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2019.10.25 Motion for Summary Judgment 009
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.25
Excerpt: ...ed action No. C17‐00838, Judge Austin overruled Freshko's demurrer to Mr. Olivares' First Amended Complaint. Judge Austin held that Mr. Olivares had adequately pleaded a delayed discovery theory that could support tolling the statute of limitations. Substantially the same allegations cited by Judge Austin in support of his ruling are set forth in the Amended Cross‐Complaint filed in this action on December 17, 2018. The Court will not reconsi...
2019.10.25 Motion for Judgment on the Pleadings 998
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.25
Excerpt: ...e defenses set forth in the answer”. Code of Civil Procedure § 438(c)(2)(B). Plaintiff's motion purports to be to the entire answer, asking that it be stricken. But part of the answer is defendant's general denial. Plaintiff does not purport to show, via matters deemed admitted or otherwise, that the general denial is unmeritorious. To do that, he would have to show that every element of every cause of action in plaintiff's first amended compl...
2019.10.25 Demurrer 890
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.25
Excerpt: ...intrusion, and neighbors, claiming management has failed to remedy these problems despite numerous requests and complaints by plaintiff. (FAC ¶ 14.) Garcia is the on‐site manager for Bayo Vista. Defendant's demurrer is based on her asserted immunity under Government Code § 820.2, which states, “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omissio...
2019.10.25 Demurrer 880
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.25
Excerpt: ...rwise overruled. Wong may file and serve his second amended cross‐complaint within 28 days. If he chooses not to amend, the answer to the remaining portion of the FAXC will be due within 28 days after that deadline. Futility All but one of Wong's causes of action are asserted as derivative claims on behalf of Brachium, Inc. (Cross‐defendants argue that none of these causes of action can be asserted by Wong personally, and he concedes they're ...
2019.10.25 Demurrer 396
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.25
Excerpt: ...he implied covenant of good faith and fair dealing; (3) rescission; (4) lost profits; and (5) elder abuse. For the following reasons, the demurrer is overruled. Cross‐Defendants must file and serve their answer within 28 days. Request for Judicial Notice Cross‐Defendants request Judicial Notice of the Arthur Brandt Declaration in support of Diablo Contractors' Opposition to Fidelity's Application for Right to Attach Order. The Court need not ...
2019.10.18 Motion to Sever Trial 080
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.18
Excerpt: ...or anticipatory breach of the succession contract. He accordingly argues that the succession contract dispute must be tried to a jury as a breach‐of‐contract damages claim. Having read the briefs and cases cited, however, the Court must agree with defendant that no such damages claim will lie prior to the death of the alleged promisor. Plaintiff's only remedies available for the asserted anticipatory breach are entirely equitable, not involvi...
2019.10.18 Motion for Summary Adjudication 959
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.18
Excerpt: ...rict, sues to quiet title and moves for a summary judgment that the entire Easement is extinguished. Defendant, BNSF, raises several arguments why factual issues remain or why the District is not entitled to such a judgment as a matter of law. The District's motion is granted. The Court concludes that the District is correct in its construction of the parties' contract language as to what event terminates the easement in question. But even if BNS...
2019.10.18 Demurrer 449
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.18
Excerpt: ... construction project to alleviate traffic congestion in the City of San Pablo. (Complaint ¶6.) CCTA and EBMUD disputed, and currently dispute, who would pay for these relocation efforts. (Complaint, Exhibit A, and ¶¶11, 19.) In 2013, before any of the work was performed, EBMUD and CCTA entered into an agreement that the work would be performed by EBMUD and CCTA would pay EBMUD's invoices for it, but both parties would retain all rights and wo...
2019.10.18 Demurrer 167
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.18
Excerpt: ...pport of this cause of action. Plaintiffs own the property located at 5945 Bruce Drive in Danville, apparently a semi‐rural property with a barn and horses on it, having purchased it in May 2016. (FAC ¶ 11.) Their property was damaged when earth from the property uphill from them at 5950 Bruce Drive slid onto their land in February 2017 (the “East Slide”). (¶ 17.) There was a second slide at the end of February 2017 (the “South Slide”...
2019.10.11 Demurrer 496
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.11
Excerpt: ...onceded Counts Plaintiff responds to the present demurrer by offering to dismiss without prejudice half of her twelve asserted causes of action, namely the 4th (retaliation), 7th (intentional infliction of emotional distress), 9th (whistleblower), 10th (defamation), 11th (Civil Code § 51.7), and 12th (Civil Code § 52.4). No such dismissal document has been filed, however, so the Court treats the offer as a concession of the demurrer as to these...
2019.10.11 Demurrer 630
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.11
Excerpt: ...o the two contractual interference, claims, but sustained it with leave to amend as to the cause of action for promissory fraud. The basis for the ruling was that the FAC failed to allege that plaintiffs acted in reliance on defendant Daniel Sheehy's alleged promise to take a break and lay low from the facility for several months. Further, plaintiffs were damaged by Sheehy's tortious interference rather than by his promise not to interfere. The p...
2019.10.11 Motion for Summary Adjudication 912
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.11
Excerpt: ...activity over this last summer as trial approached. This Line 8 is a motion directed at certain causes of action in plaintiffs' First Amended Complaint (FAC). Shortly after this motion was filed, plaintiff was given leave to file a Second Amended Complaint (SAC) asserting certain additional causes of action. Showing better cooperation and common sense than has marked some other aspects of this litigation, the parties agreed (1) that the summary a...
2019.10.11 Motion for Summary Judgment, Adjudication 030
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.11
Excerpt: ...f Civil Code § 2923.6 by failing to make a determination on Britton's completed package for loan modification; and (2) for violation of Civil Code § 2923.7 in that no single point of contact was provided to Britton after CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 10/11/19 ‐ 3 ‐ she commenced communicating with Wells Fargo regarding a loan modification. (Co‐plaintiff Sherry DeLaura has dropped out of the ...
2019.10.11 Motion for Summary Judgment, Adjudication 299
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.11
Excerpt: ...t be better for all concerned, though, to put this over a short period so that both sides can address the questions in writing. If the attorneys prefer, they can save themselves an appearance tomorrow by e‐mailing their agreement to a further hearing date and briefing schedule. The Court's questions are numbered and indented. The Scope of the Claims in the FAC. 1. As the Court understands it, all claims made in the FAC against PacFin and/or Boo...
2019.10.11 Motion to Strike Memorandum of Costs 790
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.10.11
Excerpt: ...plaintiff Denise Walker; $7,500 to Cleve Walker; and $500 to Lindsey Walker. (For clarity, and meaning no disrespect, the Court will use first names.) Each side has filed a memorandum of costs – plaintiffs on the basis that they prevailed at trial, and defendants on the basis that they had made a § 998 offer for less than plaintiffs ended up winning at trial. Plaintiffs move to strike defendants' memorandum of costs on the ground that defendan...
2019.1.25 Motion to Dismiss 209
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.25
Excerpt: ...ract is generally four years. (Code of Civil Procedure § 337.) “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) This motion suffers from serious procedural flaws on both sides. ...
2019.1.25 Motion for Summary Judgment 140
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.25
Excerpt: .... (2010) 186 Cal.App.4th 383, 387‐388.) When a plaintiff moves for summary judgment, she has the initial burden. (Ibid.) “That burden can be met if the plaintiff ‘has proved each element of the cause of action entitling the party to judgment on that cause of action.' (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant ‘to show that a triable issue of one or more material facts exists as ...
2019.1.25 Demurrer, Motion to Strike 999
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.25
Excerpt: ...amaging effect of the alleged wrongful act.' [Citations.]” (Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 290; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110‐11.) “A plaintiff in a medical malpractice action must satisfy the requirements of both the one‐year and the three‐year limitations periods.” (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1190.) “The injury commences both the three‐year and the one‐year limi...
2019.1.25 Demurrer 469
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.25
Excerpt: ...y; (3) failure to reasonably accommodate; (4) failure to engage in good faith interactive process; (5) failure to CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/25/19 ‐ 7 ‐ take reasonable steps to prevent and/or correct discrimination and/or retaliation; (6) retaliation; and (7) constructive discharge in violation of public policy. Defendants demur to the first cause of action for harassment on the basis of ...
2019.1.18 Motion to Set Aside Voluntary Dismissal 862
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.18
Excerpt: ...nd in any event, it is appropriate to conduct an CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/18/19 ‐ 11 ‐ impromptu case management conference to confirm what remains to be done in this action, and how it is going to be accomplished. The Court appreciates the spirit of the opposition brief's statement that the Trust “will spare the Court a full statement of the tortured history of this litigation”. Blu...
2019.1.18 Motion to Consolidate Cases for Pretrial Discovery 289
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.18
Excerpt: ...er order. These three lawsuits present different plaintiffs and different forms of legal claims. Two of them are wrongful‐discharge claims asserted by terminated executives of Garaventa Enterprises. The third is a shareholder derivative action, challenging the action of Garaventa's management in (among other things) terminating those same two executives. Speaking in non‐legal terms, these three cases all concern a corporate‐control battle a...
2019.1.18 Motion for Summary Judgment, Adjudication 570
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.18
Excerpt: ...n for summary judgment of his complaint. I. Background CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 12 HEARING DATE: 01/18/19 ‐ 13 ‐ The parties to this dispute have battled for many years over property at 7090 Camino Tassajara in Pleasanton. Briefly, Clancy exchanged Danville property to buy approximately 33 acres from Corrie Development Corporation – now represented by Pete Klein as personal representative of Mr. Sidney Co...
2019.1.4 Motion for Summary Judgment 639
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.4
Excerpt: ...ters, Stryker's motion for leave to file under seal is itself noticed for February 9, which is not only long after this motion, but indeed after the trial date. That timing quirk aside, moreover, Stryker presents no substantive discussion at all as to why there is any justification for filing this evidence under seal. There is only a completely conclusory assertion that the materials in question are confidential, signed by an attorney and not any...
2019.1.4 Demurrer, Motion to Strike 269
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.4
Excerpt: ...ng whether she is or is not the proper person to represent the trust and the estate in a non‐probate action. In response to an OSC, Ontifade produced probate documents and other evidence establishing her standing in these respects, and the Court announced itself satisfied. That determination, however, went only to whether Ontifade is the right person to be a plaintiff here. The Court did not address whether, in pursuing this action, she needs a...
2019.1.4 Demurrer 619
Location: Contra Costa
Judge: Treat, Charles S
Hearing Date: 2019.1.4
Excerpt: ...ction on her home. Defendants demur on the basis that plaintiff's causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. (See Code of Civil Procedure § 430.10(e)‐(f).) The demurrer is overruled. Defendants shall answer by January 18, 2019. Fraud “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b)...

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