DEPARTMENT 26 LAW AND MOTION RULINGS If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing. The e-mail address is SSCdept26@lacourt.org The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response. If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR. Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.
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Case Number: 17STLC00899 Hearing Date: November 13, 2023 Dept: 26
State Farm v. Gomez, et al.
MOTION TO VACATE
DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION
(CCP § 664.6)
TENTATIVE RULING:
Plaintiff State Farm Mutual
Automobile Insurance Company’s Motion to Enforce Settlement Agreement is GRANTED.
JUDGMENT TO BE ENTERED IN PLAINTIFF’S FAVOR AND AGAINST DEFENDANT FELIPE GOMEZ IN THE AMOUNT OF $836.85
PRINCIPAL AND $494.50 COSTS.
ANALYSIS:
On September 5,
2017, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”)
filed this subrogation action against Defendant Felipe Gomez (“Defendant”). On May 3, 2018, Plaintiff filed a copy of the parties’
settlement agreement with a request for dismissal and retention of jurisdiction
under Code of Civil Procedure section 664.6. The Court dismissed the action
pursuant to the stipulation on the same date. (Stip and Order, filed 05/03/18.)
On September 5, 2023, Plaintiff filed the instant Motion to Vacate Dismissal,
Enforce Settlement and Enter Judgment. The hearing on the motion was continued
from September 11, 2023 to November 13, 2023. To date, no opposition has been
filed.
Discussion
The instant motion is brought under Code of Civil Procedure, section
664.6, which states in relevant part:
If parties to pending litigation
stipulate, in a writing signed by the parties outside the presence of the court
or orally before the court, for settlement of the case, or part thereof, the
court, upon motion, may enter judgment pursuant to the terms of the settlement.
If requested by the parties, the court may retain jurisdiction over the parties
to enforce the settlement until performance in full of the terms of the
settlement.
(Code Civ. Proc., § 664.6, subd.
(a).) Prior to January 1, 2021, “parties” to a writing under section 664.6
meant the litigants themselves, not their attorneys. (Levy v. Superior Court (1995) 10
Cal.4th 578, 586.) The current statute provides that “parties” to a writing
includes “an attorney who represents the party” and an insurer’s agent. (Code
Civ. Proc., § 664.6, subd. (b).) The settlement must include the signatures of
the parties seeking to enforce the agreement, and against whom enforcement is
sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th
974, 985.) Plaintiff has
demonstrated the settlement agreement complies with the statutory requirements
set forth above as it was signed by both parties. (Motion, Reese Decl., Exh. A,
p. 3.)
Furthermore, the request for
retention of jurisdiction must be made in writing, by the parties, before the
action is dismissed for the Court’s retention of jurisdiction to conform to the
statutory language. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [“If,
after a suit has been dismissed, a party brings a section 664.6 motion for a
judgment on a settlement agreement but cannot present to the court a request
for retention of jurisdiction that meets all of these requirements, then
enforcement of the agreement must be left to a separate lawsuit.”].) The
parties’ request for retention of jurisdiction complies with these requirements
because it was made in writing to the Court before the action was dismissed.
(Motion, Reese Decl., Exh. A, ¶3.)
The settlement provides that
Defendant would pay Plaintiff $10,836.30 through an initial payment from
Defendant’s insurer of $4,299.45, followed by Defendant’s monthly payments
starting on April 3, 2018. (Id. at Exh. A, ¶2.) The settlement agreement
also provides that upon Defendant’s default, Plaintiff may seek judgment in the
settlement amount, plus costs, less any monies paid. (Id. at Exh. A, ¶5.)
Total payments of $9,999.45 were made towards the settlement, after which
Defendant defaulted. (Id. at ¶¶4-5 and Exh. C.) Based on the foregoing, Plaintiff
is entitled to entry of judgment against Defendant in the amount of $836.85
principal ($10,836.30 - $9,999.45) and $494.50 in costs. (Id. at ¶8.)
Conclusion
Plaintiff State Farm Mutual Automobile Insurance Company’s
Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN
PLAINTIFF’S FAVOR AND AGAINST DEFENDANT FELIPE
GOMEZ IN THE AMOUNT OF $836.85 PRINCIPAL AND $494.50 COSTS.
Moving party to give notice.
Case Number: 18STCV04630 Hearing Date: November 14, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 14, 2023 Case Name: Dailey v. Quebbeman M.D., et al. Case No.: 18STCV04630 Matter: Motion for Summary Judgment/Adjudication Moving Party: Defendant Southern California Healthcare System, Inc. Responding Party: Unopposed Notice: OK
Ruling: The Motion for Summary Judgment is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
On December 16, 2021, Plaintiff Shenika Dailey filed the operative First Amended Complaint for medical negligence. Defendant Southern California Healthcare System, Inc. seeks summary judgment or, alternatively, summary adjudication of its affirmative defense because “1.) Plaintiff, Shenika Dailey, by and through her GAL, has pled a claim for Medical Negligence and cannot prove that any alleged negligence on the part of SCHCC and its employees prior to, during, or after plaintiff's bariatric surgery. 2.) Nothing SCHCC did and/or its employees did prior to, during, or after plaintiff's bariatric surgery, caused or contributed to her injuries; [3].) SCHCC is not ostensibly liable for the conduct of any of the named physicians, BRIAN B. QUEBBEMAN M.D., JAMSHID NIKNAM, M.D, RAVINDER SINGH, M.D., or BERNARD MCNAMARA, M.D. who treated plaintiff at SCHCC, or any of the unnamed physicians who treated plaintiff at SCHCC.” The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc. § 437c(p)(2).) To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, at p. 849.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Previously, the Court continued the instant Motion such that Plaintiff could conduct discovery and file a substantive opposition. The Motion for Summary Judgment is now granted because there is no substantive opposition, including a separate statement of undisputed fact. (Code Civ. Proc. § 437c(b)(3).) Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 18STCV07962 Hearing Date: November 16, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 16, 2023 Case Name: Ma v. Vista Del Mar Child and Family Services, et al. Case No.: 18STCV07962 Matter: Motion for Leave to File Cross-Complaint Moving Party: Defendant Vista Del Mar Family and Child Services Responding Party: Unopposed Notice: OK
Ruling: The Motion is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
On September 14, 2021, Plaintiff Dan Ma filed the operative Fourth Amended Complaint (“4AC”) against Defendant Vista Del Mar Child and Family Services for (1) fraudulent inducement, (2) intentional misrepresentation, (3) negligent misrepresentation, (4) breach of written contract, and (5) breach of oral contract. The allegations of the 4AC are as follows. Plaintiff gave her child up for adoption through Defendant, an adoption agency. Plaintiff signed a relinquishment agreement as to her child. Plaintiff could not speak English and was not shown an English translation of the agreement. She also had a difficult time understanding the formal Mandarin agreement that was provided to her. However, Plaintiff was told by the Defendant's interpreter that she had a 30-day period to cancel the agreement. This was a fraudulent representation. Within 30 days of signing the relinquishment agreement, Plaintiff sought to rescind the agreement and obtain her child. Defendant refused to return Plaintiff’s child because Defendant was motivated by a substantial payment from the adoptive parents. Defendant now seeks leave to file a cross-complaint for indemnity and related claims against Huina Allyson Huang, who was the interpreter. Cross-complaints fall into two categories—permissive and compulsory. Compulsory cross-complaints consist of those causes of action existing at the time of service of the answer that the defendant must bring against the plaintiff, or else forfeit the right to bring them in any other action. (Code Civ. Proc. § 426.30(a).) Specifically, compulsory cross-complaints consist of those causes of action that “arise out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Id. § 426.10(c).) To avoid piecemeal litigation, courts liberally construe the term “transaction”—it is “ ‘not confined to a single, isolated act or occurrence . . . but may embrace a series of acts or occurrences logically interrelated.’ ” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 960.) Parties seeking to file untimely compulsory cross-complaints may file with the Court for leave to do so, even though the failure to timely file resulted from oversight, inadvertence, mistake, neglect, or other cause. (Code Civ. Proc. § 426.50.) In such a case, after notice to the adverse party, the Court must grant leave to file the cross-complaint if the party acted in good faith. Unrelated claims and those claims arising after service of the answer are permissive, not compulsory. (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) Permissive cross-complaints are governed by Code of Civil Procedure § 428.50(c), which provides, “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.” The decision to grant permission to file a permissive cross-complaint rests within the sound discretion of the trial court. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701.) As there is no opposition, the Motion is granted. (Cal. Rules of Court, Rule 8.54(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 19LBCV00398 Hearing Date: November 14, 2023 Dept: S27 1.
Background Facts
Plaintiffs, Cindy Asuncion, Michael Padilla, Stephanie Gomez, Anthony
Gomez, and Nathan Padilla filed this action against Defendants, Nils Kolderup,
Kari Kolderup, Propwestmanco., Inc., and Gordon Ray Inman for damages arising
out exposure to toxic mold in their apartment.
Stephanie, Anthony, and Nathan are minors and are appearing in the action
by and through their mother and GAL, Cindy.
The minor plaintiffs suffered rashes and eye and sinus infections as a
result of the mold growth, but have recovered fully at this time.
2.
Petitions to Approve Compromises of Minors
a.
Initial
Note
Plaintiffs filed a Notice of
Settlement in this case on 9/23/21. The
Court has held a total of ten OSC hearings since 9/23/21 concerning the necessary
petition to approve minor’s compromise and dismissal in light of the settlement. On 8/24/23, the Court continued the hearing to
11/14/23 and ordered Petitioner to file papers no later than 10/13/23. The Court noted that this would be the final
continuance of the matter.
Petitioner filed these petitions on
11/03/23, only six court days prior to the hearing. Petitioner did not file proof of service of the
petitions on Defendants. These defects
will be discussed below.
b.
Settlement
The parties have agreed to a global settlement of the action whereby
Plaintiffs would collectively receive $97,500.
If the settlement is approved, Cindy will receive $32,595.97, Michael
will receive $27,568.08, Stephanie and Anthony will each receive $11,666.67,
and Nathan will receive $14,002.42 (notably, ¶10 of Anthony’s petition
erroneously indicates he will receive $14,002.42, but ¶16 and the attachment
indicate it is $11,666.67). At
Attachment 11b(6), Petitioner explains that the apportionment is based on who
bore the rental and associated expenses incurred (the adult plaintiffs), as
well as the size of each plaintiff’s medical lien.
If the minors’ settlements are approved, as to Stephanie and Anthony, $4666.67
will be used for attorneys’ fees and $2000.00 for medical expenses, leaving a
net balance of $5000.00. As to Nathan, $5600.97
will be used for attorneys’ fees and $3401.45 for medical expenses, leaving a
net balance of $5000.00.
c.
Analysis
At ¶18b(8), Petitioner proposes to have the net balance of the
settlements held on any conditions the court determines to be in the best
interest of the minor children. At attachment
18b(8), Petitioner indicates she wishes to have the proceeds deposited into a
federally insured financial institution and subject to withdrawal only upon
authorization of the court or at the time the children reach the age of
eighteen. It is unclear why Petitioner
did not simply check ¶18b(2), which permits exactly this disposition of the
proceeds of the settlement, and which requires Attachment 18b(2), which must
state the name, branch, and address of the depository.
The Court has reviewed the settlement and finds it is fair and
reasonable. The Court is concerned about
the request for attorneys’ fees. With respect
to Stephanie and Anthony, Counsel seeks to recover $4666.67 on a gross settlement
of $11,666.67, or 40%. With respect to
Nathan, Counsel seeks to recover $5600.97 on a gross settlement of $14,002.42, also
40%. The Court typically restricts
attorneys’ fees in cases involving minors to 25%. The Court has reviewed Attachment 13a and
finds Counsel’s declaration does not indicate any exigent circumstances that
would support a fee in excess of the typical amount. The Court will permit argument on this issue
at the time of the hearing. The Court notes
that Petitioner failed, at ¶17, to indicate what fees Counsel will receive in
connection with the adult plaintiffs’ settlement in this case. The Court wishes to hear from Counsel, at the
time of the hearing, concerning the aggregate fees to be paid to all plaintiffs
as a result of the settlement.
d.
Conclusion
As noted above, there is no proof of service of the petitions on
Defendants. Additionally, the Court
cannot locate proposed orders approving the petitions or orders to place the
funds in blocked accounts. The Court, at
the conclusion of the hearing, will continue the hearing to require service and
proposed order. The Court will also, if
not satisfied with the discussion re: fees, require amended petitions
reflecting the proper amount of fees. The
Court will order a specified date for the amended petitions (if necessary),
proposed orders, and proof of service to be filed. Petitioner MUST adhere to the specified date,
and the Court will not consider late-filed papers.
e.
Appearance
Per CRC 7.952, Petitioner and Plaintiff must appear at the hearing
unless the Court finds good cause to excuse their appearance. The minor children are eleven (Nathan),
fourteen (Anthony), and seventeen (Stephanie).
The Court finds the children are of sufficient age to require them to
appear and testify along with Petitioner.
They must appear at the hearing, and the Court will hear their testimony
in determining whether to approve the settlements.
Case Number: 19LBCV00625 Hearing Date: November 16, 2023 Dept: S27 The Court called this matter for an FSC on 9/06/23. At the FSC, Defense Counsel informed the
Court that Defendant had passed away. The
Court vacated the trial date and set a hearing on a motion for leave to amend
and motion to be relieved as counsel for 11/16/23.
To date, no papers have been filed in connection with the motion for
leave to amend or the motion to be relieved as counsel. The Court therefore takes them off
calendar.
This case has been pending since 10/25/19. The Court sets an OSC re: dismissal for
failure to prosecute for 12/15/23. CCP
§583.420(a)(2).
Plaintiff is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the tentative
and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the
party’s email must include the case number and must identify the party
submitting on the tentative. If any party does not submit on the tentative, the
party should make arrangements to appear remotely at the hearing on this matter.
Case Number: 19SMCV01483 Hearing Date: November 14, 2023 Dept: M CASE NAME: Fortier, et
al., v. Laberge, et al.
CASE NO.: 19SMCV01483
MOTION: Motion
to enter judgment pursuant to Code of Civil Procedure § 664.6
HEARING DATE: 11/14/2023
Legal
Standard
If parties to pending litigation
stipulate, in a writing signed by the parties outside of the presence of the
court or orally before the court, for settlement of the case, or part thereof,
the court, upon motion, may enter judgment pursuant to the terms of the
settlement. If requested by the parties, the court may retain jurisdiction over
the parties to enforce the settlement until performance in full of the terms of
the settlement.
(CCP, § 664.6(a).)
“Because of its summary nature,
strict compliance with the requirements of section 664.6 is prerequisite to
invoking the power of the court to impose a settlement agreement.” (Sully-Miller
Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103
Cal.App.4th 30, 37; Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1262.)
In ruling on a motion under § 664.6, the trial judge may receive oral
testimony, or may determine the motion upon declarations alone. (Corkland v.
Boscoe (1984) 156 Cal.App.3d 989, 994.) Where the agreement was reached at
a court hearing, the court can resolve the dispute on the basis of its own
notes or recollection of what was agreed to (as well as any transcripts of the
proceedings). (Richardson v. Richardson (1986) 180 Cal.App.3d 91, 97.)
Analysis
Plaintiffs and Cross-Complainants
Chandra Fortier and Jason Laberge move for an order enforcing the terms of written
Settlement and Mutual Release Agreement (hereinafter, the “Agreement”). (CCP § 664.6.)
Specifically, they seek an order that Defendants/Cross-Complainant, Michael
Laberge and Janelle D. Shawver, as administrator of the estate of Pamela
McCarthy, comply with paragraph 3 of the Agreement. Further, they seek an award
of $1,442.50 for attorneys’ fees and costs in bringing this motion. No
opposition was submitted. Notably, on May 28, 2023, Pamela McCarthy died and
her daughter Janelle D. Shawver was appointed administrator of her estate. (See
Anaya Decl., Ex. B [Order for Probate in LASC case no. 23STPB06867].)
Moving parties demonstrate that parties entered into the
Agreement. (Anaya Decl., Ex. A.) On March 28, 2023, the parties stipulated for
the court to retain jurisdiction to enforce the settlement pursuant to Code of
Civil Procedure section 664.6. Thus, the court may enter judgment pursuant to
the terms of the settlement pursuant to section 664.6. Plaintiffs seek to enforce the specific terms
of paragraph 3(a) of the Agreement that provides:
Agreement to Sell Malibu Property.
The Parties agree to list the Malibu Property for sale. The parties further
agree to the following in preparation for the sale: a. The Parties agree to
cooperate in the entire sales transaction, including promptly executing all
necessary documents to facilitate the sale.
Since July 13, 2023, Defendants failed
to sign the letter of intent with the potential buyer of the Malibu Property
and have refused to cooperate with the transfer of Mountain Parcels Nos. 1-4. In
addition, Paragraph 16(g) of the Agreement provides for Attorneys' Fees
Accordingly, the motion is GRANTED.
Moving parties are ordered to submit a proposed judgment incorporating the
terms of the Agreement. The request for
attorneys’ fees is likewise GRANTED and shall be incorporated into the proposed
judgment.
Case Number: 19STCV20941 Hearing Date: November 13, 2023 Dept: 39 Temple
of the Arts v. Los Angeles County Metropolitan Transportation Authority, et al.
Case
No. 19STCV20941
Defendants’
Motion for Leave to File Cross-Complaint
Defendants Los Angeles County Metropolitan
Transportation Authority (“Metro”), Skanska Traylor Shea, and the City of
Beverly Hills (collectively, “Defendants”) seek leave to file a cross-complaint
against Steve Bubalo Construction Company.
Per Code of Civil Procedure section 428.10, a party against whom a cause
of action is asserted may file a cross-complaint to assert “[a]ny cause of
action he has against a person alleged to be liable thereon, whether or not
such person is already a party to the action, if the cause of action asserted
in his cross-complaint (1) arises out of the same transaction, occurrence, or
series of transactions or occurrences as the cause brought against him or (2)
asserts a claim, right, or interest in the property or controversy which is the
subject of the cause brought against him.”
(Code Civ. Proc., §428.10, subd. (b).)
A party must obtain leave of court to file a cross-complaint if the
party does not file the cross-complaint at the same time as the answer. The Court may grant leave to file a
cross-complaint in the interests of justice at any time during the course of
the action. (Code Civ. Proc., §428.10,
subd. (c).)
The
Court has no tentative order on this motion.
The Court would like to discuss the trial date with the parties at the
hearing.
Case Number: 19STCV21811 Hearing Date: November 13, 2023 Dept: 30 EARL HACKETT, JR. vs ISB TRANSPORT LTD., et al.
Motion to Continue Trial
TENTATIVE
Defendants' Motion to Continue the Trial Date is denied. Moving party to give notice.
DISCUSSION
Defendants move for a continuance of trial and related dates to April 1, 2024, or any date shortly thereafter. Plaintiff Hackett’s counsel testifies that Plaintiff Hackett’s mental examination has been scheduled for November 3, 2023, and Plaintiff Bell’s has been scheduled for November 2, 2023. (Khachoyan Decl., ¶ 4.) Counsel testifies that the doctor’s reports will be ready at the very start of December and will leave Defendants’ with sufficient time (two months) to use those reports in their preparation for trial. (Id.) Plaintiff Bell’s counsel testifies that Defendants’ have ignored the Court’s warning at the previous Motion to Continue hearing, when they were previously warned that if they attempted another continuance on the grounds that they required additional time that it would be denied. (Oviedo Decl., ¶ 6.) Further, Counsel testifies that Defendants allegations that substantial discovery remains are untrue. (Id., ¶ 7.) Moreover, Counsel testifies that Defendants have only moved forward and noticed an IME almost two years after the initial Discovery Responses. (Id., ¶ 11.) In Defendants’ reply to Plaintiff Hackett’s opposition, Defendants’ counsel testifies that based on the trial date, the last day to demand the exchange of expert witness information is November 14, 2023, and expert disclosures are due December 4, 2023. (Estrada Decl., ¶ 2, 3.) Further counsel testifies that Defendants’ counsel’s constant requests for mediation have led Plaintiff’s counsel to finally express interest and that mediation can only take place after the mental examination of Plaintiffs take place. (Id. ¶ 4.) In Defendants’ reply to Plaintiff Bell’s opposition, Defendants’ counsel testifies that Plaintiff Bell has failed to provide sufficient records necessary to evaluate Plaintiff’s major surgical procedure, its costs, and associated costs for recovery. (Estrada Decl., ¶ 6.) Additionally, counsel testifies that Plaintiff will not be prejudiced if there is a short continuance because it will be about eight months before the five-year statute deadline in this case. (Id., ¶ 14.) Here, Defendants’ have not shown that good cause exists to continue the trial date. The Court finds that the age of the case, the currently scheduled discovery, and the prejudice to the opposing side weigh against a continuance. Further, since both sides are not equally enthusiastic about mediating. The Court puts little weight on the possibility of mediation as grounds to continue the trial. The Court will deny the motion to continue filed by Defendants.
Case Number: 19STCV43653 Hearing Date: November 13, 2023 Dept: 39 JTX Group, Inc. v.
Global Meat Federation, Inc.
Case No.
19STCV43653
Order Staying Case
Pending Appeal
Plaintiff JTX Group, Inc.
(“Plaintiff” or “JTX”) filed this action against numerous defendants. In brief, Plaintiff alleges that it entered
into a nonbinding agreement by which Plaintiff planned to purchase a 55% stake
in Global Meat Federation, Inc. (“Global Meat Federation”) for
$52,800,000. (Third Amended Complaint, ¶
74.) Plaintiff further alleges that
Plaintiff would provide $1,500,000 to Global Meat Federation as working capital
while the parties completed the proposed transaction. (Third Amended Complaint,
¶¶ 77-78.) Plaintiff alleges that he
terminated the proposed purchase, and requested the return of the
$1,500,000. (Third Amended Complaint, ¶
86.) Plaintiff alleges that Global Meat
Federation refused to return the $1,500,000, and distributed it between Defendant,
Jamal Dawood (“Dawood”), and related entities.
(Third Amended Complaint, ¶ 91.)
One of those entities was United Properties, which allegedly was
controlled by Dawood. (Third Amended
Complaint, ¶¶ 14-15, 179-183.) The Court
granted United Properties’ motion for summary judgment, and Plaintiff has
appealed that decision. The Court may
have erred in granting that motion, based upon which the Court noticed its own
motion for reconsideration. (See Court’s
Minute Order, dated February 22, 2023.)
However, the Court lacked jurisdiction to revisit this decision.
On September 11, 2023, the Court
issued an Order to Show Cause why the Court should not stay this case pending
the appeal of the Court’s decision to grant United Properties’ motion for
summary judgment. The Court issued the
Order to Show Cause “based upon its inherent authority” and provided notice
that “a stay may be appropriate based upon judicial economy, i.e., to avoid
having two separate trials on the same issues in the event of a reversal.” (Court’s Minute Order, dated September 11,
2023.) The Court set a hearing and
afforded the parties an opportunity to file written responses, which the Court
has reviewed and considered.
The Court stays this case pending
appeal because there is a reasonable probability that the Court’s grant of
summary judgment to United Properties will be reversed. If so, the Court would be forced to conduct
two trials on largely the same facts, since Plaintiff’s theory is that United
Properties (like other defendants) received converted funds. Plaintiff would be forced to prove the
underlying fraud and disposition of funds in two different cases. Moreover, it is unlikely the case would
proceed to trial on the current trial date anyway because the Court anticipates
that it will be in a bench trial on a case starting January 8, 2024.
Based upon the foregoing, the Court
orders as follows:
1. This
case is stayed for all purposes pending the remittitur in the appeal of the
Court’s decision to grant summary judgment to United Properties.
2. The
Court advances and vacates all dates.
3. The
Court orders Plaintiff’s counsel to file a status report concerning the appeal
on or before November 22, 2024.
4. The
Court issues an Order to Show Cause why the stay should be lifted and, in the
alternative, a trial setting conference, for December 3, 2024, at 8:30
a.m.
5. Plaintiff’s
counsel shall provide notice and file proof of such with the Court.
Case Number: 19STCV46013 Hearing Date: November 13, 2023 Dept: 30 KRISTY ALLEN, AN INDIVIDUAL vs JORGE HERNANDEZ, AN INDIVIDUAL, et al.
Motion to Compel IME
TENTATIVE
Defendant’s Motion to Compel Plaintiffs’ Independent Medical Examination is GRANTED. Plaintiff is ordered to appear for physical examination with Michael P. Weinstein, M.D. on January 30, 2024 at 10:30 a.m. Defendant’s request for sanctions is DENIED. Moving party to give notice. DISCUSSION
On November 30, 2022, Defendant had noticed the Plaintiff's Physical Examination for April 14, 2023. (Hsieh Decl., Exh. B.) The Plaintiff did not respond to this Demand, and failed to appear on that date. As a result, the parties agreed to re-schedule the IME for September 5, 2023. On April 21, 2023, Defendant served its Second Demand for Physical Examination of Plaintiff. (Id., Exh. A.) The physical examination with Dr. Michael P. Weinstein was to take place on September 5, 2023. (Id.) Plaintiff did not respond to this Demand. Plaintiff had agreed to appear on this date in the Stipulation to Continue Trial dated May 15, 2023. (Id., Exh. D.) However, the Plaintiff failed to appear at the IME on September 5, 2023. Defendant sent a meet and confer letter to Plaintiff. (Id., Exh. C.) Plaintiff has not filed an opposition to this motion, and thus has not disputed that Plaintiff failed to appear for the independent medical examination (IME). Moreover, Plaintiff failed to object within 20 days of service of the demand, and thus, have waived their objection. Defendant is entitled to demand a physical examination of Plaintiff in this action. Accordingly, the motion to compel Plaintiff’s IME is granted and Plaintiff is ordered to appear for physical examination at Dr. Weinstein's office on January 30, 2024 at 10:30 a.m. As for sanctions, because Plaintiff has not filed an opposition to this motion, Plaintiff has not unsuccessfully opposed. As such, the request for sanctions is denied.
Case Number: 20PSCV00659 Hearing Date: December 4, 2023 Dept: K Plaintiff Sylvia Ramos’ Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff Sylvia Ramos
(“Plaintiff”) alleges as follows:
Plaintiff worked as
an enrollment specialist for Defendant Calix Drugs Pharmacy, Inc. (“Defendant”)
from August 8, 2018-December 17, 2018. Plaintiff was terminated after she
complained about unpaid wages.
On October 7,
2020, Plaintiff filed a complaint, asserting causes of action against Defendant
and Does 1-50 for:
1.
Discrimination on the Basis of Participation in
Protected Conduct in Violation of Gov. Code § 12940 et seq.
2.
Failure to Prevent Discrimination in Violation of
California Government Code § 12940(k)
3.
Retaliation in Violation of Gov. Code § 12940(h)
4.
Wrongful Termination
5.
Failure To Pay Minimum Wages And Overtime In Violation
of Cal. Labor Code § 204 et seq.
6.
Violation of Business & Professions Code § 17200 et
seq.
On June 14, 2022, counsel for Defendant’s motion to be
relieved as counsel was granted; at that time, the court set an Order to Show
Cause Re: Representation of Corporation for August 17, 2022.
On August 17, 2022, the court set an Order to Show Cause Re:
Why the Answer Should Not Be Stricken for October 4, 2022. On October 4, 2022,
the court ordered Defendant’s answer stricken.
On October 6, 2022, Defendant’s default was entered.
An Order to Show Cause Re: Default Judgment is set for August
25, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff purports to assert FEHA claims, yet has
failed to provide the court with any information establishing that she was part
of a protected class or that she engaged in any protected conduct under FEHA.
Plaintiff has alleged that “she suffered a work-related injury which resulted
in a disability” (Complaint, ¶ 50). This statement, however, is nowhere set
forth or explained in Plaintiff’s declaration. Paragraph 25 of the complaint
also recites that Government Code § 12940 prohibits employers from
discriminating on the basis of disability, yet Plaintiff has not attested that
she is disabled.
2.
Plaintiff seeks $221,280 in damages, which is comprised
as follows: $53.760.00 in back pay, plus $96 in unpaid wages, plus $3,840.00 in
waiting time penalties, plus $163,584.00 in non-economic, emotional distress
damages. Plaintiff has now attached text messages between Plaintiff and her
supervisor, Paul Pino (“Pino”). Plaintiff appears to contend that she was not
paid for her full work hours on 12/3-7/18, and 12/10/23 and that this resulted
in a total of 6 unpaid work hours.
Plaintiff texted Pino that on 12/3-5/18 she “did 12-4pm and 5-8pm from home
total of 8 hours,” that on 12/6/18 she worked “12pm-4pm[,] 5pm-8:30pm-home
total of 8 hrs and 30 min[,]” that on 12/7/18 she worked “12pm-4pm[,]
5pm-8pm-home total of 8” and that on 12/10/18 she “worked 12pm-4pm and 5pm-8pm
from home. Should only be short 5min.” It is unclear to the court how Plaintiff
was shorted. With respect to the 12/3/18-12/5/18 dates, 12-4 pm is 4 hours and
5-8 pm is 3 hours for a total of 7, not 8 hours. As to 12/6/18, 12-4pm is again
4 hours and 5-8:30pm is 7.5 hours, not 8.5 hours. Finally, as to 12/10/18, 12-4
pm is 4 hours and 5-8 pm is 3 hours for a total of 7, not 8 hours. Pino
apparently took a screenshot of Plaintiff’s hours from 12/3/18-12/14/18 and
forwarded this to Plaintiff. (Plaintiff Decl., ¶ 7, Exh. A, p. 4). Plaintiff is
requested to explain to the court how the screenshot is inaccurate and/or how
she was allegedly underpaid. Plaintiff was requested to provide the court with
a copy of her pay stub which would reflect that she was “shorted” payment for
six hours of work during a pay period ending on or around December 11, 2018.
Plaintiff has failed to do so.
3.
Plaintiff is requested to provide the court with
authority supporting her request for back pay.
4.
Plaintiff seeks back pay for the following periods:
December 17, 2018-February 2019, January 2020-March 2020, May 2020-April 2021
and June 2021-January 2021. (Plaintiff Decl., ¶ 14). Plaintiff concedes that
she was employed from at February 2019-January 2020 with a company called
Paratus but subsequently states that she “again had difficulty finding
substantially similar employment,” apparently “due to the Covid-19 Pandemic.” (Id.)
It is unclear to the court why Defendant would be financially responsible for
Plaintiff’s inability to find substantially similar employment after she
apparently secured same at Paratus. Further, Plaintiff states that she had been
out of work for approximately 84 weeks, that “[d]uring these times, [she] would
look for work online and would ultimately find some jobs” and that she would
“sometimes. . . earn less than [she] did while working for Defendant at some of
[her] jobs.” (Id.) Plaintiff does not provide the court with any
information as to the nature, duration and financial compensation of these
jobs.
5.
Plaintiff fails to provide the court with any
information regarding how her general damages were
calculated.
Case Number: 20PSCV00788 Hearing Date: December 6, 2023 Dept: K Plaintiff City of El Monte’s Application
for Default Judgment is DENIED without prejudice.
Background
Plaintiff City of El Monte (“Plaintiff”) alleges as follows:
Defendants Jin Ming Chen (“Ming Chen”), Alan
Yong Lun Chen (“Lun Chen”), Xiao Chang Liang (“Liang”), Top World Investment,
Inc. (“Top World”) (collectively, “Defendants”) own, inhabit and/or operate the
property located at 12121 Kerrwood Street, El Monte, California 91732 (“subject
property”).
On June 20, 2017, members of the El Monte
Police Department (“Police”) executed a search warrant at the subject property.
While executing the warrant, the Police observed that the subject property had
been converted into a marijuana cultivation facility. The Police seized numerous items which had been used to cultivate,
manufacture, store and/or sell marijuana at the subject property in violation
of state and municipal law. Additionally, the Police invited a Southern
California Edison investigator to the subject property, who determined that
electricity had been stolen at the subject property between April 4, 2017 and
June 20, 2017 through a series of bypasses to the tune of approximately
$12,000.00.
On November 13, 2020, Plaintiff filed a complaint, asserting
causes of action against Defendants and Does 1-100 for:
1.
Narcotics Abatement (Health & Safety Code §§ 11570
et seq.)
2.
Public Nuisance (Civil Code §§ 3479 et seq.)
3.
Violation of El Monte Municipal Code (EMMC Chapters
5.18 and Ch. 1.19)
4.
Violation of Unfair Competition Law (Business &
Professions Code §§ 17200 et seq.)
5.
Violation of MAUCRSA (Business & Professions Code
§§ 26000 et seq.)
On August 27, 2021, Ming Chen’s default was entered.
On March 17, 2023, Top World filed a “Notice of Settlement
as Between City of El Monte and Top World Investment Inc.” On March 21, 2023,
Plaintiff filed a “Notice of Settlement as Between Plaintiff City of El Monte
and Defendants Alan Yong Lun Chen and Xiao Chang Liang.”
On May 3, 2023, Plaintiff dismissed Top World, with
prejudice. On June 21, 2023, Plaintiff dismissed Liang and Lun Chen, with
prejudice.
An Order to Show Cause Re: Default Judgment is set for
December 6, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff seeks $998,050.00 as the “demand of
complaint” set forth on Judicial Council Form CIV-100; however, the prayer of
Plaintiff’s complaint seeks, inter alia, a $25,000.00 penalty pursuant
to Health and Safety Code § 11581(b)(2) and payment of the subject property’s
fair market rental value (not stated) for one year pursuant to § 11581(c)(1) as
to the first cause of action, a civil penalty of $1,000.00/day pursuant to EMCC
Chapters 1.18 and 51.18 as to the second and third causes of action, a civil
penalty of $2,500.00/day pursuant to Business and Professions Code §§ 17200 et
seq. as to the fourth cause of action and “up to three times” the amount of the
license fee for each unlawful violation pursuant to Business and Professions
Code §§ 26000 et seq. as to the fifth cause of action and payment of “all
monies unlawfully obtained from the illegal marijuana activities” at the
subject property as to the second through fifth causes of action.
The proposed judgment seeks a
$25,000.00 civil penalty as to the first cause of action, plus $590,040.00 as
disgorgement of all monies unlawfully obtained from the illegal marijuana
activities at the subject property as to the second through fifth causes of
action, $51,000.00 in $1,000.00/day penalties per EMCC Chapters 1.18 and 5.18
as to the second and third causes of action and $332,010.00 in civil penalties
per Business and Professions Code §§ 26000 et seq. as to the fourth and fifth
causes of action.
In actions for money damages,
however, a default judgment is limited to the amount demanded in the complaint.
(See Greenup v. Rodman (1986) 42
Cal.3d 822, 824.) The amount demanded in the complaint is determined both from
the prayer and from the damage allegations in the complaint. (National Diversified Services, Inc. v.
Bernstein (1985) 168 Cal.App.3d 410, 417-418.) The disgorgement amount does
not appear to have been set forth in the complaint.
2.
Plaintiff is requested to provide the court with a copy
of EMMC Chapter 1.18, Resolution No. 10104 at Section 2, referenced in
Paragraph 15 of the Declaration of David R. Welch.
3.
Plaintiff seeks $7,000.00 in “police enforcement” costs
and $309.24 in “code enforcement costs” in its
Memorandum of Costs. Plaintiff is requested to provide the court with an
itemization of the foregoing costs.
4.
Plaintiff requests an award of punitive damages.
(Prayer, ¶ 24). It is unclear to the court whether Plaintiff is seeking
punitive damages via this instant default prove-up application.
Case Number: 20STCV01082 Hearing Date: November 16, 2023 Dept: 58 Judge Bruce G. Iwasaki
Department
58
Hearing
Date: November 16, 2023
Case
Name: BMC West, LLC v. Karlin
Case
No.: 20STCV01082
[Consolidated w/ 20STLC02980]
Matter: Motion for Determination
of Good Faith Settlement
Moving Party: Cross-Complainant Michael
Karlin, former Trustee of the 12822 Highwood Street Trust, Michael Karlin,
Trustee of the HIGHWOOD GIFT TRUST #1 dated November 1, 2021, and Michael
Karlin, Trustee of the HIGHWOOD GIFT TRUST #2 dated November 1, 2021
Responding
Party: None
Tentative Ruling: The Motion for Determination of Good Faith
Settlement is granted.
This lawsuit concerns construction defects by Designing Edge
Builders, Inc. (Cross-Defendant and Cross-Complainant) in connection with the
remodeling of Michael Karlin’s house.
On January 13, 2020, Plaintiff BMC West LLC filed a
Complaint against Designing Edge, asserting causes of action for Breach of
Contract, Quantum Meruit, Account Stated, Open Book Account, Recovery on
Personal Guarantee, and Recovery on License Bond.
On March 4, 2020, Michael Karlin, former Trustee of the
12822 Highwood Street Trust, Michael Karlin, Trustee of the HIGHWOOD GIFT TRUST
#1 dated November 1, 2021, and Michael Karlin, Trustee of the HIGHWOOD GIFT
TRUST #2 dated November 1, 2021 (Karlin Parties) filed a Cross-Complaint
against Designing Edge Builders, Inc. and Dominique Sauer (DE), asserting
causes of action for Equitable Indemnity, Breach of Written Contract,
Declaratory Relief, and Fraud.
On April 21, 2020, DE filed a Cross-Complaint against Karlin
Parties, asserting causes of action for Breach of Contract, Open Book Account,
Account Stated, Quantum Meruit, Total Indemnity, Equitable Indemnity, and
Contribution.
On October 11, 2023, the parties –
Karlin Parties, on the one hand, and DE, on the other hand – signed a settlement
agreement (Settlement Agreement) in this action. The Settlement Agreement provides that DE will pay $650,000
to Karlin Parties in exchange for a full settlement and release of all claims
against them and a dismissal of the Cross-Complaint. The Settlement Agreement
depends upon the Court’s approval of the Motion for Good Faith Settlement.
On August 30, 2023, Karlin Parties moved for a good faith
settlement with respect to a Settlement Agreement. The motion is unopposed.
The other potential parties involved include
the following: Pool & Spa Builders, Inc. (Cross-Defendant); Knibb Design
Corporation (Cross-Defendant); Patmar Air Systems, Inc. (Cross-Defendant),
Ramglass Enterprises, Inc., dba J&J Roofing (Cross-Defendant), and BMC
West, LLC (formerly Plaintiff but dismissed from action).
The Motion for Good Faith Settlement
is granted.
Legal Standard
“A
determination by the court that the settlement was made in good faith shall bar
any other joint tortfeasor or co-obligor from any further claims against the
settling tortfeasor or co-obligor for equitable comparative contribution, or
partial or comparative indemnity, based on comparative negligence or
comparative fault.” (Code Civ. Proc., § 877.6, subd. (c).)
In Tech-Bilt, Inc. v.
Woodward-Clyde & Associates (1985) 38 Cal.3d 488 (Tech-Bilt),
our Supreme Court explained that in making a good faith settlement
determination, a trial court should “inquire, among other things, whether the
amount of the settlement is within the reasonable range of the settling
tortfeasor's proportional share of comparative liability for the plaintiff's
injuries.” (Id. at p. 499.) “The
party asserting the lack of good faith shall have the burden of proof on that
issue.” (Code Civ. Proc., §
877.6, subd. (d).)
“In the
context of section 877.6, ‘[t]he trial court is given broad discretion in
deciding whether a settlement is in “good faith” for purposes of section 877.6,
and its decision may be reversed only upon a showing of abuse of discretion.’ ”
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939,
957.)
Discussion
Karlin Parties request the Court
find its settlement with DE in the amount of $650,000 was made in good faith based
on its position that the Settlement Agreement meets all the relevant Tech-Bilt
factors.
Acknowledging that there
is no precise method to determine whether parties entered into a good faith
settlement, the Supreme Court in Tech-Bilt,
Inc. v. Woodward-Clyde Assoc. (1985) 38
Cal.3d 488 provided guidelines for
determining whether a settlement is made in good faith.
(38 Cal.3d at 495.) Rather, the court must strike a balance between the public
policy favoring settlements and the competing policy favoring equitable
allocation of costs between tortfeasors. (Id. at pp. 498-99.) To
accomplish this, the Tech-Bilt Court provided the following factors for
determining whether a proposed settlement is based on good faith: (1) a rough
approximation of plaintiff’s total recovery and the settling defendant’s
proportionate liability; (2) the amount paid in settlement; (3) allocation of
settlement amounts among plaintiffs; (4) recognition that a settlor should pay
less in settlement than it would if it were found liable after trial; (5)
financial conditions and insurance policy limits of the settling defendant; and
(6) the existence of collusion, fraud, or tortious conduct aimed to injure the
interests of non-settling defendants. (Id. at 499-500.) The burden of
proof in asserting that a settlement lacked good faith falls upon the party
making the assertion and it must show that “the settlement is so far ‘out of
the ballpark’ in relation to these factors as to be inconsistent with the
equitable objectives of [Code of Civil Procedure section 877.6].” (Ibid.)
Here, under the Settlement
Agreement, DE is to pay the sum of $650,000.00, which is approximately 50% of
the recoverable damages pursuant to Karlin Parties’ expert. (Wolpert Decl., ¶¶
2-3 Ex. 1 [Settlement Agreement], 2 [Expert’s Damage Report].) Therefore, the Settlement
Amount is within the ballpark of DE’s possible share of liability, with the understanding
that, under Tech-Bilt, a party should not be required to pay more in a
settlement than if found liable at trial.
Further, Karlin Parties assert that
this settlement was reached in good faith as an arm’s length transaction before
neutral mediators. (Mot., 5:12-17.) Further, as is set forth in the settlement
agreement itself, payment of the settlement amount is being made by DE’s insurance
carriers; thus, there are no issues with the insurance policy limits.
Finally, under Code of Civil
Procedure section 877.6, “the party asserting the lack of good faith shall have
the burden of proof on that issue.” In the absence of any opposition to this
motion, this burden has not been met.
Accordingly, the Court finds that the settlement was made in
good faith and in compliance with the Tech-Bilt factors.
Conclusion
The Motion for Determination of Good Faith Settlement is
granted.
Case Number: 20STCV08790 Hearing Date: November 13, 2023 Dept: 30 KIMISHA SMITH vs CENTRAL INN MOTEL, et al.
Motion to Be Relieved as Counsel
TENTATIVE
The motion to be relieved as counsel for Defendant, Central Inn Inc., is CONTINUED to a date after December 16, 2023. Counsel for Plaintiff’s counsel has submitted all of the mandatory judicial council forms (i.e., MC-051, MC-052, and MC-053). However, the proposed order has outdated hearing dates listed. There are hearings set for November 16, 2023 in this matter. Counsel should file this motion after the date of the hearings in order to ensure all hearings listed on the proposed order are current, and Client is given proper notice of upcoming hearings to mitigate any prejudice to it. As such, counsel is ordered a corrected proposed order, ensuring that all current hearing dates are listed. Moving party is ordered to give notice.
Case Number: 20STCV24453 Hearing Date: November 13, 2023 Dept: 30 MELTON DAVOOD, et al. vs EDWIN ALDANA, et al.
Motion to Continue the Trial Date
Motion to Be Relieved as Counsel
TENTATIVE
Plaintiff's Motion to Continue the Trial Date to March 5, 2024, and all-related trial dates in accordance with the new trial date, is GRANTED.
Plaintiff's Motion to Be Relieved as Counsel for Plaintiff is CONTINUED for Counsel to correct deficiencies. Moving party to give notice.
Judicial Assistant to calendar next hearing in 30 days.
DISCUSSION
The motion to be relieved as counsel for Plaintiff, Karen Shahgeldyan is CONTINUED. Counsel for Plaintiff’s counsel has submitted all of the mandatory judicial council forms (i.e., MC-051, MC-052, and MC-053). However, the proposed order is not completed. It does not list the hearings in this matter, e.g., FSC and trial date. CRC Rule 3.1362(e). The Court notes that there is a motion for a trial continuance. If that is granted, counsel should file a corrected proposed order, listing the new trial and FSC dates. Additionally, the motion, declaration, and proposed order need to be served on the client and all parties who have appeared. CRC Rule 3.1362(d). There is no proof of service showing any party or the client were served. As such, counsel is ordered to file a new motion, declaration, and a corrected proposed order, ensuring that all current hearing dates are listed, serve the client and all parties who have appeared, and file proof of service.
Case Number: 20STCV27665 Hearing Date: November 13, 2023 Dept: 40 Superior Court of California
County of Los Angeles
Department 40
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SANDRA NORLUND, an individual, and SANDRA NORLUND, Trustee of
the Norlund Family Trust Dated September 15, 2000,
Plaintiff,
v.
RICHARD L. NORLUND; SHARON K. BACON-NORLUND; RICHARD L. NORLUND
as Successor Trustee of “Trust A” of the “Norlund Family Trust dated March
16, 1987”; RICHARD L. NORLUND as Successor Trustee of “Trust B” of the
“Norlund Family Trust dated March 16, 1987”; RICHARD L. NORLUND as Trustee of
“Richard L. Norlund Separate Property Trust dated December 11, 1997”; RICHARD
L. NORLUND and SHARON K. BACON-NORLUND, as Trustees of the “Norlund Family
Trust dated May 13, 2019” and DOES 1 through 100, inclusive,
Defendants.
NANCY HYMAS, as Trustee for Trust A FBO NANCY HYMAS and Trust B
FBO NANCY HYMAS,
Nominal
Defendants.
|
Case No.:
20STCV27665 – Lead Case
(Related Case No. 23STCV19070)
Hearing Date: 11/13/23
Trial Date: 8/20/24
[TENTATIVE] RULING RE:
Defendants Richard
L. Norlund and Sharon K. Norlund’s Motion to Expunge Lis Pendens.
|
|
|
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Background
Pleadings
In Case No. 20STCV27665, Plaintiffs—Sandra
Norlund individually and as a trustee—sue the Norlund Defendants and Nominal
Defendant Nancy Hymas pursuant to a July 29, 2020 First Amended Complaint that
alleged claims of (1) Judicial Foreclosure, (2) Fraud, and (3) Interference
with Prospective Economic Advantage.
The Fraud and Interference with
Prospective Economic Advantage claims were stricken by Department 40 on April
13, 2021, based on a representation by Plaintiffs that only the Judicial
Foreclosure cause of action remained, i.e., an election of remedies. This
election of remedies was also noted by the court of appeal in its decision in
Case No. B316527, indicating that Plaintiffs had taken the position they were
no longer pursuing her tort claims, but still pursuing all their claims as
stated in the first cause of action, including a claim for damages for alleged breach
of a settlement agreement. (See Norlund v. Norlund (February 9, 2023)
2023 WL 1844051, *6 (Unpub.) It should be noted that California Rules of Court,
rule 8.1115 subdivision (b)(1) permits citation to an unpublished opinion when,
as here, “the opinion is relevant under the doctrines of law of the case, res
judicata, or collateral estoppel.”
The claims arise from allegations
that Richard Norlund, Nancy Hymas (sister to Richard), and Sandra Norlund
(sister-in-law to Richard and Nancy, husband deceased) were the trustees of Trust
A and B of the Norlund Family Trust dated March 16, 1987 and that, on or about
April 11, 2019, after litigation between these individuals in Butte County,
California, the parties reached a settlement agreement. Pursuant to that
agreement, the trustee of these trusts would sell real property known as 14924
and 14930 Arrow Highway, Baldwin Park, California (the Subject Properties) to
Richard Norlund in exchange for a deed of trust and promissory note worth $1.47
million to be assigned to Sandra Norlund and Nancy Hymas, among other terms.
Richard is then alleged to have defaulted on the promissory note by failing and
refusing to pay Sandra the agreed upon $7,668.22 per month required by the note
and to have breached the settlement agreement by modifying the terms of the
deed of trust so that it referred to a different promissory note. Specifically,
Richard is alleged to have changed the date of the promissory note appearing on
the deed of trust—which meant the date of the promissory note on the deed of
trust did not match the date on the promissory note assigned to Sandra and
Nancy—and to have recorded the altered deed of trust without Sandra’s approval.
Sandra further alleges that Richard, by refusing ‘to provide the valid Deed of
Trust,’ breached the settlement agreement’s term to provide Sandra with
appropriate documentation to allow her to obtain a Lender’s Policy of Title
Insurance. Sandra alleges that Sharon Norlund conspired with Richard to alter
the deed of trust.
Motion Before the Court
On August 27, 2020, Plaintiff
Sandra Norlund recorded a notice of pendency of this action (lis pendens
notice) on the Subject Properties with the Los Angeles County Recorder’s
Office.
On August 26, 2021, the Court
granted a June 10, 2021 motion for summary judgment by the Norlund Defendants.
On September 27, 2021, the Court
denied a motion for reconsideration by Sandra Norlund.
On November 10, 2021, judgment was
entered.
That same day, Sandra appealed the
judgment.
On November 12, 2021, the Norlund
Defendants filed a motion to expunge the lis pendens notice based on the grant
of summary judgment, with Sandra opposing the motion on November 23, 2021 and
the Norlund Defendants replying to the opposition on December 1, 2021.
On December 8, 2021, the Court
granted the motion and expunged the lis pendens notice based on the grant of
summary judgment.
On February 9, 2023, the court of
appeal reversed the grant of summary judgment with instructions that this Court
deny the June 10, 2021 motion by the Norlund Defendants.
On April 14, 2023, the court of
appeal returned remittitur to this Court.
On May 18, 2023, based on the
outcome of the appeal, Plaintiff filed a motion to re-record a lis pendens
notice on the Subject Properties, which the Norlund Defendants expressly
declined to oppose on June 12, 2023, subject to a reservation of rights.
On June 26, 2023, based on the
outcome of the appeal, the Court granted Sandra Norlund’s May 18th motion.
On October 5, 2023, the Norlund Defendants
filed a motion to (1) expunge the new lis pendens notice on the Subject
Properties, (2) require Sandra Norlund to post an undertaking, or (3) expunge
the lis pendens notice by allowing the Norlund Defendants to post an
undertaking. The motion also seeks fees and costs.
On October 25, 2023, the Court
signed a stipulation and proposed order by the parties to continue the hearing
on the October 5th motion.
On October 30, 2023, Sandra Norlund
opposed the Norlund Defendants’ motion.
On November 3, 2023, the Norlund
Defendants replied to the opposition.
The Norlund Defendants’ motion is
now before the Court.
The Court notes that this motion
only seeks to expunge the lis pendens that was filed in the lead case, as
Defendants contend that the lis pendens that was filed in the related case, 23
STCV19070, which was recently transferred to Los Angeles from Butte County, has
already been expunged. (Mot. at p. 7.)
Evidentiary
Objections
Reply Objections to Opposition
Evidence
Objections to Okerlund and Plummer
Declarations: Not ruled on as not dispositive of Court’s determination;
objections go to probable validity, not definition of real property claim.
Motion
to Expunge Lis Pendens
Legal Standard
A lis pendens is a recorded
instrument titled Notice of Pending Action that is recorded in the office of
the county recorder where land is located and gives constructive notice of a
pending lawsuit affecting title to described real property. (Gale v.
Superior Court (2004) 122 Cal.App.4th 1388, 1395.)
“A party to an action who asserts a
real property claim may record a notice of pendency of action in which that
real property claim is alleged.” (Code Civ. Proc., § 405.20.) Anyone having an
interest in the property affected by a lis pendens, whether or not a party to
the pending lawsuit, may move to expunge the lis pendens any time after it is
recorded. (Code Civ. Proc., § 405.30.)
A lis pendens may be expunged on
any of the following grounds: (1) defects in the statutory service and filing
requirements; (2) the complaint does not contain a real property claim; (3) the
claimant cannot prove the probable validity of the real property claim by a
preponderance of the evidence; and (4) “adequate relief” can be “secured to the
claimant by the giving of an undertaking.” (Code Civ. Proc., §§ 405.23, 405.31,
405.32, 405.33; McKnight v. Superior Court (Faber) (1985) 170 Cal.App.3d
291, 303 [recognizing defective servicing and filing requirements as grounds
for expungement].)
The motion may be made even while
an appeal is pending. (Peery v. Superior Court (1981) 29 Cal.3d 837,
842.) On a motion to expunge a lis pendens after judgment against the claimant
and while an appeal is pending, the trial court must grant the motion unless it
finds it more likely than not that the appellate court will reverse the judgment.
(Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1015.)
Order Expunging Lis Pendens
Notice: GRANTED.
The Norlund Defendants seek an
order that will (1) expunge the new lis pendens notice on the Subject
Properties, (2) require Sandra Norlund to post an undertaking, or (3) expunge
the lis pendens notice by allowing the Norlund Defendants to post an undertaking.
The motion also seeks fees and costs.
A. Expungement
Generally
The Norlund Defendants generally
seek expungement on three independent grounds: (1) Plaintiffs Sandra Norlund
failed to plead a real property claim (Code Civ. Proc. §405.31); (2) the claim
filed lacks probable validity (Code Civ. Proc. §405.32); and (3) the Sandra
Norlund Plaintiffs are in breach of an April 18, 2022 Court order requiring
their cooperation in the Subject Properties’ sale. (Mot., p. 7.)
A. Failure to State
Real Property Claim
In their motion, the Norlund
Defendants argue that the judicial foreclosure claim alleged in the FAC is not
a “real property claim” for the purposes of a lis pendens notice. (Mot., pp.
11-12; see Code Civ. Proc., § 405.20.) A “real property claim” involves a cause
or causes of action in a pleading that, if meritorious, affect (a) title to, or
the right to possession of, specific real property or (b) the use of an
easement identified in the pleading, other than an easement obtained pursuant
to statute by any regulated public utility. (Code Civ. Proc., § 405.4.) The
Norlund Defendants rely on Urez Corp. v. Superior Court (1986) 190
Cal.App.3d 1141 (Urez) for the proposition that a deed of trust does not
give the beneficiary any interest in title of possession of real property, for
which reason the beneficiary is only a lienholder on the property. The Norlund
Defendants also rely on Civil Code section 2888 for the proposition that a lien
does not transfer title to real property. Under this framework, if a deed of
trust is only a lien on the property, then the judicial foreclosure claim does
not involve title or possession of the Subject Properties. (No easement rights
are involved in this action.) (Mot., pp. 11-12.)
In opposition, Sandra Norlund
argues that a deed of trust affects title, compared to a mortgage, which
operates under a lien theory, citing Robin v. Crowell (2020) 55
Cal.App.5th 727 (Robin). Elsewhere, Sandra relies on Kaiser
Industries Corp. v. Taylor (1971) 17 Cal.App.3d 346, 352 (Kaiser)
and Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477 (Aguilar).
Sandra also argues that judicial and non-judicial foreclosure on a deed of
trust is proper when there has been a default, that a default has occurred
here, and that judicial foreclosure is the proper claim because Plaintiff
cannot proceed with a non-judicial foreclosure in light of the deed of trust
not being enforceable (discrepancy of note date) and in light of the lack of
title insurance. Plaintiff notes that a different deed of trust was recorded in
the Norlund Defendants’ counsel’s favor—Rick Edwards, Esq.—on January 13, 2022.
(Opp’n, pp. 7-10.)
In reply, the Norlund Defendants do
not address Robin. Instead, the Reply focuses on distinguishing Kaiser
and Aguilar. The Norlund Defendants otherwise focus on Urez.
(Reply, pp. 6-8.)
The Court finds in favor of the
Norlund Defendants.
A review of Urez, Robin,
Kaiser, and Aguilar shows that only Urez involved issues
relating to a lis pendens notice. In Urez, the plaintiff held a second
trust deed that was extinguished by the foreclosure of the first trust deed.
The purchaser at the foreclosure was a corporation formed by the defaulting
owner. (Urez, supra, 190 Cal.App.3d at pp. 1143-1144.) The
complaint alleged causes of action for fraud in the formation of the
corporation, for a declaration that the plaintiff held a beneficial interest in
the property, and for the imposition of a constructive trust. (Id. at p.
1144.) The Urez court found that the action did not support a lis
pendens, noting that the case was “essentially a fraud action seeking money
damages with additional allegations urged to support the equitable remedies of
a constructive trust or an equitable lien.” (Id. at p. 1149.) The court also
held that “allegations of equitable remedies, even if colorable, will not
support a lis pendens if, ultimately, those allegations act only as a
collateral means to collect money damages.” (Id. at p. 1149.)
Here, the FAC involves a judicial
foreclosure claim that appears to only act as a collateral means to collect
money damages. Indeed, the relief sought for the first cause of action involves
special damages, general damages according to proof, interest and other
incidental damages, attorney fees, punitive damages, costs of suit, a court
order mandating the sale of the Subject Properties so that the proceeds can be
used to pay Sandra Norlund, and other relief as the Court deems just and
proper. (FAC, Prayer, ¶¶ 1-8 at p. 18.) All these forms of relief involve money
damages. Even the order forcing a sale of the Subject Properties involves a
collateral means to collect money damages because the specific relief
requested, though equitable, is intended for the sole purpose of selling
property for a monetary return that will be used to pay Sandra Norlund’s
damages. Such relief is not a proper ground for a lis pendens notice. (Urez,
supra, 190 Cal.App.3d at p. 1149 [“[A]llegations of equitable remedies,
even if colorable, will not support a lis pendens if, ultimately, those
allegations act only as a collateral means to collect money damages”]; see also
id. at p. 1145 [“[A]n action for money damages alone will not support a
lis pendens”]; BGJ Associates v. Superior Court (1999) 75 Cal.App.4th
952, 967-968 [same]; Allied Eastern Financial v. Goheen Enterprises
(1968) 265 Cal.App.2d 131, 132-134 [same].
The Norlund Defendants’ motion is
thus GRANTED.
B. Lack of Probable
Validity
The Court need only reach the probable
validity of the judicial foreclosure cause of action if it is a real property
claim, which the Court has determined it is not. (See discussion at Section
I.A. supra; see also Code Civ. Proc. §405.32.)
C. Breach of Court
Order
Whether Sandra Norlund’s alleged
breaches of an April 2022 court order merits expungement of the lis pendens
notice has been mooted by the determination above at Section I.A.
II. Order Requiring
Sandra Norlund to Post Undertaking
The question of whether Sandra
Norlund should be required to post an undertaking if she states a real property
claim with probable validity has been mooted by a determination that Sandra
Norlund has not stated a real property claim for lis pendens purposes.
III. Expungement
Based on Norlund Defendants Posting Undertaking
The question of whether the Norlund
Defendants may be allowed to post an undertaking for the purpose of expunging
the lis pendens notice on the Subject Properties has been mooted by a
determination that Sandra Norlund has not stated a real property claim for lis
pendens purposes.
Sanctions: DENIED.
The court shall direct that the
party prevailing on any motion under this chapter be awarded the reasonable
attorney’s fees and costs of making or opposing the motion unless the court
finds that the other party acted with substantial justification or that other
circumstances make the imposition of attorney’s fees and costs unjust. (Code
Civ. Proc., § 405.38.)
Here, the Court finds that
colorable arguments were made by both sides, such that the Norlund Defendants
filed their motion in good faith (e.g., citing Urez) and Sandra Norlund
opposed the motion in good faith (e.g., citing caselaw and arguing the probable
validity of her claims based on default and other breaches of the settlement
agreement or the promissory note).
The Court thus DENIES sanctions as
requested by the Norlund Defendants in their moving papers and by Sandra
Norlund in her opposition.
Conclusion
Defendants Richard L. Norlund and
Sharon K. Norlund’s Motion to Expunge Lis Pendens is GRANTED.
The Court EXPUNGES the lis pendens
notice recorded by Sandra Norlund on 14924 and 14930 Arrow Highway, Baldwin
Park, California.
The corresponding Request for
Sanctions is DENIED.
Sandra Norlund’s opposition request
for sanctions is likewise DENIED.
Case Number: 20STCV27864 Hearing Date: November 13, 2023 Dept: 30 VICKI SHAFFER, AN INDIVIDUAL vs CITY OF SANTA MONICA, A PUBLIC ENTITY, et al.
Motion for Summary Judgment
TENTATIVE
Defendant's Motion for Summary Judgment is DENIED. Plaintiff to give notice.
DISCUSSION
Request for Judicial Notice
Plaintiff requests judicial notice of the following: (1) Mission Gorge Road between Jackson Street and Echo Dell Road in San Diego, California was a 6-lane through highway with a speed limit of 55 miles per hour in 2009, which was when the subject incident occurred in Heskel v. City of San Diego (2014) 227 Cal.App.4th 313; and (2) The block on the southern side of Bay Street between the two sections of 6th Street in Santa Monica, California is slightly more than 100 feet long and is part of a residential district. Stop signs are present at both ends of the block to control traffic traveling in both directions. The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c(c). Therefore, Plaintiff’s request is unnecessary and the Court declines to rule on the request.
Evidentiary Objections The Court declines to rule on Defendants’ objections to Plaintiff’s evidence as the evidence was not relied upon by the Court. While the Court “must” rule on all evidentiary objections made at the summary judgment stage, it is permitted to focus its attention on those which are “important.” (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532; see also Code Civ. Proc., § 437c, subd. (q) [the court need only rule those objections to evidence that were material in the disposition of the MSJ].)
Discussion Defendant moves for summary judgment on the grounds that there is no evidence that an employee of the City created the condition(s) through a negligent, wrongful act or omission, and there is also no evidence that the City knew or should have known of the alleged conditions and their allegedly dangerous character. Defendant argues that the City had no actual notice of the metal remnant or depression in the brick parkway, and that it cannot be charged with constructive notice. Notice, in the context of Section 835 liability, is defined in Government Code § 835.2 as follows: “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. (b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” On the issue of due care, admissible evidence includes but is not limited to evidence as to: (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” (Gov. Code, § 835.2(a)-(b).) “Admissible evidence for establishing constructive notice is defined by statute as including whether a reasonably adequate inspection system would have informed the public entity, and whether it maintained and operated such an inspection system with due care. (§ 835.2, subd. (b)(1), (2).)” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.) A public entity may create “a reasonable inference that the condition was not obvious” by, for example, “show[ing] that [its] workers had been in the area and did not see the condition within at least the one-year period leading up to [an] accident ....” (Id. at p. 318.) Defendant argues it had no actual notice of any dangerous condition involving the metal remnant in the driveway wing or depression in the brick parkway. The City maintains a sidewalk inspection program and inspects sidewalks for damage, displacements and significant deterioration. (Issagholian Decl., ¶ 5.) The City inspectors will identify defects in both the parkways and driveways. (Id., ¶ 11.) Allen Issagholian, the inspector who performed the inspection on October 2, 2017 made notations regarding his findings, and did not identify the metal remnants in the driveway or defects in the brick parkway. (Id., ¶ 12.) While parkways are typically the maintenance responsibility of property owners, City inspectors will note defects found in the parkways including significant depressions and missing pieces. There is no record that the depression in the brick parkway was reported to the City or otherwise noticed by the City. (Issagholian Decl., ¶¶ 12-17.) If problems in the sidewalk, driveway or parkway are reported within the City, the reports are referred to the Streets Division, where an inspection would then be conducted. The records of the Streets Division contain no record of any such report. No identification of the metal remnant or sunken brick area was ever made. (See Decl. Castle ¶ 5.) If the Streets Services Division received information from any other City divisions regarding defects in the area of the driveway or parkway, the defects would be noted in the City inspector’s records. No such notations exist, indicating the metal remnant and depression in the brick parkway have never been noticeable or noticed by City employees and reported to the Streets Services Division which handles inspections and maintenance of the public right of way. (Issagholian Decl., ¶¶ 5-7, 16-17.) A search of City citizen complaint records yielded no complaints about the area in the five years prior to the incident. There have been no other government claims submitted regarding injuries at that location in the five years prior to the incident. (Zabala Decl., Ex. 6; Mack Decl., ¶ 8.) Defendant also argues it did not have constructive notice of the alleged dangerous condition. Defendant cites to the case Heskel v. City of San Diego (2014) 227 Cal.App.4th 313 to support the contention that the condition was not an obvious defect. In Heskel, the plaintiff tripped over a dangerous condition in the sidewalk consisting of the protruding base of a hollow metal post cemented into the sidewalk. (Id. at p. 315-316.) The Court of Appeal upheld the trial court’s grant of summary judgment finding that the defendant city had met its burden of proof and the plaintiff had failed to meet his burden of proof on the issue of the obvious nature of the condition. (Id. p. 321.) The Heskel Court found that the several declarations from the city workers showed that the condition was not obvious and thus there was no constructive notice of the condition as a matter of law. (Id. at p. 319.) The defendant had presented two declarations from city employees to show that none of the city databases showed reports of the condition, nor were there any reports of a downed street sign. (Ibid.) The city further provided the declaration of a supervisor of work crews who had recently been in the area of the condition twice before the plaintiff’s incident, and none of those workers reported a downed street sign or the condition over which the plaintiff tripped. (Ibid.) The Heskel court found that this was substantial evidence to show that the condition was not obvious and thus the burden shifted to the plaintiff. In opposition, the plaintiff provided declarations from himself and another witness showing that the condition had been there for two years as well as pictures of the condition. (Id. p. 320.) The court found that this evidence was insufficient to show a triable issue of material fact as to the obviousness of the condition. (Ibid.) The declarations offered by plaintiff merely explained how long the structure had been present and how the plaintiff’s fall had occurred. (Ibid.) Nothing in the evidence showed how visible the condition was from the public street nor the size of the condition. (Ibid.) Although the plaintiff provided pictures of the condition, the pictures were of poor quality and the court concluded that “[t]he pictures show a condition that was roughly a few inches in height. Evidence of a condition of that nature, without more, is not a prima facie showing that the condition was obvious.” (Ibid.) As such, the Heskel court found that the trial court’s grant of summary judgment for the defendant city was proper on the basis of lack of obviousness of the condition. (Id. p. 321.) Defendant argues that thus, based on the declarations provided above, that city workers were in the area and did not notice any dangerous condition, and that the City has a sidewalk inspection program in which inspectors survey the right of way to identify defects, the condition was not obvious. Defendant also argues that just like in Heskel, the piece of metal upon which Plaintiff contends she tripped measured approximately 1.5 to 1.7 inches based on photographs provided by Plaintiff. (Ford Decl., Ex. 11.) Since the metal pole in Heskel which was “a few inches” high on the sidewalk was not obvious, then the metal remnant in this case which was located off of the walkway measuring less than two inches was also not obvious. Defendant additionally argues that in Heskel, the metal piece was in the sidewalk, and the Court still found it was not obvious. Here, neither metal remnant nor the brick area are part of the sidewalk, where pedestrians are expected to walk. There would be a reduced expectation for the City to notice them, and their presence would less obvious to inspectors assigned to inspect pedestrian walkways. In Martinez v. City of Beverly Hills, 71 Cal. App. 5th 508, 523 (2021) in determining whether the government entity had constructive notice, it was relevant that the purported defect did not exist in an area where pedestrians were expected to frequently walk, “we conclude that the divot in this case, which was less than two inches in depth and located in an alley where the alley's asphalt abuts its concrete drainage swale, is, as a matter of law, not a defect that is ‘of such an obvious nature that [the City], in the exercise of due care, should have discovered the condition and its dangerous character.’” “Because alleys, unlike sidewalks, are designed and primarily used for purposes other than walking, and because the cost to municipalities of inspecting alleys with the same vigilance as inspecting sidewalks would be astronomical relative to the benefit of doing so, we hold that what is an obvious defect in the condition of an alley is not the same as for a sidewalk.” (Id. at 514.) In opposition, Plaintiff argues that there are triable issues of material facts that Defendant City had constructive notice of the dangerous condition of the sidewalk. The dangerous condition in Heskel was the remaining base of a single metal post, whereas in the instant case, there were two metal post bases within a couple feet of each other here. What’s more, the defective condition in this case included a depression in the walkway immediately adjacent to those metal posts. The Court finds there are triable issues of fact as to whether the condition was obvious. First, as Plaintiff points out here there are two metal post bases within a couple feet of each other, and the defective condition in this case includes a depression in the walkway immediately adjacent to those metal posts. Moreover, the photos submitted also present triable issues as to whether the condition is obvious. In Heskel, although the plaintiff provided pictures of the condition, the pictures were of poor quality and the court concluded that “[t]he pictures show a condition that was roughly a few inches in height. Evidence of a condition of that nature, without more, is not a prima facie showing that the condition was obvious.” (Heskel, supra, 227 Cal.App.4th at 319.) Here, there is more, there are two metal post bases and a depression in the pathway. Further, even assuming that the alleged dangerous condition was located on a “non-sidewalk surface,” it was still part of a walkway, and immediately adjacent to the sidewalk. This case is not like Martinez, which discussed generally how alleyways are traveled by heavy vehicles, not pedestrians, and thus are more likely to degrade than sidewalks. (Martinez, supra, 71 Cal.App.5th 508, 523-524.) Similarly, a reasonable jury could find that the City’s inspection system was not adequate. Issagholian’s statement regarding the inspection of parkways and driveways states that he makes note of defects in the parkway, such as notable depressions, missing bricks or offsets, and that he did not identify the metal pieces as a defect in his report when he inspected the area. (Issagholian Decl., ¶ 12.) He further states that he marks displacements that are ¾ of an inch to 3 inches as Priority 3. (Id.) Yet the evidence presented in this motion shows that the metal posts were between 1.5 and 1.7 inches, but they were not marked. Thus, the jury may very well find that the inspection system was not adequate. In reply, Defendant mischaracterizes the extent of Plaintiff’s burden on this motion for summary judgment, by arguing that Plaintiff must now show the condition was not obvious and that it existed for an adequate period of time. However, Defendant only moved for summary judgment on the issue of whether the condition was obvious, and not whether the condition existed for an adequate period of time. As such, Plaintiff’s burden of proof as to whether it can prove the condition existed for an adequate period of time is not at issue in this motion, as that is something Plaintiff must prove at trial.
Case Number: 20STCV32385 Hearing Date: November 13, 2023 Dept: 26
Briand
v. LACMTA, et al.
MOTION TO RECLASSIFY
(CCP § 403.040)
TENTATIVE RULING:
Plaintiff William Briand’s Motion
to Reclassify is DENIED.
ANALYSIS:
Plaintiff Williams Briand
(“Plaintiff”), in pro per, filed this purported class action for civil rights
violations against Defendant Los Angeles Country Metropolitan Transportation
Authority (“Defendant”), on August 25, 2020. The action was originally filed in
the unlimited civil court and reclassified as a limited civil case on November
8, 2021. (Minute Order, 11/08/21.) An order to show cause regarding failure to
file proof of service was scheduled and then continued multiple times in the
limited court until August 30, 2022, with warning to Plaintiff that failure to
appear might result in dismissal of the action. When Plaintiff failed to appear
on August 30, 2022, the Court dismissed the action without prejudice. (Minute
Order, 08/30/22.)
On March 27, 2023, the Court
granted Plaintiff’s motion to vacate the dismissal. (Minute Order, 03/27/23.)
On August 28, 2023, Plaintiff filed the instant Motion to Reclassify. Defendant
filed its answer to the Complaint on September 26, 2023.
Discussion
As an initial matter, the instant Motion is
not accompanied by a proof of service demonstrating service of the Motion and
notice of hearing on Defendant. Failure to give notice of a motion is
not only a violation of the statutory requirements but of due process. (Code
Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.)
Plaintiff moves to
reclassify this action pursuant to Code of Civil Procedure section 403.040,
which allows a plaintiff to file a motion for reclassification of an action
within the time allowed for that party to amend the initial pleading. (Code
Civ. Proc., § 403.040, subd. (a).) If the motion is made after the time for the
plaintiff to amend the pleading, the motion may only be granted if (1) the case
is incorrectly classified; and (2) the plaintiff shows good cause for not
seeking reclassification earlier. (Code Civ. Proc., § 403.040, subd. (b).) In Walker
v. Superior Court (1991) 53 Cal.3d 257, 262, the California Supreme Court
held that a matter may be reclassified from unlimited to limited only if
it appears to a legal certainty that the plaintiff's damages will necessarily
be less than $25,000. (Walker v. Superior Court (1991) 53 Cal.3d 257.)
In Ytuarte v.
Superior Court (2005) 129 Cal.App.4th 266, 278, the Court of Appeals
examined the principles it set forth in Walker and held that “the court should reject the plaintiff's effort to
reclassify the action as unlimited only when the lack of jurisdiction as an
“unlimited” case is certain and clear.” (Id. at 279.) Plaintiff’s burden is to present evidence to demonstrate
a possibility that the damages will exceed $25,000.00 and the trial court must
review the record to determine “whether a judgment in excess of $25,000.00 is
obtainable.” (Ibid.)
The instant Motion, although brought pursuant to Code of Civil Procedure section 403.040, does
not provide evidence of Plaintiff’s damages or the timing of the requested
relief. Instead, it attacks the order of the unlimited jurisdiction court
transferring this action on November 8, 2021. (Motion, pp. 4:19-6:28.) Given
that the transfer order was issued almost two years ago, the Court finds no
good cause for the timing of the instant Motion to Reclassify. Furthermore,
Plaintiff’s supporting declaration does not speak of any damages he incurred
such that the Court can find the action is incorrectly classified as a limited
jurisdiction case. (Id., Briand Decl., p. 7:1-27.)
Therefore, Plaintiff has not shown that the action is
incorrectly classified and should be reassigned to an unlimited jurisdiction
court.
Conclusion
Plaintiff William
Briand’s Motion to Reclassify is DENIED.
Court clerk to give notice.
Case Number: 20STCV32493 Hearing Date: November 13, 2023 Dept: 28 Having
considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On
August 25, 2020, Plaintiff Chu Shin Kim (“Plaintiff”) filed this action against
Defendants Rodrick Wayne Moore, Jr. (“Moore”), Jane Wade Rosie (“Rosie”), and
Does 1-10 for negligence and negligent entrustment.
On
October 16, 2020, Moore and Rosie (“Defendants”) filed an answer.
On
April 27, 2023, Moore filed a motion for a protective order (1) requiring that his deposition testimony be kept
confidential, (2) precluding the use of Moore’s deposition testimony for any
purpose other than in connection with this lawsuit, (3) precluding the
disclosure and dissemination of Moore’s deposition testimony to any third party
not affiliated with this litigation, including but not limited to print and
online media organizations and tabloids, (4) requiring that Moore’s deposition
testimony and information obtained at his deposition be appropriately protected
from public disclosure and filed under seal, and (5) ordering other protective
measures that the Court deemed appropriate.
The motion was set for hearing on July 18, 2023.
On
June 13, 2023, Plaintiff filed a motion to compel Defendants’ depositions and
for evidentiary and monetary sanctions, to be heard on November 13, 2023.
On
July 17, 2023, Moore filed a notice that he had taken his motion for a
protective order off calendar.
On
October 31, 2023, Defendants filed an opposition to the motion to compel their depositions. On November 7, 2023, Plaintiff filed a reply.
Trial
is currently scheduled for December 7, 2023.
PARTIES’ REQUESTS
Plaintiff
requests that the Court compel Defendants to appear for their depositions
within 10 days of the hearing on the motion. Plaintiff also requests that the
Court impose monetary and evidentiary sanctions on Moore.
Defendants
request that the Court deny the motion.
LEGAL STANDARD
“If,
after service of a deposition notice, a party to the action … without having
served a valid objection under Section 2025.410, fails to appear for
examination, or to proceed with it, or to produce for inspection any document,
electronically stored information, or tangible thing described in the
deposition notice, the party giving the notice may move for an order compelling
the deponent’s attendance and testimony, and the production for inspection of
any document, electronically stored information, or tangible thing described in
the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)
A
motion under Code of Civil Procedure section 2025.450, subdivision (a), shall
comply with both of the following: "(1) The motion shall set forth specific
facts showing good cause justifying the production for inspection of any
document, electronically stored information, or tangible thing described in the
deposition notice. (2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040, or, when the deponent fails to attend the
deposition and produce the documents, electronically stored information, or
things described in the deposition notice, by a declaration stating the
petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd.
(b).)
Code
of Civil Procedure section 2025.450, subdivision (g)(1), provides that if a
motion made under 2025.450 is granted, the court shall impose a monetary
sanction in favor of the party who noticed the deposition and against the
deponent or the party with whom the deponent is affiliated, unless the court
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust.
Code
of Civil Procedure section 2023.030 provides in part:
“To the extent authorized by the chapter governing any
particular discovery method or any other provision of this title, the court,
after notice to any affected party, person, or attorney, and after opportunity
for hearing, may impose the following sanctions against anyone engaging in
conduct that is a misuse of the discovery process:
“(a) The court may impose a monetary sanction ordering
that one engaging in the misuse of the discovery process, or any attorney
advising that conduct, or both pay the reasonable expenses, including
attorney’s fees, incurred by anyone as a result of that conduct. The court may
also impose this sanction on one unsuccessfully asserting that another has
engaged in the misuse of the discovery process, or on any attorney who advised
that assertion, or on both. If a monetary sanction is authorized by any provision
of this title, the court shall impose that sanction unless it finds that the
one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
“(b) The court may impose an issue sanction ordering
that designated facts shall be taken as established in the action in accordance
with the claim of the party adversely affected by the misuse of the discovery
process. The court may also impose an issue sanction by an order prohibiting
any party engaging in the misuse of the discovery process from supporting or
opposing designated claims or defenses.
“(c) The court may impose an evidence sanction by an
order prohibiting any party engaging in the misuse of the discovery process
from introducing designated matters in evidence. . . .”
(Code Civ. Proc., § 2023.030,
subds. (a), (b), (c).)
Misuse
of the discovery process includes "[f]ailing to respond or to submit to an
authorized method of discovery" and "[m]aking or opposing,
unsuccessfully and without substantial justification, a motion to compel or to
limit discovery.” (Code Civ. Proc., § 2023.010, subds. (d), (h).)
DISCUSSION
A. Plaintiff’s motion and reply papers
On
July 28, 2022, Plaintiff noticed Moore’s deposition for August 15, 2022. On
August 12, 2022, Defendants’ counsel informed Plaintiff that counsel had not
been able to contact Moore. The parties agreed to take the deposition off
calendar until counsel could speak to Moore. Plaintiff sent five additional
emails over the following month requesting dates when Moore would be available
for deposition. On September 14, 2022,
Defendants’ counsel informed Plaintiff that counsel would provide dates for
Moore’s deposition within the next 60 days. On September 22, 2022, Defendants’
counsel requested dates in December and January to set Moore’s deposition.
Plaintiff immediately provided dates for those months that did not work for
counsel.
Over
the following two months, Plaintiff sent ten emails requesting a date for
Moore’s deposition but did not receive a response. Plaintiff therefore noticed Moore’s deposition
for February 8, 2023.
On
February 7, 2023, the day before the deposition, Defendants’ counsel sent an email
requesting a stipulation to a protective order for Moore’s deposition and
refusing to move forward unless Plaintiff agreed. Seeing the request as a delay tactic, Plaintiff’s
counsel refused. Plaintiff could not
cancel the court reporter for the February 8 deposition without incurring fees.
Plaintiff incurred $460.00 in costs and took a certificate of non-appearance.
On
February 16, 2023, Plaintiff’s counsel again requested dates for Moore’s
deposition. Defendants’ counsel replied that she was drafting a motion for
protective order and once the hearing date was reserved she would provide dates
for Moore’s deposition.
Plaintiff
continued to follow up seeking dates for Moore’s deposition and the status of
the motion for protective order but did not receive a response.
On
April 14, 2023, Plaintiff served a third deposition notice for Moore’s deposition,
scheduling it on April 28, 2023. On
April 25, 2023, Defendants’ counsel sent a meet and confer letter regarding the
protective order.
On
April 27, 2023, the day before the scheduled deposition, Moore filed a motion
for a protective order. It was too late
for Plaintiff’s counsel to cancel the court reporter without incurring any
fees. Plaintiff incurred $575.00 in costs and took a certificate of
nonappearance.
On
May 11, 2023, Plaintiff agreed to the protective order as long as both
Defendants were produced for a deposition within 30 days. On May 19, 2023, Defense counsel
replied that she “should be able to produce my two clients for deposition
promptly. I will prepare the protective order and send it to you for signature
and filing. I will get [Defendants’] availability and forward it to you.”
On
May 28, 2023, having received no deposition dates from Defendants, Plaintiff served
a fourth deposition notice for Moore and a first deposition notice for Rosie, scheduling
both Defendants’ depositions for June 8, 2023. Defendants’ counsel did not
acknowledge the notices, so Plaintiff sent multiple follow-up emails. On June
7, 2023, Defendants’ counsel responded, saying she was not aware of the pending
depositions. Defendants did not appear for their scheduled depositions on June
8, 2023.
Again,
Plaintiff requested available dates for Defendants’ depositions.
On
June 27, 2023, Defense counsel advised that she would take the motion for
protective order off calendar and that she would “forward the LASC form
stipulating to the protective order to you for signature.”
Defendants
had not provided deposition dates by the time Plaintiff filed this motion on
June 13, 2023.
As
of November 7, 2023, Defendants’ counsel had not sent Plaintiff’s counsel the stipulated
protective order for counsel’s signature.
B. Defendants’ opposition
Defendants
argue that Moore’s deposition was not scheduled before Plaintiff filed this
motion because Plaintiff’s counsel would not agree that the deposition
transcript and/or video could not be used for advertising, social media posts
and public dissemination. According to
Defendants, Moore’s deposition could not take place without a stipulation or
protective order because he is a celebrity and public figure.
Defendants
acknowledge that Plaintiff’s counsel agreed to stipulate to a protective order. However, Defendants assert that the parties
have not signed a stipulated protective order.
Defendants also argue that Plaintiff did not engage in sufficient meet
and confer efforts before filing the motion to compel.
C. Analysis
1. Motion to compel
Defendants
did not raise the issue of a protective order until six months after
Plaintiff initially noticed Moore’s deposition. During those six months,
Defendants’ counsel promised to provide dates for Moore’s deposition and never
mentioned the need for a protective order.
Defendants
concede that Plaintiff’s counsel agreed to stipulate to a protective
order. Presumably based on counsel’s
agreement, Moore took his motion for a protective order off calendar on July
17, 2023. Yet Defendants have still not
provided any dates for Moore’s deposition.
Defendants’
counsel states in her declaration that she will produce her clients for
deposition once Plaintiff’s counsel signs the stipulated protective order. However, despite promising on June 27, 2023
to send counsel the order, Defendants’ counsel has not sent Plaintiff’s counsel
the stipulated protective order for counsel’s signature.
Defendants’
argument that Plaintiff failed to meet and confer is meritless. The record shows that Plaintiff made repeated meet and confer attempts.
The
Court finds good cause to grant the motion to compel Moore’s deposition. Moore failed to appear for three scheduled
depositions (February 8, 2023, April 28, 2023, June 8, 2023) without having
served timely objections.
The
Court finds good cause to grant the motion to compel Rosie’s deposition. Rosie failed to appear for a scheduled
deposition on June 8, 2023 without having served a timely objection.
2. Request for sanctions
Plaintiff
requests $3,435.00 in monetary sanctions against Moore. Plaintiff’s counsel spent 6 hours preparing
the motion and anticipated spending 6 hours reviewing Moore’s opposition,
preparing a reply, and attending the hearing.
Plaintiff’s counsel’s professional rate for legal work is $400.00 per
hour. Plaintiff is seeking compensation only for 6 hours of work for a
total of $2,400.00, along with the $1,035.00 in court reporter costs. Plaintiff’s counsel’s declaration also
requests $60 for the motion filing fee and $15 for Court Connect fees. (Plaintiff is not seeking sanctions against
Rosie.)
The
Court awards sanctions $2,125 based on 4 hours of attorney work at a reasonable
rate of $250.00 per hour, court reporter costs, and the filing fee.
The
Court denies Plaintiff’s request for evidentiary sanctions.
CONCLUSION
The
Court GRANTS Plaintiff Chu Shin Kim’s motion to compel the depositions of
Defendants Rodrick Wayne Moore, Jr. and Jane Wade Rosie. Defendants are ordered
to appear for depositions within 30 days of the hearing on this motion.
The
Court GRANTS Plaintiff Chu Shin Kim’s request for sanctions. Defendant Rodrick Wayne Moore, Jr. and his counsel are ordered
to pay Plaintiff $2,125.00 in sanctions within 30 days of the hearing on the
motion.
The
Court DENIES Plaintiff Chu Shin Kim’s
request for evidentiary sanctions.
Moving
party is ordered to give notice of this ruling.
Moving
party is ordered to file the proof of service of this ruling with the Court
within five days.
Case Number: 20STCV36230 Hearing Date: November 13, 2023 Dept: 39
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DR. JAMES J. ISAACS,
Plaintiffs,
vs.
PATHWAY VETERINARY ALLIANCE, DBA ENCINO VETERINARY
CLINIC, HARRY ZIMMERMAN AND DOES 1 THROUGH 100, INCLUSIVE,
Defendants.
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Case No.: 20STCV36230
JUDGMENT
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This action came on regularly for
trial on September 26, 2023, in Department “39” of the above entitled court,
before the Honorable Stephen I. Goorvitch, judge presiding. Plaintiff Dr. James J. Isaaca appeared on his
own behalf. Defendant Pathway Vet
Alliance, LLC, appeared by its counsel Wallace Brown & Schwartz by George
M. Wallace. Following a trial duly
conducted, the sworn jury of 12 members returned its Special Verdict on October
2, 2023, duly filed in the records of the Court. The Special Verdict of the jury determined the
matters submitted as follows:
On the plaintiff’s cause of action
for negligence, the jury found in favor of plaintiff and against the defendant.
On the plaintiff’s cause of action
for trespass to chattel, the jury found in favor of plaintiff and against the
defendant.
The jury by its special verdict
made determinations of the amount of plaintiff’s compensatory damages.
It appearing by reason of the
special verdict that plaintiff is entitled to judgment in his favor and against
the defendant, NOW, THEREFORE, IT IS ORDERED ADJUDGED AND DECREED
That plaintiff Dr. James J. Isaacs
shall have and recover damages from defendant Pathway Vet Alliance, LLC, in the
amount of $255,000.00; and
That plaintiff shall recover his
costs of suit herein in the amount of
$ .
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DATED: November
13, 2023
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Stephen I. Goorvitch
Superior Court Judge |
Case Number: 20STCV37505 Hearing Date: November 13, 2023 Dept: 28 Having
considered the petitioning papers, the Court rules as follows.
BACKGROUND
On
September 30, 2020, Plaintiffs Aiden Daniels and Sequoia Wiley filed this
action against Defendants Evelin Barragan-Hernandez (“Hernandez”), Manchester
Bargain, Inc. (“Manchester”), and Does 1-25 for motor vehicle negligence,
premises liability and negligent infliction of emotional distress.
On
February 4, 2022, Manchester filed an answer and a cross-complaint against
Cross-Defendants Hernandez and Roes 1-10 for implied indemnity, apportionment,
contribution and declaratory relief.
On
November 4, 2022, Plaintiffs filed a notice of settlement.
On
December 12, 2022, the Court dismissed Cross-Defendants Hernandez and Roes 1-10
from Manchester’s cross-complaint with prejudice at Manchester's request.
On
October 13, 2023, Petitioner Sequoia Wiley (“Petitioner”) filed a petition to approve
the compromise of Minor Aiden Daniels’s claims to be heard on November 13,
2023.
No
trial date is currently scheduled.
PARTY’S REQUEST
Petitioner
asks the Court to approve the compromise of the pending action of Plaintiff Aiden Daniels.
DISCUSSION
Section
12a of the petition states that the amount of medical expenses to be paid or
reimbursed from the settlement proceeds and the total amount of contractual or statutory
liens are both $9,565.44. However, Section 12b of the petition lists the
following liens:
(1) $8,573.16 (Medi-Cal)
(2) $9,565.44 (medical services providers)
The Court cannot approve a minor's compromise unless it reimburses all medical expenses that have not been reduced or waived. Petitioner
should revise the petition to address the inconsistencies and to make sure
that all liens are resolved prior to seeking Court approval.
In addition,
the amount of attorney’s fees requested in Section 13a is different from the
amount requested in Section 16c. (The
figure in 13a apparently includes the amount of requested costs.) Petitioner should correct the amount listed
in Section 13a.
For
the reasons stated above, the Court denies the motion.
CONCLUSION
The
Court DENIES the petition to approve the compromise of the pending action of
minor Aiden Daniels filed by Petitioner Sequoia Wiley without prejudice.
Petitioner
is ordered to give notice of this ruling.
Petitioner
is ordered to file the proof of service of this ruling with the Court within
five days.
Case Number: 20STCV40794 Hearing Date: November 13, 2023 Dept: 30 DANIEL GOMEZ vs ADA NICOLLETTE OKOH
Motion to Compel Responses to Form Interrogatories
Motion to Compel Responses to Special Interrogatories
Motion to Compel Responses to Request for Production of Documents
TENTATIVE
Defendant Ada Nicollette Okoh’s motions to compel Plaintiff to provide responses to form interrogatories, special interrogatories, and requests for production for documents are GRANTED. Plaintiff Daniel Gomez is ordered to provide responses without objection to Defendant’s request for form interrogatories, special interrogatories, and request for production within 20 days of this order. Defendant’s request for sanctions is DENIED. Moving party to give notice.
DISCUSSION
On February 23, 2023, Defendant served Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One on Plaintiff. (Aho Decl., ¶ 3; Exhs A.) To date, responses have not been provided. (Id., ¶ 4.) As Defendant properly served discovery requests and Plaintiff has failed to serve responses, the Court finds Defendant is entitled to a court order directing Plaintiff to provide verified responses without objections to the discovery requests served on Plaintiff. Therefore, the motions are granted. Defendant also requests sanctions. Code of Civil Procedure §§ 2030.290(c) and 2031.300(c) allow for sanctions when the motion was unsuccessfully opposed. Here, as the motions were not opposed, the request for sanctions is denied. Defendant’s request for sanctions under CCP sections 2023.010 for the alleged misuse of discovery is also denied, as "sections 2023.010 and 2023.030 do not independently authorize the trial court to impose monetary sanctions for misuse of discovery.” (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 504.)
Case Number: 20STCV46278 Hearing Date: November 13, 2023 Dept: 27
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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ABRAHAM MACIAS,
Plaintiff,
vs.
ANTONIO SILVA, et al.,
Defendants.
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CASE NO.: 20STCV46278
[TENTATIVE] ORDER RE: DEFENDANT’S MOTION
TO DISMISS FOR DELAY IN PROSECUTION
Dept. 27
1:30 p.m.
November 13, 2023
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I.
INTRODUCTION
On
December 3, 2020, Plaintiff Abraham Macias (“Plaintiff”) filed a Complaint
against Antonino Silva (erroneously sued as “Antonio Silva”) and Does 1 to 10
alleging (1) Assault and Battery; (2) Intentional Infliction of Emotional
Distress; (3) Negligence; and (4) Violation of the Bane Civil Rights Act.
On
August 19, 2022, the Court granted Plaintiff’s counsel’s motion to be relieved
as counsel.
On
March 9, 2023, Defendant Antonino Silva (“Defendant”) filed his answer to the
Complaint.
Defendant
now seeks a dismissal of this action based on Plaintiff’s failure to bring this
action to trial within two years after this action was commenced.
II.
LEGAL STANDARD
The
court may, in its discretion, dismiss an action for delay in prosecution where
service is not made within two years after the action is commenced against the
defendant (Code Civ. Proc., § 583.420, subd. (a)(1)), or where the action is
not brought to trial within two years after the action is commenced against the
defendant. (Code Civ. Proc., § 583.420,
subd. (a)(2)(B).) The court on its own
motion or on motion of the defendant may dismiss an action under Code of Civil
Procedure sections 583.410-583.430 for delay in prosecution if the action has
not been brought to trial or conditionally settled within two years after the
action was commenced against the defendant.
(Cal. Rules of Court, Rule 3.1340(a).)
In
ruling on a motion to dismiss, the court may consider the court file, diligence
in seeking effective service of process, the extent to which parties engaged in
any settlement negotiations, diligence in pursuing discovery, nature and
complexity of the case, pendency of other litigation based on common facts,
nature of any extensions of time or other delay, condition of the court’s
calendar, whether the interests of justice are best served by dismissal, and
any other facts or circumstances relevant to fair determination. (Cal. Rules of Court, Rule 3.1342(e).)
III.
DISCUSSION
Because
this action has not been set for trial within two years from when the Complaint
was filed, Defendant argues that dismissal is warranted pursuant to Code of
Civil Procedure § 583.420. (Motion at pg. 5.) Defendant further argues that Plaintiff
has caused unreasonable delay in prosecuting this action and has not been
diligent in appearing in this action since May 26, 2023. (Ibid.; Pollock Decl. ¶¶ 7-8.)
“The
penalty of dismissal against a dilatory plaintiff should be exercised with the
utmost care; and where it appears that the plaintiff has a good cause of
action, that plaintiff has made some showing of excuse for delay; and where
defendant does not claim actual prejudice and has waited until the last
possible moment to file a motion to dismiss, the ends of substantial justice
are best met by a preference for the policy of favoring trials on the merits as
contrasted with that policy which favors presumptions of prejudice. The reason is that, in the absence of
prejudice to defendants, attributable to unreasonable delays by plaintiff, the
probability of a miscarriage of justice is greater when a trial on the merits
is denied than it is where plaintiff is permitted to proceed.” (City
of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543, 563.)
The
Court finds the delay in prosecuting this action and failure to appear in this
action was due to Plaintiff’s death. In the
Declaration submitted in support of Defendant’s Motion, Plaintiff’s counsel
indicates that Plaintiff’s son contacted him on October 2, 2023, and indicated
that Plaintiff had passed away “a few months ago.” (Yang Decl. ¶ 3.) It is
conceivable that Plaintiff’s personal representative or successor-in-interest
may seek to continue with this action pursuant to Code of Civil Procedure §
377.31. Combined with the disfavor of dismissal
based on delay in prosecution, the Court finds that dismissal pursuant to Code
of Civil Procedure § 583.420 is premature.
Accordingly,
because the interest of justice would not be served by dismissal at this time,
the motion is denied.
IV.
CONCLUSION
Based
on the foregoing, Defendant’s motion to dismiss for failure to prosecute is
DENIED.
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at
SSCDEPT27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at
www.lacourt.org. Please be advised that if you submit on the tentative
and elect not to appear at the hearing, the opposing party may nevertheless
appear at the hearing and argue the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If the Court does not receive
emails from the parties indicating submission on this tentative ruling and
there are no appearances at the hearing, the Court may, at its discretion,
adopt the tentative as the final order or place the motion off calendar.
Dated this 13th day of November 2023
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Hon. Lee S.
Arian
Judge of the
Superior Court
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Case Number: 21AHCV00134 Hearing Date: November 13, 2023 Dept: 3 SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST
DISTRICT
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AZIZA GEORGIAN,
Plaintiff(s),
vs.
US GC
INVESTMENT, LP., et al.,
Defendant(s).
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CASE NO.: 21AHCV00134
[TENTATIVE]
ORDER RE: MOTION TO COMPEL DEFENDANT US GC INVESTMENT, LP’S RESPONSES
TO FORM INTERROGATORIES; REQUEST FOR SANCTIONS
Dept.
3
8:30
a.m.
November
13, 2023
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On December 3,
2021, Plaintiff Aziza Georgian (“Plaintiff”) filed this action against US GC
Investment, LP (“Defendant”), New Prosperity Investment LLC (“New Prosperity”),
and Youhong Fu. On August 10, 2023, Plaintiff filed six motions for orders
compelling Defendant and New Prosperity to serve verified discovery responses to
interrogatories and inspection demands, and deeming admitted the truth of the
matters specified in requests for admission. Plaintiff also requested
sanctions.
On September 27, 2023, Defendant and
New Prosperity filed an omnibus declaration from their counsel, Charles C.
McKenna, in which counsel stated that a change in staff resulted in the
discovery requests being overlooked. (McKenna Decl., ¶¶ 3-5.) At the hearing on
October 4, 2023, the Court granted Mr. McKenna’s requests for a one-month
continuance so that his office could provide additional verified responses. The
Court continued the hearing on these motions to November 13, 2023.
As of November 9, 2023, the Court has
not received any additional filings and there is no indication that verified
responses have been served.
Where a party fails to serve timely
responses to discovery requests, the court may make an order compelling
responses. (Code Civ. Proc., §§
2030.290, 2031.300; Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th
390, 403.) It is well-settled that “unsworn responses are tantamount to no
responses at all.” (Appleton v. Superior Court (1888) 206 Cal.App.3d 632, 636; Zorro Inv. Co. v. Great Pacific Securities
Corp. (1977) 69 Cal.App.3d 907, 914.) Therefore, although Defendant and New
Prosperity may have served responses, the motions are not mooted and will not
be taken off calendar because verifications for those responses have not been
served yet.
Accordingly, based on the Court record,
Plaintiff’s motions to compel Defendant and New Prosperity’s discovery
responses are GRANTED. Defendant and New Prosperity are each ordered to serve
verified responses to Plaintiff’s Form Interrogatories (Set One), and Request
for Production of Documents (Set One), without objections, within 20 days of
the date of this order.
With respect to Plaintiff’s Requests
for Admission (Set One), the motions are GRANTED. The truth of the matters
within each set of Requests for Admission (Set One) propounded on Defendant and
New Prosperity is deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).))
Where the court grants a motion to
compel responses, sanctions shall be imposed against the party who
unsuccessfully makes or opposes a motion to compel, unless the party acted with
substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c),
2031.300, subd. (c).)Also, “[i]t is mandatory that the court impose a monetary
sanction . . . on the party or attorney, or both, whose failure to serve a
timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)
Here, Plaintiff’s counsel declares that
he bills at a rate of $500 for this matter and requests $1,064.77 for each
motion. The Court finds this amount excessive considering that each motion only
required limited legal analysis and is largely boilerplate. Therefore, sanctions
are granted and imposed against Defendant and counsel of record, jointly and
severally, in the reduced amount of $2,548.62, consisting of 7 hours at the
reasonable rate of $300 (allotting one hour for each motion and an additional
hour to attend the hearing) and $448.62 for the cost to file each motion.
Dated
this 13th
day of November, 2023
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William A.
Crowfoot
Judge of the Superior Court
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Parties who intend to submit on this
tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating
intention to submit on the tentative as directed by the instructions provided
on the court website at www.lacourt.org. Please be advised that if you submit
on the tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If the Court does not receive emails from
the parties indicating submission on this tentative ruling and there are no
appearances at the hearing, the Court may, at its discretion, adopt the
tentative as the final order or place the motion off calendar.
Case Number: 21PSCV00450 Hearing Date: November 14, 2023 Dept: O Tentative Ruling
MOTION TO APPROVE SETTLEMENT AGREEMENT PURSUANT TO THE
LABOR CODE PRIVATE ATTORNEYS GENERAL ACT AND ENTER FINAL JUDGMENT is GRANTED.
Background
This is a PAGA case. Plaintiff contends that Defendant
violated the California Labor Code by, inter alia, failing to pay all wages,
including overtime, provide meal and rest periods, pay all wages owed at
termination, provide accurate itemized wage statements and reimburse for
necessary business expenditures
On June 1, 2021, Plaintiff RICARDO REAL filed suit against
Defendant EL SUSHI LOCO, INC.
On October 12, 2023, the minute order indicates that there
were no appearances by any party at the Status Conference Re: Settlement.
On October 20, 2023, the instant motion was filed. (Proposed
order is provided.)
Legal
Standard
Labor Code
section 2699, subdivision (l)(2) states: “The superior court shall review and
approve any settlement of any civil action filed pursuant to this part [Labor
Code Private Attorneys General Act of 2004 (“PAGA”)]. The proposed settlement
shall be submitted to the [Labor and Workforce Development Agency (“LDWA”) at
the same time that it is submitted to the court.” Any settlement of a civil
action filed under PAGA must be “fair and adequate in view of the purposes and
policies of the statute.” (O’Connor v.
Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1135.)
Seventy-five
percent of all PAGA penalties must be distributed to the LDWA (See Lab. Code §
2699, subd. (i) [“[e]xcept as provided in subdivision (j), civil penalties
recovered by aggrieved employees shall be distributed as follows: 75 percent to
the Labor and Workforce Development Agency for enforcement of labor laws,
including the administration of this part, and for education of employers and
employees about their rights and responsibilities under this code, to be
continuously appropriated to supplement and not supplant the funding to the
agency for those purposes; and 25 percent to the aggrieved employees”].)
Labor Code
section 2699, subdivision (g)(1) provides, in relevant part, that “[a]ny
employee who prevails in any action shall be entitled to an award of reasonable
attorney’s fees and costs . . .”
Discussion
The motion seeks approval of a settlement of Plaintiff’s
claims for civil penalties under the PAGA for a total settlement amount of one
hundred five thousand dollars $105,000.00. Some of the specifics of the
settlement are as follows:
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There are 104 Aggrieved Employees covered by the
Settlement.
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The Settlement was reached through formal mediation
with Jill Sperber, Esq.
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Attorneys' Fees of up to thirty-five thousand dollars
($35,000.00), which is one-third of the Settlement amount
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Actual litigation costs to Plaintiff’s Counsel not to
exceed eight thousand dollars ($8,500.00)
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Settlement Administration Costs not to exceed five
thousand dollars ($5,000.00).
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The Net Settlement Amount is estimated to be
fifty-seven thousand five hundred dollars ($57,000.00). From that, an estimated
fourteen thousand two hundred fifty dollars ($14,250.00) will be distributed to
the PAGA Settlement Group Members on a pro rata basis, in proportion to the
number of weeks that he or she worked for Defendants during the Covered Period.
Here, after
having reviewed the motion and declarations, the court finds no defects.
Conclusion
Based on the
foregoing, the motion is granted.
Case Number: 21PSCV00617 Hearing Date: November 13, 2023 Dept: G Defendants Fleet Capital, Inc., Sam Ostayan, and Inco Builders’ Motion for Dismissal and Monetary Sanctions Respondent: Plaintiff Diana Culkin TENTATIVE RULING Defendants Fleet Capital, Inc., Sam Ostayan, and Inco Builders’ Motion for Dismissal and Monetary Sanctions is DENIED without prejudice. BACKGROUND This is a wrongful foreclosure action. On July 30, 2021, Plaintiff Diana Culkin, also known as Diana Jannette Marmolejo Corona, filed a complaint against Fleet Capital, Inc. (Fleet Capital), Best Alliance Foreclosure and Lien Services Corp. (Best Alliance), Inco Builders (Inco), and Does 1-25, alleging the following causes of action: (1) violation of California's non judicial foreclosure statutes, (2) wrongful foreclosure, (3) conversion, (4) unfair business practices, and (5) declaratory relief. On February 9, 2022, Inco filed a cross-complaint against Culkin, Michael Culkin, and Roes 1-10, alleging the following causes of action: (1) trespass and (2) slander of title. On February 23, 2022, Fleet Capital and Inco filed a motion for judgment on the pleadings as to Culkin’s complaint. On August 4, the court granted the motion with leave to amend. On October 7, 2022, Culkin filed a First Amended Complaint (FAC) against the same defendants, as well as Sam Ostayan, alleging the following causes of action: (1) violation of California's nonjudicial foreclosure statutes, (2) wrongful foreclosure, (3) quiet title, (4) unfair business practices, and (5) declaratory relief. On January 5, 2023, the court sustained a demurrer by Fleet Capital, Inco, and Ostayan. On February 24, 2023, the court denied Fleet Capital and Inco’s motion to dismiss Culkin’s action for failure to file a timely amended complaint and deemed Culkin’s Second Amended Complaint (SAC) filed as of that date. The SAC is against the same defendants and alleges the following causes of action: (1) violation of California's nonjudicial foreclosure statutes, (2) wrongful foreclosure, (3) quiet title, (4) promissory estoppel, (5) breach of the covenant of good faith and fair dealing, (6) violation of the Rosenthal Fair Debt Collection Practices Act, (7) unfair business practices, and (8) declaratory relief. On May 4, the court sustained a demurrer by Fleet Capital, Inco, and Ostayan in part and overruled it in part. On August 4, 2023, Fleet Capital, Ostayan, and Inco (collectively, Defendants) filed the present motion. A hearing on the motion is set for November 13 along with a case management conference, OSC Re: Why this court should not assess Defendant reasonable attorney fees and costs, and a hearing on a motion to be relieved as counsel. ANALYSIS Defendants move for monetary and terminating sanctions against Culkin and Culkin’s counsel pursuant to Code of Civil Procedure section 128.7. For the following reasons, the court DENIES Defendants’ motion. Legal Standard Pursuant to Code of Civil Procedure section 128.7, “a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually.” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’” (Ibid, quoting Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) The moving party bears the burden of showing the “the party’s conduct in asserting the claim was objectively unreasonable.” (Ibid.) “A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Ibid, quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)¿But this section “should be utilized only in ‘the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.’” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1121 (Kumar), quoting Operating Engineers Pension Trust v. A-C Co. (9th Cir. 1988) 859 F.2d 1336, 1344.) Code of Civil Procedure section 128.7 also includes a safe harbor provision that states a “[n]otice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.7, subd. (c)(1); Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.) This safe harbor requirement is strictly enforced, and substantial compliance is not sufficient. (See Cromwell v. Cummings (1998) 65 Cal.App.4th Supp.10, 15.) “If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” (Code Civ. Proc., § 128.7, subd. (c)(1).) An award of fees is not warranted unless the motion was “frivolous, unfounded, filed for an improper purpose, or otherwise unreasonable.” (Musaelian v. Adams (2011) 197 Cal.App.4th 1251, 1258.) Discussion Prior to the filing of this motion on August 4, 2023, Defendants’ counsel served a copy of the motion on Culkin’s counsel via email on July 11. Because Defendants’ original service of this motion was twenty-four days before it was filed, the court finds Defendants have complied with the safe harbor provisions of Code of Civil Procedure section 128.7. In this case, Defendants’ motion is premature. Defendants argue sanctions are warranted because Culkin’s first, second, and seventh causes of action are based on “knowingly false allegations.” But because the issues raised here are more appropriately raised in a motion for summary judgment or adjudication, the court exercises its discretion and declines to find Culkin’s SAC is without merit. Accordingly, the court DENIES Defendants’ motion without prejudice. CONCLUSION Based on the foregoing, Defendants’ motion for sanctions is DENIED without prejudice.
Case Number: 21PSCV00620 Hearing Date: November 13, 2023 Dept: O Tentative Ruling
MOTION TO AMEND JUDGMENT TO ADD ALTER EGO AS AN
ADDITIONAL JUDGMENT DEBTOR is DENIED without prejudice.
Background
This is an unlawful detainer case.
On July 30, 2023, Plaintiff Lee and Lee, LLC filed suit
against Defendant IFC Fulfillment Company, Inc. (“Defendant IFC”) for (1)
Non-payment of rent and (2) Incurable Breach.
O August 17, 2021, HeavenStone Corporation (Defendant
“Heavenstone”) filed a ‘Prejudgment Claim of Right of Possession.’
On April 18, 2022, the court conducted a non-jury trial.
According to the minute order, “Court orders judgment entered for Plaintiff Lee
& Lee, LLC, a California Limited Liability Company against Defendant IFC
Fulfillment Company, Inc., a California Corporation and Defendant HeavenStone
Corporation on the Complaint filed by Lee & Lee, LLC, a California Limited
Liability Company on 07/30/2021 for past rent due in the amount of $164,627.40
and holdover damages $119,352.69 for a total of $283,980.09.”
On September 8, 2022, Defendant Heavenstone filed a motion
to set aside void judgment.
On October 11, 2022, according to the minute order on the
motion, “The Court verbally gives the party it's Tentative Ruling to deny the
motion. The motion is heard and argued. Counsel for plaintiff submits on the
Court's Tentative Ruling. The Court takes the Hearing on Motion to Set
Aside/Vacate Judgment (CCP 473) under submission.”
On December 5, 2022, the court ruled on the motion to set
aside judgment. The minute order provides the following: “The Motion to Set
Aside/Vacate Judgment filed by HeavenStone Corporation on 09/08/2022 is Denied.
The Court lifts the stay ordered on 10/20/2022. The Judgment entered on
4/18/2022 is to stand.”
On October 12, 2023, Plaintiff filed the instant motion.
On October 30, 2023, Defendant IFC filed a substitution of
attorney. That same day, Defendants IFC and Heavenstone filed their opposition
to the instant motion.
On November 3, 2023, Plaintiff filed its reply.
Legal Standard
Plaintiff brings forth the motion pursuant to CCP section
187. (Motion p. 4.) Section 187 states: “When jurisdiction is,
by the constitution or this code, or by any other statute, conferred on a court
or judicial officer, all the means necessary to carry it into effect are also
given; and in the exercise of this jurisdiction, if the course of proceeding be
not specifically pointed out by this code or the statute, any suitable process
or mode of proceeding may be adopted which may appear most conformable to the
spirit of this code.” Effectively, pursuant to section 187, “a trial court has
jurisdiction to modify a judgment to add additional judgment debtors.” (Motion
p. 4, citing McClellan v. Northridge Park Townhome Owners Ass’n, Inc. (2001)
89 Cal.App.4th 746, 752.)
“In order to prevail on a motion to add alter ego judgment
debtors, [the judgment creditor] must show that (1) the parties to be added as
judgment debtors had control of the underlying litigation and were virtually
represented in that proceeding; (2) there is such a unity of interest and
ownership that the separate personalities of the judgment debtor and those
other parties no longer exist; and (3) an inequitable result will follow if the
acts are treated as those of the entity alone.” (Motion p. 4, citing Relentless
Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal. App.
4th 811, 815–816 (Relentless).)
Discussion
Despite judgment in favor of Plaintiff and against
HeavenStone, HeavenStone has made no attempt to pay any part of the
Judgment. Effectively, Plaintiff moves
to add the name of Heavenstone Ranch Corp. (Defendant “Heavenstone Ranch”) as
an additional judgment debtor because Heavenstone Ranch “is, and at all times
material to Plaintiff’s case was, the alter ego of Defendant Heavenstone.”
(Motion p. 1:24-26.) In reaching its determination that Heavenstone Ranch is
the alter ego of the judgment debtor Heavenstone, Plaintiff argues the
following:
-
Both corporations are controlled by the same person-Jack Jie
Qin.
-
Both corporations have the same employees
-
Both corporations have the same address
-
Both were/are operated with integrated resources in pursuit
of a single business purpose.
(Motion p. 5:1-5.)
In opposition, Defendants take issue with the lack of
evidence, specifically arguing that the evidence should be excluded based upon
(1) Lack of Personal Knowledge; 2) Lack of Foundation; 3) Hearsay; 4)
Argumentative; 5) Evidence Code 352 (in some instances).
Issue of the theory aside, the court determines that
Plaintiff has provided insufficient evidence of alter ego liability. While in
Reply Plaintiff may argue that “The court is not required to hold an
evidentiary hearing on a motion to amend a judgment but may rule on the motion
based solely on declarations and other written evidence,” the very cases
Plaintiff cites to, McCellan and Relentless, suggest that ample
evidence is required before making any such determination. (See McClellan,
supra, 89 Cal.App.4th at p. 755[“The record reflects abundant evidence to
support the trial court's determination that successor liability should attach
to Northridge Park as Peppertree's successor.”]; see Relentless, supra, 222
Cal.App.4th at p. 816 [“Those findings are supported by more than ample
evidence and are not challenged here.”].)
Here, merely having the name “Heavenstone” in both entities’
names, having the same address, and creating the entities within one month of
each other are insufficient to find alter ego. In fact, contrary to Plaintiff’s
assertion that the two entities have the same employees, a copy of the Nevada
Secretary of State Business Entity Detail for Heavenstone Corporation (Motion,
Ex. B) and a copy of the California Secretary of State Business Entity Detail
for Heavenstone Ranch Corp. (Motion, Ex. C) do not provide information about
the employees (names, number, etc.) to draw such a conclusion. Moreover, while
Heavenstone Ranch’s information only provides the name of Jack Jie Qin,
Heavenstone’s business information provides the names of other individuals,
including Visman Jie Chow (treasurer and director) and Erik Treutlein (labeled
as “Individual with Authority to Act”).
All in all, whereas the trial court in McClellan cited
to the “evidence of similarity of names, identity of directorate, purchase of
assets and offer of stock to the old shareholders at a nominal value” (id. at
p. 754) in holding that a successor corporation is a mere continuation and
hence liable for the acts of its predecessor, here such specifics as to
the assets and other features of the entities are not discussed.
Therefore, there is an insufficient showing of a unity of
interest and ownership.
Conclusion
Based on the foregoing, the motion is denied without
prejudice.
Case Number: 21PSCV00758 Hearing Date: November 15, 2023 Dept: K Plaintiff
SoCal Lien Solutions LLC’s Application for Default Judgment is DENIED without
prejudice.
Background
Plaintiff SoCal Lien Solutions LLC (“Plaintiff”) alleges as
follows:
Plaintiff’s assignor, C&M
Stucco Specialists, Inc. (“Assignor”) provided certain improvements to the
property located at 1155 Via Verde, San Dimas, California, 91773 (“subject
property”) but has not been paid in full.
On September 15, 2021, Plaintiff filed a complaint, asserting
causes of action against Pacific Core Construction, Inc., ADP of San Dimas, LLC
(“ADP”), Advocacy Development Partners, LLC (“Advocacy Development”) and Does
1-10 for:
1.
Open Book Account
2.
Services Rendered
3.
Foreclosure of Mechanic’s Lien
On September 29, 2021, Plaintiff dismissed ADP and Advocacy
Development, with prejudice.
On October 25, 2023, Plaintiff filed an “Amendment to
Complaint,” wherein the name of “Pacific Core Construction Inc.” was corrected
to “Pacificore Construction, Inc.” (“Pacificore”).
On August 8, 2023, Pacificore’s default was entered.
An Order to Show Cause Re: Default Judgment is set for
November 15, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff has failed to utilize Judicial
Council Form CIV-100 [Rev. January 1, 2023].
2.
Plaintiff has failed to provide the court
with a brief summary of the case, as per
California
Rules of Court (“CRC”), Rule 3.1800, subdivision (a)(1).
3.
Paragraph 2(e) of Plaintiff’s Judicial
Council Form CIV-100 lists attorney’s fees of $38,003.85 under the “Amount”
column. This appears to be a typographical error, inasmuch as it is the same
amount listed in the “Amount” column of Paragraph 2(f) and as the proposed
judgment does not seek attorneys’ fees; clarification, however, is requested.
4.
Kathryn Ann (“Ann”) is requested to attach
and authenticate the assignment attached as Exhibit A to Plaintiff’s unverified
complaint.
5.
Ann attests that the amount owing was
$37,378.60, that a payment of $29,978.60 was made by a co-defendant in the
action during the course of the litigation and that the adjusted claim amount
is $7,500.00. (Ann Decl., 2:14-19). Paragraph 2(a) of Plaintiff’s Judicial
Council Form CIV-100, however, lists the balance as $10,485.00, not $7,500.00.
This discrepancy must be reconciled.
Case Number: 21STCV03942 Hearing Date: November 13, 2023 Dept: W MARIA
DE LA CRUZ BRAVO FERNANDEZ V. WEST HILLS HOSPITAL AND MEDICAL CENTER, ET AL.
DEFENDANT JAMSHID
NAZARIAN, M.D.’S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE
AND DEEM REQUEST FOR ADMISSIONS, SET ONE ADMITTED
Date
of Hearing: November 13, 2023 Trial Date: None set.
Department:
W Case No.: 21STCV03942
Moving Party: Defendant
Jamshid Nazarian, M.D.
Opposing Party: No
opposition.
BACKGROUND
This is a medical malpractice action. On February 1,
2021, Plaintiff Marai De La Cruz Bravo Fernandez filed a complaint against
Defendants West Hills Hospital and Medical Center, Jonathan S. Matthew, M.D.,
Jamshid Nazarian, M.D., and Laurance J. Friedman, M.D. for medical malpractice.
Plaintiff alleges on December 10, 2016, Plaintiff underwent a
esophagogastroduodenoscopy performed by Dr. Jonathan S. Matthew, MD with the
assistance of Dr. Laurence Friedman. However, the procedure fell below the
standard of care. Plaintiff further alleges on January 23, 2020, she was seen
by Dr. Li for what appeared to be multiple adhesions. Plaintiff alleges and
believes that the foreign bodies were left there from the esophagogastroduodenoscopy
procedure.
[TENTATIVE]
RULING:
I.
Defendant Jamshid Nazarian, M.D.’s
Motion to Compel Responses to Special Interrogatories, Set One and Request for
Sanctions GRANTED
II.
Defendant Jamshid Nazarian, M.D.’s
Motion to Deem Request for Admissions Set One Admitted and Request for
Sanctions GRANTED
DISCUSSION
Defendant Jamshid Nazarian, M.D. moves the court for
an order to deem Plaintiff’s Request for Admissions, Set One admitted as well
as moves the court for an order compelling Plaintiff to provide responses to
Defendant’s Special Interrogatories, Set One. Defendant also requests sanctions
against Plaintiff.
Where
a party fails to serve timely responses to discovery requests, the court may
make an order compelling responses. (CCP §§ 2030.290, 2031.300, 2033.280; Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
148 Cal.App.4th 390, 403.) A party that fails to serve a timely response to the
discovery request waives any objection to the request, including one based on
privilege or the protection of attorney work product. (CCP §§2030.290(a),
2031.300(a), 2033.280(a); Sinaiko Healthcare Consulting, Inc., supra,
148 Cal.App.4th at 404.) Pursuant to Code of Civil Procedure section 2033.010,
the propounding party may also move for an order that the genuineness of any
documents and the truth of any matters specified in the requests be deemed
admitted, as well as for a monetary sanction. (CCP § 2033.280(b).)
On
June 20, 2023, Defendant propounded discovery on Plaintiff, which included
Special Interrogatories, Set One and Request for Admissions, Set One (Trotter
Decl. ¶2, Exh. A.) Such responses were due on or before June 20, 2023. (Trotter
Decl. ¶2.) Multiple meet and confer attempts were made with Plaintiff’s
counsel; however, no response was ever received from Plaintiff’s counsel.
(Trotter Decl. ¶3, Exh. B.) To date, no responses have been received from
Plaintiff. (Trotter Decl. ¶4.)
As such, Defendant’s unopposed motion to compel
Plaintiff’s discovery responses to Defendant’s Special Interrogatories, Set One;
and Request for Admissions, Set One is GRANTED. Plaintiff is ordered to produce
verified discovery responses without objection in twenty days.
Sanctions
Defendant
requests $960.00 per motion for 2 hours preparing each motion and another 2
hours reviewing the opposition and attending the hearing on each motion.
Defendant also seeks the $60 filing fee per motion against Plaintiff.
If a propounding party moves for and obtains a court
order compelling a response, the court shall impose monetary sanctions against
the party failing to timely respond to interrogatories and demands for
inspection unless that party acted with substantial justification or the
sanction would otherwise be unjust. (CCP §§ 2030.290(c), 2031.300(c), 2033.280(c); Sinaiko
Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 404.)
Defendant’s
request for monetary sanctions is GRANTED, in the reduced amount of $735 for
the first motion and $285 for the second motion. The court finds only one hour
necessary for attending the hearing on the two motions.
Case Number: 21STCV04014 Hearing Date: November 13, 2023 Dept: 28 Claimant
Jmere Bowie (“Claimant”) was walking through Purche Avenue Elementary
School’s campus when a door closed on his hand and fingers. As a result of the
incident, Claimant sustained injuries to his right index finger.
This
is an expedited petition without a hearing, which is permitted under California
Rules of Court, rule 7.950.5, as long as Petitioner uses the required Judicial
Council forms and meets certain conditions. The conditions are:
1. Petitioner is represented
by an attorney.
2. The claim is not for
wrongful death.
3. Settlement proceeds will
not be placed in a trust.
4. There are no unresolved
liens.
5. Petitioner’s attorney did
not become involved at the request of Defendant or the insurance carrier.
6. Petitioner’s attorney is not
employed by or associated with a Defendant or insurance carrier in connection
with the petition.
7. If an action is filed, all
Defendants have appeared and are participating in the compromise OR the court
has determined that the settlement is in good faith.
8. The settlement, exclusive of
interests and costs, is $50,000 or less OR if greater than $50,000, the amount
payable is the insurance policy limits AND all proposed contributing parties
would be substantially unable to use assets other than the insurance policy limits
AND the court does not otherwise order.
SETTLEMENT: $47,500.00
INJURIES: Injury to right index finger
MEDICAL EXPENSES: $9,863.48
COSTS: $14,425.97
ATTORNEY’S FEES: $11,875.00, which is 25% of the gross
settlement.
BALANCE OF PROCEEDS:
$20,906.00
DISCUSSION:
The
following portions of the petition require correction and supplementation:
Section
1: Provide Petitioner’s name.
Section
2: Correct the spelling of Claimant’s last name.
Section
10: The Court will not grant the
petition unless Petitioner affirms the statement in Section 10 by checking this
box.
Section
13: The petition states that total
medical expenses ($9,863.48) were reduced by negotiated, statutory, or
contractual reductions by $3,608.67.
This leaves $6,254.81 in medical expenses that must be either reimbursed
from the settlement proceeds or waived.
However, the petition leaves Section 13a(4) blank, indicating that no
medical expenses will be paid or reimbursed from the settlement proceeds. The Court cannot grant the petition unless it
shows that all medical expenses are either waived, reduced, or reimbursed from the
settlement proceeds.
Section
14b: The DHCS lien should not be listed here.
In addition, please provide a breakdown of the expenses included in the
request for $14,425.97 and supporting documentation.
Section
15: This section must be completed.
The
Court denies the petition without prejudice.
Case Number: 21STCV08039 Hearing Date: November 15, 2023 Dept: 68 Application for Order for Appearance and Examination
Preetinderjeet Singh vs. Sarbjit Singh, et al., 21STCV08039
Moving Party: Cross-Complainant Krishna
Basnet
Summary
Cross-Complainant
Krishna Basnet filed documents on October 25, 2023, that he has labeled as an
application and order for appearance and examination. He filed these documents
because he says the Cross-Defendant Sukhpreet Singh has not paid him the
ordered damages of $28,330.00. There is no proof of service filed with the
documents.
Cross-Complainant Basnet should
refer to the Execution of Judgments law and use the proper forms for an
application for order and appearance. Specifically, he should use form
AT-138/EJ-125. Cross-Complainant must also properly serve Cross-Defendant Sukhpreet
Singh and file a proof of service.
TENTATIVE RULING:
The hearing set for November 15,
2023, is ordered Off Calendar.
Case Number: 21STCV13893 Hearing Date: November 15, 2023 Dept: 32
|
FERNANDO MENDOZA,
Plaintiff,
v.
J&A MERCADO’S PLUMBING & ROOTER,
et al.,
Defendants.
|
Case No.: 21STCV13893
Hearing Date: November 15, 2023
[TENTATIVE]
order RE:
plaintiff’s motion to compel deposition
|
|
|
|
BACKGROUND
On April 12, 2021, Plaintiff filed
this employment discrimination action against Defendants J&A Mercado’s
Plumbing & Rooter, Juan Mercado, and Adriana Mercado.
On October 16, 2023, Plaintiff filed
the instant motion to compel the deposition of Defendant Juan Mercado. Defendant
has not filed an opposition.
LEGAL STANDARD
“If, after service of a deposition notice,
a party to the action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party under Section
2025.230, without having served a valid objection under Section 2025.410, fails
to appear for examination, or to proceed with it, or to produce for inspection
any document … described in the deposition notice, the party giving the notice
may move for an order compelling the deponent’s attendance and testimony, and
the production for inspection of any document … described in the deposition
notice.” (Code Civ. Proc., § 2025.450, subd. (a).)
DISCUSSION
Defense counsel had previously
expressed that he would be amenable to setting depositions given a trial
continuance. (Berkowitz Decl., Ex. A.) The trial was indeed continued, with Defendants’
depositions expected to take place before the final status conference scheduled
for October 26, 2023. (Id., Ex. B.) Plaintiff’s counsel contacted
defense counsel about the Court order, and defense counsel promised to get back.
(Id., ¶ 10.) Defense counsel never got back to Plaintiff’s counsel and
additionally blocked his email. (Id., ¶ 11.)
On September 28, 2023, Plaintiff
physically served deposition notices at defense counsel’s office. (Berkowitz
Decl. ¶ 11.) The notice scheduled the remote deposition of Defendant Juan
Mercado for October 10, 2023. (Id., Ex. D.) Defense counsel claimed the
service was ineffective because his office was closed at the time, even though the
service occurred during normal business hours. (Id., ¶ 12.) A registered
process server confirmed that the notice was served “[b]y posting in a
conspicuous place on the property therein described, there being no person of suitable
age or discretion to be found.” (Id., Ex. E.)
Defense counsel then substituted out
of the case, and Plaintiff’s counsel communicated with Defendant Juan Mercado
directly. (Berkowitz Decl. ¶¶ 13-14.) Mr. Mercado refused to discuss his
deposition during calls from Plaintiff’s counsel and repeatedly hung up. (Id.,
¶ 14.)
The undisputed facts above
demonstrate that Defendant has failed to appear for deposition despite valid
notice. The facts also suggest intentional evasion of discovery. As such,
sanctions are warranted in the amount of $1,060, representing 2.5 hours at $400
per hour, plus a $60 filing fee.
CONCLUSION
Plaintiff’s motion to compel
deposition is GRANTED. Defendant Juan Mercado’s deposition shall take place
on __________________. The Court sanctions Defendant Juan Mercado in
the amount of $1,060, to be paid within 30 days.
Case Number: 21STCV14961 Hearing Date: November 16, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 16, 2023 Case Name: Quinones, et al. v. Kia Motors America, Inc., et al. Case No.: 21STCV14961 Matter: Motion for Summary Judgment/Adjudication Moving Party: Defendant Kia America, Inc. Responding Party: Unopposed Notice: OK
Ruling: The Motion for Summary Judgment is granted. Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
This is a lemon law matter. Defendant Kia America, Inc. seeks summary judgment/adjudication. Because there is no opposition, the Motion for Summary Judgment is granted. (Cal. Rules of Court, Rule 8.54(c); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) A proposed judgment is to be submitted within 10 days. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 21STCV15802 Hearing Date: November 13, 2023 Dept: 31 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT | | [TENTATIVE] ORDER GRANTING MOTION TO VACATE DISMISSAL |
On April 27, 2021, Plaintiff Angela Hoenig (“Plaintiff”) filed this action against Defendants Demian Gregory, Gregory McKay, and A Beautiful Confusion Production, LLC for damages arising from a dog bite. On November 7, 2022, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel, wherein the ruling would be effective upon filing proof of service of the final order. (Min. Order, Nov. 7, 2022.) On August 21, 2023, this matter was called for a non-jury trial, and after no appearances by or for either party, the Court dismissed Plaintiff’s complaint without prejudice. (Min. Order, Aug 21, 2023.) The certificate of mailing of the dismissal was addressed to Plaintiff’s counsel, Brett Yorke, Esq (“Counsel”). On September 14, 2023, Plaintiff’s counsel filed the instant motion to vacate the dismissal and to allow Counsel to file proof of service of the order granting Counsel’s motion to be relieved as counsel. Code Civ. Proc. (“CCP”) § 473 provides for both discretionary and mandatory relief under certain circumstances. “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473, subd. (b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Ibid.) “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied 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 neglect.” (Ibid.) A mistake is a basis for relief under CCP § 473 when by reason of the mistake a party failed to make a timely response. Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default. (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.) Under CCP § 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment. (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23-24.) Here, Counsel declares Plaintiff is in pro per. Counsel provides no one appeared for trial on August 21, 2023, because Counsel’s office mistakenly believed the Order granting their motion to be relieved as counsel was effective because of the Notice of Ruling. However, Counsel also provides that upon investigating why it was Counsel who was served with the August 21, 2023 dismissal instead of Plaintiff, Counsel avers it was their mistaken belief that Notice of Ruling was effective, and that Counsel did not instead file a Proof of Service of Order Relieving Counsel to be recognized as giving effect to Counsel’s withdrawal from representation. Counsel requests the Court vacate the dismissal to allow for the filing of a Proof of Service of Order Granting Motion to Be Relieved so that future notices are served properly on Plaintiff directly as to provide Plaintiff notice. The timely filed motion establishes dismissal was the result of Counsel’s excusable neglect for failure to appear due to a misunderstanding regarding the Order to be relieved as counsel. The motion to set aside the dismissal is GRANTED and the action is reinstated. Counsel is ordered to give notice. Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿
Dated this 9th day of November 2023 | | | Judge of the Superior Court |
Case Number: 21STCV16267 Hearing Date: November 13, 2023 Dept: B LOS
ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Monday, November 13, 2023
Department B Calendar No. 1
PROCEEDINGS
John Doe v. Doe 1, et al.
21STCV16267
1.
Big Brothers Big
Sisters of America’s Motion for Leave to File First Amended Cross-Complaint
TENTATIVE
RULING
Big
Brothers Big Sisters of America’s Motion for Leave to File First Amended
Cross-Complaint is granted.
Background
Plaintiff filed his Complaint on April 29, 2021. Plaintiff’s operative Second
Amended Complaint was filed on May 9, 2022. Plaintiff alleges the following
facts. Plaintiff alleges that he was sexually abused by Daniel Donohue, a
mentor that he met through a youth mentor program run by Defendants. Plaintiff’s
FAC alleged the following causes of action: 1. Sexual Battery;
2. Gender Violence; 3. Sexual Harassment (Civil Code § 51.9); 4. Unfair
Business Practices (Business and Professions Code § 17200); 5. Intentional
Infliction of Emotional Distress; 6. Assault; 7. Constructive Fraud (Civil Code
§ 1573); 8. Negligence; 9. Negligent Supervision; 10. Negligent
Hiring/Retention; 11. Breach of Fiduciary Duty.
Plaintiff’s
SAC alleges the following causes of action: 1. Sexual Battery; 2. Gender
Violence (Civ. Code 52.4); 3. IIED; 4. Assault; 5. Constructive Fraud (Civ.
Code 1573); 6. Negligence; 7. Negligent Supervision; 8. Negligent
Hiring/Retention; 9. Breach of Fiduciary Duty; 10. Negligent Supervision of
BBBSLA; 11. Negligent Undertaking; 12. Negligent Misrepresentation.
Moving party
filed a Cross-Complaint on December 22, 2022.
Motion
for Leave to Amend
The court may, in furtherance of justice, and on such terms as may be
proper, allow a party to amend any pleading.
Code Civ. Proc., §§ 473 & 576.
Judicial policy favors resolution of all disputed matters between the
parties and, therefore, leave to amend is generally liberally granted. Ordinarily, the court will not consider the
validity of the proposed amended pleading in ruling on a motion for leave since
grounds for a demurrer or motion to strike are premature. However, the court does have discretion to
deny leave to amend where a proposed amendment fails to state a valid cause of
action as a matter of law and the defect cannot be cured by further
amendment. Cal. Casualty General Ins. Co. v. Superior Court (1985) 173
Cal.App.3d 274, 281.
The application for leave to amend should be made as soon as the need to
amend is discovered. The closer the
trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been
dilatory, and the delay has prejudiced the opposing party, the court has the
discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118
Cal.App.3d 486, 490. Prejudice exists
where the amendment would require delaying the trial, resulting in loss of
critical evidence, or added costs of preparation such as an increased burden of
discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.
Cross-Complainant moves for an order granting leave to file a First
Amended Cross-Complaint to substitute the personal representative of the
deceased Cross-Defendant. The motion is made on the ground that Cross-Defendant
Daniel Patrick Donohue died during the pendency of this litigation and thus a
substitution of the Cross-Defendant is appropriate. Cross-Complainant moves to
substitute decedent’s personal representative – Odane H. Murray.
Cal. Rules of Court, Rule 3.1324(a) states: “A motion to amend a pleading
before trial must:
(1) Include a copy of the proposed amendment or amended pleading, which
must be serially numbered to differentiate it from previous pleadings or
amendments;
(2) State what allegations in the previous pleading are proposed to be
deleted, if any, and where, by page, paragraph, and line number, the deleted
allegations are located; and
(3) State what allegations are proposed to be added to the previous
pleading, if any, and where, by page, paragraph, and line number, the
additional allegations are located.”
Cross-Complainant has included the proposed amended pleading and
adequately complied with Rule 3.1324(a)(2) and (3). (Motion, page 6, lines 8-27
to page 7, lines 1-4).
Cal. Rules of Court, Rule 3.1324(b) requires that the moving party must
submit a separate declaration specifying:
“(1) The effect of the amendment;
(2) Why the amendment is necessary and proper;
(3) When the facts giving rise to the amended allegations were
discovered; and
(4) The reasons why the request for amendment was not made earlier.”
Cross-Complainant has provided a declaration meeting the requirements of
Rule 3.1324(b)(1) to (4). (Decl., Michael C. Osborne, ¶¶ 2-5.)
Therefore, Cross-Complainant’s Motion for Leave to File First Amended
Cross-Complaint is granted. Cross-Complainant is ordered to file and serve the
First Amended Cross-Complaint within 3 days of this date.
Cross-Complainant is ordered to give notice of this ruling.
Case Number: 21STCV19741 Hearing Date: November 16, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 16, 2023 Case Name: Pappas v. Namazikhah DMD, Inc., et al. Case No.: 21STCV19741 Matter: Motion to Dismiss Moving Party: Defendant Robert M. Hindin Responding Party: Plaintiff Tony Protopappas Notice: OK
Ruling: The Motion is denied.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
This is a fraudulent transfer action relating to a stipulated judgment in BC457138. On December 7, 2021, the Court overruled Defendant Robert M. Hindin’s demurrer to Plaintiff’s second cause of action, but sustained the demurrer as to the sixth cause of action for accounting, with twenty days leave to amend. On December 27, 2021, Plaintiff filed a notice stating that “he will not file a Second Amended Complaint to cure deficiencies found by the Court's sustaining demurrer as to the sixth cause of action against Defendant Robert M. Hindin. Plaintiff will instead stand on the First Amended Complaint and allow dismissal of the sixth cause as against Robert M. Hindin only. Plaintiff will proceed against Robert M. Hindin as to the second cause of action which demurrer was overruled.” Because Plaintiff never filed a second amended complaint, Defendant Hindin now moves to dismiss Plaintiff’s accounting claim and enter judgment on that claim pursuant to Code Civ. Proc. § 581(f)(2). Code Civ. Proc. § 581(f)(2) states, “The court may dismiss the complaint as to that defendant when: (2) . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” While the accounting claim by Plaintiff has been forfeited against Hindin, the Motion is denied because, by its plain language, Code Civ. Proc. § 581(f)(2) relates to dismissing the entirety of a complaint against a particular defendant. (See, e.g., Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-A [“If the demurrer was sustained as to all causes of action against one of several codefendants, and the time to amend has expired, that defendant may obtain a dismissal by ex parte application to the court.”] (emphasis in original); Cal. Judges Benchbook Civ. Proc. Before Trial § 15.77 [“A judge may dismiss a complaint regarding a particular defendant after sustaining that defendant's demurrer to the complaint with leave to amend, if the plaintiff fails to amend within the time allowed.”]; California Summary Judgment and Related Termination Motions § 2:23 [“A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).”]; Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 11:35 (2023 ed.) [“If a demurrer to the entire complaint has been sustained with leave to amend, and the plaintiff fails to amend within the time permitted by the court, the defendant may bring an ex parte application to dismiss the action and for entry of judgment.”].) Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 21STCV20084 Hearing Date: November 13, 2023 Dept: 31 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT LUCKY NAILS & FOOT SPA, ET AL., | | [TENTATIVE] ORDER RE: DEMURRER TO DOE AMENDMENT TO COMPLAINT |
On May 27, 2021, Plaintiff, Willie Juanita Moss (“Plaintiff”) filed this action against Defendants, Lucky Nails & Foot Spa (“Lucky Nails”) and Does 1 to 100, alleging a failure to implement and/or follow adequate safeguards and safety equipment and supplies, resulting in an acrylic fingernail striking Plaintiff’s eye on June 1, 2019. On July 27, 2023, Plaintiff filed amendments to complaint naming Hang Thanh Doan as Doe 1 and Huyen Gale as Doe 2. Defendant Huyen Gale (“Gale”) now demurs to the complaint arguing the Doe Amendment is time barred. Plaintiff opposes the motion, and Gale filed a reply. In connection with the motion, Gale request the Court take judicial notice of (1) Plaintiff’s Complaint, (2) Plaintiff’s Doe 1 Amendment to Complaint, (3) Plaintiff’s Doe 2 Amendment to Complaint, (4) Defendant Lucky Nails’ Answer to Plaintiff’s Complaint, (5) certain documents filed as exhibits to Lucky Nail’s motion for summary judgment (“MSJ”), (6) Plaintiff’s attorney’s supplemental declaration filed in support of Plaintiff’s opposition to Lucky Nail’s MSJ, (7) Declaration of Plaintiff filed in opposition to Lucky Nail’s MSJ, and (8) 16 CCR § 965 titled “Display of Licenses” under Division 9 of the California Barbering and Cosmetology regulations, Article 9, licenses. Requests 1, 2, 3, and 4 are granted to the extent that Courts can take judicial notice of the fact that complaints were filed, but not of the truth of the statements contained in those. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483.) Judges cannot take judicial notice of hearsay statements asserted in court filings, but can take judicial notice of the existence of such documents. (Johnson & Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768; Williams v. Wraxall (1995) 33 Cal. App. 4th 120, 130 n. 7 (judges may take judicial notice of the existence of court documents, “but cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”).) Judicial notice of inferences derived from discovery responses is unauthorized where there can be factual disputes. (Williams v. So. Cal. Gas Co. (2009) 176 Cal.App.4th 591, 598-600.) Plaintiff objects to Request 5. The objection is sustained. Plaintiff’s objections to Requests 6 and 7 are overruled. However, requests 6 and 7 are granted only to the extent of any pleading inconsistencies. “ ‘Although the existence of statements contained in a deposition transcript [or declaration] filed as part of the court record can be judicially noticed, their truth is not subject to judicial notice.’ ” (Judicial notice of the truth of statements in declaration would impermissibly transform the demurrer proceeding into contested evidentiary dispute). Big Valley Band of Pomo Indians v. Sup. Ct. (2005) 133 Cal. App. 4th 1185, 1191–92. Accord Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22. But see Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605 (“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.”).) The objection to Request 8 is overruled. Request 8 is granted. Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).) The Court finds Gale fulfilled this requirement prior to filing its demurrer. (Torres. Decl. ¶¶ 2-4) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer, or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) First, Gale argues Plaintiff’s Doe Amendment naming Gale as Doe 2 is invalid because CCP § 472(a) provides in part, “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed …,” and in this case, an answer was already filed by Lucky Nails on July 22, 2021. Gale contends that as a result, Plaintiff was required to obtain leave of court to file the Doe Amendment. (CCP § 473(a).) While Code of Civil Procedure § 472 does require “leave of court” before filing amended pleadings once there has been a response to a complaint, § 472 is a general provision relating to the amendment of pleadings. Code of Civil Procedure § 473(a)(1) provides that the court may allow an amendment to add the name of a party on any terms it deems proper, which could include allowing amendment by use of a court form. Further, CCP § 474 is narrower in its scope than § 472 and relates only to the substitution of “Doe” defendants, the very issue presented here. Because the more specific provision takes precedence over the more general one, (Strother v. Cal. Coastal Com. (2009) 173 Cal.App.4th 873, 879), and because CCP § 474 nowhere explicitly indicates leave of court is required for “Doe” amendments, the Court finds the reliance on CCP §§ 472 requirement of “leave of court” insufficient. Second, Gale argues Plaintiff unreasonably delayed in filing the Doe Amendment, and that Plaintiff was not genuinely ignorant of Gale’s identity for the amendment to relate back to the filing of the complaint. CCP § 474 provides, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly …” “The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “A recognized exception to the general rule is the substitution under [CCP §] 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint… If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Id.) “Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.) Gale concedes that Plaintiff’s theory of liability imposing liability on Gale in her individual capacity and as a general partner of the salon is plausible in relation to services provided by Gale’s sister, Hang Thanh Doan. Whether or not Gale actually provided direct services to Plaintiff on the date of the incident is irrelevant for the purposes of a demurrer, which limits the Court’s view to only the face of the complaint and any matters that are judicially noticeable. “‘[D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint.’” (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144.) Lastly, Gale argues Plaintiff may not add Gale as a defendant under section 474, because Plaintiff was not genuinely ignorant of Gale’s identity. Gale contends Plaintiff was served with various documents and discovery identifying the owners and partners of Lucky Nails in December 2021, but waited until July 27, 2023 to file the amendment. Further, Gale argues her identity was disclosed not only in initial discovery, but also when Gale sat for her deposition in April 2023. Here, it does not appear that Plaintiff knew the identity of Gale’s identity and her relationship to Lucky Nails at the time of the filing of the complaint on May 27, 2021, when Gale avers this information was disclosed after in December 2021. The ignorance of which Code of Civil Procedure section 474 speaks is actual ignorance, and a plaintiff will not be refused the right to use a Doe pleading even where the plaintiff's lack of actual knowledge is attributable to plaintiff's own negligence. (Grinnell Fire Prot. Sys. Co. v. Am. Sav. & Loan Assn. (1986) 183 Cal. App. 3d 352, 359.) “[S]ection 474 is not to be confused with the statute of limitations.” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942, 947.) Therefore, as it appears Plaintiff was genuinely ignorant of Gale’s identity at the time of the filing of the complaint, CCP § 474 is satisfied. However, CCP § 474 “includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning of defendant's identity” and unreasonable delay “includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff's delay in filing the Doe amendment.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066-67.) Here, even if Plaintiff unreasonably delayed in filing the Doe amendment, Gale must also identify prejudice to prelude relation back via Doe amendment based upon delay in identifying a Doe defendant. (Winding Creek v. McGlashan (1996) 44 Cal. App. 4th 933, 943.) The Court finds there has been no showing of actual prejudice. The action, filed on May 27, 2021, is not yet old, and currently there is no trial date set. Further, the Court is not persuaded that there will be any expansion of liability, when the only amendment is to substitute Gale as Doe 2, and the allegations in the complaint remain unchanged. There is still ample time to conduct any additional discovery and for Gale to prepare a defense in this matter. Based on the foregoing, the demurrer is OVERRULED. Moving Defendant is ordered to give notice. Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿
Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿
Dated this 9th day of November 2023 | | | Judge of the Superior Court |
Case Number: 21STCV24799 Hearing Date: November 13, 2023 Dept: 30 CHESTER PATTON vs CHRIS WINVICK
Request for Entry of Default Judgment
Tentative: The Court has reviewed the request for default judgment and is DENIED without prejudice due to the following defects: (1) Damages have not been proved. Despite claiming $50,000 in special damages, there is only evidence to support $15,488.33 in medical bills. Thus, the request for Court judgment must be adjusted to special damages in the amount of $15,488.33. (2) In light of the fact that the proof for special damages is only in the amount of $15,488.33, general damages in the amount of $125,000 are excessive. The court is only inclined to award general damages in an amount that is at most three times special damages. Thus, the request for Court judgment must also be adjusted with respect to the amount sought in general damages.
In addition, California Rules of Court, rule 3.110 requires Plaintiff to obtain entry of default a within 10 days after the time for service has elapsed and a default judgment within 45 days after the default was entered. California Rules of Court, rule 3.740 requires obtaining a default judgment within 365 days of the filing of the complaint. Pursuant to Gov. Code § 68608, trial courts shall have the power to impose sanctions to enforce the requirements of a delay reduction program, including the power to striking pleadings or dismissing actions if less severe sanctions are ineffective. LASC local rule 3.10 allows the Court to impose sanctions for the failure or refusal to comply with time standards or deadlines. Moreover, the court is mindful of Garcia v. McCutchen (1997) 16 Cal.4th 469.
Accordingly, the Court sets in 35 days a final OSC re dismissal for failure to timely perfect / obtain a Default Judgment pursuant to CRC Rule 3.110(h) and (i), CRC Rule 3.740, CCP 581(b)(4), CCP 583.410, and 583.420(a)(2)(B).
Case Number: 21STCV26542 Hearing Date: November 13, 2023 Dept: 71 Superior
Court of California
County
of Los Angeles
DEPARTMENT 71
TENTATIVE
RULING
|
MARIA TEJADA,
vs.
FORD MOTOR COMPANY.
|
Case No.:
21STCV26542
Hearing Date: November 13, 2023
|
Plaintiff Maria Tejada’s motion for
attorneys’ fees is granted in the reduced total of $74,526.34.
Plaintiff
Maria Tejada (“Tejada”) (“Plaintiff”) moves for an order awarding her
attorneys’ fees, costs, and expenses against Defendant Ford Motor Company (“FMC”) (“Defendant”) on behalf
of Quill and Arrow, LLP (“QA”) in the total amount of $123,701.39,
reflecting (1) $82,282.50 in attorney fees for QA; (2) a 1.35 multiplier
enhancement on the attorney fees (or $28,798.87); (3) $6,620.02 in costs
incurred by QA; and (4) an additional $6,000.00 for Plaintiff’s counsel to
review Defendant’s Opposition, draft the Reply, and attend the hearing on this
Motion. (Notice of Motion, pg. 2; Civ.
Code §1794(d).) Plaintiff makes this
motion pursuant to a signed settlement offer.
(Notice of Motion, pg. 2.)
Evidentiary
Objections
Plaintiff’s
11/6/23 evidentiary objections to the Declaration of Matthew M. Proudfoot (“Proudfoot”)
are sustained as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15.
Background
This is a lemon law action
brought under the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”). Defendant served Plaintiff with a C.C.P. §998
Offer to Compromise (“998 Offer”) in this matter on or about November 12, 2021,
in the amount of $52,195.80, plus attorney’s fees, costs, and expenses to be
determined by agreement or decided by this Court by way of motion for
attorney’s fees, costs, and expenses and that Plaintiffs would be the
prevailing party for purposes of that motion.
(Decl. of Sogoyan ¶74.)
On or about July 22, 2022,
the Parties held a telephonic conference during the break of Plaintiff’s
deposition in which Defendant made an offer to resolve this matter in the
amount of $65,000.00, plus attorney’s fees, costs, and expenses to be
determined by agreement or decided by this Court by way of motion for
attorney’s fees, costs, and expenses and that Plaintiffs would be the
prevailing party for purposes of that motion.
(Decl. of Sogoyan ¶75.) On or
about July 28, 2022, Defendant served a §998 Offer to Compromise in the amount
of $85,000.00, plus attorney’s fees, costs, and expenses to be determined by
agreement or decided by this Court by way of motion for attorney’s fees, costs,
and expenses and that Plaintiff would be the prevailing party for purposes of
that motion. (Decl. of Sogoyan ¶76.)
On December 13, 2022,
Plaintiff attended private mediation with Ron Akasaka of SMART ADR. (Decl. of Sogoyan ¶77.) On or about January 3, 2023, Defendant served
a §998 Offer to Compromise in the amount of $95,000.00, plus attorney’s fees,
costs, and expenses to be determined by agreement or decided by this Court by
way of motion for attorney’s fees, costs, and expenses and that Plaintiffs
would be the prevailing party for purposes of that motion. (Decl. of Sogoyan ¶78.) Plaintiff accepted Defendant’s §998 Offer to Compromise,
dated December 3, 2023. (Decl. of
Sogoyan ¶79.) On February 24, 2023,
Plaintiff’s counsel filed a conditional Notice of Settlement with this Court. (Decl. of Sogoyan ¶80.)
On
July 7, 2023, Plaintiff filed this motion for attorneys’ fees. Defendant filed its opposition on October 30,
2023. Plaintiff filed her reply on November
6, 2023.
Discussion
Civil
Code §1794(d) provides that a buyer who prevails in an action under that
section, “shall be allowed by the court to recover as a part of the judgment a
sum equal to the aggregate amount of costs and expenses, including attorney’s
fees based on actual time expended, determined by the court to have been
reasonably incurred by the buyer in connection with the commencement and the
prosecution of such action.”
C.C.P.
§998(c)(1) provides as follows: “If an offer made by a defendant is not
accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not
recover his or her post offer costs
and shall pay the defendant’s costs from
the time of the offer.” (C.C.P.
§998(c)(1).) “In
determining whether the plaintiff obtains a more favorable judgment, the court .
. . shall exclude the post offer costs.”
(C.C.P. §998(c)(2)(A).) “If an
offer made by a defendant is not accepted and the plaintiff fails to obtain a
more favorable judgment or award, the costs under this section, from the time
of the offer, shall be deducted from any damages awarded in favor of the
plaintiff.” (C.C.P. §998(e).)
Section
998’s plain language only penalizes plaintiffs who “fail[] to obtain a more
favorable judgment or award” than a §998 offer by cutting off their post-offer
costs and requiring them to pay “defendant’s [post-offer] costs” out of any
“damages awarded.” (C.C.P. §§998(c)(1),
(e).)
A
party who settles cannot “fail” to obtain a more favorable “judgment or award.”
“Fail[ure]” connotes defeat, abandonment, or “[i]nvoluntarily” falling short of
one’s purpose. (Madrigal v. Hyundai
Motor America (2023) 90 Cal.App.5th 385, 413-414, citing Burton’s Legal
Thesaurus (3d ed. 1998) p. 228, col. 1, Black’s Law Dict. (rev. 4th ed. 1968) at
pg. 711, col. 1; accord Cambridge Dict. Online (2023) [“fail” means “to
not succeed in what you are trying to achieve”].) Section 998(d) is explicit: A “judgment or
award entered pursuant to this section shall be deemed to be a compromise
settlement.” (C.C.P. §998(d).)
Here,
Plaintiff is the prevailing party and is entitled to attorneys’ fees and costs pursuant
to the §998 offer.
Civil
Code §1794(d)
Civil
Code §1794(d) provides, “[i]f the buyer prevails in an action under this
section, the buyer shall be allowed by the court to recover as part of the
judgment a sum equal to the aggregate amount of costs and expenses, including
attorney’s fees based on actual time expended, determined by the court to have
been reasonably incurred by the buyer in connection with the commencement and
prosecution of such action.”
Reasonable Fees
To calculate a lodestar amount, the Court
must first determine the reasonableness of the hourly rates sought by the Plaintiff’s
counsel. The Supreme Court of California has concluded that a reasonable hourly
lodestar rate is the prevailing rate for private attorneys “conducting
non-contingent litigation of the same type.” (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1133, emphasis added.)
Plaintiff’s Counsel declares the following
hourly rates for attorneys who worked on this case: (1) Kevin Jacobson (2021,
2022, and 2023 rate of $500/hr); (2) Gregory Sogoyan (2022 rate of $450/hr. and
2023 rate of $500/hr.); (3) Allen Amarkarian (2022 and 2023 rate of $395/hr.);
(4) Daniel Nickfardjam (2023 rate of $350/hr.); and (5) Leon Tao (2021 rate of
$300/hr.). (Decl. of Jacobson ¶¶3-22. Exh.
1-6.) Plaintiff has sufficiently
demonstrated her counsel’s hourly rates are reasonable in their community of
practice in their specialized area of law.
(Decl. of Jacobson ¶¶3-22. Exh. 1-6.)
Defendant does not challenge Plaintiff’s
counsel’s hourly rates as unreasonable, and the Court finds Plaintiffs’
counsel’s rates to be reasonable and do not warrant a reduction.
Billed Hours
The party seeking fees and costs bears the
burden to show “the fees incurred were allowable, were reasonably necessary to
the conduct of the litigation, and were reasonable in amount.” (Nightingale v. Hyundai Motor America (1994)
31 Cal.App.4th 99, 104.)
In this case, the declarations and billing
records provided by Plaintiff’s counsel are sufficient to meet the burden of
proving the reasonableness of the claimed fees in terms of amounts and tasks.
To satisfy this burden, evidence and descriptions of billable tasks must be
presented in sufficient detail, enabling the court to evaluate whether the case
was overstaffed, the time attorneys spent on specific claims, and the
reasonableness of the hours expended. (Lunada
Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 486-487.)
Plaintiff’s fee recovery is based on the
approximately 195 hours spent by her attorneys litigating this case through
this motion. The fees incurred are reasonable, as captured in the billing
records submitted to this Court. (Decl. of
Jacobson ¶23, Exh. 7.) Plaintiff’s
counsel’s billing records reflect the actual time and clear descriptions of
services performed in connection with litigating this case, which has been
carefully reviewed and audited to remove any entry that may be duplicative,
redundant, unnecessary, or otherwise. (Decl.
of Jacobson ¶23, Exh. 7.) Although the
submission of such detailed time records is not necessary under California law,
if submitted, such records “are entitled to credence in the absence of a clear
indication the records are erroneous.” (Horsford
v. Board of Trustees of California State University (2005) 132 Cal.App.4th
359, 396.)
Defendant argues the following billed hours
were not reasonably incurred: (1) 3.6 hours on QA’s Standard “Set One”
Discovery Requests to Defendant; (2) 9.8 hours Responding to Defendant’s Discovery;
(3) 8.0 hours on Template and Unnecessary Motion to Compel; (4) 35.6 hours on
Motions in Limine; (5) 16.8 hours and “additional” $6,000 in connection with
plaintiff’s Motion for Attorney’s Fees; (6) 17.1 Hours on Deposition Notices
and Objections; and (7) “Review” of Documents.
(Opposition, pgs. 6-8.)
The Court reviewed the hours billed in each
of Defendant’s seven categories and finds Plaintiff’s counsel’s billing for
tasks were excessive, given the repetitive nature of the litigation. Accordingly, the Court reduces the total hours
billed on these tasks as follows:
(1) 3.6 hours on QA’s Standard “Set One”
Discovery Requests to Defendant (-1.6 hours);
(2) 9.8 hours Responding to Defendant’s Discovery
(-3.8 hours);
(3) 8.0 hours on Template and Unnecessary
Motion to Compel (-6.0 hours);
(4) 35.6 hours on Motions in Limine (-30
hours);
(5) 16.8 hours and “additional” $6,000 in
connection with plaintiff’s Motion for Attorney’s Fees (-10 hours and $4,000); and
(6) 17.1 Hours on Deposition Notices and
Objections (-15 hours).
This reduction of 70.4 hours at a rate of
$195.40 and $4,000, results in a reduction of $17,756.16 of the fee awarded.
Costs
To obtain a costs award, a party must serve
and file a memorandum of costs. (C.R.C. Rule 3.1700(a).) Plaintiff’s instant fee motion does not
include a memorandum of costs, and the expense invoices submitted with
Plaintiffs’ billing records are insufficient in form and function to satisfy
this requirement.
Accordingly, the Court cannot award costs
unless a Memorandum of Costs is submitted by Plaintiff. The Court therefore does not rule on the
issue of costs in this motion.
Final Lodestar Determination
The Court denies Plaintiffs’ request for a 1.35
lodestar multiplier. Given the routine
work done in this case and the results obtained in this lemon law area, a multiplier
is not appropriate. Any contingency risk factor is already accounted for in the
hourly rates, which the Court has found to be reasonable.
Accordingly,
Plaintiff’s motion for attorneys’ fees is granted in the reduced amount of $72,526.34
in attorney fees and $2,000.00 on the
instant motion for a total reduced amount of $74,526.34. The Court does not rule on Plaintiff’s
request for costs.
Conclusion
Accordingly,
Plaintiff’s motion for attorneys’ fees is granted in the reduced total of $74,526.34.
The
Court does not rule on Plaintiff’s request for costs.
Moving
Party to give notice.
Dated: November _____, 2023
|
|
|
Hon.
Daniel M. Crowley
|
|
Judge
of the Superior Court
|
Case Number: 21STCV26958 Hearing Date: November 13, 2023 Dept: 55 NATURE OF PROCEEDINGS: MOTION OF PLAINTIFF ANGEL YINGLI CHANG FOR
TERMINATING SANCTIONS AND FOR MONETARY SANCTIONS.
The unopposed motion is granted.
The Court strikes the Answer and enters the default of
Defendant LAIYING SHANG.
On or before December 13, Defendant LAIYING SHANG
shall pay discovery sanctions in the sum of $5,351.85 to Plaintiff ANGEL YINGLI
CHANG, the Court finding willful disobedience of the order compelling
deposition attendance and the absence of substantial justification. E.g., CCP § 2023.030.
Default prove-up procedures must be followed for
defaults entered as discovery sanctions. Greenup v. Rodman (1986)
42 Cal.3d 822, 827-28; Matera v.
McLeod (2006) 145 Cal.App.4th 44, 60; Reedy v. Bussell (2007) 148 Cal.
App.4th 1272, 1294.
Case Number: 21STCV31896 Hearing Date: November 13, 2023 Dept: 28 Plaintiff Cindy Ortiz was exposed to carbon monoxide while pregnant with Claimant Jacob Rodriguez (“Claimant”) and working at Defendants’ retail location. This is an expedited petition without a hearing, which is permitted under California Rules of Court, rule 7.950.5, as long as Petitioner Cindy Ortiz (“Petitioner”) uses the required Judicial Council forms and meets certain conditions. The conditions are: 1. Petitioner is represented by an attorney. 2. The claim is not for wrongful death. 3. Settlement proceeds will not be placed in a trust. 4. There are no unresolved liens. 5. Petitioner’s attorney did not become involved at the request of Defendant or the insurance carrier. 6. Petitioner’s attorney is not employed by or associated with a Defendant or insurance carrier in connection with the petition. 7. If an action is filed, all Defendants that have appeared are participating in the compromise OR the court has determined the settlement to be in good faith. 8. The settlement, exclusive of interests and costs, is $50,000 or less OR if greater than $50,000, the amount payable is the insurance policy limits AND all proposed contributing parties would be substantially unable to use assets other than the insurance policy limits AND the court does not otherwise order. SETTLEMENT: $10,000.00
INJURIES: Carbon monoxide poisoning MEDICAL EXPENSES: $0.00 COSTS: $0.00 ATTORNEY’S FEES REQUESTED: $4,000.00 which is 40% of the gross settlement DISCUSSION: Petitioner has submitted a completed petition with all applicable attachments. The petition requests attorney’s fees of $4,000, which is 40% of the gross settlement amount. The Court typically does not award attorney’s fees in excess of 25% of the gross settlement in cases involving minors absent extraordinary efforts, described with particularity, by counsel. The Court has reviewed counsel’s declaration concerning the request for attorney’s fees. The Court awards attorney’s fees of $3,000.00 (30%), leaving a net balance of $7,000.00. Petitioner requests that the net balance be placed in an insured account at Bank of America, Sycamore Plaza Branch, 2830 Cochran St., Simi Valley, CA 93065. The Court orders the net balance of $7,000.00 so distributed.
The
Court sets an OSC Re: Deposit of Net Balance into Blocked Account on December 29 2023 at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The
Court sets an OSC Re: Dismissal (Settlement) on December 29, 2023 at 8:30 a.m.
in Department 28 of the Spring Street Courthouse.
Case Number: 21STCV34339 Hearing Date: November 13, 2023 Dept: 48
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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ELHAM KHORSANDI, et al.,
Plaintiff,
vs.
STAR DER PARSEGHIAN, et al.,
Defendants.
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CASE NO.: 21STCV34339
[TENTATIVE] ORDER DENYING PLAINTIFF’S REQUEST
FOR ENTRY OF DEFAULT JUDGMENT
Dept. 48
8:30 a.m.
November 13, 2023
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On September 17, 2021, Plaintiffs Elham Khorsandi and
Sam S. Khorsandi filed this action against Defendants Star Der Parseghian and Star
DP Design, Inc. On August 3, 2022, the Court
entered default against Defendants.
On November 6 and 7, 2023, Plaintiffs filed a request
for entry of default judgment.
Plaintiffs seek a judgment of $21,749.79, consisting
of 17,726.00 in damages, $2,789.64 in prejudgment interest, and $1,234.15 in costs.
The claimed costs are reasonable and allowable. The prejudgment interest is also appropriate based
on the claimed damages.
Plaintiff’s damages consist of the $14,000.00 deposit
they paid to Defendants for floor installation that never occurred, plus fees for
“18 extra months of storage fees for the furnishings which were removed from the
area to be tiled, all due to Defendants’ failure to perform as represented.” (Khorsandi Decl. ¶ 8.)
The Complaint prays for return of the $14,000.00
deposit, plus “[a]dditional storage costs incurred by Plaintiffs.” Plaintiffs do not plead an amount of damages for
the storage costs. The Court cannot award more in a default judgment than
the amount demanded in the complaint. (Code
Civ. Proc., § 580, subd. (a).) In order to
receive a damages award in excess of $14,000.00, Plaintiffs must
file and serve an amended complaint alleging the total amount of economic damages
and obtain a new entry of default on the amended complaint. (See Electronic Funds Solutions, LLC v. Murphy
(2005) 134 Cal.App.4th 1161, 1173-1174.)
Alternatively, Plaintiffs may submit a new request for entry of default judgment
that excludes the unpleaded storage damages.
The request for entry of default judgment is DENIED WITHOUT
PREJUDICE.
An Order to Show Cause Re: Entry of Default Judgment
is scheduled for 03/14/2024 at 8:30 a.m. in Department 48 at Stanley Mosk
Courthouse.
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org
indicating intention to submit. If all parties
in the case submit on the tentative ruling, no appearances before the Court are
required unless a companion hearing (for example, a Case Management Conference)
is also on calendar.
Dated this 13th day of November 2023
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Hon. Thomas D. Long
Judge of the Superior
Court
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Case Number: 21STCV36175 Hearing Date: November 13, 2023 Dept: 27 SUPERIOR COURT OF
THE STATE OF CALIFORNIA
FOR THE COUNTY OF
LOS ANGELES - CENTRAL DISTRICT
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SANDRA MARTINEZ
BASURTO,
Plaintiffs,
vs.
BODEGA LATINA CORPORATION dba EL
SUPER, et al.,
Defendant(s).
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CASE NO.: 21STCV36175
[TENTATIVE] ORDER RE:
MOTION TO COMPEL FURTHER RESPONSES
TO FORM INTERROGATORIES
Dept. 27
1:30 p.m.
November 13, 2023
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MOVING PARTY: Plaintiff
Sandra Martinez Basurto
RESPONDING PARTY: Defendant
Bodega Latina Corporation dba El Super
I. BACKGROUND
On
October 1, 2021, Plaintiff Sandra Martinez Basurto (“Plaintiff”) filed this
action against Defendants Bodega Latina Corporation dba El Super (“Defendant”)
and Does 1 through 50, inclusive, asserting two causes of action for (1)
negligence and (2) premises liability.
The
Complaint alleges that on or about March 14, 2020, Plaintiff was a lawful
invitee at Defendant’s store at 315 San Fernando Mission Blvd., San Fernando,
CA 91340 (the “Premises”), when she slipped and fell on a tomato, severely
injuring herself. (Compl., ¶¶ 5, 7.)
On
July 7, 2023, Plaintiff filed the instant motion to compel Defendant’s further
responses to her Form Interrogatories, Set One.
On
October 30, 2023, Defendant filed its opposition.
Plaintiff
has not filed a reply.
II. LEGAL STANDARD
The following rules apply to responses
to interrogatories.
“(a) Each answer in a response to
interrogatories shall be as complete and straightforward as the information
reasonably available to the responding party permits.
(b) If an interrogatory cannot be
answered completely, it shall be answered to the extent possible.
(c) If the responding party does not
have personal knowledge sufficient to respond fully to an interrogatory, that
party shall so state, but shall make a reasonable and good faith effort to
obtain the information by inquiry to other natural persons or organizations,
except where the information is equally available to the propounding party.”
(Code Civ. Proc., § 2030.220.)
In addition, “[i]f an objection is made
to an interrogatory or to a part of an interrogatory, the specific ground for
the objection shall be set forth clearly in the response.” (Code Civ. Proc., §
2030.240, subd. (b).)
“On receipt of a response to
interrogatories, the propounding party may move for an order compelling a
further response if the propounding party deems that any of the following
apply: ¶ (1) An answer to a particular interrogatory is evasive or incomplete.
¶ (2) An exercise of the option to produce documents under Section 2030.230 is
unwarranted or the required specification of those documents is inadequate. ¶
(3) An objection to an interrogatory is without merit or too general.” (Code
Civ. Proc., § 2030.300, subd. (a).)
Similarly, “[o]n receipt of a response
to a demand for inspection, copying, testing, or sampling, the demanding party
may move for an order compelling further response to the demand if the
demanding party deems that any of the following apply: ¶ (1) A statement of
compliance with the demand is incomplete. ¶ (2) A representation of inability
to comply is inadequate, incomplete, or evasive. ¶ (3) An objection in the
response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd.
(a).) “The motion shall set forth specific facts showing good cause justifying
the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd.
(b)(1).)
Motions to compel further responses to
interrogatories must be brought within 45 days of service of a verified
response, supplemental verified response, or on a date to which the propounding
and responding parties have agreed to in writing; otherwise, the propounding
party waives the right to compel further responses. (Code Civ. Proc., §
2030.300, subd. (c).)
“The court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) against any party,
person, or attorney who unsuccessfully makes or opposes a motion to compel a
further response to interrogatories, unless it finds that the one subject to
the sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.” (Code Civ. Proc., § 2030.300,
subd. (d).)
“If a party then fails to obey an order
compelling further response to interrogatories, the court may make those orders
that are just, including the imposition of an issue sanction, an evidence
sanction, or a terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of, or in addition to, that sanction, the court may impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Code
Civ. Proc., § 2030.300, subd. (e).)
III. DISCUSSION
To understand the Plaintiff’s motion, it
is helpful to review the relevant procedural background.
On April 25, 2022, Plaintiff filed a
motion to compel further responses to
“Plaintiff’s Form Interrogatories to Defendant, Set One” (“FROG”), among other
discovery. (Motion, filed April 25, 2022, declaration of Svetlana Liberman, ¶
3; Exhibit A – copy of the FROGs; Evid. Code, § 452, subd. (d) [providing that
a court may take judicial notice of court records].)
On January 25, 2023, the Court held a
hearing of the FROG motion, but continued it to February 21, 2023, ordering the
parties to meet, confer, and determine which interrogatories were still at
issue before the next hearing. (Minute Order dated January 25, 2023, pp. 2-3.)
The hearing was subsequently continued to April 13, 2023.
On April 13, 2023, the Court granted
Plaintiff’s request to compel Defendant’s further responses to FROG Nos. 15.1,
16.3, 16.4, and 16.5 (the “April 13 Order”). (April 13 Order, p. 13, Conclusion
section.) The Court imposed sanctions of $1,560 against Defendant and its
counsel of record, jointly and severally, for failing to provide further
responses to the FROGs and other discovery. (April 13 Order, pp. 12-13,
beginning on the last paragraph of Page 12.) The Court ordered Defendant to pay
the sanctions and provide further responses to the FROGs within 20 days of the
April 13 Order (i.e., by May 11, 2023). (April 13 Order, p. 13.)
Plaintiff now moves to compel
Defendant’s further responses to FROG Nos. 15.1, 16.3, 16.4, and 16.5, arguing
that Defendant has still failed to produce code compliant responses.
Plaintiff’s counsel attests to the following facts in support of the motion: On
May 26, 2023, Defendant served a late, improper, and incomplete third set of
its further responses to the FROGS. (Motion, declaration of Svetlana Liberman
(“Liberman Decl.”), ¶ 4; Exhibit B – a copy of the third set of further
responses to the FROGs.) The Court notes that the third set was verified at the
time of service. (See Motion, Liberman Decl., Exhibit B, p. 2,
verification provided by Adrian Rios.) On June 28, 2023, Plaintiff’s counsel
sent defense counsel a meet and confer letter, seeking to resolve the dispute
concerning Defendant’s incomplete responses. (Liberman Decl., ¶ 5; Exhibit C –
a copy of the letter.) Defense counsel responded the same day, stating that she
would respond to the meet and confer letter, but never did. (Liberman Decl., ¶¶
6-7.)
This
is a continuing dispute regarding interrogatory responses that has already involved
the Court multipletimes, albeit, in part, to a different set of interrogatories. In the end, Defendant contends the motion is “moot”
because it has agreed to serve further responses to the form interrogatories
now at issue. It is helpful that the parties appear to have reached an
agreement on further responses, but it is not ideal that they have done so only
after (1) legal fees were incurred to bring this motion and (2) involving the
Court.
Although Defendant has indicated that
it will provide supplemental responses, Defendant’s responses to date are
insufficient to make the instant motion moot because “[u]nsworn responses are
tantamount to no responses at all.” (Appleton v. Superior Court (1988)
206 Cal. App. 3d 632, 636 [discussing unverified discovery responses].)
Therefore,
the Court finds it proper to grant Plaintiff’s request to compel those further
responses. The request to compel further responses to FROGs Nos. 15.1, 16.3,
16.4, and 16.5 is granted.
The
imposition of sanctions is also proper due to the Defendant’s failure to
provide code-compliant and/or verified responses despite being given multiple
opportunities to do so. The Court hereby
awards sanctions in the amount of $1500 to Defendant.
IV. CONCLUSION
Plaintiff
Sandra Martinez Basurto’s Motion to Compel Further Responses to Form
Interrogatories
is GRANTED as follows.
The request to
compel further responses to Plaintiff’s Form Interrogatories to Defendant Bodega Latina Corporation dba El Super, Set One, Nos.
15.1, 16.3, 16.4, and 16.5 is GRANTED. Defendant is ordered to serve verified,
further, code-compliant responses to those interrogatories within 20 days of
this ruling.
The request to impose sanctions is
GRANTED against Defendant Bodega Latina
Corporation dba El Super only. Defendant is ordered to pay Plaintiff sanctions
of $1,500 within 20 days of this ruling.
Moving
party to give notice.
Parties who intend to submit on this
tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit
on the tentative as directed by the instructions provided on the court’s
website at www.lacourt.org. Please be
advised that if you submit on the tentative and elect not to appear at the
hearing, the opposing party may nevertheless appear at the hearing and argue
the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If
the Court does not receive emails from the parties indicating submission on
this tentative ruling and there are no appearances at the hearing, the Court
may, at its discretion, adopt the tentative as the final order or place the
motion off calendar.
Dated this 13th day of November 2023
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Hon. Lee S.
Arian
Judge of the
Superior Court
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Case Number: 21STCV36793 Hearing Date: November 13, 2023 Dept: 28
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Having
considered the moving papers, the Court rules as follows.
BACKGROUND
On
October 6, 2021, Plaintiff Stacey Sterbcow (“Plaintiff”) filed this action
against Defendants Jasmen Navasartian (“Defendant”) and Does 1-100 for motor
vehicle tort.
On
August 11, 2022, Defendant filed an answer.
On
September 7, 2023, Plaintiff’s counsel, Lee C. Arter, filed a motion to be relieved
as counsel to be heard on November 13, 2023.
Trial
is currently scheduled for June 4, 2024.
COUNSEL’S REQUEST
Plaintiff’s
counsel, Lee C. Arter, requests to be relieved as counsel.
LEGAL STANDARD
California
Rules of Court, rule 3.1362 (Motion to Be Relieved as Counsel) requires (1)
notice of motion and motion to be directed to the client (made on the Notice
of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a
declaration stating in general terms and without compromising the confidentiality
of the attorney-client relationship why a motion under Code of Civil
Procedure section 284(2) is brought instead of filing a consent under Code of
Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's
Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice
of motion and motion, declaration, and proposed order on the client and all
other parties who have appeared in the case; and (4) the proposed order
relieving counsel (prepared on the Order Granting Attorney’s Motion to Be
Relieved as Counsel—Civil form (MC-053)).
The
court has discretion to allow an attorney to withdraw. The motion should be granted if there is no
prejudice to the client and it does not disrupt the orderly process of justice.
(Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)
DISCUSSION
Counsel
has submitted completed MC-051, MC-052 and MC-053 forms. Counsel has provided
a declaration stating: “There has been an irreparable breakdown in
communication, and breakdown of the working relationship between counsel and
Plaintiff. These breakdowns have rendered it unreasonably difficult for
counsel to effectively carry out its representation of Plaintiff. The
attorney-client relationship has reached an impasse. There now exist
irreconcilable differences between Plaintiff and her counsel.”
Counsel
served Plaintiff at her last known address via mail, with return receipt
requested. Counsel submitted proof of service on all parties, including
Plaintiff. The Court grants the motion.
CONCLUSION
The
Court GRANTS the motion of Lee C. Arter, counsel for Plaintiff Stacey
Sterbcow, to be relieved as counsel. Counsel
will be relieved upon filing proof of service on the client of the Order
Granting Attorney’s Motion to Be Relieved as Counsel--Civil (Judicial Council
form MC-053).
Counsel
is ordered to give notice of this ruling.
Counsel
is ordered to file the proof of service of this ruling with the Court within
five days.
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Case Number: 21STCV37567 Hearing Date: December 13, 2023 Dept: 28 The Court has made a request to Department 1, Stanley Mosk Courthouse to determine that this case should be transferred and reassigned to a Independent Calendar Court.
Once Department 1 reassigns this case any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court. No further matters will be heard in Department 28 unless Department 1 determines the case should stay in Department 28. Pending Department 1's ruling, no hearings will be held in Department 28.
It is anticipated the case will be transferred. Plaintiff will be informed of the new court assignment. Hearings will not take place in Department 28, regardless of the matters remaining on the Department 28 docket unless in the unlikely event, Department 1 declines to transfer the case.
Case Number: 21STCV38459 Hearing Date: November 14, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 14, 2023 Case Name: AMAG, Inc. v. Cubas, et al. Case No.: 21STCV38459 Matter: Motion for Attorneys’ Fees Moving Party: Cross-Complainant Anastasiia Arseneva Responding Party: Unopposed Notice: OK
Ruling: The Motion is granted in part. Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
On March 6, 2023, Plaintiff AMAG, Inc. filed the operative First Amended Complaint (“FAC”) for (1) fraudulent conversion, (2) misrepresentation, (3) constructive fraud, (4) breach of fiduciary duty, and (5) declaratory relief. Plaintiff alleges that Defendant Vlaze Media Networks, Inc. sought to avoid the judgment against it in case no. BC587406 by fraudulently transferring certain assets to the other Defendants or with the help of the other Defendants. On May 1, 2023, Anastasiia Arseneva filed the operative Second Amended Cross-Complaint (“SACC”) for (1) breach of written contract, (2) quantum meruit, (3) violation of Pen. Code §§ 528.5, 529, and (4) declaratory relief. Arseneva now seeks $3,000 in attorneys’ fees as sanctions for being forced to file a motion to deem requests for admission admitted, which was denied on September 8, 2023, because responses were ultimately served by Zambrano Law Corporation. Arseneva claims the Court’s ruling was “without prejudice” with respect to her request for sanctions, although the only proof of this is her own notice of ruling, which is not even on the docket. There being no opposition, the Court awards reduced sanctions in the amount of $1,200. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 21STCV38636 Hearing Date: November 13, 2023 Dept: 31 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT | | [TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO DEPOSITION AND FURTHER PRODUCTION OF DOCUMENTS |
Plaintiff Joseph Glyzewski (“Plaintiff”) filed this action against Defendants Stephen R Dixon (“Dixon”) and Stephen R. Dixon Trust (collectively, “Defendants”) for injuries Plaintiff suffered while on Defendants’ premises to repair the air conditioners located on the roof. Plaintiff alleges that as he walked down the ladder from the roof to the floor below, the door hatch immediately slammed shut onto Plaintiff’s body causing him to suffer injuries. Plaintiff now moves to compel Dixon to provide answers to questions Dixon refused or was directed to not respond to, and to produce responses to Plaintiff’s demand for production of documents with the deposition notice. Defendants oppose the motion, and Plaintiff filed a reply. II. Motion to Compel Deposition Answers and Production of Documents Defendants, in opposition, contend the motion is untimely because it was filed 61 days after completion of Volume II of Dixon’s deposition. CCP § 2025.480(b) provides that motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. Defendants argue completion is the date the transcript was signed by the court reporter on March 3, 2023, and that because Plaintiff filed the motion 61 days later, the Court has no jurisdiction to order any further testimony or production of documents. Plaintiff, in reply, argues that the court reporter emailed notice that the transcript was available for review on March 6, 2023, and that the transcript should not be deemed closed when the court reporter may sign the transcript and not immediately send it to the parties. Plaintiff further contends the cases cited by Defendants are misplaced because it involved a subpoena of business records. Where a party does not obtain trial court relief from the statutory deadline for filing a motion to compel further production regarding a deposition notice or subpoena, failure to move for further answers within the statutory time forecloses further relief. (Weinstein v. Blumberg (2018) 25 Cal. App. 5th 316.) Although discovery deadlines are mandatory and the court treats them as jurisdictional, a trial court may grant relief from deadlines to file motions to compel. (Cal. Civ. Proc. Code §§ 1005(b), 1010, 2025.480(b).) The Court finds no substantial or obvious prejudice from a 1-day delay. The Court therefore will consider the motion on the merits. If a deponent fails to answer any question or to produce any document under its control, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP § 2025.480(i).) The Court will address the issues in the order presented in Plaintiff’s separate statement. Here, Issue 1 asked Dixon whether Plaintiff could have noticed that the springs were missing when he went up the hatch. Issue 2 asked about Dixon’s maintenance program, and whether the door hatches required periodic inspection to see if they were in working order. Issue 3 asked whether Dixon felt that with proper inspection, somebody would have determined the safety springs were missing. Defense counsel objected the same to the above questions on grounds of speculation, expert opinion, and incomplete hypothetical. At a discovery deposition, all objections except as to the form of the question and privilege are preserved, and the testimony is to be taken subject to those questions. A proper objection states the legal ground for the objection. If the questioner wants an explanation of why the objection was made, counsel may ask. If not asked, the objector should not explain objections, and the witness should answer. If the objection is proper, it can be sustained, and the answer will not be used. If it is overruled, the answer stands. Instructions not to answer, ordinarily should only be made for privilege, work product, some privacy and trade secret objections. The motion is granted as to Issues 1, 2 and 3. Issue 4 asked whether Plaintiff’s counsel could ask Dixon, as the owner of the building, about safety and things that could have been done to prevent the incident, and anything that has to do with the door hatch at issue. Defense counsel did not lay any objections, and instructed Dixon to not answer the question. As explained in the Rutter Guide: Objections: Because the permissible scope of examination is so broad (¶ 8:703 ff.), the grounds for objection to deposition questioning are limited; and those that exist must be pursued properly or are waived. [CCP § 2025.460(b); see Boler v. Sup.Ct. (Everett) (1987) 201 CA3d 467, 472, 247 CR 185, 187, fn. 1 (citing text)] Again, there are no proper grounds for Dixon to refuse to respond to the call of the question. Furthermore, questions regarding the door hatch and any actions related to the management of the door hatch is relevant to the subject matter of this action. The motion is granted as to Issue 4. Issue 5 asked a hypothetical of whether Dixon would still assume there was a problem with the door hatch if the hatch had a lock, was open, and no one told him to be careful. Defense counsel objected on the grounds that the question was argumentative, and instructed Dixon to not answer the question. For the same reasons provided in Issues 1-3, the motion is granted as to Issue 5. Issue 6 asked about whether the rest of Dixon’s property was not considered to be Faith Air Conditioning or Wes’ jobsite. Dixon began his response, and defense counsel interrupted the response, instructing Dixon that there was no requirement for him to communicate that information. As explained in the Rutter Guide: — Once a question is asked, an attorney should not interrupt a deposition or make an objection for the purpose of coaching a deponent or suggesting answers; — An attorney should not direct a deponent to refuse to answer a question or end the deposition without a legal basis for doing so; — An attorney should refrain from self-serving speeches and speaking objections. [State Bar California Attorney Guidelines of Civility and Professionalism § 9(a)] (Cal. Prac. Guide: Civ. Proc. Before Trial Ch. 8E-12, §8:719.) The motion is granted as to Issue 6. Issue 7 asks whether Dixon agreed that Plaintiff could reasonably assume the door hatch was working when he went up through the roof and came down. Defense counsel objected on the grounds that it called for an expert opinion and legal conclusion, and instructed Dixon to not answer. The Court agrees that the call of the question asked for legal reasoning and sustains the objection here. The motion is denied as to Issue 7. Issue 8 asks whether Dixon agrees that, based on Dixon’s conversation with Wes, the door hatch had nothing to do with Plaintiff’s scope of work on the day of the incident. Defense counsel stated “same objections” and instructed Dixon to not respond. For the same reason as in issue 4, the motion is granted as to Issue 8. As to the production of documents included in the deposition notice, Plaintiff sets forth good cause for the production of documents. (CCP § 2025.450(b)(1) [“The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”].) At issue are objections and a lack of production as to document requests 10-13 and 15-18. Defendant provided boilerplate objections each request and failed to provide code-compliant responses pursuant to 2031.230 and 2031.240. Defendant is ordered to produce code-compliant responses by ______________and to produce all non-privileged requested documents in his possession on the resumption of the deposition. (CCP § 2025.480(i).) Plaintiff requests sanctions of $3,210 against Defendant and defense counsel pursuant to CCP § 2023.030. CCP § 2023.030(a) states: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct…” As analyzed above, defense counsel’s conduct prevented the deposition from being completed, and his actions were not reasonable. Because the conduct of defense counsel, and not Dixon who was merely following the instructions of his counsel, is at issue, the Court will impose monetary sanctions on defense counsel only. However, a court has discretion to award sanctions that are “suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks” but they should not be punitive in nature or levied for the purposes of punishing an offending party. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The Court awards Plaintiff two hours for the motion, one hour for the reply, and one hour to appear at the hearing at the reduced rate of $250 per hour, for a total attorney’s fees award of $1,000. Further, Plaintiff is awarded $60 for the motion filing fee as costs. Sanctions are imposed against Defendant’s attorney of record only. Defense counsel is ordered to pay sanctions to Plaintiff, by and through his attorney of record, in the total amount of $1,060, within twenty days. Plaintiff’s motion is granted as to Issues 1-6, and Issue 8 in terms of compelling Dixon’s responses. Plaintiff’s motion is also granted as to the production of documents request, 10-13 and 15-18, included in Dixon’s deposition notice. Because all the specific contentions were addressed, the Court declines at this time to consider Plaintiff’s request for a protective order preventing defense counsel from making objections other than privilege or form or any protective order in terms of conduct. The parties must meet and confer to schedule the resumption of the deposition to be taken within 30 days. Plaintiff must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service). Moving party is ordered to give notice. Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿
Dated this 9th day of November 2023 | | | Judge of the Superior Court |
Case Number: 21STCV46725 Hearing Date: November 15, 2023 Dept: 32
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ISABEL SANCHEZ
ESPINOSA, et al.,
Plaintiffs,
v.
AMERICAN HONDA MOTOR
CO., INC.,
Defendant.
|
Case No.: 21STCV46725
Hearing Date: November 15, 2023
[TENTATIVE]
order RE:
plaintiff’s motion for reconsideration
|
|
|
|
BACKGROUND
On December 22, 2021, Plaintiffs
Isabel Sanchez Espinosa and Byri Diana Moran filed this lemon law action
against Defendant American Honda Motor Co., Inc., asserting causes of action
for breach of warranty under the Song-Beverly Act and fraudulent concealment.
On March 2, 2022, the Court granted Defendant’s
motion to compel arbitration. On October 12, 2023, Plaintiffs filed the instant
motion for reconsideration of the Court’s order in light of Ford Motor
Warranty Cases (2023) 89 Cal.App.5th 1324 (Ochoa). Defendant filed
its opposition on November 2, 2023. Plaintiff filed her reply on November 7,
2023.
LEGAL STANDARD
“When an application for an order has been
made to a judge, or to a court, and refused in whole or in part, or granted, or
granted conditionally, or on terms, any party affected by the order may, within
10 days after service upon the party of written notice of entry of the order
and based upon new or different facts, circumstances, or law, make application to
the same judge or court that made the order, to reconsider the matter and
modify, amend, or revoke the prior order. The party making the application shall
state by affidavit what application was made before, when and to what judge,
what order or decisions were made, and what new or different facts, circumstances,
or law are claimed to be shown.” (Code Civ. Proc., § 1008(a).) “If a court at
any time determines that there has been a change of law that warrants it to
reconsider a prior order it entered, it may do so on its own motion and enter a
different order.” (Id., subd. (c).)
DISCUSSION
Plaintiffs’ motion is untimely
because it was made more than ten days after the Court’s order granting arbitration.
Plaintiff also waited six months after the publication of Ochoa. Additionally,
Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 has not been
overturned. Ochoa and subsequent cases represent a split in authority,
and Ochoa is currently under review. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 456; Cal. Rules of Ct., Rule 8.1115.)
It would be inefficient to return a case that was compelled to arbitration over
1.5 years ago back to court. For these reasons, Plaintiffs’ motion for reconsideration
is denied, and the Court declines to reconsider its order sua sponte.
CONCLUSION
Plaintiffs’ motion for reconsideration
is DENIED.
Case Number: 21STCV47159 Hearing Date: November 13, 2023 Dept: 30 21STCV47159 Alvach vs. Bravo
AFTER REVIEW OF THE FILE, THE COURT MAKES THE FOLLOWING ORDER:
Department 30 of the Personal Injury Court has determined that the above entitled action is
complicated based upon the number of pretrial hearings and/or the complexity of the issues
presented.
At the direction of Department 1, this case is hereby transferred and reassigned to the following
Independent Calendar Court in the Central District, Judge Barbara A. Meiers presiding in
Department 12 of the Stanley Mosk Courthouse, for all purposes except trial. Department 1
hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to
that Independent Calendar Court.
On the Court's own motion, the Hearing on Motion for Leave to Amend Punitive Damages
scheduled for 11/13/2023, and Hearing on Motion - Other Evidentiary, Issue and Monetary
Sanctions scheduled for 11/13/2023 are vacated (subject to being reset, continued or vacated at
the direction of the receiving court).
Any pending motions or hearings, including trial or status conferences, will be reset, continued,
or vacated at the direction of the newly assigned Independent Calendar Court.
(NOTE: Counsel are to note that ALL HEARINGS currently scheduled in Department 30 of the
Spring Street Courthouse are to be considered off calendar, subject to being reset and notified by the receiving court. Counsel are to wait for notice from the receiving department Re: new
hearing dates).
Judicial Assistant is directed to give notice to Plaintiff, who upon receipt of this notice, is
ordered to give notice to all Parties of record.
Case Number: 21STCV47554 Hearing Date: November 13, 2023 Dept: 50 Superior Court of California County of Los Angeles Department 50 | WAVE INVESTMENT, LLC, Plaintiff, vs. SECURCAPITAL CORP., et al. Defendants. | Case No.: | 21STCV47554 | | Hearing Date: | November 13, 2023 | | Hearing Time: 2:00 p.m. TENTATIVE RULING RE: DEFENDANTS SECURCAPITAL CORP.’S AND STEPHEN J. RUSSELL’S MOTION FOR JUDGMENT ON THE PLEADINGS | Background Plaintiff Wave Investment, LLC (“Plaintiff”) filed this action on December 30, 2021 against Defendants SecurCapital Corp. (“SecurCapital”) and Stephen J. Russell (“Russell”) (jointly, “Defendants”). Plaintiff filed the operative Second Amended Complaint (“SAC”) on November 23, 2022, alleging causes of action for (1) breach of contract, (2) declaratory relief, (3) breach of partnership or joint venture agreement, (4) breach of fiduciary duty, (5) conversion, (6) fraudulent concealment, (7) fraudulent misrepresentation, (8) negligent misrepresentation, (9) unjust enrichment, (10) accounting, and (11) constructive trust. Defendants now move for judgment on the pleadings as to each of the causes of action of the SAC. Plaintiff opposes. Request for Judicial Notice The Court grants Defendants’ request for judicial notice filed in support of the motion. The Court denies Defendants’ request for judicial notice filed in support of the reply. The Court notes that “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿” (¿Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537¿.) Discussion A. Legal Standard A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by ¿Code of Civil Procedure section 438¿, the rules governing demurrers apply. (¿Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999¿.) A motion by a defendant can be made on the ground that the complaint (or any cause of action therein) “¿does not state facts sufficient to constitute a cause of action against that defendant.¿” (¿Code Civ. Proc., § 438, subd. (c)(1)(B)(ii)¿.) Pursuant to Code of Civil Procedure section 438, subdivision (d), “[t]he grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” ¿“¿To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.¿” (¿C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872¿.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (¿Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967¿.) A demurrer “¿does not admit contentions, deductions or conclusions of fact or law.¿” (¿Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713¿.) B. Allegations of the SAC In the SAC, Plaintiff alleges that in 2015, Carl Fairbank (“Fairbank”) founded Breakout Capital (“Breakout”), a small business lender that provides lending solutions to small businesses, along with loan collections and servicing. (SAC, ¶ 16.) In or around late 2018, Breakout began facing financial issues and began seeking purchasers or investors to stabilize its operations. (SAC, ¶ 17.) At Breakout’s request, from January through April 2019, Plaintiff communicated with a number of private investors, financial institutions, and companies to gauge interest in a potential investment in Breakout and/or an acquisition of Breakout. (SAC, ¶ 18.) In or around early April 2019, “Boyce” of Plaintiff met Russell, the CEO of SecurCapital. (SAC, ¶ 19.) Shortly after this meeting, Plaintiff/Boyce and SecurCapital/Russell entered into a written Non-Circumvention Agreement. (SAC, ¶ 20.) In the Non-Circumvention Agreement, Defendants agreed “not to undertake any transaction or a series of transactions of any kind with [Breakout] or to collect any fees in connection with [Breakout] without the express prior written agreement of [Wave], which agreement may be withheld in [Wave]’s sole discretion.” (SAC, ¶ 21.) Over the following weeks, Plaintiff, SecurCapital, and Breakout negotiated the outlines of an investment transaction whereby Plaintiff and SecurCapital, as co-investors, would invest approximately $3,000,000 as operating capital of a newly-formed company (“Newco”), which would purchase the assets of Breakout. (SAC, ¶ 24.) In late April and early May 2019, the parties’ negotiations culminated in multiple written agreements related to the contemplated transaction, including: (1) an April 26, 2019 term sheet between Plaintiff, SecurCapital, and Breakout (the “Term Sheet”); (2) an April 29, 2019 side letter agreement between Plaintiff and SecurCapital; and (3) a May 1, 2019 standstill agreement between Plaintiff, SecurCapital, Breakout, and Breakout Capital Holdings, Inc. (“BHI”). (SAC, ¶ 29.) The Term Sheet provided, among other things, that BHI would be formed as the contemplated NewCo. (SAC, ¶ 30.) Pursuant to the terms of the parties’ agreements, on or about May 1, 2019, Plaintiff wired $100,000 to SecurCapital to fund Plaintiff’s portion of the first tranche of the partnership’s investment in Breakout through BHI. (SAC, ¶ 33.) On or about June 29, 2019, Fairbank (Breakout’s founder) sent an email to a group of people, including others on the Breakout team and Russell, without copying Boyce or any other representative of Plaintiff, stating that he was ready to sign the deal, and that he was “happy to wait till the 8th” as he had discussed with Russell. (SAC, ¶ 37.) When Boyce received Fairbank’s email later that day, he emailed Russell expressing concern that the deal would “close without his consent” on July 8 as suggested in Fairbank’s email, and further noting that Fairbank had not copied him on the June 29 email. (SAC, ¶ 37.) Russell responded to Boyce by denying that he had a “secret deal with Carl to close on the 8th.” (SAC, ¶ 38.) Plaintiff alleges that on or about July 8, 2019, SecurCapital unilaterally closed a deal to purchase the assets of Breakout through BHI. (SAC, ¶ 40.) SecurCapital did so without the involvement or prior consent of Plaintiff, and Plaintiff did not receive notice of the transaction until after it had closed. (SAC, ¶ 40.) SecurCapital never returned the $100,000 previously paid by Plaintiff for the first tranche of its investment in Breakout and BHI. (SAC, ¶ 41.) Plaintiff is informed and believes that SecurCapital instead used that $100,000 to complete its own transaction with Breakout and BHI. (SAC, ¶ 41.) C. Untimeliness Arguments As an initial matter, Plaintiff asserts that the motion should be denied as untimely. Plaintiff notes that on November 4, 2022, the Court issued a Case Management Conference Order in this matter setting trial for November 1, 2023. Plaintiff notes that pursuant to Code of Civil Procedure section 438, subdivision (e), “[n]o motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” Plaintiff asserts that “[h]ere, the deadline to file a motion for judgment on the pleadings expired 30 days prior to the initial trial date of November 1, 2023, October 2, 2023. Defendants filed this Motion on October 19, 2023 – over two weeks late.” (Opp’n at p. 11:13-15.) In the reply, Defendants assert that “[w]hile it is true that a motion for judgment on the pleadings brought under Code of Civil Procedure § 438(e) has statutory deadlines, a non-statutory motion for judgment on the pleadings can be made at any time, including during trial.” (Reply at p. 2:3-6.) Defendants’ notice of motion indicates that “[t]his motion is brought pursuant to Code of Civil Procedure § 438 and in the alternative, pursuant to Defendants’ common law right to seek judgment on the pleadings…” (Notice of Mot. at p. 2:7-8.) Defendants cite to Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1055, where the Court of Appeal noted that “[t]he common law ground for a motion for judgment on the pleadings is identical to the statutory ground: The complaint does not state facts sufficient to constitute a cause of action.” (Internal quotations omitted.) Defendants also cite to Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650, where the Court of Appeal noted that “[a] motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself. Such motion may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense.” (Internal quotations and citations omitted.) Based on the foregoing, the Court does not find that that the motion should be denied as untimely. D. Statute of Limitations In the motion, Defendants assert that certain causes of action of the SAC are predicated on allegations of a partnership/joint venture agreement, specifically, the causes of action for breach of partnership/joint venture agreement, breach of fiduciary duty, declaratory relief, conversion, constructive trust, and accounting. Defendants refer to these causes of action collectively as the “Partnership Claims.” Defendants asserts that a “two-year statute of limitations bars all claims predicated on the alleged partnership/joint venture agreement and the claim for negligent misrepresentation.” (Mot. at p. 9:18-19.) In the third cause of action for breach of partnership or joint venture agreement, Plaintiff alleges, inter alia, that “[p]ursuant to the parties’ statements, written agreements, and actions between April 2019 and July 2019, Wave and SecurCapital intended to and did form a partnership or joint venture for the purpose of engaging in an investment or acquisition transaction with Breakout and BHI, as well as related transactions in the logistics industry.” (SAC, ¶ 56.) Plaintiff alleges in this cause of action that “SecurCapital breached the partnership or joint venture agreement by repudiating the existence of the partnership or joint venture, denying Wave’s interest in the partnership, and using the money Wave contributed for its own acquisition of the assets of Breakout.” (SAC, ¶ 58.) In the second cause of action for declaratory relief, Plaintiff alleges, inter alia, that “[a]n actual controversy has arisen and now exists between Wave and SecurCapital. Pursuant to the parties’ statements, written agreements, and actions between April 2019 and July 2019, Wave and SecurCapital intended to and did form a partnership, or in the alternative, enter into a joint venture, for the purpose of engaging in an investment or acquisition transaction with Breakout, as well as related transactions in the logistics industry. SecurCapital subsequently has – through its statements and actions – denied the existence of a partnership or a joint venture with Wave, including by unilaterally treating Wave’s $100,000 investment in the partnership or joint venture business as an investment in SecurCapital itself.” (SAC, ¶ 52.) Plaintiff alleges that “[a] judicial declaration as to the existence of a partnership, or in the alternative, a joint venture between Wave and SecurCapital is necessary and appropriate at this time…” (SAC, ¶ 53.) In the fourth cause of action for breach of fiduciary duty, Plaintiff alleges, inter alia, that “[a]s a result of the partnership or joint venture between Wave and SecurCapital, as well as SecurCapital’s leading role in negotiating the proposed transaction with Breakout and handling the funds to be invested by the partnership or joint venture in Breakout and BHI, SecurCapital owed fiduciary duties of care, loyalty, and good faith to Wave.” (SAC, ¶ 62.) Plaintiff alleges that Defendants breached their fiduciary duties to Plaintiff. (SAC, ¶ 64.) In the fifth cause of action for conversion, Plaintiff alleges, inter alia, that “[o]n or about July 8, 2019, SecurCapital unilaterally closed a transaction with Breakout instead of closing that transaction on behalf of the partnership or joint venture, thereby converting Wave’s $100,000 partnership or joint venture contribution to SecurCapital’s own private use.” (SAC, ¶ 70.) In the tenth cause of action for accounting, Plaintiff alleges, inter alia, that “[i]nstead of investing the $100,000 in Breakout on behalf of its partnership or joint venture with Wave as the parties have agreed, SecurCapital diverted the fund and invested it in Breakout for its own benefit.” (SAC, ¶ 109.) In the eleventh cause of action for constructive trust, Plaintiff alleges, inter alia, that “[o]n or about July 8, 2019, SecurCapital unilaterally closed a transaction with Breakout instead of closing that transaction on behalf of the partnership or joint venture, thereby converting Wave’s $100,000 partnership or joint venture contribution to SecurCapital’s own private use.” (SAC, ¶ 118.) Defendants assert that the alleged partnership/joint venture agreement is predicated on an implied-in-fact contract. Defendants note that “[Code of Civil Procedure] Section 339, subdivision 1…provides a two-year limitations period for ‘[a]n action upon a contract, obligation or liability not founded upon an instrument of writing ….’ This provision applies not only to actions for breach of oral or implied contracts and to quasi-contractual actions, but also to certain tort actions that do not come within the scope of other statutes of limitations.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1206.) Defendants cite to paragraph 40 of the SAC, which alleges that “contrary to Russell’s denials, on or about July 8, 2019, SecurCapital unilaterally closed a deal to purchase the assets of Breakout through BHI. SecurCapital did so without the involvement or prior consent of Wave…” (SAC, ¶ 40, emphasis added.) As to the Partnership Claims, Defendants assert that the statute limitations expired two years after July 8, 2019, on July 8, 2021. Defendants note that Plaintiff filed the instant action on December 31, 2021, more than two years after July 8, 2019. Defendants assert that the Partnership Claims are accordingly time-barred. As to the negligent misrepresentation cause of action, Defendants cite to Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528, 1529, where the Court of Appeal noted that “we hold that in an action against accountants for negligent misrepresentation, the statute of limitations is two years.” Defendants note that in the eighth cause of action for negligent misrepresentation, Plaintiff alleges, inter alia, that “[o]n July 8, 2019, only about a week after representing to Wave that there was no secret deal, Defendants and Breakout closed a deal without Wave. Defendants made no attempts to correct or alert Wave of their misrepresentation before closing the deal on July 8, 2019.” (SAC, ¶ 97.) Defendants assert that “Plaintiff filed its original complaint more than two years later…Therefore, the Negligent Misrepresentation claim is barred by the statute of limitations.” (Mot. at p. 13:8-9.) In the opposition, Plaintiff argues that “Defendants ignore the significant evidence of concealment and fraud uncovered in discovery in this matter, as further set forth in [Plaintiff’s] Opposition to Defendants’ Motion to Bifurcate or Sever…[Plaintiff] could readily add allegations of equitable tolling…” (Opp’n at p. 11:21-24.) In addition, on November 1, 2023, Plaintiff filed a “Notice of Supplemental Authority Regarding Defendants’ Motion for Judgment on the Pleadings.” Defendants’ reply in support of the instant motion was filed thereafter, on November 3, 2023. In the notice of supplemental authority, Plaintiff notes that pursuant to California Rules of Court, Emergency rule 9, subdivision (a), “[n]otwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” Plaintiff asserts that “[t]he Motion argues that the statute of limitations commenced on July 8, 2019, and thus more than two years had elapsed when this case was filed on December 30, 2021. Because the statute of limitations was tolled by 180 days by the Emergency Rules Related to COVID-19, the two-year limitations period did not actually elapse until 180 days after July 8, 2021 – i.e., January 4, 2022. Thus, the December 30, 2021 filing of the Complaint in this action was within the two year limitations period.” (Plaintiff’s Notice of Supplemental Authority at p. 2:12-17.) The Court notes that there appears to be 178 days between April 6, 2020, until October 1, 2020. As set forth above, “the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” (Cal. Rules of Court, Emergency rule 9, subd (a).) In any event, 178 days after July 8, 2021 is January 2, 2022. The Court notes that in the reply, Defendants do not address Plaintiff’s arguments concerning the application of California Rules of Court, Emergency rule 9, subdivision (a) here. In light of California Rules of Court, Emergency rule 9, subdivision (a), the Court does not find that Defendants have demonstrated that the Partnership Claims and the cause of action for negligent misrepresentation are untimely. Thus, the Court denies the motion for judgment on the pleadings filed on statute of limitations grounds. E. Illegality Next, Defendants assert that “[t]he doctrine of illegality bars [Plaintiff] from enforcing the Non-Circumvention Agreement [“NCA”] or the purported partnership/joint venture agreement.” (Mot. at p. 13:13-14.) Defendants argue that “[a]s all of Plaintiff’s claims are predicated on the NCA or a partnership, which are void, the entire action is subject to dismissal.” (Mot. at p. 13:22-23.) First, Defendants argue that Plaintiff violated that California Business and Professions Code by acting as an unlicensed business opportunity broker. Defendants cite to Salazar v. Interland, Inc. (2007) 152 Cal.App.4th 1031, 1036, where the Court of Appeal noted as follows: “In 1965, the Legislature merged the statute requiring a person acting as a business opportunity broker to be licensed with the section requiring a real estate broker to be licensed. (See All Points, supra, 211 Cal. App. 3d at p. 728.) As a result, the definition of ‘real estate broker’ in section 10131, subdivision (a) was expanded to include ‘a person who, for a compensation or in expectation of a compensation … does or negotiates to do one or more of the following acts for another or others:…(a) Sells or offers to sell, buys or offers to buy, solicits prospective sellers or purchasers of, solicits or obtains listings of, or negotiates the purchase, sale or exchange of … a business opportunity.’ Section 10130 requires a real estate broker to have a license. Sections 10130 and 10136 prohibit an unlicensed real estate broker from collecting compensation earned in the capacity of a broker. (All Points, supra, at p. 729.) To be licensed, a broker must meet training and experience qualifications. (§§ 10150.6, 10153.) ‘The purpose of these licensing requirements is to protect the public from incompetent or untrustworthy practitioners. [Citation.]’ (All Points, supra, at p. 729.).” Defendants assert that here, “[n]either [Plaintiff] nor Boyce had a broker’s license. Nevertheless, in connection with the NCA and purported partnership agreement, [Plaintiff] endeavored to get SecurCapital to invest in a business opportunity, whereby BHI is created to hold Breakout’s assets, Breakout transfers its assets to BHI, and [Plaintiff] and SecurCapital purchase a large interest in BHI.” (Mot. at p. 15:14-18.) Defendants contend that “[b]ecause [Plaintiff] functioned as an unlicensed broker in connection with the Non-Circumvention Agreement and purported partnership agreement, it cannot enforce them.” (Mot. at p. 16:1-2.) Defendants further argue that Plaintiff violated the California Corporations Code and Federal Securities laws by negotiating the sale of securities without a license. Defendants cite to Corporations Code section 25210, which provides, inter alia, that “[u]nless exempted under the provisions of Chapter 1 (commencing with Section 25200) of this part, no broker–dealer shall effect any transaction in, or induce or attempt to induce the purchase or sale of, any security in this state unless the broker–dealer has first applied for and secured from the commissioner a certificate, then in effect, authorizing that person to act in that capacity.” (Corp. Code, § 25210, subd. (a).) Pursuant to Corporations Code section 25004, subdivision (a), “Broker-dealer” means “any person engaged in the business of effecting transactions in securities in this state for the account of others or for that person’s own account. ‘Broker-dealer’ also includes a person engaged in the regular business of issuing or guaranteeing options with regard to securities not of that person’s own issue.” Defendants argue that “[h]ere, [Plaintiff] participated in negotiations that involve the purchase or sale of securities in BHI. Specifically, in connection with the Non-Circumvention Agreement and the purported partnership agreement, [Planitiff] solicited SecurCapital to purchase securities in BHI and SecurCapital did, in fact, purchase securities in BHI.” (Mot. at p. 16:24-27, citing SAC, ¶ 30.) In support of the argument that Plaintiff violated Federal Securities Laws, Defendants cite to 15 U.S.C. section 78o, subdivision (a)(1), which provides that “[i]t shall be unlawful for any broker or dealer…to make use of the mails or any means or instrumentality of interstate commerce to effect any transactions in, or to induce or attempt to induce the purchase or sale of, any security (other than an exempted security or commercial paper, bankers’ acceptances, or commercial bills) unless such broker or dealer is registered in accordance with subsection (b) of this section.” Defendants note that “[t]he term ‘broker’ means any person engaged in the business of effecting transactions in securities for the account of others.” (15 U.S.C. § 78c, subd. (a)(4)(A).) Defendants argue that here, through the Non-Circumvention Agreement and the purported partnership agreement, Plaintiff “attempt[ed] to induce the purchase or sale of, any security…” (15 U.S.C. § 78o, subd. (a).) In the opposition, Plaintiff asserts that Defendants’ arguments pertaining to illegality present factual issues that cannot be resolved on the pleadings. Plaintiff asserts that “[a]s a threshold issue, the pleadings do not include any allegations as to whether or not [Plaintiff] possesses a broker-dealer license, or a business opportunity broker license. As such, the pleadings do not provide any basis to grant the relief requested by Defendants.” (Opp’n at p. 14:17-19.) The Court agrees. As discussed above, Defendants move for judgment on the pleadings on the grounds that Plaintiff purportedly acted as an “unlicensed business opportunity broker” and that Plaintiff purportedly sold securities without a license. (Mot. at pp. 13:25; 16:11; 17:2.) As noted above, “[t]he common law ground for a motion for judgment on the pleadings is identical to the statutory ground: The complaint does not state facts sufficient to constitute a cause of action.” (Korchemny v. Piterman, supra, 68 Cal.App.5th at p. 1055 [internal quotations omitted].) Plaintiff also asserts that determining whether a party is a broker-dealer under federal law is a question of fact. Plaintiff cites to United States SEC v. Hui Feng (9th Cir. 2019) 935 F.3d 721, 731, where the Ninth Circuit Court of Appeals noted that “Section 15(a)(1) of the Exchange Act makes it unlawful for a ‘broker . . . to induce or attempt to induce the purchase or sale of[] any security’ without registering with the SEC. 15 U.S.C. § 78o(a)(1). The statute defines ‘broker’ as ‘any person engaged in the business of effecting transactions in securities for the account of others.’ Id. § 78c(a)(4)(A). The district court concluded that the uncontroverted evidence establishes that Feng was acting as a broker and violated the registration requirement. We agree.” The Feng Court noted that “[i]n making its broker determination, the district court utilized the totality-of-the-circumstances approach that other courts have used under Section 15(a)(1), relying on a set of factors first set forth in SEC v. Hansen, No. 83 Civ. 3692, 1984 U.S. Dist. LEXIS 17835, 1984 WL 2413, at *10 (S.D.N.Y. Apr. 6, 1984)…Courts emphasize that the so-called Hansen factors are ‘nonexclusive.’…In performing its inquiry, the district court considered whether Feng: (1) is an employee of the issuer of the security; (2) received transaction-based income such as commissions rather than a salary; (3) sells or sold securities from other issuers; (4) was involved in negotiations between issuers and investors; (5) advertis[ed] for clients; (6) gave advice or made valuations regarding the investment; (7) was an active finder of investors; and (8) regularly participates in securities transactions.” (United States SEC v. Hui Feng, supra, 935 F.3d 721 at pp. 731-732.) Plaintiff asserts that “[n]aturally, determination of these factors requires a factual record and cannot be resolved on the pleadings.” (Opp’n at p. 18:7-8.) The Court agrees. Based on the foregoing, the Court denies the motion for judgment on the pleadings on the grounds of illegality. F. First Cause of Action as to Russell Defendants also assert that “[j]udgment on the pleadings should be entered in favor of individual defendant Stephen J. Russell as to the First Cause of Action for breach of the Non-Circumvention Agreement.” (Mot. at p. 18:18-19.) Defendants assert that “Plaintiff’s allegations throughout the SAC make clear that its claim for breach of the Non-Circumvention Agreement is based on SecurCapital’s actions, not Russell’s.” (Mot. at p. 18:20-21.) Defendants note that the SAC alleges, inter alia, that “[Plaintiff], SecurCapital, and Breakout negotiated the outlines of an investment transaction whereby [Plaintiff] and SecurCapital, as co-investors, would invest approximately $3,000,000 as operating capital of a newly-formed company…which would purchase the assets of Breakout.” (SAC, ¶ 24.) Plaintiff notes Heading “E” on page 9 of the SAC alleges “SecurCapital Cuts Wave Out of the Deal,” and that paragraph 40 of the SAC alleges that “SecurCapital unilaterally closed a deal to purchase the assets of Breakout through BHI.” As noted by Defendants in the reply, Plaintiff does not appear to respond to Defendants’ argument that the first cause of action for breach of contract is based on SecurCapital’s actions, not Russell’s. Defendants also assert that Russell is not a party to the Non-Circumvention Agreement. Defendants state in the instant motion that they “previously demurred on this issue. However, the demurrer addressed only the preamble of the Non-Circumvention Agreement and not the legal import of the signature block, which is determinative.” (Mot. at p. 19, fn. 3.) The Court notes that on November 4, 2022, the Court issued an Order on Defendants’ demurrer to the FAC. The Court’s November 4, 2022 Order provides, inter alia, as follows: “Defendants assert that the first cause of action fails to adequately plead the third prong of a breach of contract claim (defendant’s breach) as to Russell. Specifically, Defendants assert that the FAC does not allege that Russell was a party to the NCA in his individual capacity. However, as Plaintiff notes, the FAC alleges that ‘Wave/Boyce and SecurCapital/Russell entered into a written Non-Circumvention Agreement.’ (FAC, ¶ 20.) In addition, Plaintiff attaches a copy of the NCA to the FAC, which indicates that it is entered into as of ‘this 3rd day of March, 2019, and is by and between Stephen J. Russell, CEO SecurCapital including officers, directors, shareholders, agents, employees, consultants, attorneys and affiliates (all known as Presentee) and Mark Boyce, Wave Investments (all known as Presentor).’ (FAC, ¶ 20, Ex. A.) The Court finds that Plaintiff has adequately alleged that Russell is a party to the NCA. Based on the foregoing, the Court overrules the demurrer to the first cause of action.” (November 4, 2022 Order at p. 4:11-21.) In the instant motion, Defendants note that the Non-Circumvention Agreement (“NCA”) attached to the SAC contains a signature block for “Presentee” that lists “By” before the signature, and “Stephen, J. Russell, CEO SecurCapital Corp” below the signature. (SAC, ¶ 20, Ex A.) Defendants cite to Carlesimo v. Schwebel (1948) 87 Cal.App.2d 482, 487, where the Court of Appeal noted that “[i]n the present case, had Schwebel appended the preposition ‘by’ immediately before his signature, there would be no doubt at all that the contract would have disclosed, on its face, not only that appellant was dealing with the corporation, but that Schwebel was signing as an agent and not as a principal. Where that appears on the face of the contract the corporation is liable and the agent is not. But, says appellant, the word ‘by’ does not appear in this signature, and therefore Schwebel must be conclusively presumed to have signed in his individual capacity, even though the evidence is susceptible of the interpretation that Schwebel signed as an agent.” (Internal citations omitted.) Defendants assert that here, “Russell’s signature appears on the contract next to ‘By.’ His name is written under the signature line with ‘CEO,’ and below his signature is the name and address of the corporation. Clearly, Russell signed on behalf of the corporation, and, thus, he is not personally liable for breach of contract.” (Mot. at p. 20:6-9.) But as already discussed in the Court’s November 4, 2022 Order, the NCA states that it “is entered into as of this 3rd day of March, 2019, and is by and between Stephen J. Russell, CEO SecurCapital including officers, directors, shareholders, agents, employees, consultants, attorneys and affiliates (all known as Presentee) and Mark Boyce, Wave Investments (all known as Presentor).” (FAC, ¶ 20, Ex. A, Emphasis added.) As noted by Plaintiff, “Defendants cite cases relating to the signature block, but no cases where the preamble specifically names the signatory as a party to the Agreement.” (Opp’n at p. 20:4-5, emphasis omitted.) Plaintiff also asserts that Defendants’ argument as to the first cause of action is an untimely and improper motion for reconsideration of the Court’s demurrer ruling. Pursuant to Code of Civil Procedure section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” As noted by Plaintiff, the instant motion was filed almost a year after the Court’s November 4, 2022 Order. However, in the reply, Defendants cite to Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, superseded by statute on other grounds as stated in Hart v. TWC Prod. & Tech. LLC (N.D.Cal. 2021) 526 F.Supp.3d 592. The Ion Court noted that “[a] motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself…The motion may be made even when a general demurrer has been previously overruled. The interests of all parties are advanced by avoiding a trial and reversal for defect in pleadings. The objecting party is acting properly in raising the point at his first opportunity, by general demurrer. If the demurrer is erroneously overruled, he is acting properly in raising the point again, at his next opportunity. If the trial judge made the former ruling himself, he is not bound by it.” (Id. at p. 877.) Defendants note that the Court’s November 4, 2022 Order does not address Defendants’ specific arguments in the instant motion concerning the signature block of the NCA. In addition, the Court’s November 4, 2022 Order does not address Defendants’ argument in the instant motion that Plaintiff’s “claim for breach of the Non-Circumvention Agreement is based on SecurCapital’s actions, not Russell’s.” (Mot. at p. 18:20-21.) As set forth above, Plaintiff does not dispute this point. Based on the foregoing, the Court grants the motion for judgment on the pleadings as to the first cause of action, solely as to Russell. G. Plaintiff’s Request for an Order to Show Cause Lastly, Plaintiff argues in its opposition to the instant motion that it “seeks an order to show cause as to why sanctions should not be imposed” for certain asserted misconduct. (See Opp’n at p. 10:7-26.) Plaintiff argues that such misconduct includes, inter alia, that the instant motion is untimely, and that the motion is an improper motion for reconsideration of the Court’s demurrer ruling. As set forth above, the Court does not find that the instant motion is untimely. In addition, Plaintiff’s motion for reconsideration argument is discussed above. Plaintiff also argues that the motion cites unpublished authority in violation of California Rules of Court, rule 8.1115, subdivision (a). In the reply, Defendants state that “[a]fter Defendants had filed both its Motion for Bifurcation and the instant Motion for Judgment on the Pleadings, Plaintiff raised an objection to Defendants’ reference to an unpublished case in those motions. Having reviewed CRC 8.1115, Defendants hereby agree to withdraw and/or strike such reference in their Motion for Judgment on the Pleadings at 14:22-15:13. (Reply at p. 2, fn. 1.) Plaintiff’s other arguments regarding asserted misconduct concern matters that are outside the scope of the instant motion for judgment on the pleadings. Thus, the Court does not find that Plaintiff’s opposition to the instant motion is the appropriate vehicle by which to request an order to show cause as to why sanctions should not be imposed for such purported misconduct. Based on the foregoing, the Court declines to set an order to show cause as to why sanctions should not be imposed. Conclusion Based on the foregoing, the Court grants Defendants’ motion for judgment on the pleadings in part and denies the motion in part. The Court grants Defendants’ motion as to the first cause of action, solely as to Russell, with leave to amend. Defendants’ motion is otherwise denied. The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this order. Defendants are ordered to give notice of this order.¿ DATED: November 13, 2023 ________________________________ Hon. Rolf M. Treu Judge, Los Angeles Superior Court
Superior Court of CaliforniaCounty of Los AngelesDepartment 50
WAVE INVESTMENT, LLC,
Plaintiff,
vs.
SECURCAPITAL CORP., et
al.
Defendants.
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Case No.:
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21STCV47554
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Hearing Date:
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November 13, 2023
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Hearing Time:
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10:00 a.m.
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TENTATIVE RULING
RE:
VERIFIED
APPLICATION FOR PRO HAC VICE ADMISSION OF DAVID G. TRIPP
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Plaintiff Wave Investment, LLC (“Plaintiff”) applies for an order
permitting attorney David G. Tripp to appear pro hac vice on Plaintiff’s behalf
in the instant action. The application
is submitted with a verified application of David G. Tripp which is
compliance with the requirements set forth in California Rules of Court,
rule 9.40, subdivision (d). In addition, Plaintiff has corrected the defects
identified in the Court’s August 17, 2023 Order on Plaintiff’s prior
application for pro hac vice admission. Accordingly, the
unopposed application is granted.¿¿¿ Plaintiff is ordered to provide notice of
this ruling. DATED: November 13, 2023 ________________________________ Hon. Rolf M.
Treu
Judge, Los
Angeles Superior Court
Case Number: 21STLC08202 Hearing Date: November 13, 2023 Dept: 26
State Farm v. Martinez, et al.
MOTION TO
VACATE DISMISSAL
(CCP § 473(b))
TENTATIVE RULING:
Plaintiff State Farm Mutual
Automobile Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE
DISMISSAL ENTERED ON SEPTEMBER 13, 2023 IS HEREBY VACATED.
ORDER TO SHOW CAUSE RE: DISMISSAL
IS SET FOR JANUARY 22, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET
COURTHOUSE.
ANALYSIS:
On November 16, 2021, Plaintiff
State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant
action for automobile subrogation against Defendant Feliciano Jose Martinez (“Defendant”).
Defendant filed an answer on February 7, 2022. The case came for trial on May
16, 2023, at which time the parties appeared and represented that the case had been
settled. (Minute Order, 05/16/23.) The Court set an Order to Show Cause Re:
Dismissal for September 13, 2023. (Minute Order, 05/16/23.) When Plaintiff
failed to appear at the Order to Show Cause on September 13, 2023, the Court
dismissed the action without prejudice. (Minute Order, 09/13/23.)
Plaintiff filed the instant Motion to Vacate Dismissal on
September 29, 2023. No opposition to the Motion has been filed to date.
Discussion
The motion is brought
pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made
no more than six months after entry of the order from which relief is sought
and must be accompanied by an affidavit of fault attesting to the moving
party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473,
subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130,
143.) When based on attorney fault with respect to entry of default, default
judgment, or involuntary dismissal, a timely request for relief must be
granted. (Code Civ. Proc., § 473, subd. (b).) When brought pursuant to the
provision for discretionary relief based on party fault, the request must have
been filed within a reasonable amount of time.
The motion was timely filed within
six months of dismissal of the action and is supported by an affidavit of
attorney fault. Plaintiff’s counsel declares that they mis-calendared the Order
to Show Cause. (Motion, Pleasant Decl., ¶¶5-7.) Therefore, the case must be
reinstated under Code of Civil Procedure section 473, subdivision (b).
Conclusion
Plaintiff State Farm Mutual
Automobile Insurance Company’s Motion to Vacate Dismissal is GRANTED. THE
DISMISSAL ENTERED ON SEPTEMBER 13, 2023 IS HEREBY VACATED.
ORDER TO SHOW CAUSE RE: DISMISSAL
IS SET FOR JANUARY 22, 2024 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET
COURTHOUSE.
Moving party to give
notice.
Case Number: 21VECV00527 Hearing Date: November 14, 2023 Dept: T 21VECV00527 TURQUOISE
MARTIN vs APARTMENT MANAGEMENT
[TENTATIVE] ORDER: Defendants Apartment Management Consultants, LLC,
and Sandra McMurray’s Motion to Compel Arbitration and Dismiss the
Representative PAGA Claim is GRANTED in Part and DENIED in Part.
The request to compel arbitration
is GRANTED only as to Plaintiff Turquoise Martin’s individual PAGA claims. The individual PAGA claims are ordered STAYED
pending arbitration. The request to
dismiss or stay the non-individual PAGA claims is DENIED.
Defendants Apartment Management
Consultants, LLC and Sandra McMurray’s Request for Judicial Notice is GRANTED
but not as to any hearsay or facts in dispute.
Plaintiff Turquoise Martin’s
Request for Judicial Notice is GRANTED but only as to the existence of Exhibits
A-D and not as to any hearsay or facts in dispute; and GRANTED as to Exhibit E.
Introduction
Defendants Apartment Management
Consultants, LLC (AMC) and Sandra McMurray (McMurray) (collectively,
Defendants) moved to compel arbitration of Plaintiff Turquoise Martin’s
(Plaintiff) individual Private Attorney General Act (PAGA) claims and moved to
dismiss Plaintiff’s non-individual PAGA claims in the Complaint. The motion, opposition, and reply were filed
prior to the July 17, 2023 publication of Adolph v. Uber Technologies, Inc.
(2023) 14 Cal.5th 1104 (Adolph). After
Adolph’s publication, the instant action’s stay was lifted and the parties
filed supplemental briefs to address the Adolph case. An additional issue raised in the
supplemental briefs is whether Plaintiff’s non-individual PAGA claims should be
stayed or not.
Discussion
Trial courts must decide first
whether an enforceable arbitration agreement exists between the parties, and
then determine the second gateway issue whether the claims are covered within
the scope of the agreement. (Omar v.
Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) AMC submitted an arbitration agreement
entered by AMC and Plaintiff and signed by Plaintiff. (Maria Carrillo (Carrillo) Decl. par., 3,
Exh. 1.) AMC sufficiently presented
evidence as to the existence of the arbitration agreement. McMurray argued that she is covered under the
AMC-Plaintiff arbitration agreement because of the alleged agency relationship
between AMC and McMurray. (Compl. par.
4.) Plaintiff did not dispute this
issue. McMurray also sufficiently argued
her rights to enforce the arbitration agreement. Plaintiff’s claims for Labor Code
violations/PAGA claims are shown to be covered under the arbitration agreement
because the scope of the arbitration agreement included “any controversy or
claim arising out of or relating to Employee’s [Plaintiff’s] employment with
AMC” and further included “all claims under the California Labor Code,
including, but not limited to claims for overtime, unpaid wages, and claims
involving meal and rest breaks.”
(Carrillo Decl., Exh. 1, Introductory paragraph and par. 1.) Because Defendants submitted the existence of
an arbitration agreement and showed that Plaintiff’s claims are covered under
the arbitration agreement, Defendants met their initial burden on the
motion. The burden then shifts to
Plaintiff to dispute the arbitration agreement.
Plaintiff argued that the
arbitration agreement is unconscionable.
Plaintiff asserted that she did not have a meaningful opportunity to
negotiate or reject the arbitration agreement and/or the agreement is a contract
of adhesion because: (1) Defendants made her sign the agreement on the same day
Plaintiff started her employment; (2) there was no review of the arbitration
agreement with Defendants; (3) Plaintiff
did not understand the arbitration agreement; and (4) Plaintiff was not
provided a copy of the arbitration rules or a link to the rules. However, all of these alleged facts are not
supported by any admissible evidence.
Plaintiff did not submit her own declaration to attest to these alleged
facts. Without any admissible evidence
to support these contentions, there are insufficient facts presented to meet
Plaintiff’s burden to dispute the arbitration agreement.
Even if Plaintiff would have
submitted her declaration to attest to the above facts, Plaintiff’s claim of
not understanding the arbitration agreement is disputed by the express terms of
the arbitration agreement where Plaintiff expressly agreed that she read and
understood the terms of the agreement.
The term is placed above Plaintiff’s signature line, is bolded, and is
capitalized. Despite Plaintiff’s
argument that she was not given a copy of the arbitration rules or provided a
link to the arbitration rules, the express terms of the arbitration agreement
state that Plaintiff was directed to www.adr.org/Rules in order to obtain the
rules of the American Arbitration Association.
(Carrillo Decl., Exh. 1, Introductory paragraph.) The remaining arguments to show
unconscionability are that the contract is a contract of adhesion and the
differing signature date of Defendants’ HR Manager, Maria Carrillo. However, courts do not recognize that
“adhesive” arbitration agreement establish a high degree of procedural
unconscionability. (Baltazar v. Forever
21 Inc. (2016) 62 Cal.4th 1237, 1246.)
At most, these facts would show some procedural unconscionability but
are insufficient to show any substantive unconscionability. Both components of
unconscionability need not be present in the same degree and are determined on
a sliding scale. (Armendariz v. Found Health Psychcare Servs., Inc. (2000) 24
Cal.4th 83, 114; Pinnacle Museum Tower Assn. v. Pinnacle Market Dev. (US), LLC
(2012) 55 Cal.4th 223, 247.) Because
Plaintiff only presented some procedural unconscionability, Plaintiff was
required to show a greater amount of substantive unconscionability. Because there was no showing of substantive
unconscionability, Plaintiff failed to meet her burden on the defense of
unconscionability and the argument is unpersuasive to deny the motion to compel
arbitration of Plaintiff’s individual PAGA claims.
The parties placed into issue a
pre-dispute non-individual PAGA waiver found within the arbitration agreement
(Carrillo Decl., Exh. 1, par. 3.) A
pre-dispute categorical waiver of the right to bring a PAGA action is
unenforceable. (Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382–383.) The Court does not find that the pre-dispute
non-individual PAGA waiver to be enforceable and severs the provision in
accordance with the terms of the arbitration agreement.
The motion to compel arbitration
and stay the action solely as to Plaintiff’s individual PAGA claims is
GRANTED.
As to Plaintiff’s non-individual
PAGA claims, the Court sought additional briefing from the parties to address Adolph
v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 (Adolph). Plaintiff requested the non-individual PAGA
claims not be stayed and Defendants requested the claims to be stayed. Standing to continue to prosecute the
non-individual PAGA claims is not disputed.
Defendant argued that a stay of the non-individual PAGA claims is
required because of the overlapping issues as to whether Plaintiff is an
aggrieved employee. The argument does
not take into consideration of the possibility of the arbitration process being
slow or settlement prior to an arbitration award being issued. The event of a settlement of the individual
PAGA claims would result in the Court wasting time and not obtaining any
determination as to “aggrieved employee” status. The staying of the non-individual PAGA claims
also goes against the reasons for the Legislature's enactment of PAGA –
widespread Labor Code violations and significant underenforcement. (Adolph, supra, 14 Cal.5th at p. 1116.) In order to fulfill the policy reasons in
enacting PAGA, the Court finds that a stay of the non-individual PAGA claims to
be unwarranted.
The request to dismiss or stay
the non-individual PAGA claims is DENIED.
IT IS SO ORDERED, CLERK OF THE
COURT TO GIVE NOTICE.
Case Number: 22AHCV00048 Hearing Date: November 13, 2023 Dept: 3 SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST
DISTRICT
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BALDWIN ARCADIA CENTER, LP,
Plaintiff(s),
vs.
TONG
TAK HOUSE SEAFOOD RESTAURANT,
Defendant(s).
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CASE NO.: 22AHCV00048
[TENTATIVE]
ORDER RE: MOTION TO ADD UNNAMED PARTY AS JUDGMENT DEBTOR
Dept.
3
8:30
a.m.
November
13, 2023
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I.
INTRODUCTION
On January 31, 2022, plaintiff Baldwin
Arcadia Center, LP (“Plaintiff”) filed this unlawful detainer action against
defendant Tong Tak House Seafood Restaurant (“Defendant”). On May 26, 2022,
Plaintiff filed a notice of settlement with a request that the Court dismiss
the action while retaining jurisdiction to enforce the settlement under Code of
Civil Procedure section 664.6.
On June 6, 2023, Plaintiff filed an ex
parte application to enforce the terms of the stipulated judgment. On June 12,
2023, the Court entered judgment in favor of Plaintiff and against Defendant
for possession of the premises located at 1271 S Baldwin Ave. Arcadia CA 91007,
forfeiture of the lease or rental agreement, and for money damages in the sum
of $810,435.63.
On October 17, 2023, Plaintiff filed
this motion to amend the judgment to include Lily Feng (“Feng”) pursuant to
Code of Civil Procedure § 187.
II.
LEGAL
STANDARD
Code
of Civil Procedure section 187 grants every court the power and authority to
carry its jurisdiction into effect. (NEC Electronics Inc. v. Hurt (1989)
208 Cal.App.3d 772, 778.) This includes the authority to amend a judgment to
add an alter ego of an original judgment debtor, and thereby make the
additional judgment debtor liable on the judgment. (Toho–Towa Co., Ltd. v.
Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1106.) Amending
a judgment by noticed motion to add an alter ego of an original judgment debtor
is an equitable procedure based on the theory that the court is not amending
the judgment to add a new defendant, but is merely inserting the correct name
of the real defendant. (McClellan v. Northridge Park Townhome Owners Assn.
(2001) 89 Cal.App.4th 746, 752; (Wells Fargo Bank, N.A. v. Weinberg
(2014) 227 Cal.App.4th 1, 9.) The court is not required to hold an evidentiary
hearing on a motion to amend a judgment, but may rule on the motion based
solely on declarations and other written evidence. (Id.) The motion may
be made at any time so that the judgment will properly designate the real
defendants. (Highland Springs Conference & Training Ctr. v. City of
Banning (2016) 244 Cal. App. 4th 267, 287.)
To
prevail on the motion and ad an alter ego of an original judgment debtor, the
judgment creditor must show, by a preponderance of the evidence, that: “(1) the
parties to be added as judgment debtors had control of the underlying
litigation and were virtually represented in that proceeding; (2) there is such
a unity of interest and ownership that the separate personalities of the entity
and the owners no longer exist; and (3) an inequitable result will follow if
the acts are treated as those of the entity alone.” (Relentless Air Racing,
LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811,
815–816.) In determining whether there is a sufficient unity of interest and
ownership, the court considers many factors, including “the commingling of
funds and assets of the two entities, identical equitable ownership in the two
entities, use of the same offices and employees, disregard of corporate
formalities, identical directors and officers, and use of one as a mere shell
or conduit for the affairs of the other.” (Troyk v. Farmers Group, Inc.
(2009) 171 Cal.App.4th 1305, 1342.) Inadequate capitalization of the original
judgment debtor is another factor. (Zoran Corp. v. Chen (2010) 185
Cal.App.4th 799, 811–812 [reciting “long list” of inexhaustive factors].) No
single factor governs; courts must consider all of the circumstances of the
case in determining whether it would be equitable to impose alter ego
liability. (Troyk, supra, at p. 1342.)
Alter
ego “is an extreme remedy, sparingly used.” (Sonora Diamond Corp. v.
Superior Court (2000) 83 Cal.App.4th 523, 539.) “The standards for the
application of alter ego principles are high, and the imposition of [alter ego]
liability ... is to be exercised reluctantly and cautiously.” (Mesler v.
Bragg Management Co. (1985) 39 Cal.3d 290, 306.) Still, “[t]he greatest liberality is to be
encouraged” in allowing judgments to be amended to add the “real defendant,” or
alter ego of the original judgment debtor, “in order to see that justice is
done.” (Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4th 14, 20; Greenspan
v. LADT LLC (2010) 191 Cal.App.4th 486, 508; Wells Fargo, supra,
227 Cal.App.4th at p. 7.)
III.
DISCUSSION
On
July 31, 2023, a little over a month after the Court entered the stipulated
judgment, Feng filed a certification of election to wind up and dissolve
Defendant as a corporate entity. Defendant did not give Plaintiff notice that
it was winding up and dissolving, nor has it identified for Plaintiff any
shareholders other than Feng. Plaintiff argues that Feng is dissolving
Defendant in order to remove its assets and prevent Defendant from having to
pay the judgment. Therefore, Plaintiff seeks to add Feng as a judgment debtor
on the grounds that she is an alter ego of Defendant.
According
to documents filed with the California Secretary of State, Feng is the sole
director, chief executive officer, chief financial officer, secretary and agent
for service of process for Defendant. (Crawford Decl., Exs. 3-4.) The most
recent statement of information, filed on September 6, 2022, shows that Feng
shares the same principal address as Defendant located at 1271 S. Baldwin
Avenue in Arcadia, California. (Id., Ex. 4.) Feng appears to have controlled
the underlying action and had the opportunity to litigate it. Feng participated
in the litigation by verifying the answer on behalf of Defendant and by signing
the stipulation that resulted in the judgment. The Court notes that while the name
printed on the stipulation is “Li Feng” instead of “Lily Feng”, the signature
on the stipulation is identical to the signature verifying the answer, in which
Feng referred to herself as “Lily Feng.”
In
light of the evidence submitted by Plaintiff, it would be inequitable not to
add Feng as a judgment debtor when there appears to be a “unity of interest”
which ensured that Feng’s interests were represented in this litigation.
IV.
CONCLUSION
Plaintiff’s unopposed motion is GRANTED.
The Court will sign the proposed amended judgment filed on October 17, 2023.
Dated this 13th day of November,
2023
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William A.
Crowfoot
Judge of the Superior Court
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Parties who intend to submit on this
tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating
intention to submit on the tentative as directed by the instructions provided
on the court website at www.lacourt.org. Please be advised that if you submit
on the tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If the Court does not receive emails from
the parties indicating submission on this tentative ruling and there are no
appearances at the hearing, the Court may, at its discretion, adopt the
tentative as the final order or place the motion off calendar.
Case Number: 22AHCV01042 Hearing Date: November 13, 2023 Dept: 3 SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST
DISTRICT
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JODY SCOTT,
Plaintiff(s),
vs.
DANSKO,
LLC,
Defendant(s).
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CASE NO.: 22AHCV01042
[TENTATIVE]
ORDER RE: DEFENDANT DANSKO LLC’S MOTION TO COMPEL RESPONSES
AND DEEM ADMITTED; REQUEST FOR MONETARY SANCTIONS
Dept.
3
8:30
a.m.
November
13, 2023
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On November 9,
2022, plaintiff Jody Scott (“Plaintiff”) filed this action
against defendant Dansko, LLC (“Defendant”) alleging she sustained a foot
injury from a shoe. On May 5, 2023, Defendant
served Form Interrogatories (Set Two), Special Interrogatories (Set Two),
Request for Production of Documents (Set Two), and Request for Admissions (Set
One) on Plaintiff. No
responses were received. On June 14,
2023, defense counsel sent Plaintiff a letter and an email requesting
responses. However, Plaintiff did not provide responses and Defendant filed
these unopposed motions on July 21, 2023.
Compel
Responses
Where a party fails to serve timely
responses to discovery requests, the court may make an order compelling
responses. (Code Civ. Proc., §§
2030.290, 2031.300; Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th
390, 403.) A party that fails to serve timely responses waives any objections
to the request, including ones based on privilege or the protection of attorney
work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).)
Plaintiff
did not oppose Defendant’s motions to compel and it is undisputed responses
were not served. Defendant’s
motions to compel are GRANTED and Plaintiff
is ordered to serve verified responses without objections to Defendant’s
Form Interrogatories (Set Two), Special Interrogatories (Set Two) and Requests
for Production of Documents (Set Two) within 20 days of the date of this Order.
Deem Admitted
Where a party fails to timely respond
to a request for admission, the propounding party may move for an order that
the genuineness of any documents and the truth of any matters specified in the
requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The
party who failed to respond waives any objections to the demand, unless the
court grants them relief from the waiver, upon a showing that the party (1) has
subsequently served a substantially compliant response, and (2) that the
party’s failure to respond was the result of mistake, inadvertence, or
excusable neglect. (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).) The court
shall grant a motion to deem admitted requests for admissions, “unless it finds
that the party to whom the requests for admission have been directed has
served, before the hearing on the motion, a proposed response to the requests
for admission that is in substantial compliance with Section 2033.220.” (Code
Civ. Proc., § 2033.280, subd. (c).)
Plaintiff did not oppose this motion
and it does not appear that a proposed response has been served before this
hearing. Accordingly, the motion to deem admitted is GRANTED.
Monetary Sanctions
The Code of Civil Procedure provides
that the court shall impose a monetary sanction against the party who
unsuccessfully makes or opposes a motion to compel, unless the party acted with
substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c),
2031.300, subd. (c).) Where a party
fails to provide a timely response to requests for admission, “[i]t is
mandatory that the court impose a monetary sanction under Chapter 7 (commencing
with Section 2023.010) on the party or attorney, or both, whose failure to
serve a timely response to requests for admission necessitated this
motion.” (Code of Civ. Proc., §
2033.280, subd. (c).)
Defendant’s
request for monetary sanctions is GRANTED and imposed against Plaintiff
in the reduced amount of $1,446.60 for 4 hours
at defense
counsel’s hourly rate of $300 and $246.60
in filing fees, to be paid within 20 days of the date of this Order.
Moving party to give notice.
Dated
this 13th
day of November 2023
|
|
|
|
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William A. Crowfoot
Judge of the Superior Court
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Parties who intend to submit on this
tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating
intention to submit on the tentative as directed by the instructions provided
on the court website at www.lacourt.org. Please be advised that if you submit
on the tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If the Court does not receive emails from
the parties indicating submission on this tentative ruling and there are no
appearances at the hearing, the Court may, at its discretion, adopt the
tentative as the final order or place the motion off calendar.
Case Number: 22LBCV00381 Hearing Date: November 16, 2023 Dept: S27 1.
Complaint
Plaintiff, A1 Container Solutions, LLC filed this action against
Defendants, Cargomatic, Inc., Culines Shipping Service Agency (USA), Inc., and
Norton Lilly International, Inc. for breach of contract, common counts, inducing
breach of contract, and intentional interference with contractual relations.
The crux of the complaint against Cargomatic is that A1 agreed to
provide container yard space and related services to Cargomatic pursuant to a
written agreement. Cargomatic made the
first two payments per the contract, then ceased making payments and indicated an
intention not to make further payments.
The crux of the complaint against CU and Norton is that they were
customers of Cargomatic, and they were the ones who insisted Cargomatic enter
into the agreement. Soon after
Cargomatic entered into the contract, CU and Norton realized they did not need Cargomatic’s
service, and they induced Cargomatic to breach the contract.
2.
Cargomatic Cross-Complaint
Cargomatic answered the complaint and filed a cross-complaint against
A1 for fraudulent inducement, breach of contract, breach of the implied
covenant of good faith and fair dealing, intentional interference with contractual
relations, indemnity, breach of the unfair competition law, intentional and negligent
interference with prospective economic advantage, negligent misrepresentation,
and declaratory relief. The crux of the
cross-complaint is that A1, during negotiations, represented that it could handle
the business Cargomatic would be bringing to it, when in reality it lacked the
capacity to provide the services contracted for.
3.
United Supply Chain Services, Inc.’s Cross-Complaint
United Supply Chain Services identifies itself in its cross-complaint
as having been erroneously sued and served as CU Lines Shipping Service Agency
(USA), Inc. in the complaint. It will be
referred to as “United” from this point forward in this ruling.
United filed a cross-complaint against A1 for the same claims asserted
by Cargomatic, with the exception of declaratory relief. The crux of its cross-complaint is that it
was an intended third party beneficiary of the contract between Cargomatic and
A1, and A1’s false representations that it would be able to handle the volume
needed by United caused United harm.
4.
Motion to Compel Further Responses
- Relief Sought
A1 moves to compel further responses to various FROGs, SROGs, RFAs, and
RFPs, and also seeks to compel production of responses in compliance with Defendant’s
indication that it would produce documents.
- Analysis
Defendant filed untimely opposition
to the motion on 11/03/23 (because 11/10/23 is a court holiday, nine court days
prior to the hearing fell on 11/02/23).
Defendant, in opposition to the motion, indicates it agrees that its
responses must be amended and supplemented.
It asks the Court to have until 12/04/23 to further respond and produce
documents.
In reply, Plaintiff asks the Court
to grant the motion and order Defendant to further respond and to produce
documents by 12/04/23.
Because the parties are in agreement
concerning the necessary relief, the motion is granted and Defendant is ordered
to serve further responses and produce documents in compliance with its promise
to do so on or before 12/04/23.
Plaintiff does not seek imposition
of sanctions in connection with the moving papers, and none are imposed.
3. Case Management Conference
The parties are reminded that there
is a CMC on calendar concurrently with the hearing on the above MTCF. The Court asks Counsel to make arrangements to
appear remotely at the hearing on the motion and the CMC.
Case Number: 22PSCV00103 Hearing Date: November 13, 2023 Dept: K Defendants John JoonHyo Shin and Sue
SeungOk Shin, individually and as co-trustees of The Joon Hyo Shin Family Trust’s unopposed
Motion for Leave to File Cross-Complaint is GRANTED.
Background
Plaintiff Mickey’s Liquor & Market Inc. (“Plaintiff”)
alleges as follows:
Plaintiff is the current tenant of a
commercial property located at 13512 East Valley Boulevard, La Puente, CA 91746
(“Premises”) via the May 2012 assignment/amendment (“2012 Amendment”) of a 2006
lease (“2006 Lease”); Joon Hyo Shin and Seung Ok Shin are the landlords and
co-trustees of the Joon Hyo Shin Family Trust dated May 20, 2003, which is the
actual owner of the Premises. The 2012 Amendment extended the lease term to
June 5, 2022 and provided Plaintiff with a right to exercise an option to
further extend the lease term for 5 more years provided Plaintiff was in
compliance with its obligations at the time of the exercise. Plaintiff
exercised this option via a notice dated November 16, 2021, but it was denied.
On January 31,
2022, Plaintiff filed a complaint, asserting causes of action against Joon Hyo Shin and Seung Ok Shin, individually and as
co-trustees of The Joon Hyo Shin Family Trust dated May 20, 2003 and Does 1-10 for:
1.
Declaratory Relief
2.
Breach of Lease
3.
Breach of Covenant of Quiet Enjoyment
4.
Fraud (Deceit/False Promise)
5.
Breach of Statute
The Final Status Conference is set for December 12, 2023.
Trial is set for January 16, 2024.
Legal Standard
“A party against whom a cause of
action has been asserted in a complaint or cross-complaint may file a
cross-complaint setting forth. . . : (a) Any cause of action he has against any
of the parties who filed the complaint or cross-complaint against him…” (Code
Civ. Proc. § 428.10, subd. (a).) “A party shall file a cross-complaint against
any of the parties who filed the complaint or cross-complaint against him or
her before or at the same time as the answer to the complaint or
cross-complaint.” (Code Civ. Proc. § 428.50, subd. (a).)
“Except as
otherwise provided by statute, if a party against whom a complaint has been
filed and served fails to allege in a cross-complaint any related cause of
action which (at the time of serving his answer to the complaint) he has
against the plaintiff, such party may not thereafter in any other action assert
against the plaintiff the related cause of action not pleaded.” (Code Civ.
Proc. § 426.30, subd. (a).) A “‘[r]elated cause of action’ means a cause of
action which arises out of the same transaction, occurrence, or series of
transactions or occurrences as the cause of action which the plaintiff alleges
in his complaint.” (Code Civ. Proc. § 426.10, subd. (c).)
“A party who fails
to plead a cause of action subject to the requirements of this article, whether
through oversight, inadvertence, mistake, neglect, or other cause, may apply to
the court for leave to amend his pleading, or to file a cross-complaint, to
assert such cause at any time during the course of the action. The court, after
notice to the adverse party, shall grant, upon such terms as may be just to the
parties, leave to amend the pleading, or to file the cross-complaint, to assert
such cause if the party who failed to plead the cause acted in good faith. This
subdivision shall be liberally construed to avoid forfeiture of causes of
action.” (Code Civ. Proc. § 426.50(a).)
Discussion
Defendants John JoonHyo Shin and Sue SeungOk
Shin, individually and as co-trustees of The Joon Hyo Shin Family Trust (“Defendants”)
move the court for an order granting them leave to file a proposed cross-complaint.
The proposed cross-complaint is
compulsory, inasmuch as it is asserted against Plaintiff and involves a
“related cause of action” as defined by Code of Civil Procedure § 426.10,
subdivision (c). Causes of action arise out of the “same transaction or occurrence”
if there is “a logical relationship between the prior complaint and the
cross-complaint.” (ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd.
(2016) 5 Cal.App.5th 69, 82). The term “transaction” “is construed
broadly; it is not confined to a single, isolated act or occurrence. . . but
may embrace a series of acts or occurrences logically interrelated.” (Heshejin
v. Rostami (2020) 54 Cal.App.5th 984, 993-994 [internal quotations and
citation omitted].) “In the breach of contract context, the rule means
any claims the defendant has against the plaintiff based on the same contract
generally must be asserted in a cross-complaint, even if the claims are
unrelated to the specific breach or breaches that underlie the plaintiff's
complaint.” (Id. at 994 [quotations and citation omitted].)
Plaintiff’s complaint and the proposed
cross-complaint both pertain to the commercial lease agreement for Plaintiff’s
tenancy at the subject property.
The question remaining, then, is
whether or not Defendants have acted in good faith. “The provision in section
425.60 relating to ‘good faith’ does allow trial courts a ‘modicum of
discretion’ in allowing amendments to cross-complaints. Nonetheless, what constitutes ‘good
faith’ must be determined in conformity with the liberality conferred upon the
trial courts by the section and by prior law.” (Sidney v. Superior Court
(1988) 198 Cal.App.3d 710, 718.) “[T]his principle of liberality requires that
a strong showing of bad faith be made in order to support a denial of the right
to file a cross-complaint under this section.” (Id. [quotations and
citation omitted].)
There is no evidence that Defendants
have acted in bad faith; in fact, the motion is not opposed. The motion, then,
is granted.
Case Number: 22PSCV00314 Hearing Date: November 16, 2023 Dept: 6 Plaintiff Puente Hills
Business Center II, L.P’s Request for Entry of Default Judgment
Defendant: Shujan Zhang
TENTATIVE RULING
The
request for entry of default judgment is GRANTED. Plaintiff to submit a Proposed
Judgment with the correct amounts as set forth herein.
BACKGROUND
Plaintiff Puente Hills Business Center II, L.P.
(Plaintiff) entered into a commercial lease agreement with Defendant Shujan
Zhang (Defendant) for certain real property located at 17800 Castleton Street, Suite
445, City of Industry, California, 91748 (the Property). In February 2022,
Defendant abandoned the Property and defaulted under the lease agreement.
On March
30, 2022, Plaintiff filed this action against Defendant and Does 1 to 10,
alleging causes of action for breach of the written lease agreement and common
counts. On May 5, 2022, default was entered against Defendant, but the parties
later stipulated to setting aside the default. On May 3, 2023, after a series
of failed court appearances by Defendant, the Court struck Defendant’s answer
to the complaint. Plaintiff obtained entry of default against Defendant on the
same day, and later filed a request for entry of default judgment on June 19,
2023. The Court denied the request for entry of default judgment without
prejudice. On October 27, 2023, Plaintiff submitted another request for entry
of default judgment.
LEGAL STANDARD
Code of Civil Procedure section 585 permits entry of
a default judgment after a party has failed to timely respond or appear. (Code
Civ. Proc., § 585.) A party seeking judgment on the default by the court must
file a Request for Court Judgment, and: (1) a brief summary of the case; (2)
declarations or other admissible evidence in support of the judgment requested;
(3) interest computations as necessary; (4) a memorandum of costs and
disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties
against whom judgment is not sought or an application for separate judgment
under Code of Civil Procedure section 579, supported by a showing of grounds
for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’
fees if allowed by statute or by the agreement of the parties. (Cal. Rules of
Court, rule 3.1800.)
ANALYSIS
Plaintiff seeks default judgment against Defendant
in the total amount of $54,903.86, including $52,448.74
in damages, $1,938.97
in attorney’s fees, and $516.15 in costs. However, the Court finds that the principal
damages set forth in the spreadsheet attached as Exhibit B to the Declaration
of Cherie Igo amounts to $52,448.73 ($95,056.87 + $147.86 + $2,250.00 -
$45,006.00). (See Igo Decl., ¶ 5, Ex. B.) Therefore,
the Court GRANTS the request for entry of default judgment in the principal
amount of $52,448.73, plus attorney’s fees of $1,938.97, and costs of $516.15, for a total judgment of $54,903.85.
CONCLUSION
The
request for entry of default judgment is GRANTED. Plaintiff to submit a Proposed
Judgment with the correct amounts as set forth herein.
Case Number: 22PSCV00546 Hearing Date: January 5, 2024 Dept: K Background
Plaintiff Juan Franco (“Plaintiff”)
alleges as follows:
A Post-Arbitration Status Conference is set for January 5,
2023.
Legal Standard
“If a court at any time determines that there has been a
change of law that warrants it to reconsider a prior order it entered, it may
do so on its own motion and enter a different order.” (Code Civ. Proc., § 1008,
subd. (c).)
Discussion
Plaintiff moves the court, per Code of Civil Procedure §
1008, subdivision (c) and the court’s inherent constitutional authority, to
reconsider and reverse its February 2, 2023 order with respect to its granting
of FMC’s and Performance Ford’s Motion to Compel Arbitration.
The court declines to issue any ruling, on the basis that
the motion is not procedurally proper. “While a party has the right to
‘communicat[e] the view to a court that it should reconsider a prior ruling’
(Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108), the party should not ‘file
a written motion to reconsider’ if it cannot satisfy the procedural
requirements of Code of Civil Procedure section 1008 (35 Cal.4th at p. 1108).
‘The court
need not rule on any suggestion that it should reconsider a previous ruling . .
.’ (Ibid.)” (Farmers Ins. Exchange v. Superior Court
(2013) 218 Cal.App.4th 96, 102, fn. 10 [emphasis in original].)
Nevertheless, the court will hear from Plaintiff as to
whether the Court’s February 2, 2023 Order should be vacated at the Post-Arbitration
Status Conference.
Case Number: 22PSCV00691 Hearing Date: December 4, 2023 Dept: K Plaintiff
The
Buddhist Association of the United States’ Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff The Buddhist Association of the United States (“New
York BAUS”) alleges as follows:
New York BAUS was formed in 1964 and is
a New York non-profit corporation located in Carmel, New York. New York BAUS
was granted tax exempt status by the Internal Revenue Service (“IRS”) in 1965.
New York BAUS owns, manages and operates a large Buddhist monastery in Carmel,
as well as a temple in the Bronx, offers a wide range of programs and has an
extensive Internet presence through its website www.baus.org.
New York BAUS also has active, registered trademarks for “Buddhist Association
of the United States” and for its Chinese name. Defendant The Buddhist
Association of the United States (“California BAUS”) was incorporated in
California on May 10, 2005. In early 2018, the IRS communicated with New York
BAUS about a change of address to a location in El Monte; it was at this time
that New York BAUS learned that California BAUS was using the BAUS name and was
also using New York BAUS’s federal EIN number for tax purposes, without its
consent. California BAUS, Zhong Lin Sun (“Sun”), Zengkui Li (“Li”), Ke You Han
(“Han”) and Chan De (“De”) (together, “Defendants”) have also used New York
BAUS’s name, trademarks and other information without its consent.
On July 8, 2022, New York BAUS filed a complaint, asserting
causes of action against California BAUS, Sun, Li, Han and De for:
1.
Conversion
2.
Fraud
3.
Federal Trademark Infringement Under 15 U.S.C. §
1114(1)
4.
Common Law Trademark Infringement
5.
Unfair Competition Under California Business &
Professions Code § 17200 et seq.
6.
False Designation of Origin, False Advertising, and
Unfair Competition Under 15 U.S.C. § 1125
7.
California Common Law Unfair Competition
On November 7, 2022, an “Order for Service by Publication of
Summons” was filed as to Sun, Li, Han and De; on December 9, 2022, proof of
publication was filed.
On March 22, 2023, California BAUS’s, Sun’s, Han’s, Li’s and
De’s defaults were entered.
An Order to Show Cause is set for December 4, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff has failed to submit updated Judicial Council
CIV-100 forms with the instant default prove-up application. Plaintiff’s
default prove-up application submitted March 22, 2023 indicated that a total
judgment of $7,646,910.00 (comprised of $7,600,000.00 in special damages,
$3,695.00 in costs and $43,215.00 in attorney’s fees) against California BAUS,
Sun, Han, Li and De. The proposed default judgment submitted August 18, 2023
reflects that Plaintiff now seeks a total judgment of $7,673,894.07 against the
aforesaid defendants (comprised of $7,600,000.00 in damages, $6,229.07 in costs
and $67,665.00 in attorney’s fees). Any further default prove-up application
must be full and complete. The court will not accept any piecemeal submissions.
2.
Plaintiff concurrently filed “Statement[s] of Damages
and Punitive Damages” against
each of the defendants with the July 8, 2022 filing of its complaint. On July
20, 2022, Plaintiff filed a proof of substituted service as to California BAUS
which does not indicate that California BAUS was served with a “Statement of
Damages and Punitive Damages” at that time. (See also Menshivoka
Decl., ¶ 3, Exh. 2.) Plaintiff’s counsel Anastasiya Menshivoka
(“Menshivoka”) represents that California BAUS’s registered agent, Zhon Lin
Sun, was subsequently served with a “Statement of Damages and Punitive Damages”
on August 16, 2023 (Id., ¶ 7, Exh. 8), which is after default had
been entered against California BAUS on March 22, 2023. The individual
defendants were each served via publication. The proofs of publication do not
indicate that the individual defendants were served with “Statement[s] of
Damages and Punitive Damages” at that time. (Id., ¶ 4, Exh. 4.) Menshivoka
represents that “Plaintiff also ran publications of the statements of damages
for all Defendants in English in The Daily Journal and in Mandarin in The
World Journal,” that “[t]he English publication ran for 5 weeks from July
19, 2023 until August 23, 2023” and that “[t]he Mandarin version of the
statements of damages was first published on August 14, 2023 and will run until
September 25, 2023.” (Id., ¶ 7; see also, Exh. 7). A statement
prescribed by Code of Civil Procedure § 425.115, subdivision (b), however, must
be served “upon the defendant pursuant to this section before a default
may be taken, if the motion for default judgment includes a request for
punitive damages.” (Code Civ. Proc., § 425.115, subd. (f) [emphasis added].)
3.
Exhibit 6 consists of an English translation only. The
original Chinese document must be included and authenticated.
4.
15 U.S.C. § 1117, subdivision (c)(1) allows for an
award of statutory damages for the use of a counterfeit mark “in connection
with the sale, offering for sale, or distribution of goods or services” in the
amount of “not less than $1,000 or more than $200,000 for counterfeit mark per
type of goods or services sold, offered for sale, or distributed, as the court
considers just.” Plaintiff identifies seven uses of Plaintiff’s trademarks by
defendants, but does not explain what “type of goods or services” were “sold, offered for
sale, or distributed” on those occasions. Plaintiff is requested to brief this
issue for the court.
Case Number: 22PSCV01041 Hearing Date: November 14, 2023 Dept: O Tentative Ruling
MOTION TO
SET ASIDE DEFAULT JUDGEMENT AND REQUEST FOR DEFAULT JUDGEMENT AGAINST DEFENDANT
LARRY ORTEGA is DENIED.
Background
This is a
complaint for recovery of administrative fines and penalties pursuant to public
utilities code. Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA, by the
CALIFORNIA PUBLIC UTILITIES COMMISSION (“Plaintiff” or “Commission”) alleges
the following against Defendants COMMUNITY UNION, INC. (“CU”) and LARRY ORTEGA:
The Commission initiated an investigation to determine whether Defendant CU
implemented the California’s One Million New Internet Users Coalition program
in accordance with the terms of approval granted by the Commission. In 2021,
the Commission issued its decision finding that CU was in violation and ordered
that CU return the $162,109 it unlawfully received and held Ortega personally
liable (pierced the corporate veil).
On September
13, 2022, Plaintiff filed the instant suit.
On December
14, 2022, Plaintiff filed a POS indicating that CU had been served via the
Secretary of State.
On January
27, 2023, default was entered against CU.
On February
28, 2023, the court issued the following minute order regarding the CMC and OSC
re: Failure to File POS: Defendant Larry Ortega/Community Union appears and is
self-represented. Plaintiff requests to continue the instant matters to April
27, 2023 at 8:30 a.m. for proper notice and for Mr. Ortega to seek counsel;
request is granted. Pursuant to the request of plaintiff, the Case Management
Conference scheduled for 02/28/2023, and Order to Show Cause Re: Failure to
File Proof of Service scheduled for 02/28/2023 are continued to 04/27/2023 at
08:30 AM in Department L at Pomona Courthouse South ; Plaintiff is to provide
notice.
On March
1, 2023, Plaintiff
filed a POS by First-Class Mail (POS-030) form indicating the Ortega had been
served via mail. Additionally, the POS (POS-010) form indicates that Ortega was
served via his “voluntary appearance at the CMC on February 28, 2023,”
citing to CCP section 410.050.
On April 7,
2023, default was entered against Ortega.
On April 24,
2023, Ortega filed a ‘Motion to Continue to June 27, 2023.’ A review of the
motion indicates that Ortega sought to move an April 27, 2023 hearing because
of medical concerns (he had an angiogram).
On April 25,
2023, the court issued the following minute order regarding ‘Defendant Ortega's
Request for Continuance’: The Court is in receipt of Defendant Ortega’s
ex-parte request dated April 24, 2023, purportedly on behalf of himself and
defendant Community Union, Inc., to continue the April 27, 2023, Case
Management Conference. The Court declines to consider this document as it is
improperly before the Court for two separate reasons. First, both defendant
Ortega and defendant Community Union, Inc. are in default status. Neither
defendant Ortega nor defendant Community Union, Inc., may participate in the
matter unless and until that default status is cured by the Court upon written
motion by a party. Second, defendant Ortega is not a licensed attorney, so he
is not permitted to represent defendant Community Union, Inc., in the case
under any circumstances. As a result of the default status, the court sets an
Order to Show Cause re: Default Judgment for June 27, 2023, at 8:30 a.m. Clerk
to give notice as well as a courtesy copy to defendant Ortega. The case
management conference currently set for April 27, 2023, remains on calendar.
On May 9,
2023, the court clerk entered a clerk’s judgment (CCP section 585a) for
$162,109.00 against both CU and Ortega.
On June 7,
2023, Plaintiff filed an Abstract of Judgment (EJ-001) form.
On August 21,
2023, Ortega filed the instant ‘MOTION TO SET ASIDE DEFAULT JUDGEMENT AND
REQUEST FOR DEFAULT JUDGEMENT AGAINST DEFENDANT LARRY ORTEGA.’
On August 28,
2023, Plaintiff filed its opposition to the motion.
On September
11, 2023, during the hearing on the motion to set aside the default, the court
continued the hearing. According to the minute order, “On the Court's own
motion, the Hearing on Motion to Set Aside/Vacate Default and Default Judgment
(CCP 473.5) scheduled for 09/11/2023 is continued to 11/14/2023 at 10:00 AM in
Department O at Pomona Courthouse South. The Defendant is ordered to file
supplemental briefing due on or before September 21, 2023. The Court notes it
will continue to accept opposition and replies.”
On September
28, 2023, Defendant filed his amended motion.
On October
31, 2023, Plaintiff filed its opposition.
On November
7, 2023, Defendant filed his reply.
Legal
Standard
Ortega makes
the motion pursuant to CCP section 473 (a)(1), (b) and (d) on the grounds of
mistake, inadvertence and excusable neglect. (Motion p. 1.)
CCP section
473 subdivision (b) allows a court to vacate a prior order upon a showing that
the order was entered due to a party’s mistake, inadvertence, surprise, or
excusable neglect. Additionally, the motion “shall be made within a reasonable
time, in no case exceeding six months, after the judgment, dismissal, order, or
proceeding was taken.” (Code Civ. Proc.,¿§ 473, subd. (b).)¿The terms mistake,
inadvertence, surprise, and excusable neglect which warrant relief under Code
of Civil Procedure § 473(b) are defined as follows:
Mistake is
not a ground for relief under section 473, subdivision (b), when ‘the court
finds that the “mistake” is simply the result of professional incompetence,
general ignorance of the law, or unjustifiable negligence in discovering the
law ....’ [Citation] Further, ‘[t]he term “surprise,” as used in section 473, refers to “some
condition or situation in which a party ... is unexpectedly placed to his
injury, without any default or negligence of his own, which ordinary prudence
could not have guarded against.” [Citation] Finally, as for inadvertence or
neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have
been such as might have been the act of a reasonably prudent person under
the same circumstances. The inadvertence contemplated by the statute does
not mean mere inadvertence in the abstract. If it is wholly inexcusable it does
not justify relief.’ [Citation]
(Henderson
v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230)
(emphasis added).
Discussion
The court adheres to its original ruling for the
following reasons.
First, as
noted by Plaintiff in opposition, Defendant filed his supplemental declaration
about one week after the court’s deadline. In untimely filing his amended
motion/supplemental brief, that further evidences that Defendant chose not to
timely file his answer. What is more, Defendant explains the untimely
supplemental brief was “due a series of physical and technical hurdles he was
unable to get this filed on time.” (Reply p. 2.) The lack of an
explanation/details (e.g., the court system would not allow him to upload the
supplemental brief) is but another theme that impaired his original motion (see
discussion below).
Second, even
addressing the merits, it
again fails to provide an explanation as to why Defendant could file an answer.
If anything, as noted by Plaintiff in opposition, the narrative has changed:
instead of experiencing health problems in March, Defendant experienced health
problems in January.
All in all,
though mindful of the public policy strongly favors granting relief, the
evidence/declarations and arguments, when read in their totality, draw into
question the credibility and veracity of Defendant, indicating that Defendant
knew he was to file an answer and he could have filed an answer, but chose not
to timely file an answer.
(See Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189
Cal.App.2d 653, 658 [“The weighing of the veracity of the affidavit was in the
province of the trial court.”].)
Therefore,
the court DENIES the motion.
September
11, 2023 Tentative Ruling
While
slightly unclear, the premise of the motion appears to be that Ortega
“erroneously presumed that [his] time to file an answer to the request for
default judgment would run 90 days from date of Notice, February 28, 2023” and
that he “inadvertently failed to ask the court to extend the time I had to
Answer Plaintiff’s Complaint during the February 28, 2023 Hearing.” (Motion p.
3.)
The motion
fails for a few reasons, all of which are noted by Plaintiff in opposition.
First, to the
extent that Ortega presumed he had 90 days to file an answer upon service of
the summons and complaint (or after court retained jurisdiction at the February
28, 2023 CMC), Ortega has not explained why not knowing when to file an answer
constitutes as excusable neglect. Though Plaintiff is pro-per, a pro per litigant is treated
like any other party and is entitled to the same, but no greater consideration
than other litigants and attorneys. (See, e.g., Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246-47.)
Second, to
the extent that Ortega could not file his answer within 30 days of service of
the summons and complaint/court retaining personal jurisdiction because of
health challenges—which were undeniably serious as he experienced a heart
attack—Ortega has not explained why he could not file his answer within 30 days
when his chest pain did not commence until March 28, 2023 and he went to the
emergency room on April 21, 2023; thirty days from February 28, 2023 is Mach
30, 2023, which is well before he went to the emergency room. (See April 24,
2023 Motion to Continue to June 27, 2023.)
Third, even
using its discretion afforded by CCP section 473 subdivision (b), the court
would deny the motion because setting aside the judgment would merely forestall
the inevitable in a simple judgment enforcement action which there are no
defenses. Plaintiff would or could move for judgment by way of a motion (e.g.,
summary judgment or judgment on the pleadings), which would unnecessarily
expend resources.
Lastly, to
the extent that Ortega attempts to set aside the default judgment against CU as
well, there are two problems: (i) the motion is only made on behalf of Ortega
in his individual capacity and (ii) CU requires formal representation.
Conclusion
Based on the
foregoing—notably as an answer was due at the latest by March 30, 2023 and
Ortega did not do so and has failed to offer a reason why—the motion is denied.
Case Number: 22PSCV01499 Hearing Date: November 14, 2023 Dept: K 1. Counsel for Plaintiff Ivan Hernandez-Chavelas’ (i.e., Wilshire Law
Firm) Motion to be Relieved as Counsel is GRANTED, effective
upon the filing
of the proof of service showing service of the signed order upon the Client at the
Client’s last known address, return receipt requested.
2. Counsel for Plaintiff Rafael Hernandez’s (i.e., Wilshire Law Firm) Motion
to be Relieved as Counsel is GRANTED, effective upon the filing of the proof of service showing
service of the signed order upon the Client at the Client’s last known address,
return receipt requested.
Background
On October 26, 2022,
Plaintiffs filed a complaint, asserting a cause of action against Kara Kar Man
Lau (“Lau”), Carlos Alberto Rios (“Rios”) and Does 1-50 for:
1.
Negligence
On June 8,
2023, Rios filed a First Amended Cross-Complaint, asserting causes of action
against Lau, Giovanny Aleman (“Aleman”) and Roes 1-20 for:
1.
Indemnity
2.
Contribution
On October 3,
2023, Lau filed a cross-complaint, asserting causes of action against Aleman
for:
1.
Contribution
2.
Indemnity
3.
Declaratory
Relief
A Case
Management Conference is set for January 17, 2024.
Discussion
The Wilshire Law
Firm (“Firm”) seeks to be relieved as counsel of record for Plaintiffs (“Clients”).
The court has discretion to allow an attorney to withdraw,
and such a motion should be granted provided that there is no prejudice to the
client and it does not disrupt the orderly process of justice. (See
Ramirez v. Sturdevant (1994) 21
Cal.App.4th 904, 915; People v. Prince
(1968) 268 Cal.App.2d 398.)
California
Rule of Court (“CRC”) Rule 3.1362 requires (1) a notice of motion and motion
directed to the client (made on the Notice
of Motion and Motion to Be Relieved as Counsel—Civil form (MC-051)); (2) a
declaration stating in general terms and without compromising the
confidentiality of the attorney-client relationship why a motion under Code of
Civil Procedure § 284(2) is brought instead of filing a consent under section
284(1) (made on the Declaration in
Support of Attorney's Motion to Be Relieved as Counsel—Civil form
(MC-052)); (3) service of the notice of motion and motion, the declaration, and
the proposed order on the client and on all other parties who have appeared in
the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be
Relieved as Counsel—Civil form (MC-053)). The court may delay the effective
date of the order relieving counsel until proof of service of a copy of the
signed order on the client has been filed with the court.
Attorney Ariella E. Perry (“Perry”) represents that there has been a
breakdown in communication with the Clients such that counsel can no longer
effectively represent the Clients.
Perry states that she has served the Clients by mail at the Clients’ last
known address with copies of the motion papers served with this declaration and
that she has confirmed, within the past 30 days, that the address is current,
by mail, return receipt requested.
The court
determines that the requirements of Rules of Court Rule 3.1362 enumerated above have been
sufficiently met.
Accordingly,
the motions are granted, effective upon the filing of the
proof of service
showing service of the signed orders upon
the Clients at the Clients’ last known address, return receipt requested.
Case Number: 22PSCV02682 Hearing Date: November 29, 2023 Dept: K Plaintiff
ODK Capital, LLC’s Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff ODK Capital, LLC (“Plaintiff”) alleges as follows:
On October 11, 2021, Charles Cooper
(“Defendant”) and Celtic Bank (“Celtic”) entered into a Business Loan and
Security Agreement with accompanying supplement (“BLSA”) wherein Celtic agreed
to loan monies to Defendant in exchange for repayment. Defendant contemporaneously
executed a personal guaranty. Celtic subsequently assigned its rights, title
and interest under the BLSA to Plaintiff. Defendant has failed to make payments
due.
On December 9, 2022, Plaintiff filed a complaint, asserting
a cause of action against Defendant and Does 1-10 for:
1.
Breach of Contract
On July 28, 2023, Defendant’s default was entered.
An Order to Show Cause Re: Default Judgment is set for November
29, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
On September 29, 2023, the court denied Plaintiff’s default
prove-up application submitted on July 31, 2023 without prejudice, on the
following basis:
“Plaintiff’s Custodian of Records Cathleen Pugh (“Pugh”)
attests that “Plaintiff’s assignor CELTIC BANK assigned the claim to Plaintiff
who is now the lawful owner of the claim.” Pugh, however, has failed to provide
the court with a copy of the assignment.”
On October 5, 2023, attorney Jennifer Thomas (“Thomas”)
submitted a “Supplemental Declaration in Support of Default Judgment,”
purporting therein to attach a copy of the assignment for the court’s review.
It does not appear to the court that Thomas would be able to authenticate the
foregoing document. Further, Paragraph 4 of the purported assignment reads as
follows: “The attached Exhibit A is, represents and evidences a true and
correct listing of Loans for which all rights, title, and interest were sold and
assigned in full by Celtic to ODK Capital, LLC.” There is no Exhibit A attached
to the purported assignment.
Case Number: 22PSCV02843 Hearing Date: November 27, 2023 Dept: K Plaintiff
Hudson Insurance Company’s Application for Default Judgment is DENIED without
prejudice.
Background
Plaintiff Hudson Insurance Company (“Plaintiff”) alleges as
follows:
Plaintiff furnished to the State of
California, Department of Motor Vehicles, License Bond No. 10005592 (“Bond”) for
and at the request of El Pollo Auto, Inc. (“EPA”) and Leopoldo Robles
(“Robles”) in the penal sum of $50,000.00. On October 23, 2013, a general
indemnity agreement was made by EPA and Robles in Plaintiff’s favor. Thereafter
(i.e., “[o]n or about April, 2021”), several claims were made against the Bond.
Plaintiff requested that EPA and Robles hold Plaintiff harmless and pay the
claims, but they failed to do so. Plaintiff retained counsel who filed an
interpleader action and paid the penal sum of the bond pursuant to an
interpleader order.
On December 12, 2022, Plaintiff filed a complaint, asserting a
cause of action against EPA, Robles and Does 1-20 for:
1.
Breach of Contract
On April 27, 2023, EPA’s default was entered. On August 2,
2023, Robles’ default was entered.
An Order to Show Cause Re: Default Judgment is set for
November 27, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff advises that it received claims
against the bond, but fails to attach evidence of same. Plaintiff is requested
to provide the court with a copy of the referenced complaint for interpleader
filed in Case No. 20STCV09077.
2.
Plaintiff references $11,686.55 in
collection fee expenses to Jomax Recovery Services, but fails to provide the
court with any explanation as to why and how these expenses were incurred. Plaintiff
has not provided the court with any documentary evidence of these expenses.
Case Number: 22SMCV02849 Hearing Date: November 14, 2023 Dept: I The court will sign the stipulation. There need be no hearing today.
Case Number: 22SMCV02950 Hearing Date: November 13, 2023 Dept: M CASE NAME: Thanou, v. Mahgerefteh
CASE NO.: 22SMCV02950
MOTION: Demurrer
to the First Amended Complaint
HEARING DATE: 11/13/2023
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
Analysis
First Cause of
Action for Breach of Warranty of Habitability
Defendant argues that the first amended complaint (FAC) fails to state
sufficient facts supporting the conclusory allegations that Plaintiff
made requests to Defendant to remedy the unhabitable conditions. A tenant
may sue a landlord for damages resulting from a landlord’s breach of the
warranty of habitability. (Erlach v. Sierra Asset Servicing, LLC (2014)
226 Cal.App.4th 1281,1297.) “The elements of such an affirmative claim are [1]
the existence of a material defective condition affecting the premises'
habitability; [2] notice to the landlord of the condition within a reasonable
time after the tenant's discovery of the condition; [3] the landlord was given
a reasonable time to correct the deficiency, and [4] resulting damages.” (Id.)
Plaintiff alleges the existence of
material defects with the Subject Property. The violations include: deteriorated flooring, walls, ceilings
and cabinets, inadequate fire protection, faulty electrical wires and outlets,
inadequate heating and ventilation, improper sewage disposal, deteriorated
walls and ceilings, inoperable doors and windows, excessive odors,
dysfunctional plumbing systems, dampness, and infestations of cockroaches,
bedbugs, and other vermin. (FAC ¶ 16.)
Further, the following substandard conditions existed all throughout the
Subject Property: a. Mold/mildew
b. Deteriorated and defective roof. c. Cockroach, bed bug and rat infestation.
d. inoperable windows and unlockable doors, windows and gates. e. inoperable
and/or malfunctioning household appliances; f. deteriorated and worn walls and
ceilings; g. defective plumbing and faulty and leaking pipes. h. lack of/faulty
proper electrical wiring as well as exposed wires in the kitchen, which create
a hazard; i. non-installation of window safety bars to law conforming pop-out
window bars; and railings in the front and back steps j. non-repairs of the
extensive and deep cement cracks in the flooring of the garage and outside
areas, creating a walking hazard; k. non-repair of the dishwasher from day 1,
and inoperable trash compactor; l. failing to unstack (un-stackable) washer and
dryer placed on top of another, illegally, creating a hazard; m. failing to
repair deep cracks in the stucco; failing to repair defective waterproofing on
the Subject Property n. failing to repair leaky toilets; o. failing to repair
or replace rotted walls; and p. failing to investigate and remediate
significant mold damage to the Premises. (FAC ¶¶ 18-21.)
Plaintiff alleges facts showing
that the landlord had reasonable notice of the habitability conditions and that
the landlord was given a reasonable time to cure the deficiencies. The Subject
Property has been subject to multiple inspections by the Los Angeles Housing
and Community Investment Department and the Los Angeles Department of Public
Health that resulted in citations against the Defendant for multiple violations
of the California County Code, the California Health and Safety Code and the
Los Angeles Municipal Code. (FAC ¶ 11.) Further, the cited violations were not
abated within 35 days of these notices.
(FAC ¶¶ 12-15.) Plaintiff notified the Defendant, their Property
Managers about the habitability violations, but Defendants have failed to
correct the habitability conditions. (FAC ¶ 23.) The FAC notes that Defendants
have been cited repeatedly for the same conditions at the Subject Property for more
than four years. (FAC ¶ 24.) Defendants have been aware of the conditions
since at least 2020, at which point Plaintiff first made complaints and the City/County
cited Defendants. (¶ 27.) In spite of these numerous notices and orders to comply
from government entities, Defendants have failed to correct the cited
deficiencies throughout the Subject Property. (¶¶ 25, 32.)
While Plaintiff does not state
precisely when they informed Defendant, or when the City cited Defendant for
violations, the above facts still demonstrate that Defendants have had notice
of the issues for four years, and for more than 35 days after the City cited
the conditions. Thus, the FAC states facts showing notice to the landlord of the condition for a reasonable time
after the tenant's discovery and that the landlord has had more than reasonable
time to correct the deficiencies. Accordingly, the demurrer is OVERRULED as to
this cause of action.
Second Cause of
Action for Promissory Fraud
Defendant argues that the FAC fails
to state facts meeting the heightened pleading standard for a fraud claim. The
elements of fraud are: “(a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c)
intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e)
resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184; Lazar
v. Superior Court (1996) 12 Cal.4th 631, 638 [“An action for promissory
fraud may lie where a defendant fraudulently induces the plaintiff to enter
into a contract.”].) In California, fraud must be pled with specificity. (Small
v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity
demands that a plaintiff plead facts which show how, when, where, to whom, and
by what means the representations were tendered.” (Cansino v. Bank of
America (2014) 224 Cal.App.4th 1462, 1469.)
Defendant asserts that there are no
specific facts which show how, when, where, to whom, and by what means the
alleged representations were tendered, nor specific facts as to the elements of
knowledge of falsity, intent to defraud, and justifiable reliance. Examining
the allegations, the Court concurs that the FAC does not meet the heightened
pleading standard.
Plaintiff alleges that “Defendant
promised to lease the Plaintiff the Subject Property which the Defendant
advertised as luxury property with two car garage, 2,500 sq ft of living space,
next to the Beverly Hills park and available for use for short term airbnb.”
(FAC ¶ 38.) “At the time the Defendant put forth the advertisement/listing, the
Defendant did not intend to keep this promise as the Defendant knew the
listing/advertisement to be false.” (¶ 39.) “Defendant intended the Plaintiff
to rely on the promise made in the property listing.” (¶ 40.) The promises were
false because “Defendant failed to deliver the Subject Property as listed and
assured as the Subject Property turned out to be: a. Anything but luxury. b.
Close to a noisy tennis court instead of a serene park. c. 1,320 sq ft instead
of the advertised 2,500 sq ft. d. Unavailable for use for short term air bnb
because the Defendant revoked the same. e. One with a decrepit garage with
buckled floor having the Defendant’s scaffolding occupying one-half of the
garage; and f. Several other anomalies.” (FAC ¶ 42.)
Plaintiff does not allege the
substance or the specifics of the representation. Plaintiff only generally
alleges that Defendant “promised” to lease the Plaintiff as “advertised.”
However, Plaintiff does not allege what the promise or advertisements were,
how/by what means the promises or advertisements were made, when they were
made, where they were made, or to whom they were made. Without these essential
facts, the fraud claim cannot proceed.
Accordingly, the demurrer is
SUSTAINED with leave to amend as to this cause of action.
Fourth Cause of Action for Breach of Implied Covenant of
Good Faith and Fair Dealing
The covenant of good faith and fair
dealing is implied by law in every contract, and it acts “as a supplement to
the express contractual covenants, to prevent a contracting party from engaging
in conduct which (while not technically transgressing the express covenants)
frustrates the other party’s rights to the benefits of the contract.” (Racine
& Laramie, Ltd. v. Department of Parks & Recreation (1992) 11
Cal.App.4th 1026, 1031-1032.) The elements for breach of the implied covenant of good
faith and fair dealing are: (1) existence of a contract between plaintiff and
defendant; (2) plaintiff performed his contractual obligations or was excused
from performing them; (3) the conditions requiring defendant’s performance had
occurred; (4) the defendant unfairly interfered with the plaintiff’s right to
receive the benefits of the contract; and (5) the plaintiff was harmed by the
defendant’s conduct. (Merced Irr. Dist. V. County of Mariposa (E.D. Cal.
2013) 941 F.Supp.2d 1237, 1280 [discussing California law].)
The FAC alleges that the Lease
Agreement for the Subject Property contained an implied covenant of good faith
and fair dealing, which obligated Defendant to perform the terms and conditions
of the Lease Agreement fairly and in good faith and to refrain from doing any
act that would prevent or impede or cause damages and injuries to the Plaintiff
or in any way prevent Plaintiff from performing any or all of the conditions of
the Lease Agreement that Defendant agreed to perform, or any act that would
deprive Plaintiff of the benefits of the Lease Agreement. (FAC ¶ 62.) Plaintiff
performed under the Lease by paying her rent and reasonably expected the
Defendant to deliver the Subject Property as listed/advertised. (¶ 63.) Defendant
breached the implied covenant of good faith and fair dealing under the Lease “by
failing to meet his obligations under the Lease Agreement under several guises.”
(¶ 65.) Notably, a copy of the Lease is attached to the FAC. (See FAC, Ex. A.)
The FAC provides no further details
on how Defendant breached the implied covenant, beyond the general assertion
that Defendant breached the Lease agreement’s terms. The FAC does not allege
facts showing that Defendant prevented or impeded Plaintiff from receiving the
benefits of the Lease. At most, Plaintiff generically and ambiguously states a
breach of contract. (FAC ¶65.) However, “[a] ‘breach of the implied covenant of
good faith and fair dealing involves something beyond breach of the contractual
duty itself’ and it has been held that ‘[b]ad faith implies unfair dealing
rather than mistaken judgment . . ..’” (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) As the allegations
only state a breach of the express terms of the lease, without more, the FAC
fails to state facts to support the implied covenant claim.
Accordingly, the demurrer is
SUSTAINED with leave to amend. Plaintiff
has five days to file an amended complaint.
Case Number: 22STCP02242 Hearing Date: November 16, 2023 Dept: 48
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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REDWOOD RECOVERY
SERVICES, LLC,
Plaintiff,
vs.
JEFFREY L. KIRSCH,
Defendant.
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CASE NO.: 22STCP02242
[TENTATIVE] ORDER GRANTING MOTION TO VACATE
JUDGMENT
Dept. 48
8:30 a.m.
November 16, 2023
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On
January 5, 2012, Plaintiff Redwood Recovery Services, LLC sought a sister-state
judgment in this Court against Defendant Jeffrey L. Kirsch based on a judgment
entered in March 2011 by the Circuit Court for the Eleventh Judicial Circuit in
and for Miami-Dade County in Florida.
(Motion at p. 2; RJN, Ex. B.) Judgment
was entered on January 31, 2012. (Motion
at p. 2; RJN, Ex. C.) Plaintiff did not renew
the California judgment during the next ten years.
On June 9, 2022, Plaintiff
filed another application for entry of sister-state judgment against Defendant,
again based on the March 2011 Florida judgment.
Defendant was never served with the application or judgment notice in
this action. (Motion at p. 2; Kirsch
Decl. ¶¶ 2-3.)
On
October 13, 2023, Defendant filed a motion to vacate the sister-state
judgment. (Defendant’s request for
judicial notice is granted.) Plaintiff
filed a notice of non-opposition.
No
sister-state judgment may be entered when a judgment has previously been entered
in California. (Code Civ. Proc., §§ 1710.55,
1710.60.) Because a sister-state
judgment was already entered on the March 2011 Florida judgment, the judgment
in this action is void.
Accordingly,
the unopposed motion to vacate judgment is GRANTED.
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org
indicating intention to submit. If all parties
in the case submit on the tentative ruling, no appearances before the Court are
required unless a companion hearing (for example, a Case Management Conference)
is also on calendar.
Dated this 16th day of November 2023
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Hon. Thomas D. Long
Judge of the Superior
Court
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Case Number: 22STCP03939 Hearing Date: November 14, 2023 Dept: 39 Glaser Weil Fink
Howard Avchen & Shapiro LLP v. Sarah Lazow
Case No.
22STCP03939
Petition to
Confirm Arbitration Award
NOTICE: Petitioner’s counsel shall provide the amount
of prejudgment interest, as well as the total amount of the judgment, at the
hearing.
Petitioner
seeks to confirm an arbitration award against Respondent Sarah Lazow in the
amount of $177,024.97. A party may seek a court judgment confirming
an arbitration award by filing and serving a petition at least 10 days, but no
more than four years after the arbitrator serves the arbitration award. (Code Civ. Proc., §§ 1288, 1288.4.) The Court must confirm the award unless an
opposing party demonstrates good cause to correct or vacate the arbitration
award, or to dismiss the proceedings.
(Code Civ. Proc., § 1286.) If the
Court confirms the award, the Court enters an enforceable judgment with the
same force and effect as a judgment in a civil action. (Code Civ. Proc., § 1287.4.) Petitioner has satisfied the procedural
requirements, and Respondent has not opposed the motion. Therefore, the Court orders as follows:
1. The
Court grants the petition to confirm the arbitration award.
2. Petitioner
shall provide notice and file proof of such with the Court.
Case Number: 22STCP04150 Hearing Date: November 13, 2023 Dept: 34 SUBJECT: Amended Complaint to Compel Arbitration
Moving Party: Plaintiff
Thomas Waljeski
Resp. Party: None
The Amended Petition is GRANTED. The Parties are ORDERED to
arbitration. Jurisdiction is RETAINED for both the selection of an arbitrator
and for enforcement of this Order. Costs are AWARDED in favor of Petitioner and
against Respondent in the total amount of $655.74.
The Court sets a post-arbitration Status Conference for December ___,
2024. The parties are to file a joint
status conference report five court days prior to the hearing.
BACKGROUND:
On November 21, 2022,
Petitioner Thomas Waljeski (“Petitioner”) filed his Petition to Compel
Arbitration of Underinsured Motorist Claim and for Appointment of an Arbitrator
(“Petition”) against Respondent 21st Century Insurance Company (“Respondent”).
On July 13, 2023, the
Court denied without prejudice the Petition on the basis that Petitioner had
not provided evidence of a written arbitration agreement between Petitioner and
Respondent.
On September 12,
2023, Petitioner filed his Amended Complaint to Compel Arbitration of
Underinsured Motorist Claim and for Appointment of an Arbitrator (“Amended
Petition”). In support of his Amended Petition, Petitioner concurrently filed
Declaration of Marshall C. Sanders Re Failure to File Amended Petition to
Compel Arbitration.
On October 23, 2023,
Petitioner filed: (1) Judicial Council Form MC-010, Memorandum of Costs
(Summary); (2) Declaration of Marshall C. Sanders Re Costs; (3) Proposed Order;
and (4) Proof of Service.
No opposition or
other response has been filed to the Amended Petition.
ANALYSIS:
I.
Legal
Standard
“A written agreement to submit to arbitration an
existing controversy or a controversy thereafter arising is valid, enforceable
and irrevocable, save upon such grounds as exist for the revocation of any
contract.” (Code Civ. Proc., § 1281.)
“On petition of a party to an arbitration agreement
alleging the existence of a written agreement to arbitrate a controversy and
that a party to the agreement refuses to arbitrate that controversy, the court
shall order the petitioner and the respondent to arbitrate the controversy if
it determines that an agreement to arbitrate the controversy exists [unless it
makes certain determinations].” (Code Civ. Proc., § 1281.2.)
“Under both federal and state law, arbitration
agreements are valid and enforceable, unless they are revocable for reasons
under state law that would render any contract revocable. . . . Reasons that would render any
contract revocable under state law include fraud, duress, and
unconscionability.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th
231, 239, citations omitted.)
“The party seeking to compel arbitration bears the
burden of proving by a preponderance of the evidence[]’ the existence of an
arbitration agreement.¿The party opposing the petition bears the burden of
establishing a defense to the agreement's enforcement by a preponderance of the
evidence.¿In determining whether there is a duty to arbitrate, the trial court
must, at least to some extent, examine and construe the agreement.” (Tiri,
supra, at p. 239.)
II.
Discussion
Petitioner moves the Court to: (1) order Petitioner and Respondent
to arbitrate Petitioner’s claim for underinsured motorist benefits before a
mutually-acceptable arbitrator, if the Parties can agree upon an arbitrator;
(2) retain jurisdiction for the selection of an arbitrator in case the Parties
are unable to mutually agree to the selection of an arbitrator; (3) award
Petitioner his costs in this matter; and (4) retain jurisdiction to enforce the
Court’s order. (Amended Petition, p. 3:18–25.)
Petitioner provides the Court with an insurance policy between the
Parties. (Amended Petition, Exh. A.) The insurance policy contains an
arbitration provision. (Id. at p. 9 [actual page 17 of 45].)
Respondent has not opposed the Amended
Petition.
Petitioner has met his burden to prove the existence of an arbitration
agreement. The Court sees no reason to
deny the Amended Petition.
As the prevailing party on the Amended
Petition, Petitioner is entitled to his costs. The costs requested are
reasonable. The Court imposes costs of
$655.74.
III.
Conclusion
The Amended Petition is GRANTED. The Parties are ORDERED to arbitration.
Jurisdiction is RETAINED for both the selection of an arbitrator and for
enforcement of this Order. Costs are AWARDED in favor of Petitioner and against
Respondent in the total amount of $655.74
The Court sets a post-arbitration Status Conference for December ___,
2024. The parties are to file a joint
status conference report five court days prior to the hearing.
Case Number: 22STCV05295 Hearing Date: November 14, 2023 Dept: 48
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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TL VETERANS CONSTRUCTION, INC.,
Plaintiff,
vs.
EUN HEE SONG, et al.,
Defendants.
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CASE NO.: 22STCV05295
[TENTATIVE] ORDER OVERRULING DEMURRER TO
FOURTH AMENDED COMPLAINT
Dept. 48
8:30 a.m.
November 14, 2023
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On March 23, 2023, Plaintiff
TL Veterans Construction, Inc. filed a fourth amended complaint (“4AC”) against
Defendant State National Insurance Company, Inc. and others.
On
March 30, 2023, Defendant filed a demurrer to the eighth cause of action.
A
demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740,
747.) When considering demurrers, courts
read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015)
236 Cal.App.4th 1401, 1406.)
The
eighth cause of action alleges negligent misrepresentation. “The essential elements of a count for intentional
misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent
to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.]
The essential elements of a count for negligent misrepresentation are the
same except that it does not require knowledge of falsity but instead requires a
misrepresentation of fact by a person who has no reasonable grounds for believing
it to be true. [Citations.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th
217, 230-231.) “Causes of action for intentional
and negligent misrepresentation sound in fraud and, therefore, each element must
be pleaded with specificity.” (Daniels
v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “‘This particularity requirement necessitates
pleading facts which show how, when, where, to whom, and by what means the
representations were tendered.’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th
631, 645.)
Defendant
argues that the claim lacks specificity.
(Demurrer at p. 3.) Plaintiff alleges
that State provided a certificate of insurance that names Plaintiff as an additional
named insured on the project. (4AC ¶ 87.) In reliance on this statement about Plaintiff
being as additional named insured under subcontractor JNH’s policy, Plaintiff hired
JNH to work on the project. (4AC ¶ 90.) Plaintiff would not have entered into the contract
without proof of actual insurance covering Plaintiff. (4AC ¶¶ 86.)
This sufficiently alleges the representation, justifiable reliance, and harm.
Defendant
also argues that “[a]s a matter of law, a certificate of insurance contains no representations
concerning the terms and conditions of an insurance policy and cannot provide a
basis for Plaintiff’s negligent misrepresentation claim.” (Demurrer at p. 4.) Therefore, “[a]s a matter of law, Plaintiff could
not and cannot rely on the certificate of insurance to provide the policy terms
and conditions.” (Id. at p. 5.) In this cause of action, Plaintiff is not relying
on the certificate of insurance to prove coverage. Instead, Plaintiff alleges that because of Defendant’s
representation within the certificate—that Plaintiff was an additional named insured—it
relied on that representation and entered into a subcontract with JNH.
Finally,
Defendant argues that “the negligent misrepresentation claim cannot rest on the
unsupported conclusion that State National knew the subject project involved a hospital.” (Demurrer at p. 5.) The Certificate of Liability Insurance that was
allegedly produced by Defendant expressly states: “TL Veterans Construction Inc.
is listed as additional insured. Project
: DSH-Metropolitan SNF Building Roof Replacement[.] 11401 Bloomfield Ave., Norwalk, CA 90650.” (4AC, Notice of Errata, Ex. 2.) Accordingly, the claim can rest on an allegation
that Defendant knew that the roofing project was for the Skilled Nursing Facility
of the Department of State Hospitals. (See
4AC ¶ 12.)
The
demurrer is OVERRULED. Defendant is ordered
to file an answer within 10 days. (California
Rules of Court, rule 3.1320(j)(1).)
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org
indicating intention to submit. If all parties
in the case submit on the tentative ruling, no appearances before the Court are
required unless a companion hearing (for example, a Case Management Conference)
is also on calendar.
Dated this 14th day of November 2023
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Hon. Thomas D. Long
Judge of the Superior
Court
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Case Number: 22STCV06520 Hearing Date: November 14, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 14, 2023 Case Name: Thris Van Taylor, et al. v. Little, et al. Case No.: 22STCV06520 Matter: Motion to Stay Moving Party: Defendant Katie Little Responding Party: Plaintiffs Thris Van Taylor, A Law Corporation, and Thris Van Taylor Notice: OK
Ruling: The Motion to Stay is denied.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
On January 23, 2023, Plaintiffs Thris Van Taylor, A Law Corporation, and Thris Van Taylor filed the First Amended Complaint (“FAC”) for (1) breach of contract, (2) breach of third party contract, (3) breach of the covenant of good faith and fair dealing, (4) negligence, (5) intentional infliction of emotional distress (“IIED”), (6) fraud, (7) intentional misrepresentation, and (8) conversion. On March 17, 2023, the Court sustained a demurrer, without leave to amend, that was filed by Defendants Optima Escrow, Inc, Marty Rangel, and Mumtaz Thako. Plaintiffs have appealed the Court’s demurrer ruling. Defendant Katie Little now seeks to stay this matter pending the outcome of Plaintiff’s appeal. The Motion is denied. There is no explanation as to why the appeal relates to Defendant Little or why a stay is proper. Defendant merely states, in general fashion, that a stay would promote judicial economy. This is insufficient. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 22STCV09852 Hearing Date: November 13, 2023 Dept: 34 SUBJECT: Motion to Enter Judgment Pursuant to
Written Settlement Agreement and for Monetary Sanctions
Moving
Party: Plaintiff Luis Barajas
Resp.
Party: Defendant
FCA US LLC
The Motion is GRANTED. Monetary
sanctions are AWARDED in favor of Plaintiff and against Defendant in the amount
of $991.65.
Moving party is to prepare judgment.
BACKGROUND:
On March
21, 2022, Plaintiff Luis Barajas filed his Complaint against Defendant FCA US
LLC on causes of action arising from the Song-Beverly Consumer Warranty Act.
On May
30, 2023, the Court dismissed the case with prejudice and retained jurisdiction
to make orders to enforce any and all terms of settlement, including judgment,
pursuant to Code of Civil Procedure section 664.6.
On
October 6, 2023, Plaintiff filed his Motion to Enter Judgment Pursuant to
Written Settlement Agreement and for Monetary Sanctions.
No
opposition or other response has been filed to the Motion.
ANALYSIS:
I.
Legal
Standard
“If parties to pending litigation stipulate, in a writing signed
by the parties outside of the presence of the court or orally before the court,
for settlement of the case, or part thereof, the court, upon motion, may enter
judgment pursuant to the terms of the settlement. If requested by the parties,
the court may retain jurisdiction over the parties to enforce the settlement
until performance in full of the terms of the settlement.” (Code Civ. Proc., §
664.6, subd. (a).)
“Section 664.6 was enacted to provide a
summary procedure for specifically enforcing a settlement contract without the
need for a new lawsuit.” (Weddington Prod., Inc. v. Flick (1998) 60
Cal.App.4th 793, 809.) In deciding motions made under Section 664.6, judges
“must determine whether the parties entered into a valid and binding
settlement.” (Kohn v. Jaymar-Ruby (1994) 23 Cal.App.4th 1530, 1533.)
II. Discussion
Plaintiff moves the Court to enter
judgment which will conform precisely to the terms of the Parties’ written
settlement agreement. (Motion, p. 7:11–14.) Plaintiff provides the Court with a
copy of the agreement. (Id. at Exh. One.)
Defendant has not opposed the
Motion.
The Parties entered into a valid and
binding settlement. The Court shall enter judgment that will conform with the
written settlement agreement.
Plaintiff also
requests $2,116.65 in monetary sanctions, based on 4.5 hours of attorney work
at $450.00 per hour plus $91.65 in costs. (Motion, Decl. Yashar, ¶ 9.)
The hourly rate
and costs requested are reasonable, but the number of hours spent claimed is
not. It should not have taken 4.5 hours to draft a two-page MPA – at least some
of which was taken up by an irrelevant “aside.”
Plaintiff states:
“As an side
[sic], the necessity for this motion has been engendered by defendant's failure
and refuse [sic] to perform pursuant to the agreement, although the question of
performance is not relevant to whether or not the agreement may be entered as a
judgment. C.C.P., [sic] Section 664.6 allows and mandates entry of the
judgment, and any subsequent failures to perform will be matters which the
Court may then oversee as part of its inherent power to enforce its judgments.” (Motion, p. 6:27 – p. 7:5.)
Plaintiff’s counsel need not inform
the Court of irrelevant issues, particularly if she wishes to be awarded attorney's
fees for the time spent on these asides.
As an aside, the Court would also
suggest that Plaintiff’s counsel take the time to shorten her briefs. For instance, counsel wrote:
“As an side
[sic], the necessity for this motion has been engendered by defendant's failure
and refuse [sic] to perform pursuant to the agreement. . . .”
Instead of 22
words, counsel could have said: “Defendant
has not performed.” (See, e.g., Blase Pascal
Lettres Provinciales, 1657 [“Forgive me for writing such a
long letter; I did not have the time to make it shorter.”])
The Court will award two hours of
work at the hourly rate requested, plus costs.
III. Conclusion
The Motion is GRANTED. Monetary
sanctions are AWARDED in favor of Plaintiff and against Defendant in the amount
of $991.65.
Moving party is to prepare judgment.
Case Number: 22STCV12026 Hearing Date: November 13, 2023 Dept: 28 Having
considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On
April 8, 2022, Plaintiff Manuel De Jesus Mena (“Plaintiff”) filed this action
against Defendants Khaira Transport, Inc. (“Khaira”), Juan Carlos Guzman
Rodriguez (“Guzman”), Yuhwa Lung, and Does 1-100 for motor vehicle tort and
general negligence.
On
June 2, 2022, Defendant Yu Lung (erroneously served as
Yuhwa Lung) (“Lung”) filed an answer and a request for a statement of
damages. On June 29, 2022, Khaira filed an answer. On August 8, 2022, Guzman
filed an answer.
On
July 31, 2023, Lung filed an ex parte application to continue the trial and
discovery and motion cut-off dates. On August 2, 2023, the Court granted the ex
parte application in part by continuing the trial to April 8, 2024. The Court
denied the request to continue or reopen discovery deadlines without prejudice
to filing a noticed motion.
On August
23, 2023, Lung filed a motion to reopen discovery to be heard on November 13,
2023. On October 30, 2023, Plaintiff filed an opposition.
Trial
is currently scheduled for April 8, 2024.
PARTIES’ REQUESTS
Lung
requests that the Court reopen discovery and base the new discovery deadlines
on the current trial date.
Plaintiff
requests that the Court deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2024.050 provides:
“(a) On
motion of any party, the court may grant leave to complete discovery
proceedings, or to have a motion concerning discovery heard, closer to the
initial trial date, or to reopen discovery after a new trial date has been set.
This motion shall be accompanied by a meet and confer declaration under Section
2016.040.
“(b) In
exercising its discretion to grant or deny this motion, the court shall take
into consideration any matter relevant to the leave requested, including, but
not limited to, the following:
“(1) The
necessity and the reasons for the discovery.
“(2) The
diligence or lack of diligence of the party seeking the discovery or the
hearing of a discovery motion, and the reasons that the discovery was not
completed or that the discovery motion was not heard earlier.
“(3) Any
likelihood that permitting the discovery or hearing the discovery motion will
prevent the case from going to trial on the date set, or otherwise interfere
with the trial calendar, or result in prejudice to any other party.
“(4) The
length of time that has elapsed between any date previously set, and the date
presently set, for the trial of the action.
“(c) The
court shall impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully makes or
opposes a motion to extend or to reopen discovery, unless it finds that the one
subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”
(Code Civ. Proc., § 2024.050.)
Code of Civil Procedure section 2016.040
provides: “A meet and confer declaration in support of a motion shall state
facts showing a reasonable and good faith attempt at an informal resolution of
each issue presented by the motion.”
DISCUSSION
A. Lung’s motion
Lung
asserts that, “in light of Plaintiff’s recent [June 2023] deposition testimony
of TBI claim and cognitive impairment,” Lung must conduct a neurological
examination of Plaintiff. (Motion p. 7.)
On August 15, 2023, Lung served a demand
for Plaintiff’s neurological examination.
The examination was scheduled for September 19, 2023, the first date that
Lung’s expert neurologist was available.
However, the discovery cut-off date was September 6, 2023, preventing
Lung from proceeding with the examination unless discovery was reopened.
In
addition to the neurological examination, Lung also needs to “depos[ ] relevant
fact and medical witnesses, . . . conduct vehicle inspections, and obtain[ ] relevant
medical records.” (Motion pp. 6-7.) Lung does not provide further information
about this additional discovery or explain why she did not conduct it
previously.
B. Plaintiff’s opposition
Plaintiff
argues that Lung has had “full knowledge of the details of plaintiff’s claims
since March 2022” and has failed to explain her lack of diligence in completing
discovery prior to the discovery cut-off date.
(Opposition p. 2.) In particular, on March 8, 2022, Plaintiff’s counsel sent a demand
letter to the claims adjuster for State Farm, Lung’s insurance carrier, providing
“[c]omprehensive supporting medical records for sixteen medical providers,
including plaintiff’s neurologist and orthopedists, and including reports of
the MRI imaging of plaintiff’s brain, cervical and lumbar spine, left shoulder,
and left knee, documenting the objective diagnostic findings of his injuries .
. . .” (Edginton Dec. ¶ 2.) Under the heading “TRAUMATIC BRAIN INJURY,”
page 2 of the demand letter discusses Plaintiff’s TBI symptoms.
Plaintiff
also argues that Lung failed to meet and confer before filing her motion. Plaintiff acknowledges, however, that Lung’s
counsel met and conferred after filing the motion once Plaintiff’s counsel
initiated a conference call.
C. Analysis
Although
Lung fails to explain her lack of diligence, she has shown “[t]he necessity and
the reasons for” a neurological examination and limited additional discovery. Therefore,
the Court will grant the motion in part and reopen discovery only for the
purpose of allowing Lung to conduct the requested neurological examination, two
additional fact depositions, and an inspection of Plaintiff’s vehicle. The new discovery deadline will trail the
April 8, 2024 trial date.
CONCLUSION
The
Court GRANTS IN PART the motion of Defendant Yu Lung (erroneously served as Yuhwa Lung) to reopen discovery. Discovery is reopened only for the purpose of
allowing Defendant Yu Lung (erroneously
served as Yuhwa Lung) to conduct a neurological examination, two additional
fact depositions, and inspection of the vehicle of Plaintiff Manuel De Jesus
Mena. The new discovery deadline will
trail the April 8, 2024 trial date. In
all other respects, the Court DENIES the motion.
Moving
party is ordered to give notice of this ruling.
Moving
party is ordered to file the proof of service of this ruling with the Court
within five days.
Case Number: 22STCV13226 Hearing Date: November 13, 2023 Dept: 31 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT | | [TENTATIVE] ORDER DENYING MOTIONS TO BE RELIEVED AS COUNSEL |
Plaintiff Javier Garcia (“Plaintiff”) attorney of record, Carol D. Kellogg of Law Office of Carol D. Kellogg (“Counsel”), moves to be relieved as counsel. Counsel’s declaration does not provide the reason Counsel seeks to be relieved. Counsel only declares that her last communication with Plaintiff was on June 16, 2023, and that Plaintiff’s telephone number is now out of service. Without disclosing any attorney-client privilege information, Counsel must specify the basis for relief. Further, Counsel declares she has been unable to confirm Plaintiffs’ address or locate a more current address after mailing the moving papers on Plaintiffs’ last known address with return receipt requested, calling the last known telephone number, and conducting an internet search. Counsel declares on previous occasions, her office would send correspondence at the address listed on the proof of service, and Plaintiff would respond to said correspondence. (Kellog Decl. ¶ 4.) However, counsel never received the signed return receipt from the U.S. Post Office in terms of correspondence mailed on July 26, 2023. (Id. at ¶5.) Aside from providing the reason for Counsel’s request to withdraw representation, if Counsel is unable to serve Plaintiff at a confirmed address, Counsel must serve the moving papers on Plaintiff and on the Clerk of the Court- located at Stanley Mosk Courthouse- pursuant to CCP §1011 and California Rules Court, rule 3.1362(d). The motion is denied without prejudice. Moving Counsel is ordered to give notice. Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿
Dated this 9th day of November 2023 | | | Judge of the Superior Court |
Case Number: 22STCV15510 Hearing Date: November 13, 2023 Dept: 50 Superior
Court of California
County
of Los Angeles
Department 50
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JC 2020 CORP.,
Plaintiff,
vs.
NEW HAMPSHIRE BBL, LLC, et al.
Defendants.
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Case No.:
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22STCV15510
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Hearing Date:
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November 13, 2023
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Hearing Time:
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10:00 a.m.
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TENTATIVE RULING RE:
DEMURRER TO FIRST AMENDED COMPLAINT
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AND RELATED CROSS-ACTION
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Background
Plaintiff JC 2020 Corp. (“JC 2020”) filed this action on May 10, 2022
against Defendants New Hampshire BBL, LLC (“New Hampshire BBL”) and Robert Lee,
an individual dba Landpac Properties.
On June 30, 2022, JC 2020 filed amendments to the Complaint naming
Christine A. Lee AKA Soo Lee in place of Doe 3 and Timothy Lee in place of Doe
4. On July 27, 2022, JC 2020 filed an amendment to the Complaint naming
Christopher Y Lee in place of Doe 5.
JC 2020 filed the operative First Amended Complaint (“FAC”) on July
27, 2022, asserting causes of action for (1) breach of written contract, (2)
promissory estoppel, (3) fraudulent concealment, (4) fraudulent
misrepresentation, and (5) fraudulent transfer.
On July 20, 2022, Robert Lee and New Hampshire BBL filed a
Cross-Complaint against Cross-Defendants J.C. 2020, Jeannie Yoon, Benjamin Ahn,
and James Mortensen. The Cross-Complaint asserts causes of action for (1)
indemnification, (2) apportionment of fault, (3) intentional tort, and (4)
intentional tort.
Christine A. Lee, Christopher Y. Lee, Timothy Lee, and Robert Lee
(collectively, “Defendants”) now demur to each of the causes of action of the
FAC. JC 2020 opposes.
Discussion
As an initial matter, the Court notes that Defendants’
counsel’s declaration filed in support of the demurrer indicates, inter alia,
that “[t]hrough the undersigned, Plaintiff had notice of Defendants’
objections to the Complaint by telephone and in April 19 and May 21, 2022, meet
and confer correspondence. Through the undersigned, the Defendants filed and
served their June 20, 2022, declaration of demurring party or moving party in
support of automatic extension. On March 1, 2023, Through the undersigned,
Defendants reiterated to Plaintiff’s counsel their objections and in regard to
the FAC. On March 2, 2023, Plaintiff’s counsel engaged in meet and confer.”
(Karpeles Decl., ¶ 3.)
The Court does not find
that Defendants’ counsel’s declaration demonstrates that
the parties met and conferred by telephone or in person concerning Defendants’
demurrer to the FAC. Defendants’ counsel states that “Plaintiff had
notice of Defendants’ objections to the Complaint by telephone and in April 19
and May 21, 2022,” but this appears to concern the original Complaint, as the
FAC was filed on July 27, 2022.
Pursuant to Code of Civil Procedure section 430.41,
subdivision (a), “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the
party who filed the pleading that is subject to demurrer for the purpose of
determining whether an agreement can be reached that would resolve the
objections to be raised in the demurrer. If an amended complaint,
cross-complaint, or answer is filed, the responding party shall meet and confer
again with the party who filed the amended pleading before filing a demurrer to
the amended pleading.” (Emphasis added.) Such
meeting and conferring must be done in good faith with an effort to try to
resolve the issues subject to the demurrer.
In light
of the foregoing, the hearing on Defendants’ demurrer is continued
to _ARRANGE WITH CLERK in
Dept. 50.¿
Defendants
are¿ordered to meet¿and confer¿with JC 2020 within 10 days of the
date of this order.¿If the parties are unable to resolve the pleading issues¿or
if the parties are otherwise unable to meet and confer in good faith,
Defendants are to¿thereafter¿file and serve¿a declaration setting forth the
efforts to meet and confer in compliance with¿Code of Civil Procedure section
430.41, subdivision (a)(3) within 15 days of this order.¿
Defendants are ordered to give notice of this order.¿
DATED:
November 13, 2023
________________________________
Hon. Rolf M.
Treu
Judge, Los Angeles Superior Court
Case Number: 22STCV16148 Hearing Date: November 13, 2023 Dept: 34 SUBJECT: Motion for Summary Judgment on East
West’s Cross-Complaint
Moving Party: Wells
Fargo Bank, National Association
Resp. Party: Morillo Construction, Inc. and East West
Bank
SUBJECT: Motion for Terminating Sanctions Against
Eva Neumann, or Alternatively for Issue or Evidentiary Sanctions, and for
Monetary Sanctions Against Eva Neumann and Her Counsel of Record
Moving Party: Morillo
Construction, Inc.
Resp. Party: None
The Motion for Summary Judgment is GRANTED.
Summary judgment is granted in favor of East West and against Morillo on the
second and third causes of action in the Complaint. Summary judgment is also
granted in favor of Wells Fargo and against East West on East West’s
Cross-Complaint.
The Motion for Terminating Sanctions is
GRANTED in part. Eva Neumann’s Answer to the Complaint is STRICKEN. The Motion
for Terminating Sanctions is DENIED as to all other requests for relief.
BACKGROUND:
On May 13, 2022, Morillo Construction,
Inc. (“Morillo”) filed its Complaint against Defendants Royal Construction
& Architectural Corporation (“Royal”); Eva Neumann; Wells Fargo Bank,
National Association (“Wells Fargo”); Western Surety Company (“Western
Surety”); and East West Bank (“East West”).
On June 10, 2022, Western Surety filed:
(1) General Denial of the Complaint; and (2) Verified Cross-Complaint against
Royal and Morillo.
On July 13, 2022, Morillo filed its
Verified Answer to the Verified Cross-Complaint.
On July 27, 2022, by request of Morillo,
the Clerk’s Office entered default on Eva Neumann and Royal regarding the
Complaint.
On August 3, 2022, East West filed: (1)
Answer to the Complaint; and (2) Cross-Complaint against Wells Fargo, Royal,
and Eva Neumann.
On August 8, 2022, by request of
Morillo, the Clerk’s Office dismissed without prejudice Wells Fargo from the
Complaint.
On August 12, 2022, Morillo, Royal, and
Eva Neumann filed a Stipulation to Vacate and Set Aside the Defaults as to
Royal and Eva Neumann.
On August 8, 2023, the Court ordered Eva
Neumann to provide initial responses to the form interrogatories and further
responses to the requests for production of documents propounded by Morillo
within fourteen days.
On
August 12, 2022, Eva Neumann filed an Answer to the Complaint.
On September 14, 2022, Wells Fargo filed
its Answer to East West’s Cross-Complaint.
On October 18, 2022, by request of East
West, the Clerk’s Office entered default on Eva Neumann and Royal regarding
East West’s Cross-Complaint.
On August 18, 2023, Wells Fargo filed
its Motion for Summary Judgment on East West’s Cross-Complaint (“MSJ”). In
support of its MSJ, Wells Fargo concurrently filed: (1) Declaration of Matthew
J. Esposito; (2) Separate Statement; and (3) Proposed Order.
On October 10, 2023, Morillo filed its
Motion for Terminating Sanctions Against Eva Neumann, or Alternatively for
Issue or Evidentiary Sanctions, and for Monetary Sanctions Against Eva Neumann
and Her Counsel of Record (“Motion for Terminating Sanctions”). In support of
its Motion for Terminating Sanctions, Morillo concurrently filed its Proposed
Order.
On October 20, 2023, Morillo filed its
Opposition to the MSJ. In support of its Opposition to the MSJ, Morillo
concurrently filed: (1) Declaration of Christopher Dodson; (2) Declaration of
Pierre B. Morillo; (3) Declaration of David J. Sire, Jr.; (4) Compendium of
Exhibits; (5) Separate Statement; (6) Evidentiary Objections; and (7) Proposed
Order.
On October 23, 2023, East West filed its
Response to the MSJ. In support of its Response to the MSJ, East West
concurrently filed: (1) Declaration of Jennifer Cheung; and (2) Response to
Separate Statement.
On October 27, 2023, Wells Fargo filed:
(1) Reply; (2) Reply to Evidentiary Objections; (3) Reply Separate Statement;
and (4) Objection to Morillo’s Evidence.
On October 30, 2023, Plaintiff filed
three Notice of Errata regarding the declarations filed in support of its
Opposition to the MSJ.
No opposition or other response has been
filed to the Motion for Terminating Sanctions.
ANALYSIS:
I.
Motion for Summary Judgment
A. Evidentiary
Objections
1. Morillo’s
Evidentiary Objections
Morillo filed evidentiary objections to Wells
Fargo’s evidence. The following are the Court’s rulings on these objections.
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Objection
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1
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OVERRULED
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2
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OVERRULED
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3
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OVERRULED
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2. Wells
Fargo’s Evidentiary Objections
Wells Fargo filed evidentiary objections to
Morillo’s evidence. The following are the Court’s rulings on these objections.
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Objection
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1
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OVERRULED
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2
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OVERRULED
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3
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OVERRULED
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4
|
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OVERRULED
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5
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OVERRULED
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6
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OVERRULED
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7
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OVERRULED
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8
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OVERRULED
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9
|
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OVERRULED
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10
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OVERRULED
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11
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|
OVERRULED
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|
12
|
|
OVERRULED
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13
|
|
OVERRULED
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14
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OVERRULED
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15
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OVERRULED
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16
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OVERRULED
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B. Legal
Standard
“A party may
move for summary judgment in an action or proceeding if it is contended that the
action has no merit or that there is no defense to the action or proceeding.
The motion may be made at any time after 60 days have elapsed since the general
appearance in the action or proceeding of each party against whom the motion is
directed or at any earlier time after the general appearance that the court,
with or without notice and upon good cause shown, may direct.” (Code Civ.
Proc., § 437c, subd. (1)(a).)
“[T]he party moving for summary judgment bears the burden of persuasion
that there is no triable issue of fact and that he is entitled to judgment as a
matter of law. That is because of the general principle that a party who seeks
a court’s action in his favor bears the burden of persuasion thereon. There is
a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof.” (Aguilar
v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850, citation omitted.)
“[T]he party moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable
issue of material fact; if he carries his burden of production, he causes a
shift, and the opposing party is then subjected to a burden of production of
his own to make a prima facie showing of the existence of a triable issue of
material fact.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo Bank, N.A. (2005) 135
Cal.App.4th 1463, 1474, [applying the summary judgment standards in Aguilar
to motions for summary adjudication].)
“On a summary judgment motion, the court must therefore consider what
inferences favoring the opposing party a factfinder could reasonably draw from
the evidence. While viewing the evidence in this manner, the court must bear in
mind that its primary function is to identify issues rather than to determine
issues. Only when the inferences are indisputable may the court decide the
issues as a matter of law. If the evidence is in conflict, the factual issues
must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75
Cal.App.4th 832, 839, citation omitted.)
“The trial court may not weigh the evidence in the manner of a fact
finder to determine whose version is more likely true. Nor may the trial court
grant summary judgment based on the court's evaluation of credibility.” (Binder,
supra, at p. 840, citations omitted; see also Weiss v. People ex rel.
Dep’t of Transp. (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for
summary judgment or summary adjudication may not weigh the evidence but must
instead view it in the light most favorable to the opposing party and draw all
reasonable inferences in favor of that party”].)
“On a motion for summary adjudication, the trial court has no
discretion to exercise. If a triable issue of material fact exists as to the
challenged causes of action, the motion must be denied. If there is no triable
issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise
Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320, citation omitted.)
C. Discussion
1. The
Parties’ Arguments
Wells Fargo moves for summary judgment on
East West’s Cross-Complaint. (MSJ, p. 19:3–4.) Wells Fargo argues: (1) that
summary judgment must be granted when there is no triable issue of material
fact; (2) that Morillo’s claims against East West are time-barred by the
deposit agreement; and (3) that because Morillo’s claims against East West
fail, Wells Fargo has no remaining liability in this action. (Id. at pp.
11:12–13, 12:10–11, 17:18–19.)
Morillo opposes the MSJ, arguing: (1) that
Morillo has standing to oppose the MSJ because it is a party with an interest
in the outcome; (2) that unendorsed checks alone do not amount to notice of a
fraud; (3) that Morillo’s proposed First Amended Complaint provides grounds for
denying the MSJ; (4) that East West assigned blame to Wells Fargo for breaching
warranties and improperly processing joint checks; and (5) that the MSJ should
be continued to permit Morillo to complete discovery necessary to oppose the
MSJ. (Opposition to MSJ, pp. 7:25–26, 9:8–9, 12:15, 13:13–14, 15:1–2.)
East West does not oppose the MSJ, arguing:
(1) that the Court should adjudicate that Morillo has no claim against East
West on both the Cross-Complaint and the Complaint; and (2) that the discovery
issues are essentially resolved and discovery is near conclusion. (Response to
MSJ, pp. 3:4–6, 4:3–5.)
In its Reply, Wells Fargo
argues: (1) that Morillo lacks standing to oppose the MSJ; (2) that there is no
material dispute that Morillo agreed to East West’s deposit agreement; (3) that
Morillo has not provided a sufficient excuse to its contractual obligations;
and (4) that Morillo’s request to continue the hearing should be denied.
(Reply, pp. 1:25, 4:4–5, 5:16, 9:10.)
2. Standing
Morillo, East West, and Wells Fargo each
argue about standing. None provide binding authority on the issue.
After conducting its own
research, the Court did not find a prior case exactly on point to this
situation – i.e., where a plaintiff who is not also a cross-defendant seeks to
oppose a motion that would adjudicate the cross-complaint.
However, various Courts of
Appeal have considered standing in ways that are apposite. (See New Tech
Devs. v. Bank of Nova Scotia (1987) 191 Cal.App.3d 1065, 1068, fn. 1
[noting that a party that is not an object of a preliminary injunction has
standing to oppose the injunction when its enforcement affects that party in a
way that makes it an aggrieved party]; see also Abadjian v. Super. Ct. (1985)
168 Cal.App.3d 363, 370 [accepting that a party does not have standing to
oppose a petition because it did not participate in the trial court proceedings
and was not a party favored or affected by the ruling].)
In addition, two maxims of
jurisprudence in the Civil Code are helpful guides here. “Where the reason is the
same, the rule should be the same.” (Civ. Code, § 3511.) “The law respects form
less than substance.” (Civ. Code, § 3528.)
As to the first maxim of
jurisprudence, a helpful analogue is the standard for standing on appeal. “‘Any party aggrieved’ may appeal from an adverse judgment. (Code Civ. Proc., § 902.) The test is twofold – one must be
both a party of record to the action and aggrieved to
have standing to appeal.” (Stonegate Homeowners Ass’n v. Staben (2006)
144 Cal.App.4th 740, 745, fn. 1, emphasis omitted.)
As to the second maxim of
jurisprudence, it is obvious that a motion which in its title only attacks one
pleading but in substance attacks both pleadings is actually an attack on both
pleadings.
Here, Wells Fargo has filed
a motion for summary judgment that clearly attacks the pleadings of both East
West and Morillo. Both East West and Morillo have participated as parties of
record in this litigation. A determination on the issues at hand would affect
and potentially aggrieve both East West and Morillo, albeit in different ways,
because of Morillo’s two causes of action (for breach of written contract and breach
of implied covenant of good faith and fair dealing) against East West.
(Complaint, pp. 4:21, 6:17.)
The Court determines that
Morillo has standing to oppose the Motion for Summary Judgment.
3. Continuance
for Additional Discovery
Trial is scheduled December 4, 2023 – less
than 30 days from the hearing on the MSJ. Discovery-related issues should have
already been resolved. Morillo has not made a sufficient showing to warrant a
continuance of either trial or the MSJ. The Court declines to continue the MSJ in
order to allow further discovery.
4. The
Proposed First Amended Complaint
Morillo argues that its proposed First
Amended Complaint provides grounds for denying the MSJ. (Opposition to MSJ, p.
12:15.) Specifically, Morillo claims that asserting three additional causes of
action (negligence, reformation of contract, and declaratory relief) against
East West would bear on the arguments at issue. (Id. at pp. 12:16–17,
13:9–12.)
The Court disagrees with Morillo’s argument.
First, the proposed First Amended Complaint
is just that – a proposed pleading. It is not the subject of the MSJ at hand,
which is directed to the Complaint.
Second, the addition of three causes of
action in a pleading, without any additional allegations of underlying conduct
as to the original causes of action, would make no difference to the
adjudication of the current causes of action.
Accordingly, the Court declines to consider
the proposed First Amended Complaint at this time. The proposed First Amended
Complaint will be considered at the time previously scheduled for such
consideration.
5. The
Deposit Account Agreement at Issue
The basis for Morillo’s two causes of action
against East West are violations of a deposit account agreement between them.
(Complaint, ¶¶ 23–24, 28, 34–35.)
The following are the relevant provisions
from the contract between Morillo and East West that implicates any liability
between them (and, by extension, any indemnity that Wells Fargo could have to
East West on the basis of East West’s liability to Morillo):
“Unauthorized Transactions –You are in
the best position to discover and report any unauthorized debit to your
account. If you discover a forgery, alteration, counterfeit check or other
unauthorized withdrawal or debit involving your account, you must promptly
notify your branch of account, in writing, of the relevant facts. It is
important that you carefully and promptly review all statements and notices we
send to you. If you fail to notify us within a reasonable period of time (not
exceeding 21 days after your statement date) of an unauthorized signature,
alteration, forgery, counterfeit check or other unauthorized debit to your
account we may not be responsible for subsequent forgeries or alterations by
the same wrongdoer. (See Customer Responsibilities and Limit on Time to Assert
Claims, under the Additional Terms and Conditions section, for additional
information. See the Holds for Uncollected Funds/ Delayed Funds Availability
section for information regarding claims pursuant to a substitute check,
covered under the ‘Check 21 Act’.)
“Without regard to care or lack of care
of either you or us, if you do not discover and report an error or an
unauthorized signature, alteration, forgery, counterfeit check, or other
unauthorized debit to your account within 60 days after the date of your
statement or the date the information about the item or transaction is made
available to you, whichever is earlier, you are precluded from asserting the
error or unauthorized transaction against us. (Note: Different
notification and liability rules apply to certain electronic funds transfers.
See the Electronic Funds Transfers section for additional information.)
. . .
“You also agree that we will have no
liability for items paid that were forged or altered in a manner such that the
fraud could not be reasonably detected by us.
“You agree to pursue all rights you may have
under any insurance policy covering any loss and to provide us with information
regarding coverage.
“Our liability will be reduced,
proportionately in accordance with our responsibility for any loss, by the
amount of any insurance proceeds you receive or are entitled to receive for the
loss. If we reimburse you for a loss and the loss is covered by insurance, you
agree to assign us your rights under the insurance policy to the extent of our
reimbursement, in accordance with this provision. You waive all rights of
subrogation against us with respect to any insurance policy or bond.”
(Decl. Esposito, Exh. 4, pp. 19–20 [actual page 70 of 213], emphasis
added.)
“Customer Responsibilities and Limit on
Time to Assert Claims – You agree to exercise reasonable control over all
bank checks, unissued checks, certificates of deposit, passbooks, check cards
(of any kind), personal identification numbers (PINs), ATM access cards and any
other item, instrument, or card related to your account. It is your responsibility
to keep any of the above safe and secure and to promptly discover if any of
them are missing in time to prevent misuse. You agree to notify us immediately
if any of these items may be lost, stolen or used without your authorization,
or if you believe there is an error in your periodic statement or that an
unauthorized transaction has occurred or may occur on your account. You
acknowledge that your account may have to be closed if any of these events
occurs. (See Unauthorized Transactions and Protecting Your Account,
under the Additional Terms and Conditions section, for additional
information.)
. . .
“You agree to review your statements, checks
and other records sent or made available to you with reasonable promptness,
which you agree does not exceed 21 days after your statement date or the date
the information is otherwise made available to you. If you do not receive your
statement by the date you usually receive it, call us at once. You assume full
responsibility for monitoring and reviewing the activity of your account and
the work of your employees, agents, accountants, whether or not you actually receive
the statements, and whether or not the statements contain the items bearing an
unauthorized signature or alteration. (See Periodic Statement and Notice
Responsibilities, under the Additional Terms and Conditions
section, for additional information.)
“You must notify us as soon as possible if
you believe there is an error, forgery, alteration, unauthorized transaction or
other problem (individually and/or collectively referred to herein as
‘problem’) related to your account. You agree that 21 days after we have mailed
the statement to the mailing address you have provided to us, or/otherwise made
the information available to you, is a reasonable amount of time for you to
review your account activity and report any problem related to your account and
we will not be responsible for any subsequent unauthorized activity or other
problems that might have been corrected if you had reviewed your statement and
reported any problems within such period. In addition, you agree not to
assert a claim concerning any problem unless you have notified us of such
problem within 60 days after we mailed you the statement or otherwise made the
information available to you, and to exhaust all of your remedies against your
insurance or bonding company before filing a claim against us for unauthorized
transactions in which your employee has been involved. You agree that
any recovery you receive will be applied toward the loss you claim against us.
(See Limiting Our Liability, under the Additional Terms and
Conditions section, for additional information.)
“Notwithstanding the foregoing, and in
addition to any rights we may have under applicable law, if you fail to
discover and report to us any problem related to your account(s) within 60 days
of the date the statement on which such problem is reflected is mailed or the
information is otherwise made available to you (or other shorter period
provided by law), you agree for all purposes to accept the balance indicated in
our records as correct and relieve us of further responsibility or liability to
you with respect to such problem., You are precluded from asserting, and waive
any right to assert, any such problem against us in any proceeding including,
without limit, arbitration or court proceeding, after such period.
“Except for shorter periods provided under
this Agreement or by applicable law, any action or proceeding brought by you to
enforce any obligation, duty, or right arising under or relating to this
Agreement or otherwise relating to your account(s) or service(s) provided to
you hereunder, must be commenced within 1 year after the cause of action
occurs.
“You agree that you will not deposit any item
into your account, which does not bear either a true original signature of the
person on whose account the item is drawn or an authorized mechanical
reproduction of that person’s signature, without our prior express written
consent, which may be withheld at our discretion. If we do consent to deposit
of such items such consent may be withdrawn at any time without cause or prior
notice.”
(Decl. Esposito, Exh. 4, pp. 25–26 [actual page 73 of 213], emphases
added.)
6. Whether
There is a Triable Issue of Material Fact
Here, Morillo argues that there are multiple
triable issues of material fact, and its separate statement points to nearly a
dozen allegedly “disputed” facts.
The Court disagrees with Morillo’s arguments.
First, Morillo’s claims about what the
deposit account agreement does and does not require are simply unfounded. The
deposit account agreement is clear: “you [i.e., Morillo] agree not to assert a
claim concerning any problem unless you have notified us [i.e., East West] of
such problem within 60 days after we mailed you the statement or otherwise made
the information available to you”. (Decl. Esposito, Exh. 4, p. 26 [actual page
73 of 213].) Claims include “an error . . . or other problem . . . related to
your account.” (Ibid.) While the provisions at issue may be
objectionable or unconscionable, there is no actual dispute that they are
clear.
Second, Morillo disputes the extent of its
access to online banking. Yet there is no actual dispute that Morillo did have
access to online banking through East West. (See, for example, Morillo’s
Separate Statement, p. 9 [“Because of these risks, Morillo has limited its
online banking only to payroll . . . .”].)
Third, Morillo states it had a policy of only
using online banking when it had to and claims that there is a dispute about
whether this policy was reasonable. But Morillo’s internal policy is irrelevant
to the terms of the deposit account agreement. East West making information
available to Morillo was sufficient to trigger the sixty-day notice deadline
under the deposit account agreement because the phrase “otherwise made the
information available to you” includes making that information immediately
available via an online bank account. Thus, whether Morillo had an internal
policy of not reviewing its online account except under certain circumstances
is not a material fact regarding East West’s liability under the deposit
account agreement.
Fourth, Morillo disputes whether the front
and back images of the dispute checks were available online, when they were
made available, and for how long. (Morillo’s Separate Statement, pp. 9–10.) But
Morillo provided copies of the front and back of each of the eighteen checks at
issue in its Complaint. (Complaint, Exh. B.) The bottom-right portion of these
copies shows the access dates as either August 30, 2021 or September 9, 2021 – more
than six months before the Complaint was filed in this matter. Further, the
top-right portion of each of the copies (again, of the front and back of each
of the checks) includes a uniform resource locator (a.k.a., a URL, or a web
address) to Morillo’s online bank account with East West. Thus, this “dispute”
is unreasonable and illusory – Morillo’s own evidence demonstrates that it had
online access to the front and back sides of each of the eighteen checks.
Finally, Morillo disputes that it waited more
than sixty days to notify East West of the issues with the eighteen checks. But
Morillo’s Separate Statement states that notice was given on September 6, 2021 –
which is more than sixty days after the last check was paid on June 9, 2021.
Thus, there is no dispute here.
Because Wells Fargo had met its initial
burden to show that there are no triable issues of material fact, it is
Morillo’s subsequent burden to show that there is one. Morillo has not met that
burden.
7. Wells
Fargo’s Liability in East West’s Complaint
There are no triable issues of material fact
as to East West’s liability to Morillo. Because East West is not liable to
Wells Fargo on the causes of action in the Complaint, Wells Fargo is not liable
to East West on the causes of action in East West’s Cross-Complaint.
Therefore, summary judgment is appropriate
here.
D. Conclusion
The Motion for Summary Judgment is GRANTED.
Summary judgment is granted in favor of East West and against Morillo on the
second and third causes of action in the Complaint. Summary judgment is also
granted in favor of Wells Fargo and against East West on East West’s
Cross-Complaint.
II.
Motion for Terminating Sanctions
A. Legal
Standard
Code of Civil Procedure section 2023.030 gives
the court the discretion to impose sanctions against anyone engaging in a
misuse of the discovery process. A court may impose terminating sanctions by
striking pleadings of the party engaged in misuse of discovery or entering
default judgment. (Code Civ. Proc., § 2023.030, subd. (d).) A violation of a
discovery order is sufficient for the imposition of terminating sanctions. (Collison
& Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating
sanctions are appropriate when a party persists in disobeying the court's
orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795–796.)
A terminating sanction is a "drastic
measure which should be employed with caution." (Deyo, supra,
at p. 793.)
"A decision to order terminating
sanctions should not be made lightly. But where a violation is willful,
preceded by a history of abuse, and the evidence shows that less severe
sanctions would not produce compliance with the discovery rules, the trial
court is justified in imposing the ultimate sanction." (Mileikowsky v.
Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279–280.)
While the court has discretion to impose
terminating sanctions, these sanctions "should be appropriate to the
dereliction and should not exceed that which is required to protect the
interests of the party entitled to but denied discovery." (Deyo, supra,
84 Cal.App.3d at p. 793.) "[A] court is empowered to apply the ultimate
sanction against a litigant who persists in the outright refusal to comply with
his discovery obligations." (Ibid.) Discovery sanctions are not to
be imposed for punishment, but instead are used to encourage fair disclosure of
discovery to prevent unfairness resulting for the lack of information. (See Midwife
v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as
stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)
"A trial court has broad discretion to
impose discovery sanctions, but two facts are generally prerequisite to the
imposition of nonmonetary sanctions . . . (1) absent unusual circumstances,
there must be a failure to comply with a court order, and (2) the failure must
be willful." (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th
1315, 1327; but see Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291
["willfulness is no longer a requirement for the imposition of discovery
sanctions."].)
B. Discussion
Morillo moves the Court to issue: (1) a
terminating sanction striking Eva Neumann’s Answer to the Complaint; (2) an
issue sanction that Eva Neumann be prohibited from asserting the affirmative
defenses contained in her Answer to the Complaint; (3) an evidentiary sanction
that Eva Neumann be prohibited from introducing any evidence in support of the
affirmative defenses contained in her Answer to the Complaint; and (4) a
monetary sanction against Eva Neumann and her Counsel in the amount of
$1,345.00. (Motion for Terminating Sanctions, pp. 7:20–25, 8:1–2.)
According to Morillo’s
Counsel, Eva Neumann has not complied with the Court’s order on August 8, 2023
to provide Morillo with certain initial and further discovery responses.
(Motion for Terminating Sanctions, Decl. Sire, ¶¶ 5, 7.)
Upon a review of the docket
and the record in this matter, there appears to be a glaring issue with the
relief requested: Eva Neumann is already in default.
On July 27, 2022, by request
of Morillo, the Clerk’s Office entered default on Eva Neumann and Royal
regarding the Complaint. A few days later, on August 12, 2022, Morillo, Royal,
and Eva Neumann filed a Stipulation to Vacate and Set Aside the Defaults as to
Royal and Eva Neumann.
However, the Court never issued an order
vacating the default. Neither Morillo nor Eva Neumann requested such an order
or a hearing on such an order, and the Court was not made aware that this
Stipulation required any action by the Court. Putting aside that the Parties
were responsible for keeping track of this issue, the Parties should have been
made aware that Royal and Eva Neumann remained in default on Sept. 22, 2022,
when Morillo attempted to request default for a second time on Royal but was
rejected by the Clerk’s Office on the ground that Royal had already been
defaulted by the Request for Entry of Default on July 27, 2022.
The remaining default would have been an additional (and independent)
reason to strike Royal’s Answer to the Complaint, which the Court struck
because Royal was an unrepresented corporate litigant.
That same reasoning applies here: Eva Neumann’s Answer to the Complaint
must be stricken because she remains in default. Because Eva Neumann has been
in default, the Court declines to issue the issue, evidentiary, or monetary
sanctions requested.
C. Conclusion
The Motion for Terminating Sanctions is
GRANTED in part. Eva Neumann’s Answer to the Complaint is STRICKEN. The Motion
for Terminating Sanctions is DENIED as to all other requests for relief.
Case Number: 22STCV16977 Hearing Date: November 16, 2023 Dept: 48 SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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JESSICA DE ROTHSCHILD, et al.,
Plaintiffs,
vs.
DIANA LANDS, et al.,
Defendants.
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)
)
)
)
)
)
)
)
)
)
)
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CASE NO.: 22STCV16977
[TENTATIVE] ORDER DENYING AS MOOT MOTION
TO COMPEL FURTHER RESPONSES
Dept. 48
8:30 a.m.
November 16, 2023
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On May 23, 2022, Jessica De Rothschild, Alexander Gervasi,
and Industria (USA) LLC (“Industria”) filed this action against Diana Lands aka
Diana Lands Nathanson (“Lands”) and Diana Lands Nathanson Design Inc.
On
September 7, 2022, Lands served Request for Production of Documents, Set One on
Industria. (Dove Decl. ¶ 2.) Industria served responses on October 21 and
25, 2022. (Dove Decl. ¶¶ 3-4.) According to Lands, “there were 9,753 pages
of documents divided into 2,737 separate pdf files. This production was a collective of documents
produced by all 3 Plaintiffs. . . . None of the documents were identified to
allow a reader to know which plaintiff produced which documents or which
Request the documents were responsive to.”
(Dove Decl. ¶ 5.)
On
October 31, 2022, Lands’s counsel sent a letter to Industria’s counsel. (Dove Decl. ¶ 6.) During a call on December 7, 2022, Lands’s
counsel contended that the responses were noncompliant. (Dove Decl. ¶ 7.)
Industria
served supplemental responses on December 21, 2022. (Dove Decl. ¶ 9.) Of the 67 categories of documents requested, Industria
responded that it would produce documents responsive to 53 categories. (Dove Decl. ¶ 10.) However, Lands’s counsel was unable to discern
what documents were produced in response to which request or category of
documents. (Dove Decl. ¶ 10.)
Lands
filed a motion to compel compliance (Code Civ Proc., § 2031.280) on July 12,
2023.
According
to Lands’s counsel, “Between the October 31 correspondence and December 7
telephone conference, I have satisfied the meet and confer requirements of Code
of Civ. Proc. §2016.040 to reach an informal resolution to this issue.” (Dove Decl. ¶ 8.) However, counsel did not meet and confer
after Industria’s December 21, 2022 supplemental responses, despite Industria’s
counsel’s attempts. (See Elsea Decl. ¶¶
10-13.) Nevertheless, the Court will
rule on the merits of the motion.
If
a party filing a response to a demand for inspection, copying, testing, or
sampling thereafter fails to permit the inspection, copying, testing, or
sampling in accordance with that party’s statement of compliance, the demanding
party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320, subd. (a).)
“Any
documents or category of documents produced in response to a demand for
inspection, copying, testing, or sampling shall be identified with the specific
request number to which the documents respond.”
(Code Civ. Proc., § 2031.280, subd. (a).) “There is no requirement that a response
identify a document with the specific request to which the document applies,”
and no requirement that documents be Bates-stamped. (Pollock v. Superior Court of Los Angeles
County (2023) 93 Cal.App.5th 1348, 1358.)
On
September 1, 2023, Industria’s counsel sent to Lands’s counsel a spreadsheet
categorizing the documents by RFP number.
(Elsea Decl., Ex. B.) This
spreadsheet clearly states the beginning and ending Bates-stamp pages for each
complete document, and it lists the RFPs for which the document is
responsive. This is a compliant response
and resolves the issue set forth by Lands.
Accordingly,
the motion is DENIED AS MOOT.
The
requests for sanctions are denied. Lands
should have continued to meet and confer after receiving supplemental responses
on December 21, 2022 and before filing this motion on July 12, 2023. Industria should not have waited until
September 1, 2023 to identify the documents because Lands’s October 31, 2022 specifically
stated the issue.
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org
indicating intention to submit. If all parties
in the case submit on the tentative ruling, no appearances before the Court are
required unless a companion hearing (for example, a Case Management Conference)
is also on calendar.
Dated this 16th day of November 2023
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Hon. Thomas D. Long
Judge of the Superior
Court
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Case Number: 22STCV17190 Hearing Date: November 13, 2023 Dept: 32
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ELISE FAHEY,
Plaintiff,
v.
TERRENCE BUDD, et al.,
Defendants.
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Case No.: 22STCV17190
Hearing Date: November 13, 2023
[TENTATIVE]
order RE:
defendants’ demurrers to second amended
complaint
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BACKGROUND
On May 24, 2022, Plaintiff Elise
Fahey filed this action against Defendants Terrence Budd, Matthew Budd, and
Hugo Budd, asserting claims for constructive trust, interference with inheritance,
and fraud. On April 20, 2023, Plaintiff filed the First Amended Complaint,
asserting claims for interference with contract, interference with prospective
economic advantage, fraud, and constructive trust.
Defendants filed two demurrers
against the FAC, primarily arguing that Plaintiff’s claims to recover her
supposed inheritance are subject to the exclusive jurisdiction of the Probate
Court. Plaintiff conceded that the Probate Court had exclusive jurisdiction and
for that reason requested this Court to take the demurrers off calendar. The
Court agreed with Defendants and sustained the demurrers with leave to amend on
August 9, 2023.
On August 31, 2023, Plaintiff filed
the operative Second Amended Complaint, asserting (1) interference with
contract, (2) interference with prospective economic advantage, and (3)
constructive trust. The SAC alleges that Plaintiff was in a long-term
relationship with Decedent Harold Budd, father of the three Defendants. (SAC ¶
4.) Decedent allegedly agreed to give Plaintiff 25% of his royalties in exchange
for Plaintiff’s care and companionship. (Id., ¶ 5.) Decedent’s royalty
and intellectual property rights were allegedly not subject to distribution by will.
(Id., ¶ 6.) Instead, an assignment allegedly provided that Plaintiff and
Decedent’s three children would share equally in the proceeds. (Ibid.) Plaintiff
alleges that when Decedent’s sons discovered this arrangement, they caused
Decedent to alter the assignment and remove Plaintiff as an assignee through
undue influence. (Id., ¶ 9.)
On October 2, 2023, Defendants filed
the instant two demurrers to the SAC, again arguing that the Probate Court has
exclusive jurisdiction. Plaintiff filed a late opposition on November 3, 2023.
Defendants filed their replies on November 6, 2023.
LEGAL STANDARD
A demurrer for sufficiency tests whether a
pleading states a cause of action or defense. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
In a demurrer proceeding, the defects must be apparent on the face of the
pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a
demurrer hearing is whether the pleading, as it stands, unconnected with
extraneous matters, states a cause of action or defense. (Hahn, supra, 147 Cal.App.4th at 747.)
MEET AND CONFER
Before filing a demurrer or a motion to strike,
the demurring or moving party is required to meet and confer with the party who
filed the pleading demurred to or the pleading that is subject to the motion to
strike for the purposes of determining whether an agreement can be reached
through a filing of an amended pleading that would resolve the objections to be
raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes
that Defendants have complied with the meet and confer requirement. (See Aikin
Decl.; Juenger Decl.)
DISCUSSION
“[A] superior court sitting in
probate has ‘exclusive jurisdiction’ over certain types of actions. For
example, the probate court has exclusive jurisdiction to probate and interpret
a will, determine entitlement to distribution, and administer and distribute a
decedent's estate.” (Capra v. Capra (2020) 58 Cal.App.5th 1072, 1083.)
In the prior FAC, Plaintiff had
alleged that Decedent executed a first codicil to his will adding Plaintiff as
a beneficiary of his estate, which entitled Plaintiff to 25% of residue. (FAC ¶
6.) The FAC further alleged that the codicil provided that Decedent’s royalty
and intellectual rights were subject to assignment rather than distribution by
will. (Ibid.) Plaintiff alleged that Defendants exerted undue influence
over Decedent to have Plaintiff removed as a beneficiary of the royalties. (Id.,
¶ 9.) In its order sustaining the demurrer to the FAC, the Court held that these
allegations involved determinations in the exclusive jurisdiction of the Probate
Court. (August 9, 2023 Order at 3:3-7.)
In the SAC, Plaintiff reiterates the same
allegations but simply omits any mention of a will or codicil. (See SAC ¶¶
5-9.) Plaintiff now argues that the claims are based on a purported “agreement”
with Decedent, separate from testamentary disposition. However, Plaintiff
cannot avoid the effect of her prior pleading. Plaintiff clearly alleged in the
FAC that her entitlement to royalties was based on a codicil. (FAC ¶ 6.) The
allegations in the SAC, which are based on the same purported 25% interest in
royalties and associated assignment, invoke the exclusive jurisdiction of the
Probate Court in the same way as the allegations in the FAC. Plaintiff asserts the
same interest in both complaints, and the Court has already determined (and
Plaintiff has admitted) that that interest is subject to adjudication in
probate. Merely removing references to the will or codicil does not change this.
“A pleader may not attempt to breathe life into a complaint by omitting
relevant facts which made his previous complaint defective.” (Hills Transp.
Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 713.)
Furthermore, even if the claim is based on
contract, that does not divest the Probate Court of jurisdiction. The claim
still concerns the allocation of property in Decedent’s estate, which is subject
to exclusive probate jurisdiction. (See Capra, supra, 58 Cal.App.5th at
p. 1083.)
CONCLUSION
Defendants’ demurrers are SUSTAINED without
leave to amend.
Case Number: 22STCV21759 Hearing Date: November 15, 2023 Dept: 58 Judge Bruce G. Iwasaki
Department
58
Hearing
Date: November 15, 2023
Case
Name: IMS Fund, LLC v. Doarian
Okell Bennett
Case
No.: 22STCV21759
Matter: Default Judgment
prove-up
Moving
Party: Plaintiff IMS Fund,
LLC
Responding
Party: Unopposed
Tentative Ruling: The request for
default judgment is denied.
This
action arises from a breach of an Agreement for the Purchase and Sale of Future
Receipts. Plaintiff IMS Fund, LLC (Plaintiff) sued Defendant Doarian Okeel
Anthony Bennett (Defendant) asserting a cause of action for breach of contract
and common counts. Plaintiff alleges it advanced the sum of $45,000.00 to
Defendant and in exchange Defendant agreed to pay Plaintiff the sum of
$67,050.00 from future receivables earned by delivering to Plaintiff weekly
thirty two percent (32%) of the proceeds of each future sale made by Defendant.
According to the First Amended Complaint, Defendant breached this Agreement.
The
Complaint was filed on January 5, 2023. An Amended Complaint was filed on March
3, 2023. Default was entered against September 20, 2023.
Plaintiff
now moves for default judgment against Defendant. Does 1-20 have been dismissed.
The request for entry of default judgment is granted.
Discussion
Plaintiff
seeks default judgment in the amount of $44,844.04, which includes $4,941.52 in
interest, $1,049.43 in costs, and $1,510.29 in attorney fees.
There
is no evidence in support of the default judgment. Plaintiff purports to submit
the declaration of Daniel Eaker, Manager of Plaintiff, to substantiate its default
judgment request; however, the declaration is signed, inexplicably, by Oleg
Rud.
Moreover, while
this declaration addresses the request for damages, interest and attorney fees,
it does not address or substantiate the request for costs.
The
request for default judgment is denied. The
Court will set a hearing date and deadline for submission of necessary
evidence.
Case Number: 22STCV24875 Hearing Date: November 13, 2023 Dept: 27 SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF LOS ANGELES -
CENTRAL DISTRICT
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Steven Pagliaro
Plaintiff,
vs.
Tenten Wilshire, et al.,
Defendant(s).
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CASE NO.: 22STCV24874
[TENTATIVE] ORDER RE: Motion to
Compel Responses
Dept. 27
1:30 p.m.
November 13, 2023.
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I.INTRODUCTION
On August 2, 2022, Plaintiff
Steven Pagliaro (“Plaintiff”) filed a complaint against Defendants Tenten
Wilshire, LLC, Amidi Partners, LLC, Amidi Real Estate, LLC, Admidi, LLC
(“Defendants”) alleging two causes of action for premises liability and general
negligence. The complaint alleges that Plaintiff, a tenant of the Subject
Property, was using the back staircase that was slippery, uneven, and/or
otherwise dangerous. Plaintiff fell and was injured.
On January 20, 2023, Defendants
Tenten Wilshire, LLC, and Amir, LLC filed an Answer.
On September 15, 2023, Plaintiff
filed the current motion to compel responses to Special Interrogatories, Set
Two. As of November 7, 2023, no Opposition has been filed.
II.LEGAL STANDARD
If a party to whom
interrogatories are directed fails to serve a timely response, the propounding
party may move for an order compelling responses and for a monetary sanction.¿
(Code Civ. Proc., § 2030.290, subd. (b).)¿ The statute contains no time limit
for a motion to compel where no responses have been served.¿ All that needs be
shown in the moving papers is that a set of interrogatories was properly served
on the opposing party, that the time to respond has expired, and that no
response of any kind has been served.¿ (Leach
v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)¿Failure to timely
respond waives all objections, including privilege and work product.¿ (Code
Civ. Proc., § 2030.290, subd. (a).)¿
Under California Code of Civil
Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary
sanction ordering that one engaging in the misuse of the discovery process, or
any attorney advising that conduct, or both pay the reasonable expenses,
including attorney’s fees, incurred by anyone as a result of that conduct. . . .
If a monetary sanction is authorized by
any provision of this title, the court shall impose that sanction unless it
finds that the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction unjust.”¿
Failing to respond or to submit to an authorized method of discovery is a
misuse of the discovery process.¿ (Code Civ. Proc., § 2023.010.)¿
Sanctions are mandatory in connection with motions to compel
responses to interrogatories against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel unless the court “finds that
the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.”¿ (Code Civ.
Proc., §§ 2030.290, subd. (c).)
III.DISCUSSION
Responses
Plaintiff seeks to compel
Defendant Tenten Wilshire, LLC, to provide responses, without objections, to Special
Interrogatories, Set Two.
On January 17, 2023, Plaintiff
propounded the second set of special interrogatories on Defendant Tenten, LLC,
and no responses were provided. On May 4, 2023, Plaintiff contacted Defendant,
indicating that they had failed to provide responses and requested responses.
(Motion 3: 25 – 4: 1; Dec. Bassil, ¶ 5, Ex. B.) After receiving no response to
this letter, Plaintiff again contacted Defendant on August 22, 2023, indicating
that responses had yet to be provided and provided a deadline of August 29,
2023. (Motion 4: 2-5; Dec. Bassil, ¶ 6, Ex. C.) On August 29, 2023, Defendant
responded to Plaintiff’s email update requesting an extension. Plaintiff
allowed for an extension, with responses due on September 12, 2023. However,
Defendant has yet to provide any responses.
Plaintiff is entitled to responses. Defendant Tenten has
failed to provide responses to the Special Interrogatories, Set Two that were
served in January 2023. As stated above, under CCP §§ 2030.290, when a party
fails to provide responses to timely propounded discovery, a party may move for
an order compelling responses.
Sanctions
The Court may award discretionary sanctions if it finds that
a party has misused the discovery process. (See
Code Civ. Proc., § 2023.030(a).) Code of Civil Procedure § 2023.010(d)
identifies “[f]ailing to respond or to submit to an authorized method of
discovery” as a misuse of the discovery process. Here, there is no excuse or
substantial justification for Defendant’s refusal to provide responses to
Plaintiff’s Form Interrogatories, Set Two, in compliance with the discovery
statutes. Accordingly, the Court awards
sanctions as requested in the amount of $1,686.65.
IV.CONCLUSION
Motion to Compel Responses and request for sanctions are
GRANTED.
Moving party to give notice.
Parties who intend to submit on
this tentative must send an email to the Court at SSCDEPT27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions
provided on the court website at www.lacourt.org. Please be advised that
if you submit on the tentative and elect not to appear at the hearing, the
opposing party may nevertheless appear at the hearing and argue the
matter. Unless you receive a submission from all other parties in the
matter, you should assume that others might appear at the hearing to
argue. If the Court does not receive emails from the parties indicating
submission on this tentative ruling and there are no appearances at the
hearing, the Court may, at its discretion, adopt the tentative as the final
order or place the motion off calendar.
Dated this 9th day of November 2023
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Hon. Lee S. Arian
Judge of the Superior
Court
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Case Number: 22STCV25235 Hearing Date: November 13, 2023 Dept: 31 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT SION PAUL SINGLETON, a minor by and through his Guardian Ad Litem, Angel Jacoba Schat, ET AL., PORTER CHARLES JONES, ET AL., | | [TENTATIVE] ORDER GRANTING UNOPPOSED MOTION TO TRANSFER VENUE |
On August 15, 2023, Plaintiffs Sion Paul Singleton, a minor by and through his Guardian Ad Litem Angel Jacoba Schat, and Angel Jacoba Schat (“Plaintiffs”) filed their operative First Amended Complaint (“FAC”) action against Defendants Porter Charles Jones, Brian Charles Jones, County of Inyo, State of California, and City of Bishop, asserting a claim for negligence arising from an automobile accident which occurred on August 29, 2021 at the intersection of Horace Albright Avenue in the City of Bishop, California. At this time, Defendants Porter Charles Jones and Brian Charles Jones (“Jones Defendants”) move to transfer venue to Inyo County. Any opposition to the motion was due on or before August 30, 2023. As of August 30, 2023, no opposition has been filed. The Jones Defendants assert that Inyo County is the county where the Jones Defendants reside, that no individual defendant in this action resides in Los Angeles County, and that the automobile accident giving rise to the action occurred in the County of Inyo. The Jones Defendants thus contend that Los Angeles County is not the proper venue for trial in this matter, and the action must be transferred. Pursuant to CCP §395(a), an action for personal injuries is properly brought in the “superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action.” A motion for change of venue must be supported by competent evidence, such as the complaint and declarations of the parties. (Mosby v. Superior Court (1974) 43 Cal.App.3d 219, 227; see also Lieppman v. Lieber (1986) 180 Cal. App. 3d 914, 919 [declaration that relies on hearsay, generalities, and conclusions must be disregarded in determining the motion].) When the motion seeks transfer to the moving defendant’s county of residence on wrong court grounds, the motion must establish the defendant was a resident of the county to which the transfer is sought at the time the action was commenced. (Sequoia Pine Mills, Inc. v. Superior Court of Tuolumne County (1968) 258 Cal.App.2d 65, 67-68.) Here, the Jones Defendants provide evidence that the alleged incident that forms the basis of Plaintiffs’ FAC occurred in Inyo County, that the Jones Defendants were and are residents of the City of Bishop, which is in Inyo County. (Mot. Schlecht Decl. ¶ 4, Exh. A.) As to public entity State of California, Government Code § 955.2 states: Notwithstanding any other provision of law, where the State is named as a defendant in any action or proceeding for death or injury to person or personal property and the injury or the injury causing death occurred within this State, the proper court for the trial of the action is a court of competent jurisdiction in the county where the injury occurred or where the injury causing death occurred. The court may, on motion, change the place of the trial in the same manner and under the same circumstances as the place of trial may be changed where an action is between private parties.¿ The introductory clause of section 955.2 (‘Notwithstanding any other provision of law,') would appear on its face to express a legislative intent that section 955.2 control venue in all tort cases in which the State is a defendant even though by reason of the joinder of other defendants venue would also be proper in a county other than that in which the injury occurred. This conclusion is supported by the wording of the second clause of section 955.2 which says, ‘where the State is named as A defendant in any action’ (emphasis added). The use of the indefinite article ‘a’ rather than the definite article ‘the’ suggests the legislative intent that section 955.2 is to control in cases where the state is one of several defendants as well as in cases where it is the only defendant.¿ (State v. Superior Court of Los Angeles County (1967) 252 Cal.App.2d 637, 639.)¿¿¿ In this case, the complaint on its face alleges that the subject accident occurred in Inyo County. Furthermore, Defendant City of Bishop is part of Inyo County. The Jones Defendants, therefore, establishes that venue is improper in Los Angeles, that the action was filed in the “wrong court,” and that the action must be transferred. Plaintiffs do not oppose the motion. The unopposed motion is therefore GRANTED. Because transfer is ordered on the ground that Plaintiffs filed in the “wrong court,” Plaintiffs are responsible for paying the costs and fees of transferring the action to Inyo County within thirty (30) days after service of notice of the transfer order. If Plaintiffs fail to do so after service of notice of the order, any other interested party, whether named in the complaint or not, may pay such costs and fees in order to expedite the transfer. If the fees and costs are not paid within thirty days, the action is subject to dismissal. (CCP § 399(a); see Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1037.) Moving Defendants are ordered to give notice. Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿
Dated this 9th day of November 2023 | | | Judge of the Superior Court |
Case Number: 22STCV25529 Hearing Date: November 13, 2023 Dept: 30 JIANNA BONOMI vs TURO INC., A CORPORATION, et al.
Motion for Leave to Intervene
TENTATIVE
The motion for leave to intervene is GRANTED. Proposed Intervenor is to file its answer-in-intervention within 10 days of this order. Moving party to give notice.
DISCUSSION
Proposed Intervenor Liberty Mutual seeks leave to intervene in this action on grounds that it is Defendant Dillard’s insurer and thus has a direct and immediate interest in this action as it could be exposed to direct liability pursuant to Insurance Code section 11580(b)(2). Under California law, an insurance carrier who is not a party to an action can intervene on behalf of its insured when the insurance carrier could be subject to a subsequent action under Insurance¿Code¿section¿11580.¿ (See¿Reliance Ins. Co. v. Superior Court¿(2000) 84 Cal.App.4th¿383, 386,¿(“An insurer’s right to intervene in an action against the insured, for personal injury or property damages, arises as a result of Ins. Code section 11580.”).)¿¿“Section 11580 provides that a judgment creditor may proceed directly against any liability insurance covering the¿defendant, and¿obtain satisfaction of the judgment up to the amount of the policy limits.¿¿Thus, where the insurer may be subject to a direct action under Insurance Code section 11580 by a judgment creditor who has or will obtain a default judgment in a¿third party¿action against the insured, intervention is appropriate.”¿ (Id.;¿see also¿Jade K. v.¿Viguri¿(1989) 210 Cal.App.3d 1459, 1468¿(permitting an insurer to intervene in lawsuit to litigate liability and damage issues).) “‘Intervention may . . . be allowed in the insurance context, where third party claimants are involved, when the insurer is allowed to take over in litigation if its insured is not defending an action, to avoid harm to the insurer.’” (Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 1205 (quoting Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 206).)
Proposed Intervenor’s counsel indicates that Proposed Intervenor insured Defendant Dillar during the time when the subject accident occurred. (Custurea Decl., ¶ 8.) Neither Liberty nor retained counsel have been able to reach Dillard and obtain her cooperation in the instant action. Since November 2022, counsel for intervenor has made several attempts to reach Dillard, via letters to Dillard’s last known mailing addresses, all of which have not been responded to. Additionally, defense counsel made multiple attempts to reach Dillard via telephone to no avail. (Custurea Decl., ¶¶ 5-7.) To date, Liberty and counsel have been unable to reach or obtain cooperation from Dillard.
As Proposed Intervenor’s counsel has been unable to contact or communicate with Defendant, it appears Defendant is not defending the case such that Proposed Intervenor may be exposed to liability pursuant to Insurance Code section 11580 for any judgment taken against Defendant. Liberty Mutual has shown that it has a direct and immediate interest because it stands to lose by operation of any judgment against it. (Simpson Redwood Co. v. State of California¿(1987) 196 Cal.App.3d 1192, 1201 [non-party seeking intervention must show it stands to gain or lose by¿direct¿operation of the judgment, even if no specific interest in the property or transaction at issue exists]. As such, the Court finds there is good cause to permit Proposed Intervenor to intervene to protect its interests. Further, allowing intervention would not enlarge the issues, and Plaintiff has not provided any argument that it would. (Reliance Ins. Co. v. Superior Court¿(2000) 84 Cal.App.4th 383, 387 [intervention would not enlarge issues in case because insurance company would “almost certainly assert the same defenses which would have been asserted by [defendant]”].) While Plaintiff argues that Liberty Mutual should have hired a private investigator to locate Defendant, Plaintiff has cited to no authority which would require doing so. Lastly, Proposed Intervenor has submitted a copy of its answer-in-intervention, as required by CCP section 387(c).
Case Number: 22STCV25558 Hearing Date: November 13, 2023 Dept: 27 SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF LOS ANGELES -
CENTRAL DISTRICT
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Herbert C. Rubinstein, Trustee, et al.,
Plaintiffs,
vs.
Colby Square Homeowners Association, Inc., et
al.,
Defendants.
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CASE NO.: 22STCV25558
[TENTATIVE] ORDER RE: Motion for
Terminating Sanctions
Dept. 27
1:30 p.m.
November 13, 2023.
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I.INTRODUCTION
On August 8, 2022, Plaintiffs Herbert
C. Rubinstein, Trustee of The Herbert C. & Pauline L. Rubinstein Family
Trust of 2016 and Colby Development, LP (“Plaintiffs”) filed a complaint
against Defendant Colby Square Homeowners Association, Inc., (“Defendant”)
alleging four causes of action for general negligence and common counts. The
complaint alleges that a water pipe burst in the Subject Building, which caused
extensive water damage to Plaintiff’s unit. Additionally, Plaintiffs allege
that Defendant is holding insurance proceeds, but has not released the funds to
Plaintiffs.
On September 27, 2022, Defendant
Colby Square Homeowners Association, Inc., filed an Answer.
On May 4, 2023, Defendant filed
multiple motions to compel responses. They were GRANTED.
On October 5, 2023, Defendant
filed the current Motion for Terminating Sanctions. On October 31, 2023,
Defendant filed a Notice of non-Receipt of Plaintiffs’ Opposition. As of
November 9, 2023, no Opposition has been filed.
II.LEGAL STANDARD
Where a party willfully disobeys
a discovery order, courts have discretion to impose terminating, issue,
evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th
486, 495.) An evidence sanction prohibits a party that misused the
discovery process from introducing evidence on certain designated matters into
evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery
sanctions are justified where there is a willful discovery order violation, a
history of abuse, and evidence showing that less severe sanctions would not
produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)
“[A] penalty as severe as dismissal or default is not authorized where
noncompliance with discovery is caused by an inability to comply rather than
willfulness or bad faith.” (Brown
v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) The court may impose a
terminating sanction by one of the following orders:
(1) An order striking out the pleadings or parts of the
pleadings of any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party
until an order for discovery is obeyed.
(3) An order dismissing the action, or any part of the
action, of that party.
(4) An order rendering a judgment
by default against that party.
(Code Civ. Proc., § 2023.030, subd. (d).)
III.REQUEST FOR JUDICIAL NOTICE
Evidence Code Section 452 allows
the Court to take judicial notice of certain types of documents, including “[r]ecords
of (1) any court of this state or (2) any court of record of the United States
or of any state of the United States,” and “[f]acts and propositions that are
not reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.” (Evid.
Code § 452, subds. (c), (d), and (h).)
Defendant
moves to have the Court take judicial notice of the following documents:
1. Defendants’ Notice of Motion and Motion to Compel Plaintiff
Herbert C. Rubinstein’s Responses to Form Interrogatories (Set One) and Request
for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of
Caitlin J. Hoffman in Support Thereof.
2. Defendants’ Notice of Motion and Motion to Compel Plaintiff
Colby Development LP’s Responses to Form Interrogatories (Set One) and Request
for Monetary Sanctions; Memorandum of Points and Authorities and Declaration of
Caitlin J. Hoffman in Support Thereof
3. Defendants’ Notice of Motion and Motion to Compel Plaintiff
Herbert C. Rubinstein’s Responses to Special Interrogatories (Set One) and
Request for Monetary Sanctions; Memorandum of Points and Authorities and
Declaration of Caitlin J. Hoffman in Support Thereof.
4. Defendants’ Notice of Motion and Motion to Compel Plaintiff
Colby Development LP’s Responses to Special Interrogatories (Set One) and
Request for Monetary Sanctions; Memorandum of Points and Authorities and
Declaration of Caitlin J. Hoffman in Support Thereof.
5. Defendants’ Notice of Motion and Motion to Compel Plaintiff
Herbert C. Rubinstein’s Responses to Request for Production (Set One) and
Request for Monetary Sanctions; Memorandum of Points and Authorities and
Declaration of Caitlin J. Hoffman in Support Thereof.
6. Defendants’ Notice of Motion and Motion to Compel Plaintiff
Colby Development LP’s Responses to Requests for Production (Set One) and
Request for Monetary Sanctions; Memorandum of Points and Authorities and
Declaration of Caitlin J. Hoffman in Support Thereof.
7. Notice of Non-Receipt of Opposition to Defendant’s Motions
to Compel Plaintiffs’ Responses to Discovery Requests.
8. Notice of Ruling on Defendants’
Motion to Compel Plaintiffs’ Responses to Discovery Requests.
Each of these is part of the
court record in this case and, thus, the Court takes judicial notice of these
documents as requested.
IV. DISCUSSION
Defendant moves for terminating sanctions, requesting that
the case be dismissed with prejudice.
Background:
On January 13, 2023, Defendant served Form Interrogatories,
Special Interrogatories, and Requests for Production of Documents to each
Plaintiff. After granting two extensions, Plaintiffs failed to provide
responses. Defendant filed motions to compel responses, and all the motions
were GRANTED on August 14, 2023. This Court ordered responses within 20 days
and sanctions totaling $780, However, as of the filing of the current motion on
October 5, 2023, no responses had been provided.
Defendant seeks terminating sanctions based on Plaintiffs’
failures to respond to discovery pursuant to court order. Plaintiffs have failed to provide any
responses for eight months and have failed to cooperate with litigation, not
returning Defense counsel’s phone calls.
“The trial court may order a terminating sanction for
discovery abuse “after considering the totality of the circumstances: [the]
conduct of the party to determine if the actions were willful; the detriment to
the propounding party; and the number of formal and informal attempts to obtain
the discovery.” Los Defensores, Inc. v.
Gomez (2014) 223 Cal.App..4th 377, 390.) Under this standard, trial courts
have properly imposed terminating sanctions when parties have willfully
disobeyed one or more discovery orders. (Id.)
Here,
the discovery requests were sent in January 2023. After repeated attempts to
obtain responses and multiple motions to compel, Plaintiffs still have not been
provided responses and have failed to comply with this Court’s orders. And to accentuate
their unresponsiveness, Plaintiffs have not even responded to this motion for
terminating sanctions. Given the
totality of these circumstances, the Court finds that terminating sanctions are
appropriate.
IV.CONCLUSION
Motion
for Terminating Sanctions is GRANTED.
Moving party to give
notice.
Parties who intend to submit on
this tentative must send an email to the Court at SSCDEPT27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions
provided on the court website at www.lacourt.org. Please be advised that
if you submit on the tentative and elect not to appear at the hearing, the
opposing party may nevertheless appear at the hearing and argue the
matter. Unless you receive a submission from all other parties in the
matter, you should assume that others might appear at the hearing to
argue. If the Court does not receive emails from the parties indicating
submission on this tentative ruling and there are no appearances at the
hearing, the Court may, at its discretion, adopt the tentative as the final
order or place the motion off calendar.
Dated this 9th day of November 2023
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Hon. Lee S. Arian
Judge of the Superior
Court
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Case Number: 22STCV28111 Hearing Date: November 13, 2023 Dept: 55
NATURE OF PROCEEDINGS:
Plaintiff Jose Luis Alday’s Motion To Compel Further
Responses From Defendant Jose Gonzalez To Form Interrogatories, Set One (No.
17.1), And Request For Monetary Sanctions Against Defendant Gonzalez And His
Attorney Of Record For $976.70.
Plaintiff Jose Luis Alday’s Motion To Compel Further
Responses From Defendant Jose Gonzalez To Requests For Documents, Sets One And
Two, Order That Defendant Produce The Documents He Stated Would Be Produced In
The Initial Responses, And Request For Monetary Sanctions Against Defendant
Gonzalez And His Attorney Of Record For $2,326.70.
Plaintiff Jose Luis Alday’s Motion To Compel Further
Responses From Defendant Jose Gonzalez To Requests For Admissions (Genuineness
Of Documents And Truthfulness Of Facts) And Request For Monetary Sanctions
Against Defendant Gonzalez And His Attorney Of Record For $1,876.70.
All three unopposed motions are granted.On or before December 13, 2023, Defendant JOSE
GONZALEZ shall serve further responses,
and produce documents, in full compliance with the California Discovery Act,
CCP §2016.010 et seq., as to the form interrogatories, requests for
documents and requests for admissions served by Plaintiff JOSE LUIS ALDAY. The responses shall be verified and contain no objections.
On or before that same date, that defendant, and
counsel SoCal Law Group PC and James Mortensen, shall pay discovery sanctions
in the total sum of $5,180.10 to that Plaintiff, the Court finding the absence
of substantial justification. E.g.,
CCP § 2023.030.
Case Number: 22STCV28122 Hearing Date: November 13, 2023 Dept: 27
SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL
DISTRICT
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MICHAEL WILLIAM WILSON,
Plaintiff,
vs.
CLAYTON
DAMIAN FISCHER, et al.,
Defendants.
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CASE NO.: 22STCV28122
ORDER
RE: PLAINTIFF’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS, SET TWO; [TENTATIVE]
ORDER RE PLAINTIFF’S MOTION FOR FINANCIAL DISCOVERY
Dept.
27
1:30
P.M.
November
13, 2023
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I.
INTRODUCTION
The Complaint filed on
August 29, 2022, arises from a motor vehicle accident that occurred on July 21,
2022. Defendant Clayton Damian Fischer allegedly made an unsafe and
illegal left turn, colliding with Plaintiff Michael William Wilson
(“Plaintiff”). Plaintiff alleges claims for negligence, intentional
infliction of emotional distress, negligent entrustment, and negligent hiring.
At the time of the collision, Fischer was allegedly working in the course and
scope of his employment with co-defendant Southwark Metal Manufacturing. Plaintiff also alleges that Fisher was driving
under the influence at the time of the accident.
On September 6, 2023, Plaintiff filed a
motion seeking an order permitting discovery of Defendant’s financial
conditions under California Civil Code section 3295(c), which permits such
discovery if there is a substantial probability that the plaintiff will prevail
on punitive damages claim. No opposition
was filed.
On October 4, 2023, Plaintiff filed a
motion to compel responses to Request for Production of Documents, Set Two from
defendant Southwark Metal Manufacturing (“Defendant”). On October 31, 2023, Defendant
opposed. On November 7, 2023, Plaintiff replied.
The Court addresses each of these
motions separately below.
THE MOTION FOR FINANCIAL DISCOVERY
II.
LEGAL
STANDARD
Pretrial discovery of a defendant’s
financial condition is generally not permitted.
(Civ. Code, § 3295(c); Jabro v. Superior Court (2002) 95
Cal.App.4th 754, 756.) However, Civil
Code section 3295(c) provides that “[u]pon motion by the plaintiff supported by
appropriate affidavits and after a hearing, if the court deems a hearing to be
necessary, the court may at any time enter an order permitting the discovery
otherwise prohibited by this subdivision if the court finds, on the basis of
the supporting and opposing affidavits presented, that the plaintiff has
established that there is a substantial probability that the plaintiff will
prevail on the claim pursuant to Section 3294.”
(Civ. Code, § 3295(c).) “Such
order shall not be considered to be a determination on the merits of the claim
or any defense thereto and shall not be given in evidence or referred to at the
trial.” (Id.)
“[B]efore a court may enter an order
permitting discovery of a defendant’s financial condition, it must (1) weigh
the evidence submitted in favor of and in opposition to motion for discovery,
and (2) make a finding that it is very likely the plaintiff will prevail on his
claim for punitive damages.” (Jabro,
supra, 95 Cal.App.4th at 758.)
Civil Code section 3294 authorizes the
recovery of punitive damages in non-contract cases where “the defendant has
been guilty of oppression, fraud, or malice . . . .” (Civ. Code §
3294(a).) “‘Malice’ means conduct which
is intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.” (Id., § 3294(c)(1).) “‘Oppression’ means despicable conduct that
subjects a person to cruel and unjust hardship in conscious disregard of that
person’s rights.” (Id., § 3294(c)(2).)
“‘Fraud’ means an intentional misrepresentation, deceit, or concealment
of a material fact known to the defendant with the intention on the part of the
defendant of thereby depriving a person of property or legal rights or
otherwise causing injury.” (Id., § 3294(c)(3).)
A plaintiff must establish the
defendant was aware of the probable dangerous consequences of his conduct and
that he willfully and deliberately failed to avoid those consequences to
support an award of punitive damages based on conscious disregard of the safety
of others. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)
III.
DISCUSSION
Plaintiff argues and provides evidence
demonstrating that he will be able to prove that Defendant was intoxicated at
the time of the accident. Given the lack
of an opposition, the Court finds that it is likely that Plaintiff will prevail
on his punitive damages claim and hereby grants Plaintiff’s motion.
IV.
CONCLUSION
Plaintiff’s motion for financial
discovery is GRANTED.
Moving party to give notice.
MOTION TO COMPEL
V.
LEGAL
STANDARD
A party must respond to a request for
production of documents within 30 days after service. (Code Civ. Proc., §
2031.260, subd. (a).) If a party to whom requests for production of documents
is directed does not provide timely responses, the requesting party may move
for an order compelling responses to the discovery. (Code Civ. Proc., §
2031.300, subd. (b).) The party also waives the right to make any objections,
including one based on privilege or work-product protection. (Code Civ. Proc.,
§ 2031.300, subd. (a).) A motion to compel responses
is not subject to a 45–day time limit, and the propounding party does not have
to demonstrate either good cause or that it satisfied a ‘meet and confer’
requirement.”¿ (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.)¿ Also, “[a] separate statement is not required when no response
has been provided to the request for discovery.”¿ (Cal. Rules of Court, rule 3.1345(b).)
VI.
DISCUSSION
Here, Plaintiff served Requests for
Production of Documents, Set Two, on Defendant on July 5, 2023. (Decl. Soofer ¶ 9.) At the time of filing the
Motion, Plaintiff
declared that he had not received a response, nor was an extension granted. (Id.
at ¶¶ 11, 12.)
In opposition, Defendant argues
that on October 31, 2023, it served responses to Plaintiff’s request. (Decl. Arevalo
¶ 6, Ex. B.)
In reply, Plaintiff contends that,
in fact, what he received was a “document dump” that is not code
compliant. Plaintiff also contends that
the written response he received, which he contends was not served on him, was
not code compliant and the privilege log was not code compliant. Having reviewed the written response, the
Court is not persuaded it is insufficient.
However, the privilege log appears to be missing appropriate
information.
The Court will seek to assist the
parties in finding a resolution to the issues raised at the hearing on the
motion to compel and, if necessary, hear argument on a more formal ruling on
the motion.
VII.
CONCLUSION
No tentative ruling; parties are
ordered to appear at the hearing.
Dated this 9h day of November 2023
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Hon.
Lee S. Arian
Judge of the Superior Court
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Case Number: 22STCV28124 Hearing Date: November 13, 2023 Dept: 30 TRINIDAD ELIZALDE, et al. vs ALIDA PONTIFES
Motion to Be Relieved as Counsel
TENTATIVE
The unopposed motion to be relieved as counsel for Plaintiffs, Trinidad Elizalde and Emma Castillo, is GRANTED, effective upon filing proof of service of the signed order on the clients. Counsel for Plaintiff’s counsel has submitted all of the mandatory judicial council forms (i.e., MC-051, MC-052, and MC-053), and has complied with CRC Rule 3.1362. Trial is set for February of 2024, so the clients have sufficient time to obtain new counsel, and thus will not be prejudiced by counsel’s withdrawal of representation. The Court delays entry of the order pursuant to CRC Rule 3.1362l(e). Counsesl will remain counsel of record until compliance which must be made within 5 days. Moving party is ordered to give notice.
Case Number: 22STCV28183 Hearing Date: November 13, 2023 Dept: 32
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PETER J. ZOMBER, et
al.,
Plaintiffs,
v.
JOHN PATRICK JOHNSON,
Defendant.
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Case No.: 22STCV28183
Hearing Date: November 13, 2023
[TENTATIVE]
order RE:
plaintiffs’ motions to compel further
responses to form interrogatories and requests for admission
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BACKGROUND
On August 29, 2022, Plaintiff Peter
J. Zomber and Law Offices of Peter J. Zomber, PC initiated this action against
Defendant John Patrick Johnson. Plaintiffs filed the operative First Amended
Complaint on January 23, 2023, asserting (1) breach of contract and (2) quantum
meruit.
The FAC alleges that the parties
entered into a written fee agreement in 2004, which encompassed representation
in several matters. (FAC ¶ 7.) Plaintiff was retained to represent Defendant in
business matters related to Defendant’s divorce. (Id., ¶ 8.) Around July
2011, Plaintiff left the law firm he was working for and formed his own firm,
and Defendant decided to have Plaintiff continue representing him. (Id.,
¶ 9.) At this time, the parties entered into an oral agreement relating to the
representation and fees. (Ibid.)
Around 2014, Plaintiff represented
Defendant in family law matters after Defendant’s attorney substituted out.
(FAC ¶ 10.) Defendant retained another family law attorney at the end of 2014.
(Ibid.) In 2015, Plaintiff’s first law firm dissolved, and he formed Peter
J. Zomber PC. (Id., ¶ 11.) Defendant again followed Plaintiff to the new
firm and continued to be represented by Plaintiff. (Ibid.) Plaintiff continued
to work on Defendant’s divorce case and other matters. (Ibid.) As in
previous years, Defendant continued to pay periodic lump sums toward open invoices
and ongoing work. (Ibid.) In January 2017, Defendant’s second family law
attorney abruptly dissociated from the case and left Plaintiff to try the divorce
case. (Id., ¶ 12.)
Around April 2020, Defendant’s other
wife filed for divorce, and Defendant attempted to represent himself in the
matter for a while before retaining Plaintiff to represent him. (FAC ¶¶ 13-15.)
The first divorce case concluded in May 2021, and Defendant continued to pay
periodic sums for open invoices on both divorce cases. (Id., ¶ 17.)
Defendant stopped making payments in December 2021 and has since refused to
arbitrate the fee dispute. (Id., ¶¶ 18-22.) This lawsuit followed.
Defendant filed an answer to the
complaint on May 24, 2023, and an amended answer on June 16, 2023. The amended
answer alleges that Plaintiff Zomber was inexperienced in family law matters
and inadequately represented Defendant in the dissolution proceedings.
On October 9, 2023, Plaintiffs filed
the instant motions to compel further responses to Requests for Admission and
the associated Form Interrogatory No. 17.1. Defendant filed his oppositions on
October 30 and 31, 2023. Plaintiffs filed their reply on November 3, 2023.
LEGAL STANDARD
On receipt of a response to
interrogatories, the propounding party may move for an order compelling a
further response if the propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or incomplete; (2) An
exercise of the option to produce documents under Section 2030.230 is
unwarranted or the required specification of those documents is inadequate; (3)
An objection to an interrogatory is without merit or too general. (Code Civ.
Proc., § 2030.300, subd. (a).)
On receipt of a response to requests for
admissions, the party requesting admissions may move for an order compelling a
further response if that party deems that an answer to a particular request is
evasive or incomplete or an objection to a particular request is without merit
or too general. (Code Civ. Proc., § 2033.290, subd. (a).)
MEET AND CONFER
Motions to compel further responses must
be accompanied by a meet and confer declaration demonstrating an attempt to resolve
the issue informally. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b)(2), 2033.290(b)(1).)
The Court finds that Plaintiffs have satisfied the meet and confer requirement.
(See Turk Decl.)
DISCUSSION
The subject RFAs mostly ask
Defendant to admit: that Defendant agreed to pay Plaintiffs certain hourly
rates; that Defendant does not dispute Plaintiff’s hourly rates; the time of
Defendant’s last payment to Plaintiffs; that Defendant owes certain amounts; that
Defendant did not make payments towards outstanding amounts; and that Defendant
made intermittent payments towards certain outstanding amounts.
Other RFAs ask Defendant to admit:
that Defendant requested Plaintiff Zomber’s wife to continue working on a
certain legal matter; that Defendant claimed financial hardship as the reason
for not paying; that Defendant failed to execute a substitution of attorney
form despite multiple requests; and that Defendant was aware Plaintiff Zomber
supervised his wife’s work.
Defendant incorporated the same
objection to each RFA. Specifically, Defendant objected that the RFAs call for legal
conclusions and are burdensome and overreaching given the known disputes over
issues such as whether the parties entered into any agreements and whether Defendant
owes certain amounts. Defendant contends that Plaintiffs are intentionally
harassing Defendant by propounding extensive RFAs that Plaintiffs know
Defendant will deny, so that Plaintiffs can force Defendant to respond to the
corresponding FROG No. 17.1. Based on this objection, Defendant refused to
admit or deny the RFAs.
However, the RFAs are narrowly tailored to
ascertain Defendant’s contentions regarding particular issues. “Requests for
admission are not restricted to facts or documents, but apply to conclusions,
opinions, and even legal questions.” (City of Glendale v. Marcus Cable
Associates, LLC (2015) 235 Cal.App.4th 344, 353.) “[T]he fact that the
request is for the admission of a controversial matter, or one involving
complex facts, or calls for an opinion, is of no moment.” (Bloxham v.
Saldinger (2014) 228 Cal.App.4th 729, 752.) Plaintiffs are entitled to
propound RFAs in an attempt to narrow the disputed issues for trial. The fact
that Defendant clearly disputes liability does not preclude Plaintiffs from
propounding RFAs to ascertain Defendant’s position on specific issues relating
to liability.
If Defendant contests the matters raised
in the RFAs, he should simply deny the RFAs. The corresponding information
required under FROG No. 17.1 is part of routine discovery and is not an undue
burden. The time and effort that Defendant utilized drafting this opposition could
have been used to respond to the discovery instead. Defendant’s arguments do
not constitute substantial justification for failing to properly respond to the
discovery. Hence, sanctions are warranted.
For the two motions, Plaintiffs request a
total of $15,520 for 19.4 hours at $800 per hour. (Turk Decl. ¶¶ 12-13.) This
amount is exaggerated given the simplicity of the motions. The Court finds $1,720
to be reasonable, representing 4 hours at a rate of $400 per hour, plus $120 in
filing fees.
CONCLUSION
Plaintiffs’ motions to compel
further responses are GRANTED. Defendant shall provide further responses to the
subject RFAs and corresponding FROG No. 17.1 within 15 days. The Court
sanctions Defendant and his counsel in the total amount of $1,720, to be paid
within 30 days.
Case Number: 22STCV30336 Hearing Date: November 13, 2023 Dept: 39 Xiaoliang
Liu, et al. v. Bank of America, et al.
Case
No. 22STCV30336
Demurrer
by East West Bank
Plaintiffs
Xiaoliang Liu and Chuwei Zhang (collectively, “Plaintiffs”) filed this action
against Bank of America, East West Bank, and Wu Di (collectively, “Defendants”). Previously, the Court sustained East West
Bank’s demurrer to the second amended complaint. (See Court’s Minute Order, dated July 31,
2023.) The Court granted leave to amend
with respect to certain causes of action.
Now, East West Bank demurs to every cause of action as follows:
Second
COA – Negligent Hiring/Supervision
Fifth
COA – Negligent Misrepresentation
Ninth
COA – Unfair Competition
Tenth
COA – Negligence
The Court sustains the demurrer
largely for the reason reasons it sustained the prior demurrer, and the Court
incorporates by reference its order of July 31, 2023. At heart, Plaintiffs’ claim against East West
Bank is based upon its employee, Eva Zhang, having referred them to Yolanda Lu
for the purpose of transferring funds from China and purchasing a residence. Plaintiffs allege no facts suggesting that
Zhang was, or should have been, on notice that Yolanda Lu was incompetent or
corrupt. Nor does Plaintiff allege any
facts suggesting that East West Bank was negligent in its supervision of
Zhang. Plaintiffs allege no facts
suggesting that East West Bank or its employees participated in the alleged
fraudulent transfers or misappropriated any of Plaintiffs’ funds. Plaintiffs make only conclusory allegations,
which are insufficient. Simply, there
are no allegations that East West Bank or its employees did anything other than
introduce Plaintiffs to Yolanda Lu.
CONCLUSION AND ORDER
Based
upon the foregoing, the Court orders as follows:
1. East West Bank’s demurrer is sustained.
2. The Court denies leave to amend. Plaintiffs have filed four complaints
already. The Court previously granted
leave to amend, and Plaintiffs filed largely the same complaint with the same
defects.
3. The Court advances and continues the
hearing on Bank of America’s demurrer to January 24, 2023, at 8:30 a.m.
4. The Court advances and continues the
case management conference to January 24, 2023, at 8:30 a.m.
5. Counsel for East West Bank shall
provide notice and file proof of such with the Court.
Case Number: 22STCV30492 Hearing Date: November 13, 2023 Dept: 28 Having
considered the moving papers, the Court rules as follows.
BACKGROUND
On
September 19, 2022, Plaintiff Gayane Pogosyan (“Plaintiff”) filed this action
against Defendants City of Glendale (“City”), County of Los Angeles (“County”),
Lida Babai, and Does 1-100 for dangerous condition of public property, premises
liability, and general negligence.
On
October 18, 2022, the County filed an answer.
On October 19, 2022, the City filed an answer.
On
December 23, 2022, Plaintiff amended the complaint by substituting Kong Tae H and Sangsun TRS: Kong Family Trust (“Trust”) for Defendant
Lida Babai.
On
January 12, 2023, the Court dismissed Defendant Lida Babi without prejudice at
Plaintiff’s request.
On
February 9, 2023, the Court dismissed the complaint with prejudice at
Plaintiff’s request. On May 25, 2023,
the Court granted Plaintiff’s motion to vacate the dismissal. In the order, the Court stated that the
January 12, 2023 order dismissing Defendant Lida Babi had the effect of
dismissing the Trust due to the December 23, 2022 amendment.
On
June 5, 2023, the Court dismissed the County without prejudice at Plaintiff's
request.
On
June 21, 2023, Plaintiff filed a motion to vacate dismissal to be heard on
November 13, 2023. No opposition has
been filed.
PARTY’S REQUEST
Plaintiff
requests that the Court vacate the January 12, 2023 order of dismissal.
LEGAL STANDARD
Code of Civil Procedure section 473, subdivision (b),
provides in part:
“Notwithstanding any other requirements of this
section, the court shall, whenever an application for relief is made no more
than six months after entry of judgment, is in proper form, and is accompanied
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 neglect. The
court shall, whenever relief is granted based on an attorney’s affidavit of
fault, direct the attorney to pay reasonable compensatory legal fees and costs
to opposing counsel or parties. However, this section shall not lengthen the
time within which an action shall be brought to trial pursuant to Section
583.310.”
(Code Civ. Proc., § 473,
subd. (b).)
DISCUSSION
Plaintiff’s
counsel has submitted a declaration stating that counsel mistakenly dismissed the
Trust. The motion is timely. Therefore, the Court grants the motion.
CONCLUSION
The
Court GRANTS Plaintiff Gayane Pogosyan’s motion to vacate the January 12, 2023
order dismissing Lida Babi. The Court
vacates the January 12, 2023 order of dismissal.
Moving
party is ordered to give notice of this ruling.
Moving
party is ordered to file the proof of service of this ruling with the Court
within five days.
Case Number: 22STCV30782 Hearing Date: November 13, 2023 Dept: 39 Fernando Munguia
Jr. v. Bella & Canvas, LLC
Case No.
22STCV30782
Ex Parte
Application to Continue the Trial Date
Plaintiff
Fernando Munguia Jr. (“Plaintiff”) filed this employment case against Defendant
Bella & Canvas LLC (“Defendant”) on September 22, 2022. Defendant filed a cross-complaint against
Plaintiff, alleging that he fraudulently collected employer-provided benefits
while on a medical leave of absence because he was concurrently working for
another company. The current trial date
is March 19, 2024, and the parties have stipulated to continue the trial date
to August 13, 2024, to accommodate Plaintiff’s deposition and to afford the
parties an opportunity to conduct settlement discussions. Defendant filed an ex parte application based
upon this stipulation.
The ex
parte application is granted in part and denied in part. The Court advances and vacates all dates and
sets the trial date on its first available date:
Final
Status Conference: February 7,
2025, at 9:00 a.m.
Trial: February
18, 2025, at 9:30 a.m.
The expert designation deadlines, including the expert
discovery cut-off, shall be based on the new trial date. The fact discovery cut-off shall be based on
the former trial date (March 19, 2024).
Defendant’s
counsel shall provide notice and file proof of such with the Court.
Case Number: 22STCV36277 Hearing Date: November 13, 2023 Dept: 39 Equisolar, Inc. v.
Jose Mendoza, et al.
Case No.
22STCV36277
Motion for
Preliminary Injunction
BACKGROUND
Plaintiff
Equisolar, Inc. (“Plaintiff”) filed this action against SolarPro Electric, LLC
(“SolarPro”) and eight individual defendants.
Four individual defendants (Jose Mendoza, Reyna Mendoza, Sebastian
Molina, and Carlos Manriguez) have been served and filed answers. Two individual defendants (Patrick Estrada
and Jonathan Mendoza) have been served but never filed answers and Plaintiff
never sought entry of default. Two
individual defendants (Mario Barraza Ramirez and David Ibarra) were never
served. Now, Plaintiff seeks a
preliminary injunction against SolarPro and six of the individual defendants: (1)
Sebastian Molina, (2) Carlos Felipe Manriguez, (3) Jonathan Mendoza, (4) Jose
Mendoza, (5) Reyna Mendoza, and (6) David Ibarra. The motion is denied with respect to David
Ibarra because he was never served with the summons and complaint. With respect to the remaining defendants, the
motion is denied on the merits.
PLAINTIFF’S ALLEGATIONS
Plaintiff provides
solar energy in residential and commercial markets in California. (Complaint, ¶ 27.) In June 2019, Defendant Sebastian Molina, who
was Plaintiff’s General Sales Manager, formed his own business DH Remodel
Service, to compete directly with Plaintiff.
(Id., ¶ 37.) Based upon his
position, Molina had access to Plaintiff’s databases, including Plaintiff’s
confidential, proprietary, and trade secret information. (Id., ¶ 38.)
Based upon this information, Molina solicited Plaintiff’s customers and
directed them to his new venture.
(Ibid.) Molina also instructed
his sales representatives to sign-up customers with DH Remodel Service, not
Plaintiff, which they did. (Ibid.) Plaintiff discovered this scheme in December
2019, and when he was confronted, Molina resigned. (Id., ¶ 39.)
However, even after his resignation, Molina continued to use Plaintiff’s
confidential, proprietary, and trade secret information to solicit Plaintiff’s
customers. (Id., ¶ 41.)
In or about
April 2022, Molina partnered with Defendants Jose Mendoza and Reyna Mendoza at
SolarPro, where the three recruited Plaintiff’s employees. (Id., ¶ 43.)
Prior to his departure, Defendant Carlos Manriguez was Plaintiff’s Operations
Manager and therefore had access to Plaintiff’s confidential, proprietary, and
trade secret information. (Id., ¶
45.) Manriguez joined SolarPro in April
2022, where he also recruited Plaintiff’s employees and misused information he
stole from Plaintiff. (Id., ¶¶ 48-49.) Defendant Patrick Estrada was Plaintiff’s
Logistics Manager, and Plaintiff alleges that he also misused its
information. (Id., ¶¶ 50-55.)
LEGAL STANDARD
To obtain a preliminary injunction,
a plaintiff ordinarily is required to present evidence of the irreparable
injury or interim harm that it will suffer if an injunction is not issued
pending an adjudication of the merits. If
the threshold requirement of irreparable injury is established, then we must
examine two interrelated factors to determine whether the trial court's
decision to issue a preliminary injunction should be upheld: (1) the likelihood
that the moving party will ultimately prevail on the merits and (2) the
relative interim harm to the parties from issuance or nonissuance of the
injunction. (Costa Mesa City
Employees' Assn. v. City of Costa Mesa (2012) 209 Cal.App.4th 298,
305-306.)
A preliminary injunction has “the
effect of merely maintaining the status quo until the cases are decided on
their merits.” (People v. Black's
Food Store (1940) 16 Cal.2d 59, 62.)
The Court has the authority to enjoin actual or threatened
misappropriation of trade secrets under Civil Code section 3426.2. (Civ. Code, § 3426.2, subd. (a).) Civil Code section 3426.2 preempts any
alternative bases for relief based on misappropriation of trade secrets. (K.C. Multimedia, Inc. v. Bank of America
Tech. & Operations, Inc. (2009) 171 Cal.App.4th 939, 958.) To obtain injunctive relief, the moving party
must advance evidence of improper use or disclosure of the trade secret, or
plans to do so. (Continental
Car-Na-Var Corp. v. Moseley (1944) 24 Cal.2d 104, 107.) “But speculation that a departing employee
may misappropriate and use a trade secret in a startup business will not
support an injunction.” (FLIR
Systems, Inc. v. Parrish (2009) 174 Cal.App.4th 1270, 1277.)
DISCUSSION
The
information at issue consists of “information relating to leads, potential
customers, existing customers, and past customers.” Plaintiff seeks a preliminary injunction to
enjoin Defendants from misappropriating its confidential, proprietary, and
trade secret information, and to enjoin Defendants from using any such
information “to contact, solicit, communicate, or otherwise do business with
[its] customers or individuals named in [its] databases prior to 2023.”
As an
initial matter, much of the information Plaintiff seeks to protect does not
appear to be a trade secret. A customer
list is a trade secret if the identity of customers itself has economic value
and the owner has made reasonable efforts to preserve its secrecy. (See Civ. Code, § 3426.1, subd. (d).) However, to be a trade secret, information
must not be “generally known to the public or to other persons who can obtain
economic value from its disclosure or use . . . .” (Civ. Code, § 3426.1, subd. (d)(1).) In this case, Plaintiff “purchases data from
outside lead and data providers, and then provides the data to its in-house
telemarketing department.” (Declaration
of Isaac Hernandez, ¶ 4.) If Plaintiff
was able to purchase this data, presumably the outside providers would also
provide this data to other purchasers, and Plaintiff does not refute this point
or demonstrate that this information was confidential. Plaintiff’s motion does not distinguish
between the customer lists it purchased and those that it refined. Therefore, the Court defines trade secret narrowly
as only those customers who actually signed-up for Plaintiff’s services.
Even with
this limitation, Plaintiff does not demonstrate a likelihood of success on the
merits because its evidence is inadmissible.
Plaintiff relies on the declaration of Isaac Hernandez, which states: “During
a phone conversation with Jose and Reyna, Reyna admitted to stealing
Equisolar’s employees and customers, said they will continue to do so and that
there was nothing Equisolar could do about it.”
(Ibid.) Similarly, Hernandez
states: “Customers would inform us that they received a visit from another
company called SolarPro, and others would cancel their contracts with us and
sign up with SolarPro.” (Id., ¶ 22.) The declaration lacks foundation because it
does not make clear that Hernandez was a party to the conversations. Accordingly, the Court cannot confirm that
this is based upon Hernandez’s personal knowledge as opposed to having heard
about the call from a participant, which is hearsay.
Hernandez also states that “we”
discovered Manriquez was able to access and download files from Plaintiff’s
computer system. (Id., ¶ 23.) The declaration does not state that he
personally discovered this issue or establishes a foundation for personal
knowledge.
Plaintiff also relies on a
declaration from Defendant Patrick Estrada, who worked for Plaintiff from July
2021 through May 2022. (Declaration of
Patrick Estrada, ¶ 2.) Estrada states: “Felipe
and Sebastian were propping up SolarPro with the data they stole from
Equisolar.” (Declaration of Patrick
Estrada, ¶ 10.) There is no foundation
for this assertion. Estrada states:
“When you purchase data to input from data and lead providers, you receive the
data in raw files. The data then needs
to be formatted . . . [and] it was formatted exactly like EquiSolar’s
data.” (Ibid.) This does not support Plaintiff’s motion for
two reasons. First, it is not surprising
that former employees would continue to use the formatting they learned at
EquiSolar. Second, and more important,
this information is not a “trade secret” because it was available from data and
lead providers. Similarly, Estrada
states that Manriguez had lists of “clients who previously received quotes from
Equisolar.” (Id., ¶ 16.) As discussed, it is not clear this is a
“trade secret.”
Finally, Estrada states that Mario Barraza
Ramirez showed him Equisolar’s “rehash list,” which is “a list of customers who
showed a very high interest in the service, but for whatever reason were not
able to fully commit at the time.” (Id.,
¶ 18.) Estrada states that this list is a
list of “hot leads.” (Ibid.) However, this was over one year ago, in
August or September 2022, and it is now November 2023. Therefore, this list has now grown “cold,”
and there is no reason to issue a preliminary injunction.
The Court also considered whether
to grant a preliminary injunction with respect to soliciting Equisolar’s
employees. Hernandez states: “In or
about September 2022, Equisolar’s sales representatives began receiving text
messages and phone calls from Molina, Manriguez, and Estrada, telling them to
leave Equisolar and come work with them at SolarPro.” (Declaration of Isaac Hernandez, ¶ 21.) The declaration provides no foundation that
this is based upon personal knowledge as opposed to hearsay (i.e., the sales
representatives told him that they received these text messages and phone
calls). However, Hernandez’s statement
appears to be corroborated by Estrada.
(Declaration of Patrick Estrada, ¶ 14.)
Regardless, per their employment agreements, Equisolar’s employees
agreed not to solicit fellow employees for 12 months after their
employment. It has been over 12 months
since the defendants resigned from Equisolar, so there is no basis for a
preliminary injunction on this issue.
Based upon the foregoing, the Court
denies Plaintiff’s motion for a preliminary injunction because Plaintiff cannot
establish a likelihood of success on the merits. Plaintiff’s evidence is inadmissible or
inconclusive, and the Court notes that several defendants provide contrary declarations. Moreover, Plaintiff cannot establish
irreparable harm because it waited over one year to seek redress. Therefore, the motion is denied.
CONCLUSION AND ORDER
Based upon the foregoing, the Court
orders as follows:
1. Plaintiff’s motion for a preliminary
injunction is denied.
2. The Court orders Plaintiff’s counsel to
seek default or dismiss Patrick Estrada and Jonathan Mendoza forthwith.
3. The Court orders Plaintiff’s counsel to
Mario Cesar Barraza Ramirez and David Ibarra, and to file the proofs of
service, forthwith.
4. The Court advances and continues the
case management conference and orders to show cause to February 29, 2024, at
8:30 a.m.
5. Plaintiff’s counsel shall provide
notice and file proof of such with the Court.
Case Number: 22STCV37700 Hearing Date: November 13, 2023 Dept: 34 SUBJECT: Motion to be
Relieved as Counsel
Moving Party: Plaintiff’s
Counsel Daniel B. Lopez
Resp. Party: None
The Motion to be Relieved as Counsel is taken
off-calendar.
BACKGROUND:
On December
1, 2022, Plaintiffs Zachary Kelling, in propria persona, and Hanzo, Inc.
filed their Complaint against Praesidium Partners, Inc., Phillip Liu, Rayne
Steinberg, and Jeff Dorman on various causes of action.
On July 20,
2023, the Court dismissed the Complaint with prejudice.
On October
19, 2023, Plaintiff’s Counsel, Daniel B. Lopez, filed: (1) MC-051, Motion to be
Relieved as Counsel; (2) MC-052, Declaration; and (3) MC-053, Proposed Order.
ANALYSIS:
On July 20, 2023, the Court dismissed
the case with prejudice. Therefore, this
Court has no jurisdiction to hear this Motion to be Relieved as Counsel.
CONCLUSION:
The Motion to be Relieved as Counsel is taken
off-calendar.
Case Number: 22STCV38566 Hearing Date: November 15, 2023 Dept: 32
|
SERVICE MANAGEMENT GROUP HOLDINGS, LLC,
Plaintiff,
v.
SMG MOUNTAIN INTERMEDIATE HOLDINGS, LLC,
|
Case No.: 22STCV38566
Hearing Date: November 15, 2023
[TENTATIVE]
order RE:
demurrer to first-amended
cross-complaint
|
|
SMG MOUNTAIN INTERMEDIATE HOLDINGS, LLC,
Cross-Complainant,
v.
ANDREW FROMM, et al.,
Cross-Defendants.
|
|
BACKGROUND
On December 12, 2022, Plaintiff and
Cross-Defendant Service Management Group Holdings, LLC (SMG Holdings) filed this
action against Defendant and Cross-Complainant SMG Mountain Intermediate Holdings,
LLC (SMG Mountain), asserting a single cause of action for breach of contract.
The complaint alleges that SMG
Holdings and an individual named Andrew Fromm (the Sellers) entered into an
Equity Purchase Agreement (EPA) with SMG Mountain (the Buyer). Under the EPA,
SMG Mountain agreed to purchase all outstanding membership interests in SMG
Holdings. As part of the transaction, the parties agreed to set aside $860,000
in an Indemnity Escrow Account. Under the EPA, the Sellers were required to indemnify
the Buyer for covered losses related to the transaction. If no indemnifiable
loss occurred by the one-year anniversary of the closing date, the escrow
amount was to be distributed to SMG Holdings. SMG Mountain has refused to
distribute the escrow amount to SMG Holdings despite allegedly never making any
valid claim for indemnity within the time limit.
On December 23, 2022, SMG Mountain filed
a cross-complaint against Fromm and SMG Holdings. The operative First Amended
Cross-Complaint was filed on August 25, 2023. The FACC asserts ten causes of
action in the following manner: (i) breach of contract as to Customers 1 and 2;
(ii) fraud by misrepresentation as to Customers 1 through 4; and (iii) fraud by
omission as to Customers 1 through 4.
The FACC alleges that Fromm lied and
concealed information from SMG Mountain to inflate the price of his company,
SMG Holdings. The FACC alleges that Fromm knew of at least four customers who
were dissatisfied with the services provided by SMG Holdings. The customers ultimately
did not renew their contracts with SMG Holdings. The loss of these customers
affected SMG Holdings’ future earnings, which in turn affected the fair price of
the transaction described above. Fromm allegedly made false representations and
concealed information about SMG Holdings’ relationships with these four
customers. Because of Fromm’s deception, SMG Holdings was allegedly sold at an
inflated price, approximately $60 million above fair value.
On October 10, 2023, Fromm and SMG Holdings
filed the instant demurrer to the FACC. SMG Mountain filed its opposition on
November 1, 2023. Fromm and SMG Holdings filed their reply on November 7, 2023.
LEGAL STANDARD
A demurrer for sufficiency tests whether a
pleading states a cause of action or defense. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
In a demurrer proceeding, the defects must be apparent on the face of the
pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a
demurrer hearing is whether the pleading, as it stands, unconnected with
extraneous matters, states a cause of action or defense. (Hahn, supra, 147 Cal.App.4th at 747.)
MEET AND CONFER
Before filing a demurrer or a motion to strike,
the demurring or moving party is required to meet and confer with the party who
filed the pleading demurred to or the pleading that is subject to the motion to
strike for the purposes of determining whether an agreement can be reached
through a filing of an amended pleading that would resolve the objections to be
raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes
that Cross-Defendants have complied with the meet and confer requirement. (See Sayers
Decl.)
DISCUSSION
The EPA contains a choice of law provision
stating that it is governed by Delaware law. (FACC, Ex. A, § 10.11.)
Additionally, the EPA contains an anti-reliance clause precluding common law
fraud claims except those arising under Delaware law. (Id., §§ 5.08, 1.01.)
Accordingly, the Court’s analysis will proceed under Delaware law.
I.
Breach of Contract
Breach of contract requires: (1) a
contractual obligation; (2) a breach of that obligation; and (3) a resulting
damage. (Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP
(Del. Ch., Dec. 3, 2018, No. CV 7906-VCG) 2018 WL 6311829, at *45.)
Cross-Defendants argue that Fromm cannot
be liable in his personal capacity because the representations and warranties in
the EPA were made solely by “the Seller,” or SMG Holdings. However, the EPA
provides that “Seller and Fromm, on a joint and several basis, agree to
indemnify and defend each of the Buyer Indemnified Parties” against losses resulting
from, inter alia, breaches of any warranties made in the EPA. (EPA §
8.02.) The FACC alleges that the Buyer requested such indemnification from
Cross-Defendants but that Cross-Defendants rejected the claim. (FACC ¶¶ 88-90.)
Therefore, a breach of contract has been alleged against Fromm personally.
Cross-Defendants also argue that Fromm
cannot be liable because the EPA limits the remedies for breach to the Escrow
Indemnity Amount and proceeds from a certain insurance policy. (EPA §§ 8.04(e),
8.10.) However, if the limitation on remedies applied, it would only restrict
what SMG Mountain may ultimately recover. It does not absolve any party,
including Fromm, of liability.
II.
Fraud
The elements of fraud are: “(1) the
defendant falsely represented or omitted facts that the defendant had a duty to
disclose; (2) the defendant knew or believed that the representation was false
or made the representation with a reckless indifference to the truth; (3) the
defendant intended to induce the plaintiff to act or refrain from acting; (4)
the plaintiff acted in justifiable reliance on the representation; and (5) the
plaintiff was injured by its reliance.” (DCV Hldgs., Inc. v. Conagra, Inc.
(Del. 2005) 889 A.2d 954, 958.)
a. Bootstrapping
“As a general rule under Delaware
law, where an action is based entirely on a breach of the terms of a contract
between the parties, and not on a violation of an independent duty imposed by
law, a plaintiff must sue in contract and not in tort.” (Pinkert v. John J.
Olivieri, P.A. (D. Del., May 24, 2001, No. CIV. A. 99-380-SLR) 2001 WL
641737, at *5.) A contract claim “cannot be ‘bootstrapped’ into a fraud claim
merely by adding the words ‘fraudulently induced’ or alleging that the
contracting parties never intended to perform.” (Iotex Communications, Inc.
v. Defries (Del. Ch., Dec. 21, 1998) 1998 WL 914265, at *5.) However, “the
anti-bootstrapping rule does not apply where a plaintiff has made
particularized allegations that a seller knew contractual representations were
false or lied regarding the contractual representation.” (Swipe Acquisition
Corporation v. Krauss (Del. Ch., Aug. 25, 2020, No. CV 2019-0509-PAF) 2020
WL 5015863, at *11.)
Here, the FACC alleges specific contractual
representations that Cross-Defendants allegedly knew were false. (See FACC ¶¶ 34-70,
129-148, 169-187.) For example, Cross-Defendants represented in Section 4.10 of
the EPA that they had not received any written notice of the cancellation of a Material
Contract. (Id., ¶ 100.) Cross-Defendants also represented in Section
4.21 that they had not received notice that a Material Customer will stop doing
business with SMG Holdings. (Id., ¶ 102.) And Section 4.28 represented
that contracts with certain customers would be renewed upon expiration. (Id.,
¶ 103.) However, at the time of signing the EPA, Cross-Defendants allegedly
knew that these representations were false with respect to each of the four
Customers. (Id., ¶¶ 105, 141, 151, 161.) In other words, the EPA contains
statements of fact that were false when made. Under Delaware law, a fraud claim
may proceed based on such statements. (See Swipe, supra, 2020 WL
5015863, at *12 [“Delaware law permits representations and warranties in a contract
to form the basis for fraud claims”].)
Therefore, the fraud claims are based on
more than the mere failure to perform a contractual obligation and do not
constitute improper bootstrapping. Cross-Defendants argue that proving
contractual misrepresentation requires evidence of a defendant’s “illicit mind”
and proceed to discuss examples of the types of proof that courts have found
sufficient. However, a demurrer is not concerned with proof. The allegations in
the FACC, when read together and interpreted liberally, support a reasonable
inference that Cross-Defendants committed fraud through contractual
misrepresentations.
c. Same Damages
“[F]raud damages allegations can't
simply ‘rehash’ the damages that were allegedly caused by the claimed breach of
contract.” (EZLinks Golf, LLC v. PCMS Datafit, Inc. (Del. Super. Ct.,
Mar. 13, 2017, No. CVN16C07080PRWCCLD) 2017 WL 1312209, at *7.) “Failure to
plead separate damages is an independent ground for dismissal.” (Bobcat
North America, LLC v. Inland Waste Holdings, LLC (Del. Super. Ct., Sept.
18, 2020, No. CVN17C06170PRWCCLD) 2020 WL 5587683, at *5.)
Cross-Defendants argue that the
damages claimed for breach of contract and fraud are materially identical
because in both instances, Cross-Complainant seeks to recover the amount it
purportedly overpaid for the purchase of SMG Holdings. However, fraud and
contract damages are “sufficiently differentiated” where the contract claims
are subject to a damage cap and the fraud claims are not. (Partners &
Simons, Inc. v. Sandbox Acquisitions, LLC (Del. Ch., July 26, 2021, No. CV
2020-0776-MTZ) 2021 WL 3159883, at *6.) Here, the EPA caps damages at $860,000,
except in instances of fraud. (EPA § 8.04(b), (m).) Therefore, the fraud claims
do not rehash contract damages.
c. Justifiable Reliance
Cross-Defendants argue that Cross-Complainant
cannot allege justifiable reliance as to Customer 2 because Cross-Complainant
was aware of negative feedback from Customer 2. Cross-Defendants further argue
that the fraud claim cannot be based on representations made outside of the EPA
because of the anti-reliance clause in Section 5.08.
However, Section 5.08 expressly does
not apply to claims arising from fraud. (See In re P3 Health Group Holdings, LLC (Del. Ch., Oct.
26, 2022, No. 2021-0518-JTL) 2022 WL 15035833, at *7 [“In light of the Fraud
Carve Out, the No Representations Clause does not foreclose Hudson from
alleging that it relied on” an outside representation].) Furthermore, receiving
negative feedback from Customer 2 does not preclude Cross-Complainant’s
reliance on Fromm’s specific representation afterwards that “there was no way
that Customer 2 would terminate its multi-year relationship with the Company.”
(FACC ¶ 60.)
d. Specificity
Cross-Defendants argue that the misrepresentations
relating to Customers 1, 3, and 4 are not pled with the requisite specificity because
they are not attributed to Fromm individually. Cross-Defendants argue that at
most, only SMG Holdings had a duty to disclose. However, “[f]lesh and blood
humans also can be held accountable for statements that they cause an
artificial person, like a corporation, to make.” (Prairie Capital III, L.P.
v. Double E Holding Corp. (Del. Ch. 2015) 132 A.3d 35, 59.) “Because it lacks
a body and mind, a corporation only can act through human agents.” (Id.
at p. 60.) “As the human through which the corporate principal acts, a
corporate officer can be held personally liable for the torts he commits and
cannot shield himself behind a corporation when he is a participant.” (Ibid.)
Here, the allegations in the FACC
sufficiently establish Fromm as an active participant in the fraud who made
representations on behalf of SMG Holdings. Therefore, the fraud claims are properly
pled against Fromm.
CONCLUSION
Cross-Defendants’ demurrer is
OVERRULED.
Case Number: 22STCV39331 Hearing Date: November 15, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 15, 2023 Case Name: Ticey v. Doe 1, et al. Case No.: 22STCV39331 Matter: Motion for Judgment on the Pleadings Moving Party: Defendant LAUSD Responding Party: Plaintiff Deborah Ticey Notice: OK
Ruling: The Motion for Judgment on the Pleadings is denied.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
On May 12, 2023, Plaintiff Deborah Ticey filed the operative First Amended Complaint for (1) sexual assault of a minor and (2) negligence. This matter relates to alleged sexual abuse in 1979-1980 when Plaintiff was attending elementary school. Defendant LAUSD moves for judgment on the pleadings for failure to state sufficient facts. Defendant argues that the FAC’s claims rely on A.B. 218’s retroactive elimination of the government claims requirement, which is an unconstitutional gift of public funds. “A defendant may move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to state a cause of action against that defendant. A motion for judgment on the pleadings ‘is equivalent to a demurrer . . . .’ Leave to amend ‘is properly denied if the facts and nature of plaintiffs’ claims are clear and under the substantive law, no liability exists.’ ” (Templo v. State¿(2018) 24 Cal.App.5th 730, 735.) As is relevant here, A.B. 218 eliminated the language in Gov. Code § 905(m) declaring that the claims exemption only applied to claims arising from conduct occurring after January 1, 2009 and added subsection (p) to Section 905, stating that the changes made to the statute “are retroactive . . . .” (Gov. Code § 905(p).) Defendant concedes that the legislature can amend the statute of limitations as it wishes, but it argues that the government claims requirement is a substantive element of Plaintiff’s claims and “the Legislature cannot pass a law attempting to impose liability on a public entity for a past occurrence where there is no enforceable claim. As outlined below, it is beyond debate that, before the Legislature passed AB 218, Plaintiff did not have an enforceable claim against the District.” “The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State, or of any county, city and county, city, township or other political corporation or subdivision of the State now existing, or that may be hereafter established, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the liabilities of any individual, association, municipal or other corporation whatever; nor shall it have power to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever . . . .” (Cal. Const. Art. XVI, § 6.) The Court is aware of a number of trial court decisions on this issue. Some courts have found A.B. 218 unconstitutional, and others have rejected Defendant’s arguments. There is at least one appeal pending. Respectfully, the Court considers the claim requirement to be akin to a statute of limitations, such that there is no public gift issue. Indeed, it’s been said that “[T]he Legislature has the power to expressly revive time-barred civil common law causes of action. This holding is consistent with the niche in our civil law occupied by statutes of limitations. The principle is ... well established that [s]tatutorily imposed limitations on actions are technical defenses which should be strictly construed to avoid the forfeiture of a plaintiff's rights.... [Citation.] [T]here is a strong public policy that litigation be disposed of on the merits wherever possible.” [ ] [¶] The present case, of course, involves revival of a cause of action barred by a claim presentation requirement, not a statute of limitations. But we are aware of no reason the Legislature should be any less able to revive claims in this context, as it expressly did in Assembly Bill 218 . . . .” (Coats v. New Haven Unified Sch. Dist. (2020) 46 Cal.App.5th 415, 428 (internal quotes and citations omitted).) Moreover, it has been consistently held that expenditures of public funds or property that involve a benefit to private persons are not gifts within the meaning of the constitutional prohibition if those funds are expended for a public purpose (California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 216; County of San Bernardino v. Way (1941) 18 Cal.2d 647, 653; County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281; County of Riverside v. Whitlock (1972) 22 Cal.App.3d 863, 877; Winkelman v. City of Tiburon (1973) 32 Cal.App.3d 834, 844-846). As stated in City of Oakland v. Garrison (1924) 194 Cal.298, 302: “[W]here the question arises as to whether or not a proposed application of public funds is to be deemed a gift within the meaning of that term as used in the Constitution, the primary and fundamental subject of inquiry is as to whether the money is to be used for a public or a private purpose. If it is for a public purpose within the jurisdiction of the appropriating board or body, it is not, generally speaking, to be regarded as a gift.” (Emphasis added.) It is likewise settled that if a public purpose is served by the expenditure of public funds, the constitutional prohibition is not violated even though there may be incidental benefits to private persons (Board of Supervisors v. Dolan (1975) 45 Cal.App.3d 237, 243; see also People v. City of Long Beach (1959) 51 Cal.2d 875; County of San Diego v. Hammond (1936) 6 Cal.2d 709; City of Oakland v. Williams (1929) 206 Cal. 315, 274 P. 328). More importantly, under an unbroken line of cases, the determination of what constitutes a public purpose is primarily a matter for the Legislature, and its discretion will not be disturbed by the courts so long as that determination has a reasonable basis (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 746; County of Alameda, supra, 16 Cal.2d 276, 281; Dockweiler, supra, 14 Cal.2d at 449-450; Community Television of So. Cal. v. County of Los Angeles (1975) 44 Cal.App.3d 990, 997; Dolan, supra, 45 Cal.App.3d 237, 243.) As Judge Stephen Kaus eloquently put it, there is public purpose here because “A.B. 218 was passed to expose and hold perpetrators of childhood sexual assault responsible for their actions, prevent public entities from covering up such abuse and thereby prevent future assaults by raising the costs for engaging in or concealing sexual abuse of children. As these goals will benefit the public as a whole by making the public safer, restoring the public's confidence in public entities, and resting assured that public entities, like private entities will be held liable for their acts that constitute sexual abuse of children, this act serves a public purpose.” (Jane Doe 7075 v. New Haven School Dist. (Cal.Super. Oct. 02, 2023) 2023 WL 6935551, at *4; Plaintiff’s RJN, Exhibit B.) For all these reasons, the Court does not find A.B. 218 to be unconstitutional. Therefore, the Motion for Judgment on the Pleadings is denied. The Requests for Judicial Notice are granted. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 22STCV39334 Hearing Date: November 13, 2023 Dept: 51 Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: November
13, 2023
CASE NAME: Andrew Stafford, et al. v. Christine
Fadley
CASE NO.: 22STCV39334
DEMURRER
TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE
MOVING PARTY: Defendant
Christine Fadley
RESPONDING PARTY(S): Plaintiffs Andrew Stafford and
Alexa Greger
REQUESTED RELIEF:
1. Demurrer
to the 5th, 8th, and 9th, causes of action.
2. Motion
to Strike various portions of the FAC.
TENTATIVE RULING:
1. Demurrer
to the FAC is OVERRULED in its entirety.
2. Motion
to Strike is DENIED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On December 19, 2022, Plaintiffs Andrew Stafford and Alexa
Greger (Plaintiffs) filed a Complaint against Defendant Christine Fadley
(Defendant) with nine causes of action for: (1) Private Nuisance, (2)
Intentional Influence to Vacate, (3) Termination of Estate, Civil Code § 789.3
(4) Business and Professions Code §§ 17200, (5) Slander/Defamation, (6) Breach
of Covenant of Quiet Enjoyment, (7) Breach of Implied Covenant of Good Faith
and Fair Dealing, (8) Violation of California Civil Code § 1946.2, and (9) Intentional
Infliction of Emotional Distress. Plaintiffs allege that they were tenants of
the Subject Property, which was owned and/or managed by Defendant. During
Plaintiffs time at the Subject Property, Defendant locked the gate to prevent
Plaintiffs from entering. Additionally, Defendant turned off electrical power
and glued the locks shut to further prevent Plaintiffs from entering the
Subject Property. Defendant also attempted to increase Plaintiffs’ rent by 37%,
increasing it from $2,700 to $2,700, or stating that Plaintiffs have to vacate.
On May 25, 2023, the court SUSTAINED Defendant’s Demurrer as
to the 5th Cause of Action, with leave to amend, and OVERRULED as to the
remaining causes of action. The court also DENIED Defendant’s Motion to Strike.
On June 12, 2023, Plaintiffs filed a First Amended Complaint
(FAC) with the same causes of action as the Complaint alleged in the caption,
however, the Eighth Cause of Action states it is for Conversion of Private
Property.
On July 31, 2023, Defendant filed the instant demurrer and
motion to strike. On September 21, 2023, Plaintiffs filed an opposition to the
demurrer and motion to strike. On November 3, 2023, Defendant filed replies.
LEGAL STANDARD:
Demurrer
A demurrer for sufficiency tests whether the complaint states
a cause of action.¿(Hahn v. Mirda¿(2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context.¿In a demurrer proceeding, the defects must be
apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters. …. The only issue involved in a demurrer
hearing is whether the complaint, as it stands, unconnected with extraneous
matters, states a cause of action.”¿(Hahn¿147
Cal.App.4th at 747.)
When considering demurrers, courts
read the allegations liberally and in context, accepting the alleged facts as
true. (Nolte v. Cedars-Sinai Medical
Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits
attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189
Cal.App.3d 91, 94 (Frantz).)
Motion to Strike
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (CCP § 436(a).) The court may also
strike 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. (Id., § 436(b).) The grounds for moving
to strike must appear on the face of the pleading or by way of judicial notice.
(Id.¿§¿437.)¿“When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend.” (Vaccaro v. Kaiman¿(1998)
63 Cal.App.4th 761, 768.)
Meet and Confer
Prior to filing a demurrer, the demurring party is required
to satisfy their meet and confer obligations pursuant to Code of Civ. Proc.
(CCP) §430.41 and demonstrate that they so satisfied their meet and confer
obligation by submitting a declaration pursuant to CCP §430.41(a)(2) &
(3).¿The meet and confer requirement also applies to motions to strike. (CCP §
435.5.)
Here, the Declaration of Doron F. Eghbali submitted with
the demurrer indicates that Defendant sent Plaintiffs counsel a meet and confer
letter on June 26, 2023. (Eghbali Decl. ¶ 8.) Plaintiffs counsel did not
respond. (Eghbali Decl. ¶ 11.) However, one letter does not evidence sufficient
meet and confer efforts. Still, failure to meet and confer is not a sufficient
ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)
ANALYSIS:
Timeliness of FAC
Defendant contends that the court should strike Plaintiffs’
FAC because it was filed outside of the timeframe previously ordered by the
court. Plaintiffs argue that the court should not strike the FAC because it was
untimely due to counsel’s calendaring error and it was only filed eight days
late.
“The court may dismiss the complaint as to that defendant
when: . . . after a demurrer to the complaint is sustained with leave to amend,
the plaintiff fails to amend it within the time allowed by the court and either
party moves for dismissal.” (CCP § 581(f)(2).)
Here, the court will not strike the FAC because, even though
it was filed after the deadline imposed by the court, the court “may” dismiss
rather than “must” dismiss, Defendant did not move to strike the FAC before it
was filed, Defendant extended their time to respond to the FAC via automatic
declaration, and Plaintiffs’ counsel admits to a calendaring error.
(See, e.g., Brown v. Brown (1959) 169 Cal.App.2d 54; see also, Cal. Rules of
Court, Rule 3.1320(j) [providing for 10 days to answer or otherwise plead to
the complaint after a demurrer is overruled or sustained.])
Accordingly, the court proceeds on the merits.
Demurrer
Defendant demurrers to the fifth, eighth, and ninth causes
of action.
1. Fifth Cause of Action –
Slander/Defamation
Defendant contends that this cause of action fails because
the statements in question are opinions or expressions of personal belief rather
than verifiable facts, that the statements do not meet the requirements for
slander per se, and that the statements as alleged lack specificity. Plaintiff
argues that the FAC asserts slanderous allegations of criminal activity which
is also slanderous per se.
Slander is a false and unprivileged
publication, orally uttered, and also communications by radio or any mechanical
or other means which: 1. Charges any person with crime, or with having been
indicted, convicted, or punished for crime; 2. Imputes in him the present
existence of an infectious, contagious, or loathsome disease; 3. Tends directly
to injure him in respect to his office, profession, trade or business, either
by imputing to him general disqualification in those respects which the office
or other occupation peculiarly requires, or by imputing something with
reference to his office, profession, trade, or business that has a natural
tendency to lessen its consequence, causes action damage.
(Civ. Code § 46.)
“Publication means a communication to some third person who
understands the defamatory meaning of the statement and its application to the
person to whom reference is made. Publication need not be to the ‘public’ at
large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th
637, 645.)
To constitute libel, a “ ‘statement must contain a provable
falsehood . . .’” and to this end, “ ‘courts distinguish between statements of
fact and statements of opinion for purposes of defamation liability.’” (Summit Bank v. Rogers (2012) 206
Cal.App.4th 669, 695.) “’[A]n opinion based on implied, undisclosed facts is
actionable if the speaker has no factual basis for the opinion’ but ‘[a]n
opinion is not actionable if it discloses all the statements of fact on which
the opinion is based and those statements are true.’ . . . . To decide whether
a statement expresses or implies a provable false assertion of fact, courts use
a totality of the circumstances test. [citation.] ‘[A] court must put itself in
the place of an average reader and determine the natural and probably effect of
the statement . . . .’ [citation.] Thus, a court considers both the language of
the statement and the context in which it is made. [citation.] ‘The contextual
analysis requires that courts examine the nature and full content of the particular
communication, as well as the knowledge and understanding of the audience
targeting by the publication.’” (Bently
Rsr. LP v. Papaliolios (2013) 218 Cal.App.4th 418, 427.)
Under the totality of the circumstances as alleged in the
FAC, the court disagrees with Defendant that the FAC fails to sufficiently
allege defamation. First, the FAC alleges that Defendant called Plaintiffs
“thieves” and “spread rumors to other neighbors about how ‘bad these tenants’
were and about how they ‘stole’ from the Defendant.”
(FAC ¶ 78.) Unlike the opinion that Plaintiff Stafford is a “bad guy,” a
“deadbeat person,” and was not entitled to the property, claiming to neighbors
that Plaintiffs stole from her is not an opinion, but a provable fact – it
either did or did not happen.
Accordingly, the court OVERRULES Defendant’s demurrer to
the fifth cause of action.
2. Eighth & Ninth Causes of Action
Defendant demurrers to these causes
of action because they were improperly added and insufficiently pled.
“A party demurring to a pleading that has been amended after
a demurrer to an earlier version of the pleading was sustained shall not demur
to any portion of the amended complaint . . . on grounds that could have been
raised by demurrer to the earlier version of the complaint . . . .” (CCP §
430.41(b).)
Upon review of the FAC, and comparing it to the original
Complaint, the court disagrees with Defendant. First, the Complaint also listed
Violation of California Civil Code § 1946.2 as the Eighth Cause of Action in
the caption and then stated “Conversion of Private Property” in the body (Compare
Compl. at p. 27 with FAC at p. 28.) The Complaint states the Ninth Cause of
Action for Intentional Infliction of Emotional Distress. (Compare Compl. at p.
29 with FAC at p. 30.) The court also notes that Defendant did not previously
demurrer to the Eighth or Ninth Causes of Action. Because Defendant could have
raised these grounds when they filed the earlier demurrer, they are barred from
doing so now. (CCP § 430.41(b).)
Accordingly, the court OVERRULES Defendant’s demurrer to
the Eighth and Ninth Causes of Action.
Motion to Strike
Defendant moves to strike various portions of the FAC,
including:
1. The
portion on pg. 22, lns. 5-25 of the FAC;
2. The
portion on pg. 23, lns. 1-25 of the FAC;
3. The
portion on pg. 24, lns. 1-22 of the FAC;
4. The
portion on pg. 28, lns. 2-23 of the FAC;
5. The
portion on pg. 29, lns. 1-25 of the FAC;
6. The
portion on pg. 30, lns. 1-2 of the FAC;
7. The
portion on pg. 30, lns. 3-25 of the FAC;
8. The
portion on pg. 31, lns. 1-25 of the FAC;
9. The
portion on pg. 32, lns. 7-25 of the FAC;
10. The
portion on pg. 32, lns. 7-25 of the FAC;
11. The
Complaint in its entirety as related to the fifth cause of action for
Slander/Defamation;
12. The
Complaint in its entirety as related to the eighth cause of action of Breach of
Conversion of Private Property;
13. The
Complaint in its entirety as related to the ninth cause of action for Breach of
Intentional Infliction of Emotional Distress;
14. The
Complaint in its entirety as related to punitive damages; and
15. The
Complaint in its entirety as related to attorney’s fees.
The court has already addressed Defendant’s two contentions
in the above demurrer: addition of the Eighth and Ninth Causes of Action and
untimeliness of the FAC.
As to Punitive damages and attorney fees, the initial Motion
does not discuss the basis for the request. In any event, the Court previously
overruled the Motion to Strike as to these allegations in an Order entered on
May 25, 2023.
As these are the only arguments Defendant puts forth, the
court DENIES Defendant’s motion to strike in its entirety.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
1. Demurrer
to the FAC is OVERRULED in its entirety.
2. Motion
to Strike is DENIED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: November
13, 2023 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court
In their Reply,
as to attorney fees, counsel indicates that it is based upon their Demurrer to
the fifth cause of action: violation of Penal Code § 496. This is puzzling, to say
the least, since the fifth cause of action alleges Slander/Defamation and not a
violation of Penal Code § 496. Moreover,
the Court previously denied the motion pointing
out that attorney fees are statutorily available for a successful prosecution
of the third cause of action, alleging a violation of Civil Code § 789.3.
Case Number: 22STLC01288 Hearing Date: November 13, 2023 Dept: 26 22STLC01288
CINDY MERIDA -- Motions to Compel Further - No Tentative - Case Settled
Case Number: 22STLC06844 Hearing Date: November 13, 2023 Dept: 26 22STLC06844
INS CO OF THE WEST -- Motion to be Relieved as Counsel - No Tentative - Substitution of Attorney Filed
Case Number: 22VECV00906 Hearing Date: November 14, 2023 Dept: T 22VECV00906 JOSHUA M. ROBERS vs HYUNDAI Tentative ruling: Motion for Attorney Fees The court has closely reviewed the billing which was submitted to the court and issues the following tentative ruling: The court does not approve a fee of $750 per hour which it finds to be in excess of the community rate for like services and for an attorney of like experience. The court reduces Mr. Wirtz’ rate to $650 per hour. Also, the court finds that the hourly rate for relatively inexperienced attorneys Ommar Chavez and Alana Mellgren is also not approved for the same reason and the rate is reduced to $350 per hour. The court finds that much of the paralegal work was clerical, which should be included into the overhead, and not work usually done by paralegals. Those charges are disallowed. All of the paralegal’s rates are reduced to $200 per hour except as to Rebecca Evans and Florence Goldson which are reduced to $250 per hour. The court declines to award as fees those matters marked “c” or “clerical” in the attached billing***, and one of the entries is cut in half as indicated. ***The tentative ruling with attachment was emailed to counsel on 10/24/2023.
The amount should be recalculated with the above adjustments. IT IS SO ORDERED, CLERK OF THE COURT TO GIVE NOTICE.
Case Number: 22VECV01113 Hearing Date: November 14, 2023 Dept: T 22VECV01113 CHRISTINE ROCHA vs DON CHAVA FOODS
[TENTATIVE] ORDER:
Plaintiff Christine Rocha’s Motion for Leave to File a Second Amended
Complaint is GRANTED. Plaintiff
Christine Rocha is ORDERED to file and serve the Proposed Second Amended
Complaint WITHIN 15 DAYS.
Introduction
Plaintiff Christine Rocha (Plaintiff) moved to file a
Proposed Second Amended Complaint (PSAC).
Defendants Don Chava Foods, Inc., Daniel Reynoso; Christian Reynoso; and
Humberto Reynoso filed a “Response” to the motion rather than an Opposition.
Discussion
Plaintiff moved to file the PSAC in order to clarify certain
facts and to add additional claims for compensatory money damages. With these facts, Plaintiff sufficiently
provided the effect and reason for the amendments. Further Plaintiff provided that the
clarifying facts were discovered when responses to Defendants’ special
interrogatories were being prepared.
(Berke Decl. par. 3.) The Court
does not find that Defendants are prejudiced, especially in light of the fact
that Defendants’ “Response” effectively submitted to the motion and did not
oppose the motion.
The motion for leave to amend is GRANTED.
IT IS SO ORDERED, MOVING PARTY TO GIVE NOTICE.
Case Number: 23AHCV01023 Hearing Date: November 13, 2023 Dept: 54
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Superior Court of California
County of Los Angeles
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Pasadena Ho, LLC, et al.,
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Plaintiffs,
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Case No.:
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23AHCV01023
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vs.
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Tentative Ruling
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Macoy Capital Mortgage, LLC, et al.,
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Defendants.
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Hearing Date:
November 13, 2023
Department 54,
Judge Maurice A. Leiter
Demurrer to
Complaint and Motion to Strike
Moving Party: Defendant Macoy
Capital Mortgage, LLC
Responding
Party: Plaintiffs Pasadena Ho, LLC and Wolfe Air Aviation, Ltd
T/R: DEFENDANT’S DEMURRER IS OVERRULED.
DEFENDANT’S
MOTION TO STRIKE IS DENIED.
DEFENDANT TO
FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.
DEFENDANT TO NOTICE.
If the parties
wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing
counsel (or self-represented party) before 8:00 am on the day of the
hearing.
The Court considers the moving papers, opposition, and reply.
BACKGROUND
On May 8, 2023, Plaintiffs Pasadena Ho, LLC and Wolfe Air Aviation, LTD sued
Defendants, asserting causes of action for (1) fraud; (2) conversion; (3) quiet
title; (4) reformation; (5) cancellation of instrument; (6) fraud and deceit;
and (7) conversion. Plaintiffs allege Defendants converted the proceeds of
loans secured against Plaintiffs’ real properties, the Raymond Property and
Patrician Property.
ANALYSIS
A demurrer to a complaint may be taken
to the whole complaint or to any of the causes of action in it. (CCP § 430.50(a).) A demurrer challenges only the legal
sufficiency of the complaint, not the truth of its factual allegations or the
plaintiff's ability to prove those allegations.
(Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.
App. 4th 726, 732.) The court must treat
as true the complaint's material factual allegations, but not contentions,
deductions or conclusions of fact or law.
(Id. at 732-33.) The
complaint is to be construed liberally to determine whether a cause of action
has been stated. (Id. at 733.)
A. Fraud and Deceit
The elements of fraud are: “(a)
misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce
reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v.
Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including
negligent misrepresentation, must be pled with specificity. (Small v. Fritz
Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands
that a plaintiff plead facts which show how, when, where, to whom, and by what
means the representations were tendered.” (Cansino v. Bank of America
(2014) 224 Cal.App.4th 1462, 1469.)
Defendant demurs to the causes of
action for fraud and deceit on the ground that Plaintiffs have failed to allege
facts with the requisite specificity and failed to allege any
misrepresentations. Plaintiffs allege that Macoy and its
principal, Mitch O., represented to Wolfe that they would assist Pasadena Ho,
LLC in refinancing a $550,000 encumbrance against Pasadena Ho’s 50% interest in
the Raymond Ave. Property, and that Wolfe could use excess loan proceeds for
business purposes. Macoy represented that it would lend $725,000 to PH LLC.
(Complaint, ¶25.) Instead, Macoy issued a fraudulent loan to Defendants in the
amount of $812,500 without Wolfe’s required approval and signature. Macoy also
encumbered 100% of the Raymond Ave. Property and Wolfe received none of the
excess loan proceeds. (Complaint, ¶28.)
As to the Patrician property, Plaintiffs
allege Macoy falsely represented that it would retain
$72,000 of WAA’s loan proceeds and make interest-only monthly payments for the
first twelve months on WAA’s behalf. Plaintiffs allege Macoy made this
misrepresentation with the intent of inducing WAA to agree to the arrangement,
permitting Macoy to obtain $72,000. Macoy allegedly knew its representation was
false and did not intend to fulfill its promise. Later, Macoy sold the loan
without making the required interest payments.
The above allegations are sufficient to state causes of action for
fraud.
B. Conversion, Quiet Title, and Cancellation of Instruments
Defendant asserts the claims for conversion, quiet title, and
cancellation of instruments
on the ground that Plaintiffs have failed to allege sufficient facts. As discussed,
Plaintiffs allege Defendants retained money belonging to Plaintiffs, took out
loans greater than what the parties agreed to, and encumbered 100% of a
property rather than the agreed upon 50%. These facts support causes of action
for conversion, quiet title, and cancellation of instruments.
Defendant’s demurrer is OVERRULED.
C. Motion to Strike
Defendant moves to strike Plaintiffs’ requests for punitive damages and
attorney’s fees. As Plaintiffs have stated causes of action for fraud,
Plaintiffs have pleaded entitlement to punitive damages. The Court declines to
strike the prayer for attorney’s fees as a basis for them may appear later in
litigation. The Court notes that a prayer for attorney’s fees does not in
itself entitle that party to attorney’s fees.
The motion to strike is DENIED.
Case Number: 23GDCV01391 Hearing Date: November 13, 2023 Dept: 3 SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST
DISTRICT
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LIDA ZOHRABIANS, by and through her Successor-in-Interest,
NAHID MINASKANIAN, et al.,
Plaintiff(s),
vs.
CENTRAL
CONVALESCENT HOSPITAL OF GLENDALE INC. dba CHANDLER CONVALESCENT, et al.,
Defendant(s).
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CASE NO.: 23GDCV01391
[TENTATIVE]
ORDER RE: MOTION TO COMPEL ARBITRATION
Dept.
3
8:30
a.m.
November
13, 2023
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I.
INTRODUCTION
On July 5, 2023, this action was filed
by Anahid Minaskanian (“Plaintiff”), individually, and as successor-in-interest
to Lida Zohrabians (“Zohrabians”), against Central Convalescent Hospital of
Glendale Inc. dba Chandler Convalescent Hospital (“CCH”) (erroneously sued as “Central
Convalescent Hospital of Glendale Inc. dba Chandler Convalescent Hospital –
Glendale” and “Chestnut Ridge Post Acute LLC dba Chandler Convalescent Hospital
– Glendale”), and Renew Health Consulting Services, LLC (“Renew Health”).
Vartan Vartanians and Mary Boudaghians were named as nominal defendants. Plaintiff
asserts causes of action for elder abuse and neglect, violation of Health &
Safety Code section 1430(b), negligence, and wrongful death.
On
August 11, 2023, CCH and Renew Health (collectively, “Defendants”) filed this
petition to compel arbitration and stay action.
Plaintiff
filed an opposition brief and objection on October 30, 2023.
Defendants
filed a reply brief on November 3, 2023.
II.
LEGAL
STANDARD
In deciding a motion to compel
arbitration, trial courts must decide first whether an enforceable arbitration
agreement exists between the parties, and then determine the second gateway
issue whether the claims are covered within the scope of the agreement. (Omar
v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The party seeking
arbitration has the “burden of proving the existence of a valid arbitration
agreement by a preponderance of the evidence, while a party opposing the
petition bears the burden of proving by a preponderance of the evidence any
fact necessary to its defense.” (Ruiz v. Moss Bros. Auto Group, Inc.
(2014) 232 Cal.App.4th 836, 842.) The trial court “sits as the trier of fact,
weighing all the affidavits, declarations, and other documentary evidence, and
any oral testimony the court may receive at its discretion, to reach a final
determination.” (Id.) General principles of contract law govern whether parties
have entered a binding agreement to arbitrate. (Pinnacle Museum Tower Assn.
v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; see
also Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th
943, 947.)¿
III.
DISCUSSION
A.
Evidentiary
Objections
Plaintiff objects to Exhibits A and B
to the Declaration of Denise A. Isfeld on the grounds that they lack
foundation, call for legal conclusions, and are improper opinions. Exhibit A is
a copy of the arbitration agreement and Exhibit B is a copy of the Physician’s
Orders for Life Sustaining Treatment (“POLST”) from Zohrabian’s records. The objection
to Exhibit A is overruled. “For purposes of a petition to compel arbitration,
it is not necessary to follow the normal procedures of document
authentication.” (Condee v. Longwood Management Corp. (2001) 88
Cal.App.4th 215, 218. “A plain reading of the statute indicates that as a
preliminary matter the court is only required to make a finding of the
agreement's existence, not an evidentiary determination of its validity.” (Id.
at p. 219.) “Once the petitioners had alleged that the agreement exists, the
burden shifted to respondents to prove the falsity of the purported agreement.”
(Ibid.)
The POLST, however, is not an
arbitration agreement. Therefore, the objection on the grounds that the
document lacks foundation is sustained.
B.
Whether
a Valid Arbitration Agreement Exists
“The party seeking to compel
arbitration bears the burden of proving the existence of a valid arbitration
agreement.” (Flores v. Evergreen at San Diego, LLC (2007) 148
Cal.App.4th 581, 586 .) Here, Defendants argue that Zohrabian’s daughter, Mary Boudaghians
(“Boudaghians”) signed an arbitration agreement on Zohrabian’s behalf. The
agreement, attached as Exhibit to defense counsel’s declaration, states that it
is to be governed by the Federal Arbitration Act (“FAA”) and encompasses “any
dispute” between Zohrabian and CCH or ReNew Health, including “any action for
injury or death arising from negligence, intentional tort and/or statutory
causes of action (including all California Welfare and Institutions Code
sections and Health and Safety Code section 1430).” The agreement is also
“binding on all parties, including [Zohrabian]’s representatives, executors,
family members, and heirs who bring any claim individually or in a
representative capacity.” Based on this language, the claims asserted by
Plaintiff, either on her own behalf as Zohrabian’s heir or on behalf of
Zohrabian in a representative capacity, fall within the scope of the
arbitration agreement.
Defendants argue that Zohrabian is
bound to the arbitration agreement that Boudaghians signed because Boudaghians also
signed Zohrabian’s POLST and represented that she was Zohrabian’s “legally
recognized decisionmaker.” Defendants argue that “[i]t would be counter
intuitive to contend that [Boudaghians] had the power to decide if [Zohrabian]
lived or died but not the power to execute an Arbitration Agreement on [Zohrabian]’s
behalf.” (Motion, p. 7.) However, this contention was expressly rejected by the
Second Appellate District in Logan v. Country Oaks Partners, LLC (2022)
82 Cal.App.5th 365. In Logan, the court of appeals distinguished between
the authority granted to an individual through an advance directive and the
authority to execute optional arbitration agreements, such as the one at issue
in this case. (Logan, supra, 82 Cal.App.5th at p. 375; Motion,
Ifeld Decl., Ex. A, p. 1.) Furthermore, it is well-settled that conduct by an
agent alone is not sufficient to establish agency; rather, both words and
conduct by principal and agent are necessary to create an agency relationship.
(See Flores, supra, 148 Cal.App.4th at pp. 587-588 [“an agency
cannot be created by the conduct of the agent alone; rather conduct by the
principal is essential to create the agency”].) Defendants provide no evidence
of any conduct by Zohrabians to demonstrate that Boudaghians was her actual or
ostensible agent. The POLST is inadmissible for the reasons stated above, but
even if it were admissible, it alone is not proof that Boudaghians was actually
Zohrabian’s “legally recognized decisionmaker.”
Based on the foregoing, Defendants fail
to allege the existence of an enforceable arbitration agreement.
IV.
CONCLUSION
Defendants’ petition to compel
arbitration is DENIED.
Dated
this 13th
day of November, 2023
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William A.
Crowfoot
Judge of the Superior Court
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Parties who intend to submit on this
tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating
intention to submit on the tentative as directed by the instructions provided
on the court website at www.lacourt.org. Please be advised that if you submit
on the tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If the Court does not receive emails from
the parties indicating submission on this tentative ruling and there are no
appearances at the hearing, the Court may, at its discretion, adopt the
tentative as the final order or place the motion off calendar.
Case Number: 23LBCV00098 Hearing Date: November 16, 2023 Dept: S27 1.
Background Facts
Plaintiff, Miracle Mile Healthcare Center filed this action against
Defendants, All Seasons Healthcare, Inc. and Maneesh Ashley Bansal for common
counts and account stated. Plaintiff
alleges it provided patient services to All Seasons, which failed to pay for
those services. It alleges Bansal is liable
for All Seasons’ failure to pay on an alter ego theory.
Plaintiff filed its complaint on 1/18/23. Plaintiff filed proof of service on All
Seasons on 2/14/23. The POS indicates
Plaintiff’s registered process server served All Seasons by personally serving
Jesse Gastelum, its agent for service of process, on 2/13/23. On 4/05/23, at Plaintiff’s request, the Clerk
entered All Seasons’ default.
On 4/25/23, Plaintiff filed proof of service on Bansal. The POS indicates Bansal was served by substitute
service on Susan Serrano, a person at the front desk of the office located at
5540 N. Figueroa St., who indicated the doctor was busy and she would accept
service. The substitute service occurred
on 4/20/23. On 6/01/23, at Plaintiff’s
request, the Clerk entered Bansal’s default.
2.
Motion to Vacate Default
a. Request for Relief
On 7/17/23, Bansal filed this motion to vacate the default entered
against him. He moves to vacate the
default on two grounds. First, he
contends he has not used the Figueroa St. address since 2019. Second, he contends there were no reasonable
attempts to serve him personally prior to serving him by substitute
service. Bansal explains that he knew
All Seasons had been served, but he and Plaintiff were engaged in ongoing settlement
discussions and he believed Plaintiff would not serve him while those discussions
were ongoing. He explains that he only
found out his default had been entered because the request for entry of his default
was served on All Seasons, and he received that communication. He contends the default should be vacated as void
in light of the lack of service or, in the alternative, vacated due to his
mistake, inadvertence, or excusable neglect.
b. Opposition
Opposition to the motion was due nine court days prior to the hearing. CCP §1005(b).
Nine court days prior to 11/16/23 fell on 11/02/23, because 11/10/23 was
a court holiday. Plaintiff filed its
untimely opposition papers on 11/06/23, two court days late. The Court has read and considered the untimely
opposition papers, but asks Plaintiff to ensure all papers are timely filed and
served in the future in connection with this and other actions.
Plaintiff argues, in opposition to the motion, that Bansal knew of the
ongoing lawsuit against All Seasons and knew he was named, and that he was
served at the address he lists with the U.S. National Plan and Provider
Enumeration System. It contends the
receptionist said Bansal was busy, but he would be given the papers. It contends Plaintiff did not act timely to
secure representation and file this motion once he realized his default was
entered.
c.
Reply
Despite the untimely opposition, Bansal filed timely reply papers on
11/08/23. Bansal contends none of the
arguments made in opposition to the motion are sufficient to defeat his request
for relief, which must be granted because the default is void.
d.
Analysis
The ruling on this motion turns largely on a credibility issue. Plaintiff contends substitute service was attempted
on three occasions at the subject address.
The first time, the front door was locked. The second time, the receptionist said
Defendant was not there and to come back another day. The third time, the receptionist said
Defendant was busy and she would accept service.
Defendant, on the other hand, contends he had not worked at the subject
location since 2019, so the first two service attempts did not constitute
reasonable attempts to serve him personally, and the actual service was not
proper because it was not at his usual place of business.
It certainly seems odd that a receptionist would tell a process server
that the defendant “was not in” and to “come back another time” if the
defendant did not work there. It also
seems odd that the receptionist would say the doctor was “busy” and agree to
accept service on his behalf if the defendant did not work there. It is possible, however, that the process
server merely told the receptionist that the papers were for “a doctor who works
in the building” or something similar, or that the receptionist was dealing
with a large volume of doctors and did not know who worked there and who did
not.
The Court has a signed declaration from the defendant doctor stating he
had not worked at the subject location since 2019. This is sufficient prima facie evidence to
show the default is void and MUST be set aside.
Of course, if Plaintiff learns, during the course of the action, that
Defendant has perjured himself, there are serious repercussions to that choice.
Plaintiff also makes much of Defendant’s address being on a national
database. The Court has no independent knowledge
concerning how that database is maintained or whether a physician has a duty to
immediately update that database if his address changes. The Court is aware that myriad databases
contain old and outdated information, such that they do not always constitute
evidence that the person listed in the database currently maintains the address
listed.
Because the default is void, it must be set aside regardless of diligence. The Court does find, however, that Defendant
acted diligently. The default was entered
on 6/01/23, and Defendant filed this motion on 7/17/23, only six weeks
later.
The motion is granted. Defendant
filed a copy of his proposed answer as Exhibit A to his attorney’s
declaration. Defendant must file a
separate copy of the answer within five days.
3. Case
Management Conference
The parties are reminded that there
is a CMC on calendar concurrently with the hearing on the above motion. The Court asks Counsel to make arrangements
to appear remotely at the hearing and CMC.
4. OSC
There is also an OSC re: default
packet on calendar. The OSC is moot in light
of the ruling vacating the default.
Case Number: 23LBCV00243 Hearing Date: November 14, 2023 Dept: S27 1.
Background
Facts
Plaintiffs, Loreen
Avakian and Jeffrey Garza filed this action against Defendant, Wells Fargo Bank,
N.A. on 2/08/23. On 6/01/23, they filed their
operative First Amended Complaint, which includes causes of action for wrongful
foreclosure, violation of the homeowners’ bill of rights, violation of BPC §17200,
et seq., intentional misrepresentation, unjust enrichment, and fraud. The crux of the FAC is that Plaintiffs
obtained a loan secured by a deed of trust from Defendant, and while the
parties were communicating in an attempt to modify the loan, First American,
the trustee on the deed, recorded a Notice of Default and Election to Sell. Plaintiff alleges Wells Fargo made numerous representations
that the loan modification request was being considered and that the sale had
been suspended, but the sale went forward in the course of these discussions
and without further notice.
2.
Prior
Hearing
The Court was
originally scheduled to hear this demurrer on 9/12/23. Prior to the hearing, the Court issued a
tentative ruling sustaining the demurrer without leave to amend in light of
Plaintiff’s failure to oppose the demurrer.
Plaintiff appeared at the hearing and the parties agreed to permit a
continuance of the hearing so Plaintiff could file opposition to the demurrer. The Court continued the hearing to 11/14/23.
3.
Demurrer
a. Legal
Standard on Demurrer
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true, however
improbable they may be.
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support the
cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot reasonably
respond. CCP § 430.10(f).
However, in construing the
allegations, the court is to give effect to specific factual allegations that
may modify or limit inconsistent general or conclusory allegations. Financial
Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the
facts pled in the complaint are inconsistent with facts which are incorporated
by reference from exhibits attached to the complaint, the facts in the
incorporated exhibits control. Further, irrespective of the name or label given
to a cause of action by the plaintiff, a general demurrer must be overruled if
the facts as pled in the body of the complaint state some valid claim for relief.
Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP §430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing
their meet and confer efforts. (CCP §430.41(a)(3).)
b.
Meet
and Confer
Defense Counsel, Michael Rapkine, declares the parties met and conferred
by telephone but were unable to resolve the issues presented by way of the
demurrer. The Court therefore finds the meet
and confer requirement satisfied.
c. Opposition
The demurrer was originally
scheduled for hearing on 1/25/24. On
7/10/23, both parties appeared for a Case Management Conference. At the CMC, the Court moved the hearing on the
demurrer to 9/12/23. All parties waived
notice of the date change. Any opposition
to the demurrer was due on or before 8/29/23.
Plaintiff did not file timely opposition to the demurrer, but appeared
at the hearing and the parties agreed to a continuance to permit timely
opposition.
Pursuant to CCP §1005(b), opposition
to the demurrer was due nine court days prior to the continued hearing date of
11/14/23. Nine court days prior to
11/14/23 fell on 10/31/23. Plaintiff
filed grossly untimely opposition on 11/07/23, only four court days prior to
the hearing and after the time for Defendant to file reply papers had lapsed. The Court has read and considered the opposition
papers in light of the gravity of the ruling.
d. Request for Judicial Notice
Defendant seeks
judicial notice of various documents filed in state court, federal court,
bankruptcy court, and the Ninth Circuit Court of Appeals. The RJN is granted.
e. Grounds for Demurrer
Defendant demurs
to the FAC on multiple grounds. First,
it contends the entire FAC is barred by the doctrine of res judicata. Second, it contends the entire FAC is
time-barred. Third, it contends each individual
cause of action pled in the complaint suffers from fatal defects in addition to
the res judicata and SOL issues.
f. Res Judicata
Defendant, through
its request for judicial notice, provides evidence that Plaintiffs previously
filed a lawsuit in federal court seeking relief against Defendant arising out
of the alleged wrongful foreclosure that forms the basis of this action. Wells Fargo moved to dismiss the lawsuit, and
the Federal District Court granted the motion.
Plaintiffs appealed, and the Ninth Circuit affirmed the dismissal.
Pursuant to Commissioner
v. Sunnen, 333 U.S. 591, 597 (1948), the doctrine of res judicata acts as a bar
to all claims that were previously asserted or could have been previously
asserted if a prior action results in a final judgment adverse to the
plaintiff. Defendant clearly shows that
is the case here.
Plaintiff, in opposition
to the demurrer, argues the prior dismissal was purely procedural in nature,
and therefore the dismissal with prejudice was improper, as it should have been
without prejudice. Plaintiffs concede,
however, that they appealed the dismissal, and the Ninth Circuit affirmed. If the dismissal was improper, Plaintiffs’
remedy was a further appeal. Plaintiffs
cannot argue, at the trial court level in state court, that a federal court
dismissal and subsequent appeal were both wrongly decided.
Notably, in
Federal Home Loan Bank of San Francisco v. Countrywide Financial Corp. (2013)
213 Cal.App.4th 1520, the Court of Appeals held that a plaintiff’s
decision to voluntarily dismiss a case with prejudice for strategic
non-substantive reasons still has res judicata effect.
The demurrer is
therefore sustained on the ground that the case is barred by the doctrine of
res judicata.
g. Statute of Limitations
Similarly,
Defendant argues the case is barred by the statute of limitations. Plaintiffs concede the statute of limitations
acts as a bar to their claims, but contend their case “relates back” to the
prior federal court filing. Plaintiffs
cite the Federal Rules of Court to support their position. The Federal Rules of Court do not apply in
this state court action. Additionally, the
Court knows of no authority permitting use of the relation back doctrine to
save one case from the statute of limitations based on the filing of a prior
case that was dismissed with prejudice in a different court. The Court therefore sustains the demurrer
without leave to amend on statute of limitations grounds as well.
h. Additional Grounds for Demurrer
The Court declines
to rule on the other issues presented on demurrer, as doing so is not necessary
to a final resolution of the matter. The
demurrer is sustained without leave to amend on the ground that the FAC is
barred by the doctrine of res judicata and the statute of limitations. All other asserted grounds for demurrer are
moot.
Defendant is
ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the tentative
and there are no appearances at the hearing, the motion may be placed off
calendar. If a party submits on the
tentative, the party’s email must include the case number and must identify the
party submitting on the tentative. If any party does not submit on the
tentative, the party should make arrangements to appear remotely at the hearing
on this matter.
Case Number: 23LBCV00268 Hearing Date: November 14, 2023 Dept: S27
1.
Background
Facts
Plaintiff, Raul Field Escandon
filed this action against Defendants, Universal Iron Works, Appleby Property
Management, Olive Crest Homeowners Association, Ara Agopian, and HOA Board of
Directors on 2/21/23. Plaintiff’s operative
First Amended Complaint includes various causes of action and spans 78
pages. Plaintiff seeks an injunction
providing for various forms of relief, and also seeks compensatory
damages.
2. Demurrer
(Defendants, Appleby Property Management, Olive Crest Homeowners Association,
and Ara Agopian)
a.
Legal Standard on Demurrer
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true, however
improbable they may be.
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support the
cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot reasonably
respond. CCP § 430.10(f).
However, in construing the
allegations, the court is to give effect to specific factual allegations that
may modify or limit inconsistent general or conclusory allegations. Financial
Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the
facts pled in the complaint are inconsistent with facts which are incorporated
by reference from exhibits attached to the complaint, the facts in the
incorporated exhibits control. Further, irrespective of the name or label given
to a cause of action by the plaintiff, a general demurrer must be overruled if
the facts as pled in the body of the complaint state some valid claim for relief.
Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP §430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing
their meet and confer efforts. (CCP §430.41(a)(3).)
b.
Meet
and Confer
Defense Counsel declares he and
Plaintiff met and conferred telephonically for 24 minutes, but were unable to
resolve the issues presented by way of the pleading challenges. The Court will therefore rule on the demurrer
on its merits.
c. General
Note
The first fifty pages of Plaintiff’s
FAC set forth the factual basis of Plaintiff’s claims. Much of the fifty pages is evidentiary in
nature and therefore improper as a pleading, which should set forth only the ultimate
facts giving rise to the relief requested.
See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th
861, 872.
Plaintiff’s FAC alleges six purported
causes of action against Defendants. None
of the six causes of action is recognized under California law. The six causes of action are captioned:
·
Arbitration provisions in the Olive Crest
CC&Rs are “Unreasonable” because the 12-Unit Condominium HOA and Board of Directors
have become unviable/dysfunctional, denying Plaintiff’s Property Rights for
which declaratory and injunctive relief is needed;
·
The Defendants’ Fence Bolts Trespassed into Plaintiff’s
Unit #1 causing severe damage for which they are liable;
·
The Defendants’ negligent actions actually and/or
proximately caused Plaintiff’s injuries for which they are liable;
·
HOA Board Directors Agopian’s, Huerta’s, and
Garcia’s continuing actions in violation and/or failure to enforce HOA
Governing documents Provisions and State Statutes cause a nuisance making the
HOA dysfunctional, warranting declaratory and injunctive relief;
·
Actions by Agopian, Huerta, and Garcia, as HOA Board
Directors, went against HOA Governing Documents Constituting Abuse of Authority,
and were “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with laws,” so “much be set aside”;
·
HOA Directors Agopian’s, Huerta’s, and Garcia’s
willful and intentional negligence, harassment, and/or malice caused Plaintiff’s
injuries, so they are Individually Liable;
·
Intentional Infliction of Emotional Distress
actually and proximately caused by the Defendants on Plaintiff through willful
and intentional negligence, harassment, and/or malice.
The Court will do its best, in the discussion
below, to determine what recognized causes of action Plaintiff is attempting to
plead, and to determine whether he has adequately done so.
d. Timeliness
of Demurrer
Plaintiff, in opposition to the demurrer,
argues Defendants did not timely file their demurrer, and therefore the Court
should summarily overrule the challenge.
Plaintiff contends he served the FAC on Defendants on 7/10/23 and
Defendants did not file the challenge until 8/11/23, which is 32 days after
service. Plaintiff filed his FAC on
7/11/23, and the proof of service indicates he served it, by email, on
7/10/23.
CCP §1010.6(a)(3)(B) makes clear
that, whenever a document is served by electronic service, the time to respond
thereto is extended by two court days.
Defendants’ demurrer was therefore timely filed 32 days after they were
served with the FAC by email.
e. Verification
of Demurrer
Plaintiff also argues the demurrer
is not verified and should not be considered.
As discussed above, a demurrer is a pleading challenge that contends the
operative complaint, on its face, fails to state a cause of action. There is no requirement that a demurrer be
verified. Indeed, a demurrer cannot be
based on any facts outside the four corners of the pleading, and therefore verification
of a demurrer would be nonsensical.
f. IDR
Civil Code §5950 is found in
Division Four, Part 5, Chapter 10 of the Civil Code. Division Four is entitled General
Provisions. Part 5 is entitled Common Interest
Developments. Chapter 10 is entitled
Dispute Resolution and Enforcement. §5950
provides:
(a) At the time of commencement of
an enforcement action, the party commencing the action shall file with the
initial pleading a certificate stating that one or more of the following
conditions are satisfied:
(1) Alternative dispute resolution
has been completed in compliance with this article.
(2) One of the other parties to the
dispute did not accept the terms offered for alternative dispute resolution.
(3) Preliminary or temporary
injunctive relief is necessary.
(b) Failure to file a certificate
pursuant to subdivision (a) is grounds for a demurrer or a motion to strike
unless the court finds that dismissal of the action for failure to comply with
this article would result in substantial prejudice to one of the parties.
Defendants demur to the entire
action, contending Plaintiff failed to file the required certificate. Plaintiff, in opposition to the demurrer,
contends his FAC, at 2:9-13, 48:18-49:9, and 72:1-9 sufficiently alleges
compliance with the Civil Code. At
2:9-13, Plaintiff alleges, “Pursuant to Civil Code (“CC”) §5950, Plaintiff made
significant alternative dispute resolution (“ADR”) efforts and will continue
doing so. However, at this time “One of
the other parties to the dispute did not accept the terms offered for [ADR]”. Additionally, “Preliminary or temporary
injunctive relief is necessary” as part of the remedy. A certificate pursuant to CC §5950(a) is
being filed herewith.
At page 72, Plaintiff provides a
certificate stating the above.
The problem with Plaintiff’s
allegations is that this is his First Amended Complaint. His original complaint was silent in this
regard. Plaintiff was required, per Code,
to engage in these efforts PRE-filing of his complaint. At minimum, he needs to allege he engaged in
these efforts BEFORE he filed his complaint.
He never alleges he did so.
Plaintiff was required, per Code, to allege compliance prior to
COMMENCEMENT of his action.
The Court has already denied
Plaintiff’s requests for temporary or preliminary injunctive relief. The Court therefore finds no “substantial
prejudice” would result if it sustained the demurrer on this ground. Plaintiff is free to pursue IDR in good faith
and then re-file any claims if IDR is not successful. The demurrer on this ground is sustained. Because this is a purely legal issue, leave
to amend is denied.
g. Additional
Issues
The Court declines to rule on the
remaining issues raised by way of the demurrer, as doing so is not necessary to
a resolution of the merits of the demurrer.
3. Motion
to Strike
Defendants’ motion to strike is
moot in light of the ruling on the demurrer.
4. Demurrer
(Defendant, Universal Ironworks Services, LLC)
a.
Meet and Confer
Defense Counsel declares he met and
conferred telephonically and in subsequent correspondence with Plaintiff, but
the issues were not resolved.
b.
Timing of Demurrer
Plaintiff argues he served the FAC
on Defendant on 7/10/23 and Defendant did not file the demurrer until 8/28/23,
49 days later. Defendant, in reply, correctly
notes that the Court heard and granted its motion to quash on 7/27/23, which
rendered the 7/10/23 service of the FAC improper and moot. The demurrer was timely filed less than 30
days after Defense Counsel accepted service of the FAC on 7/28/23.
c. Verification
As with Co-Defendants’ demurrer,
above, Plaintiff again argues the demurrer is not verified. Again, a demurrer need not be verified, and
rests entirely on the allegations of the operative pleading itself.
d. Causes
of Action Pled against Defendant
Plaintiff’s FAC includes the
second, third, and seventh causes of action against Defendant. As noted above, these causes of action are
for:
·
The Defendants’ Fence Bolts Trespassed into Plaintiff’s
Unit #1 causing severe damage for which they are liable;
·
The Defendants’ negligent actions actually and/or
proximately caused Plaintiff’s injuries for which they are liable;
·
Intentional Infliction of Emotional Distress
actually and proximately caused by the Defendants on Plaintiff through willful
and intentional negligence, harassment, and/or malice.
e. Second Cause of Action
Plaintiff’s second cause of action
is entitled “The Defendants’ Fence Bolts Trespassed into Plaintiff’s Unit #1
causing severe damage for which they are liable.” The Court presumes this cause of action is intended
to be one for trespass. Defendant demurs
to the cause of action, contending Plaintiff cannot state a claim for trespass
because he admits the bolts were attached to the exterior of his unit, and
pursuant to Civil Code §4095, the exterior of the units in a condominium
building are owned by the association, not by the individual owners.
The crux of Plaintiff’s cause of
action is that the effects of the fence were felt inside of his unit. See, for example, ¶2 of the FAC, alleging, “On
the Olive Crest building end of the fence Universal set the last post differently,
allegedly not following standard practice, by bolting it against the exterior wall
the interior side of which is within Plaintiff’s Unit #1 causing Unit #1’s
interior walls and windows in Kitchen and Dining Room to vibrate and ‘rumble’
every time the steel fence gate opened and closed.”
Thus, the question before the Court
is whether a non-physical intrusion, such as vibration, noise, etc., can
constitute a trespass. Because neither
party briefed the issue, the Court briefly researched it. The Court found Intel Corp. v. Hamidi (2003)
30 Cal.4th 1342, wherein the California Supreme Court made clear that
a nonphysical intrusion can constitute a nuisance, but cannot constitute a trespass.
Because Plaintiff has alleged purely
nonphysical intrusion into his unit, the demurrer to the trespass cause of
action is sustained without leave to amend.
f. Third
Cause of Action
The Court presumes Plaintiff’s
third cause of action, entitled “The Defendants’ negligent actions actually and/or
proximately caused Plaintiff’s injuries for which they are liable,” is one for
negligence.
Defendant demurs to the cause of
action, contending Plaintiff failed to allege duty or breach.
Defendant’s first contention is
that Plaintiff failed to allege duty.
Defendant contends Plaintiff alleges Defendant was hired by Appleby,
which is the property management company for the HOA, and therefore any duty
ran only between Defendant and Appleby and did not run to Plaintiff. Defendant cites no authority to support this position. The query before the Court is whether a
defendant who contracts with one party and then performs the contract in a
manner that negatively affects a third party can be held liable for negligence.
It seems logical that the answer would
be yes. Defendant is alleged to have
performed the contract in a manner inconsistent with industry standards, and its
performance on the contract is alleged to have caused Plaintiff, a person who
would clearly be affected by the performance of the contractual duties,
damages.
Defendant’s second argument is that
Plaintiff failed to allege breach of any duty.
Again, however, Plaintiff alleges Defendant was hired to build a fence,
but did so in a manner not consistent with industry standards, causing
Plaintiff damages. While this is a
fact-intensive issue, at the pleading stage it appears Plaintiff has stated a
cause of action for negligence. The demurrer
is overruled.
g. Seventh
Cause of Action
Plaintiff’s seventh cause of action
is entitled “Intentional Infliction of Emotional Distress actually and proximately
caused by the Defendants on Plaintiff through willful and intentional negligence,
harassment, and/or malice.” The Court presumes
this is intended to be a cause of action for intentional infliction of emotional
distress.
The elements of a cause of action
for intentional infliction of emotional distress are (1) outrageous conduct by
the defendant, (2) intention to cause or reckless disregard of the probability
of causing emotional distress, (3) severe emotional suffering, and (4) actual
and proximate causation of the emotional distress. Conduct is extreme and outrageous when it
exceeds all bounds of decency usually tolerated by a decent society, and is of
a nature which is especially calculated to cause, and does cause, mental
distress. Liability does not extend to
mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities. (Fisher v. San Pedro
Peninsula Hospital (1989) 214 Cal.App.3d 590.)
The California Supreme Court has
held that a defendant’s actions could be characterized as
"outrageous" for purposes of tort liability for intentional
infliction of emotional distress, if he “(1) abuses a relation or position
which gives him power to damage the plaintiff's interest; (2) knows the
plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress.”
(Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other
grounds].)
Severe emotional distress means “emotional
distress of such substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.” (Girard v. Ball
(1981) 125 Cal.App.3d 772, 787 788.)
Plaintiff failed to plead extreme
and outrageous conduct per the above standard.
The demurrer is sustained without leave to amend.
5. Motion
to Strike
Defendant moves to strike Plaintiff’s
prayer for punitive damages and related allegations. The motion is granted for the reasons stated
in connection with the demurrer to the IIED cause of action. Plaintiff has pled, at most, a negligence
claim. His allegations do not rise to
the level of malice, fraud, or oppression.
Because it does not appear the defect could be cured, leave to amend is
denied.
6. Conclusion
Defendants, Appleby, et al’s
demurrer is sustained without leave to amend.
Their motion to strike is moot.
Defendant, Universal’s demurrer to
the second and seventh causes of action is sustained without leave to
amend. Its demurrer to the third cause
of action is overruled. Its motion to
strike is granted without leave to amend.
Universal is ordered to file an answer to the FAC, with the second and
seventh causes of action and punitive damages allegations deemed stricken,
within ten days.
7. Case
Management Conference
The parties are reminded that there
is a CMC on calendar concurrently with the hearing on the above motion. The Court asks the parties to make arrangements
to appear remotely at the hearing on the demurrers, motions and the CMC.
Case Number: 23PSCV00435 Hearing Date: November 14, 2023 Dept: 6 CASE NAME: Shanhui Zhu v. Shiyi Zhang Plaintiff’s Shanhui Zhu’s Motion for Leave to File Second Amended Complaint TENTATIVE RULING The Court GRANTS Plaintiff Shanhui Zhu’s motion for leave to file Second Amended Complaint. Plaintiff is ordered to file and serve the Second Amended Complaint by November 21, 2023. Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. BACKGROUND This is an auto accident case. On February 14, 2023, Plaintiff Shanhui Zhu (Plaintiff) filed this action against Defendant Shiyi Zhang (Defendant), and Does 1 to 100, alleging causes of action for motor vehicle and general negligence. Plaintiff then filed the operative First Amended Complaint (FAC) on February 24, 2023. On October 6, 2023, Plaintiff filed the instant motion for leave to file Second Amended Complaint. The motion is unopposed. LEGAL STANDARD Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1).) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324, subd. (a).) Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b).) DISCUSSION Plaintiff seeks leave to file a Second Amended Complaint (SAC) on the grounds that the FAC fails to attach the factual allegations and causes of action that comprise Plaintiff’s claims. Plaintiff also seeks to add causes of action for negligence per se and fraudulent transfer. Plaintiff contends Defendant will not be prejudiced if the motion is granted because the original complaint in this action was filed on February 14, 2023 and the FAC was filed on February 24, 2023. Plaintiff also seeks to add a party, Yuan Yin Fu, in connection with the fraudulent transfer claim. Plaintiff further notes that only some written discovery has been propounded thus far, and no trial date has been set. Plaintiff contends the SAC is necessary and proper to put the case at issue as it relates to the cause of action, and since Plaintiff believes Defendant fraudulently transferred property following the filing of the original complaint. Plaintiff states that the reason the motion was not filed sooner was due to Plaintiff’s efforts to obtain Defendant’s stipulation to filing the SAC in lieu of this motion. Plaintiff further states that the effect of the SAC will be to provide properly pleaded facts for Plaintiff’s claims and add a cause of action and another defendant. The Court finds Plaintiff’s motion to be well-taken. The FAC utilizes Judicial Council forms, but fails to include the necessary attachments for the causes of action alleged therein. (See generally FAC.) The proposed SAC should remedy these defects. (See Mayo Decl., Ex. 1.) The Court also agrees with Plaintiff that there does not appear to be any indication that prejudice would result to any of the parties here considering this action was only filed earlier this year. Additionally the Court construes Defendant’s lack of opposition to this motion as a tacit admission that Plaintiff’s motion is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶¿9:105.10.) The Court further finds that Plaintiff has sufficiently complied with the requirements of Rule 3.1324 of the California Rules of Court. Based on the foregoing, the Court GRANTS Plaintiff’s motion for leave to file a Second Amended Complaint. CONCLUSION The Court GRANTS Plaintiff Shanhui Zhu’s motion for leave to file Second Amended Complaint. Plaintiff is ordered to file and serve the Second Amended Complaint by November 21, 2023. Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
Case Number: 23PSCV00685 Hearing Date: November 20, 2023 Dept: K Plaintiff
Pomona SSYAP, LLC’s Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff Pomona
SSYAP, LLC (“Plaintiff”) alleges as follows:
Plaintiff employed
Jose Lara aka Jose Israel Lara Velazquez (“Lara”) as the sales manager at its
retail sales facility from August 28, 2018-November 23, 2022. Lara
misappropriated $240,000.00 from Plaintiff.
On March 8, 2023, Plaintiff filed
a complaint, asserting causes of action against Lara and Does 1-10 for:
1.
Conversion—Embezzlement
2.
Fraud and Deceit
3.
Violation of Penal Code § 496
4.
Money Had and Received
On May 2, 2023, Lara’s default was
entered.
An Order to Show Cause is set for November
20, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff has failed to comply with California Rules of
Court rule 3.1110, subdivision (g) (i.e., “[e]xhibits written in a foreign
language must be accompanied by an English translation, certified under oath by
a qualified interpreter”) with respect to Exhibit 3. Plaintiff has not provided
any evidence that Pulido is a “qualified interpreter.”
2. Plaintiff’s Accounting Manager Sarah
Chaparro (“Chaparro”) attests that Plaintiff’s Wells Fargo bank statement
reflected a deposit on October 24, 2022 of only $5,000.00 and a deposit on
October 26, 2022 of only $750.00. Chaparro is requested to provide the court
with a copy of the referenced Wells Fargo bank statement.
Case Number: 23PSCV00944 Hearing Date: December 4, 2023 Dept: K Plaintiff
Antonio Fernandez’s Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff Antonio Fernandez
(“Plaintiff”) alleges as follows:
Plaintiff is disabled
and uses a wheelchair for mobility. On August 23, 2022, Plaintiff went to Pit
Stop Liquor Mart located at 1712 Durfee Ave., El Monte, California (“Store”)
but encountered ADA non-compliant conditions pertaining to paths of travel
which denied Plaintiff full and equal access. The Store is owned by Defendant Pit
Stop Liquor Mart Inc. (“Defendant”).
On April 3, 2023, Plaintiff filed
a complaint, asserting causes of action against Defendant for:
1.
Violation of The Unruh Civil Rights Act
2.
Violation of the California Disabled Persons Act
On July 17, 2023, Defendant’s
default was entered.
A Case Management Conference is
set for August 24, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff is requested to resubmit its attorney’s fees
request in compliance with Local Rule 3.214.
2.
Plaintiff’s Memorandum of Costs seeks $200.00 in
“investigator fees.” Plaintiff fails to provide the court with any authority
entitling Plaintiff to same.
Case Number: 23PSCV00962 Hearing Date: November 17, 2023 Dept: K Defendants
International Union of Operating Engineers, Local 12’s, Joe Pacheco’s, Perry
Hawkins’ and Carl Mendenhall’s Motion to Set Aside Clerk’s Entry of Default is GRANTED.
Background
Plaintiff Moore
Sweeping (“Plaintiff”) alleges
as follows:
In July 2019, Plaintiff was hired as a subcontractor by the
general contractor Guy F. Atkinson Construction (“Atkinson”) to perform street
sweeping services for Atkinson on a State Route 60 pavement rehabilitation
project in Los Angeles County (the “Project”) owned by the Department of
Transportation (“CalTrans”).
Pursuant to its subcontract with Atkinson (“Subcontract”),
Plaintiff was required to hire only
International Union of Operating Engineers, Local 12
(“Union”) employees to work on the
Project and to enter into a contract with the Union to
procure the employees needed to perform
Plaintiff’s contracted-for work on the Project. Plaintiff
and the Union then entered into a Short-
Form Collective Bargaining Agreement (“CBA”) which was
subject to the terms of a Master
Labor Agreement (“MLA”) incorporated therein, In October
2019, Plaintiff contacted the Union
to procure operators to perform work on the Project and was
put in contact with business
representative, Joe Pacheco (“Pacheco”). Pacheco made
discriminatory requests of Plaintiff,
asking for documents that were not required for Plaintiff to
perform its work on the Project
which delayed Plaintiff’s start time on the Project. Pacheco
required only Plaintiff to obtain a
bona fide special shift letter, intimidated one of
Plaintiff’s employees into filing a baseless
grievance, failed to follow grievance resolution procedures
and stopped Plaintiff’s work on the
Project. Perry Hawkins (“Hawkins”) was the district representative
and/or treasurer for the
Union and Pacheco’s superior and assisted Pacheco’s
violations. Carl Mendenhall
(“Mendenhall”) was the treasurer for the Union and assisted
Pacheco’s violations.
On April 3, 2023, Plaintiff filed a complaint, asserting
causes of action against Union, Pacheco, Hawkins, Mendenhall and Does 1-10 for:
1.
Breach of Contract
2.
Breach of the Covenant of Good Faith and Fair Dealing
3.
Unfair Business Practices (Bus. & Prof. C. §17200,
Et Seq.)
4.
Fraud/Intentional Misrepresentation
5.
Intentional Interference with Contractual Relations
6.
Intentional Interference with Prospective Economic
Advantage
7.
Conspiracy to Commit Fraud
On September 5, 2023, Defendants’ defaults were entered.
A Case Management Conference is set for November 7, 2023.
Legal Standard
“The court may, upon any terms as may be just, relieve a party
or his or her legal representative from a judgment, dismissal, order, or other
proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect. Application for this relief shall be
accompanied by a copy of the answer or other pleading proposed to be filed
therein, otherwise the application shall not be granted, and shall be made
within a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements
of this section, the court shall, whenever an application for relief is made no
more than six months after entry of judgment, is in proper form, and is
accompanied 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
neglect.” (Code Civ. Proc., § 473, subd. (b).)
Further, a default may be vacated on equitable grounds even
if statutory relief is unavailable. (Rappleyea v. Campbell (1994) 8
Cal.4th 975, 981.) “Equitable relief may be based on extrinsic fraud, which usually arises
when a party is denied a fair adversary hearing because he has been
deliberately kept in ignorance of the action or proceeding, or in some
other way fraudulently prevented from presenting his claim or defense.” (Luxury
Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56
al.App.5th 894, 910-911 [internal quotations and citation omitted].) “It occurs
when the unsuccessful party has been prevented from exhibiting fully his case,
by fraud or deception practiced on him by his opponent, as by keeping him away
from court, a false promise of a compromise; or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of the plaintiff. In
those situations, there has not been ‘a real contest in the trial or hearing of
the case,’ and the judgment may be set aside to open the case for a fair
hearing.” (Id. at 911 [internal quotations and citation omitted].)
To set aside a judgment based on extrinsic fraud, the moving
party must (1) “demonstrate that it has a meritorious case,” (2) “articulate a
satisfactory excuse for not presenting a defense to the original action” and
must (3) “demonstrate diligence in seeking to set aside the default once it had
been discovered.” (Moghaddam v. Bone (2006) 142 Cal.App.4th 283,
290-291).
Discussion
Union, Pacheco, Hawkins and Mendenhall (collectively,
“Defendants”) move the court, pursuant to Code of Civil Procedure § 473,
subdivision (b) and equity, for an order setting aside their respective
defaults entered on September 5, 2023 and any judgment subsequently entered
thereon, on the basis of surprise and/or extrinsic fraud. Defendants also seek
sanctions against Plaintiff and its counsel, jointly and severally, in the
amount of $1,000.00, pursuant to Code of Civil Procedure § 473, subdivision
(c)(1)(A).
Defendants’ counsel Edzyl Magante (“Magante”) represents,
and/or the accompanying exhibits reflect, as follows:
Plaintiff’s counsel Dan Rowan Cortright
(“Cortright”) knew as early as May 22, 2023 that Magante’s firm represented
Defendants. (Magante Decl., ¶ 11, Exh. H). Additionally, on June 8, 2023,
Magante appeared at the hearing on Defendants’ ex parte application seeking an
extension of time to respond to the complaint. (Id., ¶¶ 2 and 11.) Pursuant
to the court’s June 8, 2023 order, Defendants’ responsive pleadings were due
July 17, 2023. (Id., ¶ 2).
On July 12, 2023, Magante emailed a
meet and confer letter to Cortright, conveying Defendants’ intention to file a
motion to strike in the event Plaintiff did not agree to amend its complaint to
cure certain perceived defects. (Id., ¶ 2, Exh. A.) That same day,
Cortright advised that he was discussing the letter with Plaintiff and that a
“substantive response w[ould] follow.” (Id., ¶ 3, Exh. B.) On July 13,
2023, Cortright emailed a substantive response to Magante’s meet and confer
letter, stating therein, inter alia, that “Plaintiff will agree to amend
and remove the language re punitive damages from paragraph 50 in the breach of
contract cause of action” and that “[a]n amended complaint w[ould] be
forthcoming either today/tomorrow.” (Id., ¶ 4, Exh. C.)
Plaintiff did not file an amended
complaint on either July 13 or 14, 2023; consequently, Magante emailed
Cortright on July 17, 2023 to follow up on the filing of an amended complaint.
(Id., ¶ 5, Exh. D.) That same day, Cortright advised that he “was unable
to get it done last week, but w[ould] do so now.” (Id., ¶ 6, Exh. E). On
July 18, 2023, Cortright emailed Magante asking if Defendants would agree not
to move to strike punitive damages based on his July 13, 2023 email asserting
that the complaint alleged sufficient facts supporting punitive damages, if
Plaintiff amended the complaint that day. (Id., ¶ 8, Exh. FF). That same
day, Magante replied “[w]e need to see the amended complaint and then will
decide.” Cortright further replied, “there are more than ample specific facts
alleged to support the punitive damages allegations.” (Id.) Magante then
advised Cortright that “[w]e disagree, and Defendants reserve all appropriate
remedies per Code.” (Id.) On July 24, 2023, Magante sent a follow-up
email to Cortright, asking him if Plaintiff would be filing an amended
complaint or not. (Id., ¶ 9, Exh. G). Cortright never responded to this
email. (Id., ¶ 9).
On August 7, 2023, Magante learned from
an assistant at his firm that Plaintiff had served a Notice of Intent to Seek
Punitive Damages (“Notice of Intent”) at Union’s office. (Id., ¶ 10).
The Notice of Intent was not served on Magante’s firm. (Id.) On August
11, 2023 (i.e., a Friday), Magante received an “eServe notification” from One
Legal indicating that he was being electronically served with Plaintiff’s
Request for Entry of Default and Court Judgment and supporting papers. (Id.,
¶ 12, Exh. I). Magante was not provided with any advance notification of
Plaintiff’s intent to seek Defendants’ default. (Id., ¶ 12.) On August
14, 2023, Magante emailed Cortright, requesting that Cortright withdraw
Plaintiff’s Request for Entry of Default and file an amended complaint. (Id.,
¶ 13, Exh. J.) That same day, Cortright responded, essentially declining
Magante’s request. (Id., ¶ 14, Exh. K.) On August 15, 2023, Magante
filed a “Declaration in Support of Defendants’ Opposition to Plaintiff’s
Request for Entry of Default and Court Judgment,” indicating therein that Defendants
had reserved a November 7, 2023 hearing date for their motion to strike. (Id.,
¶¶ 15 and 16). On August 31, 2023, Cortright emailed Magante a copy of a
“Request for Entry of Default and Court Judgment” dated August 31, 2023. (Id.,
¶ 17, Exh. L.) On September 1, 2023, Magante’s office ordered a copy of the
entire court file, which he received on September 5, 2023. (Id., ¶ 19).
The file did not contain Plaintiff’s August 11, 2023 or August 31, 2023 default
requests or Plaintiff’s default request dated and filed September 5, 2023. (Id.)
Defendants’ defaults were entered September 5, 2023. (Id., ¶ 20).
Cortright, in turn,
represents that his July 13, 2023 statement that an amended complaint would be
forthcoming was “based on a misunderstanding” he had with Plaintiff which only
became clear to him on July 18, 2023. (Cortright Decl., ¶¶ 2 and 3). He also
represents that he “was instructed by Plaintiff not to respond to defense
counsel’s July 24, 2023 email requesting the status of filing of the amended
complaint.” (Id., ¶ 5).
“Surprise,” as
referred to in Code of Civil Procedure § 473, is “some condition or situation
in which a party to cause is unexpectedly placed to his injury, without any
default or negligence of his own, which ordinary prudence could not have
guarded against.” (Credit Managers Assn. v. National Independent Business
Alliance (1984) 162 Cal.App.3d 1166, 1173 [quotations and citation
omitted].)
The foregoing facts
reflect that Defendants were not notified of Plaintiff’s position that an
amended complaint would not be filed before Plaintiff first moved for entry of
default on August 11, 2023, and were thus taken by surprise. Cortright concedes
that he purposely did not respond to Magante’s July 24, 2023 email. The facts
further reflect that Defendants only learned on September 5, 2023 (i.e., the
same day Defendants’ defaults were actually entered) that the August 11, 2023
and August 31, 2023 default requests had not been entered. The motion is granted.
Defendants’ request
for § 473, subdivision (c)(1)(A) sanctions
is declined.
Case Number: 23PSCV00989 Hearing Date: November 13, 2023 Dept: 6 CASE NAME: Gabriela Moreno v. Executive Law Property Group LLC, et al. Plaintiff’s Motion for Leave to File First Amended Complaint to Amend Complaint the Cause of Action for General Negligence TENTATIVE RULING The Court GRANTS Plaintiff’s motion for leave to file First Amended Complaint. Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. BACKGROUND This is a premises liability action. On April 5, 2023, Plaintiff Gabriela Moreno (Plaintiff) filed this action against Defendants Executive Law Property Group LLC (Executive Law), Mukhtair Kundi, M.D., The Neurology Group, Inc. (collectively, Defendants), and Does 1 to 20, alleging causes of action for premises liability and general negligence. On October 12, 2023, Plaintiff filed a motion for leave to file First Amended Complaint to amend complaint [sic] the cause of action for general negligence. The motion is unopposed.[1] LEGAL STANDARD Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” (Code Civ. Proc., § 473, subd. (a)(1).) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324, subd. (a).) Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b).) DISCUSSION Plaintiff seeks leave to file a First Amended Complaint (FAC) to amend the cause of action for general negligence. Plaintiff seeks to do so on the grounds that she recently retained new legal representation, who thereafter found the operative complaint to lack sufficient detail describing the facts in support of Plaintiff’s general negligence claim and premises liability claim. Plaintiff contends the amendment is necessary and proper to address this issue, that the amendment was not made earlier since Plaintiff’s new counsel was just retained on September 6, 2023, that the factual allegations are meritorious, and that granting the motion will be in the interests of justice. Plaintiff further contends there is ample legal authority for adding these allegations. The Court agrees. Leave to amend is liberally granted. (Kittredge Sports Co, supra, 213 Cal.App.3d at p. 1047.) This action was only filed approximately six months ago and Plaintiff’s new counsel was retained just a couple months ago. The Court finds no prejudice in permitting amendment at this stage of the litigation, especially in light of Defendants’ lack of opposition to this motion for leave to amend. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) The Court does note that Plaintiff’s motion does not specifically identify by page, line, and paragraph number the allegations proposed to be deleted or added, (Cal. Rules of Court, rule 3.1324, subdivision (a)), but since the pleadings are Judicial Council forms, this is not as much of a concern here. The Court nevertheless admonishes Plaintiff to comply with the requirements of the California Rules of Court going forward. The Court otherwise finds that Plaintiff has satisfied the requirements of Rule 3.1324 of the California Rules of Court. Based on the foregoing, the Court GRANTS Plaintiff’s motion for leave to file a First Amended Complaint. CONCLUSION The Court GRANTS Plaintiff’s motion for leave to file First Amended Complaint. Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.
Case Number: 23PSCV01029 Hearing Date: January 4, 2024 Dept: K Plaintiff
K.M.W., LLC’s Application for Default Judgment is DENIED without prejudice.
Background
This is an unlawful detainer action regarding the commercial
property located at 2205 Loma Ave., South El Monte, CA 91733 (“subject
property”). On April 6, 2023, Plaintiff K.M.W.,
LLC (“Plaintiff”) filed a complaint, asserting a cause of action against
Defendants LIKC, LLC (LIKC”), Kecai Li (“Li”), Ling Ma (“Ma”) and Does 1-10 for:
1.
Unlawful Detainer
On May 23, 2023, LIKC’s, Li’s and Ma’s defaults were entered.
On May 25, 2023, a clerk’s default judgment for possession only was entered.
A Case Management Conference is set for January 4, 2024.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff has failed to dismiss Does 1-10.
2.
Attorney’s fees should be reduced from $5,000.00 to
$1,966.16, pursuant to Local Rule 3.214.
3.
Paragraph 6 of the parties’ Commercial Lease Agreement
indicates that a security deposit of $16,150.00 was made. Plaintiff
has not provided the court with any information as to whether the security
deposit has been applied.
Case Number: 23PSCV01125 Hearing Date: January 4, 2024 Dept: K Plaintiff
Cathay Bank’s Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff Cathay Bank (“Plaintiff”) alleges as follows:
On October 18, 2021, Joyful Worldwide Inc.
(“JWI”) executed and delivered to Plaintiff a Business Loan Agreement (“BLA”)
and a promissory note for the principal amount of $50,000.00 (“Note”). Yong
Hoon Lee (“Lee”) executed a continuing Commercial Guaranty of the Note and BLA.
Joyful failed to pay the entire balance due under the Note when it matured on
November 1, 2022.
On April 17, 2023, Plaintiff filed a complaint, asserting
causes of action against Joyful, Lee and Does 1-100 for:
1.
Breach of Written Promissory Note and Business Loan
Agreement
2.
Breach of Written Guaranty
3.
Money Lent
4.
Account Stated
5.
Indebtedness
On June 20, 2023, JWI’s and Lee’s defaults were entered.
An Order to Show Cause Re: Default Judgment is set for
January 4, 2024.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
Plaintiff has not provided the court with the original
promissory note or explained why the court should accept a copy of same in lieu
thereof. Pursuant to California Rules of Court Rule 3.1806, “[i]n all cases in
which a judgment is rendered upon a written obligation to pay money, the clerk
must, at the time of entry of judgment, unless otherwise ordered, note over the
clerk’s official signature and across the face of the writing the fact of
rendition of judgment with the date of the judgment and the title of the court
and the case.”
Case Number: 23PSCV01279 Hearing Date: January 24, 2024 Dept: K Plaintiff
Benchmark Insurance Company’s Application for Default Judgment is DENIED without
prejudice.
Background
Plaintiff Benchmark Insurance Company (“Plaintiff”) alleges
as follows:
Aqua Construction Inc. (“Defendant”)
applied for an obtained an insurance policy from Plaintiff. On or about July 5,
2022, Defendant became indebted to Plaintiff for unpaid premiums under the
policy. Defendant has failed to pay same.
On April 27, 2023, Plaintiff filed a complaint, asserting a cause
of action against Defendant and Does 1-100 for:
1.
Failure to Pay Insurance Premiums
On July 19, 2023, Defendant’s default was entered.
An Order to Show Cause Re: Default Judgment is set for
January 24, 2024.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
Plaintiff’s Billing & Collections Manager, Melaneen
DeWaal (“DeWaal”), attests that a copy of the insurance policy is attached to
her declaration as Exhibit 1. Exhibit 1, however, is instead a June 25, 2022
letter to Defendant from the Policy Service Team at CompStar Insurance
Services, attaching a copy of an audit summary and report. Plaintiff is
requested to provide the court with a copy of the insurance policy.
Case Number: 23PSCV01308 Hearing Date: January 4, 2024 Dept: K Plaintiff
First Citizens Bank & Trust Company’s Application for Default Judgment is DENIED without prejudice.
Background
Plaintiff First
Citizens Bank & Trust Company
(“Plaintiff”) alleges as follows:
On May 16, 2022, Plaintiff approved
Helping Hands Nationwide’s (“HH”) application for a $150,000.00 revolving line
of credit, which was evidenced by a Business Loan Agreement (“HH Loan
Agreement”). The HH Loan Agreement has a maturity date of May 25, 2023. That
same day, Zaher Abukhadra (“Abukhadra”) executed a Commercial Guaranty
(“Abukhadra Guaranty #1”) of the HH Loan Agreement as well as a Promissory Note
on behalf of HH for the
principal amount of $150,000.00 (“HH
Note”). On October 3, 2022, HH and Abukhadra defaulted.
On May 19, 2022, Plaintiff approved
Franchize Wize Management Team’s (“FWMT”) application for a $100,000.00
revolving line of credit (“FWMT Loan Agreement”). The FWMT Loan Agreement has a
maturity date of May 25, 2023. That same day, Abukhadra executed a Commercial
Guaranty (“Abukhadra Guaranty #2”) of the FWMT Loan Agreement as well as a Promissory
Note on behalf of FWMT for the principal amount of $100,000.00 (“FMWT Note”). On
October 3, 2022, FWMT and Abukhadra defaulted.
FWMT also applied for and obtained a
credit card from Plaintiff. On May 19, 2022, Abukhadra executed a Commercial
Guaranty (“Abukhadra Credit Card Guaranty”). FWMT
and Abukhadra have defaulted.
On May 1, 2023,
Plaintiff filed a complaint, asserting causes of action against FWMT, HH, Abukhadra and Does 1-20 for:
1.
Breach of Contract (v. HH and Abukhadra)
2.
Breach of Contract (v. FMWT and Abukhadra)
3.
Breach of Contract (v. FMWT and Abukhadra)
4.
Common Counts
5.
Unjust Enrichment
On June 23, 2023, FWMT’s, Helping Hands’ and Abukhadra’s
defaults were entered.
An Order to Show Cause Re: Default Judgment is set for
January 4, 2024.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Attorney’s fees must be recalculated pursuant to Local
Rule 3.214.
2.
Michael O’Hare (“O’Hare”), Plaintiff’s Recovery
Resolution Group, Manager | Vice President Credit Resolution Group,
authenticates the HH Loan Agreement, Abukhadra Guaranty
#1, HH Note (collectively, “HH Loan Documents”), FWMT Loan Agreement, Abukhadra
Guaranty #2, FWMT Note (collectively, “FWMT Loan Documents”) and the Abukhadra
Credit Card Guaranty and attests that HH and Abukhadra defaulted with respect
to the HH Loan Documents “[a]s of October 3, 2022” (O’Hare Decl., ¶ 8; see also
¶ 12) and with respect to the FWMT Loan Documents “[a]s of October 3, 2022” (Id.,
¶ 16; see also ¶ 19); however, it is unclear to the court whether any payments
were made with respect to the HH Loan Documents and/or FWMT Loan Documents and
if so, when and in what amount. Plaintiff is requested to provide statements of
account with respect to the HH Loan Documents and the FWMT Loan Documents, to
the extent they exist. Attorney Rosaline Ayoub (“Ayoub”) has attested that “FCB
has informed me that since Defendants’ default and the serving of the
Complaint, Defendants have not made payments and continue to remain in default”
(Ayoub Decl., ¶ 18); however, she clearly does not have personal knowledge of
the foregoing information.
Case Number: 23PSCV01493 Hearing Date: December 13, 2023 Dept: 6 Plaintiff
Amur Equipment Finance, Inc.’s Request for Entry of Default Judgment
Defendant: Daniel Ferrer Hernandez, an Individual dba DFH Services
TENTATIVE RULING
DENIED without prejudice.
BACKGROUND
This is a collection action. On May 17, 2023, Plaintiff Amur
Equipment Finance, Inc. (Plaintiff) filed this action against Defendant Daniel
Ferrer Hernandez, an Individual dba DFH Services (Defendant) and Does 1 through
100, alleging causes of action for breach of written agreement, open book
account, and account stated. Default was entered against Defendant on September
5, 2023. Plaintiff previously submitted a default judgment package on September
8, 2023, which was denied without prejudice on October 16, 2023. Plaintiff
submitted a default judgment package again on October 20, 2023.
LEGAL
STANDARD
Code of Civil Procedure section 585
permits entry of a default judgment after a party has failed to timely respond
or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by
the court must file a Request for Court Judgment, and: (1) a brief summary of
the case; (2) declarations or other admissible evidence in support of the
judgment requested; (3) interest computations as necessary; (4) a memorandum of
costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of
all parties against whom judgment is not sought or an application for separate
judgment under Code of Civil Procedure section 579, supported by a showing of grounds
for each judgment; (7) exhibits as necessary; and (8) a request for attorneys’
fees if allowed by statute or by the agreement of the parties. (Cal. Rules of
Court, rule 3.1800.)
ANALYSIS
Plaintiff seeks default judgment against
Defendants in the total amount of $46,929.32, including $42,816.64 in damages, $3,601.28
in interest, $0.00 in attorney’s fees, and $511.40 in costs. The Court finds that
while Plaintiff has addressed a number of issues noted in the Court’s October
16, 2023 order, Plaintiff still has not explained whether the 10% prejudgment
interest rate calculation complies with Nebraska law, which is the governing
law of the underlying contract at issue. (See Order Re: Tentative Ruling
(10/16/23).). Plaintiff should also submit a proposed order accepting a copy of
the original loan agreement in lieu of
the original.
CONCLUSION
Based on the foregoing, Plaintiff’s request for entry of default judgment is DENIED without prejudice. Plaintiff can submit the additional documents discussed herein prior to the next hearing and the Court will review the default judgment package again. If the default judgment is then entered prior to the 12/13/23 OSC hearing, no appearance will be required and the hearing will go off-calendar.
Case Number: 23PSCV02106 Hearing Date: December 19, 2023 Dept: K Plaintiff
CPT Towers Industrial LLC’s Application for Default Judgment is DENIED without
prejudice.
Background
Plaintiff CPT Towers Industrial LLC (“Plaintiff”) alleges as
follows:
Plaintiff owns the commercial property
located at 14259 E. Don Julian Road, City of Industry, CA 91746 (“Premises”).
Plaintiff, as landlord, and Moreno Group International, Inc., (“MGI”), Victor
A. Moreno (“Moreno”) and Maria Lourdes Reyes (“Reyes”) (together,
“Defendants”), as tenants, entered into a written lease dated August 13, 2015
(“Lease”) for the Premises for a term ending on November 30, 2020. The parties
subsequently entered into a written amendment to the Lease dated November 24,
2020, which extended the term through December 31, 2023. Defendants have failed
to pay base rent and additional rent that accumulated during the period from
August 1, 2021 through December 31, 2022.
On July 13, 2023, Plaintiff filed a complaint, asserting
causes of action against Defendants and Does 1-10 for:
1.
Breach of Written Lease
2.
Common Count
On August 22, 2023, MGI’s and Moreno’s defaults were
entered. On August 30, 2023, Reyes’ default was entered.
A Case Management Conference and Order to Show Cause Re:
Failure to File Proof of Service are set for December 19, 2023.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Plaintiff has failed to provide the court with a
summary of the case, as per California Rules of Court Rule 3.1800, subdivision
(a)(1).
2.
Plaintiff has failed to address the disposition of the
$6,300.00 security deposit. (See Lawson Decl., ¶ 2, Exhs. A [i.e., Lease, ¶ 5]
and B [i.e., First Amendment to Lease, ¶ 3].) Plaintiff is requested to so do.
Case Number: 23PSCV02201 Hearing Date: January 10, 2024 Dept: K Plaintiff
Amur Equipment Finance, Inc.’s Application for Default Judgment is DENIED without
prejudice.
Background
Plaintiff Amur Equipment Finance, Inc. (“Plaintiff”) alleges as
follows:
On or about September 12, 2019,
Plaintiff entered into a written “Equipment Finance Agreement” (“Agreement #1”)
with Little Fat Trucking (“LFT”), wherein Plaintiff agreed to finance certain personal
property (i.e., two 2018 Utility Model AH Trailers, VINs #
1UYVS253XJ3292028 and 1UYVS2535J3292034 [“Utilities”]) in exchange for
LFT’s agreement to make 72 monthly payments of $1,393.08 commencing October 10,
2019 and to grant Plaintiff a security interest in the Utilities. On or about
September 10, 2022, LFT failed to make the payment then due and owing. LFT
failed to make any further payments thereafter.
On or about October 1, 2021,
Plaintiff entered into a second written “Equipment Finance Agreement”
(“Agreement #2”) with LFT, wherein Plaintiff agreed to finance certain personal
property as described in Schedule A to Agreement #2, including all related
attachments and accessories thereto (the “Vehicles”), in exchange for LFT’s
agreement to make 60 monthly payments of $9,141.37 commencing October 1, 2021
and to grant Plaintiff a security interest in the Vehicles. On or about
September 1, 2022, LFT failed to make the payment then due and owing. LFT
failed to make any further payments thereafter.
On or about January 15, 2021,
Plaintiff entered into a third written “Equipment Finance Agreement”
(“Agreement #3”) with LFT, wherein Plaintiff agreed to finance certain personal
property (i.e., two 2021 Vanguard Model VXP 53' trailers, VINs #
5V8VC5320MT109910 and 5V8VC5324MT109909, including all related attachments and
accessories thereto [the “Vanguards”]) in exchange for LFT’s agreement to
make 60 monthly payments of $1,476.91 commencing February 15, 2021 and to grant
Plaintiff a security interest in the Vanguards. On or about August 15, 2022,
LFT failed to make the payment then due and owing. LFT failed to make any
further payments thereafter.
Xing Wang (“Wang”) executed a
guaranty as to all of LFT’s obligations to Plaintiff, including Agreements
#1-#3.
On July 21, 2023, Plaintiff filed a complaint, asserting causes of
action against LFT and Wang for:
1.
Breach of Equipment Finance Agreement #1
2.
Possession of Personal Property
3.
Breach of Equipment Finance Agreement #2
4.
Possession of Personal Property
5.
Breach of Equipment Finance Agreement #3
6.
Possession of Personal Property
7.
Breach of Written Guaranty Agreement
On October 16, 2023, LFT’s and Wang’s defaults were entered.
A Case Management Conference and an Order to Show Cause Re:
Failure to File Proof of Service are set for January 10, 2024.
Discussion
Plaintiff’s Application for Default Judgment is denied without
prejudice. The following defects are noted:
1.
Agreement #1 is dated September 12, 2019, Agreement #2
is dated October 1, 2021 and Agreement #3 is dated January 15, 2021. The
guaranty is dated October 1, 2021 and references Contract No. 1045134 at the
top right corner (i.e., which is the contract number for Agreement #2). It
appears to the court, then, that the guaranty is applicable to Agreement #2
only. Plaintiff, however, contends that “[u]nder the terms of the Guaranty,
Defendant Wang guarantied [sic] the prompt performance of all of the
obligations of Defendant LFT under the terms of Agreements #1, #2, and #3.”
(Summary of Case. 6:9-11; see also Beran Decl., ¶ 24). Plaintiff is
requested to provide the court with the specific language which supports the
foregoing statement and to explain why the guaranty appears to reference
Contract No. 1045134 only.
2.
Plaintiff is requested to provide an amended proposed
judgment setting forth the specific collateral in an attachment to Paragraph 7.
Case Number: 23PSCV02465 Hearing Date: November 14, 2023 Dept: 6 CASE NAME: Guillermina Buenrostro v. City of West Covina Defendant City of West Covina’s Motion to Strike Portions of Plaintiff’s First Amended Complaint TENTATIVE RULING The Court GRANTS the motion to strike Prem. L-1 and L-4 with leave to amend and L-2 without leave to amend. Plaintiff is ordered to file and serve a Second Amended Complaint within 10 calendar days. Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order. BACKGROUND This is a premises liability action. On August 11, 2023, Plaintiff Guillermina Buenrostro (Plaintiff) filed this action against Defendant City of West Covina (Defendant) and Does 1 to 10, alleging a cause of action for premises liability. On September 13, 2023, Plaintiff filed the operative First Amended Complaint (FAC). On October 13, 2023, Defendant filed the instant motion to strike. On November 1, 2023, Plaintiff opposed the motion. On November 6, 2023, Defendant replied. LEGAL STANDARD “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike 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.” (Id., § 436.) PRELIMINARY ISSUES Plaintiff’s opposition was filed on November 1, 2023, which is untimely per the November 14, 2023 hearing date given the court holiday on November 10, 2023. (See Code Civ. Proc., § 1005, subd. (b).) Nevertheless, the Court exercises its discretion to still consider the opposition but admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300(d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) DISCUSSION Meet and Confer Per Code of Civil Procedure section 435.5, subdivision (a), the parties were required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds the parties’ meet and confer efforts sufficient. (Dykes Decl., ¶ 5.) Analysis Defendant contends paragraphs Prem. L-1, 2, and 4 of Plaintiff’s cause of action for premises liability in the FAC are subject to a motion to strike because Plaintiff fails to allege a statutory basis for liability against Defendant and fails to allege facts demonstrating that Defendant had actual or constructive notice of the allegedly dangerous condition. Defendant also contends that it cannot be held liable for common law negligence. The Court agrees that a public entity cannot be held liable for common law negligence and that the FAC fails to allege facts demonstrating notice to Defendant of the allegedly dangerous condition. The Court first notes, however, that paragraphs Prem. L-1, 2, and 4 of the FAC comprise all of Plaintiff’s allegations against Defendant for premises liability. Defendant moving to strike these paragraphs is tantamount to moving to strike the entire cause of action, which is not a basis for a motion to strike. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) While PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680 provides that a motion to strike may lie as to part of a cause of action, that is not what Defendant is doing here; rather, Defendant is moving to strike all of the allegations for Plaintiff’s premises liability claim. (See Id., at pp. 1682-1683.) Nevertheless, the Court exercises its discretion and construes Defendant’s motion to strike as a general demurrer for failure to state a cause of action. (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529.) The Court agrees that a public entity, like Defendant, cannot be held liable for common law negligence. (See Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850 ["Although the complaint sounds in negligence, there is no common law tort liability for public entities in California"] and Van Kempen v. Hayward Area Park District (1972) 23 Cal.App.3d 822, 825 ["[T]he liability of the public entity could only be statutory and could not rest on a theory of common law negligence"]) and Tolan v. State of California (1979) 100 Cal.App.3d 980, 986. Therefore, the first count for negligence (FAC, Prem. L-2) cannot be stated against Defendant. The Court, however, disagrees that Plaintiff fails to allege a statutory basis for liability here. The FAC alleges that Plaintiff’s injury was caused by a dangerous condition of public property, (FAC, Prem.L-4), which is a permitted basis for liability against a public entity under Government Code section 835, (Gov. Code § 835.) Plaintiff need not allege the specific code provision that forms the basis of Defendant’s liability at the pleading stage. (See Jaffe v. Carroll (1973) 35 Cal.App.3d 53, 57 [“‘ . . . It is an elementary principle of modern pleading that the nature and character of a pleading is to be determined from its allegations, regardless of what it may be called, and that the subject matter of an action and issues involved are determined from the facts alleged rather than from the title of the pleadings or the character of the damage recovery suggested in connection with the prayer for relief.’ [Citation.]”]) Defendant also cites no legal authority to support the contention that Plaintiff must allege the specific code provision at issue to state a cause of action for premises liability based on dangerous condition of public property. The Court does agree that Plaintiff fails to allege facts demonstrating that Defendant had either actual or constructive notice, by virtue of the simple fact that Plaintiff did not check the box on the Judicial Council form complaint for the FAC indicating whether Defendant had notice of the allegedly dangerous condition before Plaintiff was injured. (See FAC, Prem.L-4.) The Court also agrees with Defendant that Plaintiff’s use of a Judicial Council form for the FAC does not necessarily insulate Plaintiff against this motion. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) The Court further agrees with Defendant that Plaintiff’s reference to Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780 was incomplete. Immediately following the language that Plaintiff quoted, (Opp., 3:3-6), the Court of Appeal in Lopez stated that all Government Tort claims are based on statute, which necessarily requires facts to be pleaded with particularity. (40 Cal.3d at p. 795.) Therefore, Plaintiff has failed to allege sufficient facts to state a cause of action for premises liability against Defendant. Based on the foregoing, the Court GRANTS the motion to strike. CONCLUSION
The Court GRANTS the motion to strike Prem. L-1 and L-4 with leave to amend and L-2 without leave to amend. Plaintiff is ordered to file and serve a Second Amended Complaint within 10 calendar days. Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.
Case Number: 23PSCV02745 Hearing Date: November 13, 2023 Dept: G Plaintiff Gregory Allen French’s Motion for Trial
Preference
Respondent: Defendant Southern
California Specialty Care, LLC
TENTATIVE RULING
Plaintiff Gregory Allen French’s Motion for Trial
Preference is DENIED without prejudice.
BACKGROUND
This
is an action for elder abuse. Defendant Southern California Specialty Care, LLC
is an acute care hospital that operates in West Covina under the name Kindred
Hospital – San Gabriel Valley (Kindred SGV). In July 2022, Kindred SGV admitted
Plaintiff Gregory Allen French after French had suffered a stroke. During
French’s sixty day stay at Kindred SGV, French alleges French developed a stage
four pressure ulcer on the sacral/coccyx area of French’s body.
On
September 7, 2023, French filed a complaint against Kindred SGV and Does 1-250,
alleging a single cause of action for elder abuse.
On October 5,
2023, French filed the present motion. A hearing on the motion is set for
November 13 with an informal discovery conference on December 1, and a case
management conference/OSC Re: Failure to File Proof of Service on February 8,
2024.
ANALYSIS
French
moves for a court order specially setting the present action for trial pursuant
to Code of Civil Procedure section 36. For the following reasons, the court DENIES French’s motion.
Legal Standard
Code
of Civil Procedure section 36 establishes four grounds upon which trial
preference can be obtained. First, the court must grant a motion for preference
in a civil action when it is brought by a party who is over seventy years of
age, has a substantial interest in the action, and has health issues that require
preference “to prevent prejudicing the party’s interest in the litigation.”
(Code Civ. Proc., § 39, subd. (a).) Second, “[a] civil action to recover
damages for wrongful death or personal injury shall be entitled to preference
upon the motion of any party to the action who is under 14 years of age unless
the court finds that the party does not have a substantial interest in the case
as a whole.” (Code Civ. Proc., § 36, subd. (b).)
Third,
“[i]n its discretion, the court may also grant a motion for preference that is
accompanied by clear and convincing medical documentation that concludes that
one of the parties suffers from an illness or condition raising substantial
medical doubt of survival of that party beyond six months, and that satisfies
the court that the interests of justice will be served by granting the
preference.” (Code Civ. Proc., § 36, subd. (d).) Fourth and last, “[n]otwithstanding
any other provision of law, the court may in its discretion grant a motion for
preference that is supported by a showing that satisfies the court that the
interests of justice will be served by granting this preference.” (Code Civ.
Proc., § 36, subd. (e).)
Discussion
In
this case, French argues for trial preference pursuant to Code of Civil
Procedure section 36, subdivision (d). In support of French’s motion, French
relies on the declaration of Shahab Attarchi, M.D. In that declaration, Dr.
Attarchi opines that French’s medical conditions have led to the rapid
deterioration of French’s health and that there is “substantial medical doubt
that [French] has more than six months to live.” (Dr. Attarchi Decl., ¶ 6.) Dr.
Attarchi bases this opinion on the fact that French has been receiving long
term antibiotic treatment for a spinal infection and opines that this long-term
use of antibiotics will make it difficult for physicians to treat future
infections. (Dr. Attarchi Decl., ¶ 8.) Dr. Attarchi also notes that French’s
use of a Foley catheter creates a high risk of urinary tract infections and
that any infection places French at high risk of sepsis and death. (Dr.
Attarchi Decl., ¶ 8.) Additionally, Dr. Attarchi notes French is at a high risk
of death due to poorly managed type II diabetes, a history of pulmonary
embolism, morbid obesity, and vascular disease that could result in fatal blood
clots. (Dr. Attarchi Decl., ¶ 8.)
In
response, Kindred SGV argues Dr. Attarchi failed to provide reasoned
explanations for this opinion because Dr. Attarchi does not discuss French’s
receipt of or response to medical treatments for these health issues. The court
agrees.
While
Dr. Attarchi provided an overview of French’s comorbidities and concludes
French is in “significant ill health,” Dr. Attarchi failed to explain how
French’s health is deteriorating to the point that there is substantial medical
doubt regarding French’s survival beyond six months. (Dr. Attarchi Decl., ¶
7-8.) The court also notes Dr. Attarchi’s declaration repeats the same findings
on an additional page which gives the misleading impression that the
declaration is more substantial and lengthier than it is. Thus, the court finds
French failed to provide clear and convincing evidence that establishes substantial
medical doubt of French’s survival beyond six months.
Accordingly,
in exercise of the court’s discretion, French’s motion is DENIED
without prejudice.
CONCLUSION
Based on the foregoing, French’s
motion for trial preference is DENIED without prejudice.
Case Number: 23SMCV00657 Hearing Date: November 13, 2023 Dept: 205 HEARING DATE: November 13, 2023 | JUDGE/DEPT: Moreton/Beverly Hills, 205 | CASE NAME: Michelman & Robinson LLP v. Jeremy Byk | COMP. FILED: February 15, 2023 |
PROCEEDINGS: REQUEST FOR ENTRY OF DEFAULT JUDGMENT MOVING PARTY: Michelman & Robinson, LLP RESPONDING PARTY: Jeremy Byk This is a breach of contract case. Plaintiff Michelman & Robinson LLP entered into a written agreement with Defendant Jeremy Byk to provide legal services. Defendant defaulted by failing to pay fees due under the parties’ agreement. On February 15, 2023, Plaintiff filed a Complaint against Defendant. The Complaint alleges four claims for breach of contract, account stated, quantum meruit and open book account. The Complaint seeks $47,475.72 plus interest at the legal rate, from September 30, 2021. Plaintiff filed a proof of service showing Defendant was served by publication on July 5, 2023. Defendant was obligated to respond within 30 days. Defendant did not do so. Plaintiff successfully requested the entry of Defendant’s default, which was entered by the Clerk’s Office on August 24, 2023. Plaintiff requested a default judgment on October 2, 2023. Plaintiff served Defendant by mail with both the Request for Entry of Default and Request for Default Judgment. Defendant has not appeared. Default judgment against Defendant for a total of $47,475.72, which is comprised of: (1) $47,475.72, for damages, (2) $9,464 for interest, and (3) $728.51, for costs. Code of Civil Procedure section 585 sets forth the two options for obtaining a default judgment. First, where the plaintiff’s complaint¿seeks compensatory damages only, in a sum certain which is readily ascertainable from the allegations of the complaint or statement of damages, the clerk may enter the default judgment for that amount. However, if the relief requested in the complaint is more complicated, consisting of either nonmonetary relief, or monetary relief in amounts which require either an accounting, additional evidence, or the exercise of judgment to ascertain, the plaintiff must request entry of judgment by the court. In such cases, the plaintiff must affirmatively establish his entitlement to the specific judgment requested.¿ (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.) Section 585 also allows for interest, costs and attorney fees, where otherwise allowed by law. (Code of Civ. Proc. 585(a).) Multiple specific documents are required, such as: (1) form CIV 100, (2) a brief summary of the case; (3) declarations or other admissible evidence in support of the judgment requested; (4) interest computations as necessary; (5) a memorandum of costs and disbursements; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (CRC Rule 3.1800.) Here, Plaintiff seeks $47,475.72 as amounts owing under the parties’ agreement. However, the invoices it submitted in support of its request show only $46,701.72 as amounts owing. There is no explanation for this discrepancy. Accordingly, the Court denies the request for default judgment. For the foregoing reasons, Plaintiff Michelman & Robinson LLP’s Request for Default Judgment is DENIED as to Defendant Jeremy Byk.
Case Number: 23SMCV03662 Hearing Date: November 13, 2023 Dept: 207 TENTATIVE RULING
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DEPARTMENT
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207
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HEARING DATE
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November 13, 2023
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CASE NUMBER
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23SMCV03662
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MOTION
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Motion to be Relieved as Counsel
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MOVING PARTY
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Steven J. Barkin, Esq.
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OPPOSING PARTY
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(none)
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MOTION
Steven J. Barkin of the Law Offices
of Steven J. Barkin, counsel for Plaintiffs Stradella Equity Holdings, LLC and
Aveta Parsazad moves to be relieved as counsel.
No opposition has been filed.
LEGAL
STANDARD
Code of Civil Procedure section 284 provides “[t]he attorney in an
action or special proceeding may be changed at any time before or after
judgment or final determination as follows: 1. Upon the consent of both client
and attorney, filed with the clerk, or entered in the minutes; 2. Upon the
order of the court, upon the application of either client or attorney, after
notice from one to the other.”
Procedural Requirements
California Rules of Court, rule 3.1362, requires:
(1) the motion must be made on
form MC-051; (subd. (a));
(2) it must be accompanied by
a declaration on form MC-052 stating why the motion is brought under Code of
Civil Procedure section 284(2) instead of a consent brought under section
284(1); (subd. (c));
(3) a proposed order on form
MC-053 must be lodged with the court, specifying all hearing dates scheduled in
the action or proceeding, including the date of trial, if known; (subd. (e));
and
(4) The documents must be
served on the client and on all parties that have appeared in the case. (subd.
(d).)
If the notice is served by mail or electronic service, it must be
accompanied by a declaration indicating that the address served is the current
address, or in the case of service by mail, that it was served on the last
known address and a more current address could not be located after reasonable
efforts within 30 days before filing the motion. (Ibid.) The court may delay the effective date of the
order relieving counsel until proof of service of a copy of the signed order on
the client has been filed with the court.”
(Ibid.)
Substantive Requirements
Rules of Professional Conduct, rule 1.16(a) outlines the reasons a
lawyer must withdraw from representation of a client:
(1) the
client is bringing an action, conducting a defense, asserting a position in
litigation, or taking an appeal, without probable cause and for the purpose of
harassing or maliciously injuring any person;
(2) the
representation will result in violation of the Rules of Professional Conduct or
the State Bar Act;
(3) the
lawyer’s mental or physical condition renders it unreasonably difficult to
carry out the representation effectively; or
(4) the
client discharges the lawyer.
Rules of Professional Conduct, rule 1.16(b) outlines the reasons a
lawyer may withdraw from representation of a client:
(1) the
client insists upon presenting a claim or defense in litigation, or asserting a
position or making a demand in a non-litigation matter, that is not warranted
under existing law and cannot be supported by good faith argument for an
extension, modification, or reversal of existing law;
(2) the
client either seeks to pursue a criminal or fraudulent course of conduct or has
used the lawyer’s services to advance a course of conduct that the lawyer
reasonably believes was a crime or fraud;
(3) the
client insists that the lawyer pursue a course of conduct that is criminal or
fraudulent;
(4) the
client by other conduct renders it unreasonably difficult for the lawyer to
carry out the representation effectively;
(5) the
client breaches a material term of an agreement with, or obligation, to the
lawyer relating to the representation, and the lawyer has given the client a
reasonable warning after the breach that the lawyer will withdraw unless the
client fulfills the agreement or performs the obligation;
(6) the
client knowingly and freely assents to termination of the representation;
(7) the
inability to work with co-counsel indicates that the best interests of the
client likely will be served by withdrawal;
(8) the
lawyer’s mental or physical condition renders it difficult for the lawyer to
carry out the representation effectively;
(9) a
continuation of the representation is likely to result in a violation of these
rules or the State Bar Act; or
(10)
the lawyer believes in good faith in a proceeding
pending before a tribunal that the tribunal will find the existence of other
good cause for withdrawal.
DISCUSSION
Counsel has filed forms MC-051,
MC-052, and MC-053 and a proof of service.
The attorney declaration (MC-052) indicates that the motion was filed instead
of filing a consent because “A breakdown in communication has arisen between
the attorney and his clients which makes it impossible for the attorney to
provide effective counsel to the clients.”
Rule 1.16(b)(4) permits withdrawal where “the client by other conduct
renders it unreasonably difficult for the lawyer to carry out the
representation effectively[.]” As such,
the motion is substantively proper.
The proof of service attached to the MC-052 indicates that the Notice
of Motion to be Relieved as Counsel and Declaration of Steven J. Barkin were
served on the clients by mail. However,
the proof of service does not indicate that the MC-053 was served on the
clients as required under Rule 3.1362(d) [“The notice of motion and motion, the
declaration, and the proposed order must be served on the client”].
CONCLUSION
AND ORDER
Therefore, the Court continues the
hearing on the Motion to be Relieved as Counsel to December 8, 2023 at 8:30
A.M. in Department 207. Further, the
Court orders Counsel, on or before November 20, 2023, to serve the MC-053 on Plaintiffs,
and, at this juncture, to serve the moving papers (MC-051, MC-052 and MC-053) on
other parties who have appeared in the action.
Counsel shall provide notice of the
continued hearing and file a proof of service which evidences compliance with
the Court’s orders in advance of the continued hearing.
DATED: November 13, 2023 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court
Case Number: 23STCP03883 Hearing Date: November 16, 2023 Dept: 48 SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
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CALIFORNIA DEPARTMENT
OF INDUSTRIAL RELATIONS, DIVISION OF OCCUPATIONAL SAFETY AND HEALTH,
Petitioner,
vs.
UBER TECHNOLOGIES, INC.,
Respondent.
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CASE NO.: 23STCP03883
[TENTATIVE] ORDER SETTING OSC RE: PETITION
Dept. 48
8:30 a.m.
November 16, 2023
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On October 20, 2023, Petitioner
California Department of Industrial Relations, Division of Occupational Safety and
Health filed a petition to compel compliance with administrative subpoena. Summons issued the same day. No proof of service has been filed.
“In
the investigation of the policies and practices of an employer or a related employer
entity, the division may issue a subpoena if the employer or the related employer
entity fails to promptly provide the requested information, and may enforce the
subpoena if the employer or the related employer entity fails to provide the requested
information within a reasonable period of time.” (Lab. Code, § 6317.9.) If a witness fails to produce documents required
by the subpoena, the head of the department may petition the court for an order compelling the person to respond. (Gov. Code, § 11187, subd. (a).)
“Upon
the filing of the petition the court shall enter an order directing the person to
appear before the court at a specified time and place and then and there show cause
why he or she has not attended, testified, answered interrogatories, or produced
or permitted the inspection or copying of the papers . . . as required. A copy of the order shall be served upon him or
her in the manner provided for the service of a summons.” (Gov. Code, § 11188.)
Accordingly,
the Court sets an Order to Show Cause Re: Respondent’s Failure to Comply With Administrative
Subpoena on January 4, 2024 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse.
No
later than December 21, 2023, Petitioner is ordered to file a proof of service of
the petition, summons, and this order on Respondent.
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org
indicating intention to submit. If all parties
in the case submit on the tentative ruling, no appearances before the Court are
required unless a companion hearing (for example, a Case Management Conference)
is also on calendar.
Dated this 16th day of November 2023
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Hon. Thomas D. Long
Judge of the Superior
Court
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Case Number: 23STCV00039 Hearing Date: November 13, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 13, 2023 Case Name: Nathan Bears v. Roseville Point Health & Wellness Center, LLC, et al. Case No.: 23STCV00039 Matter: Motions to Compel Further Responses (2x) Moving Party: Plaintiff Nathan Bears Responding Party: Defendant Roseville Point Health & Wellness Center, LLC Notice: OK
Ruling: The Motion relating to Special Interrogatories is denied.
The Motion relating to Requests for Production is granted in part.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
This is an action relating to elder abuse at a skilled nursing facility. Plaintiff Nathan Bears seeks to compel further responses to its special interrogatories (“SI”), set one, and requests for production, set one, propounded on Defendant Roseville Point Health & Wellness Center, LLC.
Special Interrogatories
Plaintiff seeks further responses to SI nos. 31-32. SI no. 31 states, “Please IDENTIFY each resident of the FACILITY during the time period(s) in which the PLAINTIFF was a resident of the FACILITY. [. . . The term ‘IDENTIFY’, as used in this and all subsequent inquiries, means to provide the name, last known residence address and telephone number of the individual(s). . . .]” SI no. 32 states, “Please IDENTIFY the RESPONSIBLE PARTY for each resident of the FACILITY during the time period(s) in which the PLAINTIFF was a resident of the FACILITY.” The Motion is denied because the requests are overbroad and overburdensome to the extent relating to a seven year period that Plaintiff was a patient. The Court declines to award sanctions.
Requests for Production
Plaintiff seeks to compel further responses to its requests for production, nos. 2, 3, 10, 20-23, 25, 27, 30, 32-37, 44, and 45. The issue for request no. 2 is whether a privilege log should be provided. Defendant contends that Plaintiff agreed that a privilege log was not necessary. However, Plaintiff stated that no privilege log was necessary for litigation materials, but “with that limitation, we need a code compliant response to determine whether other material is being withheld.” To the extent there are other documents being withheld, a privilege log should be provided. If not, nothing further is required. Request no. 3 seeks, “any ‘Incident Report’ and/or ‘Unusual Occurrence Report’ and/or any other DOCUMENT utilized by the FACILITY to report or memorialize any occurrence relating to a resident which in any fashion mentions or relates to the PLAINTIFF.” Defendant responded that “After a diligent search and a reasonable inquiry, responding party is unable to comply with the request because the documents have either never existed, or have been lost or misplaced.” Defendant should provide a further response specifying whether these documents ever existed in the first place. Request no. 10 seeks, “all completed 24-Hour Communication logs the FACILITY during the time period of the residency of the PLAINTIFF in the FACILITY.” Defendant responded that it “will comply with the request in part, and all documents in the requested category that are in the possession, custody, or control of responding party and to which no objection is being made will be included in the production. The documents that are not being produced are those 24-Hour Reports which do not mention plaintiff and the 24-Hour reports from May 27, 2021 through November 20, 2021 and December 4, 2021 through September 9, 2022, which are lost.” The Court finds Defendant’s response to be sufficient and that Plaintiff’s request is otherwise overbroad and overburdensome. Request no. 20 seeks, “all DOCUMENTS referencing, evidencing or pertaining to complaints regarding the provision of NURSING SERVICES at the FACILITY by anyone, including, but not limited to, employees, outside consultants, residents, family members of residents, and/or visitors at any time during the time period of January 1, 2020 to September 9, 2022.” The Court will require a further response to request no. 20 as Defendant’s objections largely lack merit. The identifying information of other patients is to be redacted. Request no. 21 seeks, “all DOCUMENTS received from employees of the FACILITY which in any manner whatsoever reference the staffing levels at the FACILITY during the time period of January 1, 2020 to September 9, 2022.” Request no. 22 seeks, “all DOCUMENTS which were provided by YOU to any other named Defendant in this action referencing FACILITY staffing levels during the time period of January 1, 2020 to September 9, 2022.” Request no. 23 seeks, “all DOCUMENTS which were provided to YOU by any other named Defendant in this action referencing FACILITY staffing levels during the time period of January 1, 2020 to September 9, 2022.” The Motion is denied as to request nos. 21-23, which are overbroad and overburdensome. Request no. 25 seeks, “all DOCUMENTS which were provided to YOU by any other named Defendant in this action, referencing FACILITY census levels during the time period of January 1, 2020 to September 9, 2022.” Request no. 27 seeks, “all DOCUMENTS which were provided by YOU to any other named Defendant in this action referencing FACILITY interaction with the State of California Department of Public Health during the time period of January 1, 2020 to September 9, 2022.” The Court will require a further response to request nos. 25 and 27, which seek relevant information. The objections lack merit. Request no. 30 seeks, “the FACILITY UNUSUAL OCCURRENCE logs or reports and/or 24 Hour Communication logs as it pertains to the operations of the FACILITY for the time period during which the PLAINTIFF was a resident in the FACILITY.” As was the case for request no. 10, the Court will not require a further response as to request no. 30. Request no. 32 seeks, “all DOCUMENTS utilized by the FACILITY to reflect the number of residents in the FACILITY who suffered from pressure sores during the residency of the PLAINTIFF in the FACILITY.” Request no. 33 seeks, “all DOCUMENTS to reflect the number of residents in the FACILITY who suffered falls during the residency of the PLAINTIFF in the FACILITY.” Request no. 34 seeks, “all DOCUMENTS to reflect the number of residents in the FACILITY who suffered from infections during the residency of the PLAINTIFF in the FACILITY.” Request no. 35 seeks, “Produce all DOCUMENTS to reflect the number of residents in the FACILITY who utilized restraints during the residency of the PLAINTIFF in the FACILITY.” Request no. 36 seeks, “all DOCUMENTS to reflect the number of residents in the FACILITY who suffered from bowel or bladder incontinence during the residency of the PLAINTIFF in the FACILITY.” Request no. 37 seeks, “all DOCUMENTS to reflect the number of residents in the FACILITY who utilized psychotropic medications during the residency of the PLAINTIFF in the FACILITY.” The Court will require a further response to request nos. 32-37, but will only require that documents having generalized or compiled information be provided. Request no. 44 seeks, “all DOCUMENTS upon which the FACILITY relied during the residency of the PLAINTIFF in the FACILITY to ensure that FACILITY personnel who provided NURSING SERVICES to the PLAINTIFF, as well as Brigitte Loesch (Administrator) and Erin Mancinas (Director of Nursing), were fit to perform their job duties in the FACILITY during the residency of the PLAINTIFF in the FACILITY.” The Motion is denied as to request no. 44 because it is overboard in light of employment privacy rights. Finally, Request no. 45 seeks, “all DOCUMENTS evidencing and/or consisting of all professional services agreement, management agreements, consulting agreements or administrative services agreements between the responding party and any other named Defendant in this action in effect during any portion of the residency of the PLAINTIFF in the FACILITY.” A further response should be provided because Defendant’s objections lack merit. In sum, the Motion to Compel is granted in part as set forth herein. Further responses and production are to be provided within 30 days. The Court declines to award sanctions. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 23STCV00366 Hearing Date: November 15, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 15, 2023 Case Name: Hernandez v. General Motors, LLC, et al. Case No.: 23STCV00366 Matter: Motion to Compel PMK Deposition Moving Party: Plaintiff Miguel Hernandez Responding Party: Defendant General Motors LLC Notice: OK
Ruling: The Motion is granted in part.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
This is a lemon law action. Plaintiff Miguel Hernandez seeks to compel the PMK deposition of Defendant General Motors, LLC. Defendant first argues that the Motion was untimely filed more than 60 days after Defendant asserted objections. (Code Civ. Proc. § 2025.480(b).) This lacks merit because, under the circumstances, Code Civ. Proc. § 2025.450 is applicable. This section has no deadline. The Motion is granted as to testimony category no. 1, which seeks information about repairs on Plaintiff's vehicle. Category nos. 2 and 3 are narrowed to include TSBs relating to the defects actually suffered by the subject vehicle. The Motion is granted as to category no. 4, which generally seeks information about how TSBs are released. The PMK need not have information about other individual vehicles. Category nos. 5 and 6 are narrowed to include recalls relating to the defects actually suffered by the subject vehicle. The Motion is granted as to category no. 7, which relates to why Plaintiff’s vehicle was not repurchased. The Motion is granted as to category no. 8, which relates to repurchase policies. The Motion is granted as to category no. 9, which relates to warranty policies and procedures. The Motion is granted as to category no. 10, which seeks warranties applicable to the subject vehicle. The Motion is granted as to category nos. 11 and 12, which seek repair and diagnostic procedures that were consulted. The Motion is granted as to request nos. 13 and 14, which seek failure rates and amounts paid for a certain transmission in the U.S. However, the PMK need only have compiled or generic information. The Motion is denied as to category nos. 15-17, which are overbroad and overburdensome. As to documents, the Motion is granted as to request nos. 1, 2, 5, 7 and 8, which relate to the subject vehicle and its repairs. Request nos. 3-4 are narrowed to, again, relate only to TSBs and recalls actually applicable to defects suffered by the subject vehicle. The Motion is granted as to request no. 6, which seeks documents as to Defendant’s repurchase policies. Request nos. 9 and 10 are narrowed to only include generic or compiled data. The Motion is denied as to request nos. 11-13, which are overbroad and overburdensome. Thus, the Motion to Compel is granted in part. The PMK deposition is to take place within 30 days. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 23STCV00552 Hearing Date: November 15, 2023 Dept: 32
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CONCEPCION
GONZALEZ-ESTRADA,
Plaintiff,
v.
SHARON CARE CENTER, LLC,
et al.,
Defendants.
|
Case No.: 23STCV00552
Hearing Date: November 15, 2023
[TENTATIVE]
order RE:
plaintiff’s motion to withdraw from
arbitration
|
|
|
|
BACKGROUND
On January 11, 2023, Plaintiff Concepcion
Gonzalez-Estrada, through her guardian ad litem Jessica Estrada, filed this
action against Defendants Sharon Care Center, LLC and Ma Cecilia B. Lingat stemming
from Plaintiff’s care at a nursing facility. The operative First Amended
Complaint was filed on March 1, 2023 and asserts causes of action for elder
abuse, negligence, and violation of the Patient’s Bill of Rights. The parties
initially stipulated to arbitration based on an arbitration agreement.
On October 16, 2023, Plaintiff filed the
instant motion to withdraw from arbitration based on Defendants’ failure to pay
arbitration fees. Defendants filed their opposition on November 1, 2023.
Plaintiff filed her reply on November 7, 2023.
LEGAL STANDARD
“In an employment
or consumer arbitration that requires . . . the drafting party to pay certain
fees and costs before the arbitration can proceed, if the fees or costs to
initiate an arbitration proceeding are not paid within 30 days after the due
date, the drafting party is in material breach of the arbitration agreement, is
in default of the arbitration, and waives its right to compel arbitration under
Section 1281.2.” (Code Civ. Proc., § 1281.97(a)(1).) “If the drafting party
materially breaches the arbitration agreement and is in default under
subdivision (a), the employee or consumer may . . . [w]ithdraw the claim from
arbitration and proceed in a court of appropriate jurisdiction.” (Id., subd. (b).)
DISCUSSION
Section
1281.7 is applied strictly, and the Court may not consider any other factors or
mitigating circumstances. (Espinoza v.
Superior Court (2022) 83 Cal.App.5th 761, 775-76; DeLeon v. Juanita Foods (2022) 85 Cal.App.5th 740, 749.) A drafting party is in breach of the
arbitration agreement simply if it does not pay the requisite fees within
thirty days.
Here,
it is undisputed that Defendants did not pay the required fees within thirty
days. Therefore, Plaintiff is entitled to withdraw from arbitration under
Section 1281.97. However, Defendants advance several arguments against applying
Section 1281.97, which the Court addresses in turn.
I. Federal Arbitration Act
While
the FAA does not preempt Section 1281.97 (Gallo
v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621,
642), parties may nonetheless contract to apply the procedural rules of the FAA
as opposed to the CAA (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 177). Because state procedural rules apply
by default, and the FAA is intended to apply in federal proceedings, “the FAA’s
procedural provisions do not apply in state court unless the parties expressly
adopt them.” (Ibid.) Where the parties expressly agree to adopt the FAA’s procedural rules,
Section 1281.97 would not apply. (See Espinoza
v. Superior Court (2022) 83 Cal.App.5th 761, 785-87.)
Here,
the arbitration agreement provides that “[t]his agreement shall be construed
and enforced in accordance with and governed by the Federal Arbitration Act and
the procedures set forth in the Federal Arbitration Act shall govern any
petition to compel arbitration.” (Moore Decl., Ex. A, § I.8.) However, agreeing
to interpret the contract under the FAA, and to apply the FAA to any motion to
compel arbitration, is not the same as agreeing to incorporate the procedural
provisions of the FAA to the arbitration itself. (See Valencia, supra, 185
Cal.App.4th at p. 178; Espinoza, supra, 83 Cal.App.5th at pp. 786-87.)
Additionally, the
stipulation to submit to arbitration provides that “[t]his stipulation to
submit the entire Complaint to binding arbitration is made and enforceable
pursuant to Part III, Title 9 of the Code of Civil Procedure § 1280 et seq.,
that governs private, contractual arbitration.” (July 5, 2023 Stipulation, §
10.) Because the parties have not expressly agreed to adopt the procedural
rules of the FAA, the CAA applies by default.
II. Voluntary Stipulation
Defendants
argue that Section 1281.97 does not apply because the parties voluntarily stipulated
to arbitration as opposed to being ordered by the Court. However, this was not
a dispositive factor in any of the cited cases discussing withdrawal from
arbitration. Defendants cite no authority for the proposition that application
of Section 1281.97 depends on this factor. Plaintiff did not waive her rights
under Section 1281.97 simply because she acknowledged a valid arbitration
agreement and decided to avoid wasting court resources contesting a motion to
compel.
III. Consumer Arbitration
Section
1281.97 applies “[i]n an employment or consumer arbitration.” This is clearly
not an employment arbitration. However, Defendants argue that it is also not a
consumer arbitration because the arbitration agreement does not identify it as
such. However, Defendants cite no authority for the proposition that a consumer
arbitration must be so identified in the arbitration agreement.
Defendants
next argue that this case does not match the definition of “consumer
arbitration” as set forth in the California Rules of Court Ethics Standards
because Plaintiff was not required to sign the arbitration agreement. This
exact argument was rejected by the Court of Appeal in Williams v. West Coast Hospitals, Inc. (2022) 86 Cal.App.5th 1054, 1073-74. “The purpose for which the
defined term ‘consumer arbitration’ as used in the ethical standards is to
delineate the cases in which certain disclosures are required.” (Id. at p. 1074.)
There is “no reason to believe that the Legislature intended to appropriate
this definition of ‘consumer arbitration’ for use in section 1281.98.” (Ibid.)
“We take the
ordinary meaning of ‘consumer arbitration,’ accordingly, to be arbitration
involving a ‘consumer’ and a controversy arising from the consumer's
transaction with the drafting party, irrespective of how the parties reached
their predispute agreement to arbitrate.” (Williams,
supra, 86 Cal.App.5th at p. 1073.) “‘Consumer’ means an
individual who seeks, uses, or acquires, by purchase or lease, any goods or
services for personal, family, or household purposes.” (Code Civ. Proc., §
1280(c).) Plaintiff is a consumer under this definition. Therefore, this is a
consumer arbitration for purposes of Section 1281.97. Whether the agreement was
voluntary or mandatory is immaterial.
Because
Defendants have not articulated any valid reason not to apply the CAA, Section
1281.97 applies and allows Plaintiff to withdraw from arbitration.
CONCLUSION
Plaintiff’s
motion to withdraw from arbitration is GRANTED.
Case Number: 23STCV01110 Hearing Date: November 13, 2023 Dept: 40 Superior Court of California
County of Los Angeles
Department 40
|
KAREN FLORES, an individual,
Plaintiff,
v.
EVERBRANDS, INC., a California corporation; EVERBRANDS,
INC., a Delaware corporation; MICHAEL FLORMAN, an Individual; YON LAI, an Individual;
and DOES 1-25,
Defendants.
|
Case No.: 23STCV01110
Hearing Date: 11/13/23
Trial Date: 9/3/24
[TENTATIVE] RULING RE:
Plaintiff Karen
Flores’s Motion to Compel Further Responses to Request for Admissions, Set 1,
and Request for Sanctions.
|
Background
Plaintiff Karen Flores (Plaintiff)
sues Defendants Everbrands, Inc., a California Corporation (Everbrands CA),
Everbrands, Inc., a Delaware Corporation (Everbrands DE) (collectively,
Everbrands, Inc.), Michael Florman (Florman), Yon Lai (Lai), and Does 1-25
pursuant to a January 18, 2023 Complaint alleging claims of (1) Failure to Pay
a Minimum Wage, (2) Failure to Pay Overtime, (3) Failure to Provide rest
Breaks, (4) Failure to Provide Meal Breaks, (5) Inaccurate Wage Statements, (6)
Waiting Wage Penalties (Cal. Labor Code §§ 201-203), (7) Unfair Competition and
Unlawful Business Practices – (Cal. Bus. Code § 17200), and (8) Failure to
Provide Records.
The claims arise from allegations
that when Plaintiff was employed by Defendants, she was paid less than the
applicable minimum wage, was not compensated for overtime, and was not
compensated for and/or provided meal and rest breaks.
On July 24, 2023, Plaintiff served
Requests for Admission (RFAs), Set One, on Defendant Everbrands CA. The RFAs
were served on Allyson K. Thompson, Esq., and Laura P. Birnbaum, Esq.,
Plaintiff’s counsel.
On September 11, 2023, after a
continuance by Plaintiff, Everbrands CA served responses to RFAs, Set One, as
verified by Defendant Florman.
On September 19, 2023, Plaintiff’s
counsel emailed a meet and confer letter regarding further responses to the
RFAs. The email was sent to Ms. Thompson and to Carmen Dilks, Ms. Thompson’s
secretary.
By October 12, 2023, Plaintiff’s
counsel had not received supplemental responses to discovery or a response to
the September 19th meet and confer email and attached letter.
That same day, Plaintiff Flores
filed a motion to compel further responses to RFAs, Set One, Nos. 23-24. The
motion also seeks monetary sanctions against Everbrands CA and Ms. Thompson.
On October 30, 2023, Everbrands CA
opposed the motion, which attaches declarations from Ms. Thompson and Ms.
Birnbaum, who explain their respective, purportedly inadvertent failure to
respond to the sole meet and confer effort by Plaintiff’s counsel or to provide
supplemental responses to these RFAs. The motion also argues that this motion
will be mooted by service of supplemental responses by the date of this
hearing.
On November 3, 2023, Plaintiff
Flores replied to the opposition.
Plaintiff Flores’s motion is now
before the Court.
Evidentiary
Objections
Reply Objections to Thompson
Declaration
Objections to Thompson Declaration,
¶¶ 2, 4, 8.
Objections to Thompson Declaration,
¶ 5.
Guidelines
for Civility
The
Court notes that it understands Plaintiff Flores’s counsel’s frustration with
Defendants in relation to the discovery process and to this litigation
generally. (Reply, pp. 1-3.)
However,
the Court reminds counsel that the Local Rules of this Court explicitly provide
that “[n]either written submissions nor oral presentations should disparage the
intelligence, ethics, morals, integrity or personal behavior of one’s
adversaries, unless such things are directly and necessarily in issue.” (Super.
Ct. L.A. County, Local Rules, appen. 3.A., subd. (c)(2); see Reply, pp. 1-3
[characterizing arguments and representations in opposition as “asinine” and
flippantly responding “blah blah blah” and “so what?” to arguments in
opposition].)
The
characterization and words used to describe the alleged conduct of Everbrands
CA’s counsel is not proper. Attorney Shirdel is admonished to comply with the guidelines
for civility.
Meet
and Confer
A
motion to compel further admission responses must be accompanied by a meet and
confer declaration under Code of Civil Procedure section 2016.040. (Code Civ.
Proc., § 2033.290, subd. (b)(1).) A meet and confer declaration in support of a
motion shall state facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by the motion. (Code Civ. Proc., §
2016.040.)
If
the party or attorney made no effort to resolve the discovery dispute
informally, it is considered an egregious violation of the meet-and-confer
requirement, and the court can deny the motion to compel without any further
attempts to secure an informal resolution by the parties. (See Obregon
v. Superior Court (1998) 67 Cal.App.4th 424, 433-434.) If the effort to
meet and confer was merely inadequate, a court should consider giving the
moving party another opportunity to meet the requirement before denying the
motion to compel. (Id. at 434-435; see Volkswagenwerk A.G. v.
Superior Court (1981) 122 Cal.App.3d 326, 331-332.) In determining whether
the failure to meet and confer was egregious or merely inadequate, the court
should consider eleven factors set out in Obregon, supra, 67
Cal.App.4th at p. 345.
Here,
the parties dispute whether a single email, emailed to Ms. Thompson and Ms.
Dilks, constituted a proper meet and confer effort. (Mot., p. 1; Opp’n, pp.
4-5; Reply, pp. 4-5.)
The
Court determines that the meet and confer efforts were proper, even if
Plaintiff Flores’s counsel could have done more to ensure that Plaintiff
received timely supplemental responses to RFAs, Set One, Nos. 23-24.
The
opposition admits that Ms. Dilks—Ms. Thompson’s secretary—“handles saving
discovery in the system and calendaring discovery deadlines, among other things.”
(Opp’n, p. 4.) The September 19, 2023 meet and confer declaration was emailed
to Ms. Thompson and Ms. Dilks—contrary to Ms. Thompson’s assertions and
undercutting Thompson’s “confirmation of email address” argument. (See Mot., Shirdel
Decl., Ex. 3.) Yet, Everbrands CA did not respond to that meet and confer
effort. (Mot., Shirdel Decl., ¶ 6.) Though the Court sympathizes with Ms.
Thompson’s schedule, she and her secretary appear to have received the meet and
confer email and failed to respond. Plaintiff’s counsel could have reached out
again. However, a meet and confer effort was made, if only once.
Legal
Standard
A
motion to compel a further response is used when a party gives unsatisfactory
answers or makes untenable objections to interrogatories, demands to produce,
or requests for admission. (See Code Civ. Proc., §§ 2030.300, subd. (a),
2031.310, subd. (a), 2033.290, subd. (a).)
To
obtain further responses to requests for admission, the movant must establish
that (1) the response to an RFA is evasive or incomplete (Code Civ. Proc., §
2033.290, subd. (a)(1)) or (2) the objection to an RFA is without merit or too
general (Code Civ. Proc., § 2033.290, subd. (a)(2)).
Order
Compelling Further Admission Responses: GRANTED.
I. RFAs, Set One, No. 23
RFAs,
Set One, No. 23 reads: “Admit YOU [Everbrands CA] did not pay Plaintiff the
applicable minimum wage.” (Mot., Shirdel Decl., Ex. 1.)
Everbrands
CA’s response states: “Defendant cannot ‘admit’ or ‘deny’ this request as it is
vague as to time.” (Mot., Shirdel Decl., Ex. 2.)
Plaintiff’s
motion argues that further responses are merited for RFAs, Set One, No. 23
because Everbrands CA’s response is a simple yes-or-no question, clearly
limited to the time of Plaintiff’s employment with Everbrands CA. Plaintiff’s
motion asks that to the extent that a further response is ordered to this RFA,
that response should be made without objection and be accompanied by Form
Interrogatory No. 17.1 responses to the extent that an admission request is
denied. (Mot., p. 5.)
Plaintiff’s
separate statement argues that the RFA is clear, requiring a simple yes-or-no
answer, and that any admission response can be qualified to admit to certain
periods when minimum wages were not paid and deny to periods when minimum wages
were paid. (Mot., Separate Statement, p. 2.)
Everbrands
CA’s opposition does not contain any arguments relating to the merit of
Everbrands’ response to this RFA. (See Opp’n, pp. 2-4 [factual and procedural
background], 4-7 [issued related to email, meet and confer, and sanctions].)
The conclusion, however, does represent that Everbrands CA will serve
supplemental responses by the time of this hearing. (Opp’n, p. 7.)
Everbrands
CA’s separate statement very briefly argues that the RFA is unclear as to scope
of time and that Everbrands CA can respond to the RFA once it is properly
stated. (Opp’n, Separate Statement, p. 2.)
Plaintiff’s
reply highlights the opposition’s failure to support the merits of Everbrands
CA’s response to this RFA. The reply also reiterates the merit of the RFA.
(Reply, p. 5.)
The
Court finds in favor of Plaintiff Flores.
The
Court finds no merit to the objection relating to scope. RFAs, Set One, No. 23
is clearly confined to the period during which Plaintiff claims to have been
employed by Everbrand CA. (See Complaint, ¶¶ 19, 54-55 [employed from January
2020 to termination].) The RFA requests an admission as to whether Everbrands
CA paid minimum wages to Plaintiff during that time, information that should be
within Everbrands CA’s control to admit or deny, in whole or in part, with
proper qualifications.
Plaintiff’s
motion is thus GRANTED as to compelling a further, verified response to RFAs,
Set One, No. 23. To the extent that the response is a denial, corresponding
responses must be provided for Form Interrogatory No. 17.1. The response may be
qualified by an objection.
II. RFAs, Set One, No. 24
RFAs,
Set One, No. 24 reads: “Admit that YOU [Everbrands CA] did not provide
Plaintiff’s personnel file when demanded pursuant to Cal. Lab. Code §226.” (Mot.,
Shirdel Decl., Ex. 1.)
Everbrands
CA’s response states: “Unknown at this time, discovery is ongoing.”
(Mot., Shirdel Decl., Ex. 2.)
Plaintiff’s
motion argues that this response is “baseless” because the RFA involves a
simple yes-or-no question. (Mot., p. 5.)
Plaintiff’s
separate statement argues that Everbrands CA should have information to inform
an admission response relating to this RFA and that the personnel file was
never provided. (Mot., Separate Statement, p. 2.)
Everbrands
CA’s opposition does not contain any arguments relating to the merit of
Everbrands’ response to this RFA. (See Opp’n, pp. 2-4 [factual and procedural
background], 4-7 [issued related to email, meet and confer, and sanctions].) The
conclusion, however, does represent that Everbrands CA will serve supplemental
responses by the time of this hearing. (Opp’n, p. 7.)
Everbrands
CA’s separate statement provides that it “will amend its response to state that
a reasonable inquiry concerning the matter has been made, and the information
known or readily obtainable is insufficient to enable that party to admit the
matter, and that “[a]t this time[,] [Everbrands CA] cannot locate Plaintiff’s
request for Plaintiff’s personnel file, and therefore lacks sufficient
information to admit or deny this request.” (Opp’n, Separate Statement, p. 3.)
Plaintiff’s
reply highlights the opposition’s failure to support the merits of Everbrands
CA’s response to this RFA. The reply also reiterates the merit of the RFA.
(Reply, p. 5.)
The
Court finds in favor of Plaintiff Flores.
The
Court does not find credible that Everbrands CA’s inability to “locate
Plaintiff’s request for [her] personnel file” undercuts its ability to respond
to this RFA. Everbrands CA does or does not have records relating to requests
by Plaintiff Flores for her personnel file. Everbrands CA’s further response
can provide that information, as necessary. While Everbrands CA has indicated
its intention to supplement its responses to RFA, Set One, No. 24, the Court
does not have confirmation as to receipt of that supplemental response.
Plaintiff’s
motion is thus GRANTED as to compelling a further, verified response to RFAs,
Set One, No. 24. To the extent that the response is a denial, corresponding
responses must be provided for Form Interrogatory No. 17.1. The response may be
qualified by an objection.
Request for Sanctions: GRANTED.
The Court must impose monetary
sanctions against anyone (party, non-party, or attorney) who unsuccessfully
makes or opposes a motion to compel further responses to requests for
admission, unless it finds that the person to be sanctioned acted with substantial
justification or other circumstances make the imposition of sanctions unjust.
(Code Civ. Proc., § 2033.290, subd. (d).)
The court may award sanctions under the
Discovery Act in favor of a party who files a motion to compel discovery, even
though no opposition to the motion was filed, or opposition to the motion was
withdrawn, or the requested discovery was provided to the moving party after
the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).)
Plaintiff seeks $4,663.01 in
monetary sanctions against Everbrands CA and Ms. Thompson based on Everbrands
CA’s failure to answer the two RFAs as posed, forcing Plaintiff to bring this
motion and incur expenses. Expenses include 3.6 hours expended by counsel on
the moving papers, two hours to review and reply to the opposition, and one
hour to attend this hearing, all at a rate of $695 per hour, as well as $68.75
expended filing this motion and $7.26 on the reply. (Mot., p. 6; Mot., Shirdel
Decl., ¶¶ 8-9.)
Everbrands CA, in turn, seeks
$5,900 in monetary sanctions based on failure to meet and confer. (Opp’n, pp.
6-7.)
The Court finds that Plaintiff
Flores is entitled to monetary damages and that these sanctions are merited based
on Everbrands CA making evasive responses to discovery. (Code Civ. Proc., §§
2023.010, subd. (f), 2023.030, subd. (a).) The Court also finds that the rates
and hours sought by Plaintiff are reasonable. Last, the Court finds that it
would be proper to impose monetary sanctions against Plaintiff and Ms.
Thompson, jointly and severally, based on Ms. Thompson’s role in the events
necessitating this motion. The Court briefly recognizes the difficulties
expressed by Ms. Thompson in her declaration. (Opp’n, Thompson Decl., ¶¶ 5-8,
Ex. E.) However, the Court notes that the responses to the RFAs at issue were
evasive, and nothing before the Court indicates that proper supplemental
responses have been provided to those RFAs. Last, the Court notes that even if
responses had been provided, the Court would still be empowered to award
sanctions. (Cal. Rules of Court, rule 3.1348, subd. (a).) The Court finds for
all the reasons set forth above that Everbrands CA is not entitled to
sanctions.
Sanctions are thus GRANTED in the
amount of $4,663.01.
Conclusion
Plaintiff Karen Flores’s Motion to Compel Further Responses to Request
for Admissions, Set 1, is GRANTED as to compelling further responses to RFAs,
Set One, Nos. 23-24.
Everbrands, Inc., a California
corporation, is ORDERED to provide further, verified response to RFAs, Set One,
Nos. 23-24. To the extent that the response is a denial, Everbrands, Inc., a
California corporation, is ORDERED to provide the corresponding responses to
Form Interrogatory No. 17.1.
Plaintiff Karen Flores’s Request for Sanctions is GRANTED in the amount
of $4,663.01.
Everbrands, Inc., a California
corporation, and Allyson K. Thompson, Esq., are ORDERED, jointly and severally,
to remit payment of $4,663.01 to Plaintiff Karen Flores within 30 days of this
ruling.
Everbrands, Inc.’s, a California corporation’s request for sanctions is
DENIED.
Case Number: 23STCV01414 Hearing Date: November 13, 2023 Dept: 1 Moving Party: Specially
Appearing Defendants CRS Management, Inc. and Aaron S. Yi
Responding Party: Plaintiff
Delmar Gordillo Vidal
Ruling: Motion denied as to
CRS Management, Inc. and off calendar as to Aaron S. Yi. The Court will set an OSC re: filing of proof
of service on Mr. Yi.
This
is a wage-and-hour proposed class action.
Specially appearing defendants CRS Management, Inc. (CRS) and Aaron S.
Yi (collectively, Defendants) move to quash service of summons pursuant to Code
Civ. Proc. § 418.10 on the grounds that they were not properly served with the summons
and complaint.
“When
a defendant challenges the court's personal jurisdiction on the ground of
improper service of process ‘the burden is on the plaintiff to prove the
existence of jurisdiction by proving, inter alia, the facts requisite to an
effective service.’” (Summers v.
McClanahan (2006) 140 Cal.App.4th 403, 413.)
Plaintiffs
have filed only a declaration from Plaintiff’s lawyer Jose Garay, Esq. Although there is a proof of service on file
dated October 30, 2023 stating that an opposition was served alongside the
declaration, there is no indication that the opposition was filed with the
Court and the Court has received none.
Nonetheless, the Court will consider the declaration.
1.
Service on CRS Management, Inc.
Service
on a corporation may be made by personal delivery to the corporation’s agent
for service of process, or to “the president, chief executive officer, or other
head of the corporation, a vice president, a secretary or assistant secretary,
a treasurer or assistant treasurer, a controller or chief financial officer, a
general manager, or a person authorized by the corporation to receive service
of process.” (Code Civ. Proc. § 416.10(a),
(b).) Alternatively, in lieu of delivery
to one of those people,
a
summons may be served by leaving a copy of the summons and complaint during
usual office hours in his or her office or, if no physical address is known, at
his or her usual mailing address, other than a United States Postal Service
post office box, with the person who is apparently in charge thereof, and by
thereafter mailing a copy of the summons and complaint by first-class mail, postage
prepaid to the person to be served at the place where a copy of the summons and
complaint were left. When service is effected by leaving a copy of the summons
and complaint at a mailing address, it shall be left with a person at least 18
years of age, who shall be informed of the contents thereof. Service of a
summons in this manner is deemed complete on the 10th day after the mailing.
(Code
Civ. Proc. § 415.20(a).)
CRS’s
Statement of Information indicates that its business address is 942 W. Arrow
Highway #6, Covina, California 91722.
(Garay Decl., Ex. 2.) The proof
of service of summons indicates that Plaintiff left the papers at CRS’s
business address with someone named Gil Han and then mailed the papers to that
address, care of Aaron S. Yi, who is also the agent for service of process. (See Garay Decl., Ex. 3.) This would tend to establish proper service
on CRS. In reply, CRS’s counsel contends
(but Mr. Yi does not declare) that no one matching the description of Gil Han “is
a manager” and that it is “unlikely that someone this young [25] could be
presumed a manager of the establishment.”
Even if Mr. Yi had declared to the facts counsel recites, Code Civ. Proc.
§ 415.20(a) does not require that the person be presumed a manager, only that
the person with whom the papers are left be “apparently in charge” of the premises
and be at least 18 years of age and informed of the contents of the
papers. This does not create a dispute
as to service, and the motion will be denied as to CRS.
2.
Service on Aaron S. Yi
No
proof of service has been filed as to Mr. Yi in his individual capacity. There was no declaration of diligence with
respect to serving Mr. Yi in his individual capacity. (See Code Civ. Proc. § 415.20(b).) Since Plaintiff does not at this time assert
that personal jurisdiction has been established over Mr. Yi, there is nothing
to quash, and so the motion is off calendar as to Mr. Yi.
That
said, counsel are advised to meet and confer as to service on all parties and
move this case forward. Mr. Yi declares
that he is personally present at CRS’s premises in this county, and there is no
reason why the parties cannot stipulate to service on Mr. Yi. The Court will set an Order to Show Cause
with respect to service on Mr. Yi and other unserved defendants for December
13, 2023 at 10:30 a.m.
Conclusion
For
the foregoing reasons, the motion is denied as to defendant CRS Management,
Inc. and off calendar as to defendant Aaron S. Yi. CRS is to file a Notice of Appearance within
15 days of this order. (Code. Civ. Proc.
§ 418.10(b).) Counsel for Plaintiff and
Mr. Yi are ordered to meet and confer to see if they can agree on service, and
if not, Plaintiff should proceed to serve Mr. Yi as provided under the law. As
this case was filed ten months ago, the Court sets an order to show cause why Plaintiff
should not be sanctioned for failure to file proof of service on Mr. Yi and
other unserved defendants for December 13, 2023 at 10:30 a.m. The
Initial Status Conference will also be continued to this date and time. The OSC will be discharged if Plaintiff files
a proof of service on Mr. Yi before that date.
Counsel for CRS to give notice.
Case Number: 23STCV01565 Hearing Date: November 13, 2023 Dept: 71 Superior Court of California
County of Los Angeles
DEPARTMENT
71
TENTATIVE
RULING
|
SARA VAN HORN, et al.,
vs.
THE WOMAN’S CLUB OF HOLLYWOOD, et al.
|
Case
No.: 23STCV01565
Hearing Date: November 13, 2023
|
Plaintiffs
Sara Van Horn’s and Patrick Van Horn’s motion to compel Defendant Rosemary Lord
to provide responses to their Form Interrogatories –
General (Set One) is denied.
Plaintiffs’ request for monetary sanctions on
the motion to compel Form Interrogatories is denied.
Plaintiffs
Sara Van Horn (“Sara”) and Patrick Van Horn (“Patrick”) (collectively, “Plaintiffs”)
move for an order compelling Defendant Rosemary Lord (“Lord”) (“Defendant”) to provide responses to their Form Interrogatories – General
(Set One) (“FROG”), previously served on Defendant. (Notice of Motion, pg. 2; C.C.P. §2030.290.)
Plaintiffs also request an award of sanctions against Defendant in the
amount of $3,561.65. (Notice of Motion,
pg. 2; C.C.P. §§2023.010, 2030.290.)
Motion
to Compel
Having reviewed Plaintiffs’ Motion to Compel Responses to FROGs, the
Court rules as follows.
On March 27, 2023, Plaintiffs served FROG
(Set One) on Defendant by email. (Decl.
of Yakobian ¶¶2-3, Exh. A.) Responses
were due on or before August 7, 2023.
(Decl. of Yakobian ¶6.)
Plaintiffs’ counsel declares Defendant’s counsel requested two
extensions to provide answers, which were granted, with a new response date of
August 18, 2023. (Decl. of Yakobian ¶¶7-8.)
Plaintiffs filed the instant motion on
October 6, 2023. Defendant filed her
opposition on October 30, 2023. As of
the date of this hearing, no reply has been filed.
Defendant provided responses to
Plaintiffs’ FROG (Set One) on October 9, 2023.
(Decl. of Rooney ¶10, Exh. 3.) Defendant
argues in opposition that Plaintiffs’ original discovery contained 850
discovery requests, which had been cut down to 394 requests after parties met
and conferred. (Decl. of Rooney ¶¶5-6,
Exh. 2.) Defendant’s counsel argues it
overlooked Plaintiffs’ FROG (Set One) and believed the discovery request at
issue was withdrawn by Plaintiffs.
(Decl. of Rooney ¶¶8-9.)
Defendant’s counsel declares she advised Plaintiffs that Defendant’s
responses to FROG (Set One) were in process.
(Decl. of Rooney ¶10, Exh. 3.)
Defendant served a response to FROG
(Set One) that is in substantial compliance with C.C.P. §2030.210 and
Defendant’s failure to serve a timely response was the result of mistake,
inadvertence, or excusable neglect.
(C.C.P. §2030.290(a).) Therefore,
Defendant is relieved from its waiver of any right to exercise the option to
produce writings a well as any objection to the interrogatories.
Therefore, the Court denies Plaintiffs’
motion.
Plaintiffs’ request for monetary sanctions is denied.
Conclusion
Plaintiffs’ motion to compel Defendant to provide responses to its FROG
is denied.
Plaintiffs’ request for monetary sanctions is denied.
Moving Party is to give notice of this ruling.
Dated: November _____, 2023
|
|
|
Hon. Daniel M. Crowley
|
|
Judge of the Superior Court
|
Case Number: 23STCV01847 Hearing Date: November 16, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 16, 2023 Case Name: Goff v. American Guard Services, Inc., et al. Case No.: 23STCV01847 Matter: Motion to Vacate Stay and Withdraw from Arbitration Moving Party: Plaintiff Garland Adrian Goff Responding Party: Defendant American Guard Services, Inc. Notice: OK
Ruling: The Motion is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
This is an employment action. On June 2, 2023, the Court compelled this matter to arbitration. Plaintiff Garland Adrian Goff now seeks to vacate the stay in this matter and withdraw from arbitration because Defendant American Guard Services, Inc. failed to timely pay arbitration fees. Defense counsel argues the Motion should be denied because the failure to pay was inadvertent as defense counsel was, at the time, dealing with an unexpected cancer illness, diagnosis, and treatment. Code Civ. Proc. § 1281.98 provides in relevant part, (a) In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs during the pendency of an arbitration proceeding, if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.
(b) If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employee or consumer may unilaterally elect to do any of the following:
(1) Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. . . .
Code Civ. Proc. § 1281.98 does not have any component relating to intent or diligence. Rather, it plainly provides that the failure to timely pay fees results in waiver of arbitration and that a plaintiff may thereafter choose to proceed in the courts. As Defendant has conceded its payment was untimely, Plaintiff has a right to reinstate the action. Plaintiff also seeks $3,960 in sanctions; this represents the time associated with the instant Motion and the prior motion to compel arbitration. Given the circumstances relating to defense counsel’s health, the Court will award reduced sanctions in the amount of $750. (Code Civ. Proc. §§ 1281.98(c), 1281.99.) The Motion is granted. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 23STCV03452 Hearing Date: November 14, 2023 Dept: 34 PLAINTIFF'S
REQUEST FOR ENTRY OF DEFAULT JUDGMENT
I.
BACKGROUND
On February 16, 2023, Plaintiff Deutsche Bank National Trust Company
filed its Complaint against Defendant AmWest Surety Insurance Company on causes
of action of cancellation of instruments and declaratory relief.
On August 9, 2023, by request of Plaintiff, the Clerk’s Office entered
default on Defendant.
On October 13, 2023, Plaintiff filed its:
(1)
Judicial
Council Form CIV-100, Request for Court Judgment;
(2)
Judicial
Council Form CIV-110, Request for Dismissal;
(3)
Judicial
Council Form JUD-100, Proposed Judgment;
(4)
Summary
of Case;
(5)
Declaration;
and
(6)
Proposed
Order.
On October 16, 2023, by request of Plaintiff, the Clerk’s Office
dismissed without prejudice the Doe defendants.
II.
ANALYSIS
The Request for Default Judgment is GRANTED.
Case Number: 23STCV03952 Hearing Date: November 13, 2023 Dept: 52 Plaintiff
David Mathews’ Demurrer to Defendants’ First Amended Answer
Plaintiff David
Mathews demurs to the 7th-11th, 13th, 15th-18th, 20th, 22nd, 25th-27th, 30th,
and 31st affirmative defenses alleged in the first amended answer by defendants
Gene Simmons, Paul Stanley, Doc McGhee, and GAPP 2002 Ltd.
Rather
than denying the plaintiff’s allegations, affirmative defenses assert new
allegations that would defeat the plaintiff’s claims. (CCP § 431.30(b); FPI Development, Inc. v.
Nakashima (1991) 231 Cal.App.3d 367, 383-385.) Affirmative defenses must not be pled as
“terse legal conclusions,” but “rather … as facts averred as carefully and with
as much detail as the facts which constitute the cause of action and are
alleged in the complaint.” (In re
Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758,
812-13, internal quotes and citations omitted.)
Plaintiff
demurs to 17 affirmative defenses. For
16 of the 17 defenses, plaintiff makes only conclusory arguments with no
citation to authority. “The court may
construe the absence of a memorandum as an admission that the motion or special
demurrer is not meritorious and cause for its denial and, in the case of a
demurrer, as a waiver of all grounds not supported.” (Cal. Rules of Court, rule 3.1113(a).)
For
example, the 17th affirmative defense states, “Answering Defendants’ alleged
acts of which Plaintiff complains were based on reasonable factors other than
his alleged whistleblower status or other prohibited factor due, in part, to
the regularly increasing costs of Plaintiff’s work for certain Answering
Defendants.” (FAA, ¶ 17.) Plaintiff argues, “Defendants fail to provide
what reasonable factors these acts were based on.” (Demurrer, p. 9.) But they allege an ultimate fact constituting
such a factor: “the regularly increasing costs of Plaintiff’s work.”
As
another example, the 26th affirmative defense states, “Plaintiff’s claim that
he was unlawfully denied his right to meal and rest periods is barred due to
his status as an Independent Contractor, and further to the extent that he
affirmatively chose not to take or voluntarily waived meal periods, which were
provided, and rest breaks, which were authorized and permitted despite his
status as an Independent Contractor.”
(FAA, ¶ 26.)
Without
citing any authority, plaintiff argues, “California
law requires there be written notice and an employee sign-off before any meal
break can be waived.”
(Demurrer, p. 11.) That may apply
if the employee is not relieved of all duty (see Cal. Code Regs., tit. 8, § 11100, subd. 11(C), but this defense asserts
that defendants provided the breaks, but plaintiff chose not to take them—not
that defendants failed to relieve him of duty.
“[T]he
employer is not obligated to police meal breaks and ensure no work thereafter
is performed. Bona fide relief from duty
and the relinquishing of control satisfies the employer’s obligations, and work
by a relieved employee during a meal break does not thereby place the employer
in violation of its obligations and create liability for premium pay.” (Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004, 1040–1041.)
Plaintiff
only cites authority supporting the demurrer to the 16th affirmative defense,
that “Defendants would have made the same decisions with respect to Plaintiff’s
claims pursuant to valid business justification due to, in part, the regularly
increasing costs of Plaintiff’s work for certain Answering Defendants.” (FAA, ¶ 16.)
Plaintiff alleges whistleblower retaliation in violation of Labor Code
section 1102.5 and argues the same-decision defense only applies to FEHA claims. (Demurrer, p. 9, citing Harris v. City of
Santa Monica (2013) 56 Cal.4th 203, 233-234 (Harris.)) That is incorrect. Harris applies the same-decision defense
to FEHA but does not preclude applying it to other forms of employment
discrimination or retaliation. To the
contrary, the Legislature codified the same-decision defense to whistleblower
retaliation. (Lab. Code, § 1102.6 [“the
employer shall have the burden of proof to demonstrate by clear and convincing
evidence that the alleged action would have occurred for legitimate,
independent reasons even if the employee had not engaged in activities
protected by Section 1102.5”]; Lawson v. PPG Architectural Finishes, Inc.
(2022) 12 Cal.5th 703, 716 [section 1102.6 “codifi(ed) the burden on the
employer to make out its same-decision defense”].)
Disposition
Plaintiff David Mathews’ demurrer to the first amended
answer by defendants Gene Simmons, Paul Stanley, Doc McGhee, and GAPP 2002 Ltd.
is overruled.
Case Number: 23STCV05211 Hearing Date: November 14, 2023 Dept: 34 SUBJECT: Motion to be
Relieved as Counsel
Moving Party: Plaintiff’s
Counsel John Gibson
Resp. Party: None
The Motion to be Relieved as Counsel is GRANTED.
BACKGROUND:
On March 9, 2023,
Plaintiff Sailing Supply Chain (HK) Co., Ltd. filed its Complaint against
Defendants Smart Transit Solutions, Inc. and Corey Norwood on causes of action
for unlawful conversion and fraud.
On October
11, 2023, Plaintiff’s Counsel, John Gibson, filed: (1) MC-051, Motion to be
Relieved as Counsel; (2) MC-052, Declaration; (3) MC-053, Proposed Order; and
(4) Proof of Service.
No opposition
or other response has been filed to the Motion.
ANALYSIS:
I.
Legal Standard
An attorney moving to be relieved as counsel under California Code of
Civil Procedure section 284(2) must meet the requirements set out in California
Rules of Court, rule 3.1362.
To comply with rule 3.1362, the moving party must submit the following
forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2)
Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3)
Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of
Court, rule 3.1362(a), (c), (e).)
The moving party must serve the aforementioned forms on the client and
all other parties who have appeared in the case. (Cal. Rules of Court, rule
3.1362(d).) Further, when the client is served by mail, the attorney's
declaration must show that the client's address was confirmed within the last
30 days and how it was confirmed. (Id.)
Absent a showing of resulting prejudice, an attorney’s request for
withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d
398, 406.)
II.
Discussion
Counsel’s Motion to be Relieved as Counsel complies with all of the
requirements of California Rules of Court, rule 3.1362, in that Counsel
provided notice of motion and motion to be relieved as counsel, a proposed
order granting attorney’s motions to be relieved as counsel, and a declaration
in support of the motion to be relieved as counsel.
The declaration states that there has been a breakdown in the
attorney-client relationship and that it has been several months since
Plaintiff’s Counsel has had any response from Plaintiff, despite Plaintiff’s
Counsels emails and calls.
As trial is not scheduled in this matter, there does not be a
significant risk of prejudice to Plaintiff by the withdrawal. Further, it is
not Plaintiff’s Counsel’s responsibility to prosecute this matter.
III. Conclusion
The Motion to be Relieved as Counsel is GRANTED.
Case Number: 23STCV06767 Hearing Date: November 13, 2023 Dept: 71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
|
15907 VALLEY VISTA LLC,
vs.
HOME RUN BUILDERS INC., et al.
|
Case No.:
23STCV06767
Hearing
Date: November 13, 2023
|
Defendants Home Run Builders Inc.’s,
Valley Vista 18 Project LLC’s, Shachar Shabtay’s, Anette Sharvit’s, Shachar
Sharvit’s, and Asaf Asi Azami’s demurrer to Plaintiff 15896 Valley Vista LLC’s first
amended complaint is sustained with 20 days leave to amend as to the 2nd,
3rd, 4th, 6th, 17th, and 25th causes of action, and overruled as to the 5th
cause of action.
Defendants
Home Run Builders Inc.’s, Valley Vista 18 Project LLC’s, Shachar Shabtay’s,
Anette Sharvit’s, Shachar Sharvit’s, and Asaf Asi Azami’s motion to strike is
denied as moot.
Defendants Home Run Builders Inc. (“HRB Inc.”), Valley Vista 18
Project LLC (“Valley 18 LLC”), Shachar Shabtay (“S. Shabtay”), Anette Sharvit
(“A. Sharvit”), Shachar Sharvit (“S. Sharvit”), and Asaf Asi Azami (“Azami”) (collectively
“HRB Defendants”) demur to Plaintiff 15907 Valley Vista LLC’s (“15907 Valley LLC”) (Plaintiff”) first amended
complaint (“FAC”). (Notice of Demurrer, pgs. 1-2.) HRB Defendants also move to strike portions of
the FAC. (Notice of MTS, pg. 2.)
Background
Plaintiff filed its initial Complaint on March 28, 2023. On June 26, 2023, Plaintiff filed the
operative FAC against HRB Defendants, and non-moving Defendants JDM Builders
Inc. dba J D M Carpentry (“JDM Inc.”), David Rocha Salgado (“Salgado”), DS
Sheetmetal (“DS”); Edgard Windows & Doors Inc (“Edgard Inc.”); Luzon Yossef,
Inc. (“Luzon Inc.”), TJN Construction, Inc. (“TJN Inc.”), and HC Builders,
Inc., (“HC Inc.”), Jose De Jesus Rodriguez (“Rodriguez”), and Stone Designs
(“Stone”) (collectively, “Defendants”), alleging twenty-five causes of action:
(1) Violation of the Standards Set Forth in Civil Code §§896 and 897 [against
all Defendants]; (2) defective construction [against all Defendants];
(3) fraud- intentional misrepresentation [against HRB Defendants]; (4) fraud-
intentional concealment and nondisclosure [against HRB Defendants]; (5) Violation
of Civil Code §1102, et seq. [against 18 Valley Inc., HRB Inc., S. Shabtay,
Azami, and S. Sharvit]; (6) negligent misrepresentation [against 18
Valley Inc., HRB Inc., S. Shabtay, Azami, and S. Sharvit]; (7) breach of
contract [against 18 Valley Inc.]; (8) breach of third-party beneficiary
contract [against HRB Inc.]; (9) breach of third-party beneficiary
contract [against JDM Inc.]; (10) breach of third-party beneficiary
contract [against Salgado and DS]; (11) breach of third-party
beneficiary contract [against Edgard Inc.]; (12) breach of third-party
beneficiary contract [against Luzon Inc.]; (13) breach of third-party
beneficiary contract [against TJN Inc.]; (14) breach of third-party
beneficiary contract [against HC Inc.]; (15) breach of third-party
beneficiary contract [against Rodriguez and Stone]; (16) breach of
third-party beneficiary contract; (17) breach of express warranty [against
HRB Inc.]; (18) breach of express warranty [against JDM Inc.]; (19)
breach of express warranty [against Salgado and DS]; (20) breach of
express warranty [against Edgard Inc.]; (21) breach of express warranty
[against Luzon Inc.]; (22) breach of express warranty [against TJN
Inc.]; (23) breach of express warranty [against HC Inc.]; (24)
breach of express warranty [against Rodriguez and Stone]; and (25)
breach of implied warranties [against all Defendants].
This action arises out of Plaintiff’s purchase of real property
located at 15907 Valley Vista Boulevard, Encino, CA 91436 (“Property”) from
Valley 18 LLC. (FAC ¶3.) Plaintiff and Valley 18 LLC entered into
the original California Residential Purchase Agreement (“RPA”) for the purchase
and sale of the Property for $8,995,000, which was amended as of November 8,
2021, by that certain Amendment by and among Plaintiff and Valley 18 LLC on or
about August 1, 2021. (FAC ¶22.) Plaintiff alleges it purchased the Property
on November 23, 2021. (FAC ¶22; Exh. 9.)
On August 9, 2023, HRB Defendants filed the instant demurrer and
motion to strike. On October 30, 2023,
Plaintiff filed its combined opposition.
On November 6, 2023, HRB Defendants filed their consolidated reply.
A.
Demurrer
Summary of Demurrer
HRB Defendants demur to Plaintiff’s 2nd, 3rd, 4th, 5th, 6th, 17th,
and 25th causes of action. HRB
Defendants demur on the basis that Plaintiff’s 2nd, 3rd, 4th, 5th, 6th, 17th,
and 25th causes of action are improper because the Right to Repair Act
statutory scheme provides the sole remedy for these claims. (Demurrer, pg. 3.) HRB Defendants demur on the basis that Plaintiff’s
3rd, 4th, 5th, and 6th causes of action are uncertain and inadequate pursuant
to C.C.P. §430.10(f) and fail to state facts sufficient to constitute a cause
of action against HRB Defendants pursuant to C.C.P. §430.10(e). (Demurrer, pg. 3.)
Meet and Confer
Before filing a demurrer pursuant to this chapter, the demurring
party shall meet and confer in person or by telephone with the party who
filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer. (C.C.P.
§430.41(a), emphasis added.) A
declaration must be filed with a demurrer regarding the results of the meet and
confer process. (C.C.P. §430.41(a)(3).)
HRB Defendants’ counsel’s declaration states he sent Plaintiff’s
counsel a written meet and confer correspondence outlining the issues in the FAC,
dated July 13, 2023. (Decl. of Windisch
¶2, Exh. A.) HRB’s Defendants’ counsel
is insufficient because parties failed to meet and confer in person or by
telephone. (C.C.P. §430.41(a).) However,
a determination by the court that the meet and confer process was insufficient is
not grounds to overrule or sustain a demurrer.
(C.C.P. §430.41(a)(4).)
Accordingly, the Court will consider the instant demurrer.
Legal Standard
“[A] demurrer tests the legal
sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc.
(2015) 235 Cal.App.4th 385, 388.) A
demurrer can be used only to challenge defects that appear on the face of the
pleading under attack or from matters outside the pleading that are judicially
noticeable. (See Donabedian v.
Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a
demurrer, a court may not consider declarations, matters not subject to
judicial notice, or documents not accepted for the truth of their
contents].) For purposes of ruling on a
demurrer, all facts pleaded in a complaint are assumed to be true, but the
reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District
(1992) 2 Cal.4th 962, 967.)
Right to Repair Act
As a preliminary matter, HRB Defendants fail to state the grounds
for which they demur to Plaintiff’s 2nd, 3rd, 4th, 5th, 6th, 17th, and 25th causes of action based on the Right to Repair
Act (Civ. Code §895 et seq.). (See
C.C.P. §§430.10(a)-(h).)
HRB Defendants argue in McMillin Albany, LLC v. Superior Court,
the California Supreme Court addressed the issue of whether a homeowner can
bring causes of action other than violations of the Right to Repair Act against
a builder for construction defects. (McMillin
Albany, LLC v. Superior Court (2018) 4 Cal.5th 241, 252-253.)
For purchase agreements signed after 2002, the Right to Repair Act
specifies various statutory procedures that must be followed before a homeowner
may sue a builder for defects in construction of a new residential unit. The statutes provide builders with the
absolute right to attempt a repair prior to a homeowner filing a lawsuit. The
purpose is to promote prelitigation repairs and avoid litigation costs that
result in increased costs of construction. (Anders v. Superior Court (2011) 192 Cal.App.4th
579, 590.)
The Right to Repair Act applies only to construction defect
claims, not claims for breach of contract, fraud, or personal injury. (McMillin Albany LLC, 4 Cal.5th at pg.
249.) However, the Right to Repair Act
and its pre-lawsuit filing requirements does apply to any claim
relating to damages for residential construction deficiencies, not just to
those claims brought under the Right to Repair Act. (Id. at pgs. 250, 257, 259 [stating Right
to Repair Act supplants common law construction defect or breach of contract
claims and failure to provide notice is ground to stay litigation]; Elliott
Homes, Inc. v. Superior Court (2016) 6 Cal.App.5th 333, 341.)
Here, Plaintiff’s 2nd cause of action for defective construction
is a negligence claim and cannot be alleged in the alternative, as Plaintiff
argues in its opposition. (Opposition,
pg. 14.) Plaintiff has already alleged
HRB Defendants are builders and are therefore subject to the Right to Repair
Act: “Defendants, and each of them, in developing, designing, constructing
and/or building the Property and improvements thereon did so negligently,
defectively, and not in conformity with the approved plans, specifications and
other instruments of service, and applicable building codes and requirements,
thereby causing resulting property damage. The conduct of Defendants, and each
of them, in developing, designing, constructing and/or building the Property
and improvements thereon, fell below the applicable standard(s) of care.” (FAC ¶50.)
Further, the negligence cause of action seeks monetary damages in excess
of $2,000,000, which is disallowed under the Act. (McMillin Albany LLC, 4 Cal.5th at
pgs. 252-253.)
HRB Defendants’ demurrer to the 17th and 25th causes of action on
the basis of the Right of Repair Act is also well taken. It is true the Right of Repair Act leaves
undisturbed causes of action for breach of contract, of which breach of implied
and express warranties are a species. (See
id. at pgs. 249, 253; Civ. Code §943(a).)
However, these causes of action do not allege any permissible cause of
action outside the scope of the Right to Repair Act violations that the
Plaintiff alleges in the 1st cause of action, and seeks damages in excess of
$2,000,000, which is disallowed under the Act.
(McMillin Albany LLC, 4 Cal.5th at pgs. 252-253.)
Plaintiff’s 3rd and 4th causes of action for fraud, and 6th cause
of action for negligent misrepresentation, a species of fraud or deceit, also
similarly seeks damages derived from construction defects, which are disallowed
under the Act. (Id.)
Accordingly, HRB Defendants’ demurrer to the 2nd, 3rd, 4th, 6th,
17th, and 25th causes of action is sustained with 20 days leave to
amend.
Uncertainty
Fraud- Misrepresentation
(3rd COA)
A demurrer for uncertainty will be sustained only where the
complaint is so bad that defendant cannot reasonably respond—i.e., he or she
cannot reasonably determine what issues must be admitted or denied, or what
counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc.
(1993) 14 Cal.App.4th 612, 616.)
If the complaint contains enough facts to apprise defendant of the
issues it is being asked to meet, failure to label each cause of action is not ground
for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of
labels . . . does not substantially impair [defendant’s] ability to understand
the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139 n.2.)
Plaintiff’s 3rd, 4th, and 5th causes of action for fraud and
violation of Civil Code §1102 are not so uncertain that HRB Defendants cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against it.
Accordingly, HRB Defendants’ demurrer to the 3rd, 4th, and 5th
causes of action on the basis of uncertainty is overruled.
Conclusion
HRB Defendants’ demurrer to Plaintiffs’ FAC is sustained with
20 days leave to amend as to the 2nd, 3rd, 4th, 6th, 17th, and 25th causes of
action, and overruled as to the 5th cause of action.
Moving Party to give notice.
B.
Motion to Strike
In light of the Court’s ruling on the demurrer, HRB Defendants’
motion to strike is denied as moot.
Dated: November _____, 2023
|
|
|
Hon.
Daniel M. Crowley
|
|
Judge
of the Superior Court
|
Case Number: 23STCV07567 Hearing Date: November 16, 2023 Dept: 48 SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
|
MTI LOGISTICS, INC.,
Plaintiff,
vs.
ROADONE INTERMODAL LOGISTICS, INC., et al.,
Defendants.
|
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CASE NO.: 23STCV07567
[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS OR STAY ACTION
Dept. 48
8:30 a.m.
November 16, 2023
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On
April 5, 2023, Plaintiff MTI Logistics, Inc. filed this action against Defendants
RoadOne Intermodal Logistics, Inc. and RoadOne LogisticSolutions, Inc.
On
September 20, 2023, Defendants filed a motion to dismiss pursuant to a contractual
forum selection clause.
REQUEST FOR JUDICIAL NOTICE
Defendant’s
request for judicial notice of the parties’ contract is granted. The Complaint references the parties’ contract,
so it is an appropriate matter for judicial notice. (See Align Technology, Inc. v. Tran (2009)
179 Cal.App.4th 949, 956, fn. 6.) Additionally,
Plaintiff acknowledges the contract and its Dispute Resolution provision at paragraph
21 (Opposition at p. 2), thereby admitting its authenticity. (Evid. Code, § 1414.)
DISCUSSION
“In
California, the procedure for enforcing a forum selection clause is a motion to
stay or dismiss for forum non conveniens pursuant to Code of Civil Procedure sections
410.30 and 418.10.” (Berg v. MTC Electronics
Technologies (1998) 61 Cal.App.4th 349, 358 (Berg).) “[A] motion based on a forum selection clause
is a special type of forum non conveniens motion. The factors that apply generally to a forum non
conveniens motion do not control in a case involving a mandatory forum selection
clause.” (Ibid.) Instead, “the test is simply whether application
of the clause is unfair or unreasonable, and the clause is usually given effect.” (Ibid.)
A. There Is a Mandatory Forum Selection Clause.
On
October 5, 2020, Plaintiff and Defendants entered into a contract that contained
a forum selection clause. (RJN, Ex. 1.) Specifically, “[a]ll such disagreements or disputes
shall be submitted to any court of and in the Commonwealth of Massachusetts having
subject matter jurisdiction and the PARTIES hereby agree to the exclusive jurisdiction
of the courts located in the Commonwealth of Massachusetts.”
Plaintiff
does not dispute that this is a mandatory forum selection clause. (Opposition at p. 2.) Instead, Plaintiff argues that the forum selection
clause is unreasonable. (Id. pp. 2-4.)
B. Plaintiff Has Not Shown That Application
of the Forum Selection Clause Would be Unfair or Unreasonable.
Plaintiff
argues that the work and services were performed in California. (Opposition at p. 4.) “Claims that the previously chosen forum is unfair
or inconvenient are generally rejected. [Citation.] A court will usually honor a mandatory forum selection
clause without extensive analysis of factors relating to convenience. [Citation.]
‘“Mere inconvenience or additional expense is not the test of unreasonableness
. . .”’ of a mandatory forum selection clause.
[Citation.]” (Berg, supra,
61 Cal.App.4th at pp. 358-359.)
Plaintiff
states only that “all the work and services were performed in California by a California
business, without any involvement or activity in Massachusetts, Delaware, or any
other location. [¶] Under the circumstances, it would be extremely
unfair to require Plaintiff to file an action in Massachusetts, Delaware or another
location when the events occurred in California, Plaintiff is a California business,
Plaintiff did not do any business in Massachusetts, Delaware or other states relating
to this transaction. [¶] Denying Plaintiff the use of California courts
would be extremely unfair under the circumstances.” (Opposition at p. 4; see Murat Decl.)
Plaintiff’s
conclusory assertion of unfairness is insufficient to show that application of the
forum selection clause is unfair or unreasonable.
CONCLUSION
The
motion to dismiss or stay action is GRANTED.
This action is STAYED pending litigation in Massachusetts.
The
Court sets a Status Conference Re: Massachusetts Litigation for 11/19/2024 at 8:30
AM. Five court days before, the parties are
to file a joint report on the status of the action in Massachusetts.
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org
indicating intention to submit. If all parties
in the case submit on the tentative ruling, no appearances before the Court are
required unless a companion hearing (for example, a Case Management Conference)
is also on calendar.
Dated this 16th day of November 2023
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Hon. Thomas D. Long
Judge of the Superior
Court
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Case Number: 23STCV10370 Hearing Date: November 13, 2023 Dept: 39 Scott Guerrero v.
Loyola Marymount University
Case No. 23STCV10370
Motion to Strike
and Case Management Conference
Plaintiff Scott
Guerrero (“Plaintiff”) filed this employment discrimination case against
Defendant Loyola Marymount University (“Defendant”). Now, Defendant moves to strike the prayers
for punitive damages and attorneys’ fees, as well as related allegations. In ruling on a motion to strike punitive
damages, “judges read allegations of a pleading subject to a motion to strike
as a whole, all parts in their context, and assume their truth.” (Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The motion is granted in part and denied in
part.
A. Punitive Damages
To state a prima facie claim for
punitive damages, a plaintiff must allege the elements set forth in the
punitive damages statute, Civil Code section 3294. (Coll.
Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must
allege that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “Malice is defined in the statute as conduct
intended by the defendant to cause injury to the plaintiff or despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others.”
(Coll. Hosp., Inc. v. Superior
Court (1994) 8 Cal.4th 704, 725.)
“The mere allegation an intentional tort was committed is not sufficient
to warrant an award of punitive damages.
Not only must there be circumstances of oppression, fraud or malice, but
facts must be alleged in the pleading to support such a claim.” (Grieves
v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and
footnotes omitted.)
“[T]he imposition of punitive
damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of
the fault of others.” (City Products Corp. v. Globe Indemnity Co.
(1979) 88 Cal. App. 3d 31, 36.)
“Corporations are legal entities which do not have minds capable of
recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a
corporation therefore must rest on the malice of the corporation’s
employees. But the law does not impute
every employee’s malice to the corporation.
Instead, the punitive damages statute requires proof of malice among
corporate leaders: the officers, directors, or managing agents.” (Cruz
v. Home Base (2000) 83 Cal. App. 4th 160, 167, internal quotations and
citation omitted.)
Plaintiff
alleges that Craig Pintens, LMU’s Athletic Director, terminated him based upon
his age, and that Pintens engaged in a pattern and practice of replacing older
staff members with younger ones. Plaintiff
argues that “the violation of fundamental civil rights is inherently malicious
conduct” that would support a claim for punitive damages. Plaintiff is incorrect. A plaintiff must allege more than violations
of the Fair Employment and Housing Act and other claims in order to support a
prayer for punitive damages. (See Scott
v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715-716.) Plaintiff also alleges that Pintens terminated
him because he wanted “to go in a different direction.” While allegations of a “cover up” are
sufficient to state a claim for punitive damage, Plaintiff must allege more
than a false reason for the termination.
Otherwise, every FEHA case would involve punitive damages, which is not
the law. Therefore, the motion to strike
the prayer for punitive damages is granted.
B. Attorney’s Fees
Defendant
also moves to strike the prayer for attorney’s fees. In fact, Plaintiff is entitled to attorney’s
fees under his causes of action, which Defendant’s counsel does not
dispute. Rather, Defendant challenges
the request for attorney’s fees under Code of Civil Procedure section
1021.5. Plaintiff does not allege that
this case resulted in a significant benefit to the general public or a large
class of employees. Nor does Plaintiff
seek to enforce a right that will benefit the public; he seeks enforcement of
his own rights. Therefore, the motion to
strike is granted only to the extent the prayer for attorneys’ fees is
predicated on section 1021.5.
CONCLUSION AND ORDER
Based upon
the foregoing, the Court orders as follows:
1. Defendant’s motion to strike the prayer
of punitive damages is granted with leave to amend.
2. Defendant’s motion to strike the prayer
for attorneys’ fees is granted to the extent the prayer is predicated on Code
of Civil Procedure section 1021.5 with leave to amend.
3. Plaintiff may file a first amended
complaint within thirty (30) days.
4. The parties stipulated for the Court to
conduct the case management conference in advance of Defendant’s answer having
been filed.
5. The
Court sets the following dates:
Post-Mediation
Status Conference: October 28, 2024, at
8:30 a.m.
Final
Status Conference: May
2, 2025, at 9:00 a.m.
Trial: May
13, 2025, at 9:30 a.m.
The parties shall comply with all pretrial procedures for
Department #39. The parties shall
disclose all witnesses they intend to call in their respective cases-in-chief,
and disclose and produce all exhibits they intend to introduce in their
respective cases-in-chief, on or before April 25, 2025. Jury fees shall be posted on or before
December 29, 2023, or the parties shall waive jury.
6. The Court’s clerk shall provide
notice.
Case Number: 23STCV11730 Hearing Date: November 13, 2023 Dept: 34 SUBJECT: Motion
to Compel Arbitration and Stay Action
Moving Party: Defendant
FCA US LLC
Resp. Party: Plaintiff Chul Hak Gwag
Defendant
FCA’s Motion to Compel Arbitration is DENIED.
BACKGROUND:
On May 23, 2023, Plaintiff
Chul Hak Gwag filed his Complaint against Defendants FCA US LLC (“FCA”) and
Sierra LA CDJR, LLC (“Sierra”).
On July 12, 2023, both Defendant
Sierra and Defendant FCA filed their Answers to the Complaint.
On October 4, 2023, Defendant
FCA filed its Motion to Compel Arbitration and Stay Action. In support of its
Motion, Defendant FCA filed its Proposed Order.
On October 17, 2023,
Plaintiff filed his Opposition to the Motion. In support of his Opposition,
Plaintiff concurrently filed: (1) Request for Judicial Notice; and (2)
Evidentiary Objections.
On October 23, 2023,
Defendant FCA filed its Reply regarding the Motion. In support of its Reply,
Defendant FCA concurrently filed Declaration of John Stock.
On November 8, 2023,
Plaintiff filed its second Request for Judicial Notice (“Supplemental Request
for Judicial Notice”).
ANALYSIS:
I.
Evidentiary
Objections
Plaintiff filed
evidentiary objections to Defendant FCA’s evidence. The following are the
Court’s rulings on these objections.
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Objection
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1
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SUSTAINED
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2
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SUSTAINED
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3
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SUSTAINED
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4
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SUSTAINED
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II.
Request
for Judicial Notice
Plaintiff requests that
the Court take judicial notice of various opinions by Courts of Appeal.
Plaintiff later requests that the Court take judicial notice of a writ of
mandate in an ongoing appellate matter.
The Court DENIES judicial notice to
these of these items. Plaintiff may cite published opinions as authority in its
memorandum. However, “an opinion of a California Court of Appeal or
superior court appellate division that is not certified for publication or
ordered published must not be cited or relied on by a court or a party in any
other action.” (California Rules of Court, Rule 8.115.)
III.
Legal
Standard
“A
written agreement to submit to arbitration an existing controversy or a
controversy thereafter arising is valid, enforceable and irrevocable, save upon
such grounds as exist for the revocation of any contract.” (Code Civ. Proc., §
1281.)
“On
petition of a party to an arbitration agreement alleging the existence of a
written agreement to arbitrate a controversy and that a party to the agreement
refuses to arbitrate that controversy, the court shall order the petitioner and
the respondent to arbitrate the controversy if it determines that an agreement
to arbitrate the controversy exists [unless it makes certain determinations].”
(Code Civ. Proc., § 1281.2.)
“Under
both federal and state law, arbitration agreements are valid and enforceable,
unless they are revocable for reasons under state law that would render any
contract revocable. . . . Reasons that would render any contract revocable
under state law include fraud, duress, and unconscionability.” (Tiri v.
Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 239, citations omitted.)
“The
party seeking to compel arbitration bears the burden of proving by a
preponderance of the evidence the existence of an arbitration agreement.¿The
party opposing the petition bears the burden of establishing a defense to the
agreement's enforcement by a preponderance of the evidence.¿In determining
whether there is a duty to arbitrate, the trial court must, at least to some
extent, examine and construe the agreement.” (Tiri, supra, at p.
239.)
IV.
Discussion
A.
The Parties’ Arguments
Defendant
FCA moves the Court to compel Plaintiff to arbitration and stay this action
pending the completion of arbitration. (Motion, p. 15:4–5.)
Defendant
FCA argues: (1) that Plaintiff’s claims are subject to arbitration pursuant to
the signed “Agreement to Arbitrate”; (2) that Plaintiff’s claims are subject to
arbitration pursuant to the signed “Retail Installment Sale Contract”; (3) that
the Agreement to Arbitrate may also be enforced through the procedures set
forth in the California Arbitration Act (CAA); (4) that the arbitration
provisions in both agreements are valid and enforceable; (5) that the
arbitration provisions are neither procedurally nor substantively
unconscionable; and (6) that this matter must be stayed while the application
to arbitrate is pending through the conclusion of arbitration. (Motion, pp.
1:3–16, 5:23, 7:14, 8:19–20, 10:4, 12:11–12, 14:13–14.)
Plaintiff
opposes the Motion, arguing: (1) that the Motion must be denied because
Defendant FCA does not provide competent evidence of an arbitration agreement;
(2) that Defendant did not demonstrate that Plaintiff consented to the
arbitration provisions; (3) that both arbitration provisions are
unconscionable; (4) that there is no consideration for the Agreement to
Arbitrate; (5) that equitable estoppel does not prevent Plaintiff from refusing
to arbitrate; and (6) that the Court should follow certain case law and not
other case law. (Opposition, pp. 5:8–9, 6:1–3, 7:12, 9:11, 9:18–19, 14:24.)
In
its Reply, Defendant FCA argues: (1) that the Agreement to Arbitrate is a
business record and is thus admissible under an exception to the hearsay rule;
(2) that Plaintiff received a warranty in consideration for the Agreement to
Arbitrate; and (3) that Defendant FCA can enforce the arbitration provision in
the Retail Installment Sale Contract as a third-party beneficiary. (Reply, pp.
2:24–25, 3:15–16, 4:5–6, 4:15–16.)
B.
FCA has Failed to Prove the Existence of
an Arbitration Agreement
Plaintiff
FCA has attached several exhibits to its Motion to Compel Arbitration, including
what it purports to be an arbitration agreement. However, the Court has sustained Defendant’s
objections to these exhibits because none of these exhibits were authenticated.
The fact that Mr. Stock, Plaintiff’s custodian
of records, authenticated the exhibits in FCA’s reply is not sufficient. “The general rule of motion practice, .
. . is that new evidence is not permitted with reply papers.” (Jay v.
Mahaffey (2013) 218 Cal.App.4th 1522, 1538-1539 [cleaned up], quoting
Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) “Points raised in the reply brief for the
first time will not be considered, unless good reason is shown for failure to
present them before.” (Campos v.
Anderson (1997) 57 Cal.App.4th 784, 794, fn.3. See also, Balboa Ins. Co. v. Aguirre (1983) 149
Cal.App.3d 1002, 1010; Neighbours v. Buzz
Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; Alcazar v. LAUSD (2018) 29 Cal.App.5th 86,
fn. 5.)
FCA has presented no reason at all – let alone a good reason –
for presenting these new facts in its reply.
Therefore, FCA has failed to prove the
existence of an arbitration agreement.
On this ground alone, FCA’s motion must
be denied.
However,
as indicated below (see sections IV(C) and IV(D), even if the Court were to
consider the arbitration agreement, the Court would deny the motion to compel.
C.
The Arbitration Provision in the Retail
Installment Sale Contract does not Compel Defendant to Arbitrate with FCA
The
Retail Installment Sale Contract contains an arbitration provision. (Decl.
Stock, Exh. A, p. 5.)
The
Court need not restate the exact terms of the arbitration provision because the
Retail Installment Sale contract is only signed by Plaintiff and Defendant
Sierra, not by Defendant FCA.
The
situation here – where a non-signatory automobile manufacturer attempts to
compel a consumer to arbitration – is similar to that in Ford Motor Warranty
Cases (2023), review pending at Ochoa v. Ford Motor Co. (In re
Ford Motor Warranty Cases) (2023) Cal. LEXIS 4235. On the other hand, the
Court finds that Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486 – in
which a signatory automobile dealership moved to compel arbitration based on
the contract that it signed – is neither binding nor persuasive.
The Ford
Motor Warranty Cases held that: (1) equitable estoppel does not apply
because the manufacturer has not shown that the claims against it are founded
in or intertwined with the sale contract; (2) the manufacturer’s warranty
outside of the contract is not a part of the sales contract; (3) the
manufacturer is not a third-party beneficiary of the sale contract; and (4)
there is no agency connection that gives the manufacturer the right to compel
arbitration as an undisclosed principal. (Ford Motor Warranty Cases, supra,
89 Cal.App.5th at pp. 1332, 1335, 1336, 1340.)
Further,
several recent cases have agreed with the holdings in Ford Motor Warranty
Cases. These cases include: Montemayor v. Ford Motor Co. (2023) 92
Cal.App.5th 958, 968, 972; Kielar v. Superior Court (2023) 94
Cal.App.5th 614, 620–621; and Yeh v. Superior Court (2023) 95 Cal.App.5th
264, 269–279. The facts in these cases are also similar to the situation in the
case before us today.
The
Court adopts the reasoning of the Ford Motor Warranty Cases and its progeny
and declines to compel arbitration based on the arbitration provision in the
Retail Installment Sale Contract.
D.
The Arbitration Provision in the
Agreement to Arbitrate
1.
The Language of the Arbitration Provision
The
Agreement to Arbitrate is an arbitration agreement. (Decl. Stock, Exh. B.)
The
Agreement to Arbitrate states in pertinent part:
Notice of Agreement to Arbitrate
Pursuant
to the Agreement to Arbitrate contained below, you agree that you or FCA will
resolve any dispute through a neutral, binding arbitration process and not by a
court action.
Agreement to Arbitrate
Please
carefully read this agreement to arbitrate, which applies to any dispute
between you and FCA US LLC and its affiliates (together ‘FCA,’ ‘we’ or ‘us’).
If
you have a concern or dispute, please send a written notice describing it and
your desired resolution to FCA US Office of the General Counsel, 1000 Chrysler
Drive, CIMS 485-13-62, Auburn Hills, MI 48326-2766.
If
your concern or dispute is not resolved within 60 days, you agree that any
dispute arising out of or relating to any aspect of the relationship between
you and FCA will not be decided by a judge or jury but instead by a single
arbitration administered by the American Arbitration Association (AAA)
under its Consumer Arbitration Rules in effect at the time you signed
this agreement. This includes claims arising out of your warranty and claims
arising before this Agreement, such as claims related to statements about our
products.
We
will pay all AAA fees and costs for any arbitration, which will be held in the
city or county of your residence. To learn more about the rules and how to begin
an arbitration, you may call any AAA office or go to www.adr.org.
The
arbitrator may resolve only disputes between you and FCA and may not
consolidate claims without the consent of all parties. You and FCA may bring
claims against the other only in your or its individual capacity and not as a
plaintiff or class member in any class or representative action. The arbitrator
cannot hear class or representative claims on behalf of others purchasing or
leasing FCA vehicles. If a court or arbitrator decides that any part of this
agreement to arbitrate cannot be enforced as to a particular claim for relief
or remedy (such as declaratory relief), then that claim or remedy (and only
that claim or remedy) shall be severed and must be brought in court and any
other claims must be arbitrated.
If
you prefer, you may instead take an individual dispute to small claims court.
You
may opt out of arbitration within 30 days after signing this agreement by
sending a letter to: FCA US Office of the General Counsel, 1000 Chrysler Drive,
CIMS 485-13-62, Auburn Hills, MI 48326-2766, stating your name, Vehicle
Identification Number, and intent to opt out of the arbitration provision. If
you do not opt out, then this agreement to arbitrate is binding.
YOU
AGREE TO THE TERMS OF THIS CONTRACT. YOU CONFIRM THAT BEFORE YOU SIGNED THIS
CONTRACT, WE GAVE IT TO YOU, AND YOU WERE FREE TO TAKE IT AND REVIEW IT. YOU
ACKNOWLEDGE THAT YOU HAVE READ BOTH SIDES OF THIS CONTRACT BEFORE SIGNING
BELOW. YOU CONFIRM THAT YOU RECEIVED A COMPLETELY FILLED-IN COPY WHEN YOU
SIGNED IT.
(Decl. Stock, Exh. B.)
2.
Plaintiff’s Arguments regarding Consent,
Consideration, and Estoppel are not Persuasive
Plaintiff
argues that there was neither consent nor consideration for the Agreement to
Arbitrate. Plaintiff also argues that it cannot be estopped.
The
Court disagrees with these arguments.
Plaintiff
clearly signed the Agreement to Arbitrate, indicating his consent. Further,
Defendant FCA correctly notes that there is consideration. Specifically, the
sale of the car and the warranties provided with it are part of the
consideration.
As
to equitable estoppel, Plaintiff is correct regarding the arbitration provision
in the Retail Installment Sale Contract but not regarding the Agreement to
Arbitrate. In the latter, Defendant FCA is alleged party, not Defendant Sierra.
Thus, equitable estoppel is inapplicable.
3.
The
Arbitration Agreement is Unconscionable
Plaintiff’s
remaining argument is that the Agreement to Arbitrate is unconscionable.
a.
Legal Standard
“Agreements to arbitrate may be
invalidated if they are found to be unconscionable.” (Fitz v. NCR Corp.
(2004) 118 Cal.App.4th 702, 713, citations omitted.)
“Unconscionability consists of
both procedural and substantive elements. The procedural element addresses the
circumstances of contract negotiation and formation, focusing on oppression or
surprise due to unequal bargaining power. Substantive unconscionability
pertains to the fairness of an agreement's actual terms and to assessments of
whether they are overly harsh or one-sided. (Pinnacle Museum Tower Ass’n v.
Pinnacle Mkt. Dev. (US), LLC (2012) 55 Cal.4th 223, 246, citations
omitted.)
“‘The prevailing view is that
[procedural and substantive unconscionability] must both be present in
order for a court to exercise its discretion to refuse to enforce a contract or
clause under the doctrine of unconscionability.’ But they need not be present
in the same degree. ‘Essentially a sliding scale is invoked which disregards
the regularity of the procedural process of the contract formation, that
creates the terms, in proportion to the greater harshness or unreasonableness
of the substantive terms themselves.’ In other words, the
more substantively oppressive the contract term, the less evidence of
procedural unconscionability is required to come to the conclusion that the
term is unenforceable,
and vice versa. (Armendariz v. Found. Health Psychcare Servs., Inc. (2000)
24 Cal.4th 83, 114, [cleaned up], italics in original, abrogated in part on
other grounds by AT&T Mobility LLC v. Concepcion (2010) 565 U.S.
333.).)
“The party resisting arbitration bears the burden of proving
unconscionability.” (Pinnacle, supra, 55 Cal.4th at p.
247, citation omitted.)
“Moreover, courts are
required to determine the unconscionability of the contract ‘at the time it was
made.’” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899,
920, quoting Civ. Code, § 1670.5.)
b.
The Arbitration Agreement is Procedurally
Unconscionable
i.
Legal Standard
“[P]rocedural unconscionability requires oppression or
surprise. Oppression occurs where a contract involves lack of negotiation and
meaningful choice, surprise where the allegedly unconscionable provision is
hidden within a prolix printed form.” (Pinnacle, supra, 55
Cal.4th at p. 247 [cleaned up].)
“The
procedural element of an unconscionable contract generally takes the form of a
contract of adhesion . . . .” (Little v. Auto
Stiegler, Inc. (2003) 29 Cal.4th
1064, 1071.)
ii.
Discussion
The
Agreement to Arbitrate is clearly a contract of adhesion. Despite the language
at the bottom of the agreement that is bolded and capitalized, there is no
doubt that this is a contract of adhesion. The entire contract, including the
Agreement to Arbitrate, is a classic take-it-or-leave-it document that did not
give Plaintiff a meaningful choice or opportunity to negotiate.
A contract can be adhesive when it is presented for signature
on a ‘take it or leave it’ basis and where the other party was given no
opportunity to negotiate any of the preprinted terms in the lease. (See, Gutierrez
v. Autowest, Inc. (2003) 114 Cal.App.4th 77; Sanchez v. Valencia Holding
Co., LLC (2011) 201 Cal.App.4th 74, 90.)
“Absent unusual circumstances, a contract offered on a
take-it-or-leave-it basis is deemed adhesive, and a commercial transaction
conditioned on a party‘s acceptance of such a contract is deemed procedurally
unconscionable.” (Vasquez v. Greene
Motors, Inc. (2013) 214 Cal.App.4th 1172, 1184.)
The
Court finds that the Agreement to Arbitrate is procedurally unconscionable.
c.
The Arbitration Agreement is Substantively
Unconscionable
i.
Legal Standard
“Substantive
unconscionability focuses on overly harsh or one-sided results. In assessing
substantive unconscionability, the paramount consideration is mutuality.” (Fitz,
supra, 118 Cal.App.4th at p. 723 [cleaned up].)
ii.
Discussion
The
Agreement to Arbitrate is almost entirely devoid of any mutuality.
Specifically, the Agreement to Arbitrate binds Plaintiff to arbitration while
it seemingly gives Defendant FCA complete freedom to choose between arbitration
and court.
According
to the text of the Agreement to Arbitrate:
· “Pursuant
to the Agreement to Arbitrate contained below, you agree
that you or FCA will resolve any dispute through a neutral, binding arbitration
process and not by a court action.”
· “If
your concern or dispute is not resolved within 60 days, you
agree that any dispute arising out of or relating to any aspect of the
relationship between you and FCA will not be decided by a judge or jury . . .
.”
·
“If you prefer, you
may instead take an individual dispute to small claims court.” (Decl. Stock,
Exh. B [emphases added].)
Nothing
in the Agreement to Arbitrate binds Defendant FCA to arbitrate. It is
not even clear that Defendant FCA has given its consent to arbitration. Indeed,
the language of this agreement seemingly gives Defendant FCA the ability to
choose whether to file a case in court or with an arbitrator.
Even
the first, bolded line of the “Notice of Agreement to Arbitrate” is ambiguous. This line says
“[p]ursuant
to the Agreement to Arbitrate contained below, you agree that you or FCA
will resolve any dispute through a neutral, binding arbitration process and not
by a court action.”
It does
not state that both Plaintiff and FCA “will resolve any dispute through a
neutral, binding arbitration process and not by a court action.” It does not say that both Plaintiff and
FCA agree that they will resolve any dispute through arbitration. Rather, it simply
states that Plaintiff agrees that either he or FCA will resolve any
dispute through arbitration.
It
is also worth noting that the Agreement to Arbitrate is not even signed by
Defendant FCA. The Agreement may be on
FCA’s letterhead (although FCA has presented no evidence of this “fact”) but it
is only signed by Plaintiff.
The
Court finds that the Agreement to Arbitrate is substantively unconscionable.
d.
The Court will not Enforce this
Unconscionable Arbitration Agreement
A contract is unconscionable if there is “an absence of
meaningful choice on the part of one of the parties together with contract
terms which are unreasonably favorable to the other party.” (Baltazar v.
Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243.)
“The ultimate issue in every case is whether the terms of the
contract are sufficiently unfair, in view of all relevant circumstances, that a
court should withhold enforcement.” (Magno v. The College Network, Inc.
(2016) 1 Cal.App.5th 277, 285.)
As
indicated above, the Court finds the Agreement to Arbitrate both procedurally
and substantively unconscionable. Further, the Court finds that it would be impossible
to sever the unconscionable clauses so as to save can save this agreement.
“[U]pholding this type of agreement with multiple
unconscionable terms would create an incentive for [a manufacturer] to draft a
onesided arbitration agreement in the hope [consumers] would not challenge the
unlawful provisions, but if they do, the court would simply modify the
agreement to include the bilateral terms the [manufacturer] should have
included in the first place.” (Mills
v. Facility Solutions Group, LLC (2022) 84 Cal.App.5th 1035, 1045.)
The
Court declines to compel arbitration: the
Agreement to Arbitrate is both procedurally and substantively unconscionable. Further, any semblance of mutuality is belied
by the explicit terms of the Agreement to Arbitrate – an agreement that was
drafted by Defendant FCA.
V.
Conclusion
For
the reasons stated above in sections IV(B) and IV(D), FCA’s Motion to Compel Arbitration
is DENIED.
Case Number: 23STCV12094 Hearing Date: November 14, 2023 Dept: 58
Judge Bruce G.
Iwasaki
Department
58
Hearing
Date: November 14, 2023
Case
Name: Annoxmimbar v. The
County of Los Angeles
Case
No.: 23STCV12094
Matter: Demurrer
Moving
Party: Defendant
County of Los Angeles
Responding
Party: None
Tentative Ruling: The
Demurrer to the Amended Complaint is sustained without leave to amend.
On May 30, 2023, Plaintiff Mallium Annoxmimbar
(Plaintiff) filed a Complaint against “the City and the County of Los Angeles.”
On July 24, 2023, Defendant County
of Los Angeles (County) filed a demurrer the Complaint. No opposition was filed.
The demurrer was sustained with leave to
amend.
On October 4, 2023, Plaintiff filed
a 108-page “Complaint Statement Amended.” On October 6, 2023, the County filed
a demurrer. That demurrer is the matter before the Court, set for hearing on
November 14, 2023.
But on October 9, 2023, Plaintiff
filed a 61-page “Complaint Statement.” On October 19, 2023, the City of Los
Angeles demurred to this Complaint. That demurrer is set for hearing on
December 5, 2023.
On October 31, 2023, Plaintiff filed
a 47-page “Complaint Statement Cross-Complaints & Additional Concerns.”
The Demurrer to the October 4, 2023
“Complaint Statement Amended” is sustained without leave to amend. The Court
will strike Plaintiff’s subsequent filings, presumably which were intended to
be amended pleadings, pursuant to Code of Civil Procedure section 436. The December 5, 2023 hearing is taken off
calendar. This case is dismissed.
Legal Standard for
Demurrers
A demurrer is an objection to a
pleading, the grounds for which are apparent from either the face of the
complaint or a matter of which the court may take judicial notice. (Code
Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) The purpose of a demurrer is to challenge the
sufficiency of a pleading “by raising questions of law.” (Postley v.
Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a
pleading, for the purpose of determining its effect, its allegations must be
liberally construed, with a view to substantial justice between the parties.”
(Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court
liberally construes the complaint to determine whether a cause of action has
been stated. (Picton v. Anderson Union High School Dist. (1996) 50
Cal.App.4th 726, 733.)
Allegations
in the Complaint
Defendant
County argues the allegations are entirely unintelligible and uncertain. Defendant’s
demurer based on uncertainty is – once again – well-taken.
Code of Civil Procedure section 430.10 establishes
that a pleading that is “uncertain” is subject to demurrer, defining
“uncertain” to include “ambiguous and unintelligible.” (Code Civ. Proc., §
430.10, subd. (f).) However, a demurrer based on uncertainty is disfavored and
will be strictly construed, even when the pleading is uncertain in some
respects, because ambiguities can be clarified under modern discovery
practices. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th
612, 616.)
Nonetheless, a demurrer for uncertainty is properly
sustained where the complaint is so confusing that the defendant's ability to
understand the complaint is impaired. (Cf. Williams v. Beechnut Nutrition
Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 [though “inconvenient, annoying
and inconsiderate,” lack of labels for causes of action did not substantially
impair defendant's ability to understand complaint, so demurrer on ground of
uncertainty should have been overruled].)
Here,
the Amended Complaint is completely devoid of any comprehensible cause of
action. Instead, the Amended Complaint
contains only a litany of unrelated facts pertaining to Plaintiff’s personal
history dating back to when Plaintiff was 12-years-old. The Amended Complaint
is uncertain.
Further,
the Court declines to grant leave to amend; Plaintiff’s subsequent filings
indicate that it is not reasonably possible for Plaintiff to amend to cure
these defects and state a claim.
Conclusion
The demurrer is sustained without
leave to amend. The case is dismissed with prejudice. Accordingly, Plaintiff Annoxmimbar is ordered
to file no further pleadings in this matter. Should Plaintiff seek to file any
further pleadings in this case, the Court will set an order to show cause why
he should not be ordered to pay sanctions up to $1,000 and why he should not be
deemed a vexatious litigant.
Defendant County shall give notice
of this order, including to counsel for the City of Los Angeles.
Case Number: 23STCV12746 Hearing Date: November 13, 2023 Dept: 54
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Superior Court of California
County of Los Angeles
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John UNB Doe, et al.,
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Plaintiffs,
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Case No.:
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23STCV12746
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vs.
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Tentative Ruling
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City of Santa Monica, et al.,
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Defendants.
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Hearing Date:
November 13, 2023
Department 54,
Judge Maurice A. Leiter
Demurrer to
First Amended Complaint
Moving Party: Defendant
City of Santa Monica
Responding
Party: Plaintiffs John UNB Doe, John USS Doe and John UNG Doe
T/R: DEFENDANT’S DEMURRER IS OVERRULED.
DEFENDANT TO
FILE AND SERVE AN ANSWER TO THE FIRST AMENDED COMPLAINT WITHIN 30 DAYS OF
NOTICE OF RULING.
DEFENDANT TO NOTICE.
If the parties
wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing
counsel (or self-represented party) before 8:00 am on the day of the
hearing.
The Court considers the moving papers, opposition, and reply.
BACKGROUND
On July 3, 2023, Plaintiffs John UNB Doe, John USS Doe, and John UNG Doe
filed the operative first amended complaint against Defendants City of Santa
Monica and Santa Monica Police Activities League, asserting causes of action
for (1) sexual assault; (2) negligence; (3) negligent failure to educate, train
or warn; and (4) violation of the Bane Act. Plaintiffs allege they were
sexually abused as children by City of Santa Monica police officer Eric Uller
while attending the City’s youth programing.
ANALYSIS
A demurrer to a complaint may be taken
to the whole complaint or to any of the causes of action in it. (CCP § 430.50(a).) A demurrer challenges only the legal
sufficiency of the complaint, not the truth of its factual allegations or the
plaintiff's ability to prove those allegations.
(Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.
App. 4th 726, 732.) The court must treat
as true the complaint's material factual allegations, but not contentions,
deductions or conclusions of fact or law.
(Id. at 732-33.) The
complaint is to be construed liberally to determine whether a cause of action
has been stated. (Id. at 733.)
Defendant demurs to the first amended complaint on the ground Plaintiffs
did not comply with the claim presentation requirements of the Government
Claims Act. Defendant demurs to the fourth cause of action for violation on the
ground that it is barred by the statute of limitations.
The California Legislature passed
AB 218 in 2019, which amended the Government Claims Act to exempt from the
claim presentation requirements “[c]laims made pursuant to Section 340.1 of the
Code of Civil Procedure for the recovery of damages suffered as a result of
childhood sexual assault” regardless of the date the wrongful conduct occurred.
Prior to AB 218, only claims that occurred after January 1, 2009 were exempt.
Under AB 218, Plaintiffs were not required to comply with the claim
presentation requirements.
Defendant asserts that AB 218 violates the California Constitution by
retroactively imposing liability on a past occurrence. Defendant cites no cases
directly on point, but there is recent authority rejecting Defendant’s
arguments. (See Coats v. New Haven Unified School District (2020) 46
Cal.App.5th 415, 425-31 [rejecting constitutional challenge to AB 218.]) The
motion cannot be granted on this basis.
CCP § 340.1 acts to extend the statute of limitations for “an action for
recovery of damages suffered as a result of childhood sexual assault.”
Plaintiffs’ Bane Act cause of action is for recovery of damages resulting from
childhood sexual assault. The statutes of limitations for causes of action that
do not arise from childhood sexual assault do not apply here.
Defendant’s demurrer is OVERRULED.
Case Number: 23STCV12943 Hearing Date: November 14, 2023 Dept: 58 Judge Bruce G. Iwasaki
Department 58
Hearing Date: November
14, 2023
Case Name: Luis Alberto Martinez v. Orkid Plaza, LLC
Fatima
Cervantes v. Orkid Plaza, LLC
Jorge
Arreola v. Orkid Plaza, LLC
Eloina
Mendez Chavez v. Orkid Plaza, LLC
Case No.: 23STCV12943
23STCV12969
23STCV12999
23STCV15505
Matter: Notice
of Related Case
Moving Party: Defendant
Orkid Plaza, LLC
Responding Party: None
Tentative Ruling: The four cases are ordered not related.
All the cases
arise from Plaintiffs’ respective landlord-tenant relationships with Orkid
Plaza, LLC.
Defendant
Orkid Plaza, LLC filed a notice of related case, indicating that case number 23STCV12943
(Luis Alberto Martinez v. Orkid Plaza, LLC) in Department 58 is related
to case number 23STCV12969 (Fatima Cervantes v. Orkid Plaza, LLC) in
Department 24, case number 23STCV12999 (Jorge Arreola v. Orkid Plaza, LLC)
in Department 16, and case number 23STCV15505 (Eloina Mendez Chavez v. Orkid
Plaza, LLC) in Department 54.
The
four cases are not related. (Cal. Rules of Court, rule
3.300(a).)
DISCUSSION
Cases at Issue:
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Case Name
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Case Number
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Filing Date
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Dept.
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1. Luis Alberto Martinez v. Orkid Plaza, LLC
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23STCV12943
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6/7/23
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58
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2. Fatima Cervantes v. Orkid Plaza, LLC
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23STCV12969
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6/7/23
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24
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3. Jorge Arreola v. Orkid Plaza, LLC
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23STCV12999
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6/7/23
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16
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4. Eloina Mendez Chavez v. Orkid Plaza, LLC
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23STCV15505
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7/3/23
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54
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Procedural Requirements
If all the
related cases have been filed in one superior court, as it is here, “[w]here
the cases listed in the notice are unlimited civil cases, the judge who has the
earliest filed case must determine whether the cases should be ordered related
and assigned to his or her department.”
(Cal. Rules of Court, rule 3.300(h)(1)(A).)
As 23STCV12943 is the earliest case
having been filed at 9:29 AM, Department 58 shall determine whether the cases
are related.
The notice
of related case must be filed in all pending cases listed in the notice and
must be served on all parties in those cases. (Cal. Rules of Court, rule
3.300(d).) Defendant Orkid Plaza, LLC filed a notice of related case in all the
cases.
A party may
respond to a notice of related cases within five days of service on the
party. (Cal. Rule of Court 3.300(g).) No objections were
filed to the notice of related cases.
The notices of related cases are
procedurally proper.
Substantive Requirements
The inquiry
on a notice of related cases is whether the cases at issue (1) involve the same
parties and are based on the same or similar claims; (2) arise from the same or
substantially identical transactions, incidents, or events requiring the
determination of the same or substantially identical questions of law or fact;
(3) involve claims against, title to, possession of, or damages to the same
property; or (4) are likely for other reasons to require substantial
duplication of judicial resources if heard by different judges. (Cal. Rules of
Court, rule 3.300(a)(1)-(4).)
The
cases arise from the same nucleus of facts. Here, the Complaints contain overlapping
claims that are based on the same nucleus of facts –the physical conditions of
the building, landlord Defendant’s alleged failure to properly maintain the
habitability of the building and comply with the law and a fire that occurred
in the building in June 2022.
In 23STCV12943, Plaintiff Martinez alleges
numerous statutory habitability violations based on his tenancy with Defendant Orkid
Plaza, LLC. Additionally, he alleges claims for nuisance, emotional distress,
negligence, and violations of Health and Safety Code section 13007. These claims
are based on allegations of a unsanitary/unsafe living conditions in his unit
and in common areas. Further, the Complaint alleges that there was major fire
in the building on June 12, 2022 as result of Defendant’s negligence; the fire
destroyed many of Plaintiff’s belongings.
In 23STCV12969, Plaintiff Cervantes does
not allege any statutory habitability violations against Defendant Orkid Plaza,
LLC arising from her tenancy. However, like Plaintiff Martinez, she alleges claims
for emotional distress, negligence, and violations of Health and Safety Code
section 13007 arising from unsanitary/unsafe living conditions. She also alleges
emotional and property damages from the fire that occurred on June 12, 2022.
In 23STCV12999, Plaintiff Arreola
alleges the same statutory habitability violations as Plaintiff Martinez based
on his tenancy with Defendant Orkid Plaza, LLC. Additionally, he alleges claims
for nuisance, emotional distress, negligence, and violations of Health and
Safety Code section 13007. These claims are based on allegations of
unsanitary/unsafe living conditions in his unit and in common areas. Further,
the Complaint alleges that there was major fire in the building on June 12,
2022 that occurred as result of Defendant’s negligence; the fire destroyed many
of Plaintiff’s belongings and caused him emotional distress.
In 23STCV15505, Plaintiffs Eloina
Mendez Chavez and Adan Ivan Chavez do not allege any statutory habitability
violations against Defendant Orkid Plaza, LLC arising from their tenancy. Represented
by different attorneys than the other cases, Plaintiffs allege a breach of
contract, breach of warranty of habitability and wrongful eviction. These claims
arise from allegations that Defendant Orkid maintained the premises in
unsanitary/unsafe condition based on a rodent infestation, lack of electricity,
and lack of heating (among other issues). They also allege property damage and
constructive eviction as result of the fire that occurred on June 12, 2022.
The
cases involve overlapping parties – Defendant Orkid Plaza, LLC– and similar habitability
related claims based on similar conditions in the building, as well as the same
singular catastrophic event – the June 2022 fire to the building. However, each
case involves a different tenant and different units. The defects in each unit
are separate from each other, may have different causes, and may have occurred over
different periods of time. Further, the evidentiary showing for each party to
demonstrate the cause of their injury and their damages will be separate and
distinct. Therefore, the Court finds the cases are not related under California
Rule of Court 3.300, subd. (a).
Defendant
Orkid Plaza, LLC to give notice in each of the cases listed above.
Case Number: 23STCV14020 Hearing Date: November 15, 2023 Dept: 32
|
ALMA ROSA HERNANDEZ,
Plaintiff,
v.
LOS ANGELES COUNTY HIGH DESERT REGIONAL
HEALTH CENTER, et al.,
Defendants.
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Case No.: 23STCV14020
Hearing Date: November 15, 2023
[TENTATIVE]
order RE:
defendant county of los angeles’ demurrer
to first amended complaint
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BACKGROUND
On June 16, 2023, Plaintiff Alma
Rosa Hernandez filed this action against Defendants County of Los Angeles (erroneously
sued as Los Angeles County High Desert Regional Health Center) and SEIU Local
721. The complaint was labeled as one for discrimination and violation of
labor/union rights. However, the complaint contained no factual allegations. Instead,
the complaint merely attached prior complaints filed with the Civil Rights
Department and Labor Commissioner’s Office. On August 21, 2023, the Court sustained
the County’s demurrer with leave to amend. Plaintiff filed the operative First
Amended Complaint on September 8, 2023.
On September 29, 2023, the County filed
the instant demurrer to the FAC. Plaintiff has not filed an opposition.
LEGAL STANDARD
A demurrer for sufficiency tests whether a
pleading states a cause of action or defense. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
In a demurrer proceeding, the defects must be apparent on the face of the
pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a
demurrer hearing is whether the pleading, as it stands, unconnected with
extraneous matters, states a cause of action or defense. (Hahn, supra, 147 Cal.App.4th at 747.)
MEET AND CONFER
Before filing a demurrer or a motion to strike,
the demurring or moving party is required to meet and confer with the party who
filed the pleading demurred to or the pleading that is subject to the motion to
strike for the purposes of determining whether an agreement can be reached
through a filing of an amended pleading that would resolve the objections to be
raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes
that Defendant has complied with the meet and confer requirement. (See Ortega
Decl.)
DISCUSSION
The FAC contains no factual
allegations from which any cause of action may be inferred. The FAC summarizes
the law on motions to strike and administrative exhaustion. The FAC also cites
to federal regulations and the California Civil Code for the proposition that
an employer must keep employee information safe. The complaint concludes with
the statement: “I was discriminated by my employer and I am pleading with you
for a fair trial.” Plaintiff cannot plead a cause of action by merely citing
different laws, or by making the conclusory statement that she was
discriminated against. As with the original complaint, the FAC contains no facts
supporting a discrimination claim or any other cause of action.
CONCLUSION
Defendant County of Los Angeles’s
demurrer is SUSTAINED with leave to amend.
Case Number: 23STCV15061 Hearing Date: November 13, 2023 Dept: 30 Dept. 30
Calendar No.
Ramos vs. Cornerstone
Staffing Solutions, Inc., et. al.,
Case No. 23STCV15061
Tentative Ruling
re: Defendants’ Motion to Compel
Arbitration
Defendants
Cornerstone Staffing Solutions, Inc., Jones Stephen’s Corp., and Ferguson
Enterprises, LLC (collectively, Defendants) move to compel Plaintiff
Daniel Ramos (Plaintiff) to binding arbitration, and to stay this action
pending completion of arbitration. The motion is denied.
“On petition of a party to an
arbitration agreement alleging the existence of a written agreement to
arbitrate a controversy and that a party thereto refuses to arbitrate such
controversy, the court shall order the petitioner and the respondent to arbitrate
the controversy if it determines that an agreement to arbitrate the controversy
exists, unless it determines that: (a) The right to compel arbitration has been
waived by the petitioner; or (b) Grounds exist for the revocation of the
agreement.” (Code Civ. Proc. § 1281.2,
subds. (a), (b).)
A proceeding to compel arbitration
is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance
Co. (1975) 14 Cal.3d 473, 479.) Such enforcement may be sought by a party
to the arbitration agreement. (Code Civ. Proc., § 1280, subd. (e)(1).)
The
petition to compel arbitration functions as a motion and is to be heard in the
manner of a motion, i.e., the facts are to be proven by affidavit or
declaration and documentary evidence with oral testimony taken only in the
court’s discretion. (Code Civ. Proc., §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th
394, 413–414.) The petition to compel must set forth the provisions of the
written agreement and the arbitration clause verbatim, or such provisions must
be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330;
see Condee v. Longwood Mgmt. Corp.
(2001) 88 Cal.App.4th 215, 218 (Condee).)
Once
petitioners allege that an arbitration agreement exists, the burden shifts to
respondents to prove the falsity of the purported agreement, and no evidence or
authentication is required to find the arbitration agreement exists. (See Condee, supra, 88 Cal.App.4th at p. 219.) However, if the existence of the
agreement is challenged, “petitioner bears the burden of proving [the
arbitration agreement’s] existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities
Corp. (1996) 14 Cal.4th 394, 413; see also Espejo v. Southern California Permanente Medical Group (2016) 246
Cal.App.4th 1047, 1058–1060.)
In this action, Plaintiff brings
claims against Defendants for whistleblower retaliation under the Labor Code,
unsafe workplace violation, assault, battery, and wrongful termination.
Plaintiff’s allegations arise from his employment with Defendant Cornerstone
Staffing Solutions, Inc. beginning March 2022. (Comp. ¶ 18.)
Defendants seek to compel Plaintiff
to arbitration based on a document entitled, “Notice to Employees About Our
Mutual Arbitration Policy,” which states that “Cornerstone Staffing Solutions,
Inc. . . . has adopted and implemented a new arbitration policy requiring
voluntary mutual binding arbitration of disputes for all employees, regardless
of length of service . . . it will govern all existing or future disputes
between you and the Company.” (Morrison Decl. ¶ 5, Ex. A [6].) The document
includes an “Employee Agreement to Arbitrate” (the Agreement), providing, “I
acknowledge that I have received and reviewed a copy of Cornerstone Staffing
Solutions, Inc.’s Mutual Arbitration Policy (‘MAP’), and I understand that it
is a condition of my employment. I agree that it is my obligation to make use
of the MAP and to submit to final and
binding arbitration any and all claims and disputes that are related in any way
to my employment, the termination of my employment with the Company, or my
assignment to a Customer, except as otherwise set forth in the MAP.” (Id. [7].)
The Agreement shows Plaintiff’s electronic signature, dated March 8, 2022.
Plaintiff
argues that Defendants have failed to establish the existence of an arbitration
agreement, because there is insufficient evidence verifying Plaintiff’s
electronic signature.
Gamboa v. Northeast Community Clinic (2021) 286 Cal.Rptr.3d 891, explains the three-step
burden-shifting process for determining the existence of an arbitration
agreement as follows: “First, the moving party bears the burden of producing
‘prima facie evidence of a written agreement to arbitrate the controversy.’
[Citation.] The moving party ‘can meet its initial burden by attaching to the
[motion or] petition a copy of the arbitration agreement purporting to bear the
[opposing party's] signature.’ [Citation.] Alternatively, the moving party can
meet its burden by setting forth the agreement's provisions in the motion.
[Citations.] For this step, ‘it is not necessary to follow the normal
procedures of document authentication.’” (Id. at 896.)
“If the moving party
meets its initial prima facie burden and the opposing party disputes the
agreement, then in the second step, the opposing party bears the burden of
producing evidence to challenge the authenticity of the agreement.” (Ibid.
[citing Condee v. Longwood Management Corp.
(2001) 88 Cal.App.4th 215, 219].) “The opposing party can do this in several
ways. For example, the opposing party may testify under oath or declare under
penalty of perjury that the party never saw or does not remember seeing the
agreement, or that the party never signed or does not remember signing the
agreement.” (Ibid.)
“If the opposing party meets its
burden of producing evidence, then in the third step, the moving party must
establish with admissible evidence a valid arbitration agreement between the
parties. The burden of proving the agreement by a preponderance of the evidence
remains with the moving party.” (Ibid.)
Here, the
Agreement attached to the Morrison Declaration is sufficient to satisfy
Defendants' initial burden to produce prima facie evidence of a written
agreement to arbitrate.
Plaintiff
has produced sufficient evidence to meet his burden on the second step.
Plaintiff states in his declaration, “[t]o my knowledge, I did not consent to
sign documents electronically in connection with my employment with any of the
Defendants in this action.” (Ramos Decl. ¶ 3.) Plaintiff further states, “I
have no memory of seeing the Notice to Employees About Our Mutual Arbitration
Policy and the Employee Agreement to Arbitrate. . . . That document does not
contain my signature in any form.” (Ramos Decl. ¶ 4.) This evidence satisfies
Plaintiff’s burden to challenge the authenticity of the Agreement. (Ruiz v.
Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846 [“In the face
of [employee's] failure to recall signing the 2011 agreement, [employer] had
the burden of proving by a preponderance of the evidence that the electronic
signature was authentic”].)
Accordingly,
for the third step, Defendants “must establish with admissible evidence a valid
arbitration agreement between the parties” by a preponderance of the evidence.
(Gamboa, supra, 88 Cal.App.4th at 219.) The procedure for
authentication of an electronic signature is provided under the Uniform Electronic
Transactions Act (UETA), Civ. Code §§ 1633.1 et seq. (See Ruiz,
232 Cal.App.4th at 843.) Under the
UETA, an electronic signature “is attributable to a person if it was the act of
the person. The act of the person may be shown in any manner, including a
showing of the efficacy of any security procedure applied to determine the
person to which the electronic record or electronic signature was
attributable.” (Civ. Code, § 1633.9, subd. (a).) The effect of such electronic
signature “is determined from the context and surrounding circumstances at the
time of its creation, execution, or adoption, including the parties’
agreement.” (Civ. Code., § 1633.9, subd. (b).)
In Ruiz, the employer’s declaration seeking to authenticate the
plaintiff’s electronic signature on an arbitration agreement was deemed
insufficient under the UETA, where the declarant “summarily asserted” plaintiff
electronically signed the agreement and “did not explain how she arrived at
that conclusion or inferred [plaintiff] was the person who electronically
signed the agreement” or that the electronic signature “was ‘the act’” of the
plaintiff. (232 Cal.App.4th at 844-845.) By contrast, in Espejo v. Southern
California Permanente Medical Group, the “declaration offered the critical
factual connection that the declarations in Ruiz lacked,” by detailing
“security precautions regarding transmission and use of an applicant’s unique
username and password, as well as the steps an applicant would have to take to
place his or her name on the signature line” of the agreement. (Espejo v.
Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047,
1062.)
Here, Defendants’ initial evidence failed to show that Plaintiff
electronically signed the Agreement. Kara Morrison, Defendants’ Director of
Human Resources, asserted that Plaintiff electronically signed the Agreement on
March 8, 2022, but gave no explanation of “how she arrived at that conclusion
or inferred [Plaintiff] was the person who electronically signed the agreement.”
(Ruiz, 232 Cal.App.4th at 845.)
With their Reply, Defendants
present a supplemental declaration from Morrison. In it, she states that
Plaintiff electronically signed a number of other documents on March 8, 2022,
including a “Disclaimer” whereby Plaintiff agreed to give his consent
electronically. (Morrison Supp. Decl. ¶¶ 2-6, Ex. A.)
This evidence still fails to show
that the electronic signature on the Agreement was “the act” of Plaintiff. Morrison’s
supplemental declaration purports to verify Plaintiff’s signature on the
Agreement with the claim that Plaintiff also signed various other documents
electronically on March 8, 2022. But Morrison has not properly verified
Plaintiff’s electronic signature on these other documents in the first place; as
with the Agreement, she merely “summarily assert[s]” that Plaintiff signed them.
(Ruiz, 232 Cal.App.4th at 844.) She does not explain how Plaintiff’s
electronic signature “could only have been placed on the [agreements] ... by a
person using [Plaintiff’s] ‘unique login ID and password,” or “that all
[Defendants’] employees were required to use their unique login ID and password
when they logged into the HR system and signed electronic forms and
agreements.” (Ibid.) The supplemental declaration provides no
information regarding the “security
precautions regarding transmission and use of an applicant’s unique username
and password, as well as the steps an applicant would have to take to place his
or her name on the signature line.” (Espejo, 246 Cal.App.4th at 1062.)
Morrison also claims that
Plaintiff’s application included “personal information that only he could have
entered, including his address, date of birth, phone number, email
address, past job information, education, among others.” (Morrison Supp. Decl.
¶ 4, Ex. B.) However, it does not appear that any of this is information that
only Plaintiff could have known (compared to, e.g., a unique username and
password), and there is no evidence confirming that the information listed is
accurate. Because Defendants fail to authenticate Plaintiff’s signature on the
Agreement, they have not established the existence of an agreement to arbitrate
with admissible evidence. Accordingly, the motion is denied.
Case Number: 23STCV15075 Hearing Date: November 13, 2023 Dept: 32
|
KENDALL BLEVENS,
Plaintiff,
v.
GREAT MAPLE, LLC, et
al.,
Defendants.
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Case No.: 23STCV15075
Hearing Date: November 13, 2023
[TENTATIVE]
order RE:
defendants’ motion to compel arbitration
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BACKGROUND
On June 28, 2023, Plaintiff Kendall
Blevens filed this action asserting (1) wrongful discharge in violation of
public policy, (2) Labor Code retaliation, and (3) battery. Plaintiff alleges
that he was retaliated against and ultimately terminated after reporting a manager’s
inappropriate touching.
On October 17, 2023, Defendants
filed the instant motion to compel arbitration. Plaintiff filed his opposition
on October 30, 2023. Defendants filed their reply on November 3, 2023.
LEGAL STANDARD
The Federal Arbitration Act (“FAA”) states
that “[a] written provision in any . . . contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter arising out of such
contract or transaction . . . shall be valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any
contract.” (9 U.S.C. § 2.) The term “involving commerce” is interpreted to mean
simply “affecting commerce” to give the FAA the broadest reach possible, and
does not require a transaction that is actually “within the flow of interstate
commerce.” (See
Allied-Bruce Terminix Co. v. Dobson (1995) 513 U.S. 265, 273-74; Citizens
Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56.) Moreover, parties may agree
to apply the FAA notwithstanding any effect on interstate commerce. (Victrola
89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355.)
“On petition of a party to an arbitration
agreement alleging the existence of a written agreement to arbitrate a controversy
and that a party to the agreement refuses to arbitrate that controversy, the
court shall order the petitioner and the respondent to arbitrate the
controversy if it determines that an agreement to arbitrate the controversy exists….”
(Code Civ. Proc, § 1281.2.) “The party seeking arbitration bears the burden of
proving the existence of an arbitration agreement, and the party opposing arbitration
bears the burden of proving any defense, such as unconscionability.” (Pinnacle
Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55
Cal.4th 223, 236.)
DISCUSSION
I.
Existence of a Valid Agreement
“The moving party ‘can meet its initial
burden by attaching to the motion or petition a copy of the arbitration
agreement purporting to bear the opposing party's signature.’” (Gamboa v.
Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165, quoting Bannister
v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-44.)
Plaintiff signed an arbitration agreement
on December 19, 2022 upon the start of his employment. (Def.’s Ex. A.)
Plaintiff does not dispute the existence of the arbitration agreement, its
contents, or the fact that he signed it. Nor does Plaintiff dispute Defendants’
equitable estoppel argument with regards to the defendants that are not
signatories to the agreement. (See Mtn. 14:19-16:13.) Therefore, the Court finds
that Plaintiff agreed to arbitrate the claims at issue and that the agreement
is enforceable by all moving defendants.
II.
The FAA and Labor Code Section 432.6
Plaintiff’s opposition is limited to
arguing that Labor Code section 432.6 bars enforcement of the agreement. Section
432.6 prohibits an employer from requiring an employee to arbitrate FEHA or
Labor Code claims as a condition of employment. However, “[n]othing in this
section is intended to invalidate a written arbitration agreement that is
otherwise enforceable under the Federal Arbitration Act.” (Id., subd.
(f).) Section 432.6 is preempted by the FAA. (Chamber of Commerce of the
United States v. Bonta (9th Cir. 2023) 62 F.4th 473.)
Plaintiff argues that the FAA does
not apply because Defendants have not proven that Plaintiff’s employment
implicated interstate commerce. “But the presence of interstate commerce is not
the only manner under which the FAA may apply. As discussed above, the parties
may also voluntarily elect to have the FAA govern enforcement of the Agreement,
as they did here.” (Victrola 89, LLC, supra, 46 Cal.App.5th at p. 355.)
The agreement here expressly provides for enforcement
under the FAA. (Def.’s Ex. A, § D(1).) Plaintiff acknowledges this provision but
argues that it is a legal conclusion that provides no evidence of interstate
commerce. (Opp. 2:19-3:4.) This argument is without merit. As explained in Victrola,
the FAA applies if the parties agree to apply it, even without proving
interstate commerce. Here, because the parties agreed to apply the FAA, Defendants
need not independently prove interstate commerce.
Because the FAA applies to the agreement,
it preempts Labor Code section 432.6. Plaintiff presents no other defense against
enforcement of the agreement.
CONCLUSION
Defendants’ motion to compel arbitration
is GRANTED. The case is stayed in its entirety pending the outcome of
arbitration.
Case Number: 23STCV15705 Hearing Date: November 13, 2023 Dept: 28 Having
considered the moving, opposing and reply papers, the Court rules as
follows.
BACKGROUND
On
July 6, 2023, Plaintiffs Andrew Lopez and Jessica Valenzuela filed this action
against Defendants Khachik Gumuryan (“Gumuryan”), Lankershim Towing (“Towing”),
and Does 1-100 for motor vehicle and general negligence.
On
September 8, 2023, Plaintiffs filed a first amended complaint against Gumuryan,
Towing, and Does 1-50 for negligence, negligent hiring, retention, supervision,
and training, and negligent entrustment.
On
October 3, 2023, Gumuryan and Towing (“Defendants”) filed a demurrer to be
heard on November 13, 2023. On October 30, 2023, Plaintiffs filed an
opposition. On November 3, 2023, Defendants filed a reply.
Trial
is currently scheduled for January 2, 2025.
PARTIES’ REQUESTS
Defendants
request that the Court sustain the demurrer.
Plaintiffs
request that the Court overrule the demurrer.
LEGAL STANDARD
“The party against whom a complaint or cross-complaint
has been filed may object, by demurrer or answer as provided in Section 430.30,
to the pleading on any one or more of the following grounds:
* * *
“(e) The pleading does not state facts sufficient to
constitute a cause of action. . . . .”
(Code Civ. Proc., § 430.10,
subd. (e).)
In a
demurrer proceeding, the defects must be apparent on the face of the pleading or
by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for
objection to a complaint, cross-complaint, or answer appears on the face
thereof, or from any matter of which the court is required to or may take
judicial notice, the objection on that ground may be taken by a demurrer to the
pleading”].)
“For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded (i.e., all ultimate
facts alleged, but not conclusions, deductions, or conclusions of facts or
law).” (L. Edmon and C. Karnow, Cal.
Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25,
emphasis omitted (Cal. Practice Guide).)
DISCUSSION
A. The complaint
In their
first amended complaint Plaintiffs allege the following:
1. The accident
On
June 29, 2021, while acting within the scope and course of his employment for
Towing, Gumuryan negligently caused a collision between the tow truck he was driving
and Plaintiffs’ vehicle on the 101 freeway.
“Upon
the low impact collision, Plaintiffs were marginally thrusted forward, and did
not experience any immediate or substantial pain, to the extent that neither
Highway Patrol nor any emergency medical responders were contacted.” (First Amended Complaint ("Complaint") ¶ 17.)
2. Valenzuela
On
June 30, 2021, Valenzuela decided to undergo a medical evaluation at a nearby
hospital because she had begun to experience slight pain in her neck, back, and
hip, which she believed was due to muscle soreness given the low impact of the collision.
At this time, Valenzuela did not believe that this was result of a long-lasting
and/or permanent injury caused by the collision. Valenzuela was examined and
was diagnosed with no obvious trauma or any permanent injury other than mild
sclerosis that was consistent with degenerative change. Valenzuela was
discharged on the same day and was told to take over the counter pain
medication for her slight muscle soreness. (Complaint
¶ 19.)
On
July 2, 2021, believing that her continued slight pain was merely due to muscle
soreness, Plaintiff sought further medical evaluation at another hospital. Valenzuela’s diagnosis was
consistent with the prior June 30, 2021, diagnosis. No obvious trauma or permanent
injury were identified other than the chronic degenerative issues involving her
back and muscle soreness and spasms that the prior medical evaluation and
diagnosis had previously confirmed. (Complaint ¶ 20.)
On
July 7, 2021, Valenzuela saw a chiropractor because she had begun to experience
acute and distressing pain in her shoulder, hips, lower back, and sporadic
severe headaches. (Complaint ¶ 21.)
On September
22, 2021, Valenzuela received a positive diagnosis from her chiropractor of severe, long-lasting, and potentially permanent injuries to her cervical,
lumbar, and thoracic spine. These findings were subsequently confirmed by the
physician she consulted afterwards as latent injuries emanating from the June
30, 2021, collision. (Complaint ¶ 22.)
3. Lopez
On
June 30, 2021, Lopez underwent a medical evaluation at a local urgent care
because he had begun to experience slight pain in his neck and back, which at
that time he believed was due to muscle soreness given the low impact of the collision.
At this time, Lopez did not believe that this
was result of a long-lasting and/or permanent injury caused by the collision.
Lopez was examined and diagnosed with no obvious
trauma or permanent injury other than muscle soreness and spasms consistent
with the low impact of the collision. Lopez was discharged the same day and was
given NSAID medication for his slight muscle soreness. (Complaint ¶ 25.)
Later,
Lopez began to experience acute and distressing pain in his neck and lower
back, an inability to turn his neck, and radiating pain and numbness that would
intermittently spread into his legs. This alarming development compelled Lopez to seek further medical intervention and consult with a physician. (Complaint ¶ 26.)
On August
11, 2021, Lopez received a diagnosis by his physician of severe, long-lasting,
and potentially permanent injuries to his cervical and lumbar spine, lower and
upper extremity radiculopathy, and post traumatic disc bulging, as latent
injuries emanating from the June 30, 2021 collision. (Complaint ¶ 27.)
B. The demurrer
Defendants
argue that Plaintiffs’ complaint, filed July 6, 2023, is barred by the two-year
statute of limitations for negligence claims, which ran on June 29, 2023.
C. Opposition
Plaintiffs
argue “the delayed discovery rule tolls the June 29, 2023, statute of
limitations for Plaintiff Valenzuela, to either July 7, 2023, or September 22,
2023, based on her discovery of her latent and now permanent injuries that were
only discovered through reasonable diligence and manifestation of symptoms in
the weeks following the June 29, 2021, low-impact collision . . . .” (Opposition p. 6.)
Plaintiffs argue the delayed discovery rule tolls the June 29, 2023 statute of
limitations for Lopez to August 11, 2023 “based on his discovery of his latent
and now permanent injuries that that were only discovered through reasonable
diligence and manifestation of symptoms in the weeks following the June 29,
2021, low-impact collision . . . .” (Opposition p. 6.)
D. Analysis
“Where
a demurrer raises the bar of the applicable statute of limitations, the court
assesses whether ‘ “the complaint shows on its face that the statute bars the
action.” ’ ” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th
166, 174 (Czajkowski), quoting E–Fab, Inc. v. Accountants, Inc.
Services (2007) 153 Cal.App.4th 1308, 1315 (E-Fab).) “Such a defect ‘ “must clearly and
affirmatively appear on the face of the complaint; it is not enough that the
complaint shows merely that the action may be barred.” [Citations.]’ ” (Ibid.,
quoting E-Fab, supra, 153 Cal.App.4th at p. 1316.)
When
a plaintiff relies on the discovery rule as an excuse for an apparently belated
filing of a complaint, “ ‘ “the burden of pleading and proving belated
discovery of a cause of action falls on the plaintiff.” ’ ” (Czajkowski,
supra, 208 Cal.App.4th at p. 174, quoting Investors Equity Life
Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1533.)
“More
specifically, to overcome an apparent limitations bar, the plaintiff claiming
delayed discovery of the facts constituting the cause of action has the burden
of setting forth pleaded facts to show ‘ “(1) the time and manner of discovery
and (2) the inability to have made earlier discovery despite reasonable
diligence. The burden is on the plaintiff to show diligence, and conclusory
allegations will not withstand demurrer.” ’ ” (Czajkowski, supra,
208 Cal.App.4th at p. 175, quoting E–Fab, Inc., supra, 153
Cal.App.4th 1308, 1324.)
“
‘[T]he infliction of appreciable and actual harm, however uncertain in amount,
will commence’ the running of the statute of limitations.” (Grisham v.
Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 642, quoting Davies v.
Krasna (1975) 14 Cal.3d 502, 514 (Davies).) “Davies v. Krasna,
which first announced the appreciable harm rule, was concerned that a plaintiff
not delay bringing an action until there was ‘a more certain proof of damages’
. . . .” (Id. at p. 644, quoting Davies,
supra, 14 Cal.3d at p. 515.)
Here,
Plaintiffs sought medical attention on June 30, 2021, the day after the
collision, because they were experiencing what they describe as “slight pain”
in their necks and backs and in Valenzuela’s hip. Plaintiffs attributed their pain to muscle
soreness given the low impact of the collision.
They did not believe the collision had caused long-lasting or permanent
injuries. (Complaint ¶¶ 19, 25.)
Accordingly,
the facts alleged in the complaint show that Plaintiffs suffered appreciable
harm within one day of the collision and they attributed this harm to the
collision. Although the extent of the
injuries became clear only later, their claims accrued on June 30, 2021, when
they experienced appreciable harm. Plaintiffs
filed their complaint more than two years after June 30, 2021. Therefore, the statute of limitations bars
the complaint.
“It
is an abuse of discretion for the court to deny leave to amend where there is
any reasonable possibility that plaintiff can state a good cause of action.” (Cal. Practice
Guide, supra, ¶ 7:129.1, p. 7(l)-60.) “But the court should deny leave to amend
where the facts are not in dispute and no liability exists under substantive
law.” (Id., p. 7(l)-61.) “It is not up to the judge to figure out how
the complaint can be amended to state a cause of action. Rather, the burden is on plaintiff to show in
what manner plaintiff can amend the complaint, and how that amendment will
change the legal effect of the pleading.”
(Id., ¶ 7:130, p. 7(l)-61.)
Although
Plaintiffs request leave to amend, they have not explained how they could amend
the complaint to avoid the limitations problem created by the current complaint’s
allegations. The Court therefore
sustains the demurrer without leave to amend.
CONCLUSION
The
Court SUSTAINS the demurrer of Defendants Khachik
Gumuryan and Lankershim Towing to the first amended complaint of Plaintiffs Andrew Lopez and Jessica Valenzuela without leave to amend.
Moving
parties are ordered to give notice of this ruling.
Moving
parties are ordered to file the proof of service of this ruling with the Court
within five days.
Case Number: 23STCV15742 Hearing Date: November 15, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 15, 2023 Case Name: Perez, et al. v. 701 Pacific, LLC, et al. Case No.: 23STCV15742 Matter: (1) Demurrer (2) Motion to Strike Moving Party: (1) Defendant 701 Pacific, LLC (2) Defendants Ned Bassin and Rosalind S. Bassin, individually and trustees of The Bassin Family Trust Responding Party: Plaintiffs Tonia Perez, Myrical Alexiou, Latesha Silva, Antonio Winston, and Heaven Duran Notice: OK
Ruling: The Demurrer is overruled.
The Motion to Strike is denied.
Moving parties to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
On August 30, 2023, Plaintiffs Tonia Perez, Myrical Alexiou, Latesha Silva, Antonio Winston, and Heaven Duran filed the operative First Amended Complaint (“FAC”) for (1) negligence, (2) tortious breach of the warranty of habitability, (3) breach of implied warranty of habitability, (4) breach of covenant of quiet enjoyment, (5) nuisance, (6) excessive collection of rent, (7) violation of Long Beach Municipal Code § 8.101.030, and (8) intentional infliction of emotional distress.
Demurrer
Defendant 701 Pacific, LLC demurs to the entirety of the FAC for failure to state sufficient facts. When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.) Defendant first argues that the FAC is a sham because the Complaint stated that all Plaintiffs were parties to the subject written lease, but, after Defense counsel pointed out that that was not true, Plaintiffs filed the FAC, which states, in contradictory fashion, that certain Plaintiffs were verbally approved to reside at the premises. The Court does not see this as a sham; it seems that Plaintiffs’ counsel was merely correcting an error. Defendant next argues that the lease required written consent for any additional individuals to reside at the subject property, so only the Plaintiffs specified in the subject lease have standing. This merely raises a factual dispute. Liberally construed, the FAC seems to allege waiver of the written consent requirement by the former owners of the property, Defendants Ned Bassin and Rosalind S. Bassin, individually and trustees of The Bassin Family Trust. Finally, Defendant argues this action is collaterally estopped because of a stipulated judgment in an unlawful detainer action relating to Plaintiff Perez and the subject property. This lacks merit because the stipulated judgment does not specifically address Plaintiffs’ habitability claims. (See Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1171 [“Although the issue of breach of warranty of habitability was raised in the answer to the prior unlawful detainer complaint, the record fails to show it was litigated and determined. The unlawful detainer was resolved by a stipulated judgment giving the landlord less than the relief prayed. The prior stipulated judgment contains no language of comprehensive settlement of all matters between the parties arising from the lease. It basically states only that the landlord shall have $300 and possession by December 1, 1992.”].) Therefore, the Demurrer is overruled. The Request for Judicial Notice is granted. An answer is to be filed within 20 days.
Motion to Strike
Defendants Ned Bassin and Rosalind S. Bassin, individually and trustees of The Bassin Family Trust, seek to strike the FAC’s references to punitive damages. Motions to strike are used to challenge defects in the pleadings not subject to demurrer. Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc. § 435(b)(1).) The 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. (Id. § 437(a).) The Court may strike out any irrelevant, false, or improper matter inserted in any pleading, and strike 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. (Id. § 436.) An “irrelevant” matter includes any “demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Id. § 431.10(b)(3), (c); see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1036-1042.) Punitive damages are available when the plaintiff establishes oppression, fraud, or malice by clear and convincing evidence. (Civ. Code § 3294(a).) Malice means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) In this context, despicable conduct is conduct considered “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715, internal quotation marks omitted.) Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) Fraud means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id. § 3294(c)(3).) Under Civ. Code § 3294, a corporate entity can only be liable for punitive damages when its managing agent, officer, or director (1) directly commits malice, oppression, or fraud, (2) ratifies such misconduct by an employee, or (3) hires an employee committing such misconduct with advance knowledge of the employee’s unfitness and with a conscious disregard for the safety of others. The Motion is denied. This is because Plaintiffs allege sufficient facts to indicate malice with regard to Defendants’ intentional failure to do repairs at the subject premises. (See, e.g., Smith v. David (1981) 120 Cal.App.3d 101, 112.) Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 23STCV16142 Hearing Date: November 13, 2023 Dept: 50 Superior
Court of California
County
of Los Angeles
Department 50
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MACKENZIE ANNE THOMA, a.k.a.
KENZIE ANNE, as an aggrieved employee, and on behalf of all other aggrieved
employees under the Labor Code Private Attorneys’ General Act of 2004,
Plaintiff,
vs.
VXN GROUP LLC, et al.,
Defendants.
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Case No.:
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23STCV16142
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Hearing Date:
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November 13, 2023
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Hearing Time:
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10:00 a.m.
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TENTATIVE RULING
RE:
MOTION TO STAY
PROCEEDINGS;
DEMURRER FOR
PLEA IN ABATEMENT
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Background
Plaintiff
Mackenzie Anne Thoma, a.k.a. Kenzie Anne, as an aggrieved employee, and
on behalf of all other aggrieved employees under the Labor Code Private
Attorneys’ General Act of 2004 (“Plaintiff”) filed this action on July 11, 2023
against Defendants VXN Group LLC,
Strike
3 Holdings LLC, General Media Systems, LLC, and Mike Miller (collectively,
“Defendants”). The Complaint contains one cause of action for civil penalties
under the Private Attorneys’ General Act (2004) (“PAGA”).
On October 30, 2023, the Court
issued a minute order in this matter providing, inter alia, that
“[p]ursuant to the request of moving party, the Hearing on Demurrer - without
Motion to Strike scheduled for 12/22/2023, and Hearing on Motion for Stay of
Proceedings scheduled for 06/14/2024 are advanced to this date and continued to
11/13/2023 at 10:00 AM in Department 50 at Stanley Mosk Courthouse. Plaintiff’s
opposition brief is to be filed and served on Defense by 11/07/2023. Defendant’s
reply brief is to be filed and served on Plaintiff by 11/09/2023.”
Defendants now move for an order
staying Plaintiff’s complaint. Plaintiff opposes.
Defendants also filed a demurrer for
plea in abatement in which they “move for an order dismissing or abating
MACKENZIE ANNE THOMA’s…Complaint on the ground that there is another action
pending between the parties dealing with the same subject matter as this
action.” Plaintiff opposes.
Motion to Stay
Proceedings
A.
Request for Judicial Notice
The Court grants Defendants’ request for
judicial notice.
B.
Evidentiary Objections
The Court rules on
Plaintiff’s evidentiary objections as follows:
Objection No. 1: sustained
as to “to leapfrog the discovery procedures in the Class Action,” overruled as to the remainder.
Objection No. 2:
sustained.
The Court notes that Plaintiff interposes
several objections to the Supplemental Declaration of Emilie Kennedy on the
grounds that, inter alia, the declaration was untimely filed. As set forth above, on October
30, 2023, the Court issued a minute order providing that “[p]ursuant
to the request of moving party, the Hearing on Demurrer - without Motion to
Strike scheduled for 12/22/2023, and Hearing on Motion for Stay of Proceedings
scheduled for 06/14/2024 are advanced to this date and continued to 11/13/2023
at 10:00 AM in Department 50 at Stanley Mosk Courthouse. Plaintiff’s opposition
brief is to be filed and served on Defense by 11/07/2023. Defendant’s reply
brief is to be filed and served on Plaintiff by 11/09/2023.”
The Supplemental Declaration of Emilie Kennedy was filed on November
6, 2023. The Court’s October 30, 2023 minute order does not state that
Defendants were authorized to file supplemental briefing.
Pursuant
to Code of Civil Procedure section 1005, subdivision
(b), “[u]nless otherwise ordered or specifically
provided by law, all moving and supporting papers shall be served and filed at
least 16 court days before the hearing.” Sixteen court days
before the November 13, 2023 hearing date is October 19, 2023. The Supplemental Declaration of Emilie Kennedy was filed after this date,
on November 6, 2023. Accordingly, the Court
sustains Plaintiff’s objections to the Supplemental Declaration of Emilie
Kennedy.
Objection No. 3: sustained
Objection No. 4: sustained
Objection No. 5: sustained
Objection No. 6: sustained
Objection No. 7: sustained
Objection No. 8: sustained
Objection No. 9: sustained
Objection No. 10: sustained
Objection No. 11: sustained
Objection No. 12: sustained
C. Discussion
Defendants indicate that on April 20, 2023, Plaintiff filed a Class
Action Complaint in the
Los
Angeles County Superior Court, Case No. 23STCV08761, entitled Mackenzie Anne Thoma, a.k.a. Kenzie
Anne, an individual and on behalf of all others similarly situated v.
VXN Group LLC, et al. (Defendants’ RJN, Ex. A.)
Defendants’ counsel states that “[o]n June 21, 2023, Defendants filed
a Notice of Removal pursuant to the Class Action Fairness Act, removing [Case
No. 23STCV08761] to the United States District Court for the Central District
of California.” (Kane Decl., ¶3.) On June 28, 2023, Defendants filed a Motion
to Dismiss. (Kane Decl., ¶ 4.) In addition, on July 21, 2023, Plaintiff filed a
Motion for Remand to Los Angeles Superior Court. (Kane Decl., ¶ 6.)
On August 30, 2023, the United States District Court for the Central
District of California issued an “Order Re Plaintiff’s Motion to Remand…and
Defendants’ Motion to Dismiss…” in the matter entitled Mackenzie Anne Thoma, a.k.a. Kenzie
Anne, an individual and on behalf of all others similarly situated v.
VXN Group LLC, et al., Case No. 2:23-cv-04901. (Defendants’ RJN, Ex. B.) The
Order provides, inter alia, that “[t]he Court severs Thoma’s tenth claim
under the UCL and GRANTS remand as to that claim alone. Otherwise, Thoma’s
Motion to Remand is DENIED. The Court GRANTS Defendants’ Motion to Dismiss the
first through ninth causes of action with leave to amend. Thoma may file an
amended complaint within 21 days of the issuance of this Order.” (Ibid.) On September 20, 2023, Plaintiff filed a
First Amended Class Action Complaint in the United States District Court for
the Central District of California in Case No. 2:23-cv-04901 (herein, the
“Federal Class Action”). (Defendants’ RJN, Ex. C.)
In the instant motion, Defendants request that the Court “stay this
action pending final resolution of the Class Action currently proceeding in the
Central District of California.” (Mot. at p. 13:25-26.)
Defendants cite to Caiafa Prof. Law Corp. v. State Farm Fire &
Cas. Co. (1993) 15 Cal.App.4th 800, 804, where the Court of Appeal noted that “[i]t is black letter law
that, when a federal action has been filed covering the same subject
matter as is involved in a California action, the California court has the
discretion but not the obligation to stay the state court action. In exercising
its discretion the court should consider the importance of discouraging
multiple litigation designed solely to harass an adverse party, and of avoiding
unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of
the parties can best be determined by the court of the other jurisdiction
because of the nature of the subject matter, the availability of witnesses, or
the stage to which the proceedings in the other court have already advanced.
The California Supreme Court also has isolated another critical factor favoring
a stay of the state court action in favor of the federal action, a factor which
happens to be present in this case--the federal action is pending in California
not some other state.” (Internal quotations and citations omitted.)
Defendants
also cite to Gregg v. Superior Court (1987) 194 Cal.App.3d
134, 137, where the
Court of Appeal noted that “[t]he
California authorities discussing priority as between federal and state in
personam actions conclude that an application for a stay is addressed to
the ‘sound discretion’ of the trial court (see, e.g., Thomson v. Continental Ins. Co., supra, 66 Cal.2d at
p. 746; Farmland Irrigation Co. v. Dopplmaier, supra, 48 Cal.2d at p. 215,
and cases cited therein; Dodge v. Superior Court (1934) 139 Cal.App.178, 181 [33 P.2d 695]). But, where they
support issuance of a stay, the assumption underlying most of
these authorities is that the two related lawsuits are between the same or
substantially identical parties. Indeed, Farmland expressly assumes the
parties are the same: ‘When an action is brought in a court of this state
involving the same parties and
the same subject matter as an action already pending in a court of another
jurisdiction, a stay of the California proceedings is not a matter of right,
but within the sound discretion of the trial court.’” (Emphasis in original.)
Defendants assert that “[h]ere, every
employee Plaintiff seeks to represent in the PAGA lawsuit is already a member
of the putative class in the Class Action. Both actions are brought against the
same Defendants.” (Mot. at p. 8:23-25.) As set forth above, the instant action
was filed on July 11, 2023 by Plaintiff
Mackenzie Anne Thoma, a.k.a. Kenzie Anne, as an aggrieved employee, and
on behalf of all other aggrieved employees under the Labor Code Private
Attorneys’ General Act of 2004 against Defendants VXN Group LLC, Strike 3
Holdings LLC, General Media Systems, LLC, and Mike Miller.
In the subject Federal Class Action, Plaintiff Mackenzie Anne Thoma, a.k.a. Kenzie Anne, an individual and on behalf
of all others similarly situated, filed the First Amended Class Action
Complaint on September 20, 2023 against the same Defendants – VXN Group LLC,
Strike 3 Holdings, LLC, General Media Systems, LLC, and Mike Miller.
(Defendants’ RJN, Ex. C.)
Defendants also assert that “both actions involve the same subject
matter: the same alleged violations of the same underlying Labor Code
provisions, except for the accrued but unpaid vacation claim recently abandoned
in Class Action.” (Mot. at p. 8:25-27.)
As set forth above, in the instant action, Plaintiff alleges one cause
of action for civil penalties under PAGA. In the Complaint, Plaintiff alleges, inter
alia, that “[d]uring the period beginning one (1) year preceding the
provision of notice to the LWDA regarding the herein-described Labor Code
violations…Defendants violated, inter alia, Labor
Code sections 98.6, 201, 202, 203, 204, 210, 226, 226.3, 226.7, 226.8, 227.3,
246, 2802, 432, 510, 512, 558, 1174, 1174.5, 1194, 1197, 1197.1, 1198.5, 2699,
2802, 2810.5, 6409.2 among others.” (Compl., ¶ 6.)
In addition, in the PAGA cause of action, Plaintiff alleges, inter
alia, that “Defendants have had a consistent policy or practice of failing
to pay Plaintiff and/or Aggrieved Employees during their employment on a timely
basis as per Labor Code section 204.” (Compl.,
¶ 38.) Plaintiff further alleges that “Defendants had and have a policy or
practice of failing to comply with Labor Code
section 226, subdivision (a) by intentionally failing to furnish Plaintiff
and Aggrieved Employees with itemized wage statements…” (Compl., ¶ 39.) In
addition, Plaintiff alleges that “Defendants had and have a policy or practice
of failing to comply with Labor Code section 226.8
as Defendants willfully misclassified Plaintiff and other aggrieved employees
as independent contractors.” (Compl., ¶ 45.)
In addition, Plaintiff alleges that “Defendants, and each of them,
violated, or caused to be violated, the Labor Code sections described herein,
including causing Plaintiff and other Aggrieved Employees not to: be paid with
the rates of pay and overtime rates of pay applicable to their employment, allowances
claimed as part of the minimum wage, the regular payday designated by employer,
the name of the employer, including any ‘doing business as’ names used, the
name, address, and telephone number of the workers’ compensation insurance
carrier, information regarding paid sick leave, and other pertinent
information.” (Compl., ¶ 50.) Plaintiff further alleges that “Defendants have
willfully failed to keep adequate or accurate time records including wage
statements and similar payroll documents under Labor
Code section 226, documents signed to obtain or hold employment under Labor Code section 432, personnel records under Labor Code section 1198.5, and time records under Labor Code section 1174.” (Compl., ¶ 56.) In
addition, Plaintiff alleges that “Defendants caused Plaintiff and Aggrieved
Employees not to be paid minimum wages…” (Compl., ¶ 59.)
In the First Amended Class Action Complaint in the Federal Class
Action, Plaintiff alleges causes of action for (1) failure to pay overtime wages,
(2) failure to pay minimum wages, (3) failure to provide meal periods, (4)
failure to provide rest periods, (5) waiting time penalties, (6) wage statement
violations, (7) failure to timely pay wages, and (8) failure to indemnify.
(Defendants’ RJN, Ex. C.)
In the first cause of action of the First Amended Class Action
Complaint (“FACC”), Plaintiff alleges, inter alia, that “by requiring
Plaintiff and Class Members to, at times, work greater than eight (8) hours per
workday, forty (40) hours per workweek, and/or seven (7) straight workdays
without properly compensating overtime wages at the proper overtime rate of
pay, Defendants, on occasion, willfully violated the provisions of the Labor
Code, among others, sections 510, 1194, and
applicable IWC Wage Orders, and California law.” (Defendants’ RJN, Ex. C; FACC,
¶ 59.) In the second cause of action, Plaintiff alleges that “[p]ursuant to Labor Code section 1197 and applicable Wage Orders,
Plaintiff and Class Members were entitled to receive minimum wages for all
hours worked or otherwise under Defendants’ control,” and that “[f]or four (4)
years prior to the filing of the Complaint in this Action through the present,
Defendants failed, at times, to accurately track and/or pay for all hours
actually worked at their regular rate of pay that is above the minimum wage to
the detriment of Plaintiff and Class Members.” (Id.
at ¶¶ 69-70.) In the third cause of action, Plaintiff alleges that “[f]or
four (4) years prior to the filing of the Complaint in this Action through the
present, Plaintiff and Class Members were, at times, not provided complete,
timely 30-minute, duty-free uninterrupted meal periods every five hours of work
without waiving the right to take them, as permitted. Moreover, at times,
Defendants failed to provide one (1) additional hour of pay at the Class
Member’s regular rate of compensation on the occasions that Class Members were
not provided compliant meal periods.” (Id. at ¶
86.) Plaintiff alleges that “[b]y
their failure to provide Plaintiff and Class Members compliant meal periods as contemplated by Labor Code
section 512, among other California authorities, and failing, at times, to provide compensation for such
unprovided meal periods,
as alleged above, Defendants willfully violated the provisions of Labor Code
section 512 and applicable Wage
Orders.” (Id. at ¶ 92.)
In the fourth cause of action of the FACC in the Federal Class Action,
Plaintiff alleges that “[f]or four (4) years prior to the filing of the
Complaint in this Action through the present, Plaintiff and Class Members were,
at times, not authorized or permitted to take complete, timely 10-minute,
duty-free uninterrupted rest periods every four (4) hours of work or major
fraction thereof. Moreover, at times, Defendants failed to provide one (1) additional
hour of pay at the Class Member’s regular rate of compensation on the occasions
that Class Members were not authorized or permitted to take compliant rest
periods.” (Defendants’ RJN, Ex. C; FACC, ¶ 99.) Plaintiff alleges that “[b]y
their failure, at times, to authorize and permit Plaintiff and Class Members to
take rest periods contemplated by California law, and one (1) additional hour
of pay at the employee’s regular rate of compensation for such unprovided rest
periods, as alleged above, Defendants willfully violated the provisions of Labor Code section 226.7 and applicable Wage Orders.”
(Id. at ¶ 104.) In the fifth cause of
action, Plaintiff alleges that “in the three (3) years before the filing of the
Complaint in this Action through the present, Defendants, due to the failure,
at times, to provide overtime wages mentioned above, failed to pay Plaintiff
and Class Members all wages earned prior to resignation or termination in
accordance with Labor Code sections 201 or 202.” (Id. at ¶ 110.) In the sixth cause of action,
Plaintiff alleges that “in the one (1) year before the filing of the Complaint
in this Action through the present, Defendants failed to comply with Labor Code section 226, subdivision (a) by adopting
policies and practices that resulted in their failure, at times, to furnish
Plaintiff and Class Members with accurate itemized statements…” (Id. at 118.)
In the seventh cause of action in the FACC, Plaintiff alleges that “in
the one (1) year before the filing of the Complaint in this Action through the
present, Defendants employed policies and practices that resulted in, at times,
not paying Plaintiff and Class Members in accordance with Labor Code section 204.” (Defendants’ RJN, Ex. C;
FACC, ¶ 127.) In the eighth cause of action, Plaintiff alleges that “[f]or
three (3) years prior to the filing of the Complaint in this Action through the
present, Defendants required Plaintiff and Class Members, or some of them, to
incur, at times, necessary expenditures or losses in direct consequence of the
discharge of their duties or at the obedience to the directions of Defendants,”
and that “[d]uring that time period…Defendants failed and refused, and still
fail and refuse, at times, to reimburse Plaintiff and Class Members for those
losses and/or expenditures.” (Id. at ¶¶ 133, 136.)
Defendants
also assert in the motion that “[h]ere, compared to the Class
Action in the Central District, this PAGA case is in its infancy.” (Mot. at p.
9:25-26.) As set forth above, in Caiafa Prof. Law Corp. v. State Farm Fire &
Cas. Co., supra, 15 Cal.App.4th at page 804,
the Court noted that “[i]n exercising
its discretion the court should consider the importance of discouraging
multiple litigation designed solely to harass an adverse party, and of avoiding
unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of
the parties can best be determined by the court of the other jurisdiction
because of the nature of the subject matter, the availability of witnesses, or
the stage to which the proceedings in the other court have already advanced.” Defendants
state that “in the Class Action, the parties have engaged in extensive motion
practice, and the Central District Court has issued an order (i) mostly denying
remand to State Court, (ii) dismissing Plaintiff’s first nine causes of action;
(iii) remanding the UCL claim back to the original Superior Court; and (iv)
dismissed the Class Action Complaint with leave to amend.” (Mot. at p. 10:3-6,
citing Defendants’ RJN, Ex. B.)
Defendants also contend that “[h]ere, as in Caiafa, if this
PAGA Action is not stayed, there is a risk that the federal and state courts
will reach conflicting decisions, resulting in problematic res judicata and
collateral estoppel issues that will need to be addressed by the courts, as
rulings and judgments in either action could have preclusive effects on other
class members and/or aggrieved parties.” (Mot. at p. 11:5-8.) Defendants argue
that “[u]nless the Central District and this Court reach the exact same
resolution of the factual and legal issues underlying these two actions,
‘unseemly conflict’ is sure to result from the conflicting decisions.” (Mot. at p. 11:21-23.)
Defendants
also assert that “[t]he pendency of the Class Action in the
Central District of California, as opposed to a district court outside of
California, further confirms that this action should be stayed so as to avoid
multiplicity of actions against Defendants over the same Labor Code violations
and wage orders.” (Mot. at p. 12:2-5.) Defendants note that in Caiafa Prof. Law Corp. v. State Farm Fire & Cas. Co., supra, 15
Cal.App.4th at page 807, the Court of Appeal noted that “the federal fraud action is pending in the Southern District
of California, not in some other state. Thus, the federal court is of equal
convenience to the parties and witnesses as is the state court and its
arbitrator. This factor is one which the
Supreme Court found so important it accounted for the several earlier
California decisions which appeared to make a stay of state court proceedings a
matter of right not merely a matter of discretion. While reemphasizing a stay
was a discretionary decision for the California trial courts not a right held
by litigants who preferred the federal forum, our high court also recognized
the significance of this factor in the trial court’s exercise of its
discretion.”
In the opposition to the instant motion, Plaintiff argues that
“California case law and statutory authority both hold that an action seeking
penalties under the Private Attorney General Act…brought on behalf of the state
should not be stayed and may be brought separately, regardless of whether there
is a separate Wage and Hour Class Action brought.” (Opp’n at p. 1:3-6.)
Plaintiff cites to Labor Code section 2699, subdivision (g)(1), which provides that “[n]othing in this part shall operate to limit an employee’s
right to pursue or recover other remedies available under state or federal law,
either separately or concurrently with an action taken under this part.” In Kim v. Reins
International California, Inc. (2020) 9
Cal.5th 73, 88, the
California Supreme Court found that “Reins’s suggestion that Kim
must maintain his individual claim for
relief to retain PAGA standing also conflicts with plaintiffs’ recognized
ability to bring stand-alone
PAGA claims. Section 2699, subdivision (g)(1)
states that ‘[n]othing in this part shall operate to limit an employee’s right
to pursue or recover other remedies available under state or federal law, either separately or concurrently with an
action taken under this part’ (italics added). This provision expressly
authorizes PAGA suits brought ‘separately’ from individual claims for relief. (§ 2699, subd. (g)(1).) Indeed, many PAGA actions
consist of a single cause of action seeking civil penalties. Appellate courts
have rejected efforts to split PAGA claims into individual and representative
components…Standing for these PAGA-only cases cannot be dependent
on the maintenance of an individual claim because individual relief has not
been sought.” (Emphasis in original.)
Plaintiff further asserts that “[t]he
simultaneous litigation of private individual claims and PAGA claims is
expressly permitted by PAGA in part because of the fundamentally different
nature of these lawsuits.” (Opp’n at p. 4:16-17.) Plaintiff cites to ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175,
184-185, where the
California Supreme Court noted that “[t]he Legislature enacted the PAGA in 2003 after deciding that
lagging labor law enforcement resources made additional private enforcement
necessary to achieve maximum compliance with state labor laws. The PAGA
therefore empowers employees to sue on behalf of themselves and other
aggrieved employees to recover civil penalties previously recoverable only by
the Labor Commissioner—including those in section 558. The PAGA also creates new civil
penalties, equally enforceable by aggrieved employees, for most other Labor
Code violations that previously did not carry such penalties. All PAGA claims
are representative actions in the sense that they are brought on the state’s
behalf. The employee acts as the proxy or agent of the state’s labor law
enforcement agencies and represents the same legal right and interest as
those agencies—namely, recovery of civil penalties that otherwise would have
been assessed and collected by the Labor Workforce Development Agency. The employee may therefore seek any civil
penalties the state can, including penalties for violations involving employees
other than the PAGA litigant herself.” (Internal quotations and
citations omitted.)
Plaintiff also asserts that “it is well-established that a
Class Action and a PAGA Action, are by law, not between the same parties. This
is because, according to the California Supreme Court, every PAGA claim is a
dispute between an employer and the state.” (Opp’n at p. 5:14-16, internal
quotations and emphasis omitted.) In Kim v. Reins International
California, Inc., supra, 9 Cal.5th at page 81, the California
Supreme Court noted that “[a]
PAGA claim is legally and conceptually different from an employee’s own suit
for damages and statutory penalties. An employee suing under PAGA does so as
the proxy or agent of the state’s
labor law enforcement agencies. Every PAGA claim is a dispute between an employer and the state.” (Internal quotations, citation, and emphasis omitted].)
Plaintiff also
asserts that Gregg v. Superior Court, supra,
194 Cal.App.3d 134, cited by Defendants, “was decided in
1987, nearly two decades before PAGA was enacted and is thus wholly inapplicable.”
(Opp’n at pp. 10:28-11:1.) In
addition, Plaintiff asserts that “Defendants also rely largely on Caiafa Professional Law Corporation v. State Farm Fire
& Casualty, 15 Cal. App. 4th 804 (1993). However, once again, Caiafa
predates PAGA and the facts within Caiafa are therefore entirely
distinguishable…” (Opp’n at p. 11:3-6.) Defendants did not file a reply in
support of the motion and thus do not address this point.
Plaintiff also
asserts that “the PAGA action and Class Action…plead different
violations of California law.” (Opp’n at p. 6:7-8.) In the Complaint in the
instant action, Plaintiff alleges that “[a]t all relevant times herein,
Defendants had and have a policy or practice of failing to pay Plaintiff and
Aggrieved Employees their paid time off and vacation time owed upon separation
of employment as wages at their final rate of pay in violation of Labor Code section 227.3 and applicable Wage Orders.”
(Compl., ¶ 17.) Plaintiff states that “the Class Action no longer alleges a
cause of action for failure to pay vested vacation time in violation of Labor Code Section 227.3.” (Opp’n at p. 6:8-9.)
Plaintiff asserts that “[a]nother difference is that the PAGA Action demands
civil penalties be imposed for Defendants’ failure to properly maintain
employment records for all aggrieved employees, whereas the Class Action does
not allege this.” (Opp’n at p. 6:14-16.)
Plaintiff also asserts that “any argument…by Defendants to collateral
estoppel and res judicata between the PAGA action and Class Action should be
disregarded, as they have no bearing on [sic] case at hand.” (Opp’n at p.
8:15-17.) Plaintiff cites to Howitson v. Evans Hotels, LLC, supra, 81 Cal.App.5th at
pages 481-482, where the Court of Appeal noted that “[t]his case
(1) involves the legal issue of whether an employee who settles individual
claims against the employer for alleged Labor Code violations is subsequently
barred by claim preclusion from bringing a PAGA enforcement action against the
employer for the same Labor Code violations when, prior to settlement, the
employee could have added the PAGA claims to the existing action; and (2)
requires the application of claim preclusion principles…As we explain, because the
two actions involve different claims for different harms and because the state,
against whom the defense is raised, was neither a party in the prior action nor
in privity with the employee, we conclude the requirements for claim preclusion
are not met in this case.”
The Howitson
Court noted that “[p]rivity is a requirement of due process of law. In the final
analysis, the determination of privity depends upon the fairness of binding
[the nonparty] with the result obtained in earlier proceedings in which it did
not participate. [T]he determination whether a party is in privity with another
… is a policy decision. Here, the state had no interest in the subject matter of the First
Lawsuit…As we have noted, the First Lawsuit involved Howitson’s individual and
putative class action claims only. When Howitson accepted the section 998 Offer and settled the First Lawsuit for
$1,500, it was for her individual benefit. In doing so, Howitson was not acting as a private attorney general
under PAGA, benefit[ing] the public by augmenting the state’s enforcement
capabilities, encouraging compliance with Labor Code provisions, and deterring
noncompliance. The state, as a nonparty in the First Lawsuit, did not have an
interest so similar to Howitson’s that she was acting as the state’s
virtual representative in the first action.” (Howitson v. Evans
Hotels, LLC, supra, 81
Cal.App.5th at pp. 490-491 [internal quotations and citations omitted].)
Plaintiff asserts that here
too, “there is…no privity between Plaintiff and the State of California
in the Class Action. Meaning, should this case be dismissed or stayed, the
State of California will be deprived of its right to litigate
Defendants’…violations of California labor laws.” (Opp’n at p. 7:8-11.) In the
FACC in the Federal Class Action, the State of California is not a party. (Defendants’
RJN, Ex. C.) As set forth above, Defendants did not file a reply in support of
the motion and thus do not address this point. Further, as discussed,
Defendants note that in Gregg v. Superior Court, supra, 194 Cal.App.3d at page 137, the Court of
Appeal found that “where they support
issuance of a stay, the assumption underlying most of these authorities is
that the two related lawsuits are between the same or substantially identical
parties. Indeed, Farmland expressly assumes the parties are the same…”
In light of the foregoing, the Court denies
Defendants’ motion to stay proceedings.
Demurrer
As set forth above, Defendants
also filed a demurrer for plea in abatement in which they “move for an order
dismissing or abating MACKENZIE ANNE THOMA’s…Complaint on the ground that there
is another action pending between the parties dealing with the same subject
matter as this action.”
As an initial matter, the Court notes that Defendants’
counsel’s declaration filed in support of the demurrer does not state that the
parties met and conferred in advance of Defendants filing the demurrer.
Pursuant to Code of Civil Procedure
section 430.41, subdivision (a),
“[b]efore filing a demurrer pursuant to
this chapter, the demurring party shall meet and confer in person or by
telephone with the party who filed the pleading that is subject to demurrer
for the purpose of determining whether an agreement can be reached that would resolve
the objections to be raised in the demurrer.” (Emphasis added.) Such
meeting and conferring must be done in good faith with an effort to try to
resolve the issues subject to the demurrer.
In light
of the foregoing, the hearing on Defendants’ demurrer is continued
to __ARRANGE WITH CLERK in
Dept. 50.¿
Defendants
are¿ordered to meet¿and confer¿with Plaintiff within 10 days of the
date of this order.¿If the parties are unable to resolve the pleading issues¿or
if the parties are otherwise unable to meet and confer in good faith,
Defendants are to¿thereafter¿file and serve¿a declaration setting forth the
efforts to meet and confer in compliance with¿Code of Civil
Procedure section 430.41, subdivision (a)(3) within 15 days of this order.¿
Conclusion
Based
on the foregoing, Defendants’ motion to stay
proceedings is denied.
As set forth above, the hearing on Defendants’ demurrer
is continued to _______________, 2023
at 2 p.m. in Dept. 50.¿ Defendants
are¿ordered to meet¿and confer¿with Plaintiff as set forth above.
Plaintiff is ordered to give notice of this Order.
DATED: November 13, 2023 ________________________________
Hon. Rolf M.
Treu
Judge, Los
Angeles Superior Court
Labor Code section 2698 provides that
“[t]his
part shall be known and may be cited as the Labor Code Private Attorneys
General Act of 2004.”
Case Number: 23STCV16248 Hearing Date: November 13, 2023 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20
Hearing Date: November 13, 2023 Case Name: Estes, et al. v. Siegel, et al. Case No.: 23STCV16248 Matter: Motions to Quash Service of Summons (2x) Moving Party: Defendants Henry Siegel and Bancroft Towers, LLC Responding Party: Plaintiffs Taylor Estes and Justin Hansohn Notice: OK
Ruling: The Motions to Quash are denied. Moving parties to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
This is a habitability matter. Defendants Henry Siegel and Bancroft Towers, LLC seek to quash service of summons because (1) a forum selection clause in the subject lease requires litigation in Kentucky and (2) there is no personal jurisdiction in this forum. A defendant may move to quash service of summons on the ground the Court lacks personal jurisdiction. (Code Civ. Proc. § 418.10(a)(1).) “Although the defendant is the moving party, the plaintiff must carry the initial burden of demonstrating facts by a preponderance of evidence justifying the exercise of jurisdiction in California.” (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 110.) Defendants first argue that the subject lease requires litigation in Kentucky. “California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable.” (Am. Online, Inc. v. Superior Court (2001) 90 Cal. App. 4th 1, 11.) A mandatory forum selection clause is generally given effect unless enforcement would be unreasonable or unfair. (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal. App. 4th 141, 147.) “Mere inconvenience or additional expense is not the test of unreasonableness . . . of a mandatory forum selection clause.” (Berg v. MTC Elecs. Techs. (1998) 61 Cal. App. 4th 349, 359, internal quotation marks omitted.) A clause is reasonable if it has a logical connection with at least one of the parties or their transaction. (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal. App. 4th 141, 147.) The party opposing enforcement of a forum selection clause ordinarily “bears the ‘substantial’ burden of proving why it should not be enforced.” (Global Packaging, Inc. v. Superior Court (2011) 196 Cal.App.4th 1623, 1633.) However, “California courts will refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state's public policy.” (Am. Online, Inc. v. Superior Court (2001) 90 Cal. App. 4th 1, 12.) The party opposing enforcement of a forum selection clause ordinarily “bears the ‘substantial’ burden of proving why it should not be enforced.” (Global Packaging, Inc. v. Superior Court (2011) 196 Cal.App.4th 1623, 1633.) “That burden, however, is reversed when the claims at issue are based on unwaivable rights created by California statutes. In that situation, the party seeking to enforce the forum selection clause bears the burden to show litigating the claims in the contractually-designated forum will not diminish in any way the substantive rights afforded . . . under California law.” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal. App. 4th 141, 147, internal quotation marks omitted.) The Court finds that Plaintiffs’ claims relating to the warranty of habitability relate to unwaivable rights grounded in California public policy, and that Defendants make no showing that Plaintiffs would have equivalent rights in Kentucky. Therefore, the Court will not enforce the forum selection clause. Defendants also argue there is no general or specific jurisdiction over them in this forum. By statute, the courts of this state may exercise personal jurisdiction over nonresident defendants to the extent permitted by the United States Constitution. (Code Civ. Proc. § 410.10.) Constitutional due process requires that a nonresident defendant have “certain minimum contacts” with a forum such that the Court’s exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. (International Shoe Co. v. State of Washington (1945) 326 U.S. 310, 316.) The extent of the defendant’s contacts with the forum determines whether the Court’s jurisdiction is general or specific. (Daimler AG v. Bauman (2014) 134 S.Ct. 746, 754-755.) Courts may assert general jurisdiction where the foreign defendant’s contacts with the forum “ ‘are so “continuous and systematic” as to render them essentially at home in the forum State.’ ” (Id. at p. 754.) To determine whether the exercise of specific jurisdiction is proper in a given case, courts consider the relationship among the defendant, the forum, and the litigation. (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.) “A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant’s contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.” (Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1314.) It is the plaintiff’s burden to demonstrate that the defendant’s conduct giving rise to the pleaded causes of action amounts to constitutionally cognizable “minimum contacts.” (Id. at p. 1313.) The Court finds that there is specific jurisdiction because this matter arises out of Defendants’ purposeful ownership and renting of real property in this state, as is apparent from the subject lease. Therefore, the Motions to Quash are denied. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Case Number: 23STCV17985 Hearing Date: November 13, 2023 Dept: 39 Angelica Campos v.
Lou Sobh Cerritos Saturn, Inc.
Case No.
23STCV17985
Motion to Strike
and Case Management Conference
Plaintiff
Angelica Campos (“Plaintiff”) filed this employment discrimination case against
Defendant Lou Sobh Cerritos Saturn, Inc. (“Defendant”). Now, Defendant moves to strike the prayer for
punitive damages, as well as related allegations.
In ruling on a motion to strike
punitive damages, “judges read allegations of a pleading subject to a motion to
strike as a whole, all parts in their context, and assume their truth.” (Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive
damages, a plaintiff must allege the elements set forth in the punitive damages
statute, Civil Code section 3294. (Coll. Hosp., Inc. v. Superior Court (1994)
8 Cal.4th 704, 721.) Per Civil Code
section 3294, a plaintiff must allege that the defendant has been guilty of
oppression, fraud or malice. (Civ. Code,
§ 3294, subd. (a).) “Malice is defined
in the statute as conduct intended by the defendant to cause injury to the
plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard of the rights or safety of others.” (Coll.
Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “The mere allegation an intentional tort was
committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of
oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim.” (Grieves v. Superior Ct. (1984) 157
Cal.App.3d 159, 166, internal citations and footnotes omitted.)
“[T]he imposition of punitive
damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of
the fault of others.” (City Products Corp. v. Globe Indemnity Co.
(1979) 88 Cal. App. 3d 31, 36.)
“Corporations are legal entities which do not have minds capable of
recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a
corporation therefore must rest on the malice of the corporation’s
employees. But the law does not impute
every employee’s malice to the corporation.
Instead, the punitive damages statute requires proof of malice among
corporate leaders: the officers, directors, or managing agents.” (Cruz
v. Home Base (2000) 83 Cal. App. 4th 160, 167, internal quotations and
citation omitted.)
Plaintiff
does not satisfy this standard.
Plaintiff alleges:
“Defendant had in place policies and procedures that
specifically prohibited and required Defendant’s managers, officers, and agents
to prevent discrimination against and upon employees of Defendant. Managers, officers, and/or agents of
Defendant were aware of Defendant’s policies and procedures requiring them to
prevent discrimination against and upon employees of Defendant. However, Defendant chose to consciously and
willfully ignore said policies and procedures and therefore, their outrageous
conduct was fraudulent, malicious, oppressive, and was done in wanton disregard
for the rights of Plaintiff.”
(Complaint, ¶ 20.)
Plaintiff does not allege specific facts to support these
conclusions. Nor does Plaintiff identify
an officer, director, or managing agent at issue. Plaintiff’s counsel provides no basis to
conclude that an amendment at this stage would be successful. Therefore, the Court grants the motion to
strike without leave to amend.
CONCLUSION AND ORDER
Based upon
the foregoing, the Court orders as follows:
1. Defendant’s motion to strike is granted
without leave to amend.
2. Defendant shall file an answer within
thirty (30) days.
3. The parties stipulated for the Court to
conduct the case management conference in advance of Defendant’s answer having
been filed. Therefore, the Court vacates
the case management conference on November 28, 2023.
4. The Court sets the following dates:
Post-Mediation
Status Conference: October 28, 2024, at
8:30 a.m.
Final
Status Conference: May
2, 2025, at 9:00 a.m.
Trial: May
13, 2025, at 9:30 a.m.
The parties shall comply with all pretrial procedures for
Department #39. The parties shall
disclose all witnesses they intend to call in their respective cases-in-chief,
and disclose and produce all exhibits they intend to introduce in their
respective cases-in-chief, on or before April 25, 2025. Jury fees shall be posted on or before
December 29, 2023, or the parties shall waive jury.
5. The Court’s clerk shall provide
notice.
Case Number: 23STCV18169 Hearing Date: November 30, 2023 Dept: 34 SUBJECT: Motion to Vacate Arbitration and to
Proceed with an Action in Court and Request for Sanctions
Moving Party: Plaintiff
Lisa McDonald
Resp. Party: Defendant Paradigm Treatment Center, LLC
The Motion vacate the arbitration is GRANTED. Monetary sanctions
are AWARDED in favor of Plaintiff and against Defendant in the total amount of $3,315.65.
BACKGROUND:
On August 1, 2023,
Plaintiff Lisa McDonald filed her Complaint against Defendant Paradigm
Treatment Center, LLC (erroneously sued as Paradigm Treatment Centers, LLC) on
causes of action arising from Defendant’s termination of Plaintiff’s
employment.
On August 23, 2023,
Plaintiff filed her Motion to Vacate Arbitration and to Proceed with an Action
in Court and Request for Sanctions. In support of her Motion, Plaintiff
concurrently filed: (1) Declaration of Elie Ghodsizadeh; (2) Proposed Order;
and (3) Proof of Service.
On September 25,
2023, Defendant filed its Answer to the Complaint.
On October 23, 2023,
Defendant filed its Opposition to the Motion. In support of its Opposition,
Defendant concurrently filed Declaration of Brian De Neve.
On October 26, 2023,
Plaintiff filed her Reply regarding the Motion. In support of her Reply,
Plaintiff concurrently filed: (1) Declaration of Jonathan J. Delshad; and (2)
Proof of Service.
ANALYSIS:
I.
Legal
Standard
“A written agreement to submit
to arbitration an existing controversy or a controversy thereafter arising is
valid, enforceable and irrevocable, save upon such grounds as exist for the
revocation of any contract.” (Code Civ. Proc., § 1281.)
“On petition of a party to an
arbitration agreement alleging the existence of a written agreement to
arbitrate a controversy and that a party to the agreement refuses to arbitrate
that controversy, the court shall order the petitioner and the respondent to
arbitrate the controversy if it determines that an agreement to arbitrate the
controversy exists [unless it makes certain determinations].” (Code Civ. Proc.,
§ 1281.2.)
“In an employment or consumer arbitration that requires,
either expressly or through application of state or federal law or the rules of
the arbitration provider, the drafting party to pay certain fees and costs
before the arbitration can proceed, if the fees or costs to initiate an
arbitration proceeding are not paid within 30 days after the due date the
drafting party is in material breach of the arbitration agreement, is in
default of the arbitration, and waives its right to compel arbitration under
Section 1281.2.” (Code Civ. Proc., § 1281.97, subd. (a)(1).)
“After an employee or consumer meets the filing requirements
necessary to initiate an arbitration, the arbitration provider shall
immediately provide an invoice for any fees and costs required before the
arbitration can proceed to all of the parties to the arbitration. The invoice
shall be provided in its entirety, shall state the full amount owed and the
date that payment is due, and shall be sent to all parties by the same means on
the same day. To avoid delay, absent an express provision in the arbitration
agreement stating the number of days in which the parties to the arbitration
must pay any required fees or costs, the arbitration provider shall issue all
invoices to the parties as due upon receipt.” (Code Civ. Proc., § 1281.97,
subd. (a)(2).)
“If the drafting party materially
breaches the arbitration agreement and is in default under subdivision (a), the
employee or consumer may do either of the following:
“(1) Withdraw the claim from arbitration and proceed
in a court of appropriate jurisdiction.
“(2) Compel arbitration in which the drafting party
shall pay reasonable attorney’s fees and costs related to the arbitration.”
(Code Civ. Proc., § 1281.97, subd. (b).)
“If the employee or consumer proceeds with an action in a
court of appropriate jurisdiction, the court shall impose sanctions on the
drafting party in accordance with Section 1281.99.” (Code Civ. Proc., §
1281.97, subd. (d).)
“The court shall impose a monetary sanction against a
drafting party that materially breaches an arbitration agreement pursuant to
subdivision (a) of Section 1281.97 or subdivision (a) of Section 1281.98, by
ordering the drafting party to pay the reasonable expenses, including
attorney’s fees and costs, incurred by the employee or consumer as a result of
the material breach.” (Code Civ. Proc., § 1281.99, subd. (a).)
“In addition to the monetary sanction
described in subdivision (a), the court may order any of the following
sanctions against a drafting party that materially breaches an arbitration
agreement pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of
Section 1281.98, unless the court finds that the one subject to the sanction
acted with substantial justification or that other circumstances make the
imposition of the sanction unjust.
“(1) An evidence sanction by an order prohibiting the
drafting party from conducting discovery in the civil action.
“(2) A terminating sanction by one of the following
orders:
“(A) An order striking out the pleadings or parts of
the pleadings of the drafting party.
“(B) An order rendering a judgment by default against
the drafting party.
“(3) A contempt sanction by an order treating the
drafting party as in contempt of court.”
(Code Civ. Proc., §
1281.99, subd. (b).)
II.
Discussion
A. The
Parties’ Arguments
Plaintiff moves the Court to: (1) vacate Plaintiff’s arbitration
claim and allow her to proceed in the Superior Court of California, County of
Los Angeles; and (2) award sanctions in the form of fees and costs for
Plaintiff and against Defendant. (Motion, p. 7:20–23.)
Plaintiff argues: (1) that Code of Civil Procedure section 1281.97
provides that an employer’s failure to timely pay arbitration fees results in a
material breach and waiver; (2) that Defendant has breached its arbitration
agreement by failing to timely pay arbitration fees, which allows Plaintiff to
withdraw from arbitration; and (3) that sanctions must be awarded against
Defendant pursuant to Code of Civil Procedure section 1281.99. (Motion, pp.
5:13–14, 6:14–15, 6:23.)
Defendant opposes the Motion, arguing: (1) that Plaintiff and
Defendant are required to jointly select an arbitrator; (2) that Plaintiff
submitted her claim to arbitration without any attempt to comply with the
arbitration agreement; (3) that there is no order compelling arbitration,
rendering the Motion and associated fees moot; (4) that Plaintiff never
properly initiated arbitration because she breached the arbitration agreement;
(5) that there is no valid arbitration invoice to trigger Code of Civil
Procedure section 1281.97; and (6) that there are no fees or costs resulting from
an alleged material breach of the arbitration agreement. (Opposition, pp.
3:3–4, 3:10–11, 3:23–24, 4:2–3, 5:5–6, 5:21, 6:1–2.)
In her Reply, Plaintiff argues: (1) that Plaintiff abided by the
terms of the arbitration agreement because she did not unilaterally select an
arbitrator; (2) that Defendant did not oppose the JAMS selection; and (3) that
Plaintiff’s request for attorney fees is proper. (Reply, pp. 2:7–8, 3:14–15,
4:7.)
B. The
Arbitration Agreement
The Parties do not dispute that there is a signed arbitration
agreement, which bears Defendant’s letterhead and Plaintiff’s signature. (See DeNeve Declaration, Exh. A.)
(Defense counsel has noted that Defendant’s true name is Paradigm
Treatment Center, LLC, but was sued erroneously as Paradigm Treatment
Centers. (See Opposition, p.
1:6-7.) However, the Court notes that the
Arbitration Agreement lists defendant’s name as “Paradigm Treatment, LLC.”
(DeNeve Declaration, Exh. A.) However,
the parties are not disputing that there is a binding arbitration agreement
between Plaintiff and Defendant; any such argument would have been waived for
failure to assert the claim.)
The following is the pertinent language in the arbitration
agreement:
“I, (‘Employee’) recognize that disputes may arise
between Paradigm Treatment, LLC (‘Paradigm’ or the ‘Company’), and me during or
following my employment with the Company, and that those differences may or may
not be related to my employment. I understand and agree that by entering into
this Mutual Agreement to Arbitrate Claims (‘Agreement’), I anticipate gaining
the benefits of a speedy, less-form, impartial, final and binding
dispute-resolution procedure.
“Agreement to Arbitrate. Employee and the
Company (the ‘Parties’) hereby agree that any dispute, controversy or claim
arising out of or related to Employee’s employment with or termination from the
Company, this Agreement, or any breach of this Agreement (whether grounded in
common or statutory law) shall be resolved exclusively through binding
arbitration in LosAngeles, [sic] California before a single neutral arbitrator
selected jointly by the Parties. The Parties agree that all claims shall be
submitted to arbitration including, but not limited to, claims based on any
alleged violation of any constitution, federal, state, or local law; any claims
of discrimination, harassment, retaliation, wrongful termination, or violation
of civil rights; claims for wages or compensation owing; and any claim based in
tort, contract, or equity. The Parties to the arbitration shall have available
all rights, remedies, and defenses as in a civil action for the issues in
controversy. Any arbitral award determination shall be final and binding upon
the Parties.
“If, for any legal reason, a controversy cannot be
arbitrated as provided above, the parties agree that any civil action shall be
brought in the United States District Court for the Northern District of
California or, only if there is no basis for federal jurisdiction, in the
Superior Court of the State of California for the County of Los Angeles.”
(Decl.
DeNeve, Exh. A, p. 1 [listed as page 21 of 27].)
C. Whether
Plaintiff Complied with the Arbitration Agreement
1.
The Arbitration Agreement Does Not
Contemplate Joint Selection of the Arbitral Forum
The arbitration agreement requires that the Parties arbitrate
“before a single neutral arbitrator selected jointly by the Parties.”
But what does “a single neutral
arbitrator” mean? While “a single neutral arbitrator” would typically mean the
selection of the actual person arbitrating the dispute, in certain contexts a
reasonable interpretation of the phrase could also refer to the joint selection
of the arbitral forum from which the arbitrator would be picked.
The arbitration agreement does not indicate either way.
Furthermore, the Court has not been presented with any parole evidence that
would assist in resolving this issue.
Thus, the Court is required to interpret the meaning of this phrase
in favor of Plaintiff, who did not draft the agreement. (Victoria v. Super. Ct. (1985)
40 Cal.3d 734, 738 [“Ambiguities in contract language are to be resolved
against the drafter.”].) Plaintiff argues that this clause solely
refers to selection of the arbitrator, not the arbitral forum. The Court finds
that this reasonable interpretation controls.
Defendant argues that Plaintiff “breached the arbitration
agreement.” (Opposition, p. 4:2-3.) Defendant’s entire case-law citation on this
point is as follows:
“Here, Ms.
McDonald skipped the fundamental hurdle of properly initiating an arbitration
in the first place, which she did not do. See, American Cardio, 2012 WL
2889047, at *4 (“[B]efore reaching the substantive question of whether
defendant breached an arbitration agreement, plaintiff must first establish
that it properly initiated arbitration. [citation omitted]. If plaintiff cannot
establish that it followed the requisite procedures, ‘then [defendant] could
not have repudiated the agreement.’”).) See also Cox v. Ocean View Hotel
Corp. (2008) 533 F.3d 1114, 1112 (“Before reaching the question whether
[defendant’s] actions constituted a repudiation of the agreement, [plaintiff]
must first establish that he properly initiated arbitration. If he failed to do
so, then [defendant] could not have repudiated the agreement.”).)” (Opposition, p. 4:12-21.)
The Court
cautions Defense counsel to proof-read its briefs more carefully in the
future. The first citation is to American
Cardio, LLC v. Itamar-Medical, Inc. (2012
WL2889047). The case is incorrectly
named in Defendant’s brief. Further,
there is no indication by Defendant that the quotation comes from an
unpublished Oregon federal district court case.
The second case cited is a 9th Circuit case. It arises from an appeal of a Hawaii district
court case and, of course, is not binding on this court. Further, the jump cite is incorrect; the sentence
cited is found on page 1122, not page 1112.
The Court finds that Plaintiff’s
unilateral selection of the arbitral forum did not result in a breach of
contract. Rather, Plaintiff justifiably invoked the arbitration agreement when
she selected JAMS.
2. Defendant
Waived Its Right to Joint Selection
The arbitration agreement requires that
the Parties arbitrate the claims at issue “before a single neutral arbitrator
selected jointly by the Parties.” Plaintiff submitted to Defendant a demand for
arbitration with JAMS. (Decl. Ghodsizadeh, ¶¶ 1–2.) Plaintiff argues that
Defendant did not oppose the JAMS selection, and Plaintiff’s Counsel declares
that “Defendant has never suggested or offered any arbitrators to use.” (Reply,
p. 3:15–16; Decl. Delshad, ¶ 3.) The Court is not aware of any counterproposals
to Plaintiff regarding from which organization aside from JAMS should the
arbitrator be selected.
A motion to compel arbitration is
“functionally equivalent” to a motion to vacate arbitration. (Cvejic v.
Skyview Cap., LLC (2023) 92 Cal.App.5th 1073, 1077; see also Gallo v.
Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 633 [“As a general matter,
an order vacating an order compelling arbitration is the functional equivalent
of an order denying a petition to compel arbitration in the first place because
both divert a case into court rather than arbitration(.)”].)
“Although a written agreement to arbitrate an
existing or future dispute is generally enforceable, a petition to compel
arbitration will be denied when the right has been waived by the proponent's failure
to properly and timely assert it. This may happen in a variety of contexts,
ranging from situations in which the proponent of arbitration has previously
taken steps inconsistent with an intent to invoke arbitration, to instances in
which the proponent has unreasonably delayed in undertaking the procedure.
There is no single determinative test of waiver, and the question for the trial
court is one of fact.” (Guess?, Inc. v. Super. Ct. (2000) 79 Cal.App.4th
553, 557, citations omitted.)
Instead of properly and timely asserting the right to arbitrate and
working with Plaintiff to jointly select a neutral arbitrator, Defendant did
not act. Defendant’s first objection was on July 24, 2023 – more than six weeks
after Plaintiff requested arbitration with JAMS, and more than thirty days
after JAMS issued an invoice to Defendant.
Defendant’s objections was only to arbitration as a whole, not to the
selection of the arbitrator.
In Guess?, Inc., the Court of Appeal found a defendant
waived its right to compel arbitration when it filed an answer, participated in
discovery, and then three months later moved to compel arbitration. (Guess?,
Inc., supra, at pp. 555, 559.)
Defendant’s failure to engage in a joint
selection of the arbitrator, after receiving notice of Plaintiff’s arbitration
claim and by the time JAMS issued the invoice, was a waiver of Defendant’s
right under the contract to jointly choose the arbitrator and an acquiescence
to Plaintiff’s choice of an arbitrator. (See, e.g., Civ. Code, §§ 3527 and
3529.)
D.
Whether Defendant Waived its Right to
Compel Arbitration
Code of Civil Procedure sections 1281.97 and 1281.99 are relatively
new statutes; they were first enacted in 2019 and have since been amended. (Gallo,
supra, 81
Cal.App.5th at pp. 633, 634, fn. 5.)
The few published cases to consider their text have all come to the
same conclusion: “the Legislature intended courts to apply the statute’s
payment deadline strictly.” (Espinoza v. Super. Ct. (2022) 83
Cal.App.5th 761, 771 [considering Code Civ. Proc., § 1281.97]; see also De
Leon v. Juanita’s Foods (2022) 85 Cal.App.5th 740, 752–757 [considering
Code Civ. Proc., § 1281.98]; Cvejic, supra, 92 Cal.App.5th
at p. 1077 [“As the legislative history and case law direct, we strictly
enforce this statute.”]; Doe v. Super. Ct. (2023) 95 Cal.App.5th 346,
350 [“(W)e strictly enforce the 30-day grace period in section 1281.98(a)(1)
and conclude fees and costs owed for a pending proceeding must be received by
the arbitrator within 30 days after the due date.” (Emphasis in original.)].)
Here, Plaintiff selected JAMS as the
arbitral forum and initiated arbitration. In the alternative, Defendant waived
its right to jointly select the arbitrator, at which point Plaintiff chose JAMS
and initiated arbitration with JAMS.
In accordance with Code of Civil Procedure section 1281.97,
subdivision (a)(2), JAMS issued an invoice for fees and costs prior to the
initiation of the arbitration. Defendant never paid its arbitration fees and
costs.
Plaintiff submitted her demand for arbitration in early June, 2023,
more than five months ago. Since more
than thirty days has passed since the due date of these fees without payment of
these fees, Defendant has waived its right to compel arbitration under Code of
Civil Procedure section 1281.2. (Code Civ. Proc., § 1281.97, subd. (a)(1).
E. Whether,
and Which, Sanctions are Appropriate Here
As a result of Defendant’s material breach of the arbitration
agreement and default by failure to pay its arbitration fees pursuant to the
statutory timeline, Plaintiff chose to withdraw her claim from arbitration and
proceed with litigation in this Court. (Code Civ. Proc., § 1281.97, subd.
(b)(1); Decl. De Neve, Exh. A, p. 1.)
In such a circumstance, the Court “shall
impose sanctions on the drafting party [i.e., Defendant] in accordance with
Section 1281.99.” (Code Civ. Proc., § 1281.97, subd. (d).)
Contrary to Defendant’s argument, there need not have been a
preexisting order from the Court to compel arbitration. There only needs to
have been a breach of the arbitration agreement in the manner contemplated by
the statute. (Accord Williams v. W. Coast Hosps., Inc. (2022) 86
Cal.App.5th 1054, 1067 [“Instead of requiring an initial determination of
default by anyone other than the consumer, the statutory scheme ensures that
the consumer’s unilateral election designates a forum for determining the
further consequences of the default. If the consumer elects to proceed in court
to commence or resume litigation, the consumer must, as plaintiffs did
here, seek vacatur of a prior order compelling arbitration and staying the
litigation, or face the drafting party’s motion to compel arbitration
notwithstanding its nonpayment.” (Emphasis added.)].)
Plaintiff requests monetary sanctions,
including attorney’s fees and costs. Although
Plaintiff discusses further sanctions listed in Code of Civil Procedure section
1281.99, subdivision (b) – including evidentiary sanctions, terminating sanctions
or contempt sanctions – she does not request them. (See Motion, p. 6:3-9; p. 7:5-10; p.
7:20-23.).
Plaintiff’s
Counsel declares: (1) that they anticipate spending 7.6 hours in total on the
Motion; and (2) that they charge $625.00 per hour. (Decl. Ghodsizadeh, ¶¶ 8,
12–13.) In addition, Plaintiff claims costs of $691.65, which is comprised of
$435.00 in filing fees, $195.00 in service fees, and $61.65 in motion fees.
(Motion, p. 7:16–18.)
The Court finds
that the hourly rate requested is reasonable, but that the requested time is
somewhat high. The Court also finds that the costs should not include the
filing fee of $435.00, since these fees would have been incurred paid by Plaintiff
regardless of whether or not the case had originally been sent to arbitration. (Of
course, should Plaintiff prevail, she may be able to recoup these fees as costs
of litigation.)
The Court will award fees for 5
hours of attorney time, for a total sanctions of $3,315.65 (5 hours x $625/hr.
+ costs of $190.65.)
III.
Conclusion
The Motion vacate the arbitration is GRANTED. Monetary sanctions
are AWARDED in favor of Plaintiff and against Defendant in the total amount of $3,816.65.
Case Number: 23VECV03369 Hearing Date: November 13, 2023 Dept: W CARLOS AGUILAR v. P.F. CHANG'S III, LLC
defendant’s demurrer with motion to strike the complaint
Date
of Hearing: November 13, 2023 Trial
Date: None Set
Department: W Case
No.: 23VECV03369
Moving Party: Defendant P.F. Chang’s China Bistro,
Inc. (erroneously sued and served as P.F. Chant’s III, LLC)
Responding Party: Plaintiff Carlos Aguilar
Meet and Confer: Yes. (Tsao Decl. ¶¶3-4.)
BACKGROUND
This is a
product liability action. Plaintiff alleges on August 4, 2021, Plaintiff
purchased and consumed fried rice from a P.F. Chang’s restaurant located in
Sherman Oaks and while consuming the fried rice, he bit into a metal object
resulting in injuries. On August 2, 2023, Plaintiff filed a complaint against Defendants P.F.
Chang’s China Bistro, Inc. (erroneously sued and served as P.F. Chant’s III,
LLC) (“P.F. Chang’s”) and Christine Doe for strict liability, negligence, breach of the implied warranty
of merchantability, breach of the implied warranty of fitness for intended
purpose, negligent misrepresentation, and breach of express warranty. Defendant
Christine Doe is allegedly the supervisor and/or manager of the Restaurant at
the time of the incident.
Defendant
P.F. Chang’s now demurs to the complaint as well as moves to strike portions of
the complaint.
[Tentative]
Ruling
Defendant
P.F. Chang’s China Bristo, Inc.’s Demurrer is SUSTAINED WITH LEAVE TO AMEND;
Defendant P.F. Chang’s China Bistro, Inc.’s Motion to Strike is GRANTED WITH
LEAVE TO AMEND, in PART.
EVIDENTIARY
OBJECTIONS
In opposition, Plaintiff submits objections to portions
of evidence submitted by Defendant P.F. Chang's China Bistro, Inc.’s in support
of its Demurrer and Motion to Strike. The court OVERRULES Plaintiff’s
objections nos. 1 and 2.
DISCUSSION
Defendant. P.F.
Chang’s demurs to the fifth cause of action for negligent misrepresentation on
the grounds Plaintiff fails to allege sufficient facts to constitute a cause of
action against Defendant. Defendant also moves to strike Plaintiff’s prayer for
attorney fees each and every mention of “Defendant CHRISTINE DOE” in the complaint.
Fifth Cause
of Action
Defendant demurs to
the fifth cause of action for negligent misrepresentation on the grounds the
Complaint fails to contain the requisite specificity by failing to allege the
elements of misrepresentation or any specifics regarding the purported
misrepresentation.
“The elements of
negligent misrepresentation are: (1) the defendant made a false representation
as to a past or present material fact; (2) the defendant made the
representation without reasonable ground for believing it to be true; (3) the
defendant intended to deceive the plaintiff by making the representation; ‘(4)
the plaintiff justifiably relied on the representation; and (5) the plaintiff
suffered resulting damages.’ [Citation.] (Hot Rods, LLC v.
Northrop Grumman Sys. Corp. (2015) 242 Cal.App.4th 1166,
1185.) “The specificity requirement means a plaintiff must allege
facts showing how, when, where, to whom, and by what means the representations
were made, and, in the case of a corporate defendant, the plaintiff must allege
the names of the persons who made the representations, their authority to speak
on behalf of the corporation, to whom they spoke, what they said or wrote, and
when the representation was made.” (West v. JPMorgan Chase Bank, N.A.¿(2013)
214 Cal.App.4th 780, 793, citing Lazar v. Superior Court¿(1996) 12
Cal.4th 631, 645.)
In their cause of
action for negligent misrepresentation, Plaintiff alleges Defendants made a
representation of a material fact relating to the production, distribution, manufacturing,
condition, sale, and representation of the fried rice; the representation was
false, misleading, inaccurate, and the Defendants making the misrepresentation
knew or should have known that the representation was in fact false,
misleading, and inaccurate; Defendants made misrepresentation with the intent to
induce the Plaintiff to enter into the transaction or otherwise detrimentally
change Plaintiff’s position regarding the decision to purchase the fried rice; and
Plaintiff was injured as a result of Defendant’s misrepresentation. (Compl.
¶¶31-36.)
The court finds
these allegations insufficient to support a negligent misrepresentation claim.
The complaint fails to allege what the misrepresentation regarding rice was.
Assuming it was that P.F. Chang’s represented that their food was safe for its
intended use and free of metal objects, the complaint still fails to allege
when the misrepresentations were made, by who, where it was made, and so forth.
The complaint is factually devoid of allegations regarding intent, reliance,
and causation as well.
In opposition,
Plaintiff argues they have sufficiently alleged he was harmed because of
Defendant’s negligent misrepresentations that the fried rice ordered and consumed
by Plaintiff was safe for human consumption. However, none of these contentions
appear in the face of the complaint. Moreover, the court notes several of
Plaintiff’s arguments in their opposition to the demurrer appear to be
irrelevant and not pertaining to the action at hand.
Accordingly,
Defendant’s demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO
AMEND.
Motion to
Strike
Defendant moves to
strike Plaintiff’s prayer for attorney fees and allegations against Defendant
Christine Doe on the grounds there is no basis alleged for the attorney fees
and moreover, Christine Doe cannot, as a matter of law, be personally liable. .
First, the court
agrees neither the complaint nor Plaintiff’s opposition provide any basis for
attorney fees. “Unless authorized by either statute or agreement, attorney’s
fees ordinarily are not recoverable as costs.” (Myers Building Industries,
Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 968.)
Consequently, attorneys’ fees may only be recovered if an authorizing statute,
law, or contract is identified or pled and proven. (CCP § 1033.5(a)(10); Bear
Creek Planning Committee v. Ferwerda (2011) 193
Cal.App.4th 1178, 1185.) However, unsupported attorneys fee allegations need
not be stricken pursuant to a motion to strike, since later discovery may
reveal a basis for their recovery.¿ (Camenisch v. Superior Court (1996)
44 Cal.App.4th 1689, 1699.) Although no basis has been provided yet,
discovery into Plaintiff’s breach of express warranty may reveal a basis for
attorney fees.
Accordingly, the
court denies Defendant’s motion to strike Plaintiff’s prayer for attorney fees
at this time.
Next, the court finds
Plaintiff’s allegations insufficient to support a claim against Defendant
Christine Doe. The general rule is that “[w]hen agents and employees are acting
in their official capacities on behalf of their principals and not as individuals
for their own advantage, their acts are generally privileged and do not give
rise to liability in tort or under statutes which impose duties on their
principals.” (Thornburg v. Superior Court (2006) 138 Cal.App.4th 43,
52.) Upon review of the complaint, there are no facts to suggest
that Christine Doe acted outside of her official capacity as a manager and/or
supervisor on behalf of P.F. Chang’s.
In opposition,
Plaintiff argues Defendant P.F. Chang’s does not have standing to make this
argument. However, as noted by P.F. Chang’s, it is not a stranger to the claims
against Defendant Christine Doe. (U.S. Western Falun Dafa Assn. v. Chinese
Chamber of Commerce (2008) 163 Cal.App.4th 590, fn. 3.) Each cause of
action is brought against All Defendants.
Accordingly, the
court grants Defendants’ motion to strike Defendant Christine Doe with leave to
amend.
Case Number: BC454901 Hearing Date: November 15, 2023 Dept: 32
|
LEONARD W. BORISOFF,
Plaintiff,
v.
THE PULLMAN GROUP, LLC,
et al.,
Defendants.
|
Case No.: BC454901
Hearing Date: November 15, 2023
[TENTATIVE]
order RE:
defendants’ motion to reopen discovery and
continue trial
|
|
|
|
BACKGROUND
On February 10, 2011, plaintiff
Leonard W. Borisoff (“Borisoff”), a composer, filed a complaint against
defendants the Pullman Group, LLC; Wertheim, LLC; David Pullman; and Broadcast
Music, Inc. Defendants prevailed in the compelled arbitration proceeding and
were awarded ownership of Borisoff’s past and future royalties and attorney
fees of $67,866.13. On October 3, 2013, Defendants petitioned the Court to
confirm the award, which the Court did on January 15, 2014, with a final
judgment entered on August 27, 2014. Borisoff appealed the judgment. The Court
of Appeal reversed the judgment. On February 4, 2021, the Currency Corp
(“Plaintiff”) was substituted as Borisoff’s successor in interest after he
passed away in 2020.
On February 9, 2023, Plaintiff filed
the operative Second Amended Complaint, alleging (1) fraud, (2) intentional
interference with contract, and (3) declaratory relief against Defendants
Pullman Group, David Pullman, and Wertheim LLC.
On October 19, 2023, Defendants filed the
instant motion to reopen discovery and continue trial. Plaintiff filed its
opposition on November 1, 2023. Defendant filed his reply on November 7, 2023.
LEGAL STANDARD
“On
motion of any party, the court may grant leave to complete discovery
proceedings, or to have a motion concerning discovery heard, closer to the
initial trial date, or to reopen discovery after a new trial date has been set.”
(Code Civ. Proc., § 2024.050(a).) The Court must consider the following factors:
(1) the necessity and the reasons for the discovery; (2) the diligence or lack
of diligence of the party seeking the discovery; (3) the likelihood that
permitting the discovery or hearing the discovery motion will prevent the case
from going to trial on the date set, or otherwise interfere with the trial
calendar, or result in prejudice to any other party; and (4) the length of time
that has elapsed between any date previously set, and the date presently set,
for the trial of the action. (Id., subd. (b).)
Trial continuances are disfavored and may
only be granted upon an affirmative showing of good cause. (Cal. Rules of Ct., Rule
3.1332(c).) Circumstances indicating good cause include: a party’s excused
inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts; or a significant, unanticipated change in the status
of the case as a result of which the case is not ready for trial. (Ibid.)
The court may also consider “[a]ny other fact or circumstance relevant to the fair
determination of the motion or application.” (Id., subd. (d)(11).)
DISCUSSION
This case was filed over a decade
ago and has been subject to multiple extensions or continuances. The Court is
not inclined to allow any further delays.
Defendant claims that another extension is
necessary because of Plaintiff’s discovery gamesmanship. However, Defendant is
responsible for serving discovery with sufficient time for potential motions to
compel. This is especially pertinent here, where Defendant claims that he has “been
forced to file motions to compel compliance with discovery at every step of the
way.” (Mtn. 8:12-13.) That means Defendant has been consistently aware that
motions to compel are necessary. Yet, Defendant waited until August 2023, a
mere month before the cutoff, to propound the latest round of discovery.
Defendant argues that its current counsel
only substituted in recently and had mere weeks to prepare additional discovery.
However, Defendant has been represented by various counsel throughout this
action. Defendant cannot use this as an
excuse to delay resolution of the case. Given how long this case has been
active, Defendant has had more than enough time to propound discovery. Even
assuming the latest discovery could not have been propounded until the most
recent operative SAC, that pleading was filed in February 2023, nine months ago.
Defendant’s delay in serving basic discovery regarding Plaintiff’s claims and
contentions is inexcusable and does not constitute good cause to reopen discovery
or continue trial.
CONCLUSION
Defendant’s motion to reopen
discovery and continue trial is DENIED.
Case Number: BC648304 Hearing Date: November 13, 2023 Dept: 32
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SPEEDY
FUEL, INC.,
Plaintiff,
v.
GILBARCO, INC., et al.,
Defendants.
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Case No.: BC648304
Hearing Date: November 13, 2023
[TENTATIVE]
order RE:
gilbarco’s motion for determination of
good faith settlement
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BACKGROUND
This action was initiated in January
2017 by Plaintiff Speedy Fuel, Inc., and it arises from losses Plaintiff
suffered due to unpaid fuel. Defendant Gilbarco, Inc. allegedly distributed faulty
merchant software that caused payments to be rejected, resulting in no payment
from customers. In August 2018, trial was separated in the following order: (1)
the individual customers were to be tried first; (2) then Gilbarco; (3) then the
payment processors (BAMS defendants); and (4) lastly, the customers’ banks. Plaintiff’s
claims against the individual customers were tried in March 2019. Plaintiff’s
claims against Gilbarco were tried in March 2022.
The March 2022 trial resulted in a
verdict in favor of Speedy, Cross-Defendant FH International Service Station
Maintenance, Inc. (FHI), and Cross-Defendant L&S Maintenance (L&S). On
July 25, 2022, the Court entered judgment in favor of Speedy against Gilbarco in
the amount of $1.3 million. Additionally, FHI was awarded $42,875 against
Gilbarco, and L&S was awarded $52,030.55 against Gilbarco.
Gilbarco appealed the judgment. The
BAMS Defendants and Bank of America settled with Plaintiff in December 2022. On
June 26, 2023, Plaintiff, Gilbarco, FHI, and L&S entered into a settlement
agreement whereby Gilbarco agreed to pay $1 million to Speedy, $42,875 to FHI,
and $52,030.55 to L&S in exchange for dismissing its appeal. (Hedrick
Decl., Ex. A.) In order to avoid double recovery, the agreement contains a claw-back
provision under which Speedy shall refund Gilbarco certain sums recovered from
customers of the Speedy 1 station and 35% of sums collected from the remaining
defendants. (Ibid.)
On October 10, 2023, Gilbarco filed
the instant motion for determination of good faith settlement under Code of
Civil Procedure section 877.6. The motion is unopposed, but Wells Fargo Bank,
NA (Wells Fargo) and JP Morgan Chase Bank, NA (Chase) filed a response on
October 30, 2023, requesting a judicial declaration that the claims against
them are reduced by the full $1 million notwithstanding the claw-back
provision. Speedy and Gilbarco filed their reply responses on November 3, 2023.
LEGAL STANDARD
Code of Civil Procedure section 877.6
governs the procedure for determining whether a settlement was made in good
faith. The statute provides that a settling party may file an application for
determination of good faith settlement by indicating the settling parties and
the basis, terms, and amount of the settlement. (Code Civ. Proc., § 877.6,
subd. (a)(2).) The issue of good faith may be determined by the Court based on
affidavits filed with the application and other evidence presented at the
hearing. (Id., § 877.6, subd. (b).) A determination of good faith by the
Court bars any other joint tortfeasor from any further claims against the
settling tortfeasor for equitable comparative contribution, or partial or comparative
indemnity, based on comparative negligence or comparative fault. (Id., §
877.6, subd. (c).)
In Tech-Bilt, Inc. v. Woodward-Clyde
& Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court concluded
that a number of factors must be taken into account in assessing a settlement’s
good faith under Section 877.6, including: (1) a rough approximation of
plaintiffs’ total recovery and the settlor’s proportionate liability, (2) the
amount paid in settlement, (3) the allocation of settlement proceeds among
plaintiffs, (4) a recognition that a settlor should pay less in settlement than
he would if he were found liable after a trial, (5) the financial conditions
and insurance policy limits of settling defendants, and (6) the existence of
collusion, fraud, or tortious conduct aimed to injure the interests of non-settling
defendants. These factors are not exhaustive and may not apply in all cases. (Dole
Food Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 909.) Further,
“[p]ractical considerations require that [their] evaluation be made on the
basis of information available at the time of settlement.” (Ibid.)
Where a settlement’s good faith is contested,
the moving party must make a showing that the Tech-Bilt factors are
satisfied. (City of Grand Terrace v. Superior Court (1987) 192
Cal.App.3d 1251, 1261.) But “when no one objects, the barebones motion which
sets forth the ground of good faith, accompanied by a declaration which sets
forth a brief background of the case is sufficient.” (Ibid.)
DISCUSSION
Because the jury verdict resulted in
a judgment of $1.3 million, the settlement amount of $1 million is within the
ballpark of Gilbarco’s potential liability. The Court finds no evidence of
collusion or intent to prejudice the non-settling defendants. “The party
asserting the lack of good faith shall have the burden of proof on that issue.”
(Code Civ. Proc., § 877.6(d).) No party has asserted a lack of good faith, much
less offered any evidence of such. Gilbarco has made a sufficient showing of
good faith considering the lack of opposition. (See City of Grand Terrace,
supra, 192 Cal.App.3d at p. 1261.)
Wells Fargo and Chase, and Speedy,
have filed opposing briefs contesting Wells Fargo and Chase’s entitlement to an
offset. This is Gilbarco’s motion for determination of good faith, and the
issue of offset need not be addressed currently. A motion for offset may be
brought as a posttrial motion. (See Garcia v. Duro Dyne Corp. (2007) 156
Cal.App.4th 92, 96 [trial court ruled on a motion to determine offset after
jury verdict].) A trial court may retain continuing jurisdiction to determine
offsets from settlement payments. (Id. at pp. 100-101.) “[T]he inquiry
at the good faith settlement stage is not the same as the inquiry at trial,
where complete precision of allocation could presumably be achieved.” (Regan
Roofing Co. v. Superior Court (1994) 21 Cal.App.4th 1685, 1704.) Therefore,
the Court does not reach the issue of offset. Wells Fargo and Chase may file a posttrial
motion if they are held liable and wish to offset the verdict amount.
CONCLUSION
Gilbarco’s motion for determination
of good faith settlement is GRANTED.
Case Number: BC665690 Hearing Date: November 13, 2023 Dept: K Defendant Emilio Colorado’s Motion to
Compel Acknowledgment of Partial Satisfaction of Judgment is GRANTED [see below].
Background
Case No. BC665690
Plaintiff John Rodriguez (“Plaintiff”) sustained injuries in
a June 9, 2016 motorcycle v. car collision.
On June 20, 2017, Plaintiff filed a complaint, asserting
causes of action against City of Irwindale (“Irwindale”), State of
California—CalTrans (“CalTrans”), County of Los Angeles (“County”), Tony Lai
(“Lai”) and Does 1-100 for:
1.
Liability for Dangerous Condition of Public Property
Pursuant to Gov’t. Code § 835
2.
Negligence
On November 17, 2017, Plaintiff filed an “Amendment to
Complaint,” wherein City of Baldwin Park (“Baldwin Park”) was named in lieu of
Doe 2.
On December 14, 2017, Plaintiff dismissed CalTrans, without
prejudice.
On December 21, 2017, Baldwin Park filed a cross-complaint,
asserting causes of action against Lai, County and Roes 1-50 for:
1.
Contribution
2.
Declaratory Relief
3.
Apportionment
4.
Equitable Comparative Indemnity
5.
Total Equitable Indemnity
On March 7, 2018, Baldwin Park filed an “Amendment to
[Cross-]Complaint,” wherein Emilio Colorado (“Colorado”) was named in lieu of
Roe 1.
On April 23, 2018, Case Nos. BC665690 and BC693398 were
ordered related.
On May 24, 2018, Irwindale filed a cross-complaint,
asserting causes of causes of action against Colorado, Lai and Roes 1-100 for:
1.
Total Equitable Indemnity
2.
Partial Equitable Indemnity
3.
Declaratory Relief
4.
Contribution and Repayment
On June 1, 2018, Lai filed a cross-complaint, asserting
causes of action against Irwindale, Baldwin Park, Colorado and Foes 1-100 for:
1.
Equitable Indemnity
2.
Contribution
3.
Apportionment
4.
Declaratory Relief
On July 11, 2018, Case Nos. BC665690 and BC693398 were
ordered consolidated; Case No. BC665690 was designated as the lead case.
On August 14, 2018, Colorado filed a cross-complaint,
asserting causes of action against Irwindale, Baldwin Park, Lai and Roes 1-20
for:
1.
Indemnity
2.
Contribution
On August 16, 2019, Plaintiff dismissed County, without
prejudice.
On January 6, 2020, an “Order Determining Good Faith
Settlement” as between Plaintiff and Lai was entered. On January 8, 2020,
Plaintiff dismissed Lai, with prejudice.
On September 18, 2020, the court granted Irwindale’s motion
for determination of good faith settlement. On September 28, 2020, Plaintiff
dismissed Irwindale, with prejudice.
On September 30, 2020, Irwindale dismissed its
cross-complaint, without prejudice.
On September 7, 2021, an order granting Baldwin Park’s
motion for determination of good faith settlement was filed.
The case proceeded to jury trial on September 9, 2021. On
January 6, 2022, “Judgment on Special Verdict” was entered.
On September 18, 2023, remittitur was filed (affirmed).
Case No. BC693398
On February 8, 2018, Plaintiff filed a complaint, asserting
causes of action against Colorado and Does 1-10 for:
1.
Motor Vehicle
2.
General Negligence
On April 23, 2018, Case Nos. BC665690 and BC693398 were
ordered related. On July 11, 2018, Case Nos. BC665690 and BC693398 were ordered
consolidated; Case No. BC665690 was designated as the lead case.
Legal Standard
“The judgment debtor . . . may serve on the judgment creditor
a demand in writing that the judgment creditor execute, acknowledge, and
deliver an acknowledgment of partial satisfaction of judgment to the person who
made the demand. Service shall be made personally or by mail. If the judgment
has been partially satisfied, the judgment creditor shall comply with the
demand not later than 15 days after actual receipt of the demand.” (Code Civ.
Proc., § 724.100, subd. (a).)
“If the judgment creditor does not comply with the demand
within the time allowed, the judgment debtor or the owner of the real or
personal property subject to a judgment lien created under the judgment may
apply to the court on noticed motion for an order requiring the judgment
creditor to comply with the demand. The notice of motion shall be served on the
judgment creditor. Service shall be made personally or by mail. If the court
determines that the judgment has been partially satisfied and that the judgment
creditor has not complied with the demand, the court shall make an order
determining the amount of the partial satisfaction and may make an order
requiring the judgment creditor to comply with the demand.” (Code Civ. Proc., §
724.100, subd. (b).)
Discussion
Colorado moves the court for an order compelling Plaintiff
to comply with Colorado’s written demand to file and deliver acknowledgment of
partial satisfaction of judgment.
Colorado’s counsel Tracy D. Forbath (“Forbath”) represents
as follows:
Judgment was entered on January 6,
2022. (Forbath Decl., ¶ 4, Exh. B). Colorado subsequently appealed. (Id.,
¶ 5, Exh. C.) On April 3, 2023, during the pendency of the appeal, Colorado
tendered Check No. 1635792584 to Plaintiff in the amount of $15,000.00. (Id., ¶ 6). On August 14, 2023, Forbath sent a
letter to Plaintiff’s counsel Mauro Fiore Jr., memorializing therein that
Colorado had tendered a $15,000.00 check to Plaintiff on April 3, 2023 and
requesting that Plaintiff file and deliver a partial acknowledgment of
satisfaction of judgment on or before August 29, 2023. (Id., ¶ 8, Exh.
E). Plaintiff has not responded to the aforesaid August 14, 2023 letter by
filing a partial acknowledgment of satisfaction of judgment as of the October
16, 2023 motion filing date. (Id., ¶ 9).
The motion is granted. Plaintiff is to deliver an
acknowledgment of partial satisfaction of judgment in the amount of $15,000.00
to Colorado within 10 days from the date of the hearing.
Case Number: BC700634 Hearing Date: November 13, 2023 Dept: 8
| Esphorst vs Hicks and Ming, BC700634 Motions in Limine for Trial |
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| MIL No. |
Subject of Motion |
Tentative |
Brief Discussion |
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| ¶-1 |
To Bar Def from
disputing Liability |
Grant |
Unopposed,
but Order should be to prevent dispute of fault and causation, not to bar
evid of other causes. Hicks admits in
MIL 3 at p. 2:4-6 that liability is deemed admitted |
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| ¶-2 |
To Exclude Evid of
Go Fund Me Donations |
Grant. Why should Def benefit from charity pd by
non-parties? |
Collateral
source rule argued. Opp notes Go Fund Me is POST-accident, not like insur
before an accident. CACI 3926
Settlement Deduction advises jury not to consider amt PL received from
settlement with other PARTIES, but does not speak to charitable
contributions Caselaw and CCP 877 says
the COURT, not jury, makes the deduction.
But neither shall PLs present evid that they are living hand-to-mouth,
are destitute, etc. Jury should
calculate damages from econ damages and factors in CACI 3921 / 3922 on WD
non-econ award, rather than on largess of others |
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| ¶-3 |
To
exclude evidence of settlement with other Defs, and to remove names of other
Defs from caption |
Ditto,
unless settling Def is trial wit |
N0
law cited by Def that permits jury to hear amt of settlement with other
parties. Is any settling Def
testifying, and if so is settlement potential evid of bias by that party
under Shepherd v Walley (1972) 28 CA3d 1079, 1082 fn. 2? |
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| ¶-4 |
T
exclude evid of PLs' victim impact statements made in criminal case (PL
expressed forgiveness towards Ming but not Hicks) |
Grant |
Unopposed |
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| ¶-5 |
Exclude
or limit Def police practices expert Curtis Cope |
Discuss |
Unopposed,
but won't parties ask for allocation of non-econ damages per Prop 51, and
seek a higher % or liab as to the County for 911 call operator asking Ming to
get license number from fleeing Hicks?
Doesn't PL have a police practices expert too? |
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| ¶-6 |
Exclude
evid that Decedent did not use a seat belt |
Grant |
Unopposed. No biomechanics expert designated. Note, in MIL pg. 4:18, PL argues Truman vs
Vargas is the "Seminole" case in this area . . . . Motion attaches depo of Julie re coroner
noting marks on chest, and autopsy diagram showing clavicle fracture,
arguably from seat belt. Does PL have
biomechanic who opined on this? |
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| ¿ Ming-1 |
To Bifurcate
Liab and Compensatory damages |
Deny |
Judge Hill
previously denied this motion, and no material change in facts since then for
Ct to make required finding under CCP 598 to bifurcate |
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| ¿ Ming-2 |
To
permit Ming's remote attendance at trial |
Grant,
but must attend by video, not audio |
Unopposed. Discussed in part at FSC, PL not willing to
stip to depo passages and Ct will accommodate Def's unavailability per good
cause showing under CRC 3.672(j) |
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| ¿ Ming-3 |
To
exclude evid of other lawsuits, including fraudulent transfer suit |
Grant,
but must attend by video, not audio |
Unopposed |
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| ¿ Ming-4 |
To
exclude evid of health and later death of Cody, Jessie Jr.'s younger brother |
Deny |
Evidence
of Cody's cancer and death raises 352 balancing, but the Court will admonish
jury per CACI 100 and 5000 not to base any decision on sympathy. Court will allow evidence that Plaintiffs
still have 2 other children to mitigate potential "only child"
prejudice |
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| ¿ Ming-5 |
To
exclude comments by Hicks' mother at criminal sentencing |
Grant |
Unopposed |
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| ¿ Ming-6 |
Reptile
Theory / Golden Rule, during 1st phase of bifurcated trial |
Grant
in part, rest Deny w/o prejudice |
The
Ct will order both sides NOT to ARGUE during Voir Dire or Mini Openings nor
full Opening statements. As for
specific Voir Dire Qs, Ct will rule on objections if, as, and when raised. Closing argument cannot be ruled on
prospectively or in vacuum |
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| ¿ Hicks-1 |
To exclude
mention of Dollar amount in Voir Dire or Opeing Statement |
Grant in part |
Discussed with
counsel at FSC; dollar amounts for NON-ECONOMIC damages not allowed in Voir
Dire or Openings or Mini Openings, but
ok to discuss amt of economic damages |
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| ¿ Hicks-2 |
To
exclude cumulative testimony, photos
etc. |
Deny
w/p Prejudice |
Motion
fails to ID which witness, which exhibit, which photo is
"cumulative" Court will rule
on objections if, as, and when raised during trial or after certain number of
photos or witnesses have been admitted and offer of proof is made as to
additional exhibits or witnesses. PL
runs risks of over-selling case or parading excessive witnesses or exhibits
on the same point, and DEF might opt to refrain from objecting as matter of
trial strategy |
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| ¿ Hicks-3 |
To
exclude evidence of brown liquid in Hicks' car, had suspended license, and
claim of hit and run after contracting Esphorst vehicle |
Grant
at 1st phase of bifurcated trial |
Unopposed. Unclear from motion if brown liquid was
determined to be alcohol, and unclear if "hit and run" was charged
or was subject of conviction |
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| ¿ Hicks-4 |
To
exclude evid of Hicks' phone searches and private messages |
Grant
at 1st phase of bifurcated trial |
Unopposed |
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| ¿ Hicks-5 |
To
exclude media coverage |
Discuss |
Unopposed,
but voir dire usually inquires if any members of venire have heard of or read
about the facts of the case. If so,
the Court intends to sequester those jurors from others to enable questioning
without tainting others |
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| ¿ Hicks-6 |
To
exclude reference to Hicks' criminal file |
Discuss |
Unopposed,
but does this MIL seek to exclude mention of Hicks' manslaughter
conviction? |
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Case Number: KC069873 Hearing Date: November 14, 2023 Dept: 6 CASE NAME: Yan Li, et al. v. April Lin, et al. Cross-Defendant Peizhen Lin’s Motion to Dismiss the First Amended Cross-Complaint TENTATIVE RULING The Court GRANTS Cross-Defendant Peizhen Lin’s motion to dismiss the First Amended Cross-Complaint filed by Jui Yuan Cheng, et al. The First Amended Cross-Complaint filed by Jui Yuan Cheng, et al. is dismissed without prejudice as to Cross-Defendant Peizhen Lin. Lin is ordered to give notice of the Court’s ruling and file proof of service of same within five calendar days of this order. BACKGROUND This is a breach of contract case. On December 12, 2017, Plaintiffs Yan Li and Mesarica Management, LLC (“Plaintiffs”) filed this action against Defendants April Lin, Han International Group, Inc., Shigang Li, Jui Yuan Cheng, Moon Management Consulting, LLC and Does 1 through 10 (collectively, “Defendants”). On January 12, 2018, Defendants April Lin, Han International Group, Inc. Shigang Li, Jui Yuan Cheng, and Moon Management Consulting, LLC (collectively, “Cross-Complainants”) filed a cross-complaint against Cross-Defendants Yan Li, Mesarica Management, LLC, Peizhen Lin, Lili Young, and Does 1 through 10 (the “Cross-Complaint”). On March 15, 2018, after hearing oral argument, the Court sustained the demurrer of Plaintiffs and Cross-Defendants Yan Li and Mesarica Management, LLC to the Cross-Complaint without leave to amend. On July 27, 2018, after hearing oral argument, the Court sustained the demurrer of Cross-Defendant Lili Young to the Cross-Complaint with 10 days leave to amend. On August 6, 2018, Cross-Complainants filed the operative First Amended Cross-Complaint (“FAXC”).[1] The FAXC sets forth causes of action for fraud, fraud and deceit by intentional misrepresentation, fraud and deceit by concealment and nondisclosure of known facts, negligent misrepresentation, breach of fiduciary duty, equitable indemnity, and contribution.[2] On October 15, 2018, after hearing oral argument, the Court sustained the demurrer of Cross-Defendant Lili Young to each cause of action in the FAXC without leave to amend. On July 8, 2020, Plaintiffs filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for fraud, breach of contract—listing agreement, breach of fiduciary duty, professional negligence, breach of contract—lease agreement, and negligence. On October 18, 2023, Cross-Defendant Peizhen Lin (“Lin”) filed and served a motion to dismiss the FAXC with prejudice (the “Motion”). The Motion is made on the grounds that Lin was not served with the summons, cross-complaint, or the FAXC in this action. Lin asserts that the Court lacks jurisdiction over Lin’s person and Cross-Complainants’ time to properly serve the summons and cross-complaint has expired. The Motion is unopposed. Any opposition to the Motion was required to have been filed and served at least nine court days prior to the hearing pursuant to Code. Civ. Proc. § 1005(b). LEGAL STANDARD “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant . . . [and] an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) “Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.” (Code Civ. Proc., § 583.210, subd. (b).) If service of a complaint or cross-complaint is not made within the time articulated in Code Civ. Proc., § 583.210 then “(1) [t]he action shall not be further prosecuted and no further proceedings shall be held in the action [and] (2) [t]he action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.” (Code Civ. Proc., § 583.250, subd. (a)(1)-(2).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc., § 583.250, subd. (b).) “If a party has not appeared in the action, a summons upon the cross-complaint shall be issued and served upon him in the same manner as upon commencement of an original action.” (Code Civ. Proc., § 428.60.) REQUEST FOR JUDICIAL NOTICE
The Court GRANTS Lin’s request for judicial notice. (Evid. Code, §§ 451 and 452.)
DISCUSSION Appropriateness of Dismissing the FAXC Against Lin Lin attests that Lin was never served with the summons, the cross-complaint, or the FAXC in this action. (Lin Decl., ¶ 3.) Based on a review of the court file, Cross-Complainants have not filed any proof of service of the summons, cross-complaint, or FAXC on Lin. At the latest, Lin should have been served by January 2021. Almost six years have elapsed since the filing of the initial Cross-Complaint and Lin has yet to be served. The operative FAXC was filed in August 2018—which is over five years ago—and Lin has not been served with such pleading. Lin has therefore shown a basis for dismissing the FAXC pursuant to Code Civ. Proc., § 583.250. Moreover, the Motion is unopposed which leads to an inference that it is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Based on the foregoing, the Motion is GRANTED. CONCLUSION The Court GRANTS Cross-Defendant Peizhen Lin’s motion to dismiss the First Amended Cross-Complaint filed by Jui Yuan Cheng, et al. The First Amended Cross-Complaint filed by Jui Yuan Cheng, et al. is dismissed without prejudice as to Cross-Defendant Peizhen Lin. Lin is ordered to give notice of the Court’s ruling and file proof of service of same within five calendar days of this order.
Case Number: KC070412 Hearing Date: November 13, 2023 Dept: K Plaintiff Joseph
Aguilar’s Motion to Amend Judgment to Reflect Pre-Judgment Interest Award is GRANTED.
Background
Plaintiff Joseph Aguilar (“Joseph”) alleges as follows:
Joseph is Martha Gonzalez’s (erroneously sued as Martha
Aguilar) (“Martha”) nephew. In 1994, Joseph’s grandparents owned the property
located at 5403 North Heathdale Avenue, Azusa, CA 91802 (“subject property”).
Joseph was only three years old at that time. It was Joseph’s grandparents’
stated intention that the subject property would be Joseph’s inheritance. Joseph’s
grandmother transferred the subject property to Martha in trust until Joseph
became an adult. On or about February 7, 2011, Martha executed and delivered a
grant deed to Joseph; at or about that same time, Joseph and Martha filled out
a “Preliminary Change in Ownership Report.” Martha requested that Joseph hold
on to the deed and not record it. Following delivery of the grant deed, Joseph
and Martha orally agreed that Martha would continue to manage the subject
property. In late 2017, Joseph became aware that Martha had sold the subject
property and used the sales proceeds for her sole benefit.
On July 13,
2021, Joseph filed a First Amended Complaint, asserting causes of action
against Martha and Does 1-25 for:
1.
Breach of
Contract
2.
Constructive
Trust
3.
Fraud
4.
Resulting
Trust
5.
Breach of
Fiduciary Duty
6.
Money Had
and Received
The case
proceeded to jury trial on March 23, 2022. On March 28, 2022, the verdict form
was filed. On April 12, 2022, “Judgment After Jury Trial” was filed.
On June 9,
2022, Martha filed (and mail-served) a “Notice of Entry of Judgment.” On July
20, 2022, an abstract of judgment was issued. On August 8, 2022, a writ of
execution was issued.
Legal Standard
“When jurisdiction is, by the Constitution or this Code, or by
any other statute, conferred on a Court or judicial officer, all the means
necessary to carry it into effect are also given; and in the exercise of this
jurisdiction, if the course of proceeding be not specifically pointed out by
this Code or the statute, any suitable process or mode of proceeding may be
adopted which may appear most conformable to the spirit of this Code.” (Code
Civ. Proc., § 187).
Discussion
Joseph moves the court, per Code of
Civil Procedure § 187, for an order to amend the judgment entered on April 12,
2022 by adding in $188,577 in pre-judgment interest.
Request for
Judicial Notice
Joseph’s Request for Judicial Notice
(“RJN”) is granted.
Merits
“A person who is entitled to recover
damages certain, or capable of being made certain by calculation, and the right
to recover which is vested in the person upon a particular day, is entitled
also to recover interest thereon from that day. . .” (Civ. Code § 3287, subd.
(a).) “The
purpose of prejudgment interest is to compensate plaintiff for loss of use of
his or her property.” (Segura v. McBride (1992) 5 Cal.App.4th 1028,
1041).
The jury verdict form, filed on
March 28, 2022, reflects a finding that Joseph was entitled to prejudgment
interest. (LeBlanc Decl., ¶ 3, Exh. A). The judgment entered on April 12, 2022
acknowledges that the jury awarded pre-judgment interest; however, the amount
is not stated therein. (Id., ¶ 4, Exh. B.) Joseph asserts that
pre-judgment interest runs from November 1, 2012, the date the subject property
was sold, and should be calculated at 10% per annum pursuant to Civil Code §
3287. (See RJN).
Martha, in turn, first asserts that the
motion is untimely and should have been brought before entry of judgment. Not
so. Martha’s citation to North Oakland Medical Clinic v. Rogers (1998)
65 Cal.App.4th 824 is distinguishable because the question addressed there was
“whether plaintiffs timely requested the court to exercise its power to
determine whether plaintiffs were entitled to interest under section 3287 in
circumstances where damages had been awarded but no interest was included in
the verdict and where neither court nor jury had determined whether the damages
were liquidated or unliquidated.” (Id. at 829) Here, Joseph’s entitlement
to recoup prejudgment interest has already been established by the jury
verdict form and judgment. The motion here only seeks a determination of the amount
of that interest.
Martha next asserts that the
Joseph’s claim was unliquidated, such that Civil Code § 3287, subdivision (b)
[i.e., “[e]very person who is entitled under any judgment to receive damages
based upon a cause of action in contract where the claim was unliquidated, may
also recover interest thereon from a date prior to the entry of judgment as the
court may, in its discretion, fix, but in no event earlier than the date the
action was filed”] applies. The court disagrees.
“[P]rejudgment interest is allowable
where the amount due plaintiff is fixed by the terms of a contract, or is
readily ascertainable by reference to well-established market values. . .
interest is not allowable where the amount of the damages depends upon a
judicial determination based upon conflicting evidence and is not ascertainable
from established market prices or values.” (Leaf v. Phil Rauch, Inc.
(1975) 47 Cal.App.3d 371, 375.) “The test for recovery of prejudgment interest
under section 3287, subdivision (a) is whether defendant actually
know[s] the amount owed or from reasonably available information could the
defendant have computed that amount.” (Cassinos v. Union Oil Co. (1993)
14 Cal.App.4th 1770, 1789 [internal quotations and citation omitted;
emphasis in original].) Here, there is no conflicting evidence; the amount of
damages was the profit that Martha secured from the sale of the subject
property. Martha actually knew the amount owed or could ascertain her potential
exposure to Plaintiff via “reasonably available information,” such as the sales
documents for the subject property.
The motion is granted. Prejudgment
interest, then, is properly calculated from November 1, 2012, the date the
grant deed was signed, at the rate of 10% per annum. (RJN; Civ. Code § 3289,
subd. (b)).
Case Number: NC061338 Hearing Date: November 14, 2023 Dept: S27 1. Background
Facts
Plaintiff, Parkview Village, LLC
filed this action against Defendants, Lisa Renee Marin, Diori Rafael Jones,
Dustin Anthony Chavis, Austin Maurice Johnson, A 2ND Look 4 You, and
Viva Fit for breach of contract, account stated, and unjust enrichment on
8/21/17. Plaintiff’s complaint is for
monetary damages for breach of a commercial lease agreement.
The Court, at Plaintiff’s request,
entered judgment by default against Defendants on 7/23/18. The judgment is in the principal amount of
$32,930.00. The judgment includes
prejudgment interest and costs. The
judgment also includes an award of attorneys’ fees in the amount of $1337.90
based on the attorneys’ fees provision in the parties’ contract.
2. Motion
for Attorneys’ Fees
Judgment Creditor has been
attempting, since 7/23/18, to enforce the judgment. Judgment Creditor’s attorney, Alexander
Haroonian, declares that Judgment Creditor has incurred attorneys’ fees and
costs in the amount of $12,259.15 in attempting to enforce the judgment. Post-judgment attorney effort has included
attempting to take judgment debtor examinations of Chavis and Jones, opposing a
motion to vacate default judgment by Jones, and communicating with Johnson
concerning resolution of the judgment.
Exhibit 5 to the moving papers is the billing statement for Haroonian’s
fees, which the Court has read and finds to show all fees were both necessarily
and reasonably incurred.
The motion is granted. CCP §§685.040, 1033.5(a)(10)(A), and the
parties’ lease, §27. Plaintiff is
ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the tentative
and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the
party’s email must include the case number and must identify the party
submitting on the tentative. If any party does not submit on the tentative, the
party should make arrangements to appear remotely at the hearing on this
matter.
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