Excerpt: ... Friedman's misdiagnosis to conform to an onerous gluten‐free diet. She asserts damages in the form of unnecessary expense (in obtaining food) and inconvenience and emotional distress (in avoiding restaurants, social situations, and the like). She alleges no physical harm from the misdiagnosis. Friedman moves on the basis that Manning's action is barred by the statute of limitations. The statute of limitations for malpractice claims against a h...

Excerpt: ...courier service, that is fine. Absent such a stipulation or court order, however, e‐mail is not a proper means of service. The Court is not aware of any such stipulation or court order. (Defendant has filed no response to the motion.) The motion rests on the assertion that in her vexatious‐litigant motion (Line 20), defendant has violated HIPAA and various other privacy laws by disclosing a confidential custody evaluation conducted in the Mar...

Excerpt: ...d by ISI. Plaintiff alleges that the device caught fire, causing him personal injury in a variety of ways. His complaint did not name ISI as a defendant, He instead incorrectly sued Greg Otto, an executive of ISI, alleging that ISI was a dba of Mr. Otto. The Court previously granted Mr. Otto's motion to quash service for lack of personal jurisdiction, noting that plaintiff had not sued the correct entity. Although plaintiff did not take the hint ...

Excerpt: ...uest for continuance of the demurrer hearing. He was properly and timely served with the demurrer, however, nearly a month before his opposition was due. He states no grounds why he was unable to respond timely, or why he needs more time, beyond an unexplained reference to the holidays and the Butte County fire – but with no suggestion how, if at all, the fire could have affected plaintiff's ability to prepare an opposition. (Plaintiff lives in...

Excerpt: ... successive theory is shot down by clear proof or by defendants' own admissions in discovery. Defendants' brief spends several pages recounting an anecdote about Dennis Rodman, the relevance of which eludes the Court. A more appropriate pop‐culture reference might be Maxwell Smart: “Would you believe….?” Defendants argue that they should not be stuck with what they characterize as a sloppy and inadequate answer filed by their former attor...

Excerpt: ...ourth causes of action for negligence and violation of Business & Professions Code section 17200 are overruled. The unopposed requests for judicial notice are granted. (Evid. Code § 452.) I. Background In 2005, Plaintiffs Amir Shenas and Azadeh Vaezizadeh refinanced a property located at 4071 Lilac Ridge Rd. in San Ramon. Defendant Bank of New York is the current beneficiary of the loan. Defendant Bayview Loan Servicing, LLC services the loan. D...

Excerpt: ...ond Amended Complaint (“ASAC”) filed on October 19, 2018. Defendants 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. Despite the serious concerns expressed in the Court's interim ruling of October 25, 2018, and in Part A‐3 of this ruling below, the Court exercises its discretion not to award monetary sancti...

Excerpt: ...rces, Inc. (“Cross‐Defendant or “IR”) demurs to the all causes of action alleged against it on the ground Cross‐Complainant failed to file a certificate of merit, pursuant to CCP § 411.35. The certificate must be filed before or concurrently with the complaint or cross‐ complaint. Failure to file a certificate is a ground for demurrer or motion to strike. (Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359‐360; CCP § 411.35(g)....

Excerpt: ...d by Defendant DeVries. Plaintiffs is suing the State of California, Department of Transportation (“Caltrans”) for (1) premises liability ‐ dangerous condition of public property per Government Code section 835 and (2) general negligence. Caltrans has demurred to the CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE: 11/29/18 ‐ 14 ‐ second cause of action. In that cause of action, Plaintiff alleges that Caltra...

Excerpt: ...5.16 provides that “any cause of action against a person arising from any act. . . in furtherance of the person's right to petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 33 HEARING DATE...

Excerpt: ...urt. The parties should be prepared to address whether that is proper. Until that issue is resolved, the Court is not inclined to proceed with the motion. If that issue can be resolved, the Court offers the following observations. Legal Standards: The Legislature's express command that PAGA settlements be approved by the court necessarily implies that there is some substantive dimension to the review. See Labor Code Section 2699(l). The Court's r...

Excerpt: ..., the summons and complaint were not served within 3 years from the filing of this case. Plaintiff had ample opportunity to properly obtain an order for publication but failed to timely do so. Case is dismissed pursuant to CCP §583.210 et seq.” After plaintiff orally argued the matter on August 9, 2018, the court adopted the tentative ruling as its order and ordered the case dismissed. The formal order granting defendants' motion was signed on...

Excerpt: ... Goel (2005) 35 Cal. 4th 1094, 1105, n. 4.) In this instance, Jarboe points out that the Court's prior decision contains an erroneous statement of fact, i.e., that Parr had not given a PAGA notice to the LWDA at an important time in the process. Indeed, Parr had given such a notice on September 21, 2017, a fact not contested by the opposing parties. This affected the Court's reasoning, because, as the order stated, “with proper notice to all co...

Excerpt: ...opposition, which the Court has reviewed. Plaintiff is entitled to reply at the hearing. Accordingly, the Court sets forth tentative views based on the papers filed to date, and the parties must appear. Plaintiff moves for summary judgment, asserting that this is a straight‐forward postforeclosure unlawful detainer, i.e., that the plaintiff foreclosed on the property in a non‐judicial foreclosure complying with all statutory notice requiremen...

Excerpt: ...event sexual harassment. Plaintiff Tonya Guice was hired as a full‐time security guard in February 2017. When Plaintiff was hired, she was provided a copy of Defendant's Arbitration Policy and Agreement as a mandatory condition of her hiring. The Agreement contained the following language, “By accepting and/or continuing employment with the Company, you agree to the terms of this Policy and Agreement.” Plaintiff has refused to submit to arb...

Excerpt: ...l is not a California resident, and therefore is not protected by the statute. As to Union Oil, plaintiffs argue that defendants have failed to separate costs involving Ashland from those involving Union Oil. In addition, plaintiffs argue that the specific costs requested are not shown to be reasonable and recoverable. Finally, they argue that defendants have not shown a reasonable possibility that they will prevail. They do not argue that they a...

Excerpt: ...ons, Inc. (“Lucky”), an Idaho corporation (collectively, “Plaintiffs”). Plaintiffs filed a request to file an extended page length in their opposition. That request is granted. No reply was filed. By way of the Motion, Defendants seek to strike the entirety of Plaintiffs' verified complaint (the “VC”) containing four causes of action for: 1) Libel Per Se; 2) Slander Per Se; 3) Intentional CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORN...

Excerpt: ... this Court could grant that could redress the breaches the plaintiff alleges here, or to restore these parties to a working contractual relationship. This Court is routinely accustomed to admonishing juries and parties that the existence of a dispute is no proof of what the proper outcome should be. In the highly unusual setting of this case, however, the mere existence of a bitter and comprehensive disagreement between the plaintiff and the def...

Excerpt: ...b of depicting her as an innocent college student at a university in Illinois, who never had any formal or informal involvement in Bara's business. Her name surfaced in Bara's business paperwork only because the mother, without Singh's knowledge or approval and reportedly by clerical error, included Singh's name as an officer and agent for service of process in some of the paperwork. The motion papers raised eyebrows maybe just a little as to how...

Excerpt: ...ff within 30 days of today. Plaintiff seeks production of three documents or sets of documents: (1) the District's incident reports and witness statements concerning the incident of 10/14/16; (2) the District's incident report concerning plaintiff's asthma attack on 11/16/16; and (3) reports (with student names redacted) of other prior complaints and incidents involving defendant Kuta. The District's opposition papers attempt no justification wha...

Excerpt: ... uninhabitable a home owned by Insalaco and occupied by Lomax. The parties dispute the exact date of the landslide, but it occurred sometime in February, 2017. Various neighboring landowners, including the County of Contra Costa, are also involved via cross‐ complaints. There are a welter of complaints and cross‐complaints pleaded by the numerous parties against each other. For purposes of the present four summary judgment motions, however, m...

Excerpt: ...quirements for taking a lump‐sum rollover of her 30‐year accrued retirement as an employee of the Alameda County Superior Court (Alameda Court). She alleges that she was told the process for calculating her final retirement benefit would take months, that in the meantime she could take monthly benefits, and that once the calculations were done she could take a lump‐sum rollover. Her later request for rollover was denied based on her initial...

Excerpt: ...R COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 11/15/18 ‐ 4 ‐ The Court will send out a separate e‐filing order in the near future. The parties, as well as support staff involved in e‐filing, are urged to review that order carefully and abide by its terms. The Court notes that in the stipulation and order filed on October 19, 2018, the parties stipulated to consolidate three related derivative actions. As part of this stipulati...

Excerpt: ...For the following reasons, the Defendant's Motion to Expunge Lis Pendens is granted. At the outset, the Court notes that the Plaintiff's Request for Judicial Notice in support of its Opposition to Defendant's Motion to Expunge Lis Pendens as well as the Declarations of Galen Gentry and Kristin Andrade are not tabbed, in violation of Cal. Rules of Court, rule 3.1110, subd. (f). See also Local Rule 3.42, subd. (3). Plaintiff is directed to tab her ...

Excerpt: ... in an employment matter against Respondent's employer. Their attorney‐client hourly fee agreement (the “Fee Agreement”) contains an arbitration clause providing for arbitration of any dispute between the parties. (Decl. of Janis E. Eggleston, filed 8/31/18, attached as “Exhibit A,” Attorney‐Client Hourly Fee Agreement, at p. 8 ¶ 25.) Specifically, paragraph 25 (a) of the Fee Agreement provides for arbitration of fee disputes. JAMS A...

Excerpt: ...t the broker defendants. The parties should be prepared to discuss that topic at the CMC scheduled for November 28. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 11/02/18 ‐ 6 ‐ This is a dispute over a home purchase. Plaintiffs are the purchasers. Defendant Cain was the seller. Defendants Haus and Renjen & Assocs. were the brokers. It is uncontested that the sales contract, as between seller and buyers, include...

Excerpt: ... relief available for certain causes of action; they are not a cause of action in themselves. E.g., Hiliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391. Accordingly, defendants properly proceed by a motion to strike rather than a demurrer. This motion raises questions as to both the level of alleged conduct that is substantively required to support recovery of punitive damages, and what level of specificity is required in a pleading seeking...

Excerpt: ... substance of the proposed first supplemental complaint is a request for a declaratory judgment as to the res judicata/collateral estoppel effect of a judgment in this case in barring a hypothetical future case that defendants may or may not file on the same subject matter in the future. That's not a cause of action, by declaratory judgment or otherwise; it's a proposed defense to a lawsuit that hasn't even been threatened yet, let alone filed. (...

Excerpt: ...efense – sustained, without leave to amend. Second affirmative defense – sustained, without leave to amend. Third affirmative defense – sustained, with one opportunity to amend. Sixth affirmative defense – overruled. Seventh affirmative defense – sustained, with one opportunity to amend. Eighth affirmative defense – overruled. Ninth affirmative defense – overruled. Tenth affirmative defense – sustained, with one opportunity to ame...

Excerpt: ...iary duty is sustained with leave to amend. Cross‐Complainant, Shannon B. Jones Law Group, Inc. (“SBJLG”) alleges Sandra VellaAndrade (“SVA”) was the Controller of SBJLG from approximately August 2010 through January 2016. Her responsibilities included handling all financial matters for the law group. SBJLG alleges she had a fiduciary duty of loyalty. She breached the duty by approving alleged overtime work by Olson without disclosing t...

Excerpt: ...garding the form or content of the opposing party's pleading. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. For purposes of a demurrer, all properly pleaded facts are admitted as true. Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967. “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good again...

Excerpt: ...ten” or “Cross‐Complainant”). The SACC pleads causes of action for (1) equitable indemnity, (2) total indemnity, (3) contribution, and (4) declaratory relief. Cross‐Defendant demurs pursuant to Civil Procedure § 430.10(e) on the grounds that CrossComplainant's equitable indemnity claim is precluded by the “hold harmless” provision of the parties' contract and as a consequence its claims for total indemnity and declaratory relief al...

Excerpt: ... of action in the Cross‐Complaint in the context of the appropriate jury instructions to be submitted to the jury. The court did not, as Plaintiffs contend, rule that Defendants “could have been entitled to attorney's fees” on those causes of action. Instead, the court suggested and counsel agreed that those causes of action and any corresponding claim for attorney's fees or other expenses should be severed and argued to the court after any...

Excerpt: ...leave to amend. Teichert was aware that “weld discontinuities” might have constituted a breach of the warranty of fitness in March 2018, but did not bring its motion for leave to amend until September 2018. (Hilberg Dec., Exh. 2 [response to form interrogatory 314.2].) However, the Court also finds that cross‐defendant Northwest Pipe Company has not demonstrated substantial prejudice. (See, Mesler v. Bragg Management Co. (1985) 39 Cal.3d 29...

Excerpt: ...ATE: 11/01/18 ‐ 8 ‐ Background This multi‐plaintiff construction defect case concerns several homes in Oakley built by Meritage. Plaintiffs own one of them: 124 Copper Knoll Way. Their sellers, John and Denise Aragon, brought a construction defect case against Meritage in 2010. (Separate Statement of Undisputed Material Facts [“SSMF”] No. 1.) While the Aragons do not appear to have signed the relevant settlement agreement, they dismisse...

Excerpt: ...ted. The court received Defendant's supplemental papers. Plaintiffs filed their supplemental papers 5 days late. The court has considered all papers. I. THE ARBITRATION AGREEMENT IN THE RELEVANT CC&R'S IS SUBJECT TO THE FEDERAL ARBITRATION ACT The Federal Arbitration Act (“FAA”), 9 U.S.C. Section 2, provides, in part, that a “written provision in … a contract evidencing a transaction involving commerce to settle by arbitration a controver...

Excerpt: ...r. Sirott and Dr. Patel, who were the only two managers of both Taylor and CRTC, properly exercised their managerial responsibilities of both CRTC and Taylor with respect to the EBMOH lease proposal, another entity in which Patel was part owner. The resolution of whether Dr. Patel violated the non‐competition provision of the CRTC Operating Agreement, which is at issue in the arbitration, may be dispositive of the claims Patel has made against ...

Excerpt: ...th Thomas Truston to purchase a floating home, currently situated at 7000 Orwood Road in Brentwood. Plaintiffs allege in the proposed amended complaint, which the court has granted in the accompanying motion, the subject floating home was brought to Bethel Island and Cruiser Haven Marina in 2008. On information and belief, Plaintiffs believe that Defendants have not dredged Orwood Slough and at present the slough is too shallow in several places ...

Excerpt: ...t Lemuel Sirvonn Wilson, Jr., and owned by defendant Savee Pralourng, struck her car. Three of Ms. Reyes' children were passengers and two died at the scene. The third – plaintiff Luciano Reyes, on whose behalf Ms. Reyes brings the action as guardian ad litem – survived. Besides the negligence‐based claims against the driver and owner of the other vehicle, plaintiffs also bring claims for dangerous conditions of public property against seve...

Excerpt: ...lly to vacate the judgment, demonstrating that the Hawaii court had never properly obtained jurisdiction over him because of defects in the manner in which the HOA supposedly served Rad with process in the Hawaii action. Rad now moves for attorney fees incurred in winning his motion to vacate the judgment. The motion is denied. Rad identifies no statutory or contractual provision that entitles him to recover attorney fees for this victory. Rad re...

Excerpt: ...ied. This motion was previously before the Court on October 5. In its tentative ruling the Court continued the motion to this date. The District's original motion simply ignored the express allegation in the second amended complaint that plaintiff had exhausted administrative remedies by filing an administrative claim form, attached to the SAC as an exhibit. Plaintiff pointed this out in her opposition. Only in its reply brief – which is to say...

Excerpt: ... accordingly cross‐complained against ADP. ADP demurs to the cross complaint. The demurrer is sustained in part without leave to amend, and overruled in part. Specifically, the demurrer is sustained without leave as to all causes of action on the part of the individual cross‐complainants, and Los Montañas's second and third causes of action (warranty and implied indemnity). It is overruled as to Los Montañas's first, fourth, and fifth cause...

Excerpt: ...cussion. Plaintiff's opposition brief mostly addresses these issues as though no prior demurrer or ruling had occurred. The Court granted leave to amend CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 21 ‐ on most counts, but its legal analysis included specific comments on what plaintiff would have to allege to patch up the deficiencies in the FAC. At this juncture, then, the opening question for the ...

Excerpt: ...�� from using Calle Arroyo road in Diablo. The Court notes that this motion was filed before the First Amended Complaint was filed. However, the parties are in agreement that this motion may apply to the FAC even though the documents were filed in the reverse order. The Court also notes with disapproval that the District has not submitted a declaration showing compliance with the meet and confer requirement for a motion for judgment on the pleadi...

Excerpt: ...defendant's reply brief. Defendant filed this motion with no declaration of compliance with § 439. As a reading of the briefs make clear, the case plainly called for meet‐and‐confer. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/05/18 ‐ 12 ‐ Defendant's motion rests on its argument that plaintiff's second amended complaint must be dismissed because she does not allege that she exhausted administrative r...

Excerpt: ...iff, Jose Luis Ramirez‐Ceniceros, sues in two capacities: as an insured (as to his claim for loss of cash), and as the assignee of an insured (as to his claim for personal injury inflicted by his coinsured, Flores). Plaintiff and defendant Jose Flores, aka Agustin Chavez, were lessees of a house located at 2813 Carob Street in Antioch. Their agreement with their landlord required them to have renters' insurance. On October 25, 2014 they went to...

Excerpt: ...arded to him in the marital dissolution judgment. There is a complication in the case, however, which may present an obstacle to treating this as an ordinary fraud‐tort case. The transaction of which plaintiff complains was not merely a private matter occurring between the parties outside of court. Rather, the parties submitted a formal stipulation in 2016 in their family‐law case (in San Joaquin Superior Court), modifying the 2006 divorce ju...

Excerpt: ... out of the same transaction or series of transactions as the arbitration, and (2) there is a possibility of conflicting rulings on common issues of law or fact. See CCP Section 1281.2(c). Under California law, the court has significant discretion where (1) pending litigation between the parties involves overlapping non‐arbitrable issues, or (2) pending litigation between either party and a third party involves issues of law or fact common to t...

Excerpt: ...fton Huffmaster, Falin Minetto and Daniel Minetto, Carla Cayson, Amani Hoopes, Heather and Hector Ochoa, and Marc and Stephanie Wong (collectively “Proposed Plaintiffs”). Plaintiffs move pursuant to Code of Civil Procedure § 473 and 576, and Rule 3.1324 of the California Rules of Court on the grounds that the First Amended Complaint “is necessary and proper, will not prejudice any defendant, is timely pursuant to prelitigation requirements...

Excerpt: ...o amend the First Amended Complaint. Accordingly, the Court will not grant leave to amend, unless plaintiff so requests and makes the appropriate showing needed. The basis for this ruling is as follows. A. The First Cause of Action. The Nature of Plaintiff's Theory. The First Cause of Action is labeled as one for breach of the implied covenant of good faith and fair dealing. However, plaintiff appears to be relying on both the breach of an expres...