Excerpt: ...enors object to the terms of the settlement. Intervenors contend that Code of Civil Procedure section 387 provides the Court authority to permit their intervention. The Court continued the hearing on settlement approval and instead set Intervenors' application for leave to intervene for hearing on July 26, 2018. Both plaintiff James Neil and defendant Hanlees have opposed intervention. Analysis under CCP section 387 CONTRA COSTA SUPERIOR COURT MA...

Excerpt: ... Plaintiff alleges that he purchased a house from Defendants based in part on the view the house had. (FAC ¶6.) However, after Plaintiff purchased the house he learned that the view was not as good as it was when the property was sold. (FAC ¶7) Plaintiff alleges that Defendants trimmed three feet off a hedge on a neighbor's property and when the hedge started to grow back it obstructed the view. (FAC ¶5.) Defendants demur to all three causes o...

Excerpt: ...s provided the Court a copy of the settlement agreement. It was later filed in the public file, as set forth below. On April 20, 2018, Lawson filed a motion to dismiss her individual claims with prejudice and the class claims without prejudice. That motion was unopposed. Attached as Exhibit 1 to Marcus Bradley's declaration supporting that motion was a copy of the settlement agreement. The first page of the settlement agreement indicates that the...

Excerpt: ...he delay.” Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941. Even if Plaintiff was dilatory in seeking this Doe amendment, Defendant has not shown any real prejudice caused by the delay. ...

Excerpt: ... one retained liability expert and plaintiff's treating orthopedist as a non‐retained expert. Therefore, it is puzzling that Defendant states: “Plaintiff's presentation of evidence in support of her damages claim will be involved and detailed. Cumulative of Plaintiff's treating medical providers (including treating physicians, surgeons and physical therapists), Plaintiff will have to call orthopedic experts, psychological experts, occupationa...

Excerpt: ...ant has timely made the first payment, and the next payment is not yet due. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 09 HEARING DATE: 07/25/18 ‐ 13 ‐ Second, defendant has raised legitimate concerns about the language of the proposed notes and deeds of trust prepared by plaintiffs. Particularly troublesome is the deed of trust provision appointing plaintiffs as defendant's “attorney‐in‐fact.” Finally, it appears th...

Excerpt: ...nal misrepresentation or concealment. The elements which must be pleaded to allege a fraud or deceit claim are (1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity; (3) intent to defraud or to induce reliance; (4) justifiable reliance, and (5) resulting damages. See CACI 1900; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363; Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4...

Excerpt: ...sed because this Court does not have personal jurisdiction over the Defendant. Plaintiff's opposition directly addresses the personal jurisdiction issue and therefore Plaintiff had sufficient notice of this issue. Therefore, the Court construes Defendant's motion as a motion to quash and grants that motion. A court may exercise two types of personal jurisdiction over a defendant: general jurisdiction and specific jurisdiction. “General jurisdic...

Excerpt: ...nst WCF is the fifth cause of action, for breach of the implied warranty of merchantability under Civil Code section 1791.1 and 1794. As against Ford, all of the causes of action pled in the complaint remain pending. As a second preliminary matter, the Court notes that the Slausons do not oppose the petition as CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 15 HEARING DATE: 07/23/18 ‐ 14 ‐ it pertains to WCF. That is, the Slauso...

Excerpt: ...ange its Order because Plaintiff has allegedly circumvented the stay against Merrill Lynch by seeking discovery, documents and depositions from it to prosecute the other named Defendants. See Willey Decl., paragraphs 5‐7 and Exhibits B, C and D. There is nothing wrong with this. First, the parties' agreement to stay the case did not, in any way, limit discovery. Merrill Lynch never raised the issue, and it did not request any limit CONTRA COSTA...

Excerpt: ...by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or n...

Excerpt: ...to switch tactics and “add a summary adjudication claim” of the third cause of action for fraud or alternatively, have the court treat its motion as one for judgment on the pleadings with respect to fraud. With respect to the alternative request, this court has already ruled on the sufficiency of the pleadings, including the fraud cause of action. See Notice of Entry of Order [overruling Renee Hilliard, M.D.'s demurrer to all three causes of ...

Excerpt: ...timely. However, plaintiff is admonished that the court does not consider service by regular mail to be proper for Oppositions and Reply Briefs. (See CCP § 1005 (c).) In the future, plaintiff should also use more standard terminology in responding to demurrers and motions, labeling his opposing memorandum of points and authorities as an Opposition, not an Objection. This will aid the Clerk's Office in properly labeling it. Second Cause of Action...

Excerpt: ...laintiff has filed a response expressly stating that she does not oppose Dr. Waechter's motion. It is accordingly granted. The Court notes that, given that plaintiff is apparently convinced that Dr. Waechter was not to blame and that she has no grounds for opposing summary judgment, plaintiff and her counsel should properly have voluntarily dismissed this case as against Waechter, or at least stipulated to such a dismissal. ...

Excerpt: ...es or can reasonably be construed to allege the following. The plaintiffs and the lead defendant, Gerald Knopoff, are siblings, the children of Jean and Leon Knopoff. When Leon died, the children were left $7 million in a trust. But when the trustee, defendant Gerald Knopoff, distributed the funds, each child received only $140,000. (SAC, ¶ 9.) Gerald told plaintiffs the loss of money in the Trust was “due to bad economy and that he had been n...

Excerpt: ...grees, and so the motion is denied. Paragraphs 45‐47 of the complaint allege: An actual controversy has arisen and now exists between Plaintiffs and CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 07/20/18 ‐ 11 ‐ Defendant DCSD with respect to the DCSD's obligations under the Ordinance Code. Specifically, Plaintiffs contend that the DCSD has an obligation under the Ordinance Code to provide security to Diablo r...

Excerpt: ...e argues that the arbitration agreement at issue is unconscionable, and accordingly cannot be enforced. Waiver The Court must consider six factors to determine whether BACR has waived any right it might have had to insist the present dispute with Saeteurn be arbitrated: (1) Whether [BACR's] actions are inconsistent with the right to arbitrate; (2) Whether the “litigation machinery has been substantially invoked” and the parties “were well i...

Excerpt: ...zation of the documents involved. The Court agrees with plaintiff's legal argument, and so plaintiff's motion for summary judgment is granted. This case arises from a line of credit originally extended by First Interstate Bank to Emery Bay Baseball, a now‐dissolved corporation (not sued here). Defendant Kaufman provided a personal guaranty for the line of credit. First Interstate Bank then merged into plaintiff Wells Fargo, which continued to l...

Excerpt: ...and conferred via email. That is facially insufficient. Further, defendant's counsel (Mr. Kensok) states that he made repeated requests to meet and confer even after the filing, but counsel would not do so. In reply (not a sworn declaration), plaintiff's counsel essentially verifies Kensok's assertion, stating that he insisted on a meeting at his office (not, for example, by telephone), and insisted that it be recorded. Besides being uncooperativ...

Excerpt: ...e argues that the arbitration agreement at issue is unconscionable, and accordingly cannot be enforced. Waiver The Court must consider six factors to determine whether BACR has waived any right it might have had to insist the present dispute with Saeteurn be arbitrated: (1) Whether [BACR's] actions are inconsistent with the right to arbitrate; (2) Whether the “litigation machinery has been substantially invoked” and the parties “were well i...

Excerpt: ...473(b); Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340. The six month limit is mandatory. A court has no authority to grant relief under Section 473(b), unless an application is made within the six month period. Id. at 345 (“[W]e hold that a court has no authority under Section 473, subdivision (b), to excuse a party's noncompliance with the six month time limit.”); Austin v. Los Angeles Unified School District (2016) 244 Cal...

Excerpt: ...bor Code section 2699(l)(2) requires the parties to submit the settlement agreement to the LWDA at the same time they submit it to the court. Neither the motion nor Ms. Kraeber's declaration indicates that this has been done. Neither the Court nor the parties are free to ignore the requirements of the statute. Allocation of Settlement Proceeds Second, the Court is concerned about the parties' allocation of the settlement proceeds. As noted above,...

Excerpt: ...to the Opposition. For the reasons discussed below, this motion is granted. Plaintiff shall file and serve the 1AC on or before August 3, 2018. Plaintiff seeks to amend the complaint to allege additional facts as well as to add causes of action for conversion, negligence, and civil damages under California Penal Code section 496. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/19/18 ‐ 12 ‐ Code of Civil Proced...

Excerpt: ...ens in the First Amended Complaint, defendant shall prepare a proposed judgment of dismissal, separate from any formal order on the demurrer, and shall submit that proposed judgment to plaintiff's counsel for approval as to form. The basis for this ruling is as follows. 2nd C/A. The Second Cause of Action is for intentional infliction of emotional distress. The Court has sustained the demurrer to this cause of action because plaintiff has failed ...

Excerpt: ...contract; (3) promissory estoppel; (4) breach of covenant of good faith and fair dealing; (5) negligence; and (6) unfair business practices. Previously, this Court overruled Defendant's demurrer to the causes of action for (2) breach of contract and (4) breach of the covenant of good faith and fair dealing. The Court sustained Defendant's demurrer to the causes of action for (1) violation of Civil Code § 2923.6; (3) promissory estoppel; (5) negl...

Excerpt: ... when an elder abuse claim upon neglect is proper: The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and ...

Excerpt: ...s about the language of the proposed notes and deeds of trust prepared by plaintiffs. Particularly troublesome is the deed of trust provision appointing plaintiffs as defendant's “attorney‐in‐fact.” Finally, it appears that the failure to record a deed of trust has not been material. Plaintiffs obtained and apparently have recorded an abstract of judgment in the sum of $ 45,000, even though there was no provision for such a remedy in the ...

Excerpt: ...tive notice of the motion seeking the August 8, 2016 order. Had she wished to state her claims she should have done so in connection with that motion. ...

Excerpt: ...hompson's motion for summary adjudication is granted as to cause of action 1 against Thompson and denied as to cause of action 1 against Waymire and the City; and granted as to causes of action 7 and 9. MSJ: Standing Respondents argue that Petitioner/Complainant Margaret Thompson (Margaret) does not have standing to bring this lawsuit and requests summary judgment against her. The writ petition and all of the remaining causes of action in the Sec...

Excerpt: ..., simply by sending written notice within thirty days of entering into the contract. Plaintiff appears not to have done that. By that simple act, plaintiff could have avoided all the alleged disadvantages of arbitration. Plaintiff also argues that she must pay to commence arbitration. As defendant says in its opposition, that is not so. See paragraph 5 on page 4 of the credit agreement. Plaintiff further asserts that she will not have certain pro...

Excerpt: ...s, the subject location did not pose a hazard to pedestrians when used with due care. Macerich also argues, in the alternative, that any defect was trivial or open and obvious as a matter of law, precluding recovery. Hines opposes. Evidentiary Issues Macerich's objection to Hines's request for judicial notice is overruled. The Court grants the request for judicial notice under Evidence Code section 452, subdivisions (c) and (h). Relevant Law To r...

Excerpt: ...(1) the claim upon which the attachment is based is one upon which an attachment may issue; (2) plaintiff has established the probable validity of the claim; (3) the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based, and (4) the amount to be secured by the attachment is greater than zero. See CCP Section 484.090(a); California Retail Portfolio Fund GmbH & Co. v. Hopkins Real Estate Group (2...

Excerpt: ...cient time to respond would be requiring an idle act creating further delay. The motion is not untimely because Local Rule 3.301(a)(2) provides that service of the Request for Assignment of Discovery Facilitator shall be deemed the proper filing of a Discovery Motion for purposes of the rule requiring that Discovery Motions be filed within forty‐five (45) days of service of the discovery responses. The Court finds that the local rule is not inc...

Excerpt: ...f defendants Kenneth Turnage and Kenneth R. Turnage II General Contractor, Inc. On September 24, 2016, plaintiff participated in an off‐site charity event, as a member of the wiffle ball team formed by his employer, Defendant Turnage. The wiffle ball team consisted of other employees and non‐employees. Plaintiff's participation was optional. The tournament ended at about 4:00 p.m. Later, after stopping home for a shower, plaintiff attended an...

Excerpt: ... sought in the application. 3. The application is supported by no evidence or proof whatsoever. The standardized form contains no content other than checked boxes, and thus no factual assertions. It states that it relies on the Verified Complaint – but in fact the Complaint is not verified. 4. The unverified Complaint, even if it were under oath, is insufficient to establish a right to recover. Assuming that the application relates to the two v...

Excerpt: ...nder Code of Civil Procedure § 664.6. Nor did the subsequent Notice of Settlement of Entire Case, filed in June 2017, provide either any stipulation or any terms of settlement. At present, the case has not been dismissed, and defendant is in default. There is not, however, any judgment under § 664.6 or otherwise, nor any court order adopting or incorporating the terms of any settlement, nor any court document requiring defendant to pay any mone...

Excerpt: ...or Court pursuant to Labor Code § 98.2(a). The notices were initially rejected by the clerk's window because petitioners did not proffer any appeal bonds, as required by § 98.2(b) “[a]s a condition to filing an appeal”. Petitioners sought an ex parte order requiring the clerk to accept the notices of appeal, pointing out that under Code of Civil Procedure § 995.240 they were entitled to seek waiver of the bond requirement upon a showing of...

Excerpt: ...r Estates Inc. joins the motion, but it does not appear in the papers that that entity has any direct ground for a disqualification motion, and it will be disregarded.) The Court must first comment on the chronology of all this. Black and Weston have represented plaintiff in this action since it was first filed in July 2016. Danilovich has been in the case for some time. Yet the topic of disqualification did not come up until new counsel for Dani...

Excerpt: ... Mahajan moves to expunge on the basis of § 405.32, providing for expungement if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim on which the lis pendens rests. “Unlike most other motions, when a motion to expunge is brought, the burden is on the party opposing the motion to show the existence of a real property claim. (See § 405.30.)” (Kirkeby v. Supe...

Excerpt: ... do not purport to show any such basis for relief. Third, the asserted basis for relief is that the parties settled the case as stated in a settlement agreement attached to the motion – but in fact nothing is attached to the motion, and no such settlement agreement is in the Court's file. Fourth, the dismissal filed by plaintiff in 2015 was absolute and unconditional, with no reservation of jurisdiction under Code of Civil Procedure § 664.6. T...

Excerpt: ...bstantive basis stated in the FAC for recovery of plaintiff's attorney fees. In opposition plaintiff argues that it may recover fees under Code of Civil Procedure § 1021.5 because it is pursuing a matter of public interest. Plaintiff does not elaborate on this assertion, however, and there is nothing in the FAC that could support it. Plaintiff's argument is that it is alleging fraud, and fraud is a bad thing, so therefore the allegations are wit...

Excerpt: ...ve service, in this out of status of limitation case.” The Court has no confident idea exactly what defendant thinks she is asking for, or on what basis. As near as the Court can make out, she is again asking for relief from her prior default and the default judgment against her. That was already ruled on, and defendant presents even less semblance of grounds for any such relief now. This motion, whatever it is intended to be, is denied. ...

Excerpt: ...lternations to the show quality female Standard Schnauzer puppy (“Show Puppy”), including cropping the ears, and (2) from selling, hypothecating, transferring or conveying the Show Puppy to any third party. Plaintiffs shall post a bond of $10,000 by July 19, 2018. Plaintiffs' request for a preliminary injunction that orders Defendants to transfer the Show Puppy to Plaintiffs is denied without prejudice. CONTRA COSTA SUPERIOR COURT MARTINEZ, C...

Excerpt: ...ion of Donald Odell were not tabbed. The Court's denial of the petition is not based on the petition's failure to name the correct respondent. Petitioners should have named Ms. Argabright in her capacity as trustee, rather than the trust itself. The point is moot however, given that Ms. Argabright has appeared to oppose the petition in her capacity as trustee. Further, this is a technical pleading defect that could easily be corrected. The Court'...

Excerpt: ...f).) The California Supreme Court, in the Central Pathology decision that still defines the scope of the governing statute, stated in pertinent part as follows: “a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/12/18 ‐ 8 ‐ because the defendant's conduct would not be directly related t...

Excerpt: ...er Civil Code section 930(b). Plaintiffs contend that the offers to repair made by Meritage during the prelitigation process did not comply with Civil Code sections 933 and 934; as such, according to plaintiffs, they need not continue with the prelitigation process. Plaintiffs also contend that the offers to repair did not comply with section 917. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 07/12/18 ‐ 4 ‐ Sec...

Excerpt: ...A 3/25/92 (“Plaintiffs”). The Motion is unopposed by Defendants. However, for a motion to seal, the opposition is really the people of the State of California and their interest in an open and transparent judicial system. The Court evaluates the Motion pursuant to California Rules of CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 07/12/18 ‐ 10 ‐ Court, rules 2.550 and 2.551. California Rules of Court, rule 2...

Excerpt: ..., so this motion was procedurally required absent a stipulation. ...

Excerpt: ...omplaint was received on the date in question. Pursuant to Evidence Code section 1272, this constitutes evidence that service did not occur. Plaintiff offers the proof of service of Michael Brocks, who attests to having served the documents. Because Mr. Brocks is not a registered process server, the proof of service does not create a presumption of service under Evidence Code section 647. On this showing, the Court considers it more likely that M...

Excerpt: ...ce policy. Where a cause of action is based on the alleged breach of a written contract, “the terms must be set out verbatim in the body of the complaint, a copy of the written instrument must be attached and incorporated by reference or the complaint must plead the legal effect of a contract.” See Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458; Constr. Prot. Servs. Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4...

Excerpt: ...ched that would resolve the objections to be raised in the demurrer.” (Code of Civil Procedure §430.41(a) (emphasis added).) Section 435.5(a) has a similar requirement for motions to strike. Defendants' attorney declares that she sent a letter to Plaintiff's attorney discussing the problems that Defendants had with the First Amended Complaint and asking Defendants' attorney to call her. Plaintiff's attorney did not receive a response to her le...

Excerpt: ...aintiff's application for temporary restraining order is based on its claims for trade secret misappropriation (first cause of action); unfair competition (fourth cause of action); and breach of contract against Defendant Nehls (second cause of action). Although the Complaint alleges a breach of contract claim against MacCarter (based exclusively on provisions of the Employee Handbook (Complaint at ¶ 14 and Ex. B)), Plaintiff sought a CONTRA COS...

Excerpt: .... Plaintiff, Martinez, has failed to raise a triable issue concerning whether defendant, Carvalho, was attempting to collect a consumer debt. Carvalho, has established his right to judgment as a matter of law. (CCP § 437c (c).) A. Background. In April 2005, plaintiff, Martinez, hired the law firm of Gagen, McCoy, McMahon, Koss, Markowitz & Raines (“Gagen, McCoy”) to provide legal services in connection with an employment matter. Gagen, McCoy...

Excerpt: ... response, plaintiff filed a Request for Dismissal, dismissing the entire action and all causes of action. The Court accepted the request and entered the dismissal on April 10, 2018. Plaintiff now files a motion to set aside the dismissal. He states no facts in support of this motion, however, nor does he argue any legal basis for his motion beyond quoting the California CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE...

Excerpt: ... 2018. If he does not do so, the third cause of action will be deemed abandoned and crossdefendants must file and serve answers to the FAXC by August 27. The FAXC's first cause of action is for fraud; the second, for fraudulent concealment; and the third, for intentional infliction of emotional distress. The FAXC is lengthy, containing a detailed narrative of Romero's side of the story on this home‐remodeling contractor dispute. His actual CONT...

Excerpt: ...ses of action (and thus as to the complaint as a whole). On still other causes of action the Court denied the motion, but did not view those contentions as frivolous. Having secured a ruling that defendant's anti‐SLAPP motion was frivolous in part, plaintiffs now bring the present motion for attorney fees under subd. (c)(1) of the anti‐SLAPP statute, Code of Civil Procedure § 425.16(c)(1): “If the court finds that a special motion to strik...

Excerpt: ...motion on May 10, 2018, but the parties stipulated to hearing it concurrently with St. Mark Pittsburg's motion. (See Credit Suisse First Boston Mortgage Capital, LLC v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th 1290, 1301 [“The statutorily mandated minimum notice period for summary judgment may be waived by the parties…”].) The Court addresses both motions in this ruling. The motion of St. Mark Pittsburg is granted to the exte...

Excerpt: ...istricting map by which they argue this could be done, and effectively ask the Court to adopt that map as mandatory. The motion is denied. Plaintiff's Complaint, and the Setting for This Motion Plaintiffs' complaint generally alleges that the District's current at‐large voting structure impermissibly dilutes the votes of racial minorities, namely Latinos and black people. The result of the District's at‐large voting system is that it deprives...

Excerpt: ...C (“Leisure”) moves to strike the prayer for punitive damages (made as a check mark on a form complaint) from Plaintiff's Complaint. The issue presented is whether Plaintiff has pleaded sufficient facts to warrant recovery of punitive damages. Relevant Allegations Plaintiff alleges she was a hotel guest at the Clarion Inn on October 16, 2015, and she was sexually assaulted during her stay by a third party. (Complaint Attachment p. 1.) Plainti...

Excerpt: ... that no one did so. Finally, he attaches documents from the same process server in another case in which a motion to quash was granted. While Defendant asserts that there was a finding in that case that the process server's proof of service was false, the documents provided show no such finding. Plaintiff has responded to the motion with a proof of service by a registered process server, which establishes a presumption of valid service. (Evidenc...

Excerpt: ...ed to comply with Code of Civil Procedure section 415.50 before serving by publication. Second, Acosta contends that Dorsey did not comply with the Court's February 14 Order concerning service by CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/28/18 ‐ 18 ‐ publication. The Court's February 14 Order The February 14 Order required Dorsey to: (1) Publish the summons, complaint, and statement of damages in the Con...

Excerpt: ...t they have been willing to stipulate to a stay of this action all along. Dismissal under Section 583.150 Trilogy contends that the Court ought to exercise its discretion under CCP section 583.150 and dismiss this action with prejudice. The Court declines to exercise its discretion in that manner. Section 583.150 affirms that the Court has inherent discretionary authority to dismiss an action. Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005,...

Excerpt: ...d to judgment as a matter of law. (CCP § 437c (c).) Triable issues of fact exist and/or Wilmington has not established it is entitled to judgment as a matter of law. (See law discussed below and Disputed Material Fact Nos. 1, 2, and 6; Plaintiff's Ex. 14, p. 3 (disclosing the Smith Deed of Trust); Ex. A to Bone Decl. filed 4/23/18, Fama Depo., at 19:8‐20:5; 22:5‐23:10; 43:9‐44:14; 51:25‐52:4; 58:3‐11; 59:1‐8; 61:6‐10; 69:10‐20; 7...

Excerpt: ...nd provides a declaration of a process server saying as much. The process server also says that a proof of service was mailed to Attorney Higgins, who formerly represented plaintiff Williams. Attorney Higgins died in CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 06/28/18 ‐ 2 ‐ early 2018. Williams also argues that by virtue of the large number of coordinated cases making essentially the same claims about the 20...

Excerpt: ...had a personal relationship, obtained entry to his house wrongfully, after their relationship ended, by using a realtor to provide access through a lock box while the property was being listed for sale. Actual damages are not an element of either cause of action. (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265 (trespass); Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82, 88 (invasion of privacy).) Further, each cau...

Excerpt: ...try on March 22, 2017 into a Memorandum of Understanding with real party in interest Pacific Gas and Electric (“PG&E”). EBRPD demurrers to the second cause of action on the grounds that (1) the cause of action to set aside project approval as contrary to planning and zoning law and park district ordinance 38 fails as a matter of law because (a) the park's decision is not subject to the City's general plan and tree protection ordinance and (b)...

Excerpt: ...thew and Arlene Sirott Family Trust, filed a cross‐complaint, against Dr. Patel, as a manager of 400 Taylor Holdings, LLC. Dr. Sirott's cross‐complaint is a derivative suit on behalf of 400 Taylor Holdings, LLC (“400 Taylor”), named as a nominal cross‐defendant. The cross‐complaint alleges Dr. Patel caused harm to 400 Taylor by improperly failing to consider the CRTC Lease Proposal to lease the vacant suite in the 400 Taylor building....

Excerpt: ..., that they are not shown to be reasonably necessary. No particular objection to any proposed cost is raised. Plaintiffs have responded with significant documentation of the fees. Harris has not replied. The matters for which reimbursement is sought all appear to fall within categories eligible for recovery, and were reasonably necessary, with the exception of $16,966.12 in costs for ordering medical and other records The expense for document sub...

Excerpt: ...osed. For the following reasons, the MSJ is granted. At the outset, the Court notes that Plaintiff's Exhibits to the Hennessee Declaration in support of the MSJ are not tabbed, in violation of Cal. Rules of Court, rule 3.1110, subd. (f). See also Local Rule 3.42, subd. (3). Defendants are directed to tab their exhibits in all future filings or risk monetary sanctions. Standard Code of Civil Procedure (“CCP”) §§ 437c(c) provides, in relevant...

Excerpt: ...tration as an expeditious and costeffective way of resolving disputes.” (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843.) “Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration ‘if [the court] determines that an agreement to arbitrate the controversy exists.' (Code Civ. Proc., § 1281.2.)” (Hernandez v. Ross Stores, Inc. (2016) 7 Cal.App.5th 171, 176.) “...

Excerpt: ...ts administrators or directors of care, Mark Callaway and Phylene Sunga. Defendants argue that neither count states a cause of action, and both need to be alleged more specifically. Defendants further argue that plaintiff may not sue the individual defendants. First Cause of Action, Elder Abuse The demurrer to this cause of action is overruled. Plaintiff alleges she was injured on August 8, 2015 while she was a resident at Lone Tree's skilled nur...

Excerpt: ...ly rent in the amount of $2883 payable on the 30th day of each month. The rent shall be paid to the law firm of McCarthy & Holthus, LLP, who shall hold all accumulating rent in its trust account, subject to further order of the Court. Upon entry of judgment in this action, the accumulated rent shall be paid to the prevailing party. Third, Plaintiff shall file and serve a declaration under penalty of perjury, every two months, confirming that all ...

Excerpt: ...ing documents on a “rolling” basis pursuant to the subpoena. The Court will consider Plaintiff's request for attorney's fees for the period prior to February 2018 which were necessitated by Merrill Lynch's initial delay in responding to the subpoena. Parties to appear to address attorney's fees. ...

Excerpt: ...Dolores Street Community Services (together, “Wells”) when deciding Lillian Larios's motion and the evidence submitted by Larios when deciding Wells' motion. This appears to have been the intent of the defendants – Larios referenced evidence submitted by Wells in her motion, and Wells filed a joinder to Larios' motion. However, this intent was not clearly stated in the notice of motions and the Court wants to avoid any prejudice to Plaintif...

Excerpt: ...ill resend (and revise) the mailing, using both reported addresses for Ms. Toy. She is admonished, however, that if she wants to receive the court's mailings, she must see to it that she updates her address in the court's files. For the same reason, the Court is concerned to ensure that the 1390 Market address is a valid address for service of any papers on Ms. Toy. If that is not confirmed, then the present motions would have to be denied for la...

Excerpt: ...act nothing of the kind was attached or otherwise filed. Defendant does belatedly provide the proof of service now, however, as well as a declaration stating that a notice of motion bearing the date and time was served. In any event, it is apparent that plaintiff has been able to ascertain the date and respond to the motion. Plaintiff has also belatedly served discovery responses, none of which includes any objections. That moots the motion. Defe...

Excerpt: ... of the Court's prior grant of leave to amend. (The Court notes with disapproval that neither side has filed and served an Order After Hearing concerning either of those rulings.) In the meantime, however, the principal statute underlying plaintiffs' claims (Civil Code § 2923.6) ceased to be in force, having reached its sunset date without re‐enactment (at least not under the same section number). At a CMC in January the Court directed the att...

Excerpt: ...kground On Monday, January 25, 2016, plaintiff was walking west, on the north sidewalk of Olympic Boulevard in Walnut Creek, California, just west of South Main Street. (Undisputed Material Fact (“UMF”) Nos. 2, 3.) As she was approaching the scene of the accident, she noticed a metal pole bent at an angle in her path of travel, approximately 50 feet in front of her. (UMF No. 3; see Ex. 5 to O'Donnell Decl. filed 6/8/18.) She believed she coul...

Excerpt: ...e argument for its relevance, and the Court assumes that the interrogatory responses might be helpful to plaintiff on the summary judgment motion. What plaintiff does not do, however, is to demonstrate any plausible excuse for not having sought this discovery more timely. As Jacobs points out, this is an unusual case in that his summary judgment motion has been in plaintiff's hands since last September. Plaintiff responded to it fully in January ...

Excerpt: ...TE: 06/22/18 ‐ 2 ‐ (2) for defendants to cure the existing default on the mortgage (which defendants were supposed to pay, but on which plaintiff was the obligor); and (3) for defendants, if possible, to arrange to refinance the house or assume the mortgage, so as to relieve plaintiff of any debt obligation as to the property. If defendants did not cure the mortgage default, or if they did not or could not arrange to get plaintiff off the loa...

Excerpt: ...wn and operate a number of Pizza Hut restaurants. The present lawsuit is an insurance coverage dispute, concerning coverage for two employment lawsuits brought against plaintiffs. The Oregel suit was filed in this County in 2012 against Pacpizza. It asserted class‐action claims for alleged failures to reimburse employees' employment‐related expenses, in violation of Labor Code § 2802. It also included derivative causes of action under the UC...

Excerpt: ...Disputed Material Fact Nos. 10, 16, 17, 26 and Plaintiff's' Additional Fact Nos. 36, 40, 42‐47.) In their Opposition, plaintiffs state they are “withdrawing and dismissing, without prejudice, as to Defendant Scott Clare,” the first, second, third, fourth, and seventh causes of action. No dismissal has been filed, however. The court therefore grants summary adjudication as to those causes of action as to defendant Scott Clare. Clare has made...

Excerpt: ...ed to comply with all the requirements in California Rules of Court, Rule 3.1324. The parties should comply with this rule, as well as all Rules of Court, at all times. There is “a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations]…” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) However, leave to amend can be denied where there is “‘ine...

Excerpt: .... The matter was continued a second time so that Defendant could respond to Plaintiffs' unauthorized supplemental opposition. Defendant failed to comply with California Rules of Court, Rule 3.1113(f). Tables of authorities and contents are generally useful (and required in memoranda over 10 pages) and would have been especially useful given Defendant's oversized brief. The Sequential Litigations Between These Parties Palma I: Palma sued Sabhlok f...

Excerpt: ... of habitability, assets a lengthy list of alleged unhealthy or unacceptable conditions in the building. These allegations have previously been made in two prior litigations between the same two parties. Merriouns asserted the same list of defects in her answer to the landlord's unlawful detainer case. She also asserted uninhabitability as her cause of action in a small claims case against the landlord. Both of those cases went to trial, and in b...

Excerpt: ...they complained about encroachments on their easement. (Disputed Material Fact Nos. 21, 31, 39; Additional Fact Nos. 10, 11, 12, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 30(2), 33, 35, 40, 41, 42, 43, 44.) (A numbering problem exists in the Coneys' Separate Statement of Additional Facts, with some numbers being repeated two or three times. The number 30(2) above refers to the second occurrence of the number 30.) Background The central issue on...

Excerpt: ...t misrepresentation; (4) negligence; (5) wrongful foreclosure; (6) violations of Business & Professions Code § 17200, et seq.; and (7) violation of HBOR (Civil Code § 2923.7). For the following reasons, the Demurrer is sustained, without leave to amend. Request for Judicial Notice Defendants request judicial notice of several Contra Costa County Recorder documents as well as pleadings from other actions in Contra Costa County as well as the Nor...

Excerpt: ... to an award to cover the costs of defense experts. (C.C.P. § 998(c)(1).) Such an award is discretionary, however. (“[T]he court … in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary[.]”) Once the defendant files a verified memorandum of costs (which it did), it is plaintiff's...

Excerpt: ... not be dispositive of all or a significant number of the issues in the other matters. Second, any decision on the upcoming appeal would appear to be as much as two years in the future. Thus, waiting for that appellate result poses a significant risk of simply delaying the resolution of these matter without a substantial offsetting benefit. If all of the parties in any of these matters were to stipulate to a stay, the Court likely would grant the...

Excerpt: ...days after service of a written notice of the default, whichever is earlier. Upon such a showing, the court may set aside the default as long as the lack of actual notice “was not caused by his or her avoidance of service or inexcusable neglect[.]” Defendant asserts that he did not receive notice until about December 27, 2017, when he received a notice of levy. He states that his secretary, who was running the office while he was working on j...

Excerpt: ...any disease. If he has not actually contracted either of these diseases, discovery of Plaintiff's past sexual history would be precluded as there would be no possibility that he had contracted the diseases from someone other than Defendant. If he has contracted either of these diseases, then the motion would be CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/07/18 ‐ 8 ‐ granted as the court finds that Defendan...

Excerpt: ...ion by the Court that this would be inequitable is simply a result of the application of the case law to Travelers' theory, not an indication that evidence on that topic would have changed the result. With respect to the evidence of whether the subcontractor caused the damages, again, the issue arose from Travelers' theory of the case, which was that the evidence was not relevant, CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HE...

Excerpt: ...claimed by the Kizors are subject to a similar analysis. Accordingly, the parties should restructure their claims to fit with that analysis, and meet and confer concerning narrowing of the issues. After that has been done, the Court will consider any remaining issues concerning particular cost items. 6. TIME: 9:00 CASE#: MSC09‐01689 CASE NAME: KIZOR ET AL V. REDIG ET AL HEARING ON MOTION TO/FOR AWARD OF PREJUDGMENT INTEREST FILED BY ALAN KIZOR,...

Excerpt: ...aint (“FAC”) filed by Plaintiff Lillian Morris (“Plaintiff” or “Morris”). The FAC pleads causes of action for (1) violation of Civil Code § 2923.7; (2) violation of Civil Code § 2923.6; (3) violation of Civil Code § 2924(b); (4) negligence; (5) intentional misrepresentation; (6) negligent misrepresentation; (7) promissory estoppel; (8) to set aside trustee's sale; (9) quiet title; (10) elderly financial abuse; and (11) unfair busin...

Excerpt: ...nification, (2) apportionment of fault; (3) declaratory relief; (4) slander of title; and (5) fraud. Defendants demur pursuant to Code of Civil Procedure § 430.10(e) and (f). For the following reasons, the Demurrer is sustained, without leave as to the cause of action for slander of title and with leave as to all other causes of action. Legal Standard “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.�...

Excerpt: ...e or at the same time as the answer to the complaint or cross‐complaint. (b) Any other cross‐ complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross‐complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. Section 426.50 also is relevant. It says:...

Excerpt: ...nded cross‐complaint on or before June 27, 2018. Meet and Confer Declaration (CCP § 430.41) Gregory L. McCoy, counsel for HomeSite, Tina Tomei and Darryl Phelps, filed a declaration stating he sent an email on April 4, 2018, listing the defects in the cross‐complaint and requested an opportunity to meet and confer. Cross‐Defendants' counsel, Christine Wheatley responded with an email, declining to make any modification to the cross‐compl...

Excerpt: ...Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980. This is because California law has a strong preference for resolving disputes on their merits. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696. Here, the Court has before it conflicting declarations. One declaration indicates that personal service was effected. One declaration says there was not actual notice. Ordinarily, the Court would resolve that conflict in favor of granting the motio...

Excerpt: ...his is because California law has a strong preference for resolving disputes on their merits. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696. The answer included with the moving papers is deemed filed and served on all parties who have appeared in this action as of the date of this order. The Court sets a case management conference for 9:00 a.m. in Department 15 on August 9, 2018. At that time, the parties should be prepared to set a tr...

Excerpt: ...n Loan Servicing, LLC (“Defendant” or “Shellpoint”). The Demurrer relates to the Second Amended Complaint (“SAC”) filed by Plaintiff Dean Oduah (“Plaintiff” or “Oduah”). The SAC pleads causes of action for (1) breach of contract; (2) promissory estoppel; (3) negligent failure to fulfill promise; (4) breach of contract & interference with 3rd party beneficiary contract; (5) negligent misrepresentation in loan modification; (6) ...