Excerpt: ...For the following reasons, the Defendant's Motion to Expunge Lis Pendens is granted. At the outset, the Court notes that the Plaintiff's Request for Judicial Notice in support of its Opposition to Defendant's Motion to Expunge Lis Pendens as well as the Declarations of Galen Gentry and Kristin Andrade are not tabbed, in violation of Cal. Rules of Court, rule 3.1110, subd. (f). See also Local Rule 3.42, subd. (3). Plaintiff is directed to tab her ...

Excerpt: ...quirements for taking a lump‐sum rollover of her 30‐year accrued retirement as an employee of the Alameda County Superior Court (Alameda Court). She alleges that she was told the process for calculating her final retirement benefit would take months, that in the meantime she could take monthly benefits, and that once the calculations were done she could take a lump‐sum rollover. Her later request for rollover was denied based on her initial...

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 11/15/18 ‐ 4 ‐ The Court will send out a separate e‐filing 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 notes that in the stipulation and order filed on October 19, 2018, the parties stipulated to consolidate three related derivative actions. As part of this stipulati...

Excerpt: ...r. Sirott and Dr. Patel, who were the only two managers of both Taylor and CRTC, properly exercised their managerial responsibilities of both CRTC and Taylor with respect to the EBMOH lease proposal, another entity in which Patel was part owner. The resolution of whether Dr. Patel violated the non‐competition provision of the CRTC Operating Agreement, which is at issue in the arbitration, may be dispositive of the claims Patel has made against ...

Excerpt: ...ted. The court received Defendant's supplemental papers. Plaintiffs filed their supplemental papers 5 days late. The court has considered all papers. I. THE ARBITRATION AGREEMENT IN THE RELEVANT CC&R'S IS SUBJECT TO THE FEDERAL ARBITRATION ACT The Federal Arbitration Act (“FAA”), 9 U.S.C. Section 2, provides, in part, that a “written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controver...

Excerpt: ...ATE: 11/01/18 ‐ 8 ‐ Background This multi‐plaintiff construction defect case concerns several homes in Oakley built by Meritage. Plaintiffs own one of them: 124 Copper Knoll Way. Their sellers, John and Denise Aragon, brought a construction defect case against Meritage in 2010. (Separate Statement of Undisputed Material Facts [“SSMF”] No. 1.) While the Aragons do not appear to have signed the relevant settlement agreement, they dismisse...

Excerpt: ...leave to amend. Teichert was aware that “weld discontinuities” might have constituted a breach of the warranty of fitness in March 2018, but did not bring its motion for leave to amend until September 2018. (Hilberg Dec., Exh. 2 [response to form interrogatory 314.2].) However, the Court also finds that cross‐defendant Northwest Pipe Company has not demonstrated substantial prejudice. (See, Mesler v. Bragg Management Co. (1985) 39 Cal.3d 29...

Excerpt: ... of action in the Cross‐Complaint in the context of the appropriate jury instructions to be submitted to the jury. The court did not, as Plaintiffs contend, rule that Defendants “could have been entitled to attorney's fees” on those causes of action. Instead, the court suggested and counsel agreed that those causes of action and any corresponding claim for attorney's fees or other expenses should be severed and argued to the court after any...

Excerpt: ...efense – sustained, without leave to amend. Second affirmative defense – sustained, without leave to amend. Third affirmative defense – sustained, with one opportunity to amend. Sixth affirmative defense – overruled. Seventh affirmative defense – sustained, with one opportunity to amend. Eighth affirmative defense – overruled. Ninth affirmative defense – overruled. Tenth affirmative defense – sustained, with one opportunity to ame...

Excerpt: ...ten” or “Cross‐Complainant”). The SACC pleads causes of action for (1) equitable indemnity, (2) total indemnity, (3) contribution, and (4) declaratory relief. Cross‐Defendant demurs pursuant to Civil Procedure § 430.10(e) on the grounds that CrossComplainant's equitable indemnity claim is precluded by the “hold harmless” provision of the parties' contract and as a consequence its claims for total indemnity and declaratory relief al...

Excerpt: ...garding the form or content of the opposing party's pleading. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. For purposes of a demurrer, all properly pleaded facts are admitted as true. Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good again...

Excerpt: ...iary duty is sustained with leave to amend. Cross‐Complainant, Shannon B. Jones Law Group, Inc. (“SBJLG”) alleges Sandra VellaAndrade (“SVA”) was the Controller of SBJLG from approximately August 2010 through January 2016. Her responsibilities included handling all financial matters for the law group. SBJLG alleges she had a fiduciary duty of loyalty. She breached the duty by approving alleged overtime work by Olson without disclosing t...

Excerpt: ...th Thomas Truston to purchase a floating home, currently situated at 7000 Orwood Road in Brentwood. Plaintiffs allege in the proposed amended complaint, which the court has granted in the accompanying motion, the subject floating home was brought to Bethel Island and Cruiser Haven Marina in 2008. On information and belief, Plaintiffs believe that Defendants have not dredged Orwood Slough and at present the slough is too shallow in several places ...

Excerpt: ...t Lemuel Sirvonn Wilson, Jr., and owned by defendant Savee Pralourng, struck her car. Three of Ms. Reyes' children were passengers and two died at the scene. The third – plaintiff Luciano Reyes, on whose behalf Ms. Reyes brings the action as guardian ad litem – survived. Besides the negligence‐based claims against the driver and owner of the other vehicle, plaintiffs also bring claims for dangerous conditions of public property against seve...

Excerpt: ...lly to vacate the judgment, demonstrating that the Hawaii court had never properly obtained jurisdiction over him because of defects in the manner in which the HOA supposedly served Rad with process in the Hawaii action. Rad now moves for attorney fees incurred in winning his motion to vacate the judgment. The motion is denied. Rad identifies no statutory or contractual provision that entitles him to recover attorney fees for this victory. Rad re...

Excerpt: ...ied. This motion was previously before the Court on October 5. In its tentative ruling the Court continued the motion to this date. The District's original motion simply ignored the express allegation in the second amended complaint that plaintiff had exhausted administrative remedies by filing an administrative claim form, attached to the SAC as an exhibit. Plaintiff pointed this out in her opposition. Only in its reply brief – which is to say...

Excerpt: ... accordingly cross‐complained against ADP. ADP demurs to the cross complaint. The demurrer is sustained in part without leave to amend, and overruled in part. Specifically, the demurrer is sustained without leave as to all causes of action on the part of the individual cross‐complainants, and Los Montañas's second and third causes of action (warranty and implied indemnity). It is overruled as to Los Montañas's first, fourth, and fifth cause...

Excerpt: ...cussion. Plaintiff's opposition brief mostly addresses these issues as though no prior demurrer or ruling had occurred. The Court granted leave to amend CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 21 ‐ on most counts, but its legal analysis included specific comments on what plaintiff would have to allege to patch up the deficiencies in the FAC. At this juncture, then, the opening question for the ...

Excerpt: ...�� from using Calle Arroyo road in Diablo. The Court notes that this motion was filed before the First Amended Complaint was filed. However, the parties are in agreement that this motion may apply to the FAC even though the documents were filed in the reverse order. The Court also notes with disapproval that the District has not submitted a declaration showing compliance with the meet and confer requirement for a motion for judgment on the pleadi...

Excerpt: ...defendant's reply brief. Defendant filed this motion with no declaration of compliance with § 439. As a reading of the briefs make clear, the case plainly called for meet‐and‐confer. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 12 ‐ Defendant's motion rests on its argument that plaintiff's second amended complaint must be dismissed because she does not allege that she exhausted administrative r...

Excerpt: ...iff, Jose Luis Ramirez‐Ceniceros, sues in two capacities: as an insured (as to his claim for loss of cash), and as the assignee of an insured (as to his claim for personal injury inflicted by his coinsured, Flores). Plaintiff and defendant Jose Flores, aka Agustin Chavez, were lessees of a house located at 2813 Carob Street in Antioch. Their agreement with their landlord required them to have renters' insurance. On October 25, 2014 they went to...

Excerpt: ...arded to him in the marital dissolution judgment. There is a complication in the case, however, which may present an obstacle to treating this as an ordinary fraud‐tort case. The transaction of which plaintiff complains was not merely a private matter occurring between the parties outside of court. Rather, the parties submitted a formal stipulation in 2016 in their family‐law case (in San Joaquin Superior Court), modifying the 2006 divorce ju...

Excerpt: ... out of the same transaction or series of transactions as the arbitration, and (2) there is a possibility of conflicting rulings on common issues of law or fact. See CCP Section 1281.2(c). Under California law, the court has significant discretion where (1) pending litigation between the parties involves overlapping non‐arbitrable issues, or (2) pending litigation between either party and a third party involves issues of law or fact common to t...

Excerpt: ...fton Huffmaster, Falin Minetto and Daniel Minetto, Carla Cayson, Amani Hoopes, Heather and Hector Ochoa, and Marc and Stephanie Wong (collectively “Proposed Plaintiffs”). Plaintiffs move pursuant to Code of Civil Procedure § 473 and 576, and Rule 3.1324 of the California Rules of Court on the grounds that the First Amended Complaint “is necessary and proper, will not prejudice any defendant, is timely pursuant to prelitigation requirements...

Excerpt: ...o amend the First Amended Complaint. Accordingly, the Court will not grant leave to amend, unless plaintiff so requests and makes the appropriate showing needed. The basis for this ruling is as follows. A. The First Cause of Action. The Nature of Plaintiff's Theory. The First Cause of Action is labeled as one for breach of the implied covenant of good faith and fair dealing. However, plaintiff appears to be relying on both the breach of an expres...