Excerpt: ...25 Kingsley Drive in Pittsburg. Plaintiffs allege that throughout the tenancy, there were several substantial habitability defects in the subject premises, including a rodent infestation and defective plumbing. Defendants Terrance Thompson, Donna Thompson, and Antoinette Thompson owned, controlled and/or managed the unit. Plaintiffs allege a number of causes of action, including breach of the implied warranty of habitability, breach of quiet enjo...

Excerpt: ... Civil Procedure § 877.6 and the factors set forth in Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488. Background Plaintiff was approximately four years old when she suffered second and third degree burns entering a bathtub with scalding hot water in her apartment. Defendant Ramona Apartment Investors, LLC ("Owner") is the owner of the apartment building; defendant The Grupe Company dba Grupe Management Company ("Manager"...

Excerpt: ...go Allegations Against Him. The cases cited by plaintiffs do not support the proposition that plaintiffs can amend a judgment against one defendant to add an existing co‐defendant who would otherwise have a right to trial. (See, e.g., NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 775 [“[n]either Finelli nor Hurt, the sole shareholder and chief executive officer of Ph, was named as a party or served in his individual capacity”]; Ja...

Excerpt: ...d on the Court's ruling on the demurrers, the motion to strike is denied as moot. Background and Plaintiff's Claims Plaintiff Francis Clay was a tenant at a property owned or under the control of the Richmond Housing Authority ("RHA"). In December 2018, RHA began eviction proceedings against Mr. Clay for non‐payment of rent in Richmond Housing Authority v. Francis Clay, Case No. RS19‐ 0017 (the "Unlawful Detainer Action"). (RJN Exh. 1.) The p...

Excerpt: ...portation services in the coastal and harbor San Francisco Bay and the Pacific Northwest Puget Sound region. This is a class action suit. Plaintiffs seek to represent a proposed class composed of and defined as: All employees who worked one or more shifts as a boat captain, junior captain, or crew member on a sea bearing vessel for Starlight Marine Services, Inc. in the State of California since (4) years prior to the filing of this action to the...

Excerpt: ...forth, the motion to compel arbitration by the Hassen Defendants joined in by the Ogando Defendants is granted, the clause of the third paragraph of the arbitration agreement stating "AND THEIR RIGHT TO CONDUCT DISCOVERY (EXCEPT AS THE ARBITRATOR MAY PERMIT)" is severed and stricken, and this action is stayed pending completion of the arbitration proceedings. Factual Background Plaintiff Larry Stidham, through his attorney in fact Mary Stidham‐...

Excerpt: ...09/21 ‐ 2 ‐ Background Defendant / cross‐complainant, Jennifer "Jenny" Ying Lin Lu, and plaintiff / crossdefendant, Michael Murphy, were engaged to be married. (FACC, ¶1.) In September 2017, parties were ending their engagement and accordingly, entered into an agreement. (Ibid.) The agreement is three pages long and is attached as Exhibit A to Murphy's verified complaint and as Exhibit 1 to Lu's original cross‐complaint (Exhibits C and B...

Excerpt: ...ust enrichment causes of action based on the failure to state facts sufficient to constitute a cause of action. (Code of Civil Procedure § 430.10(e).) Defendant demurs to the breach of contract claim for the failure to allege if the contract is oral or written (Code of Civil Procedure § 430.10(g) and for uncertainty (Code of Civil Procedure § 430.10(f)). Consumer Legal Remedies Act (cause of action three) Defendant argues that the complaint do...

Excerpt: ...o request leave to amend she should appear at the hearing prepared to discuss in detail how she proposes to amend and how the proposed amendment will solve the problems. Background Plaintiff is the mother of the decedent, Steven Armstrong. She files suit for wrongful death against the CHP and others, following Armstrong's death while walking along Highway 4. The basis for the claim against the CHP is that its officers twice encountered Armstrong ...

Excerpt: ...ross‐defendant Johnson commenced suit against defendant and crosscomplainant John Kenny seeking partition of a condominium unit located in Concord (the "Property") and an accounting. Kenny answered and cross‐complained against Johnson, asserting claims for quiet title and adverse possession of the Property. On June 15, 2020, the Court held a case management conference at which counsel for both parties appeared. (6/15/2020 Min.) Trial was set ...

Excerpt: ...tiff's injury. Defendant's evidence shows that Behymer treated Plaintiff on May 10, July 31 and August 9, 2019. (Behymer decl. ¶¶7‐9.) During the May 10 visit, Behymer did not see any signs that Plaintiff was experiencing pain and Plaintiff told Behymer that he felt relief after the visit. (Behymer decl. ¶7.) Defendant's evidence also shows that during the first visit, Plaintiff had been complaining of neck pain seven years. (Behymer decl. �...

Excerpt: ...ffs Michelle Barker and Stuart Barker are the owners of real property located at 59A Saddle Road in Walnut Creek. Defendants James Willson and Monique Willson are the owners of real property located at 59 Saddle Road. The Barker Property and Willson Property CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 09/03/21 ‐ 7 ‐ share a driveway and property line at the Willson Property's southern border. There were two e...

Excerpt: ... Gutierrez action, Dennis Gutierrez v. Homegoods, Inc., et al, San Bernardino County Superior Court, Case No. CIV‐DS‐2017556, is finally resolved (by judgment, settlement, or otherwise), or until lifted by court order. The present order is expressly made without prejudice to any intervention / coordination motion / petition that plaintiff may bring in the Gutierrez case. The basis for this ruling is as follows. Background In this PAGA case, p...

Excerpt: ...uction; (7) negligent design; (8) negligent property inspection; (9) breach of implied warranty; (10) violation of civil code § 2079; and (11) professional negligence. Only the eighth cause of action is alleged against Defendant FDRW. Defendant demurs to Plaintiff's cause of action for negligent property inspection pursuant to Code of Civil Procedure (“CCP”) § 430.10(e) on the grounds that FDRW did not owe Plaintiff a duty. For the followin...

Excerpt: ...o the requirements of Corporations Code § 17709.02. This section also provides, "Any member who does not meet these requirements may nevertheless be allowed in the discretion of the court to maintain the action on a preliminary showing to and determination by the court, by motion and after a hearing at which the court shall consider any evidence, by affidavit or testimony,” (Corp. Code § 17709.02.) Plaintiffs attempted to make the showing in ...

Excerpt: ...e recovery of money or damages is demanded, the amount demanded shall be stated.” “[T]he specific dollar amount is necessary only when a default judgment is to be entered. The purpose of such a requirement is to ensure that the defendant is sufficiently aware of the consequences of not answering the complaint. [Citation.] However, ‘in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint...

Excerpt: ...eeding must be completed and the award rendered.” (Bosworth v. Whitmore (2006) 135 Cal.App.4th 536, 550.) Plaintiffs raise two threshold issues. First, they assert that defendant must move to lift the stay before it can file the motion. Section 1283.8 allows the time for the award to be fixed “within such time as the court orders on petition of a party to the arbitration.” This does not expressly require that the stay be lifted in order to ...

Excerpt: ...ning") at its Martinez facility. (Proposed FAC ¶¶ 11, 12.) They filed this action on behalf of themselves and as proposed class representatives alleging violations of the IWC Wage Order No. 1‐2001, the California Labor Code, and the Unfair Competition Law, Business & Professions Code § 17200 ("UCL"). They are also the plaintiffs in a related action previously filed in this Court against another refining company, Equilon Enterprises LLC. That...

Excerpt: ...portions of Plaintiff's First Amended Complaint are stricken: paragraph (f), page 15, ll. 14‐17 ("Punitive damages for Bay Area Property Services/Two Worlds Pleasant Hill Gregory Lane Owners' Association's breach of fiduciary duty, and failure to provide proper care, upkeep, replacement, and improvement, according to proof"). Factual Background The FAC alleges that Robert J. Mann, now deceased, lived in a condominium unit managed by the Propert...

Excerpt: ...). For the reasons set forth, the motions to compel arbitration are granted, and the action shall be stayed pending completion of the arbitration proceedings. Background The five Plaintiffs are former employees of AAA NCNU. They allege ten causes of action for various forms of discrimination, harassment, retaliation, and wrongful termination, among other claims. They also allege a claim against the Company and Defendant O'Dell for intentional inf...

Excerpt: ...e of action for fraud. If plaintiff contests this ruling, he should be prepared to identify such facts at oral argument. Background Plaintiff, Eid Othman, brings suit against GM and several Doe defendants, alleging he purchased a new 2017 Cadillac Escalade ESV on or about November 25, 2018 for personal, family, and/or household purposes pursuant to a contract, purportedly attached to the FAC. (FAC, ¶5.) While there are no exhibits attached, the ...

Excerpt: ...ty and the failure to state facts sufficient to constitute a cause of action: (1) FEHA age discrimination, (4) breach of oral employment contract, (5) intentional misrepresentation, (6) negligent misrepresentation, (7) concealment, (8) breach of fiduciary duty, (9) unjust enrichment and (11) breach of written contract: shareholders' agreement. Uncertainty CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 09/01/21 ‐ 5...

Excerpt: ...(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. “An ac...

Excerpt: ... now seeks summary judgment that Plaintiff is entitled to a partition. Although the Court normally decides these issues on a motion for an interlocutory judgment, which allows the Court to decide contested issues of fact, summary judgment can be used to obtain an interlocutory judgment in a partition action in appropriate cases. (See, e.g. LEG Investments v. Boxler (2010) 183 Cal.App.4th 484.) “First, an interlocutory judgment in a partition ac...

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: ...nse reimbursements, unlawful deductions, waiting time penalties, and non‐ compliant wage statements. It also includes PAGA allegations, which were added in the First Amended Complaint, filed December 12, 2019, based on a notice provided to the LWDA on September 16, 2019. A Second Amended Complaint was filed on March 22, 2021. The settlement would create a gross settlement fund of $950,000. The class representative payment to plaintiff would be ...

Excerpt: ...(3) failure to pay overtime wages; (4) failure to pay minimum wages; (5) failure to pay all wages due to discharged and quitting employees; (6) failure to maintain required records; (7) failure to indemnify employees for necessary expenditures CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 08/26/21 ‐ 10 ‐ incurred in discharge of duties; (8) failure to indemnify employees for necessary expenditures incurred in d...

Excerpt: ...�� 5 ‐ misconduct or punitive damages and (2) because Defendant admitted to negligence, Plaintiff has elected his remedy in this case. These two issues appear to be improper issues for summary adjudication as they address issues in this case rather than a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code of Civil Procedure section 437c(f).) The separate statement of material facts lists five issues, which ...

Excerpt: ... requested supplemental information and continued the hearing. After that hearing, on February 18, 2021, the Court granted preliminary approval. A. Background and Settlement Terms The original complaint was filed May 3, 2019. It is a class action complaint alleging failure to pay wages and/or overtime, failure to provide meal periods and rest breaks, failure to provide appropriate wage statements and failure to reimburse necessary business expens...

Excerpt: ... the motion to strike the prayer for relief for punitive damages is denied. Standards Governing Motion to Strike The Court "may" strike allegations that are “irrelevant, false or improper matter” or any portion of a pleading "not drawn . . . in conformity with the laws of this state." (Code Civ. Proc. § 436(a) and (b).) In addition, allegations "neither supported by nor pertinent to an otherwise legally sufficient claim or defense" can be st...

Excerpt: ...mbering the residential real property located at 2354 Alameda Diablo in Diablo (the "Subject Property"). Ms. Salehomoum sued her estranged husband Omid Bahrami‐Daghigh, also known as Omid Bahrami ("Omid Bahrami" in this tentative ruling), asserting rights and interests in various assets and income, and seeking dissolution of their financial partnership, among other relief. Omid Bahrami filed a cross‐complaint in that action. Navid Bahrami, br...

Excerpt: ...‐Benz USA (“MBUSA”), Mercedes‐Benz Financial Services USA (“MBFS”) and Sonic Walnut Creek M, Inc. (“MBWC”). The issue before the court is whether the parties to this motion reached a binding settlement agreement through an exchange of emails in April 2021 and/or plaintiff's signing of a subsequent settlement agreement and release, or only a preliminary agreement that would not be effective until a formal written settlement agreeme...

Excerpt: ...Rudgear Drive, in Walnut Creek. Plaintiff allegedly defaulted on the loan on February 1, 2010. Defendant Attorney Lenders Services, Inc. was appointed as Trustee for the sale. Defendant US Bank National Association is the Legal Title Trustee for Truman 2016 SC6 Title Trust, the holder of the Deed of Trust. On April 15, 2021, Defendant Attorney Lender Services conducted the Trustee's sale. At the auction the Property was sold for $950,000 by credi...

Excerpt: ...LP (“National Retail” or “Landlord”). Because Fitness International does not shift the burden to Landlord by demonstrating that the action has no merit, the motion is denied. (See Code Civ. Proc., § 437c, subdiv. (a) & (f).) Background The facts in this case are largely undisputed. Parties entered into a lease agreement dated June 30, 2015, whereby Fitness International agreed to lease property from National Retail. (Statement of Undispu...

Excerpt: ...shall be filed no later than November 3, 2021, any reply to the opposition shall be filed by November 12, 2021, and courtesy copies of all papers shall be delivered to Chambers concurrent with the filings. Background Plaintiff alleges he was struck by a vehicle driven by defendant Mr. Gomez while riding his bicycle uphill on Pleasant Hill Road after dark. He has also sued defendant Contra Costa County, alleging "poor street lighting, the dangerou...

Excerpt: ...Ramon, California. She alleges a claim for premises liability based on negligence and willful failure to warn of a dangerous condition at the restaurant. She contends Defendant negligently maintained the premises and failed to place cones to warn customers of the slippery floor when Defendant's employees mopped the floor in the location where she fell. (Gebhart Decl. Exh. A [Pl. Complaint].) Standards Applicable to Summary Judgment Under Code of ...

Excerpt: ...It is sustained as to BCI regarding the first seven causes of action, with leave to amend. (CCP § 430.10 (e).) Any amended pleading shall be filed and served on or before September 8, 2021. If Smith elects to amend, he shall file a redlined copy of the amended cross‐complaint with his Opposition to any further demurrer, so the court can track the changes. When referring to both cross‐defendants collectively, the court will refer to them as B...

Excerpt: ...he leases do not contain language that would enable the prevailing party in this matter to recover attorneys' fees. Because the MSAs require the Court to answer a single question (namely, whether the prevailing party in this action can recover attorneys' fees pursuant to the aforementioned residential leases), the Court will address them together. The Relevant Contractual Language Plaintiffs contend that language found in the Mold Addendum to the...

Excerpt: ...fy Defendant in writing by September 2 and Defendant's answer will be due by September 23, 2021. Defendant demurs to the following claims brought against it: (5) breach of express warranty, (6) negligence – design and manufacturing defect and (7) negligence – failure to recall / retrofit. Defendants demurs based on the failure to allege sufficient facts to state a cause of action (due to the statute of limitations expiring) and on uncertainty...

Excerpt: ...fore the opposing party has any burden at all. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The moving party's initial burden is to “make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A plaintiff filing a motion for summary judgment must establish on her initial burden that there is no defense to the action. (CCP § 437c (a)....

Excerpt: ... 2020, and were due on April 6, 2020. Nearly all of the time during which these requests have been pending has occurred during the COVID‐19 pandemic, and defendant has requested, and received, extensions due to the logistical difficulties cause by the pandemic. Responses were further stayed while the parties engaged in unsuccessful settlement efforts. Moreover, some further extensions were directed by the Court as part of an Informal Discovery ...

Excerpt: ...n disregard for the safety of others"; (3) the "Exemplary Damages Allegations" of paragraphs 42 through 48 in their entirety; and (4) paragraph B of the Prayer for Relief in its entirety. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 08/18/21 ‐ 25 ‐ This ruling is made without prejudice to Plaintiff subsequently moving for leave to amend to reassert a demand for punitive damages if Plaintiff can demonstrate she...

Excerpt: ...ed infection control officer and licensed paramedic, was employed by plaintiff, San Francisco Federal Credit Union, since November 2017 as an Information Security Engineer. (Fielding Decl., ¶1.) In that capacity, he developed a Disaster Recovery and Pandemic Plan that was approved by the CEO. (Id., ¶2.) When the March 2020 Covid‐19 related shutdown orders went into effect, plaintiff opted not to implement the plan. (Id., CONTRA COSTA SUPERIOR...

Excerpt: ...Distribution”)'s claims are subject to a mandatory, enforceable and reasonable forum selection clause, establishing the state and federal courts of the counties of Benton and Washington, Arkansas as the jurisdiction for these claims. Request for Judicial Notice Walmart requests Judicial Notice of the Walmart Realty Supplier Agreement (“Supplier Agreement”) between Walmart and Plaintiff's affiliate, K2‐PS. (See Walmart's RJN; see also Caps...

Excerpt: ...edical Group, Inc. Plaintiff alleges she was wrongfully discharged in retaliation for disclosing Medicare fraud, tax fraud and unprofessional conduct. Plaintiff filed this action for retaliation, wrongful termination and violation of the CA Labor Code Private Attorneys General Act. Motion Pursuant to Code of Civil Procedure §1281.2, Defendant Diablo Nephrology Medical Group, Inc. moves this Court for an order compelling arbitration. Defendant fu...

Excerpt: ...e some unauthorized modifications to the unit. Defendants' lease was involuntarily terminated and they vacated the premises about a month prior to October 21, 2019. Defendant Cutting Edge Property owned, operated, and controlled the property. Ronald Scott was an employee of Brinckerhoff & Knez, Inc. dba HL Commercial Real Estate. Scott was in Unit 14 performing his duties as the Property Manager Assistant, when he fell and suffered injuries due t...

Excerpt: ...ersonally guaranteed by defendant David Lampach. Eagle Bay alleges California Cannabinoids failed to repay the loan when it came due. Eagle Bay filed its complaint for recovery of the amounts allegedly due from defendants on February 23, 2021. Eagle Bay filed proofs of service showing it served the summons and complaint by substituted service on California Cannabinoids on February 25, 2021, and on David Lampach on February 27, 2021. On Plaintiff'...

Excerpt: ...indicated on Exhibit C to the Declaration of Helen J. Kei. The strings placed by the survey work shall remain in place, but defendants may trim the flags with scissors to minimize “flapping” noises. The undertaking is set in the amount of $15,000, to be posted by defendants on or before August 20, 2021. (Code Civ. Proc. §§ 529, 995.710.) The Court observes that no evidentiary hearing was properly noticed and, despite several phone appearanc...

Excerpt: ...on or before August 27, 2021. If CVCHS elects to amend, it shall file a redlined copy of any amended cross‐complaint with its Opposition to any future demurrer so the court can track the changes. Background The court wrote comprehensively about this case in its ruling on the previous demurrer. It quotes a small portion of that ruling to set the context for the current one. This case presents the issue whether a cross‐defendant may continue to...

Excerpt: ...wanger II, Walter Binswanger III, and Silvio Garaventa, Jr. (CCP § 430.10 (e).) It is overruled as to Louisa Binswanger as to the Fifth Cause of Action and sustained as to all the other causes of action with leave to amend. (CCP § 430.10 (e).) Any amended complaint shall be filed and served on or before August 27, 2021. If defendants file a further demurrer, plaintiff shall file a redlined copy of the amended complaint with his Opposition, so t...

Excerpt: ...failure to provide rest periods; (5) failure to provide accurate wage statements; (6) waiting time penalties; (7) failure to reimburse business expenses; (8) retaliation‐employment; (9) intentional infliction of emotional distress; (10) breach of the covenant of quiet enjoyment; (11) breach of the warranty of habitability; (12) violation of the Richmond Rent Ordinance; (13) specific performance; (14) (anticipatory) breach of contract; (15) (ant...

Excerpt: ...�filed opposition papers. B. The Governing Standard. The Bridgeford decision cited in defendant's opening memorandum states the standard governing this demurrer: The decision whether a case is suitable to proceed as a class action ordinarily is made on a motion for class certification. [Citation omitted.] A court may decide the question earlier by sustaining a demurrer to the class action allegations of a complaint only if it concludes as a matte...

Excerpt: ...(premised on a violation of Civil Code §§ 1749.45 et seq.) Defendant demurs pursuant to CCP § 430.10(e) on the grounds that Civil Code § 1749(b)(2) does not require immediate cash refunds of gift cards with an outstanding balance of less than $10.00 and that Chevron's policy, requiring consumers seeking a redemption to use a toll‐free number or web address, does not constitute an impractical and unreasonable barrier to a consumer's right of...

Excerpt: ...25.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary‐judgment‐like procedure.' [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384‐385.) Protected Activity On the first step, the Defendant has the burden of showing that the challenged causes of action arise fr...

Excerpt: ...l Background Plaintiff's Complaint asserts claims alleging Sierra is liable for the transmission of COVID‐19 to a household member of Sierra's employee in December 2020. The following is a summary of the allegations Plaintiff makes in her Complaint. Plaintiff is the daughter of an employee of Sierra. (Compl. ¶ 16.) Sierra operates addiction rehabilitation facilities and offers residential treatment for persons suffering from addition and post�...

Excerpt: ...fendants breached their duty to comply with building, fire, and health and safety codes. Plaintiffs allege Defendants breached the implied warranty of habitability by failing to correct substandard conditions, which included garbage disposal deficiencies; plumbing and electrical deficiencies; rodent, pest, and insect infestations; mold and mildew; and security and safety deficiencies. Motion Pursuant to CCP §§ 473(a)(1) and 576, Plaintiffs seek...

Excerpt: ...y, she moves for approval of an award of attorney's fees and expenses, as well as a service award for plaintiff. A. Background and Settlement Terms The original complaint was filed November 5, 2015, as a class action. It alleged that defendants Zagaris and Disclosure Source entered into an agreement under which PMZ obtained Natural Hazard Disclosure (NHD) reports to be used in real estate transactions from Disclosure Source, identified them as ha...

Excerpt: ...gence, and active or passive negligence is limited to $77,800. While Eaglelift's motion was filed when the operative pleading was plaintiff's First Amended Complaint, this ruling applies equally to the current operative pleading, plaintiff's Second Amended Complaint (“SAC”). Thus, this limit on Eaglelift's liability applies to the first four causes of action of the SAC, but not to the fifth. Background The parties provide additional context f...

Excerpt: ...all file and serve a new fourth amended complaint by September 15, 2021. The proposed fourth amended complaint does not currently comply with the ruling on the demurrer. Therefore, before the filing of the fourth amended complaint, the parties must do the following: Plaintiff will prepare a new proposed fourth amended complaint and serve it on Defendants by August 18, 2021 (service must include email so the Defendants can promptly review the chan...

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: ...igence (against Defendant Save Mart Co., Inc. dba FoodMaxx), (2) professional negligence (against the demurring Defendants), and (3) professional negligence (against Defendant Sutter Bay Hospitals dba Sutter Delta Memorial Hospital). This is Defendants' second challenge to Plaintiff's claim for professional negligence. Defendants demur to Plaintiff's cause of action for professional negligence pursuant to Code of Civil Procedure § 430.10(e) and ...

Excerpt: ...t of a dispute over construction work performed by general contractor McCartt Construction and its subcontractors at the property located at 1136 Glen Road, Lafayette, California, formerly owned by Evan and Amy Price. McCartt sued the Prices for nonpayment and the Prices cross‐complained against McCartt for construction defects. McCartt then cross‐complained against various subcontractors, including Morgan & Sons Electric & Lighting. Morgan n...

Excerpt: ...irmatively barred. Defendants shall file their answers by August 16, 2021. Background Plaintiff Fred Simon, a Senior Engineer with Contra Costa Water District (“District”), has sued his employer and several of his superiors, Chris Hentz, Rachel Murphy, and Steve Welch (collectively, “Individual Defendants”), for wrongs he allegedly suffered in the workplace. Because a detailed factual summary was set forth in the Court's ruling on the las...

Excerpt: ...AXC” for (1) contribution, (2) fraud and concealment and (3) declaratory relief. For the following reasons, Plaintiff's Demurrer is sustained with leave to amend. Background Facts This dispute arises from Plaintiff, Charles Helfrick's Complaint against Misty and Patrick Helfrick. (SAXC p. 3:10‐28.) Charles is Patrick's father, and Patrick and Misty are married, but in the middle of a divorce. The Complaint alleges that Charles and Patrick ent...

Excerpt: ...s overruled, and the motion to strike is denied. Defendant Hinds shall file an answer to the Fourth Amended Complaint on or before August 27, 2021. Plaintiffs' counsel is advised that the tables for plaintiffs' memoranda of points and authorities are consistently generated in a very small font size that is almost unreadable. In the future, all tables shall be set out in at least 12‐point font. The basis for the Court's ruling on the demurrer an...

Excerpt: ...and Plaintiffs' Third Amended Complaint and the survivor declaration of Myrtle Jones accompanying it shall be filed by the Clerk. On May 21, 2021, the Court sustained Jeremy Williams' demurrer to the SAC. Under the Court's local rules, when neither party timely contested the Court's tentative ruling posted the day prior to the scheduled hearing, the tentative ruling became the final order on the demurrer. (Local Civ. R. 3.43(2).) The Court's ruli...

Excerpt: ... as follows: (1) Samah Sabry Awadalla (“Samah”); and (2) Ehab Halim Zaki Saad (“Ehab”). The Complaint alleges five causes of action: (1) Defamation against Samah; (2) Intentional Interference with Prospective Economic Relation against all Defendants; (3) Negligent Interference with Prospective Economic Relation against all Defendants; (4) Intentional Infliction of Emotional Distress against all Defendants; and (5) Negligent Infliction of ...

Excerpt: ...e it required plaintiff to show that Favro's conduct “increased the risk” to plaintiffs. The requirement that the jury find that Favro's conduct “increased the risk” to the plaintiffs was appropriate. (MOFD also states that the special instruction based on CACI 473 as given by the Court was inappropriate, but the rationale for the argument essentially is based on Question 1 of the verdict form.) Both Siebert and the previous appellate dec...

Excerpt: ...es. Plaintiff also seeks approval of attorney's fees and a representative incentive payment. A. Background and Settlement Terms The original complaint was filed November 26, 2018, as a class action. Plaintiff amended complaint in order to raise PAGA allegations, which were not included in the original complaint. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 08/05/21 ‐ 10 ‐ The PAGA notices were provided to the ...

Excerpt: ... one‐year statute of limitations. Plaintiffs argue that any claims subject to a one‐year statute of limitations are timely because of a Doe amendment filed two years after this litigation started. To determine which party is correct requires a detailed examination of the procedural history of the litigation. This case arises out of alleged medical malpractice and elder abuse committed at two healthcare facilities, Martinez Convalescent Hospit...

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: ...where he alleges he sometimes cashed his payroll checks at the CCCS facility in Concord. (First Amended Complaint ("FAC") ¶ 10; Munoz Decl. ¶¶ 2, 3.) Plaintiff Ashley Munoz aka Ashley Payne is Mr. Munoz's wife. (FAC ¶ 2.) They allege multiple causes of action against CCCS and its affiliates arising out of Mr. Munoz cashing a payroll check at CCCS in November 2020. Plaintiffs allege CCCS and other defendants asserted that he had cashed the sam...

Excerpt: ...nce of the Plaintiff by the investigator) and intends to use only that the video surveillance that was produced, at trial. The investigator is not the client but a third party allegedly hired by counsel for the defense. The Plaintiff's argue that it is unfair not to produce all of the investigators documentation, as they cannot fairly question the investigator without knowing what was withheld. The Defendant disagrees. A review of the transcripts...

Excerpt: ...mpel arbitration by Beltray is therefore denied as moot. For the reasons set forth, Ford's motion to compel arbitration is granted. The motion to stay the action is also granted, and the action is stayed pending conclusion of the arbitration. Based on this ruling, the case management conference is continued to 7/29/22 at 8.30 a.m. Factual Background Plaintiff Mr. Martinez filed a complaint in April 2021 alleging claims arising out of his acquisit...

Excerpt: ...tinez was located in order to assist with her treatment. Without provocation, Martinez attacked and CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 07 HEARING DATE: 07/30/21 ‐ 4 ‐ battered Plaintiff, causing her injuries. Plaintiff sued Hill and Goshay negligence and premises liability. Both claims are based on Hill and Goshay's alleged negligence. Although, Martinez is referred to as Hill and Goshay's residence employee, the cla...

Excerpt: ...ence with contract, (6) breach of contract – count I, (7) breach of contract – count II, and (8) breach of covenant of good faith and fair dealing. Defendant demurs to Plaintiff's causes of action for (6) breach of contract – count I, (7) breach of contract – count II, and (8) breach of covenant of good faith and fair dealing pursuant to Code of Civil Procedure (“CCP”) § 430.10(g) on the grounds that “it cannot be ascertained from ...

Excerpt: ... by cross‐complainants, Don Neufeld and Mia Blume (“Buyers”). Buyers argue that, because not all the claims or parties are subject to the arbitration clause, the Court should exercise its discretion to refuse to enforce the clause. In a footnote, Buyers contend this discretion is not affected by the FAA because the agreement does involve interstate commerce. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/29...

Excerpt: ...f real property in Antioch and an alleged failure to disclose the risk of flooding at the property. On July 6, 2009, Plaintiff obtained an order allowing for service by publication on Defendants Shulba and Hoffman. The Defendants were served by publication through the San Mateo Daily Journal with notice posted three times in that newspaper in July and August 2009. A default was entered against the Defendants on October 8, 2009. Other defendants n...

Excerpt: ... entered into a Business Loan Agreement with Plaintiff Retail Capital, LLC. Defendant Mohamed Baz, president of Cisco Medical, signed the Agreement on behalf of Cisco Medical. Defendant Mohamed Baz executed in writing a Personal Guaranty for the loan of $43.200. Defendant Cisco Medical became obligated to make daily payments of $206.94 until the sum of $59,184.00 was paid. Plaintiff alleges Defendant defaulted on the loan on or about July 20, 201...

Excerpt: ...plaint no later than August 25, 2021. If Seddick does not file an amended cross‐ complaint by August 25, 2021 then Cross‐Defendants shall file and serve their answer by September 8, 2021. The Case Management Conference scheduled for August 19, 2021 is continued to September 30, 2021. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 21 HEARING DATE: 07/28/21 ‐ 13 ‐ Seddick filed a cross‐complaint against the Plaintiffs / Cros...

Excerpt: ...urrer is sustained as to the entire Second Amended Complaint (“SAC”) on two fully independent procedural grounds. The basis for this aspect of the Court's ruling is as follows. A‐1. Untabbed Exhibits. The voluminous exhibits to the SAC are not tabbed. This omission flouts the express instruction in the Court's ruling on the original demurrer, heard on May 20, 2020: Plaintiffs shall file and serve any amended complaint on or before June 19, ...

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: ...tiff Harold Would Development, LLC and Defendant Shining Star Food LLC entered into a commercial lease for premises located at 1525 Locust Street in Walnut Creek. Defendant leased the 2,227 square feet of space for use as a restaurant. The Lease provided Defendant would lease the space for a period of ten years, commencing 180 days after delivery of the premises to tenant. The premises were delivered on CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIF...

Excerpt: ...filing of the amended pleading. To the extent parties can agree, plaintiff may make agreed changes prior to filing. Otherwise, the amended complaint shall be filed in the form attached as Exhibit A to the Declaration of Mark A. Milstein. Background This is a construction defect case. Defendant Arbor Building Group is a general contractor, who contracted with owner and plaintiff, Creekside Walk Ventures, LLC, for the construction of an apartment c...

Excerpt: ...reasons, the Demurrer to affirmative defenses 3, 30‐32, 35‐39 and 41 is sustained, with leave to amend Analysis The standard for a demurrer to an answer is whether the answer states facts sufficient to constitute a defense. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) A defendant must set forth only the “essential facts” of the affirmative defense, “sufficient to acquaint [plaintiff] with the nature, source and ext...

Excerpt: ...liability and (2) failure to warn. Plaintiff withdrew his claim for failure to warn and his request for punitive damages on June 18, 2021 but did not otherwise oppose Defendant's Demurrer. In that same filing, counsel for Plaintiff also stated “Plaintiff's own experts are in the process of conducting further tests” and that the “testing required purchase of new garage motors which will arrive June 18, 2021, with anticipated testing by July ...

Excerpt: ...24, 2018, when a tree branch on the property of Pepperhill fell on him as he was walking on an adjacent sidewalk. Pepperhill filed a Cross‐Complaint for Equitable Indemnity, Contribution, and Declaratory Relief against A Plus. A Plus demurs, arguing the Cross‐Complaint fails to state a cause of action for indemnity, is uncertain in failing to allege what A Plus did wrong, and, to the extent it is based on a contract, fails to state whether th...

Excerpt: ...aintiff Kathleen Lewis alleges she tried to purchase a mobilehome located in a mobilehome park owned and operated by Defendant LH Concord Property, LLC ("LH Concord"). She alleges her residency application was improperly denied, that the owners of the mobilehome she wanted to purchase sold the mobilehome to another buyer, and Plaintiff was forced to purchase a more expensive mobilehome elsewhere. She alleges seven causes of action against LH Conc...

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: ...e default judgment is set aside. Defendants shall file their answer to the Complaint by July 26, 2021. The Court in its discretion declines Plaintiff's request for attorneys' fees and costs. Factual Background Plaintiff CoolSystems, Inc. filed a complaint for breach of contract, conversion, claim and delivery and other causes of action against Brace and Ms. Constantino on January 22, 2021. Generally, Plaintiff alleges that it manufactures and dis...

Excerpt: ...: 160 118 4571 Passcode: 456516 Before the Court is a motion to set aside default pursuant to Code of Civil Procedure section 473(b), filed by Defendants, Nexus Services Inc., a Georgia corporation and Libre Nexus Inc., a Georgia corporation (“Defendants”). Defendants bring this motion on the grounds that the default was entered because of their mistake, excusable neglect, and surprise. Brief Factual and Procedural Background The underlying C...

Excerpt: ...nken Law Group, Dunken Weeks, Bert Terry Dunken, Jason Weeks, and Kohls Dunken & Associates (collectively, “Dunken”), appeared through counsel. After argument, the Court sought supplemental briefing on two questions: 1. Can Bolla supplement his MSA submission to correct so‐called “technical deficiencies;” and, 2. Assuming the Court denies Bolla's MSA, is that ruling with or without prejudice? The Court has considered those questions, an...

Excerpt: ... Restoration's answer shall be filed and served by August 20, 2021. Disgorgement (cause of action 7) Defendants argue that this claim is time barred. In order to make this argument, however, Defendants rely on a declaration from counsel stating that the cross‐complainants terminated cross‐defendants' work on July 30, 2018. Such information is outside the allegations in the complaint and thus, not part of the Court's analysis on a demurrer. Ba...

Excerpt: ...defects, including “interior, exterior, electrical, suspension, structural, engine and transmission defects”. (Comp. 9, 10.) Plaintiff is suing Ford Motor Company for various warranty claims under the Song‐Beverly Act and is suing Walnut Creek Ford for negligence in repairing the vehicle. Both Defendants are moving to compel arbitration based upon an arbitration clause contained the vehicle purchasing contract between Plaintiff and the Sell...

Excerpt: ...f COVID‐19 to a household member of Sierra's employee in December 2020. The following is a summary of the allegations Plaintiff makes in her Complaint. Plaintiff is the daughter of an employee of Sierra. (Compl. ¶ 16.) Sierra operates addiction rehabilitation facilities and offers residential treatment for persons suffering from addition and post‐traumatic stress disorder (PTSD). (Compl. ¶ 2.) Plaintiff's mother was employed as a therapist ...

Excerpt: ...ated by Michael Dayton and owned by AMR. The form complaint alleges those facts, that the accident occurred on April 23, 2019 on Clayton Road in Concord, and that defendants' acts were negligent. (Attachment to Compl.) The Complaint alleges one cause of action for negligence arising out of the accident. Standards Governing Ruling on Demurrer In ruling on the demurrer, the Court must accept as true all well‐pleaded factual allegations of the com...

Excerpt: ...ner shall prepare a proposed judgment, and serve a copy of the proposed judgment on respondent Tripathi. The proposed judgment shall attach a copy of the Final Award dated October 16, 2019 and the Post Arbitration Decision re Attorney's Fees and Costs dated December 7, 2019 as properly tabbed exhibits to the judgment. (Cal. R. Ct. 3.1110(f).) Factual Background This dispute arises out of a breach of a sublease with related claims (Pet. To Confirm...