Excerpt: ...arge voting structure impermissibly dilutes the votes of racial minorities, namely Latinos and blacks. The result of the District's at‐large voting system is that it deprives racial minorities of the opportunity to elect the trustees that comprise the District's five‐member Board. The District's Board governs five cities – Richmond, San Pablo, Hercules, El Cerrito, and Pinole – and eight unincorporated areas. The totality of the circumsta...

Excerpt: ...of the Order After Hearing hereon. HOLA Preemption Wells first argues that the entire FAC is preempted by the federal Home Owners Loan Act (HOLA), 12 USC §§ 1461 et seq., and its implementing regulation, 12 CFR § 560.2. See generally, e.g., Lopez v. World S&L (2003) 105 Cal.App.4th 729. Such preemption is limited to federal savings banks, which Wells admittedly is not. Wells Fargo nevertheless argues that HOLA preemption applies here because t...

Excerpt: ...30 days after service of the Order After Hearing hereon. If he elects not to do so, the case will be dismissed. Defendants' attorney, Thomas Crowell, submitted a declaration showing compliance with the meet and confer requirements in Code of Civil Procedure § 430.41. Plaintiff submitted a declaration stating that he does not recall Crowell calling him on April 11, 2018 to discuss the FAC. The Court accepts Crowell's statement that he discussed t...

Excerpt: ...ich the unlimited action is pending [1] may stay the unlawful detainer action until the issue of title CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/21/18 ‐ 6 ‐ is resolved in the unlimited action, or [2] it may consolidate the actions. [Bracketed numbers added.] Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 367, 385. While Martin‐Bragg and other cases mention consolidation as a theoretical possibility, p...

Excerpt: ...rally construed, with a view toward substantial justice.” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) Plaintiff Howard S. Leight & Associates, Inc. dba Leight Capital brings this action to quiet title to real property commonly known as 1100 Russelman Park Road in Clayton. Plaintiff seeks title, free and clear of all right, title, liens, and interests in the property created between 3‐14‐ 2001 and 2‐23‐2011. Plaintiff's o...

Excerpt: ...ertainty and the failure to state a claim. The Court refers to the property currently owned by Plaintiff as “Plaintiff's Property”, and not as the “disputed slice”. The property currently owned by Klamczynska and Klamczynski is referred to as Lot 9. And the property currently owned by the Oznowiczes is referred to as Lot 8. Plaintiff argues that his property became landlocked in 1967 when Lots 8 and 9 engaged in a lot line adjustment and ...

Excerpt: ...ovide a formal response to Plaintiffs' Second Request for Production of Documents which complies with the Code of Civil Procedure as previously ordered by the Court. A judge has broad discretion to impose sanctions for violations of court orders, including those intended to compel compliance with a party's disclosure and discovery obligations. The Court has the authority to impose more drastic sanctions, such as issue sanctions, evidence sanction...

Excerpt: ...ion of Business and Professions Code section 17200 et seq.). The Court addresses each cause of action separately below. Breach of Contract In light of the Court's ruling on Kessler's anti‐SLAPP motion, the Court need not, and therefore does not, address the demurrer to the breach of contract cause of action pled in Longmire's cross‐complaint. Fraud It appears that the cross‐complaint attempts to state a claim for fraud based on one or more ...

Excerpt: ...eir motion is 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(o)(1) and 437c(p)(2) provide the relevant legal standard for deciding the MSJ. Section 437c(o)(1) provides, in relevant part: A cause of action has no merit if one or more of ...

Excerpt: ...urt notes that Kessler filed a reply brief supporting the antiSLAPP motion on June 12, 2018. The reply was due to be filed on June 11, 2018. The Court strikes the late‐filed reply brief and declines to consider it. Section 425.16(f) As a preliminary matter, the Court rejects Longmire's position that CCP section 425.16(f) requires the Court to deny the motion. Section 425.16(f) imposes a requirement on the clerk of the court to schedule an anti�...

Excerpt: ...hed to Defendants' pleadings belies this argument, which the Court finds disingenuous. The email from Plaintiff dated May 10, 2018, (Exhibit D to the moving papers), unequivocally extends to May 18, 2018 Defendants time to respond to the Second Amended Complaint. The parties had been in the process of discussing the possible demurrer to the Second Amended Complaint. Plaintiff's “surprise attack” of filing the Request to Enter Default on May 1...

Excerpt: ...t petition before the Court by way of a noticed motion. The Court has considered carefully the material the parties have presented, and rules as follows. Background Work and Injury History Fernandez began working for Contra Costa County in either 1996 or 1998. (The briefing and the administrative record diverge on this date. For purposes of this ruling, the distinction is immaterial.) On three separate occasions, she was injured at work. In July ...

Excerpt: ... the other case were not pending. In this case, Uecker (as liquidating trustee) is suing defendants Ng and Wild Game to collect on a note and guaranty made by defendants in favor of Horwitz. Defendants are defending the case on the theory that the purported note and guaranty were sham transactions intended to conceal Horwitz's alleged equity participation in Wild Game by falsely depicting Horwitz's involvement as a debt. The Court of Appeal has h...

Excerpt: ... serve the amended cross‐complaint on or before July 15, 2018. This case arises out of a disagreement over the purchase of a residence in Richmond. The cross‐complaint alleges that cross‐complainant Kingsway located a short‐sale property, available for purchase at $200,000 below market value. Kingsway and Gardner reached agreement in November 2016 to work together to buy the property and resell it. Their written agreements called for Gard...

Excerpt: ...the case in Lines 10‐12). In that case she obtained an attachment as to one of Ng's assets, namely a note and deed of trust executed in Ng's favor by the Kellys, the defendants in this case. (Ms. Kelly is Ng's daughter; Mr. Kelly, his son‐in‐law.) In this action, plaintiff seeks to enforce the Kelly note in her capacity as a judgment creditor or potential judgment creditor of Ng. The timing of all this is complicated by the course of plaint...

Excerpt: ...y 15, 2018. This dispute has been running in various courts for some time. Plaintiff first filed a small‐ claims case in this Court in 2016, alleging (in less detail) her difficulties in working with Seterus. She also filed a case in federal court for violation of a parallel federal statute, and the small‐claims case was removed to federal court under supplemental jurisdiction. In August 2017 the federal court granted summary judgment against...

Excerpt: ...f this ruling, the Case Management Conference now set for June19 is premature. The CMC is continued to October 31, 2018 at 8:30 a.m. This case arises out of plaintiff's claim that defendants rented her an uninhabitable premises, 1300 Roosevelt Ave., #420, Richmond, California. Defendants move for judgment on the pleadings as to the Fourth Cause of Action, Negligence, and Fifth Cause of Action, Intentional Infliction of Emotional Distress, arguing...

Excerpt: ... might be (at least part of) Bidsmart's response. There is nothing in the declaration identifying what that page is, though, let alone authenticating it under oath as accurate and complete. On the contrary, the page is presented simply as part of a meet‐andconfer letter. Without more, the Court has no way of reliably knowing what responses Bidsmart made or didn't make, let alone judging whether they are appropriate or not. The Court also notes ...

Excerpt: ...on or before July 15, 2018. Background This case arises out of a failed transaction for Thomas and Hilary Holden to sell 783 Los Palos Manor in Lafayette, California to cross‐defendant William Wahl. The Holdens alleged that the sale fell through after two checks (one for $50,000 and the other for $10,000) that Wahl placed as a deposit into an escrow administered by Fidelity were dishonored for insufficient funds. The CONTRA COSTA SUPERIOR COURT...

Excerpt: ... motion was not filed until May 2. Plaintiffs' reply asserts that the 30‐day deadline in the Local Rule is “intended as a deadline for a party to raise objection to the facilitator's recommendation, not the filing of a motion to compel after participation in the program.” The plain language of the Rule is contrary; it states that the 30‐day deadline is for filing and service of “a formal Discovery Motion”. That means either a motion t...

Excerpt: ...o sanctions are awarded. In the event that defendant has served responses prior to the hearing, no matters will be deemed admitted, but sanctions are awarded to Plaintiff in the amount of $1,000. The Court has read defendant's opposition brief, laying out in general terms the reasons why defendant thinks plaintiff should not be suing her. None of that is before the Court on this motion, however, and none of it bears on the present motion. This mo...

Excerpt: ...er, never filed the settlement agreement itself, or any § 664.6 judgment thereon. Nor did the Notice inform the Court of any of the terms of the settlement, beyond reporting that the date by which a final dismissal of the case would be filed was March 15, 2017. In particular, there is nothing by which the Court reserved jurisdiction to enforce the settlement. Because March 15 came and went with no dismissal filed, the Court sent an OSC why the c...

Excerpt: ...AC until their reply. As best the Court can tell, defendants seek to strike the FAC because it is a sham pleading – by which defendants apparently mean nothing more than that the FAC is defective for the reasons argued in their demurrer. The Court rules on the demurrer in Line 20. The motion to strike adds nothing. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/15/18 ‐ 34 ‐ 22. TIME: 9:00 CASE#: MSC17‐015...

Excerpt: ...2 ‐ Code of Civil Procedure § 436(b) permits the court to grant, or deny, a motion to strike if the challenged pleading is not in conformity with an order of the court. However, It is the policy of the law to favor, wherever possible, a hearing on the merits, and appellate courts are much more disposed to affirm an order where the result is to compel a trial upon the merits than they are when the judgment by default is allowed to stand and it ...

Excerpt: ... claim for punitive damages from Plaintiff's complaint. Following that Order, on February 28, 2018, Plaintiff filed a first amended complaint (“FAC”) that, by comparison to the original complaint, substantially increases the factual allegations supporting a prayer for punitive damages in this case. Plaintiff's FAC alleges that Plaintiff, then a 5th or 6th grade student at the School, was subjected to disability discrimination after he slipped...

Excerpt: ...denied in all other respects. The Court starts with the observation that this motion represents a failure to meet and confer. There is no formal requirement to do so in this setting, but prudent counsel on both sides would have given it more of a try before proceeding with motion practice. Probably the parties would have had to litigate at least the § 998 issue (absent a compromise of the issue, which was certainly a possibility). But a couple o...

Excerpt: ...urrer to be a more appropriate procedural vehicle for deciding that purely legal question. If the Court were to deny an injunction based on its preliminary assessment of how it might rule on a demurrer, the Court would be transforming this OSC hearing into what would functionally be a dispositive motion. The Court finds that plaintiff has a low likelihood of prevailing on the merits, based on the legal arguments set forth in defendants' oppositio...

Excerpt: ...he Petitioner as permitted by PRC §21167.6(b)(2). “(W)e have been cited no authority, nor are we aware of any, indicating labor costs to review a petitioner‐prepared record of proceedings “for completeness” in connection with certification CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 06/14/18 ‐ 15 ‐ pursuant to section 21167.6, subdivision (b)(1), are recoverable record preparation costs. This sort of...

Excerpt: ...ly 16, 2018 is vacated. The motion is granted to the extent set forth below. Regarding the scope of any stay, plaintiff has stated she only wants to complete the discovery already served that is the subject of the discovery motions also on calendar for today's hearing, June 14, 2018, and any discovery that has already been noticed. (See Opp. at 3:9‐10.) The court grants the first request, but denies the second. This matter is stayed except for ...

Excerpt: ...laintiff did not oppose the motion, and so it was granted. The Court signed an order dismissing this action on April 25, 2018. Plaintiff now moves to set aside the April 25, 2018 dismissal order, citing CCP section 473(b). Plaintiff's counsel says that he did not oppose the 583.420 motion because he “assumed it would be denied.” It appears his assumption was based at least in part on the fact that on March 6, 2018 (after the 583.420 motion wa...

Excerpt: ...omatic stay does not apply in this case because he is the plaintiff. At some point, an issue may arise as to whether the trustee in bankruptcy wishes to pursue the claim, but that issue is not before the Court at this point.) ...

Excerpt: ...c).) Plaintiff moves for “summary judgment” of the Second Cause of Action for Non‐Payment of Overtime Hours on Final Paycheck on the ground there are no genuine issues of material Plaintiff argues he has established the elements of his claim and there is no defense thereto. Defendants oppose the motion on the ground Plaintiff cannot carry his burden of persuasion and the motion should be denied. Defendants argue the evidence shows Plaintiff...

Excerpt: ... reasons stated below the Motion is granted. By way of the Motion, Plaintiff seeks leave to file a first amended complaint (“FAC”) that contains all four of the causes of action in the original complaint, and adds a fifth cause of action for Failure to Hire under Government Code section 12940(a). Plaintiff's original complaint alleges that Defendants fired Plaintiff due to Plaintiff's sexual orientation as a homosexual man. The proposed FAC k...

Excerpt: ...n conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement …are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” The Court will consider these issues in turn. Petitioner is a successful party. The Court issued a writ of mandate, based on its conclusion that, while the Department has wide discret...

Excerpt: ...ed Discovery (data storage). The Court finds that this cost is more properly viewed as overhead. Further, plaintiffs' counsel has not adequately explained why it is necessary to spend $ 20,000 each year for data storage, and has not adequately explained how the $ 375.00 allocation for this case was calculated. (Mikhov Dec., ¶ 9.) Other Disputed Items. The other disputed cost items are neither expressly allowed nor expressly disallowed under the ...

Excerpt: ...s sale. No undertaking is required at this time, based on the information set forth in plaintiff's application for a fee waiver. (See, Code Civ. Proc., § 995.240 [undertaking may be waived for indigent party].) The purpose of this three‐month injunction is to allow the legal merits of plaintiff's complaint to be decided by demurrer. The Court finds a demurrer to be a more appropriate procedural vehicle for deciding that purely legal question. ...

Excerpt: ...uant to Code of Civil Procedure section 2016.040. Defendants and each of them shall have the right to take and complete Plaintiff's deposition. ...

Excerpt: ...ons WSI argues generally that Chevron has a time bar problem and that Chevron has not alleged sufficient facts to rely on the discovery rule. In the first instance, the demurrer does not identify which specific causes of action suffer from a limitations problem, or what the applicable statute(s) of limitations are. The Court is left to guess. On its own, this failure to support the contention that one or more of the causes of action is time‐bar...

Excerpt: ...laint against Hertz, alleging that she had purchased insurance from Hertz. The cross‐ complaint asserted claims for bad‐faith denial and indemnification. Nowhere in the crosscomplaint, however, did Kuney state any amount for the compensatory or punitive damages sought. Nor did she serve any statement of damages. Because the cross‐complaint was basically one for indemnification, it might be argued that Kuney could not know the amount of her ...

Excerpt: ...ding.” Section 436 (b) permits the court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Section 437(a) provides that “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” As plaintiff tacitly concedes, there is no legal bas...

Excerpt: ...erous motions to compel discovery, with awards of sanctions. Plaintiffs have not complied with the Court's orders, nor have they paid the sanctions. They have simply ceased to respond. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 18 ‐ This is to the obvious prejudice of defendants, who have not been able to conduct meaningful discovery in the case. Plaintiffs have not responded to the present motion...

Excerpt: ...are denied. Liability of Ruggio In Special Verdict 1, the jury was asked whether each of Johnson and Ruggio were negligent. The jury answered “yes” as to both. In Special Verdict 2, the jury was asked whether each defendant's negligence “was a substantial factor in causing harm to [plaintiff]”. The jury answered “yes” as to defendant Johnson, but “no” as to defendant Ruggio. Plaintiff's principal argument is that the jury erred in...

Excerpt: ...cedural Setting At the outset, there is some imprecision and awkwardness about how this motion was filed and whether it is properly before the Court for decision. At a CMC the parties suggested that a major obstacle to possible settlement was disagreement as to the applicability of MICRA. The Court suggested that the parties might benefit if they could find a vehicle for presenting that “logjam” legal question to the Court for early decision,...

Excerpt: ...o this Court as the appropriate venue. The first amended complaint asserts causes of action for (1) negligence, (2) negligent failure to carry sufficient liability insurance, and (3) vexatious failure to pay plaintiff's claim. The second and third causes of action do not exist in the law. Defendant owes no duty to plaintiff as to how much insurance he chooses to carry, so long as he carries the statutory minimum coverages. Plaintiff does not alle...

Excerpt: ...icable three‐year statute of limitations. (Code of Civil Procedure § 338(a).) Plaintiffs allege that defendants' recordation of a notice of default in April 2013, and their recordation of a notice of trustee's sale in July 2013, violated HBOR. (FAC, ¶¶ 25‐27.) Yet plaintiffs did not commence this action until December 2017, more than four years later. In their opposition memorandum plaintiffs seek to invoke the doctrine of equitable tollin...

Excerpt: ...Code of Civil Procedure § 430.10(e) on the grounds that it did not owe a duty of care to Plaintiffs because it did not own, possess, or control the premises at the time of Plaintiffs' injury. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 06/01/18 ‐ 2 ‐ The demurrer is overruled. Seterus must file and serve its answer to the TAC by June 29, 2018. Seterus demurred to the Second Amended Complaint on the exact sam...

Excerpt: ...not disputed that Dr. Braunstein is the prevailing party for purposes of awarding fees and costs. Karkanen opposes by objecting to the amounts sought by Dr. Braunstein as fees and costs. Karkanen also opposes by contending that an award of fees and/or costs would be unconstitutional. Constitutionality of Awarding Fees and/or Costs Our Supreme Court already has considered and rejected the contention that awarding fees and/or costs to a party preva...

Excerpt: ...ciding whether or not to consolidate two cases, the Court looks primarily at whether the actions involve common questions of law or fact. (Code of Civ. Proc. §1048(a).) The Court also considers whether consolidation would prejudice the parties. (See, e.g. State Farm Mut. Auto. Ins. Co. v. Superior Court of San Francisco (1956) 47 Cal.2d 428, 432.) In this case, Alcazar alleges in his verified complaint that Enriquez agreed to help Alcazar buy th...

Excerpt: ...City pursues a General Plan Amendment to change the land use designation for that area from its current designation of Low Intensity Business/Light Industrial to Open Space, Parks and Recreation, Agriculture, Public Cultural and Institutional (hereinafter “Open Space”). Plaintiffs are property owners in Change Area 12. Some of them have pending development applications. Plaintiffs claim the City's adoption of the moratorium and pursuit of the...

Excerpt: ...as matters that may be judicially noticeable, but it may not consider other evidence presented by the parties. (Ibid.; see also, Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant argues that there is another action pending between the same parties and that there is a defect or misjoinder of parties. Defendant has offered no matters upon which the Court may take judicial notice and therefore the Court can only consider the complaint. The compl...