EXHIBIT(S) - 1 (Motion #1) - AG's Petition under Index No. 450750/2024 March 11, 2024 (2024)

Case

Ameris Bank, D/B/A BALBOA CAPITAL v. Rapha Family Medical Wellness, P.C., A New York Corporation, Frances Ilozue, Does 1 Through 10, Inclusive,

Aug 12, 2024 |Commercial - Contract |Commercial - Contract |614145/2024

Case

Fora Financial Warehouse,Llc, v. Meleven Llc d/b/a FRESH COAST KITCHEN, Anthony Torres

Aug 29, 2024 |Other Matters - Contract - Other |Other Matters - Contract - Other |615363/2024

Case

Fora Financial Funding, Llc, v. A Perfect Pic Home Repairs And Renovations Llc d/b/a A PERFECT PIC HOME REPAIRS AND RENOVATIONS, Jeremy Peak

Sep 24, 2021 |Commercial - Contract |Commercial - Contract |612247/2021

Case

Cintas Corporation No. 2 v. Culturas Fiesta Corporation

Case

Aq Gourmet Food Corp. v. Strategic Capital Metropolitan Llc

Jan 19, 2024 |Bruce Cozzens |Commercial - Contract |Commercial - Contract |601127/2024

Case

Gilbert J. Cordero v. Miguel Angel Rodriguez Santiago

Dec 12, 2023 |Commercial - Contract |Commercial - Contract |620163/2023

Case

MMP Capital, LLC v. CALLOWAY, INDIA et al

Apr 19, 2024 |Mcgrath, Hon. Christopher T. |Comm-Contract |Comm-Contract |606738/2024

Case

GOLDEN GATE v. BLAST APPLICATIONS INC.,

Case

NATIONAL COLLEGIATE STUDENT v. RIVERA, DANNY

Jul 16, 2013 |Randy Sue |Comm-Contract |Comm-Contract |013705/2011

Ruling

TJG/Summitt Development Corporation vs. North State Grocery, Inc.

Aug 29, 2024 |22CV-0200775

TJG/SUMMITT DEVELOPMENT CORPORATION VS. NORTH STATE GROCERY, INC.Case Number: 22CV-0200775This matter is on calendar for review regarding trial re-setting. The litigation is at issue. The Court designatesthis matter as EXEMPT from the case disposition time standards. The matter is ready to be re-set for a court trial.An appearance is necessary on today’s calendar to provide the Court with available trial dates.

Ruling

UNITED CARGO MANAGEMENT, INC., A CALIFORNIA CORPORATION VS QRRI, INC., A GEORGIA CORPORATION, ET AL.

Aug 29, 2024 |23LBCV01618

Case Number: 23LBCV01618 Hearing Date: August 29, 2024 Dept: S25 Background On August 25, 2023, Plaintiff filed a complaint against Defendants QRRI, Inc. and Does 1 to 50. On November 8, 2023, Plaintiff filed a first amended complaint (FAC) against Defendants QRRI, Inc., RM Biltrite LLC and Does 1 to 50, alleging six causes of action: breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) unjust enrichment, (4) goods and services rendered, (5) negligence, and (6) negligent misrepresentation. Plaintiff provides container shipping services and alleges that Defendants have accumulated an unpaid balance of $425,151.92, not including finance charges and interest. (FAC ¶ 48.) On May 23, 2024, the Court granted Plaintiffs ex parte application to shorten the time for the hearing on the instant motion. (May 23, 2024 Minute Order.) On July 3, 2024, the Court granted Plaintiffs motion to compel Defendants Responses to Plaintiffs Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, declining Plaintiffs request for monetary sanctions. (July 3, 2024 Minute Order.) On August 7, 2024, Plaintiff filed the instant motion to compel Defendants responses to: Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One and for monetary sanctions. Legal Standard If a party to whom interrogatories and document demands are directed fails to respond at all, the propounding partys remedy is to seek a court order compelling answers thereto. (Code Civ. Proc., §§ 2030.290, 2031.300.) All that needs to be shown is that the discovery was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. The moving party is not required to show a reasonable and good faith attempt to resolve the matter informally before filing this motion. A motion to compel initial discovery responses need not show good cause, meeting and conferring, or timely filing, and need not be accompanied by a separate statement. (See Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 404.) The failure to timely respond also waives all objections.¿¿(Code Civ. Proc., § 2030.290, subd. (a), § 2031.300, subd. (a).) On motion, a party may be relieved from its waiver of objections if: (1) the party subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240 and (2) [t]he partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290, subd. (a)(1)-(2); accord. § 2031.300, subd. (a)(1-2) [request for production of documents].) "The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust." (Code Civ. Proc. § 2030.290, subd. (c); accord. § 2031.300, subd. (c) [requests for production of documents].) Code Civ. Proc. § 2023.010, subd. (d), provides that a misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. Code Civ. Proc. § 2023.010, subd. (h), states that a misuse of the discovery process includes making or opposing, unsuccessfully and without substantial justification, a motion to compel or limit discovery. A court may impose a monetary sanction against a party engaging in the misuse of the discovery process or any attorney advising such conduct under Code Civ. Proc., § 2023.030, subd. (a). A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.) Improper Motion Filing The uniform fee for filing a discovery motion under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure is $60. (Gov. Code § 70617(a)(4).) Regardless of whether each motion or matter is heard at a single hearing or at separate hearings, the filing fee required by subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed. (Gov. Code § 70617(f).) Plaintiff should have filed a total of six separate motions: three separate motions for two defendants as to the Form Interrogatories, Special Interrogatories and Requests for Production of Documents. Instead, Plaintiff combined the discovery requests into one noticed motion. Arguments Plaintiff argues that Defendant QRRI, Inc. and Defendant RM Biltrite LLC have not responded to written discovery, despite the Courts July 3, 2024 order compelling them to do so by August 2, 2024. (Nomura Decl., ¶¶ 7-8, Ex. J.) Plaintiff makes mention of issue, evidence or terminating sanctions but does not provide any arguments as to why such sanctions are justified in this matter. Plaintiff also seeks $4,500 in monetary sanctions. (Nomura Decl., ¶ 9.) As set forth in the declaration of Bryan Grundon, Defendants assert verified responses for Form Interrogatories, Set One, and Special Interrogatories, Set One, were provided to Plaintiff on August 7, 2024. Defendants also assert that $4,500 is excessive for monetary sanctions request. In reply, Plaintiff confirms that responses to Plaintiffs Form Interrogatories, Set One, and Special Interrogatories, Set One, were served, but argues that Defendants did not serve responses to Plaintiffs Requests for Production of Documents, Set One. (Nomura Decl. ISO Reply, ¶¶ 5-6.) Plaintiff makes no further elaboration on its earlier request for issue, evidence or terminating sanctions. Plaintiff now seeks $5,500 in monetary sanctions. (Nomura Decl. ISO Reply, ¶ 7.) Tentative Ruling Although Defendant served verified responses for Form Interrogatories, Set One, and Special Interrogatories, Set One, on August 7, 2024, it is unclear if Defendants served responses to Plaintiffs Requests for Production of Documents, Set One. If Defendant served responses to Plaintiffs Requests for Production of Documents, Set One, on August 7, 2024 in combination with Defendants other verified responses, the current motion is deemed moot. If responses were not server to Plaintiffs Requests for Production of Documents, Set One, Plaintiffs motion is granted, in part. Within 20 days, Defendant QRRI, Inc. and Defendant RM Biltrite LLC are to provide objection-less responses to the Plaintiffs Requests for Production of Documents, Set One. The Court declines to award monetary sanctions against Defendants and their counsel in this instance; however, further continued failure by Defendants to timely respond to discovery requests or engage in the discovery process will likely result in future monetary sanctions.

Ruling

DOWNARD VS. GOLDMAN

Aug 26, 2024 |CVCV20-0195408

DOWNARD VS. GOLDMANCase Number: CVCV20-0195408This matter is on calendar for review regarding status of sale. The Court notes that Defendant filed a Motion forEntry of Final Judgment on Accounting and for Distribution of Proceeds of Sale that was denied without prejudiceon August 5, 2024 due to a lack of notice. The Court is therefore aware that the property has sold. Defendanthas not refiled the motion with proper notice, but it appears from the Petitioner’s Status Report filed August 22,2024 that a stipulation for entry of judgment is being considered by the parties. The matter is continued toMonday, October 28, 2024 at 9:00 a.m. in Department 63 for status of the case. No appearance is necessaryon today’s calendar.

Ruling

MINGXI ZHU, AN INDIVIDUAL VS SURROGATE FIRST, A CALIFORNIA CORP.,, ET AL.

Aug 27, 2024 |24STCV04836

Case Number: 24STCV04836 Hearing Date: August 27, 2024 Dept: 52 Tentative Ruling: Defendants SurrogateFirst and Lina Lis Demurrer and Motion to Strike Portions of Second Amended Complaint Requests for Judicial Notice Defendants SurrogateFirst and Lina Li request judicial notice of three exhibits: (A) a signed contract between plaintiff Mingxi Zhu and SurrogateFirst, (B) an estimated cost sheet & timeline of deposits, and (C) escrow agreements executed by plaintiff. The documents are ostensibly subject to judicial notice because they are not reasonably subject to dispute, so the court may take judicial notice of their contents and legal effects, but not the truth of statements of fact made therein. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265; Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666, fn. 2.) Plaintiff did not oppose defendants requests for judicial notice. Defendants unopposed requests for judicial notice are granted. Demurrer Defendants SurrogateFirst and Lina Li demur to all six causes of action alleged by plaintiff Mingxi Zhus second amended complaint. Summary of Allegations The second amended complaint alleges, On or about July 16, 2021, Plaintiff had his first conversation with Lina Li, the founder of SurrogateFirst regarding Plaintiffs request to contract with surrogate mothers to birth six (6) babies in the Chinese Year of the Tiger. (SAC, ¶ 11.) He requested that the mothers chosen to have a history of high success rates in birth, including a healthy medical history with no use of drugs and alcohol. Additionally, Plaintiff requested that the babies have German or Jewish descent. Lina Li agreed to these requests on behalf of SurrogateFirst, representing to Plaintiff that these terms would be a part of the contract. (¶ 12.) The second amended complaint continues, On or about July 23, 2021, Lina Li sent Plaintiff a surrogacy contract (the Contract), pressuring him to sign as soon as possible, assuring him that his requests would be met, as well as additional assistance in childcare. & Plaintiff emphasized to Lina that he did not understand the contract that she had sent him. However, Lina Li assured Plaintiff of the orally agreed upon terms of the contract, including the aforementioned requests and the guarantee that if any of the babies were not born, Plaintiff would be refunded the amount he paid for each failed surrogacy. (SAC, ¶ 13.) Based on the misrepresentations from Lina Li, and given the time constraints, the Contract was signed by plaintiff on or about August 31, 2021. (¶ 14.) Plaintiff paid SurrogateFirst $650,000. (SAC, ¶ 14.) Plaintiff alleges the surrogacies resulted in only providing four children instead of six. (SAC, ¶ 26.) He further alleges defendants requested him to pay additional funds several times (¶¶ 15, 18-19) but did not provide an accounting of the bills and receipts for them when requested (¶ 20). Plaintiff also alleges Li ultimately agreed to refund $190,000 but did not do so. (Ibid.) 1st Cause of Action: Breach of Contract Plaintiff does not allege sufficient facts for breach of contract. The elements of breach of contract are: (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The second amended complaint alleges defendants breached the Contract by only providing four children to Plaintiff, mishandled the birth certificate documentation and related documentation, resulting in the additional unnecessary fees, used the funds for improper purposes, asked for additional funds not reflected in the contract, and failed to reimburse Plaintiff for the many failed surrogacies. (SAC, ¶ 26.) But the contract attached to the second amended complaint, which includes an integration clause (SAC, Ex. 1, ¶ 25), does not include any such terms. If the allegations in the complaint conflict with attached exhibits, [courts] rely on and accept as true the contents and legal effect of the exhibits. (Chisom v. Board of Retirement of Fresno County Employees Retirement Assn. (2013) 218 Cal.App.4th 400, 410.) As for providing four children instead of six, the contract expressly and repeatedly states SurrogateFirst does not guarantee birth of any children and will not refund any payments. It provides, SurrogateFirst is not liable or responsible for the outcome of the transfer/pregnancy. Intended Parents assumes all financial risk that may result from the Surrogate process. (SAC, Ex. 1, ¶ 2.) NO portion of the SurrogateFirst agency fees paid by the Intended Parents is refundable, regardless of whether the Intended Parents ever achieve a pregnancy, child or if Intended Parents decide to terminate relations and/or services rendered by SurrogateFirst. (Id., ¶ 3.) Intended Parents understand that SurrogateFirst CANNOT guarantee any outcome. Intended Parents agree this is a risk that they are assuming by entering into this Agreement. (Id., ¶ 15.) SurrogateFirst does not, will not, and cannot guarantee the results of any given medical procedure, or that any given Surrogate will conceive a child as a result of those medical practices, or that a child(ren), if conceived, will be free of abnormality or defect. (Id., ¶ 20.) As for demanding additional funds, the contract provides, The Intended Parents understand that the estimated cost sheet is only an estimate and is subject to change. (SAC, Ex. 1, ¶ 5.) The contract also refers to [t]he estimated costs sheet (ibid.), lists several costs excluding during pregnancy in amounts described as TBD or various. (RJN, Ex. B, pp. 2-3.) It further states, This is only an estimated fee for one surrogate cycle. Item listed as TBD cannot be determined, and will be due at the time when it occurs. (Id., p. 3.) Finally, for the purported breaches that defendants mishandled the birth certificate documentation and used the funds for improper purposes (SAC, ¶ 21), the second amended complaint does not make factual allegations establishing those constituted breaches of contract. That defendants mishandled documents or that defendants purposes were improper are conclusions, not factual allegations that the court must accept as true on demurrer. Plaintiff does not adequately allege facts showing defendants did something with the birth certificates that violated the contracts terms or used money he paid in a manner that violated the contracts terms. Plaintiffs opposition argues, While Defendants are focused on the written contracts integration clause among its other terms regarding what is and is not guaranteed, Plaintiff makes it clear that the written contract should be null and void as a result of the fraud, thus the oral contract is what remains. (Opp., pp. 4-5.) He contends that the written contract should be voided due to the pressure and inducement enacted by Defendants. (Id., p. 5.) The second amended complaint does not allege that. Plaintiff may not oppose a demurrer based on allegations not included in the pleading. Moreover, even if the second amended complaint included these allegations, they would not make the contract void. [M]isrepresentation does not render the contract void unless the misled party, before making the agreement, lacked a reasonable opportunity to learn its terms. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 421.) The second amended complaint alleges Li sent plaintiff the contract [o]n or about July 23, 2021 (SAC, ¶ 13), and that he signed it on or about August 31, 2021 (¶ 14). The only reasonable conclusion drawn from these allegations is that those five weeks between receiving and signing the contract constituted a reasonable opportunity to learn the contracts terms. And though plaintiff alleges he told Li that he did not understand the contract (¶ 13), the contract includes a translation (SAC, Ex. 1). Neither the second amended complaint nor the contract identify the translated language, but plaintiffs initial complaint alleged, While Plaintiffs primary language is Mandarin, a separate translation was given to him written in Mandarin on the same contract. (Comp., ¶ 27.) This cause of action also fails as against defendant Lina Li for an independent reason. The contract is between plaintiff and SurrogateFirst. (SAC, Ex. 1, p. 1.) Li is not a party to the contract. 2nd and 3rd Causes of Action: Negligent and Intentional Misrepresentation Plaintiff does not allege sufficient facts for these causes of action. Both require justifiable reliance on the misrepresentation. (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243 (Apollo).) Plaintiff alleges he reasonably relied on six oral misrepresentations that duplicate the purported breaches of contract discussed above. (SAC, ¶¶ 29, 37.) Based on similar allegations, McClure v. Cerati (1948) 86 Cal.App.2d 74 held that a demurrer was properly sustained to a cause of action (equitable estoppel) that required reasonable reliance on a misrepresentation. The court explained, The gist of the alleged misrepresentation is that the defendant assured plaintiff that the written contract contained the oral agreements with respect to his compensation in the event of his discharge. But it affirmatively appears from the pleading that plaintiff could not have been ignorant of the provisions of the written contract because he joined in the preparation of that document and signed it. We must assume that he read and fully understood that contract. Under such circ*mstances he had no right to rely upon statements in direct conflict with the clear provisions of the written contract. (Id. at p. 87.) The same reasoning applies here. As a matter of law, plaintiffs reliance on the alleged oral misrepresentations could not be reasonable because plaintiff signed an integrated written contract that expressly contradicted them. 4th Cause of Action: Constructive Fraud Plaintiff does not allege sufficient facts for this cause of action. Constructive fraud requires a fiduciary relationship. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1249.) Plaintiff does not allege facts establishing a fiduciary relationship between him and defendants. A mere contract or a debt does not constitute a trust or create a fiduciary relationship. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 3334.) [T]he key factor in the existence of a fiduciary relationship lies in control by a person over the property of another. (Apollo, supra, 158 Cal.App.4th at p. 246.) Here, plaintiff alleges only a contractual relationship. He does not allege he entrusted his property to defendant. Though plaintiff may have trusted SurrogateFirsts expertise in surrogacy, that does not create a fiduciary relationship. As the California Supreme Court has noted, It is not at all unusual for a party to enter into a contract for the very purpose of obtaining the superior knowledge or expertise of the other party. Standing alone, that circ*mstance would not necessarily create fiduciary obligations, which generally come into play when one partys vulnerability is so substantial as to give rise to equitable concerns underlying the protection afforded by the law governing fiduciaries. (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 389.) Plaintiff does not allege facts showing he was so vulnerable that defendants owed him fiduciary duties. 5th Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing Plaintiffs opposition concedes and states he will dismiss this cause of action. (Opp., p. 6.) 6th Cause of Action: Common Count Money Had and Received Plaintiff does not allege sufficient facts for this cause of action. A common count is not a specific cause of action, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness. & When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable. (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394.) Plaintiffs sixth cause of action alleges the same debt as his other claims: Defendant received money that was intended to be used for the benefit of Plaintiff and the aforementioned Contract for surrogacies (SAC, ¶ 58), but the money was not used for those purposes (¶ 59). This cause of action therefore fails along with the first five. Motion to Strike Defendants SurrogateFirst and Lina Li move to strike several portions of plaintiffs second amended complaint. The court will sustain defendants demurrer to the entire second amended complaint. The motion to strike is therefore moot. Disposition Defendants SurrogateFirst and Lina Lis demurrer to plaintiff Mingxi Zhus second amended complaint is sustained with 20 days leave to amend. Defendants motion to strike is denied as moot.

Ruling

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.

Aug 28, 2024 |CVG21-0000494

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.Case Number: CVG21-0000494Tentative Ruling: Plaintiff Members 1st Credit Union moves for an award of attorney’s fees in the amount of$23,666.00 pursuant to Civil Code Section 1717. In reviewing the file, the Court previously noted defects withthe pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, theCourt requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefingwhich has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees areaddressed below.Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, theEstate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of theEstate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicatethe sum of assets and liabilities of a decedent. Bright’s Estate v. Western Air Lines (1951) 104 Cal.App.2d 827,828. An estate can neither sue nor be sued. Id. at 829. For these reasons, Plaintiff was required to file suit againstthe Personal Representative of the Estate but did not do so.Additionally, the Estate was purportedly served on May 3, 2021 on Virgina E. Smith as the “Registered Agent”of the Estate. Estates do not have Registered Agents. The Court takes judicial notice of the filing in the Estateof Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of theEstate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the PersonalRepresentative at the time of service and had no authority to act on behalf of the Estate. A fact made clear byVirgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as PersonalRepresentative. The answer was made on behalf of herself as “an individual.” It also pointed out on multipleoccasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yetbeen appointed.Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smithas the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personaljurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improperservice of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus anyensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representativewas never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity asthe Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf andas the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, asan individual, and as against the Estate. Generally, one who is not named in the complaint is not a properdefendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in thecomplaint. Id. at 1146. A voluntary appearance is a waiver of any failure to name that party in the complaint.Farmers & Merchants Nat. Bank of Los Angeles v. Peterson (1936) 5 Cal.2d 601, 606. The Court finds that Ms.Smith voluntarily appeared as the Personal Representative at the trial on October 11, 2023, and therefore waivedany defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for thelack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived anydefects in service. A general appearance is the equivalent to service of the summons. Dial 800 v. Fesbinder(2004) 118 Cal.App.4th 32, 52. “A general appearance operates as a consent to jurisdiction of the person,dispensing with the requirement of service of process, and curing defects in service.” Id.; citing 2 Witkin, Cal.Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756). “A general appearance occurs when the defendant takespart in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates inan action in some manner which recognizes the authority of the court to proceed. It does not require any formalor technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry ofa judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Courtto proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, theCourt finds that Ms. Smith appeared as the personal representative and made a general appearance excusing theneed for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as thePersonal Representative as the Estate. The judgment is valid.Attorney’s Fees: By stipulation of the parties, the Court has already issued a judgment that attorney’s fees arerecoverable by Plaintiff. The attorney’s fees are based on a contract which was executed by the Decedent.Therefore, attorney’s fees will only be awarded against the Estate.Civil Code § 1717 entitles a prevailing party on a contract to “reasonable attorney’s fees” as fixed by the court.Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP § 1033.5(c)(5). “[T]he feesetting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expendedmultiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A courtassessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” (Ketchumv. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward bythe court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factorsthat may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved,2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) thecontingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324,348. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is thebest judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995)9 Cal.4th 738, 752.Here, the Declaration of Laurel Adams provides the evidentiary basis for the attorney’s fees. Ms. Adamsidentifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for thiscommunity and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that areasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and areview appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, theCourt finds the number of hours requested to be reasonable.

Ruling

AYLINE A AMIRAYAN VS FORD MOTOR COMPANY, ET AL.

Aug 27, 2024 |23TRCV04039

Case Number: 23TRCV04039 Hearing Date: August 27, 2024 Dept: 8 Tentative Ruling¿ ¿¿ HEARING DATE: August 27, 2024¿¿ ¿¿ CASE NUMBER: 23TRCV04039 ¿¿ CASE NAME: Esteban Zaragoza; Damaso Zaragoza v. Ford Motor Company, et al.¿¿¿ ¿¿ MOVING PARTY: Defendant, Ford Motor Company and Ford of Montebello ¿¿ RESPONDING PARTY: Plaintiffs, Esteban and Damaso Zaragoza ¿¿ TRIAL DATE: None set. ¿¿ MOTION:¿ (1) Demurrer¿ ¿ Tentative Rulings: (1) SUSTAINED with leave to amend. As to the negligent repair cause of action, the Court will inquire if Plaintiffs believe they truthfully can amend to address the deficiencies in that claim as noted in this Tentative Ruling. As to the fraudulent concealment cause of action, the Court sustains the demurrer with 30 days leave to amend. I. BACKGROUND¿¿ ¿¿ A. Factual¿¿ On June 7, 2024, Plaintiffs, Esteban Zaragoza and Damason Zaragoza (collectively Plaintiffs) filed a complaint against Defendants, Ford Motor Company, Ford of Montebello, and DOES 1 through 10. The complaint alleges causes of action for: (1) Violation of Civil Code § 1793.2(d); (2) Violation of Civil Code § 1793.2(b); (3) Violation of Civil Code § 1793.2(a)(3); (4) Breach of the Implied Warranty of Merchantability Civil Code § 1791.1, 1794, and 1795.5; (5) Negligent Repair; (6) Violation of the Magnuson-Moss Warranty Act; and (7) Fraudulent Inducement Concealment. The complaint is based on Plaintiffs allegation that on May 2, 2021, they entered into a warranty contract with Ford Motor Company (Ford) as to a 2021 Ford F150, with a vehicle identification number of 1FTMF1E58MKD56281. (Complaint, ¶ 7.) Plaintiffs purchased the vehicle from Ford of Montebello (Montebello). Plaintiffs note that with their purchase, the warranty contract contained various warranties, including but not limited to, the bumper-to-bumper warranty, powertrain warranty, emission warranty, etc. (Complaint, ¶ 8, Exhibit A.) Plaintiffs allege that during the warranty period, defects and nonconformities manifested themselves, including but not limited to, transmission defects, powertrain defects, electrical defects; among other defects and nonconformities. (Complaint, ¶ 12.) Plaintiffs assert that Defendant Ford has failed to either promptly replace the subject vehicle or to promptly make restitution in accordance with the Song-Beverly Act. (Complaint, ¶ 16.) As such, Plaintiffs filed an action. Now, Defendant, FMC and Montebello (collectively Demurring Defendants) file a demurrer to the original complaint arguing that Plaintiffs Fifth Cause of Action for Negligent Repair and Sixth Cause of Action for Fraudulent Inducement Concealment failed because they are barred by the economic loss rule and failed to state sufficient facts to state a cause of action against Ford. B. Procedural¿¿ ¿ On July 18, 2024, Ford and Montebello filed a Demurrer. On August 13, 2024, Plaintiffs filed an opposition brief. On August 20, 2024, Defendants filed a reply brief. II. ANALYSIS¿ ¿ A. Legal Standard 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.) 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 plaintiffs 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.)¿¿¿ ¿¿ A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, [a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ B. Discussion Negligent Repair Economic Loss Rule Demurring Defendants argue that Plaintiffs Fifth Cause of action for Negligent Repair against Defendant Montebello fails because it is barred by the economic loss rule. Under the economic loss rule, a plaintiff is precluded from recovery in tort where her damages consist solely of an economic loss. (Seely v. White Motor Co. (1965) 63 Cal.2d 9, 17-18 (Seely).) California Courts define economic loss as damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profitswithout any claim of personal injury or damages to other property. (Department of Water & Power v. ABB Power T & D Co. (C.D.Cal. 1995) 902 F.Supp. 1178, 1186, fn. 4.) The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations unless she can demonstrate harm above and beyond a broken contractual promise. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988, 993 (Robinson) (economic loss rule prevents law of contract and law of tort from dissolving one into the other).) As with all negligence claims, a central question is whether a duty is owed. In undertaking to repair the vehicle, Montebello had a duty to use reasonable care to avoid causing harm. However, absent physical harm, no negligence claim is stated: [U]nder California law, it is not presumed that a defendant owes a duty of care to guard against economic losses unaccompanied by injury to person or property. (Southern California Gas Leak Cases, supra, 7 Cal.5th 391, 397.) Stated differently, Montebello did not have a tort duty to guard against negligently causing purely economic loss. (Id. at 398.) Here, because the Complaint does not allege injury to person or property, no tort duty exists. In this case, Plaintiffs do not allege any contractual relationship between Plaintiff and Montebello; but assuming there is one, the economic loss rule would still bar recovery. In Plaintiffs opposition brief, Plaintiffs urge this Court to find that the economic loss rule does not apply to negligent repair claims where subcomponents of a vehicle cause damage to a larger component or where the component causes damage to the vehicle into which it has been incorporated. (relying on Jimenez v. Superior Court (2002) 29 Cal. 4th 473.) Jimenez holds that a manufacturer may be strictly liable for harm resulting to other parts of a product caused by the defective part that it manufactured. This is sometimes referred to as the component exception. This argument is not aligned with the pleading in this case, however. Plaintiffs have not asserted a claim for strict liability. Further, there are no allegations that Montebello manufactured any part, much less a defective part that caused harm to Plaintiffs the Vehicle. While Plaintiffs do assert that Montebello is in the business of selling automobiles and automobile component parts (Complaint, ¶ 5), Plaintiffs allegations against Montebello only reference the repair aspect of Montebellos business and its alleged failure to properly store, prepare, and repair the Subject Vehicle. (Complaint, ¶¶ 5,70-73.) Demurring Defendants specifically rely on the argument that Plaintiffs claim is that Montebello failed to repair Plaintiffs vehicle to conform to warranty, and thus, arises from the warranty contracts involved in the case. In urging the application of the component exception in this case, Plaintiffs rely on unpublished federal court decisions at the trial level. The theory of these cases is that negligent repair of a subcomponent part could cause damage to other parts of the vehicle. However, the complaint here does not discuss Montebellos liability in terms of using defective component parts. As such, Plaintiffs may not now rely on this argument, and the arguments in its cited unpublished case to stand for the proposition that its complaint is not barred by the economic loss rule and instead qualifies or the component parts exception. As such, the demurrer to the Fifth Cause of Action is SUSTAINED as the cause of action, on its face, is barred by the economic loss rule. Insufficient Facts Plead Demurring Defendants next argue that Plaintiffs Fifth Cause of Action for Negligent Repair fails because it lacks sufficient facts to state a cause of action against Montebello. A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) Specifically, Demurring Defendants argue that Plaintiff has failed to plead any facts that show that Montebellos conduct resulted in any damages. The Court agrees. Though Plaintiffs complaint asserts, in a conclusory way, that Montebellos negligent breach of its duties owed to Plaintiffs were a proximate cause of Plaintiffs damages, Plaintiffs fail to otherwise plead the nature and extent of what her damages are. (Complaint, ¶ 73.) Thus, the demurrer is SUSTAINED on the grounds that Plaintiffs fail to plead damages supporting their negligent repair cause of action. Fraud Fraudulent Inducement Concealment Economic Loss Rule Demurring Defendants also argue that Plaintiffs fraud cause of action is barred by the economic loss rule. As discussed above, the economic loss rule stands for the notion that where a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses. (Robinson, supra, 34 Cal.4th at 988, quoting Neibarger v. Universal Cooperatives, Inc. (1992) 439 Mich. 512, 520.) However, there is an exception by which a plaintiff may recover tort damages in a contract case when the contract was fraudulently induced. (Robinson, supra, 34 Cal.4th at 989.) In the instant matter, the parties discuss Dhital v. Nissan N. America, Inc. (2022) 84 Cal.App.5th 828 (Dhital), in which the First District held in a Song-Beverly vehicle defect case that the plaintiffs fraudulent inducement claim against the vehicle manufacturer was not barred by the economic loss rule. Our Supreme Court is currently reviewing this case, such that its holding is merely persuasive. (Cal. Rules of Court, rule 8.1115(e)(1); Dhital v. Nissan N. America (2023) 523 P.3d 392.) Demurring Defendants cite to it to differentiate it from Robinson; however, the Court does not believe the two contradict. In Dhital, the purchasers of a vehicle accused the manufacturer, Nissan, of fraudulently concealing an allegedly known transmission defect. (Dhital, supra, at 834.) The First District held that the fraud exception to the economic loss rule, as expressed in Robinson, applied because "Plaintiffs allege that Nissan, by intentionally concealing facts about the defective transmission, fraudulently induced them to purchase a car." (Id., 838.) Acknowledging that Robinson applied the exception to fraudulent misrepresentation rather than concealment, the appellate court nonetheless held that the reasoning applied to the plaintiffs fraudulent concealment claim, too. (Dhital, supra, at 841.) Under Dhital, the exception applies to Plaintiffs own claim, as Plaintiffs facts are the same as those in Dhital. But Defendants argue that Plaintiffs claim is distinct because it is based on an alleged fraudulent omission rather than affirmative misrepresentation. The Court disagrees that Plaintiffs fraudulent concealment claim is based on non-performance under the warranty. In the complaint, Plaintiffs accuse Ford of commit[ing] fraud by allowing the Subject Vehicle to be sold to Plaintiffs without disclosing that the Subject Vehicle and its transmission was defective and susceptible to sudden and premature failure. (Complaint, ¶ 76.) The Complaint further alleges that had Plaintiffs known that the Subject Vehicle suffered from the Transmission Defect, they would not have purchased the Subject Vehicle. (Complaint, ¶ 80.) Plaintiffs further allege that this information not disclosed was material and that a reasonable person would have considered them to be important in deciding whether or not to purchase the Subject Vehicle. (Complaint, ¶ 84.) Based on this language, Plaintiffs fraudulent concealment claim is rooted in the sale of the Vehicle. The facts are not analogous to Defendants authority, Food Safety Net Servs. v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 118 (Eco Safe). In Eco Safe, a manufacturer of food disinfection equipment, Eco Safe, accused a testing agency, Food Safety, of making fraudulent statements to induce Eco Safe into hiring Food Safety to assess the efficacy of its disinfection product. The Court of Appeal held that Eco Safes fraud claim arose from their contract. This was because the alleged fraudulent statements were that Food Safety would perform the tests in a specific manner; and the contract between Eco Safe and Food Safety contained terms that explicitly reflected the requirement to utilize this manner of testing. (Id., 1125.) Since Eco Safe was accusing Food Safety of failing to conduct the tests in this manner, Eco Safe was disputing Food Safetys performance under the contract. Here, the Court is unaware of any term in the warranty under which Ford promised to disclose all material defects affecting the Vehicle. This is the conduct that Plaintiffs accuse Ford of failing to do. The warranty, on the other hand, is a promise to fix certain defects that the purchaser becomes aware of; there is no obligation in the warranty that Plaintiffs allege contained a promise by Ford to affirmatively disclose any defects. Therefore, the Court is satisfied that Plaintiff has pled allegations sufficient to satisfy the fraud exception to the economic loss rule. However, the analysis does not end there. Insufficient Facts Plead Demurring Defendants next argue that Plaintiffs have failed to state sufficient facts to state a cause of action for fraud against Ford because Plaintiffs failed to plead the defect Ford allegedly concealed, and failed to allege a duty to disclose. First, Demurring Defendants argue that Plaintiffs fraud claim fails as a matter of law because it is not pleaded with the requisite specificity because Plaintiffs fail to plead the specificity of the defect in the subject vehicle. The elements of a cause of action for fraudulent concealment are: (1) concealment of a material fact; (2) by a defendant with a duty to disclose; (3) the defendant intended to defraud by failing to disclose; (4) plaintiff was unaware of the fact and would not have acted as it did had it known the fact; and (5) damages. (Butler America, LLC v. Aviation Assurance Company, LLC (2020) 55 Cal.App.5th 136, 144.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) Ford argues Plaintiffs allegation that the Ford F150 has a transmission defect in that it has hesitation and/or delayed acceleration, harsh and/or hard shifting, jerking, shuddering, and/or juddering (Complaint, ¶ 24) is not enough to allege what the defect is. The Court is not persuaded by this argument or Demurring Defendants reliance on an unpublished case. Demurring Defendants also argue that Plaintiffs complaint fails to allege where the omitted information should or could have been revealed by Ford and failed to identify the requisite representative samples of advertisem*nts, offers, or other representations by Ford that consumers relied upon to make their purchase, nor identifies by name who made the alleged omission when she purchased the vehicle. This Court disagrees with Defendants narrow reading of the requirements. Although it is true that the complaint fails to allege the names of the persons who concealed facts or who knew of the transmission flaw, details of that nature are required in AFFIRMATIVE misrepresentation cases, not CONCEALMENT cases. As a generally rule, plaintiffs can survive demurrer in a concealment case where the symptom or manifestation of the claimed defect is alleged, since it is the nature of a concealment claim that the Defendant did not reveal or disclose the nature of the flaw within the transmission, leaving it to discovery for plaintiff to unearth a specific manufacturing or design flaw that causes the claimed symptoms. Next, Demurring Defendants argue thar Plaintiff failed to allege a duty to disclose. With a fraudulent concealment claim under California law, a duty to disclose material facts may arise (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant has exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) when the defendant makes partial representations but also suppresses some material facts. (Falk v. General Motors Corp. (N.D. Cal. 2007) 496 F.Supp.2d 1088, 1098-1099 citing LiMandri v. Judkins (1997) 52 Cal.App.4th 326.) Plaintiffs rely on Dhital, where the Court there found that the stated allegations, similar to the allegations made in the case at bar, were sufficient to survive a pleading attack noting: At the pleading stage (and in the absence of a more developed argument by Nissan on this point), we conclude plaintiffs allegations are sufficient. Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissans authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs claim is barred on the ground there was no relationship requiring Nissan to disclose known defects. (Dhital v. Nissan, supra, 84 Cal.App.5th at 844.) Based on this, Plaintiff contends that at the pleading stage, its fraud allegations are sufficient. However, as LiMandri made clear, the second, third, and fourth circ*mstances giving rise to a duty to disclose presupposes the existence of some ... relationship between the plaintiff and defendant. (52 Cal. App. 4th at 336-37 (emphasis added).) For purposes of duties to disclose, the California Supreme Court has defined a relationship as a transaction between the parties. (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal. 3d 285, 294; see LiMandri, 52 Cal. App. 4th at 337 (As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.) (emphasis in original).) The Court notes that a transactional relationship test might be met indirectly, i.e., by virtue of an allegation that Plaintiffs purchased the subject vehicle from an authorized Ford dealer. There is some support in published decisions for this argument, including the non-binding but permissible considered argument in Dhital, which found the allegations of a transactional relationship sufficient to overcome Nissans demurrer there. Dhital states: Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissans authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. (Dhital, supra, 84 Cal.App.5th at 844 [emphasis added].) Similarly, here, Plaintiffs allege that Ford provided an express written warranty. (Complaint, ¶¶ 8, 12, 15) covering the transmission defect (Complaint, ¶ 12) and allegedly actively concealed the same, by virtue of its authorized dealership and agents purportedly fraudulent pre-sale conduct. (Complaint, ¶¶ 46-49.) However, what is lacking from Plaintiffs complaint is any allegation that Montebello is an authorized dealership a crucial component. Without this missing allegation, the Court views it as a close question, the persuasive authority in Dhital is more compelling than some less well reasoned and unpublished federal district court decisions that have granted motions for judgment on the pleadings or dismissed fraudulent concealment claims at the pleading stage. However, because this allegation is missing, the Courts tentative ruling is to SUSTAIN demurrer as to this cause of action. Next, Demurring Defendants argue that Plaintiff has failed to allege that Ford had exclusive knowledge of the transmission defect. The Court notes that Plaintiffs Complaint references several TSBs in Complaint ¶¶ 26-32, that the Complaint alleges pertain to Fords knowledge of the existence of a transmission defect prior to Plaintiff purchasing the subject vehicle. TSBs submitted to the NHTSA are available to the public, and are not helpful to Plaintiffs exclusive knowledge argument. The complaint alleges that Plaintiffs, as reasonable consumers would have considered these facts to be important in deciding whether or not to purchase the vehicle, and that had Plaintiffs known, they would not have purchased the subject vehicle. (Complaint, ¶ 34.) But the very issuance of publicly available TSBs demonstrates an absence of affirmative concealment. Unless Plaintiffs are alleging that the TSBs omitted the nature of transmission issues Plaintiffs experienced themselves, the Court would be inclined to find that there could not be affirmative, active, intentional concealment of repair issues discussed in a published TSB. The contention that Ford has superior knowledge or was in a superior position to Plaintiffs does not, in the Courts view, satisfy the exclusive knowledge requirement giving rise to a duty to disclose. Every manufacturer and issuer of repair instructions has knowledge superior to a retail buyer about technical and repair issues. The mere existence of knowledge that some prior models have experienced customer complaints is not, in the Courts view, sufficient by itself to establish an affirmative duty to disclose the existence of such complaints for purposes of alleging a punitive damages cause of action for fraud. The demurrer as to the Sixth Cause of Action for Fraudulent Concealment is thus SUSTAINED, with the Court inclined to give Plaintiffs leave to amend. III. CONCLUSION¿¿ ¿¿¿ Based on the foregoing, Demurring Defendants demurrer is SUSTAINED with leave to amend. Demurring Defendants are ordered to give notice. ¿¿¿

Ruling

Angel Wang, et al vs Xinrui "Lisa" Li, et al

Aug 29, 2024 |22CV00872

22CV00872WANG v. LI MOTION FOR ATTORNEYS’ FEES (UNOPPOSED) The unopposed motion is granted as discussed below. I. BACKGROUND This complaint was filed on May 2, 2022, against Lisa Li and California SunshineDevelopment, LLC, claiming damages in the amount of $700,000.00 for breach of contract.Plaintiffs obtained a judgment against defendants by way of a motion for summary judgment,granted by this court on November 22, 2022, and amended on March 3, 2023. Below is atimeline of relevant events: - December 15, 2021, plaintiffs and defendants entered into a settlement agreement. The agreement contains a prevailing party attorneys’ fees clause relating to enforcement actions. Defendants failed make payments due as per the agreement. - May 2, 2022, plaintiffs filed this action. - November 22, 2022, the court granted plaintiffs’ motion for summary judgment in the amount of $700,000.00. - February 21 ,2023, the court granted plaintiff’s motion for attorneys’ fees associated with the motion for summary judgment in the amount of $13,200 plus costs. - March 3, 2023, plaintiffs filed a separate complaint (23CV00674): uniform voidable transactions. - July 26, 2023, plaintiffs filed a motion for an order to charge member’s interest in an LLC. - November 3, 2023, the court granted plaintiffs’ charging order in the amount of $757,873.63. II. MOTION Plaintiffs seek $157,029.50 in attorneys’ fees and $3,644.84 in costs, pursuant to Code ofCivil Procedure section 685.040. The motion is made on the basis that legal actions were taken to enforce their judgment,including bringing a separate lawsuit under the Unform Voidable Transactions Act. Plaintiffsassert they were required to initiate various post-judgment strategies to enforce the judgment andthey now seek reimbursem*nt for those fees and costs. Page 4 of 6 Code of Civil Procedure section 685.040 states “[t]he judgment creditor is entitled to thereasonable and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcinga judgment are not included in costs collectible under this title unless otherwise provided by law.Attorney’s fees incurred in enforcing a judgment are included as costs collectible under this titleif the underlying judgment includes an award of attorney’s fees to the judgment creditor pursuantto subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.” (Emphasis added.) III. DISCUSSION Plaintiffs, in their motion, have outlined their efforts to enforce and collect on thisjudgment. Plaintiffs assert they are entitled to not only the post-judgment costs in this action butalso in a companion action they filed on March 3, 2023, and which they dismissed in 2024 aftersettlement. Plaintiffs cite G.F. Galaxy Corp. v. Johnson (2024) 100 Cal.App.5th 542 for theproposition that “[a]ttorney fees incurred in one action may be considered necessary litigationcosts in another. Further, because Code Civ. Proc., § 685.040, is not itself a substantive fee-shifting statute. It creates no independent authority for awarding attorney fees.” (G.F. GalaxyCorp., supra,100 Cal.App.5th at p. 544.) Thus, it appears plaintiffs are permitted collectattorneys’ fees based upon the second action they instituted to enforce the judgment. This actionled to a settlement, and eventual dismissal of the related action. The court agrees that fees andcosts can be collected based upon this second action as well as the post-judgment activitieswhich took place in this action. The determination of reasonable amount of attorney fees is within the sound discretion oftrial courts. (PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) An experienced trial judge is in a position to assessthe value of the professional services rendered in his or her court. (Wershba v. Apple Computer,Inc. (2001) 91 Cal.App.4th 224, 255, disapproved on other grounds by Hernandez v. RestorationHardware, Inc. (2018) 4 Cal.5th 260, 270. The trial court has the discretion to award less thanthe amount of fees requested. (11382 Beach Partnership v Libaw (1999) 70 Cal.App 4th 212,220.) The court reviewed the motion, the attached declarations, and exhibits. The court notesthat it granted plaintiffs’ motion for attorneys’ fees and costs in connection with their motion forsummary judgment on February 21, 2023, and adopted the tentative ruling, which used the rateof $600/hour. The court will likewise utilize the rate of $600/hour in this motion but has notreduced the hours requested. The court awards the full amount of paralegal fees requested andwell as the work by the librarian. Page 5 of 6 i. Initial Enforcement Efforts 2.2 hours claimed by Mr. Ball @$600/hour = $1320.00. 2.2 hours claimed by Mr. Kecskes @ $600/hour = $1320.00 1.3 hours claimed by librarian Mr. Miller = $383.50 Mr. Dunbar paralegal: $1,642.50 $4,666.00 (reduced from $6,574.50) ii. Obtaining Charging Order 4.9 hours claimed by Mr. Ball @$600/hour = $2940.00 28.2 hours claimed M. Theonugraha @$600/hour = $16,920.00 Mr. Dunbar paralegal $562.50 $20,422.50 (reduced from $30,934.00) iii. Voidable Transaction Complaint 53.7 hours claimed by Mr. Ball @$600/hour = $32,220.00 Mr. Dunbar paralegal $4,680.00 $36,900.00 (reduced from $95,334.50) iv. Fees Motion 17.9 hours claimed @$600/hr by Mr. Ball =$10,740.00 (reduced from $23,001.50) Total fees granted: $72,728.50 v. Costs Costs in the amount of $3,644.84 are granted as requested. “Other costs of enforcing ajudgment to which a judgment creditor is entitled under Code Civ. Proc. § 685.040 may berecovered by noticed motion.” (California Forms of Pleading and Practice (Mathew Bender2024) § 174.253.) The total awarded is $76,373.34.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 6 of 6

Ruling

Sara Coon vs Cedar Street Santa Cruz, LP

Aug 27, 2024 |22CV02745

22CV02745COON v. CEDAR STREET SANTA CRUZ, LP DEFENDANT’S MOTION TO STRIKE AND DEMURRER TO THE FIRST AMENDED COMPLAINT The demurrer is sustained without leave to amend. The motion to strike the punitivedamages request is granted without leave to amend. The motion to strike the remainder of therequested portions of the FAC is granted, without leave to amend. I. BACKGROUND AND FIRST AMENDED COMPLAINT This case involves allegations of a refusal to return a security deposit from a landlord to atenant as well as habitability issue. The original complaint was filed on 12/14/22 and a firstamended complaint (“FAC”) was filed on 5/21/24. Plaintiff alleges she is a disabled person as defined by Civil Code section 3345 and thatshe rented a home located at 517 Cedar St. #25, Santa Cruz. The security deposit was $3,170.00,which plaintiff asserts she paid to defendant, Cedar Street Santa Cruz, LP. Plaintiff moved intothe home on 2/5/19 and moved out on 10/31/22. Plaintiff asserts defendant illegally took portionsof the security deposit: • $300.00 non-refundable cleaning deposit related to the common areas of the building (pursuant to defendant’s response to special interrogatories nos. 1 and 5, attached to the FAC as Exhibit 2). • $1,285.00 for cleaning the rental (pursuant to defendant’s responses to special interrogatories nos. 1 and 5, attached to the FAC as Exhibit 2). Plaintiff contends defendant did not comply with Civil Code section 1950.5: defendantfailed to notify plaintiff about their right to initial inspection, and any deductions from thesecurity deposit is per se illegal. Plaintiff alleges that due to this violation, defendant could notlegally make the deductions, which had to be returned within 21 days of departing the rental unit. Plaintiff asserts defendant also failed to provide an itemized statement to plaintiff within21 days of plaintiff moving out; failed to provide documents supporting the itemized deductionswithin 21 days of plaintiff moving out, failed to obtain express consent from plaintiff to acceptthe itemized and supporting documents by electronic means, and failed to obtain express consentfrom plaintiff to receive the security deposit by electronic means. (FAC at ¶¶ 32-37.) Page 1 of 14 Causes of action alleged are as follows: (1) unlawful retention of security depositpursuant to Civil Code section 1950.5, (2) breach of residential lease agreement, (3) negligence,(4) conversion, (5) violation of Business and Professions Code section 17200, (6) declaratoryrelief pursuant to Code of Civ. Procedure section 1950.5, (7) breach of warranty of habitability(mold infestation), and (8) violation of Civil Code section 1942.4 for allowing the rental unit tofall into a state of disrepair. Plaintiff seeks damages related to the unreturned security deposit,punitive damages, general damages, attorney fees and costs, statutory damages. Attached to the FAC as Exhibit 1 is the rental agreement between plaintiff and defendantand attached as Exhibit 2, are a portion of defendant’s verified responses to certain specialinterrogatories, propounded by plaintiff’s counsel. Of note, in a verified response to specialinterrogatories numbers 1 and 5, defendant states plaintiff did not pay the deposit at issue.Instead, the deposit was paid by the Homeless Services Center. II. DEMURRER AND MOTION TO STRIKE a. Demurrer Defendant’s primary argument is that the deposit at issue was paid by the HomelessService’s Center, not by plaintiff and that after plaintiff’s tenancy was terminated, the remainderof the deposit, after deductions, was sent to the Homeless Services Center. (FAC at ¶¶ 28, 25,and 26, Ex. 2 to FAC, pgs. 3 – 4.) Defendant demurs to the first, second, fourth, and fifth causesof action on the basis that FAC incorporated exhibits which demonstrate plaintiff did not pay thesecurity deposit and therefore, she failed to state a cause of action for a violation of Civil Codesection 1950.5, failed to state a cause of action for breach of contract, failed to state a cause ofaction for conversion, and failed to state a cause of action for a violation of Business andProfessions Code section 17200. b. Motion to Strike Defendant moves to strike the following section of the FAC as follows: 1. Paragraphs 1 – 5 in their entirety, appearing on page 2, line 2, through and including page 3, line 2. These paragraphs outline general statements concerning security deposits and references to a study regarding security deposit retention by landlords. 2. Paragraphs 45 – 47 in their entirety, appearing on page 11, lines 8 – 18. These paragraphs contain general statements regarding moving, the costs associated with moving, and security deposits. 3. Paragraph 60 in its entirety, appearing on page 12, lines 25 – 27, relating to an award for exemplary/punitive damages. Page 2 of 14 4. Paragraph 83 in its entirety, appearing on page 14, lines 23 – 24 relating to punitive damages. 5. Paragraph 94 in its entirety, appearing on page 16, lines 15 -16 relating to “[punitive] damages.” 6. Paragraph 96 in its entirety, appearing on page 16, lines 19 – 20, relating to punitive damages. 7. Paragraph 108(e) in its entirety, appearing on page 18, lines 15 -2- stating that plaintiff and other tenants are entitled to restitution of all sums collected by defendant over the four years prior to the filing of this complaint from residential tenants and statutory damages for each of those tenants who had their deposits illegally deducted. 8. Paragraph 140 in its entirety, appearing on page 22, lines 1 -3, relating to punitive damages. 9. From the Prayer for Relief, paragraph F in its entirety, appearing on page 24, line 20, regarding punitive damages. 10. From the Prayer for Relief, paragraph G(vi), appearing on page 25, lines 7- 12. III. DISCUSSION a. Demurrer The basis for defendant’s demurrer is Exhibit 2 to the FAC, an excerpt from defendant’sverified responses to special interrogatories. The responses state plaintiff did not pay the securitydeposit but instead it was paid by the Homeless Services Center. The FAC, in contradiction,alleges plaintiff paid the deposit. A demurrer challenges only defects on the face of the pleadings or those matters whichare judicially noticeable. In this case, the allegations in the FAC are contradicted by the exhibitwhich is attached to the FAC. Defendant asserts the court can consider these exhibits, citingNealy v. Couty of Orange (2020) 54 Cal.App.5th 594. In Nealy, the court noted that in addition tothe pleading itself, “[w]e may also look to exhibits attached to the complaint for operativefacts.[Citations.] And because the ‘allegations that we accept as true necessarily include thecontents of any exhibits attached to the complaint, … in the event of a conflict between thepleading and an exhibit, the facts contained in the exhibit take precedence over and supersedeany inconsistent or contrary allegations in the pleading.’ [Citation.]” (Id. at p. 596-597.) “Thewell-pled allegations that we accept as true necessarily include the contents of any exhibitsattached to the complaint. Indeed, the contents of an incorporated document (in this case, theagreement) will take precedence over and supersede any inconsistent or contrary allegations setout in the pleading. In the case of such a conflict, we will look solely to the attached exhibit.”(Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409.) Page 3 of 14 In the FAC, plaintiff alleges she paid the security deposit yet the attached exhibit,defendant’s verified responses to special interrogatories, states the deposit in question was paidby Homeless Services Center, not by plaintiff. The FAC expressly refers to the discoveryresponses (see FAC ¶¶ 25 – 27), to support her claim that deductions were taken from thedeposit. However, plaintiff completely disregards the other part of the discovery responses, thatis, that she did not pay the deposit. Plaintiff does not address this discrepancy in her opposition.As a result, the demurrers are sustained without leave to amend. b. Motion to Strike Defendant seeks an order to strike the claims relating to the prayer for punitive damages,the claim for disgorgement of fees to non-party tenants, and to strike the irrelevant languagefrom the FAC regarding general background information on security deposits in California and astudy relating to withheld security deposits. These motions are granted. The primary crux of the FAC is that defendant failed to return the security deposit andfailed to provide an itemized statement of deductions. Plaintiff also alleges the condition of therental, due to untreated mold problems, created a breach of the warranty of habitability and aviolation of Civil Code section 1942.4. First, defendant contends the first five paragraphs of the FAC that consist of statementsabout the general problem of retention of security deposits and a summary of a 2013 studyrelated to this topic are improper and should be stricken. In addition, paragraphs 45 - 47 of theFAC concern tenants in general and their expectations regarding the return of deposits and whathappens to tenants in general when deposits are not returned. Defendant asserts these paragraphsshould all be stricken as irrelevant and immaterial pursuant to Code of Civil Procedure sections436 and 431.10, subdivision (c). Defendant’s argument is well-taken. These paragraphs havenothing to do with the particular case brought by plaintiff and are not essential or pertinent to theclaims. This is particularly true given the exhibit attached to the FAC indicating plaintiff did notactually pay the security deposit. The motion to strike these paragraphs is granted as requested,without leave to amend. Second, defendant seeks to strike the claims for disgorgement of fees collected from non-party tenants in connection with her claim for Business and Professions Code section 17200.This motion is granted in light of the court’s ruling on the demurrer as to this cause of action,without leave to amend. Finally, defendant moves to strike refences to and requests for punitive damages. “[A]motion to strike [punitive damages] may lie where the facts alleged do not rise to the level of‘malice, fraud, or oppression’ required to support a punitive damages award.” (Weil & BrownCivil Procedure Before Trial (TRG 2023) § 7:186.) Plaintiff, in her opposition, refers to her Page 4 of 14original complaint, which contains some different causes of action than the FAC and does notattach the discovery responses. However, it is this FAC which is before the court. Civil Code section 3294, subdivision (a) states that “[i]n an action for the breach of anobligation not arising from contract, where it is proven by clear and convincing evidence that thedefendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actualdamages, may recover damages for the sake of example and by way of punishing the defendant.” Civil Code section 3294 defines malice, oppression and fraud. Malice is “conduct whichis intended by the defendant to cause injury to the plaintiff or despicable conduct which is carriedon by the defendant with a willful and conscious disregard of the rights or safety of others.”Oppression is characterized as “despicable conduct that subjects a person to cruel and unjusthardship in conscious disregard of that person’s rights.” Finally, fraud is defined as “anintentional misrepresentation, deceit, or concealment of a material fact known to the defendantwith the intention on the part of the defendant of thereby depriving a person of property or legalrights or otherwise causing injury.” (See Civil Code § 3294, subd. (c)(1) – (3).) The cases interpreting section 3294 make it clear that in order to warrant the allowance ofpunitive damages the act complained of must not only be willful in the sense of intentional, but itmust also be accompanied by aggravating circ*mstances, amounting to malice. The malicerequired implies an act conceived in a spirit of mischief or with criminal indifference towards theobligations owed to others. There must be an intent to vex, annoy or injure. Mere spite or ill willis not sufficient; and mere negligence, even gross negligence is not sufficient to justify an awardof punitive damages. [Citations.]” (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) In this case, there are insufficient facts pled to support a claim for punitive damages,particularly in light of the attached exhibit to the FAC showing plaintiff did not pay the depositwhich is the primary basis for the FAC and which is uncontested by plaintiff in her opposition.Further, defendant is a corporate entity. “Corporations are legal entities which do not have mindscapable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damageagainst a corporation therefore must rest on the malice of the corporation's employees.” (Cruz v.Homebase (2000) 83 Cal.App.4th 160, 167.) While punitive damages liability can be imputedupon a corporate entity in certain circ*mstances (see Civil Code section 3294), the FAC does notcontain any allegations which could be a basis for punitive damages as to this defendant. The motion to strike punitive damages is granted. When read as a whole, the FAC doesnot set forth a theory for recovery of punitive damages. Leave to amend is not granted. Shouldplaintiff later find additional facts to support a claim for punitive damages against defendant, shecan seek leave to amend the complaint. Page 5 of 14Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Document

George Kokhabe, 91-04 Jamaica Avenue Llc v. Prime Jewelers, Modern Wedding Ring Corp, D/B/A MODERN DESIGN, Il Cho Kim

Mar 27, 2024 |Erica L. Prager |Commercial - Contract |Commercial - Contract |605286/2024

Document

Glen Cove Health Management Corp. v. Misba Abdin, Mohammed Aziz, Mai Clinicals, Llc

Nov 07, 2023 |Randy Sue Marber |Commercial - Contract |Commercial - Contract |618215/2023

Document

Solar Seal Llc v. Pioneer Window Mfg. Corp.

Jun 16, 2022 |Sharon Gianelli |Commercial Division - Business Entity |Commercial Division - Business Entity |607829/2022

Document

Government Employees Insurance Co., Geico Indemnity Co., Geico General Insurance Company, Geico Casualty Co. v. Owusu Stephen Emmanuel Dpm

Aug 31, 2023 |Sarika Kapoor |Commercial - Contract |Commercial - Contract |614077/2023

Document

Nov 14, 2022 |Jerome C. Murphy |Commercial - Contract |Commercial Division - Contract |615923/2022

Document

Universal Ready Mix, Inc. v. Fast Action Body Repair, Inc., Claudio Ramirez

Apr 12, 2022 |Erica L. Prager |Commercial - Contract |Commercial - Contract |604750/2022

Document

Ack Llc v. New Angle Direct Llc

Mar 12, 2021 |James McCormack |Commercial - Business Entity |Commercial - Business Entity |603005/2021

Document

Reserve Capital Management v. Guida Business Development, Inc. D/B/A Mr. Home Remodeling, Vincent J Guida

May 10, 2022 |Sarika Kapoor |Other Matters - Contract - Other |Other Matters - Contract - Other |619180/2023