in‐common interest in the subject real property. Defendants Gershon Luria and Irit Sanger, husband and wife, (hereafter “Defendants” or “Lurias”) own the remaining undivided 50% tenancy‐in‐common interest in the property. Disputes have arisen as to the management of the Property and Plaintiffs wish to partition and sell the property....

Excerpt: ... 2019, the BASF dismissed Defendants and ruled the Plaintiff could pursue state‐court breach of contract litigation against Defendants. Motion for Sanctions Plaintiff has moved for sanctions as to Defendant McCormack as well as dismissed Defendant Wilson pursuant to the Code of Civil Procedure section 128.5. Relief under section 128.5 is available as a remedy for bad faith actions or tactics that are frivolous or solely intended to cause delay....

Excerpt: ...n (another individual with the name “Ashraf Safi”) who sold Plaintiff her car which is the subject of the Complaint. Plaintiff has filed a response, attaching exhibits which include: 1) A fictional Business Name search on SF Auto Sales, which evidences the owner as “Safi Ashraf.” 2) An Occupational License Status Information (OLSI) search with the Department of Motor Vehicles which evidenced the owner of SF Auto Sales as “Safi Mohammad ...

Excerpt: ...he partition action, a court appointed referee sold the property. The Nelsons bought the property outright and John II received his share of the proceeds. The appeal was denied in 2020. In the instant action, John Riley et al v. Shirley Nelson et al; John Riley (son of Plaintiff in the First Action referenced above), and his siblings, Trisha and Danielle Riley (the “Rileys”) have CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 36...

Excerpt: ... 3.301(d)(9). Plaintiff filed his complaint on December 17, 2019 requesting declaratory and injunctive relief and specifically alleging that the Defendant Lake Alhambra Property Owners Association (hereafter “LAPOS”) had failed to comply with various rules and statutes governing its activities. On July 2, 2020, Plaintiff filed his first motion to compel the Defendants to provide discovery. The court (Honorable Charles Burch presiding) noted t...