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: ...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: ...eby Plaintiffs are seeking confirmation of an easement over and through two properties: one owned by the Defendants Luc and Claudia Desmedt (“Desmedt Defendants”) and one owned by the Tice Valley Gardens Homeowners Association (“HOA”). A Settlement Conference was held on December 16, 2021 involving Plaintiffs and the Desmedt Defendants, as Plaintiffs had previously settled with the HOA. At the Settlement Conference, Plaintiffs and the Des...

Excerpt: ... from any order on the motion, for submission to the Court. I. Background Plaintiff Nene Ndah‐Fingesi (“plaintiff”) alleges that defendant Contra Costa County (“County”) discriminated against her due to her medical condition. (Separate Statement of Undisputed Material Fact, hereinafter “SSUMF,” Fact 5, and plaintiff's response.) Plaintiff has been employed by County in a teaching position since approximately February 2009. When she ...

Excerpt: ...ted. Factual Background The Complaint alleges that Plaintiff was injured when she stepped up onto a retaining wall owned by Defendants and fell because certain bricks in the wall were not secured. The fall resulted in injuries to Plaintiff. Standard Summary judgment is proper if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Pr...

Excerpt: ... Plaintiff's Complaint alleges that Plaintiff, Defendant, and other parties to the suit contracted to re‐roof a development in El Cerrito, County of Contra Costa, California (hereinafter, “Project”). (Complaint, ¶3.) Plaintiff alleges that Defendant is a roofing contractor company hired to work on the Project. (Complaint, ¶10.) Plaintiff claims that Defendant installed the new roof using “duration premium cool shingles” which come wit...

Excerpt: ...the “Motion”). Defendants' Motion moves to strike allegations in the First Amended Complaint (“FAC”) related to (1) alter ego, (2) the Third Cause of Action for Unfair Business Practices, (3) the Fifth Cause of Action for Intentional Misrepresentation, as well as (4) portions of the Prayer pertaining to the Unfair Business Practices and Intentional Misrepresentation causes of action. Defendants' Motion is filed at the same time as Defenda...

Excerpt: ...ed uninhabitable “Due to the (STRUCTURE BEING LOCATED ON THE TOP OF A SLOW MOVING LAND SLIDE) That is affecting this property's front and side Yards as well as the public street in front of this property.” (Comp. ¶4.) The Notice regarding the “Red Tag” further provided that for it to be lifted and occupancy of the house permitted, “the owner or buyer must contact a Registered Soil or Geotechnical Engineer to have a plan prepared to fix...

Excerpt: ...urance Company, was the insurer of property owned and operated by Lifelong Medical Care. (Complaint, ¶7.) On or about December 22, 2018, the property was damaged when a fire suppression system discharged water. Defendants' negligence caused the loss because, as fire suppression systems experts, defendants knew or should have known that the sprinkler installed was too close to the heating vent and/or not sufficiently rated given its proximity to ...

Excerpt: ...ckground and Settlement Terms The original complaint was filed by Davis, Nelson‐Stark and Riley on March 29, 2019, under PAGA only, alleging only a claim for failure to provide suitable seating. On May 15, 2019, Clark filed a class action alleging various violations of wage and hour requirements, as well as a suitable seating claim. On January 3, 2020, Clark filed a First Amended complaint also adding a PAGA claim. That matter was removed to fe...

Excerpt: ...Forth in Enforceable Contracts) Affirmative Defenses. For the following reasons, Plaintiffs' demurrer is sustained. Standard for Demurrer 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 ...

Excerpt: ...e Second Cause of Action for Common Count – Open Book Account, and Third Cause of Action for False Promise on that basis that Plaintiff has failed to state facts sufficient to constitute such causes of action. (CCP §431.10(e).) Additionally, Defendant demurrers to the Complaint in toto “because the face of the Complaint admits a defense to all claims, namely that Plaintiff did not make an effort to mitigate its alleged damages.” (CCP §431...

Excerpt: ...‐OPT5, asset‐backed certificates, series 2006‐OPT5 (“Deutsche Bank”) (collectively, “Defendants”)'s Demurrer. The Demurrer relates to Plaintiff Darinka Allen (“Plaintiff” or “Allen”)'s Second Amended Complaint (“SAC”) for (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; and (3) negligent misrepresentation. Defendants demur to all Plaintiff's causes of action pursuant to Code of Civil...

Excerpt: ...ing the property and sustained physical injuries resulting in loss of earnings and other damages. Her complaint asserts causes of action for negligence and premises liability. The premises liability cause of action alleges two counts based on negligence and willful failure to warn. She asserts as the basis for defendant's liability on all causes of action and counts that (1) the area where she fell had no lighting, and (2) plaintiff was instructe...

Excerpt: ...had a developmentally narrow spinal canal, multilevel stenosis, worse at C5‐C6, with spinal cord compression. Plaintiff also had mild left carpel tunnel syndrome. (SSUMF No. 2.) Dr. Counelis recommended a C3‐6 decompressive laminectomy with fixation/fusion at C3‐6.) On October 15, 2015, Defendant George J. Counelis, M.D. performed surgery on Plaintiff's spine. Plaintiff underwent C3‐C6 Laminectomies, Posterior Segmental Fixation, C3‐6 P...

Excerpt: ... out of Monterey County Superior Court Case no. DR43762. (See Complaint at Attachment 8.) Specifically, Plaintiff alleges that Defendant Monterey County (sued erroneously here as Monterey County DCSS) erroneously reported his child support obligations to credit bureaus, harassed him to pay child support, and miscalculated his child support obligations. (See id.) Plaintiff further alleges that these actions by Defendant prevented him from securing...

Excerpt: ...aintiff filed this action on March 4, 2022. On her form complaint, plaintiff lists nine causes of action: (1) Breach of Contract; (2) Retaliation, (3) Trespass, (4) Declaratory Relief, (5) Invasion of Privacy, (6) Illegal Charges, (7) Intentional Infliction of Emotional Distress (“IIED”), (8) Violation of Tenant Protection Act, and (9) Violation of Tenant Relief Act. The allegations set forth in support of these causes of action are as follow...

Excerpt: ...u Voltaire has alleged that she was driving in the City of El Cerrito (the "City") on October 27, 2019 when she sustained damages from falling tree branches. The trees from which the branches fell were located on the median between property owned by Sumrad Investments (“Hotel”) and the street. Plaintiff filed this suit for damages on August 4, 2020 against the City of El Cerrito and the Hotel. After a demurrer by the Hotel was partially susta...

Excerpt: ...le and that St. Mark's Methodist Church of Orinda, California is not the fee simple owner of the Church on Moraga Way. Plaintiffs St. Mark's Church of Orinda and Moraga and St. Mark's Methodist Church of Orinda, California (“St. Mark's”) sued California‐Nevada Annual Conference of the United Methodist Church (“United Methodist”) for declaratory relief, quiet title, trespass, fraud, conversion and unfair business practices. United Method...

Excerpt: ... Material Fact, Issue 1, No. 1 (hereinafter “UMF [issue:fact].”) The lot immediately to the south, 161 Ardmore Road, was acquired by Defendant in 2013. (UMF 1:2.) The property line between the properties, which is the main dispute in this matter, runs generally east/west. Between the two properties is a picket fence running from the front of the houses toward the back of the lots – where it meets with the northern wall of 161 Ardmore's gara...

Excerpt: ...ng causes of action: (1) quiet title, (2) continuous trespass, (3) public and private nuisance, (4) willful injury to real property, (5) injunctive relief, and (6) declaratory relief. The Motion is opposed by Defendant Thanh Van Nguyen and Defendant Helen Tran (collectively, “Defendants”). For the following reasons, Plaintiffs' Motion for Order Granting Preliminary Injunction is denied. Background Plaintiffs purchased 1080 Finley Road, Contra...

Excerpt: ...laims asserted in the cross‐complaint of defendants and crosscomplainants Guy Tzen‐Wen a/k/a Tzen‐ Wen Guo a/k/a/ Guo Tzen‐ Wen ("Guo") and Lin Bih‐Wan a/k/a Bih‐Wan Lin ("Lin") (collectively "Guo/Lin") against the Hiteses for total equitable indemnity (1st C/A), apportionment of fault (2nd C/A), and declaratory relief (3rd C/A) are deemed barred by the Court's good faith determination and are to be dismissed, but for the reasons stat...

Excerpt: ...on and Julie Quon, husband and wife, are both over the age of 65. Plaintiffs own a single family dwelling commonly known as 25 La Cintalla, Orinda. On or about April 6, 2015, Defendant NCC offered/proposed to perform work at the property for the Quons. The work included installing “22 concrete piers” and “23 pipe piles” to the foundation of the home for a total cost of $142,470.00. Plaintiffs alleged Defendants represented that the work h...

Excerpt: ...ssession of personal property to be seized under the writ (CCP § 512.010(b)(1)); (2) “A showing that the property is wrongfully detained” (CCP § 512.010(b)(1)); (3) An explanation of how the possessor came into wrongful possession (CCP § 512.010(b)(2)); (4) “A [] description of the property and a statement of its value” (CCP § 512.010(b)(3)); (5) The location of the property (CCP § 512.010(b)(4)); (6) A declaration that the property ...

Excerpt: ...000. The class representative payment to each plaintiff would be $7,500. Counsel's attorney's fees would be $70,000 (35% of the settlement). Litigation costs would not exceed $10,000. The settlement administrator (Simpluris) would have costs of administration capped at $4,000. PAGA penalties would be $5,000, resulting in a payment of $3,750 to the LWDA and $1,250 to the class members. Thus, the net settlement amount available to the class would b...

Excerpt: ...ered until Jun 30, 2021). Submission of a motion for final approval was further delayed by compliance issues, which culminated in a motion to enforce settlement by the plaintiffs, which was granted on February 3, 2022. A. Background and Settlement Terms The complaint was filed August 26, 2020, with only Torres as plaintiff. It is a class action complaint alleging that defendant violated the Labor Code by failing to include all discretionary incen...

Excerpt: ...�) together. The Agreement states that Defendant agreed to pay the $31,273.72 owed on Defendant's unpaid account as well as Plaintiff's court costs incurred as a result of filing the Agreement. (Agreement, ¶ 4.) Plaintiff alleges that Defendant did not make payments on this amount as agreed in the Agreement. (Points and Authorities in Support of Motion to Enforce Settlement, ¶ 4.) Plaintiff alleges that Defendant has only submitted $300 to date...

Excerpt: ...In the motion to set aside the dismissal, Plaintiffs sought leave to file their motion for reconsideration and cited Code of Civil Procedure sections 473.5 and 1008 in their notice of motion. Plaintiffs noted that they had attempted to file their motion for reconsideration on May 13, 2022 but were apparently prevented from doing so since the judgment in this case was filed earlier that same day. Plaintiffs did not cite a statutory basis in their ...

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: ...a class action on behalf of non‐exempt employees alleging that defendant violated the Labor Code in various ways, including unpaid overtime, unpaid minimum wage, con‐ compliant meal and rest periods, unreimbursed business expenses, failure to maintain payroll records, waiting time, and wage statement claims. On November 13, 2020, the complaint was amended to add PAGA claims. On December 29, 2020, Montes filed a similar complaint, also in this...

Excerpt: ...and 2699. Defendant moves for judgment on the pleadings pursuant to Code of Civil Procedure (“CCP”) § 438 on the grounds that Labor Code § 2699.6(a) applies to exempt Defendant (a construction industry employer) from PAGA liability where there is a valid collective bargaining agreement (“CBA”) that explicitly waives PAGA. For the following reasons, the MJOP is denied. Evidentiary Objections As a threshold issue, the Court notes that a m...

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: ...are SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 39 HEARING DATE: 06/30/2022 5 tenants who operated a UPS Store in the Pinole Center. On July 27, 2020, ROIC sued them for breach of their lease ("Pinole Lease") based on nonpayment of rent. With leave of Court, Cross‐Complainants filed their original cross‐complaint on August 13, 2021. They alleged that ROIC violated a radius restriction in the Pinole Lease by ROIC ...

Excerpt: ...pplication is denied, without prejudice. Background Diane and Ronnie Mimran (collectively, “Plaintiffs”) purchased the home at 1531 Avenida Street, Nuevo Diablo, CA in 2009 from DF Harr. (FAC p. 6:8.) DF Harr had renovated the home before the sale to Plaintiffs. (FAC p. 6:4.) Plaintiffs and DF Harr signed a “California Association of Realtor's California Residential Purchase Agreement and Joint Escrow Instructions” (“Agreement”) in Ju...

Excerpt: ...§ 1281.4.) To be specific, plaintiff shall arbitrate all claims stated in the Third Cause of action for whistleblower retaliation under Labor Code section 1102.5. Plaintiff shall also arbitrate the claim that he was wrongfully terminated for whistleblower activities in violation of the public policy expressed in Labor Code section 1102.5, as stated in the Forth Cause of Action for wrongful termination. The Court stays all claims stated in the Fi...

Excerpt: ...een the time Defendant opened the account and when Plaintiff filed this complaint. Defendant never objected to the truth or accuracy of the billing statements. Defendant did not remit payment for $23,284.51 on the account. The facts presented in support of the motion indicate Defendant has failed to pay this amount under the parties' agreement. These facts are supported by the declaration of Mehdi Touhidi, Custodian of Records for American Expres...

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: ...fing. Ms. Conroy is now a plaintiff in the case, by virtue of an amended complaint approved by stipulation and order, entered by the Court on June 7, 2022. (Plaintiffs still must file the amended complaint as directed by the order.) Ms. Conroy filed a different PAGA action in Orange County Superior Court, which would be dismissed pursuant to the agreement. A. Background and Settlement Terms The original complaint was filed on March 13, 2019, rais...

Excerpt: ...as filed April 1, 2021, raising claims under PAGA and a class action on behalf of non‐exempt employees, alleging that defendant violated the Labor Code in various ways, including unpaid overtime, unpaid minimum wage, non‐compliant meal and rest periods, unreimbursed business expenses, failure to provide reporting time, failure to maintain payroll records, waiting time, and wage statement claims. The settlement would create a gross settlement ...

Excerpt: ...laint, Prayer for Relief ¶ C: “pre‐ and”; AND • Complaint, Prayer for Relief ¶ D: entire paragraph. Plaintiff shall file her amended Complaint by July 5, 2022. Background Before the Court is a motion to strike portions of the Complaint (“Motion”) and a notice of demurrer (“Demurrer”) filed by Defendant Insight Global, LLC (“Defendant” or “Insight Global”). The Motion is pursuant to Code of Civil Procedure (“CCP”) § ...

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: ...83.210, subd. (a).) The three‐year deadline is applicable to DOE defendants: A plaintiff must serve “a defendant within three years after the action is commenced against the defendant.” (§ 583.210, subd. (a).) “[A]n action is commenced at the time the complaint is filed.” (Ibid.) Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (§ 583.250, subd. (b).) The three‐year rule applies w...

Excerpt: ...he Property requiring extensive repairs, leading to a law suit against the structural engineer and contractor. A dispute then arose between the Parties, resulting in the current matter. During the course of the litigation, the Parties obtained a settlement regarding the structural repairs, made numerous repairs, and obtained an Appraisal ($1,190,000) and a Broker's Opinion ($850,000 ‐ $950,000) addressing the fair market value of the Property. ...

Excerpt: ...n begins September 6, 2019. Background to the Issue Plaintiff Taj Lockett was employed as a loan officer by Broker from April 20, 2020, to on or about December 9, 2020. (Compl. ¶ 2.) On March 1, 2021, she gave notice to the Labor and Workforce Development Agency ("LWDA") of her claim that Broker violated Labor Code section 2751(a) by its failure to include or disclose its "lean in" policy affecting the employees' commissions (the "LWDA Notice")....

Excerpt: ...plaint for (1) breach of contract; (2) breach of the implied warranty of merchantability; (3) breach of the implied covenant of good faith and fair dealing; (4) negligence; (5) breach of express warranty; (6) strict liability; (7) negligent misrepresentation; (8) unfair business practices (Bus. & Prof. Code 17200 et seq.); (9) rescission; and (10) restitution. The Complaint arises out of alleged construction defects with the property 1087 Leland ...

Excerpt: ...ithout leave to amend as to the Second, Third, Fifth, Sixth, and Seventh Causes of Action. The motion is granted with leave to amend as to the First Cause of Action. The motion is denied as to the Fourth Cause of Action. Plaintiff shall file any further amended complaint on or before July 1, 2022. The basis for this ruling is as follows. All Causes of Action. In any amended complaint, plaintiff shall comply with rule 2.112 of the California Rules...