SUMMONS + COMPLAINT July 02, 2019 (2024)

Case

Housing Trust Fund Corporation v. Alvaro Lopez

Jul 31, 2024 |Other Matters - Contract - Other |Other Matters - Contract - Other |613464/2024

Case

Holly Rodas v. Mountain Valley Indemnity Company

Jul 29, 2024 |Commercial - Contract |Commercial - Contract |613280/2024

Case

Aug 01, 2024 |Other Matters - Contract Non-Commercial |Other Matters - Contract Non-Commercial |613538/2024

Case

Fintegra Llc v. Outter City Arts La Llc D/B/A OUTTER CITY ARTS LA, Danny N Fuentes

Jul 31, 2024 |Commercial - Contract |Commercial - Contract |613451/2024

Case

Fora Financial Asset Securitization 2021, Llc, v. Spartan Fitness Llc d/b/a EVOLVERE, Neil Thakkar

Jul 31, 2024 |Other Matters - Contract - Other |Other Matters - Contract - Other |613455/2024

Case

Swift Funding California Llc v. Robert Martin Mysel d/b/a LUXE-DESIGN, Robert Martin Mysel

Jul 31, 2024 |Commercial - Contract |Commercial - Contract |613476/2024

Case

Fariza Ebtehagfar v. Javid Zarabi

Aug 01, 2024 |Commercial - Contract |Commercial - Contract |613503/2024

Case

Housing Trust Fund Corporation v. Brandy L. Ulubay

Jul 31, 2024 |Other Matters - Contract - Other |Other Matters - Contract - Other |613470/2024

Case

Jpmorgan Chase Bank, N.A. v. Trensi Corp, Jose G. Garcia

Jul 31, 2024 |Commercial - Contract |Commercial - Contract |613487/2024

Ruling

GARCIA vs KIA AMERICA, INC

Aug 08, 2024 |CVSW2400805

MOTION TO COMPEL RESPONSES TOGARCIA VS KIA AMERICA, PLAINTIFF’S REQUESTS FORCVSW2400805INC PRODUCTION OF DOCUMENTS SETONE BY JENNY GARCIATentative Ruling:A party may file a motion compelling further answers to requests for production if it finds that theresponse is inadequate, incomplete, or evasive, or an objection in the response is without merit or toogeneral. (CCP § 2031.310.) Unless notice of the motion is given within 45 days of the service of the verifiedresponse, or any supplemental verified response, or on or before any specific later date to which thepropounding party and the responding party have agreed in writing, the propounding party waives anyright to compel a further response. (CCP § 2031.310(c).) The 45-day rule does not begin to run untilverifications are provided. (Golf & Tennis Pro Shop, Inc. v. Sup. Ct. (2022) 84 Cal.App.5th 127, 136.) Here,Kia served its unverified responses on 4/23/2024. (Ryu Decl. ¶ 4, Ex. B.) There is no evidence thatverification has been served. Thus, the motion is timely as the 45-day rule has not yet begun to run.Under CCP § 2031.310(b), the parties are required to meet and confer. A single letter followed bya response of refusal may be sufficient in certain circ*mstances to constitute a proper meet andconfer. (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 432.) The court, however, will also consider thetime available before the motion deadline, the extent to which the responding party was complicit in thelapse of time, and the prospects of success through meet and confer. (Id. at 432–33.)Here, Plaintiff sent one letter on 5/7/2024. (Ryu Decl. ¶ 5, Ex. C.) Kia responded on 5/23/2024,offering to further discuss the matter via email or telephone. (Proudfoot ¶ 8, Ex. C.) Rather than continueto meet and confer, Plaintiff filed the instant motion on 6/11/2024. As discussed above, the 45-daydeadline on the motion had not yet begun to run when it was filed. Thus, the Court finds that the partieshave not properly met and conferred regarding the subject discovery.Accordingly, the Court orders the parties to further meet and confer either in person, telephoneor videoconferencing within 10 days of this order. If the parties cannot agree, the parties are ordered tosubmit a joint separate statement of outstanding issues.The court continues the motion and ORDERS the parties to further meet and confer either inperson, telephone or videoconferencing. The court also ORDERS the parties to file a joint separatestatement regarding any outstanding issues.This matter is continued to October 29, 2024, at 8:30 AM to give the parties time to comply.4.LEWING VS CITY OF DEMURRER TO COMPLAINT BY CITYCVSW2403928TEMECULA OF TEMECULATentative Ruling:I. Meet and ConferDefendants have satisfied their obligation to meet and confer pursuant to C.C.P. § 430.41(a).(Decl. of Jacqueline C. Lee at ¶¶ 2-4.)II. Demurrer StandardA general demurrer lies where the pleading does not state facts sufficient to constitute a causeof action. (C.C.P. § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonableinterpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents ofUniversity of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material factswhich have been properly pleaded, of facts which may be inferred from those expressly pleaded, and ofany material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman(1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusionsof fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state acause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility thatthe defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)III. On the MeritsA. Disability DiscriminationFEHA bars discrimination on the basis of medical condition and physical disability. (Gov. Code§12926(i) & (m).) In order to establish a prima facie case of discrimination, plaintiff must show that heor she: (1) suffered from a disability or was regarded as suffering from a disability; (2) could perform theessential duties of the job with or without reasonable accommodations, and (3) was subjected to anadverse employment action because of the disability or perceived disability. (Sandell v. Taylor-Listug,Inc. (2010) 188 Cal.App.4th 297, 310.) “A physical disability may be temporary or short term andincludes not only physical impairments that are actually disabling, but also physical impairments that arepotentially disabling or are perceived as disabling or potentially disabling.” (Ross v. County of Riverside(2019) 36 Cal.App.5th 580, 594.)In the present case, the only reference in the Complaint to a possible disability is Plaintiff'sallegation that after she was told that the investigation into her alleged misconduct had been completedbut Defendant was still investigating Plaintiff's harassment claims, Plaintiff requested time off due to heranxiety, loss of sleep, headaches, and stress. (Complaint at ¶ 29.) It is unclear from the Complaint whatexactly Plaintiff's disability is, and if Defendant knew of her alleged disability. Accordingly, theallegations are insufficient to meet the first element of a claim for disability discrimination. Additionally,Plaintiff does not allege facts showing she could perform the essential duties of the job with or withoutreasonable accommodations. Accordingly, the demurrer to the cause of action for disabilitydiscrimination is sustained with leave to amend.B. Failure to AccommodateThe elements of a failure-to-accommodate cause of action are: (1) the plaintiff has a disabilityunder FEHA; (2) the plaintiff is qualified to perform the essential functions of the position; and (3) theemployer failed to reasonably accommodate the plaintiff’s disability. (Lui v. City and County of SanFrancisco (2012) 211 Cal.App.4th 962, 970.) Under Gov. Code § 12940(m), an employer is liable forfailure to accommodate where an employee requests a specific and available reasonableaccommodation that the employer fails to provide. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008)166 Cal.App.4th 952, 983.) Employers must make a reasonable accommodation for the knowndisabilities of employees to enable them to perform a position’s essential functions, unless doing sowould produce undue hardship to the employer’s operations. (Gov. C. § 12940(m); 2 Cal.C.Regs. §11068(a); Fisher v. Sup. Ct. (Alpha Therapeutic Corp.)(1986) 177 Cal.App.3d 779, 783.)As set forth above, Plaintiff does not sufficiently allege that: she had a disability; Defendant knewof any alleged disability; or that she was qualified to perform the essential functions of her position. Inaddition, while Plaintiff alleges that she asked for time off, it does not appear from the allegations of theComplaint that this was a request for an accommodation. Accordingly, Plaintiff fails to allege sufficientfacts to state a cause of action for failure to accommodate, and the demurrer to this cause of actionshould be sustained.C. Failure to Engage in the Interactive ProcessThe FEHA requirement of a good-faith interactive process with a disabled employee requires aninformal process with the employee to attempt to identify reasonable accommodations. (Nealy v. City ofSanta Monica (2015) 234 Cal.App.4th 359, 379.) Both the employer and the employee are responsiblefor participating in the interactive process, but typically, the employee must initiate the process unlessthe disability and resulting limitations are obvious. (Featherstone v. Southern California PermanenteMedical Group (2017) 10 Cal.App.5th 1150, 1169.) To prevail on a FEHA claim for failure to engage in theinteractive process, an employee must identify a reasonable accommodation that would have beenavailable at the time the interactive process occurred. (Id.)In the present case, as discussed above, the allegations are insufficient to show Plaintiff had adisability; Defendant knew about the disability; and/or that Plaintiff requested reasonableaccommodation. Accordingly, the demurrer to this cause of action is sustained.D. Race DiscriminationTo plead a claim for race discrimination under FEHA, a plaintiff must allege the following elements:“(1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus onthe part of the employer toward members of that classification; (3) an action by the employer adverse tothe employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5)damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v.Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) [emphasis added].) An adverse employmentaction is defined “generally as one that materially affect[s] the terms and conditions of employment.”(Featherstone v. S. Cal. Permanente Med. Grp. (2017) 10 Cal.App.5th 1150, 1161 [quoting Yanowitz v.L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1051, fn. 9].)In the present case, Plaintiff alleges she is black, and therefore a member of a protected class,and that she suffered adverse employment actions, including being placed on administrative leave,demotion, and termination. (Complaint at ¶¶ 8-10, 30-34.) However, Plaintiff does not allege facts thatshow a discriminatory animus on the part of Defendant, or a causal connection between thediscriminatory animus and the adverse action. Accordingly, her cause of action is not sufficiently pledand the demurrer to this cause of action is sustained.E. Race Harassment/Hostile Work EnvironmentIn order to state a cause of action for racial harassment under FEHA, a plaintiff must allege: (1)she was subjected to unwelcome harassment; (2) the harassment complained of was based on plaintiff’srace; and (3) the harassment complained of was sufficiently pervasive so as to alter the conditions ofemployment and create an abusive working environment. (Fisher v. San Pedro Peninsula Hosp. (1989) 214Cal.App.3d 590, 608.) To constitute harassment, the conduct must be so objectively severe or pervasiveas “‘to create a hostile or abusive working environment.’” (Serri v. Santa Clara Univ. (2014) 226Cal.App.4th 830, 870.) Factors to consider in this context include the frequency of the conduct, its severity,whether it is physically threatening or humiliating, and whether it unreasonably interferes with theemployee’s work performance. (Id.) “In determining what constitutes ‘sufficiently pervasive’ harassment,the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather theplaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.”(Fisher, supra, 214 Cal.App.3d at 610.)Plaintiff alleges she was subjected to harassment due to her race, which is sufficient to meet thefirst two elements of this cause of action. Plaintiff then alleges that “Defendant engaged in a pattern andpractice of racial harassment that was severe and pervasive.” (Complaint at ¶¶ 76-77.) However, thisconclusory statement is not supported by the specific allegations of the Complaint. Instead, the followingallegations are the total specific racial comments alleged to have been made to (or in the presence of)Plaintiff: in early 2019, Wood commented that Plaintiff is from “a rough urban area where all of the ethnicpeople live” [Complaint at ¶ 15]; in late 2019, Larson said “what’s up N-word” to Plaintiff once [Complaintat ¶ 16]; in July 2020, Wood asked Plaintiff he opinion about the George Floyd protests and then told herhe had a right to get his gun and shoot protesters [Complaint at ¶ 17]; also in July 2020, Rabidou wore acostume that made him resemble Abraha Lincoln and was asked, in Plaintiff's presence, if he was “freeingthe slaves this week” [Complaint at ¶ 18]; and in April 2023, Cole gave Plaintiff a copy of the film “CreatedEqual” by US Supreme Court Justice Clarence Thomas and told her to watch it while he and Wood laughed[Complaint at ¶ 27].Five instances over the course of over four years is not a high frequency; the comments/conduct,while unpleasant, are occasional and sporadic; the conduct is not physically threatening or humiliating;and Plaintiff does not allege that the comments/conduct interfered with her work. Therefore, Plaintifffails to allege facts showing the alleged harassment was severe or pervasive. (See, Serri, supra, 226Cal.App.4th at 870; Fisher, supra, 214 Cal.App.3d at 610.) Accordingly, the demurrer to this cause of actionis sustained.F. Retaliation for Requesting AccommodationsLabor Code § 12940(m) states it is unlawful for an employer to retaliate against a person forrequesting an accommodation. (Id.) To establish a prima facie case of retaliation, plaintiff must showthat (1) she engaged in a protected activity; (2) the employer subjected plaintiff to an adverseemployment action; and (3) a causal link exists between the protected activity and the employer’saction. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A causal link may be established byinference derived from circ*mstantial evidence, including the proximity in time between the protectedaction and alleged retaliatory employment decision. (Morgan v. Regents of Univ. of Calif. (2000) 88Cal.App.4th 52, 69.)Here, as set forth above, Plaintiff fails to allege facts showing she requested an accommodation,i.e., engaged in a protected activity. Accordingly, she fails to allege sufficient facts to support this causeof action and the demurrer is sustained.G. Retaliation in Violation of Gov. Code § 12940(h)Pursuant to Gov. Code § 12940(h), it is an unlawful employment practice for an employer “todischarge, expel, or otherwise discriminate against any person because the person has opposed anypractices forbidden [by FEHA] or because the person has filed a complaint, testified, or assisted in anyproceeding under [FEHA].” (Gov. Code § 12940(h).) As with the prior cause of action, in order to establisha prima facie case of retaliation under either subsection, a plaintiff must a plaintiff must show: (1) he orshe engaged in a protected activity; (2) the employer subjected the employee to an adverse employmentaction; and (3) a causal link existed between the protected activity and the employer’s action. (Yanowitz,supra, 36 Cal.4th 1028, 1042; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942.)In the present case, to support this cause of action, Plaintiff alleges, in a conclusory fashion, thatshe engaged in a protected activity and Defendant retaliated. (Complaint at ¶¶ 90-91.) She does notidentify what protected activity she engaged in. She also does not allege facts to show a causal connectionbetween any alleged protected activity and the adverse employment actions. Accordingly, she fails toallege sufficient facts to support this cause of action and the demurrer is sustained.H. Failure to Prevent Discrimination, Harassment, and RetaliationFailure to take all reasonable steps to prevent discrimination, harassment, and retaliation fromoccurring is another unlawful employment practice under FEHA. (Gov. Code, §12904(k).) When aplaintiff seeks to recover damages based on a claim of an employer’s failure to prevent discrimination orharassment in violation of FEHA, three essential elements must be shown: (1) the plaintiff was subjectedto discrimination, harassment, or retaliation; and (2) the defendant failed to take all reasonable steps toprevent discrimination, harassment, or retaliation; and (3) this failure caused the plaintiff to sufferinjury, damage, loss, or harm. (Gov. Code, §12940(k); Trujillo v. North County Transit District (1998) 63Cal.App.4th 280, 288-289.) Here, without sufficiently pleading the underlying claims for discrimination,harassment, and/or retaliation in violation of FEHA, Plaintiff cannot state a claim for failure to preventthis unlawful conduct. Accordingly, the demurrer to this cause of action is sustained.The Demurrer is Sustained with 30 days leave to amend.

Ruling

Pritchard vs. Fisher's Decorative Concrete Design, et al.

Aug 11, 2024 |22CV-0200569

PRITCHARD VS. FISHER'S DECORATIVE CONCRETE DESIGN, ET AL.Case Number: 22CV-0200569Tentative Ruling on Motion for Protective Order: Plaintiff Glenn Pritchard moves for a protective orderpreventing a property inspection. Defendant Jeremia Fisher opposes the motion. The Court notes that theOpposition was untimely filed, however, the Court exercises its discretion to consider the Opposition. TheOpposition being one day late did not appear to affect Plaintiff’s ability to respond with a competent Reply.Meet and Confer. Meet and confer efforts were required prior to filing the motion. CCP § 2031.060(a). TheDeclaration of Dan Rowan Courtright provides adequate evidence of meet and confer efforts.Merits. CCP § 2031.010 reads, in part: (a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. … (d) A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it.Despite being listed as an exhibit to the Declaration of Dan Rowan Cortright Supporting Reply, the InspectionDemand was not attached. Therefore, the Court has not reviewed the Inspection Demand. From the declarations,it appears that the Inspection Demand was served on June 14, 2024 and noticed an inspection of the worksite(which is Plaintiff’s yard) on July 24, 2024. Defendant’s counsel also requests that Defendant be allowed to takea water sample from Plaintiff’s well water. It appears that the request to take a sample of well water was notincluded in the original Inspection Demand.Plaintiff moved for a protective order pursuant to CCP § 2031.060. For good cause shown the Court “may makeany order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment,or oppression, or undue burden and expense.” CCP § 2031.060(b). Plaintiff asserts that Defendant is intimidating,has stolen from Plaintiff, and has left trash on Plaintiff’s property. Plaintiff has failed to show how allowingDefendant and his attorney and potentially a photographer on his property to inspect the work that Defendant didthat remains and the work that was done by a subsequent contractor hired by Plaintiff would result in unwarrantedannoyance, embarrassment, oppression, or undue burden or expense. The areas at issue all appear to be outsidethe home. Plaintiff need not be present for the inspection. Defendant’s counsel has already indicated that he willbe there personally with Defendant. The Court finds the evidence sought to be relevant to the case and likely tolead to admissible evidence.“If the motion for a protective order is denied in whole or in part, the court may order that the party to whom thedemand was directed provide or permit the discovery against which protection was sought on terms and conditionsthat are just.” CCP § 2031.060(g). The Court orders that Plaintiff allow the inspection to take place on or beforeAugust 17, 2024. Defendant’s request to test well water is not properly before the Court and appears to have notbeen noticed until after the discovery deadline. The request to inspect well water is not included in the Court’sorder. Due to time constraints given the upcoming trial date, Defendant is ordered to provide Plaintiff with acopy of any photographs or video taken within 48 hours of the inspection.Sanctions. The Court shall impose sanctions against any party who unsuccessfully makes a motion for a protectiveorder unless it finds that the on subject to the sanction acted with substantial justification or that othercirc*mstances make the imposition of the sanction unjust. CCP § 2031.060(h). However, Defendant did not askfor sanctions and did not provide any evidence regarding attorney’s fees incurred in defending the motion.Sanctions should only be imposed for “reasonable” expenses. CCP § 2023.030. The Court does not haveinformation upon which to make a finding that any amount of sanctions were for reasonable expenses and willnot impose sanctions.The motion is DENIED. No sanctions will be awarded. The inspection is to take place at a mutually agreeabledate and time, no later than August 17, 2024. Plaintiff did not provide a proposed Order as required by LocalRule of Court 5.17(D). Plaintiff is to prepare the Order.

Ruling

ROGER ROSENDAHL VS FLAVIO RODRIGUEZ, ET AL.

Aug 05, 2024 |20STCV48205

Case Number: 20STCV48205 Hearing Date: August 5, 2024 Dept: 74 Rosendahl v. Rodriguez, et al. Plaintiff/Cross-Defendants Motion to Strike Cross-Complaint BACKGROUND Plaintiff Roger Rosendahl sued defendants Flavio Rodriguez, Edgard Augusto Meinhardt-Itube, and Corp. Capital Network LLC on December 17, 2020 and filed his operative third amended complaint (TAC) on March 28, 2023. The TAC asserts causes of action for breach of contract, fraud, and related claims. On February 26, 2024, Plaintiff filed a Request for Dismissal of the entire action. The clerk rejected his request based on a finding that the request form was not properly completed\. On April 2, 2024, defendant Edgard Augusto Meinhardt-Iturbe (Cross-Complainant) filed a cross-complaint against cross-defendants Roger Rosendahl, Corp. Capital Network LLC, and Fisherbroyles LLP. The cross-complaint asserts causes of action for professional negligence, breach of contract, breach of fiduciary duty, and breach of the covenant of good faith and fair dealing. On April 30, 2024, Plaintiff refiled an identical copy of his February 26, 2024 Request for Dismissal. The clerk accepted the identical-but-renewed request and dismissed Plaintiffs complaint. On June 10, 2024, cross-defendant Fisherbroyles LLP (Cross-Defendant) filed the instant motion to strike the cross-complaint. Cross-Defendant reasons the cross-complaint is void because Plaintiff dismissed his complaint before Cross-Complainant filed. On July 24, 2024, Cross-Complainant filed his opposition. On July 30, 2024, Cross-Defendant replied. LEGAL STANDARD The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) MEETING AND CONFERENCE Code of Civil Procedure section 435.5 requires that a party moving to strike a pleading must meet and confer prior to filing. Cross-Defendants counsel attests she made a good-faith attempt, but Cross-Complainant did not respond to her communications. (Gray Decl., ¶ 18.) Section 435.5 is satisfied. DISCUSSION A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial. (Code Civ. Proc., § 581(c).) An action may be dismissed, specifically, [w]ith or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any. (Id., subd. (b)(1).) The filing is effective immediately upon the tender of the request to the clerk. (See Catlin Insurance v. Danko Meredith Law Firm, Inc. (2022) 73 Cal.App.5th 764, 771.) A voluntary dismissal deprives the court of subject matter and personal jurisdiction except for certain limited purposes. (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261.) Barring some exception, Plaintiff dismissed the entire action, and the Court lost jurisdiction, when Plaintiff tendered his request for dismissal in February 2024. Cross-Complainant argues the request was not in proper form, and therefore the dismissal was ineffective. The Court disagrees. The clerks reasons for disregarding the first filing were purely administrative. The clerks objections were not substantive, as evident from the entry of the dismissal in April based on an identical copy of the Request. Also, the proposed cross-complaint was void from the outset. A party may not file a cross-complaint as a matter of right after the time to answer has passed and the Court has set an initial trial date. (Code Civ. Proc., § 428.50(c).) Cross-Complainant did not obtain leave. His filing was ineffective to begin with. So even if the February 2024 dismissal was not effective, Cross-Complainants improper filing did not deprive Plaintiff of his right to dismiss his complaint in April. The motion is granted. The cross-complaint is stricken, and the case stands dismissed in its entirety without prejudice.

Ruling

SOUTHERN HOME CARE SERVICES INC vs PACIFICA SENIOR LIVING MANAGEMENT LLC

Aug 06, 2024 |CV-22-003356

CV-22-003356 – SOUTHERN HOME CARE SERVICES INC vs PACIFICA SENIOR LIVING MANAGEMENT LLC – Plaintiff’s Motion for Terminating Sanctions – CONTINUED, to August 15, 2024, at 8:30 am in Department 22.This matter is CONTINUED on the Court’s own motion to August 15, 2024, at 8:30 am in Department 22, for further review and consideration.

Ruling

LU CHEN, AN INDIVIDUAL VS LIVING THE DREAM, A CALIFORNIA CORPORATION, ET AL.

Aug 06, 2024 |24STCV00165

Case Number: 24STCV00165 Hearing Date: August 6, 2024 Dept: 76 Plaintiff landlord alleges that Defendants owe rent under the Lease, caused damage to the property and took personal property from the premises that belonged to Plaintiff. Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlan demur to the First Amended Complaint and move to strike portions thereof. TENTATIVE RULING Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlans demurrer to the First Amended Complaint is SUSTAINED with leave to amend as to the first cause of action and without leave to amend as to the fifth cause of action, and OVERRULED as to the second, third and fourth causes of action. The motion to strike is GRANTED with leave to amend as to ¶ 8 re: Joint enterprise allegations; ¶ 58 (12:1-3) that reads: As a direct and proximate result of the conversion of Plaintiffs furnishings, Plaintiff has suffered anxiety, worry, mental and emotional distress in a sum to be determined at time of trial; Breach of Contract Prayer No. 2 (14:26) that reads: Return and accounting for all personal property placed in the care of LTD.; Breach of Contract Prayer No. 3 (15:1-2) that reads: Statutory damages up to $600.00 for LTDs continued malicious possession of the Property. The motion to strike is GRANTED with leave to amend as to humiliation and anxiety only. As to Conversion Prayer No. 2 (15:17) that reads: General damages, including without limitation, for humiliation and anxiety. The motion to strike is DENIED as to ¶ 9 re: alter ego allegations; ¶ 59 (12:4-9) re: punitive damages; and Conversion Prayer No. 3 (15:18) that reads: For exemplary and punitive damages. Plaintiff is given 30 days leave to amend where indicated. ANALYSIS Demurrer Request For Judicial Notice Demurring Receiver requests that the Court take judicial notice of the Unlawful Detainer Complaint filed in 23STCV14605, Lu Chen v. Living the Dream, Inc. is GRANTED per Evid. Code, § 452(d)(court records). Meet and Confer The Declaration of Andrew V. Jablon reflects that Defendants counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41. Discussion Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlan demur to the First Amended Complaint. 1. Entire Complaint. A. Re: Judicial Estoppel. Defendants argue that in the unlawful detainer complaint filed on June 23, 2023, the operative Lease is a written Residential Lease or Month-to-Month Rental Agreement dated March 5, 2021, whereas the instant action alleges that the operative Lease is dated February 15, 2019. Defendant argues that Plaintiff is judicially estopped from relying on the February 15, 2019 Lease, and not alleging nor attaching the March 5, 2021 Lease. Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary. [Citation.] The doctrine applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [Citations.] (Citations omitted.) (People v. Castillo (2010) 49 Cal.4th 145, 155.) Defendants have not demonstrated how these different leases are totally inconsistent. This argument is not a persuasive ground for demurrer. B. Re: Joint Enterprise and Alter-Ego Allegations. Alter ego allegations may be pled generally and the principal factors for piercing the corporate veilindividual dominated the affairs of the corporation, unity of interest and ownership, corporation is a mere shell, diversion of income, inadequate capitalization, failure to issue stock and observe corporate formalities, adherence to fiction of separate corporate existence would work an injusticemay be alleged in conclusory terms and plaintiff may be given an opportunity to present evidence to support these allegations. (First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-16.) It is sufficient that refusal to recognize unity of corporation and individual will bring about inequitable results (citation omitted). All that is required is a showing that it would be unjust to persist in recognition of the separate entity of the corporation (Citation omitted). (Claremont Press Publishing Co. v. Barksdale (1960) 187 Cal.App.2d 813, 817.) The alter ego allegations as to LTD and individual Defendants Gozlan and Malka at ¶ 9 are sufficient in this regard. Plaintiff need not present evidentiary support for these allegations at the pleading stage. As for the joint enterprise allegations regarding LTD and New Horizon, the Court agrees that there are insufficient allegations of a joint enterprise: This allegation fails to state facts sufficient to show the necessary requirements for a joint enterprise -- contract, common purpose, and equal right of voice and control. (Coffman v. Kennedy (1977) 74 Cal. App. 3d 28, 32.) As such, there is no basis to impose liability upon New Horizon, and the demurrer to the entire First Amended Complaint is SUSTAINED with leave to amend as to Defendant New Horizon only. 2. First Cause of Action (Breach of Contract). Defendants argue that this cause of action is erroneously based on the superseded 2019 Lease, instead of the 2021 Lease, which Plaintiff alleged was the operative Lease in the unlawful detainer action. Plaintiff admits that the 2021 Lease should have been pled as the operative Lease and asks leave to so plead. On this basis the demurrer to the first cause of action is SUSTAINED with leave to amend. 3. Second Cause of Action (Negligence). Defendants argue that a person may ordinarily not recover in tort for breach of contractual obligations. Defendants further argue that this cause of action is barred by the economic loss rule. Other courts in our jurisdiction have articulated the rule more definitively. For instance, Huang v. Garner, supra, 157 Cal. App. 3d 404 instructs, "[E]conomic loss [is] 'marked by the loss of the benefit of the bargain for the goods purchased, lost profits, and replacement costs for ineffective goods. Physical damage to property and personal injury, however, are not considered to be "economic loss." ' . . ." ( Id. at p. 420, citation omitted, italics added.) In Huang, it was "undisputed . . . that the court properly drew the line between economic and physical damages, determining the cost to repair structural and other alleged defects which had not actually caused physical damage to be economic damage." (Ibid., italics added.) With regard to defects, the Huang plaintiffs presented evidence "that the plans and specifications for the building were defective in several ways, including insufficient fire retardation walls, insufficient shear walls and inadequate structure . . . . Additional evidence indicated that deviation [*618] from the building plans during construction also contributed to faulty construction." (Huang v. Garner, supra, 157 Cal. App. 3d at p. 411.) The plaintiffs sought recovery "for physical damages to their property including damages to the structure caused by deflected and cracked beams and dry rot damages to the balcony area. [They] also sought recovery of economic losses including the cost to repair firewalls, shear walls, fire stops, and other alleged defects in the structure which had not caused actual physical damages at the time of trial." ( Id. at pp. 419-420, italics added.) The Huang court noted, "Apparently it was agreed by the parties that damages such as the cost to repair allegedly insufficient shear walls, insufficient fire retardation, and defects in the structure which did not cause actual physical damage were in fact economic damages." ( Id. at p. 420.) Huang's definition and application of the economic loss rule, albeit in the context of a negligence theory, demonstrates defendant is just plain wrong in contending the physical damage to plaintiffs' real property caused by defective construction of the foundation is only "an injury to the product itself," and thus barred by the economic loss rule of Seely. Huang does not stand alone. As we will discuss, other cases compel the conclusion that under California law, the physical damages to plaintiffs' property are entirely distinct from economic losses and are thus recoverable in strict liability. (Stearman v. Centex Homes (2000) 78 Cal.App.4th 611, 617-618 [bold emphasis added]) (a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. . . . (Civil Code § 1714(a).) 35. At all material times, Defendants owed Landlord a duty to act reasonably and refrain from actions that would foreseeably harm Landlord, damage the Property or personal property left in the care of Defendants at the Property. Moreover, Landlord and Defendants maintained a special relationship through Defendants acceptance of the responsibility to account for and preserve all personal property left in the custody of Defendants at the Property at the time the Lease was executed. 36. Defendants breached this duty of care by negligently and carelessly maintaining the Property that resulted in damage the Property. 37. Defendants breached this duty of care by negligently and carelessly performing repairs to the Property that damaged the Property. 38. Defendants negligently and carelessly failed and refused to properly inventory all the personal property or preserve or store all of the personal property of Landlord left in their care. 39. Defendants negligently and carelessly and without the consent or approval of Landlord, used the personal property of Landlord left in the care of Defendants, for use to furnish other properties that Defendants had leased or subleased for short- or long-term rental to third parties. (1AC, ¶¶ 35 39 [bold emphasis added]) These allegations of damages to real and personal property caused by Defendants negligence fall outside the economic loss rule. Moreover, even if the Lease imposed an obligation upon Defendants not to damage Plaintiffs real and personal property, a contractual obligation may give rise to a negligence cause of action. A contractual obligation may create a legal duty the breach of which will support a tort action. (North American Chemical Co. v. Superior Court (1997) 59 Cal. App. 4th 764, 773-776 [69 Cal. Rptr. 2d 466].) "Contract law exists to enforce the intentions of the parties to an agreement while tort law is designed to vindicate social policy. ( Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 683 [254 Cal. Rptr. 211, 765 P.2d 373].) . . . [T]he same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 139, pp. 203-204.) [P] . . . A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be [*688] both a breach of contract and a tort. ( Perry v. Robertson (1988) 201 Cal. App. 3d 333, 340 [247 Cal. Rptr. 74].) . . . [P] . . . In general, it has been held that an action based on the negligent performance of contractual duties, although involving elements of both contract and tort, is regarded as a delictual action, since negligence is considered the gravamen of the action. (Eads v. Marks [(1952)] 39 Cal. 2d [807,] 811-812 [249 P.2d 257]; see also Distefano v. Hall (1963) 218 Cal. App. 2d 657, 678 [32 Cal. Rptr. 770].)" (Id., at pp. 774-775.) (Michaelis v. Benavides (1997) 61 Cal.App.4th 681, 687-88.) As such, the second cause of action is sufficiently pled. The demurrer to the second cause of action is OVERRULED. 3. Third Cause of Action (Common Counts). Defendants claim this is a cause of action for money had and received, then argue that rental value is not money had or received. However, the third cause of action is for common counts, and does not mention the specific common count at money had or received. The 1AC alleges at ¶¶ 44 47: 44. Within the past four years, Defendants have become indebted to Plaintiff in the amount of at least $75,816.66 for the rental value of the Property that Defendants have unlawfully possessed, and at least $40,000 for the value of personal property that they have been lost, destroyed, or damaged. 45. Defendants have failed to pay the rental value of the Property and personal property that it has used, controlled, or transferred to third persons. 46. At least $75,816.66 remains unpaid for the rental value of the Property, and at least $40,000.00 for the value of personal property despite Plaintiffs demand, plus prejudgment interest at the maximum legal rate per annum. 47. At least $75,816.66 per month, plus interest, was the reasonable rental value of the Property, and at least $40,000.00 was the reasonable value of the personal property that remains unpaid. (1AC, ¶¶ 44 47.) These allegations give rise to a cause of action for the common count of indebitatus assumpsit, i.e, payment of money for a fully performed contract. It is established that when a contract has been fully performed and nothing remains to be done under it except the payment of money by defendant, plaintiff may declare generally in indebitatus assumpsit. (Citations omitted.) Such count may be joined with one on the contract, and a plaintiff is under no compulsion to elect but may submit his case to the trier of fact for determination upon the facts, and it is the province of the trier of fact to decide which count is supported by the evidence. (Haggerty v. Warner (1953) 115 Cal.App.2d 468, 474-75 [bold emphasis added].) Here, at least as to unpaid rental value, a common count of indebitatus assumpsit would lie in that Plaintiff performed the contract by allowing Defendant to lease the premises, and all that remained was the payment of money for the rental value of the property. The demurrer to the third cause of action is OVERRULED. 4. Fourth Cause of Action (Conversion). Defendants argue that no actual furniture is identified, and Plaintiff, as assignor, does not allege ownership of the personal property. Conversion is the wrongful exercise of dominion over the property of another. (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543 [50 Cal. Rptr. 2d 810].) Proof of conversion requires a showing of ownership or right to possession of the property at the time of the conversion, the defendant's conversion by a wrongful act or disposition of property rights, and resulting damages. (Id. at pp. 543544; Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066 [80 Cal. Rptr. 2d 704].) (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1452.) However, Plaintiff alleges that he is at least a co-owner of the real property, and was the owner of all personal property left in the care of Defendants after the execution of the Lease. (1AC, ¶¶ 1, 49.) Plaintiff alleges that his mothers interest in the Lease was assigned to him, but the Lease is distinct from the real property. Plaintiff sufficiently alleges that Defendants removed the personal property worth at least $40,000, thereby establishing dominion over it. (1AC, ¶¶ 49 -55.) The cause of action for conversion is sufficiently pled. The demurrer to the fourth cause of action is OVERRULED. 5. Fifth Cause of Action (Unfair Competition Law). Defendants argue that this cause of action cannot be brought by an assignee. (Amalgamated Transit Union, Loc. 1756, AFL-CIO v. Superior Ct. (2009) 46 Cal.4th 993, 1002.) Defendants also argue that damages may not be recovered under this cause of action. Defendants also argue that, to the extent Plaintiff seeks relief on behalf of all others similar situated, this cause of action is improper absent class certification. Defendants argument regarding standing is persuasive. Plaintiff admits he was assigned the interest in the Lease from his mother. (1AC, ¶ 1.) Plaintiff only alleges ownership in the real property. (Id.) To allow a noninjured assignee of an unfair competition claim to stand in the shoes of the original, injured claimant would confer standing on the assignee in direct violation of the express statutory requirement in the unfair competition law, as amended by the voters' enactment of Proposition 64, that a private action under that law be brought exclusively by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. (Bus. & Prof. Code, § 17204; see, ante, at p. 1000, fn. 2; Voter Information Guide, Gen. Elec. (Nov. 2, 2004) official title and summary, p. 38 [Proposition 64 permits one to bring unfair competition law action only if that individual was actually injured by & an unfair business practice (italics added)].) Accordingly, we conclude that under the unfair competition law an injured employee's assignment of rights cannot confer standing on an uninjured assignee. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1001-02.) Moreover, Plaintiff alleges damages (¶ 66). However, damages are not recoverable under B & P Code, § 17200: The purpose of the UCL [citation] is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. [Citation.] (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1470 [49 Cal. Rptr. 3d 227].) A UCL action is equitable in nature; damages cannot be recovered. [Citation.] & [U]nder the UCL, [p]revailing plaintiffs are generally limited to injunctive relief and restitution. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [131 Cal. Rptr. 2d 29, 63 P.3d 937].) (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359 [108 Cal. Rptr. 3d 682] (Durell).) (Gray v. Dignity Health (2021) 70 Cal.App.5th 225, 236.) Finally, Plaintiff seeks to recover injunctive relief on behalf of others similarly situated. However: [W]e construe the statement in section 17203, as amended by Proposition 64, that a private party may pursue a representative action under the unfair competition law only if the party complies with Section 382 of the Code of Civil Procedure to mean that such an action must meet the requirements for a class action. (See Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1092, fn. 9.) (Arias v. Superior Court (2009) 46 Cal. 4th 969, 980..) Given the fundamental standing issue, coupled with the other deficiencies, the demurrer to the fifth cause of action is SUSTAINED without leave to amend. Motion To Strike Meet and Confer The Declaration of Andrew V. Jablon reflects that Defendants counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 435.5. Discussion Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlan move to strike the following portions of the 1AC: ¿ ¶ 8 re: Joint enterprise allegations: GRANTED with leave to amend. As discussed above re: the demurrer, the joint enterprise allegations are insufficiently pled. ¿ ¶ 9 re: alter ego allegations: DENIED. As discussed above re: the demurrer, the alter ego allegations are sufficiently pled. ¿ ¶ 58 (12:1-3) that reads: As a direct and proximate result of the conversion of Plaintiffs furnishings, Plaintiff has suffered anxiety, worry, mental and emotional distress in a sum to be determined at time of trial. GRANTED with leave to amend. Although Plaintiff is not suing as an assignee of emotional distress damages, Plaintiff has not alleged an emotional attachment to or reliance upon the personal property: Although we have not been able to locate any California authority other than Schroeder which deals directly with a claim for emotional distress growing out of the conversion of personal property, we note the Restatement Second of Torts section 927, illustration m, page 542, states that where property has been converted: "If the deprivation is the legal cause of harm to the feelings, damages may be allowable for the harm, as when the defendant intentionally deprives the plaintiff of essential household furniture, which humiliates the plaintiff, a result that the defendant should have realized would follow." (See also Fredeen v. Stride (1974) 269 Or. 369 [525 P.2d 166, 168] [veterinarian's conversion of plaintiff's dog supports emotional distress damages].) (Gonzales v. Pers. Storage (1997) 56 Cal.App.4th 464, 476.) ¿ ¶ 59 (12:4-9) that reads: Defendants converted Plaintiffs property with malice, oppression, and fraud, and in conscious disregard for the rights of Plaintiff. At all relevant times, the acts of conversion were made with the knowledge, consent, acquiescence, and ratification of Gozlan and Malka, officers and managers of Defendants. Pursuant to California Civil Code § 3294, Plaintiff is entitled to recover from Defendants exemplary and punitive damages in an amount to be determined at time of trial. DENIED. There are sufficient facts pled to justify an award of punitive damages for conversion, i.e., that Defendants acted with malice, as that term is defined in Civil Code, § 3294(c) to mean: conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. ¿ Breach of Contract Prayer No. 2 (14:26) that reads: Return and accounting for all personal property placed in the care of LTD. GRANTED with leave to amend. The demurrer to the breach of contract cause of action was sustained, so that cause of action is not viable to support this prayer. ¿ Breach of Contract Prayer No. 3 (15:1-2) that reads: Statutory damages up to $600.00 for LTDs continued malicious possession of the Property. GRANTED with leave to amend. ¿ Negligence Prayer No. 3 (15:8) that reads: For the recovery of reasonable attorneys fees under Tort of Another Doctrine. GRANTED without leave to amend. [A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement. (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) It is settled that a person who is required through the tort of another to act in protection of his interest by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary attorney's fees incurred. (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620 [30 Cal.Rptr. 821, 381 P.2d 645]; Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 437-438 [96 Cal.Rptr. 902].) (Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289, 303.) Here, Plaintiff does not allege that he was required to bring or defend an action against a third party due to Defendants negligence. ¿ Conversion Prayer No. 2 (15:17) that reads: General damages, including without limitation, for humiliation and anxiety. GRANTED with leave to amend as to humiliation and anxiety only. (See discussion above.) ¿ Conversion Prayer No. 3 (15:18) that reads: For exemplary and punitive damages. DENIED. (See discussion above.) Plaintiff is given 30 days leave to amend where indicated.

Ruling

Pamela Keyes vs Edsel Baker, et al

Aug 05, 2024 |23CV00035

23CV00035KEYES v. BAKER PLAINTIFF’S MOTION TO SET ASIDE DISMISSAL The motion is granted. I. BACKGROUND Page 1 of 4 Plaintiff, Pamela Keyes, filed a first amended complaint on June 20, 2023. At that time,defendants were Barron, Boardman, First American Title and the Bakers, though it appears theBakers were never served with the first amended complaint. A timeline of the relevant events is as follows: October 4, 2023 - After two rounds of demurrers brought by the Barron/Boardmandefendants and First American Title, the court sustained, without leave to amend, bothdemurrers. Leo Siegel, counsel for the Bakers, informed the court his clients had not been servedwith the first amended complaint. Plaintiff’s counsel did not appear at the hearing on thedemurrers. A further case management conference was set for December 12, 2023. December 12, 2023 – There are no appearances at this conference and the court sets anorder to show cause as to plaintiff’s counsel. The clerk is directed to send notice of the order toshow cause hearing to Mr. Schmidt, plaintiff’s counsel. Notice is sent to Randall Schmidt 400S. El Camino Real Ste. 1000, San Mateo. February 27, 2024 - OSC hearing and further case management conference takes place.There are no appearances. The court finds there are still two active defendants [the Bakers]. Thecourt dismisses the matter without prejudice. June 17, 2024 – Mr. Schmidt files this motion for relief from dismissal. Mr. Schmidt asserts he did not receive notice of the order to show cause hearing. Mr.Schmidt contends the clerk’s office erroneously sent the notice to an address he has not usedsince 2015. His address, and the address he used when filing the initial complaint, is 611Gateway Blvd. #120 S. San Francisco, CA 94080. Mr. Schmidt contends he was out of the country in Nepal, getting married, when the courtissued its order dated February 27, 2024. (Dec. at ¶4.) Further, he asserts he was in Nepal onFebruary 14, 2024. He returned from Nepal on March 3. He discovered the orders afterdownloading documents from the court’s website. (Dec. at ¶¶ 4-5.) The motion is brought pursuant to Code of Civil Procedure section 473, based uponmistake, inadvertence, or excusable neglect. II. DISCUSSION Pursuant to Code of Civil Procedure section 473, subdivision (b), the court has the powerto, “upon any terms as may be just, relieve a party or his or her legal representative from ajudgment, dismissal, order, or other proceeding taken against him or her through his or hermistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be Page 2 of 4accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwisethe application shall not be granted, and shall be made within a reasonable time, in no caseexceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Relief is either based upon an attorney affidavit of fault or declaration or other evidenceshowing mistake, inadvertence, surprise, or excusable neglect, in which case the relief isdiscretionary. (Weil & Brown Civil Procedure Before Trial (TRG 2023) § 5:290.) “[T]he burdenis on the moving party to demonstrate that the neglect excusable: i.e., that the default could nothave been avoided through the exercise of ordinary care.” (Id. at § 5:329.) Mr. Schmidt demonstrated he did not receive notice of the order to show cause hearingwhich led to the dismissal of plaintiff’s first amended complaint. Notice of the order to showcause hearing was not sent to Mr. Schmidt’s office at 611 Gateway Blvd Ste. 120, South SanFrancisco, but rather to 400 S. El Camino Real Ste. 1000, San Mateo. (See Ex. C to RJN anddeclaration of Schmidt.) As a result, Mr. Schmidt did not appear at the order to show causehearing. The motion is timely in that it was brought within 6 months after the dismissal wasordered. Mr. Schmidt has shown mistake or excusable neglect for his failure to appear at theorder to show cause hearing. III. CONCLUSION The dismissal is set aside. Plaintiff is directed to serve the Baker defendants with the firstamended complaint and a copy of the order granting this motion within 20 days. REQUEST FOR JUDICIAL NOTICE Ex. A: Minute Ordered dated 12/12/23 in 23CV00035- Granted. Ex. B: Court’s order dated 2/27/24 in 23CV00035- Granted. Ex. C: Clerk’s 12/12/23 Certificate of Mailing in 23CV00035- Granted.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 3 of 4 LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 2, 2024 TIME: 8:30 A.M.

Ruling

CHRISTIAN NEGRETE VASQUEZ VS. HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION ET AL

Aug 07, 2024 |CGC24614008

Matter on the Law & Motion calendar for Wednesday, August 7, 2024, Line 12. DEFENDANT HYUNDAI MOTOR AMERICA's Motion To Compel Binding Arbitration. Ordered off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for hearing on a Mon.-Thur. after August 15. Papers shall bear the new hearing date. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

MAGGIE PARSONS VS ROBERT OZERAN, ET AL.

Aug 08, 2024 |23STCV11687

Case Number: 23STCV11687 Hearing Date: August 8, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT MAGGIE PARSONS, Plaintiff, vs. ROBERT OZERAN, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23STCV11687 [TENTATIVE] ORDER CONTINUING DEMURRER AND MOTION TO STRIKE Dept. 48 8:30 a.m. August 8, 2024 On May 24, 2023, Plaintiff Maggie Parsons filed this action against Defendants Robert Ozeran and Law Offices of Robert Ozeran Inc. On November 9, 2023, Defendants/Cross-Complainants filed a cross-complaint, alleging (1) fraud intentional misrepresentation; (2) fraud concealment; (3) intentional infliction of emotional distress (IIED); (4) negligence; (5) common law appropriation of name; and (6) appropriation of name under the Civil Code. On November 27, 2023, Parsons filed a demurrer and motion to strike. Parsonss requests for judicial notice of the Petition for Nullity and a July 31, 2024 order in the family law case In re: Marriage of Ozeran and Parsons, Case No. 23CHFL00714 (Dissolution Action) are granted. The cross-complaints first four causes of action arise from Parsonss alleged false representation that Ozeran was baby Romans biological father. (See Cross-Complaint ¶¶ 40-44, 51-55, 60, 67.) Parsons argues that res judicata and collateral estoppel bar these causes of action because the same issue is being decided through the Petition for Nullity in the Dissolution Action. (Demurrer at pp. 5-6.) A trial was held in the Dissolution Action, and on July 31, 2024, the judge took the matter under submission. (Parsons Reply RJN.) The forthcoming Statement of Decision may necessarily decide the issue of Parsonss alleged fraud. Accordingly, the Court will continue the motions here until after there is a final judgment on the merits in the Dissolution Action. The parties are ordered to appear for the hearing and be prepared to suggest a timeline for the continued hearing and supplemental briefing on res judicata/collateral estoppel. The Hearing on Demurrer - without Motion to Strike to Cross-Complaint is CONTINUED to _____________________. The parties may file supplemental briefing on res judicata/collateral estoppel no later than 10 days before the hearing. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 8th day of August 2024 Hon. Thomas D. Long Judge of the Superior Court

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