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Ruling

ROSARIO vs FORD MOTOR COMPANY

Aug 13, 2024 |CVRI2401426

Demurrer on 1st Amended Complaint forBreach of Contract/Warranty (OverROSARIO vs FORD MOTORCVRI2401426 $35,000) of JOSE A ROSARIO byCOMPANYFORD MOTOR COMPANY, DAVIDWILSON'S VILLA FORDTentative Ruling:Plaintiff Jose Rosario alleges that on 7/29/17, he entered into a warranty contract with DefendantFord Motor Company regarding a 2017 Ford F150 that has a transmission defect. Plaintiff filedhis action on 3/15/24. After Defendants filed a demurrer, Plaintiff filed the First AmendedComplaint (FAC) as a matter of right on 6/6/24. The FAC asserts: (1) Civil Code §1793.2(d); (2)Civil Code §1793.2(b); (3) Civil Code §1793.2(a)(3); (4) breach of implied warranty; (5) negligentrepair; and (6) fraudulent inducement—concealment.Defendants demur to the 4th-6th causes of action on the grounds that they fail to state factssufficient. For implied warranty, Defendants argue that for breach of implied warranty, it is barredby the 4 year statute of limitations as it runs on the date of delivery. For fraud, they argue thatthere are no facts regarding the defect and a duty to disclose. For both fraud and negligent repair,they contend that the economic loss rule bars both claims.In opposition, Plaintiff argues that Mexia applies such that discovery need not occur within theperiod if the defect was latent. Plaintiff asserts that he pled the elements of fraud based on Dhital,and duty is supported by exclusive knowledge. He argues the economic loss rule does not applyas Defendant breached its duty in the tort of fair dealing. He contends negligence is properly pledand contends that the economic loss rule does not bar cases involving negligent performance ofservices.In reply, Defendants contend that Dhital is only persuasive authority. It otherwise repeatsarguments from the moving papers.AnalysisA. Meet & ConferCCP §430.41 and §435.5 requires a meet and confer process via phone or in person beforefiling a demurrer or motion to strike five days before the responsive pleading is due. Themeet and confer process requires the moving party to identify the causes of action or allegationssubject to attack and the plaintiff must provide legal support for its position. (CCP §430.41(a)(1),435.5(a)(1).) The demurring party must file a declaration stating the means by which the partiesmet and conferred, or the responding party failed to respond or meet and confer in good faith.(CCP §430.41(a)(3).) Defendants complied. (Biemann Decl., ¶4.)B. 4th Cause of Action – Breach of Implied WarrantyA demurrer based on a statute of limitations defense must clearly and affirmatively show that theclaim is barred. (Lockley v. Law Office of Cantrell, Green, Kekich, Cruz & McCort (2001) 91Cal.App.4th 875, 881.) “It is not sufficient that the complaint might be barred.” (Roman v. Countyof Los Angeles (2000) 85 Cal.App.4th 316, 324.)For a Song-Beverly Act violation, the statute does not include its own statute of limitations. (Mexiav. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1305.) Accordingly, Commercial Code§2725 governs the applicable statute of limitations. (Id. at 1305-1306; Jensen v. BMW of NorthAmerica, Inc. (1995) 35 Cal.App.4th 112, 132.) Section 2725 states in pertinent part:(1) An action for breach of any contract for sale must be commenced withinfour years after the cause of action has accrued. By the original agreementthe parties may reduce the period of limitation to not less than one year butmay not extend it.(2) A cause of action accrues when the breach occurs, regardless of theaggrieved party's lack of knowledge of the breach. A breach of warrantyoccurs when tender of delivery is made, except that where a warrantyexplicitly extends to future performance of the goods and discovery of thebreach must await the time of such performance the cause of actionaccrues when the breach is or should have been discovered.Because an implied warranty is one that arises by operation of law rather than by an expressagreement of the parties, courts have consistently held it is not a warranty that ‘explicitly extendsto future performance of the goods.’” (Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008)169 Cal.App.4th 116, 134.) Thus, breach of implied warranty is four years from date of delivery.However, there is no allegation of the delivery date. The only allegation that includes a date isthat Plaintiff entered into a warranty contract on 7/29/17 (FAC ¶7), and that he presented thevehicle to a repair facility on 3/1/22 (FAC ¶26) and 3/14/22 (FAC ¶27). As no date of delivery isactually alleged, for purposes of demurrer, the statute of limitations does not appear on the faceof the complaint. The court overrules the demurrer. 1C. 6th Cause of Action - Fraud1. SpecificityConcealment requires: “(1) the defendant must have concealed or suppressed a material fact,(2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) thedefendant must have intentionally concealed or suppressed the fact with the intent to defraud theplaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he didif he had known of the concealed or suppressed fact, and (5) as a result of the concealment orsuppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo1Plaintiff’s reliance on Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297 is not applicable. In Mexia, therewas no statute of limitations issue—this involved the duration of the warranty under Civil Code §1791.1. The courtheld “The implied warranty of merchantability may be breached by a latent defect undiscoverable at the time of sale.”(Id. at 1304.) Mexia sued for breach of implied warranty under the Song-Beverly due to a latent defect, i.e. his boatengine corroded. (Id. at 1301-1302.) Mexia had purchased the boat in 2003, had repairs in 2005 due to defects, andin 2006, discovered that the defendants could not make the boat conform to the warranties. (Id.) On appeal, thedefendants argued that the duration period required the consumer to discover and report the latent condition withinthe one year period. (Id. at 1308-1309.) The court found that section 1791.1(c) did not require that a consumerdiscover and report the latent defect within the time period. (Id. at 1310.) The court reasoned that the defendant’sinterpretation would require a notification deadline even if the consumer had not discovered the breach during theduration period. (Id.) The court, however, did appear to recognize that if the latent defect did not exist at the time ofsale, there was no breach. (Id. at 1308.) The court recognized that the 4 year statute of limitations did not applybecause the complaint was filed within 4 years of the sale. (Id. at 1307.) Mexia is not a statute of limitations case—rather, it involved whether a latent defect had to be reported within 1 year or discovered.Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) As concealment is a species of fraud, itmust also be pled with specificity. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)162 Cal.App.4th 858, 878.) Less specificity is required where the defendant necessarilypossesses the information. (Committee, supra, 35 Cal.3d at 216.) Furthermore, as noted by onecourt, it is not practical to allege facts showing how, when and by what means something did nothappen. (Alfaro v. Community Housing Improvement System Planning Assn. (2009) 171Cal.App.4th 1356, 1384.) However, if the concealment is based on providing false or incompletestatements, the pleading must at least set forth the substance of the statements at issue. (Ibid.)The case of Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (review granted2/1/23, S277568) 2 addressed the sufficiency for concealment for pleading purposes in fraud in alemon law case. The Dhital court found that it was sufficient that plaintiffs alleged a transmissiondefect in numerous vehicles, including the plaintiff’s, the defendant knew of the defect and thehazards they posed, defendant had exclusive knowledge of the defect and failed to disclose thatinformation, defendant intended to deceive plaintiffs by concealing known defects, the plaintiffswould not have purchased the car if they had known of the defects, and they suffered damageson the sums paid to purchase the vehicle. (Id. at 843-844.)Here, Plaintiff does plead the same facts with Dhital. Here, Plaintiff pleads that Defendant knewthat the vehicle had a transmission defect that causes hesitation and/or delayed acceleration;harsh and/or hard shifting; jerking, shuddering and/or juddering. (FAC ¶29, 90.) Defendant knewabout the issue but consumers did not as it was provided by testing data, consumer complaints,aggregate warranty data, testing and other internal information (¶30); as a result, Defendantissued multiple TSBs on the issue (¶31-39); had Plaintiff known about the defect, he would nothave purchased it (¶41); and Defendant continued to conceal the defect (¶42). Here, this issufficient for pleading purposes.2. DutyAs explained in Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311: “ ‘There are “fourcirc*mstances in which nondisclosure or concealment may constitute actionable fraud: (1) whenthe defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusiveknowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals amaterial fact from the plaintiff; and (4) when the defendant makes partial representations but alsosuppresses some material facts.” ’ ” The last three require an evidence of some transaction, i.e.direct dealings between the plaintiff and the defendant. (Id. at 311-312.) The plaintiff had suedher doctor, the manufacturer and a supplier regarding the malfunction of a medical device(providing cold therapy). (Id. at 286.) The plaintiff had rented the device from a supplier. (Id. at287.) The court found that there was no duty to disclose because there was no relationshipbetween the plaintiff and the manufacturer, no evidence that the manufacturer knew that theplaintiff even had the device (since she obtained it from a supplier), and that there was noevidence that the manufacturer advertised to the public. (Id. at 314.)Here, Plaintiff is relying on exclusive knowledge (FAC ¶30-39), which is sufficient for pleadingpurposes—not evidentiary issues. However, Plaintiff failed to plead any facts of a transactionalrelationship. While Plaintiff relies on Dhital for the notion that dealer and agency allegations weresufficient, Plaintiff did not plead those facts. The court sustains the demurrer on this ground.3. Economic Loss RuleIn Dhital, supra, 84 Cal.App.5th 828, the court expressly found that the economic loss rule did notapply to the fraudulent inducement by concealment claim. The court stated:2The California Supreme Court deferred the matter pending consideration of the related issue in Rattagan v. UberTechs., Inc. (Dec. 1, 2021, S272113) regarding the economic loss rule in concealment cases.To hold, at the demurrer stage, that plaintiffs’ fraud claim is barred by theeconomic loss rule, we would need to conclude, as Nissan urges us to do,that (1) despite the Supreme Court's statement in Robinson, there is noexception to the economic loss rule for fraudulent inducement claims (or atleast no exception that encompasses the claim plaintiffs allege in the SAC),or (2) plaintiffs have not adequately pleaded a claim for fraudulentinducement under California law (a question we address in pt. II.C., post).We reject both arguments and conclude the economic loss rule does notbar plaintiffs’ claim.(Id. at 839.) While Dhital is only persuasive authority at this point, it is the only California casethat addresses the economic loss rule in concealment claims, pending the decision in Rattagan.D. 5th Cause of Action -- Negligent RepairNegligent repair is a form of negligence. “In order to state a cause of action for negligence, thecomplaint must allege facts sufficient to show a legal duty on the part of the defendant to use duecare, a breach of such legal duty, and the breach as the proximate or legal cause of the resultinginjury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.) “Ordinarily, negligence may bealleged in general terms, without specific facts showing how the injury occurred, but there are‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... theplaintiff must indicate the acts or omissions which are said to have been negligently performed.He may not recover upon the bare statement that the defendant's negligence has caused himinjury.’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)Here, no facts are alleged other than Defendant breached its duty, failed to exercise due care,and caused damages. (Complaint, ¶81-84.) However, Plaintiff does not identify how he wasdamaged. There are no other allegations to support a negligence claim.Furthermore, the economic loss rule requires a purchaser whose product is not working properlybe limited to a contract remedy; to avoid the economic loss rule, the purchaser must “demonstrateharm above and beyond a broken contractual promise.” (Robinson Helicopter Co., Inc. v. DanaCorp. (2004) 34 Cal.4th 979, 988.) This is to avoid contract and tort law from “dissolving one intothe other.” (Ibid.)In Robinson, the plaintiff was a helicopter manufacturer which used sprag clutches manufacturedby the defendant. (Id. at 985.) Under federal law, aircraft manufactures must obtain a “typecertificate” such that every aircraft must be produced in accordance to the certificate. (Id.) Thedefendant changed its sprag clutches without notifying the FAA or the plaintiff. (Id. at 985-986.)The plaintiff later had problems with the sprag clutches cracking, and as a result, was required torecall and replace all of the sprag clutches. (Id. at 986.) The plaintiff’s fraud claim was based onthe false certificates of conformance that were mandatorily required. (Id. at 990.) The court foundthat the economic loss rule did not bar the fraud claims because they were independent of thebreach of contract claim. (Id. at 991.) Here, Plaintiff pleads no facts demonstrating anindependent breach.In North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 770, amanufacturer entered into an oral contract with a packaging/shipping company; the companycontaminated the chemicals. The manufacturer’s customer discovered the contamination andwas forced to stop production; the customer made a claim on the manufacturer which themanufacturer paid. (Id. at 770-771.) The manufacturer filed an action against the company andincluded a negligence claim because the company held itself out as qualified to properly bag,package and transport the chemicals. (Id. at 771-772.) The trial court sustained the company’sdemurrer without leave to amend, and the manufacturer filed a writ petition. (Id. at 772.) Thecompany argued that it could not be held liable for negligence because the claim sounded incontract. (Id. at 773-774.) The court recognized that where the negligent performance of acontract is nothing more than failure to perform the express terms of the contract, the claim is forbreach of contract. (Id. at 774.) The court, however, explicitly stated that “accompanying everycontract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulnessthe thing agreed to be done, and a negligent failure to observe any of these conditions is a tort,as well as a breach of contract.” (Ibid.)The court discussed the application of the rule in cases involving the sale of goods or products.(Id. at 778-781.) However, in cases involving the performance of services, the court relied heavilyon J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799. (Id. at 781-783.) The court focused on the factthat J’Aire allowed recovery of expected economic losses where a special relationship existedbetween the parties despite the lack of a contractual privity. (Id. at 782.) The issue depended onthe six Biakanja factors: (1) the extent the transaction was intended to affect the plaintiff, (2) theforeseeability of harm, (3) the degree of certainty of injury, (4) the closeness of the connectionbetween the defendant’s conduct and the injury, (5) the moral blame, and (6) the policy ofpreventing future harm. (Id.) The court then recognized that the reasoning of J’Aire applied tocases where the parties are in contractual privity, where the contracts were for services. (Id. at783.) Here, Plaintiff has not pled any facts demonstrating a special relationship with thisDefendant. Plaintiff has not pled any contractual relationship with this Defendant. Plaintiff hasnot pled this outside of performing the warranty claim—not negligence in repairing the vehicle.Here, Plaintiff has not identified any damages. (CCP §425.10(b) (“If the recovery of money ordamages is demanded, the amount demanded shall be stated.”).) At this point, Plaintiff has notpled around the economic loss rule. The court sustains the demurrer. Plaintiff is given 20 daysleave to amend.

Ruling

Lung Kong Tin Yee Association of Stockton, Inc vs Robert Bishop, III dba Coach's Lounge Sports Bar and Grill et al.

Aug 12, 2024 |STK-CV-UBC-2023-0009922

TENTATIVE RULING Lung Kong Tin Yee Association of Stockton, Inc. vs. Robert Bishop August 13, 2024 Case No.,2023-9922 The court having read and considered Defendant's Motion for Reconsideration filed July 30, 2024 rules as follows. Defendant requests the court to reconsider its ruling with regard to a Commercial Lease" (Plaintiff's Ex. 1). However, during the course of the trial, the court made no ruling regarding this document. The court made no ruling because Defendant, while under oath, agreed with Plaintiff that the document referenced in Defendant's Motion herein, entitled, "Sublease Agreement" is the agreement, the operative agreement, Defendant entered into with Plaintiff. It is undisputed that Plaintiff entered into the "Sublease Agreement" not only to establish the parties' rental contract but also to assist Defendant in qualifying for a commercial license to sell alcohol at the 126 E. Main Street, Stockton site leased to Defendant. Therefore, the court found that the document entitled "Commercial Lease" is irrelevant. Nothing set forth in Defendant's Motion for Reconsideration causes the court to change its ruling. Hon. George J. Abdallah, Jr. Judge of the Superior Court

Ruling

MICHAEL CABALLERO, ET AL. VS JENNY DANG, ET AL.

Aug 20, 2024 |23LBCV01659

Case Number: 23LBCV01659 Hearing Date: August 20, 2024 Dept: S27 1. Background Facts Plaintiffs, Michael Caballero and Eunice Angelica Ibarra filed this action against Defendants, Jenny Dang, Tam Pham, and US Land Realty, Inc. for failure to disclose during the course of a real estate transaction. Plaintiffs were the buyers of the property; Pham and US Land Realty were the sellers of the property; Dang was the dual agent for the purchase of the property. Plaintiffs filed their complaint on 9/01/23. On 3/11/24, Defendants filed a cross-complaint against Plaintiffs for breach of contract and negligence. The crux of the cross-complaint is that the parties, during escrow, learned of problems Defendants had not known when they filed their disclosures, and Defendants thereafter paid cash to have the problems remedied, but Plaintiffs refused to complete the sale despite the good faith efforts to remedy the problems. 2. 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 partys 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 Cross-Defendants filed a meet and confer declaration with their demurrer. Specifically, Cross-Defendants attorney declares (and attaches email evidence) that Cross-Complainants attorney repeatedly conceded the defects in the cross-complaint and indicated he would amend the cross-complaint without the need to file a demurrer. Despite the numerous representations to this effect, Cross-Complainants never did so, and Cross-Defendants were forced to file this demurrer. c. Breach of Contract Cross-Defendants demur to the cause of action for breach of contract, contending Cross-Complainants failed to attach a copy of the parties contract or plead its terms verbatim in the body of the complaint, as required by Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459. Additionally, they note that Dang was not a party to any contract, and was merely the agent representing the other parties in connection with the sale. Finally, they correctly note that ¶26 of the cross-complaint simply alleges Cross-Defendants failed to abide by the terms of the contract, but fails to specify the breach that occurred. The demurrer is sustained on all grounds asserted by Cross-Defendants. It is not up to the Court to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742. Because Cross-Complainants did not oppose the demurrer, they necessarily failed to make this showing. Leave to amend is therefore denied. d. Negligence Cross-Complainants second cause of action is for negligence. Cross-Defendants, in their demurrer, establish that purchasers in a real estate transaction owe no duty (outside the terms of the parties contract) to the sellers, and therefore any claim must sound in contract, not in tort. See Erlich v. Menezes (1999) 21 Cal.4th 543, 553. The demurrer is sustained. Again, in light of the lack of opposition, leave to amend is denied. e. Motion to Strike Cross-Defendants include a request to strike portions of the prayer for damages in their demurrer. Demurrers and motions to strike must be filed as two separate pleading challenges. CCP §435(b)(3), CRC 3.1322(b). In any event, the motion to strike is moot in light of the ruling on the demurrer. f. Conclusion The demurrer is sustained without leave to amend. The motion to strike is improper and, in any event, moot. Cross-Defendants are 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 partys email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Ruling

NAVY FEDERAL CREDIT UNION VS ATRIUM AME INC, ET AL.

Aug 13, 2024 |23STCV27342

Case Number: 23STCV27342 Hearing Date: August 13, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 NAVY FEDERAL CREDIT UNION, Plaintiff, vs. ARTIUM AME, INC., et al., Defendants. Case No.: 23STCV27342 Hearing Date: August 13, 2024 Hearing Time: 8:30 a.m. [TENTATIVE] ORDER RE: PLAINTIFFS REQUEST FOR DEFAULT JUDGMENT Plaintiff Navy Federal Credit Union (Plaintiff) requests entry of default judgment against Defendant Artium AME, Inc. Plaintiff seeks judgment in the total amount of $59,530.19, comprising $56,977.14 in damages, $2,029.54 in attorneys fees, and $523.51 in costs. On June 17, 2024, the Court issued an Order on Plaintiffs request for default judgment, providing, inter alia, as follows: The Court notes a few defects with the submitted default judgment package. First, on December 1, 2023, Plaintiff filed a proof of service indicating that the summons and Complaint were personally served on Atrium AME Inc on November 30, 2023. (Emphasis added.) However, Plaintiff seeks entry of default judgment against Artium AME, Inc. and the defendant named in the Complaint is Artium AME, Inc. (Emphasis added.) Thus, the spelling of the defendants name on the proof of service appears to be incorrect. Second, this is an action on a loan contract (Compl., pp. 3-4), but Plaintiff has not provided the original of the note. In lieu of the original, Plaintiff may also provide a declaration explaining loss or unavailability, along with a proposed order to accept a copy in lieu of the original. (Cal. Rules of Court, rule 3.1806; Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1124.). (June 17, 2024 Order at pp. 1:18-2:2.) The Courts June 17, 2024 minute order in this action provides, inter alia, that [t]he Court continues the hearing on the request for Default Judgment as to defendant Atrium Ame Inc., as follows: Plaintiff to file and serve the corrected Proof of Service and the Declaration and Order regarding the unavailability of the note by July 17, 2024. It appears that Plaintiff filed the corrected Proof of Service but the default clerk rejected it. It appears that the default clerk may have made an error based upon the name in the docket for this file which identifies the defendant as Atrium AME, Inc. The Court accepts the corrected Proof of Service. However, it does not appear that Plaintiff filed the declaration and proposed order regarding the original of the note. The Court will discuss these issues with counsel at the hearing. DATED: August 13, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court

Ruling

ALEN COHEN, ET AL. VS MOSHE ZEMACH, ET AL.

Aug 13, 2024 |22VECV01536

Case Number: 22VECV01536 Hearing Date: August 13, 2024 Dept: W ALEN COHEN, et al. v. MOSHE ZEMACH, et al. PLAINTIFFS MOTION TO COMPEL THE FURTHER DEPOSITION OF DEFENDANT expert decking & waterproofing, inc.s person(s) most qualified and production of documents Date of Hearing: August 13, 2024 Trial Date: September 23, 2024 Department: W Case No.: 22VECV01536 Moving Party: Plaintiff Alen Cohen Responding Party: Defendant Expert Decking & Waterproofing, inc. BACKGROUND On October 11, 2022, Plaintiffs Alen Cohen and Nastran Cohen filed a complaint against Defendants Moshe Zemach, David Zemach, Maya Librush, Oded Zemach, Livinit Up, LLC, UrbinoConstruction Services LLC, IO Lifetime Builders, Inc., Chai Group, LLC, Serrano Demolition, Inc., Expert Decking and Waterproofing Experts, Inc. and The Ohio Casualty Insurance Company asserting causes of action for (1) Breach of Contract; (2) Breach of Contract; (3) Negligence; (4) Negligence; (5) Negligence; (6) Breach of Express Warranty; (7) Breach of Implied Warranty; (8) Violations of Civil Code Sections 895, et seq.; (9) Intentional Misrepresentation; (10) Negligent Misrepresentation; (11) Promissory Fraud; (12) Breach of Contract; (13) Breach of Contract; (14) Recovery on Contractors Bond; (15) Declaratory Relief; and (16) Rescission. Plaintiffs filed a first amended complaint on March 21, 2023. On June 20, 2023, Plaintiffs dismissed their ninth and tenth causes of action against Oded Zemach, UrbinoConstruction Services, LLC, IO Lifetime Builders, Inc., and Chai Group LLC. Plaintiffs allege Defendants LivinIt Up, LLC, Moshe Zemach, David Zemach, Maya Librush, Oded Zemach, UrbinoConstruction Services, LLC, IO Lifetime Builders, Inc., and Chai Group, LLC (Zemach Defendants) misrepresented the condition of certain real property sold to Plaintiff. The Zemach Defendants purchased the real property in 2015 and had substantially remodeled the property. Plaintiffs further allege Serrano Demolition was not a licensed contractor nor otherwise qualified to perform the required work and caused damaged to the property. Plaintiffs further allege Defendant Expert Decking and Waterproofing not only delayed substantial completion of its scope of work, Defendant Expert Decking also defectively and negligently performed its work causing Plaintiffs to sustain even further damages. On January 3, 2023, Expert Decking and Watering Proofing, Inc. filed a cross-complaint against Roes 1 -100 for (1) equitable indemnity; (2) contribution; (3) comparative fault; and (4) declaratory relief. The Ohio Casualty Insurance Company filed a cross-complaint on February 24, 2023 against Expert Decking, Alen Cohen, and Nastran Cohen for interpleader. Moshe Zemach, David Zemach, and Livinit Up filed a cross-complaint against Serrano Demolition, Inc., Expert Decking and Water Proofing, Inc. and James West on April 21, 2023 for equitable indemnity, contribution, declaratory relief. [Tentative] Ruling Plaintiff Alen Cohens Motion to Compel the Further Deposition of Defendant Expert Decking & Waterproofing, Inc.s Person(s) Most Qualified and Production of Documents is GRANTED, in part. discussion Plaintiff Alen Cohen requests the Court make the following Order: Defendant Expert Decking & Waterproofing, Inc. (Expert Decking) to (1) Produce for oral examination its PMQ, who is adequately prepared to testify on all 54 Topics set forth in Plaintiffs Amended Notice of Taking the Deposition of Defendants PMQ and Request for Production of Documents (Notice); (2) Conduct a diligent search and reasonable inquiry for all documents responsive to the Notices Requests for Production of Documents Nos. 1-23 (Requests); (3) Produce all documents that are responsive to the Requests by August 15, 2024; (4) Produce Jesus Vargas for his continued oral examination on either August 19, 2024 or August 21, 2024; (5) Serve complete, verified code-compliant responses to the Notice, including each of the Requests, without any objections, concurrently with producing all documents responsive to the Requests on August 15, 2024; and (6) Require defense counsel to affirm, under oath and on August 15, 2024, that no documents have been withheld from production and attesting to his and his clients efforts to locate and produce all documents responsive to the Requests. Plaintiff also seeks an order imposing monetary sanctions in the amount of $7,350.00 against Defendant. In opposition, Expert Deckings Counsel submits a limited opposition asserting: (1) It has been working with Expert Decking to comply with the Production of Documents and production of further PMQs to satisfy the Notice; (2) Mr. Vargas was produced on behalf of Expert Decking for Deposition on May 15, 2024 as he is the PMQ for the majority of the topics; (3) on July 23, 2024, Expert Decking served a complete response to the Document Requests in the Deposition Notice along with over 200 pages of responsive documents; (4) upon resignation of Expert Deckings former counsel, current counsel for Expert Decking discovered emails which contained additional documents necessary to respond to the production requests in the PMQ deposition notice, but unfortunately, they were never sent; and (5) the newly discovered documents were sent on July 23, 2024. Expert Decking submitted a supplemental declaration on August 8, 2024 asserting they have now provided Plaintiffs counsel with the identification of the PMQ's from Expert Decking in response to each of their 54 with available dates for those individual's depositions. Based on the record before the Court, it appears Expert Decking must still produce responsive documents to the Requests, namely individual photos and videos of the Project and Property. Expert Decking is ordered to produce such documents within 20 days. Expert Decking must also confirm whether a diligent search and reasonable inquiry has been done for all responsive documents. Expert Decking has now provided who will be the PMQ for what topic and what dates are available. At the time of the hearing, the parties are to inform the Court whether they have now agreed upon date and time for Mr. Vargas and Mr. Hadad to sit for their depositions. As for Plaintiffs request for sanctions, the Court GRANTS Plaintiffs request for monetary sanctions in the reduced amount of $3,900.00 (5 hours preparing the motion and supporting documents at Mr. Geylikmans rate and 1 hour for Mr. Fosters work on the motion at his hourly rate of $900.00).

Ruling

LATOYA S REDD VS MARC S FELDMAN, ET AL.

Aug 22, 2024 |23STCV31118

Case Number: 23STCV31118 Hearing Date: August 22, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 22, 2024 Case Name: Redd v. Feldman, et al. Case No.: 23STCV31118 Matter: Motion to Correct Register of Actions Moving Party: Plaintiff Latoya S. Redd Responding Party: (1) Defendants Thomas Kovich and William R. Johnson (2) Defendants Marc S. Feldman, Boshra G. Khoder, and Brett G. Hampton 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 May 15, 2024, the Court entered defaults for Defendants Marc S. Feldman, Boshra G. Khoder, and Brett G. Hampton. On July 1, 2024, the Court entered defaults for Defendants Thomas Kovich and William R. Johnson. Since their defaults, the aforementioned Defendants filed answers, demands for jury trial, demurrers, and anti-SLAPP motions, among other filings. Plaintiff Latoya Redd has filed a Motion indicating [e]ntries of default were entered against Defendants Marc S. Feldman, Brett G. Hampton, Boshra G. Khoder, William R. Johnson, and Thomas Kovich on May 15, 2024 and July 1, 2024, respectively. As a result, any pleadings or filings after those dates from these Defendants should be stricken from the record and / or register of actions, including, but not limited to, the Answer filed on May 16, 2024 and the Demurrer and accompanying papers filed on July 2 and 3, 2024. Defendants oppose the Motion on the ground that their defaults should be set aside. They have filed affirmative motions for this relief set for September 13, 2024, and October 4, 2024. The Court cannot set aside defaults based on a request in an opposition. That is an issue for Defendants motions set for September and October. Given that the subject Defendants have defaulted, they have no right to participate in this action, and all of their filingswhich came after their defaultsare void, with the exception of their motions to set aside default. Therefore, the Court will strike these filings. 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.

Ruling

KAMO ARUSTAMYAN VS NISSAN-INFINITI LT LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Aug 13, 2024 |24NNCV00381

Case Number: 24NNCV00381 Hearing Date: August 13, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A TENTATIVE RULING AUGUST 13, 2024 MOTION TO COMPEL ARBITRATION & STAY MATTER Los Angeles Superior Court Case # 24NNCV00381 MP: Nissan-Infiniti LT LLC & Nissan Motor Acceptance Company, LLC (Defendants) RP: Kamo Arustamyan (Plaintiff) [No Opposition Rendered] NOTICE: The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received. Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. ALLEGATIONS: Kamo Arustamyan (Plaintiff) bring this action against Nissan-Infiniti LT LLC (Nissan) for claims arising out of the purchase of a 2021 Infiniti Q50 (the Subject Vehicle). The Complaint alleges, among other things, that he was damaged by the terms of the Lease Agreement, and he was fraudulently induced into signing. The vast majority of Plaintiffs claims concern his allegation that he was improperly excluded from any insurance payout when the vehicle was rendered a total loss following a December 23 ,2021 incident. Nissan now moves to compel Plaintiffs claims against them to arbitration. Nissan argues these claims are subject to arbitration pursuant to the agreement contained in the Lease Agreement signed between Plaintiff and the dealership, which was subsequently assigned to Nissan. Plaintiff has filed no opposition to this motion, and indicated they would not do so in a July 31, 2024 Case Management Statement. ANALYSIS: I. LEGAL STANDARD C.C.P. § 1281.2 states: [o]n 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 arbitrate the controversy exists. A party seeking to compel arbitration has the initial burden to prove, by a preponderance of the evidence, the existence of a valid and enforceable arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) If the moving party has met its initial burden, then the burden shifts to respondents to prove the falsity or unenforceability of the arbitration agreement. (Id.) Moving party has filed a notice of non-opposition. The Court notes, failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. CRC Rule 8.54(c) II. MERITS The Arbitration Clause As evidence of an arbitration agreement between the parties, Nissan submits a copy of the Motor Vehicle Lease Agreement (Lease Agreement) between Plaintiff and Glendale Infiniti (Dealership). Nissan further states that the Lease Agreement between Plaintiff and Glendale Infiniti was thereafter assigned to Nissan-Infiniti LT and serviced by Nissan Motor Acceptance Company, LLC (NMAC). (Blakney Decl. ¶¶ 2, 5.) The Lease Agreement contains an arbitration clause at paragraph 31 which reads in relevant part: 1. Either you or we may choose to have any dispute between us decided by arbitration and not in court or by jury trial. 2. If a dispute is arbitrated, you will give up your right to participate as a class representative or class member on any class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations. 3. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration&. &[a]ny claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Clause, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action& &This Arbitration Clause shall survive any termination, payoff or transfer of this lease&. (Blakney Decl. Exh. A, p. 4.) The Plaintiff has declined to oppose the motion. Pursuant to CRC Rule 8.54(c), the failure to file an opposition to the motion indicates the other parties' acquiescence that the motion is meritorious. As such, the Court need not conduct its own independent analysis seeking to substitute its judgment and legal analysis to find fault, if any, with Plaintiffs motion. As such, the Court finds Nissan has provided sufficient evidence that Plaintiffs dispute is subject to arbitration and the burden thus shifts to Plaintiff to show falsity or unenforceability. Plaintiff, having submitted no opposition to this motion, has not upheld his burden. Given that the arbitration clause is present in Plaintiffs Complaint, the Court sees no facial claim for falsity. Further, the language of the arbitration agreement appears to bind both parties equally and is not facially unconscionable. Accordingly, the motion to compel arbitration is GRANTED. Stay Once arbitration has been compelled, in whole or in part, a stay of proceedings is mandatory if the issues in the arbitration and the pending action overlap. (C.C.P. § 1281.4 (if a court has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.)) The purpose of the statutory stay [under section 1281.4] is to protect the jurisdiction of the arbitrator by preserving the status quo until arbitration is resolved. In the absence of a stay, the continuation of the proceedings in the trial court disrupts the arbitration proceedings and can render them ineffective. (Federal Ins. Co. v. Superior Court (1998) 60 Cal.App.4th 1370, 1374-1375 (citations omitted).) As the Court grants the motion to compel arbitration in its entirety, the Court also grants the motion to stay the proceedings pending arbitration. --- RULING: In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the courts records. ORDER Nissan-Infiniti LT LLC and Nissan Motor Acceptance Company, LLCs Motion to Compel Arbitration came on regularly for hearing on August 9, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: THE MOTION TO COMPEL ARBITRATION IS GRANTED. THE STAY OF PROCEEDINGS IS GRANTED. A STATUS CONFERENCE RE: ARBITRATION OR DISMISSAL (SETTLEMENT) IS SET FOR AUGUST 13, 2025 AT 9:00 A.M. UNLESS ALL PARTIES WAIVE NOTICE, NISSAN TO GIVE NOTICE. IT IS SO ORDERED.

Ruling

DERRICK R UPCHURCH, ET AL. VS BC DESIGN AND DEVELOPMENT, INC., ET AL.

Aug 16, 2024 |21STCV32131

Case Number: 21STCV32131 Hearing Date: August 16, 2024 Dept: 54 Superior Court of California County of Los Angeles Derrick R. Upchurch, et al., Plaintiffs, Case No.: 21STCV32131 vs. Tentative Ruling BC Design and Development, Inc., et al., Defendants. Hearing Date: August 16, 2024 Department 54, Judge Maurice Leiter Motion for Determination of Good Faith Settlement Moving Party: Defendants Dario Acosta Bernal and Sergio Acosta Responding Party: Unopposed T/R: THE MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT IS GRANTED. DEFENDANTS 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 8:30 am on the day of the hearing.¿ The Court considers the moving papers. No opposition was filed. BACKGROUND On August 31, 2021, Plaintiffs Derrick R. Upchurch and Sari M. Upchurch sued BC Design and Development, Inc., and other defendants for breach of contract, breach of express and implied warranties, misrepresentation, negligence, and money due on contractors license bond. Defendants Dario Acosta Bernal and Sergio Acosta now move for an order determining whether the proposed $5,000.00 settlement between them and Plaintiffs is in good faith. ANALYSIS Pursuant to Code of Civil Procedure Section 877.6, subdivision (a)(1),[a]ny¿party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or. . . and one or more alleged tortfeasors or co-obligors . . . . (Code Civ. Proc., § 877.6, subd. (a)(1).) 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).)¿Although a determination that a settlement was in good faith does not discharge any other party from liability, it shall reduce the claims against the others in the amount stipulated by the settlement.¿(Code Civ. Proc., § 877, subd. (a).)¿¿¿¿¿¿ In¿Tech-Bilt, Inc. v. Woodward-Clyde & Associates¿(1985) 38 Cal.3d 488, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith:¿a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial.¿Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of¿nonsettling¿defendants.¿(Tech-Bilt, Inc. v. Woodward-Clyde & Associates¿(1985) 38 Cal.3d 488, 499.) Acosta Defendants argue that the parties entered into the proposed settlement agreement after an arms-length negotiation at a mandatory settlement conference. The parties were represented by counsel. Acosta Defendants do not admit liability. They argue the proposed settlement is a fair apportionment of their alleged liability because the estimated total cost for the repair of the purportedly damaged swimming pool was $66,399.80 and Plaintiffs settled with FC Steel for $64,000.00. There is no opposition to the motion. The motion is GRANTED.

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