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: ...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: .... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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) ...