Excerpt: ...tion to deny the motion. The Court sustained defendant Wells Fargo's demurrer to the original complaint in June 2017, giving leave to file a first amended complaint within 30 days. That deadline for amendment was extended by agreement or court order, so as to give the parties time to discuss settlement. The last extension of time, however, ran out in November 2017. There is no evident excuse for plaintiffs' failure to file their amended complaint...

Excerpt: ...arise directly under the dual‐tracking provisions of the Homeowners' Bill of Rights (HBOR). Some or all of the other causes of action may at least be affected by those provisions, in that they appear to appeal to the asserted illegality of the alleged dual tracking here as part of the bases for these other claims. For that reason, the Court draws the attention of the parties to a consideration apparently overlooked by both sides: the dual‐tra...

Excerpt: ...) which is at a right angle to Walnut Boulevard in Walnut Creek. The Roadway is 30 feet wide and terminates in a 50‐foot‐wide cul‐de‐sac. The Coney property is south of the Dossa property and is closer to the cul‐de‐sac. The Dossa property is to the north of the Coney property and is closer to Walnut Boulevard. The core, but not the entirety, of the parties' dispute is whether the Coneys are permitted to park vehicles along the edge o...

Excerpt: ...udgment on the pleadings and motion for summary judgment. B. Declaratory Relief. The controversy presented to the Court for decision concerns Article VII of the Covenants, Conditions and Restrictions (“CC&Rs”) governing plaintiff's condominium. (Defendant's Supplemental Exhibit 16.) Specifically, the dispute concerns assessments levied by defendant for common area expenses. 1. Background. Plaintiff's CC&Rs define the “Project” as being 52...

Excerpt: ...as an arbitration provision in the contracts between itself and its members, including plaintiff. This Court (Judge Spanos) denied the petition to compel arbitration, holding that the purported arbitration provision was not part of the parties' contractual relationship. The Court of Appeal affirmed in an unpublished opinion. Having thus defeated defendant's attempt to force this dispute into arbitration, plaintiff now seeks an award of the attorn...

Excerpt: ...y filed an answer to the complaint. Defendants' motion is based on the argument that the complaint does not state any cause of action. Plaintiff Dean Kim has sued Defendants James Totah and Giovanni Cruz for negligence and fraud. “‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resu...

Excerpt: ...ther plaintiff is suing as the representative of her deceased mother's estate, or on her own behalf, or both. The County argues that the Complaint is demurrable because plaintiff was required to comply with the Government Claims Act by filing an administrative claim before suing, and has not done so. As the County notes, however, the Complaint allege that plaintiff has complied with a claims procedure. If that is not true, demurrer is not the way...

Excerpt: ... alternatively adjudication on April 28, 2017. As part of their motion, Defendants submitted two surveys that showed where the relevant easements were located. (See Humann Decl. and Chapman Decl., filed April 28, 2017.) Plaintiff filed his opposition to this motion on July 13, 2017. Plaintiff did not include a survey of the relevant easements, and instead explained that, “I have not yet obtained a survey as I was waiting to obtain the basic inf...

Excerpt: ...ted” between the parties. (Cmplt, paragraph 18) Defendant Orinda Academy contends that Plaintiff's employment was “at will,” since the employee handbook was changed in August 2015 and all employees so advised of the change to “at will” employment by the new employee handbook. (Cmplt, paragraph 10) An employee CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/15/18 ‐ 11 ‐ claiming employment is not “a...

Excerpt: ...2) violation of Civil Code § 2923.6: dual tracking; (3) wrongful foreclosure; (4) promissory estoppel; (5) promissory fraud; (6) intentional misrepresentation; (7) negligent misrepresentation; (8) negligence & negligence per se; (9) violations of Civil Code § 1788 et seq.: The Rosenthal Fair Debt Collection Practices Act; and (10) violations of Business & Professions Code § 17200, et seq.: Fraudulent, Unlawful, and Unfair Business Practices. D...

Excerpt: ...o a party's motion). CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/15/18 ‐ 2 ‐ Here, moving party fails to identify any new fact, law, or circumstance that would permit the Court to reconsider its prior orders. As a result, the Court is without jurisdiction to hear the Motion, and it is therefore denied. ...

Excerpt: ...ntion improperly includes a claim for punitive damages. Defendants argue that leaving the scene of an accident is not malicious under Civil Code Section 3294. However, this argument must be brought by way of a motion. The Rules of Civil Procedure do not allow an attack on a part of a cause of action by demurrer or by an opposition to a motion for leave to file a pleading, which is conceded. See Daniels v. Select Portfolio Servicing, Inc. (2016) 2...

Excerpt: ...ts respective issues. There is no reason why discovery cannot proceed in this civil case, as the two actions are not dependent on each other. (See Scott v. Industrial Accident Commission (1956) 46 Cal.2d 76, 83.) Defendant's cited authority (Contractors State License Board v. Superior Court (1960) 187 Cal.App.2d 557, 562‐563) is inapplicable since it was to prevent the administrative board from taking further action in a disciplinary proceeding...

Excerpt: ...g Handermann to serve the Asbuns by publication under Code of Civil Procedure § 415.50 in the Florida Times‐Union. The Times‐Union published notices related to this case on October 3, 10, 17, and 24, 2016. On December 5, 2016, default against the Asbuns was entered. On July 17, 2017, the Court entered a default judgment against the Asbuns. This motion followed on November 6, 2017. The basis for the motion is Code of Civil Procedure § 473.5(...

Excerpt: ... disability discrimination after he slipped and fell on an outdoor sports court during recess on December 17, 2014. Following the injury, plaintiff requested and was denied various accommodations. (See Complaint, ¶ 26.) Defendant now moves to strike paragraph 53 of the complaint and paragraph 5 of the Prayer, which seek punitive damages. Punitive damages are recoverable in actions for discrimination. (See Commodore Home Systems, Inc. v. Superior...

Excerpt: ...policies and practices. (Complaint, ¶¶ 1, 2.) Prior complaints led to settlements between the District and other parties in 2009 and 2010. (¶ 3.) Plaintiff continued to receive complaints even after those settlements, so it presented the District with a request for a structured settlement in 2013. (¶ 4.) After more than a year of negotiations, the parties entered into an Interim Settlement Agreement in March 2015. Under the terms of the Agree...

Excerpt: ...negligence is denied. The motion for summary adjudication as to the second cause of action for premises liability is granted. I. Background Plaintiff Michael Thompson, represented in this case by his guardian ad litem Samarra Taylor, fell from a GameTime Play System playground structure at the Gehringer Elementary School. At the time, he was almost seven years old. The following facts are taken from those undisputed among the parties. The play ar...

Excerpt: ... see also Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271.) CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 02/02/18 ‐ 6 ‐ Here, Plaintiff has alleged two causes of action – Cancellation of Deed, and Quiet Title. Plaintiff transferred the subject property in 2014 to his then‐wife, Defendant Xueyan Cui, as her sole property. Cui sold the property in March of 2016 to the Irwin and Betty K...

Excerpt: ... (“IIED”), 8) negligent infliction of emotional distress (“NIED”), and 9) injunctive relief. Defendant Anna Shane asserts that each of Plaintiffs' causes of action are not actionable because they relate to communications subject to the anti‐SLAPP statute. The motion is granted as to the fifth cause of action (wrongful use of administrative proceedings), and as to all allegations concerning Defendant's alleged communications with the Dis...

Excerpt: ...ling order in the near future. The parties, as well as support staff involved in e‐filing, are urged to review that order carefully and abide by its terms. The Court considers that to rule on the petition to compel arbitration (the “Petition”) brought by defendant TWC Dealer Group, Inc. (“TWC”), it must first understand the precise nature of the claims brought and relief requested by plaintiff Shannon Hamrick (“Hamrick”). Therefore,...

Excerpt: ...y an order of the Court. Three, plaintiff has failed to file a proof of service showing that defendants were given notice of this hearing. Four, even if the foregoing were not true, the case is more than five years old and was never reduced to judgment. The Court would dismiss it under the five year statute. ...

Excerpt: ...e claims alleged against Defendants are real property claims. The Court's ruling on the real property claim issue is included in this ruling for completeness. The Court continued the hearing to allow supplemental briefing on whether or not Plaintiffs have met their burden by showing its claims have probable validity. (See Code of Civil Procedure § 405.30, 405.32.) Code of Civil Procedure § 405.30 allows a property owner to file a motion to remo...

Excerpt: ... prevailed based on her statute of limitations defense. A judgment, representing Redig's fees and costs, was entered on that cause of action. However, it is important to remember here the procedural history of the case. The Kizors had sued Redig on both fraud and breach of contract theories. The breach of contract theory had been removed from the case on demurrer, well before the fraud cause of action was tried. Following the judgment on the frau...

Excerpt: ...ice, and on any terms as may be proper, allow a party to amend any pleading… ” (CCP § 473(a)(1).) While judicial policy favors resolution of all disputed matters between the parties, the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 02/01/18 ‐ 2 ‐ court finds the public nuisance cause of action fails to state a cause of action as it is timebarred. “Ordinarily, the judge will not consider the validity of ...

Excerpt: ...d Omissions policy to insure itself for any liability arising out of the performance of processing and facilitating payroll taxes for its clients. (¶ 10.) Defendant Scottsdale issued Affordable a “Business and Management Indemnity Policy.” (¶ 12.) It issued a renewal policy on identical terms a year later, but the following year issued another “renewal” with a broader Endorsement 8 set of exclusions. (¶ 12‐15.) On May 10, 2013, the A...