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1 Tionna Carvalho (SBN 299010) e-mail: tcarvalho@slpattorney.com 2 (emailservices@slpattorney.com) Sanam Vaziri (SBN 177384) 3 e-mail: svaziri@slpattorney.com 4 Strategic Legal Practices, APC 1888 Century Park East, 19th Floor 5 Los Angeles, CA 90067 Telephone: (310) 929-4900 6 Facsimile: (310) 943-3838 7 Attorneys for Plaintiffs: 8 ALESIA A BREWER AND LOIS WOODARD 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF LOS ANGELES 11STRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 ALESIA A BREWER AND LOIS Case No.: WOODARD, 13 Plaintiffs, Hon. Dept.: 14 vs. 15 COMPLAINT FOR VIOLATION OF NISSAN NORTH AMERICA, INC.; and DOES STATUTORY OBLIGATIONS 16 1 through 10, inclusive, 17 Defendants. JURY TRIAL DEMANDED 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT; JURY TRIAL DEMANDED 1 2 Plaintiffs allege as follows: 3 PARTIES 4 1. As used in this Complaint, the word "Plaintiffs" shall refer to Plaintiffs, ALESIA 5 A BREWER AND LOIS WOODARD. 6 2. Plaintiffs are residents of Los Angeles, California. 7 3. As used in this Complaint, the word "Defendant" shall refer to all Defendants 8 named in this Complaint. 9 4. Defendant NISSAN NORTH AMERICA, INC. ("NISSAN" or "Defendant") is a 10 corporation organized and in existence under the laws of the State of California and registered 11 with the California Department of Corporations to conduct business in California. At all timesSTRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 relevant herein, Defendant was engaged in the business of designing, manufacturing, 13 constructing, assembling, marketing, distributing, and selling automobiles and other motor 14 vehicles and motor vehicle components in Los Angeles County, California. 15 5. Plaintiffs are ignorant of the true names and capacities of the defendants sued 16 under the fictitious names DOES 1 to 10. They are sued pursuant to Code of Civil Procedure 17 section 474. When Plaintiffs become aware of the true names and capacities of the Defendants 18 sued as DOES 1 to 10, Plaintiff will amend this Complaint to state their true names and 19 capacities. 20 FACTUAL BACKGROUND 21 6. On or about February 2, 2018, Plaintiffs entered into a warranty contract with 22 Defendant regarding a 2017 Nissan Rogue, vehicle identification number 23 5N1AT2MT8HC894847 ("Vehicle"), which was manufactured and or distributed by Defendant. 24 7. The warranty contract contained various warranties, including but not limited to 25 the bumper-bumper warranty, powertrain warranty, emission warranty, etc. A true and correct 26 copy of the warranty contract is attached hereto as Exhibit A. The terms of the express warranty 27 are described in Exhibit A and are incorporated herein. 28 8. Pursuant to the Song-Beverly Consumer Warranty Act (the "Song-Beverly Act") 1 COMPLAINT; JURY TRIAL DEMANDED 1 Civil Code sections 1790 et seq. the Subject Vehicle constitutes "consumer goods" used 2 primarily for family or household purposes, and Plaintiffs have used the vehicle primarily for 3 those purposes. Plaintiffs are "buyer[s]" of consumer goods under the Act. Defendant is a 4 "manufacturer" and/or "distributor" under the Act. 5 9. Plaintiffs justifiably revokes acceptance of the Subject Vehicle under Civil Code, 6 section 1794, et seq. by filing this Complaint and/or did so prior to filing the instant Complaint. 7 10. These causes of action arise out of the warranty obligations of Defendant in 8 connection with a motor vehicle for which Defendant issued a written warranty. 9 11. Defects and nonconformities to warranty manifested themselves within the 10 applicable express warranty period, including but not limited to, AEB defects, brakes defects, 11 electrical defects; among other defects and non-conformities.STRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 12. Said defects/nonconformities substantially impair the use, value, or safety of the 13 Vehicle. 14 13. The value of the Subject Vehicle is worthless and/or de minimis. 15 14. Under the Song-Beverly Act, Defendant had an affirmative duty to promptly 16 offer to repurchase or replace the Subject Vehicle at the time if failed to conform the Subject 17 Vehicle to the terms of the express warranty after a reasonable number of repair attempts.1 18 15. Defendant has failed to either promptly replace the Subject Vehicle or to 19 promptly make restitution in accordance with the Song-Beverly Act. 20 16. Under the Act, Plaintiffs are entitled to reimbursem*nt of the price paid for the 21 vehicle less that amount directly attributable to use by Plaintiffs prior to the first presentation 22 1 "A manufacturer's duty to repurchase a vehicle does not depend on a consumer's request, but instead 23 arises as soon as the manufacturer fails to comply with the warranty within a reasonable time. (Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 301-302, 45 Cal.Rptr.2d 10.) Chrysler performed the bridge 24 operation on Santana's vehicle in August 2014 with 30,262 miles on the odometer—within the three-year, 36,000 mile warranty. The internal e-mails demonstrating Chrysler's awareness of the safety risks inherent in the bridge 25 operation were sent in September 2013, and thus Chrysler was well aware of the problem when it performed the bridge operation on Santana's vehicle. Thus, Chrysler's duty to repurchase or provide restitution arose prior to the 26 expiration of the three-year, 36,000 mile warranty. Moreover, although we do not have the actual five-year, 100,000 mile power train warranty in our record, Santana's expert testified that the no-start/stalling issues Santana 27 experienced were within the scope of the power train warranty, which was still active when Santana requested repurchase in approximately January 2016, at 44,467 miles. Thus the premise of Chrysler's argument—that 28 Santana's request for repurchase was outside the relevant warranty—is not only irrelevant, but wrong." Santana v. FCA US, LLC, 56 Cal. App. 5th 334, 270 Cal. Rptr. 3d 335 (2020). 2 COMPLAINT; JURY TRIAL DEMANDED 1 to an authorized repair facility for a nonconformity. 2 17. Plaintiffs are entitled to replacement or reimbursem*nt pursuant to Civil Code, 3 section 1794, et seq. 4 18. Plaintiffs are entitled to rescission of the contract pursuant to Civil Code, section 5 1794, et seq. 6 19. Plaintiffs are entitled to recover any "cover" damages under Civil Code, section 7 1794, et seq. 8 20. Plaintiffs are entitled to recover all incidental and consequential damages 9 pursuant to 1794 et seq. 10 21. Plaintiffs suffered damages in a sum to be proven at trial in an amount that is not 11 less than $35,001.00.STRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 22. Plaintiffs are entitled to all incidental, consequential, and general damages 13 resulting from Defendants' failure to comply with its obligations under the Song-Beverly Act. 14 TOLLING OF THE STATUTES OF LIMITATION 15 23. To the extent there are any statutes of limitation applicable to Plaintiffs’ claims- 16 including, without limitation, the Song Beverly Consumer Warranty Act, implied warranty, and 17 fraudulent concealment claims––the running of the limitation periods have been tolled by, inter 18 alia, the following doctrines or rules: equitable tolling, the discovery rule, the fraudulent 19 concealment rules, equitable estoppel, the repair rule, and/or class action tolling (e.g., the 20 American Pipe rule). Plaintiffs allege class action tolling arising from the filing of the following 21 class actions: Teresa Stringer, et al. v. Nissan North America, Inc., Case No. 3:21-cv-00099, 22 pending in the United States District Court for the Middle District of Tennessee (filed 2/5/21); 23 Michelle Falk, et al. v. Nissan North America, Inc., Case No. 4:17-cv-04871-HSG, pending in 24 the United States District Court for the Northern District of California (filed 8/22/17); Michael 25 Knotts, et al. v. Nissan North America, Inc., Case No. 0:17-cv-05049-SRN-SER, pending in the 26 United States District Court for the District of Minnesota (filed 11/7/17); Robert H. Weinberg, 27 et al. v. Nissan North America, Inc., Case No.: 1:17-cv-08867, pending in the United States 28 District Court for the Northern District of Illinois Eastern Division (filed 12/8/17); Elisa 3 COMPLAINT; JURY TRIAL DEMANDED 1 Cabebe, et al. v. Nissan of North America, Inc., Case No. 3:18-cv-00144-WHO, pending in the 2 United States District Court for the Northern District of California, San Francisco Division 3 (“Cabebe”) (filed 1/8/18); Salome Madrid, et al. v. Nissan North America, Inc., Case No. 3:18- 4 cv-00534, pending in the United States District Court for the Middle District of Tennessee 5 Nashville Division (“Madrid”) (filed 6/8/18); Cheyne Norman, et al. v. Nissan North America, 6 Inc., Case No. 3:18-cv-00588, pending in the United States District Court for the Middle District 7 of Tennessee (“Norman”) (filed 6/26/18); Krista Costa, et al. v. Nissan North America, Inc., 8 Civil Action No. 1:18-cv-11523, pending in the United States District Court for the District of 9 Massachusetts (“Costa”) (filed 7/20/18); and Christopher Gann, et al. v. Nissan North America, 10 Inc., Case No: 3:18-cv-00966, pending in the United States District Court for the Middle District 11 of Tennessee (“Gann”) (filed 9/25/18).STRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 24. Plaintiffs discovered Defendant's wrongful conduct alleged herein shortly before 13 the filing of the complaint, as the Vehicle continued to exhibit symptoms of defects following 14 Defendant’s unsuccessful attempts to repair them. However, Defendant failed to provide 15 restitution pursuant to the Song – Beverly Consumer Warranty Act. 16 A. Class Action Tolling 17 25. Under the tolling rule articulated in Am. Pipe & Const. Co. v. Utah, 414 U.S. 18 538, 94 S. Ct. 756, 38 L. Ed. 2d 713 (1974) (“American Pipe”), the filing of a class action 19 lawsuit in federal court tolls the statute of limitations for the claims of unnamed class members 20 until the class certification issue is resolved. In applying American Pipe tolling to California 21 cases, the California Supreme Court summarized the tolling rule derived from American Pipe 22 and stated that the statute of limitations is tolled from the time of commencement of the suit to 23 the time of denial of certification for all purported members of the class. Jolly v. Eli Lilly & 24 Co., 44 Cal.3d 1103, 1119 (1988). Tolling lasts from the day a class claim is asserted until the 25 day the suit is conclusively not a class action. Falk v. Children's Hosp. Los Angeles, 237 Cal. 26 App. 4th 1454, 1464 (2015). 27 26. The tolling of Plaintiffs’ individual statute of limitations encourages the 28 protection of efficiency and economy in litigation as promoted by the class action devise, so 4 COMPLAINT; JURY TRIAL DEMANDED 1 that putative class members would not find it necessary to seek to intervene or to join 2 individually because of fear the class might never be certified or putative class members may 3 subsequently seek to request exclusion. 4 B. Discovery Rule Tolling 5 27. Plaintiffs had no way of knowing about Defendant’s deception with respect to 6 the defect until the defect manifested itself and Defendant was unable to repair it after a 7 reasonable number of repair attempts. 8 28. Within the time period of any applicable statutes of limitation, Plaintiffs could 9 not have discovered through the exercise of reasonable diligence that Defendant were 10 concealing the defect and conduct complained of herein and concealing the companies’ true 11 position with respect to the defect.STRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 29. Defendant was under a continuous duty to disclose to Plaintiffs the true character, 13 quality, and nature of the Vehicles suffering from the defect, and the inevitable repairs, costs, 14 time, and monetary damage resulting from the defects. 15 30. Plaintiffs did not discover, and did not know of, facts that would have caused a 16 reasonable person to suspect that Defendants had concealed information about the defect in 17 Defendants’ Vehicles prior to and at the time of sale and thereafter, which was discovered by 18 Plaintiffs shortly prior to the filing of this Complaint. 19 C. The Repair Doctrine 20 31. The statute of limitations is tolled by various unsuccessful attempts to repair the 21 vehicle.4 22 32. Additionally, the limitations period for warranty claims is tolled against a 23 defendant whenever that defendant claims that the defect is susceptible to repair and attempts 24 to repair the defect.5 25 33. Here, Defendant (and its dealership) undertook to perform various repair 26 measures. During the time in which Defendant represented to Plaintiffs that the Subject Vehicle 27 was fixable and attempted to fix it, the warranty period may have thus been tolled. 28 5 COMPLAINT; JURY TRIAL DEMANDED 1 D. Fraudulent Concealment Tolling (Estoppel) 2 34. Separately, the statute of limitations is equitably tolled due to Defendant’s 3 fraudulent conduct alleged herein.6 4 35. Defendant (and its agents, representatives, officers, directors, employees, 5 affiliates, and/or dealerships) concealed the defects, minimized the scope, cause, and dangers 6 of the defects with inadequate TSBs and/or Recalls, and refused to investigate, address, and 7 remedy the defects as it pertains. 8 36. By filing this Complaint, Plaintiffs hereby revoke acceptance of the Subject 9 Vehicle yet again. 10 FIRST CAUSE OF ACTION 11 BY PLAINTIFF AGAINST DEFENDANT NISSANSTRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 VIOLATION OF SUBDIVISION (D) OF CIVIL CODE SECTION 1793.2 13 37. Plaintiffs incorporate by reference the allegations contained in the paragraphs set 14 forth above. 15 38. Defendant and its representatives in this state have been unable to service or 16 repair the Vehicle to conform to the applicable express warranties after a reasonable number of 17 opportunities. Despite this fact, Defendant failed to promptly replace the Vehicle or make 18 restitution to Plaintiff as required by Civil Code section 1793.2, subdivision (d) and Civil Code 19 section 1793.1, subdivision (a)(2). 20 39. Plaintiffs have been damaged by Defendant's failure to comply with its 21 obligations pursuant to Civil Code section 1793.2, subdivision (d) and Civil Code section 22 1793.1, subdivision (a)(2), and therefore brings this cause of action pursuant to Civil Code 23 section 1794. 24 40. Defendant's failure to comply with its obligations under Civil Code section 25 1793.2, subdivision (d) was willful, in that Defendant and its representative were aware that 26 they were unable to service or repair the Vehicle to conform to the applicable express warranties 27 after a reasonable number of repair attempts, yet Defendant failed and refused to promptly 28 replace the Vehicle or make restitution. Accordingly, Plaintiffs are entitled to a civil penalty of 6 COMPLAINT; JURY TRIAL DEMANDED 1 two times Plaintiff's actual damages pursuant to Civil Code section 1794, subdivision (c). 2 41. Defendant does not maintain a qualified third-party dispute resolution process 3 which substantially complies with Civil Code section 1793.22. Accordingly, Plaintiffs are 4 entitled to a civil penalty of two times Plaintiffs' actual damages pursuant to Civil Code section 5 1794, subdivision (e). 6 42. Plaintiffs seeks civil penalties pursuant to section 1794, subdivisions (c), and (e) 7 in the alternative and do not seek to cumulate civil penalties, as provided in Civil Code section 8 1794, subdivision (e). 9 SECOND CAUSE OF ACTION 10 BY PLAINTIFF AGAINST DEFENDANT NISSAN 11 VIOLATION OF SUBDIVISION (B) OF CIVIL CODE SECTION 1793.2STRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 43. Plaintiffs incorporate by reference the allegations contained in the paragraphs set 13 forth above. 14 44. Although Plaintiffs presented the Vehicle to Defendant's representative in this 15 state, Defendant and its representative failed to commence the service or repairs within a 16 reasonable time and failed to service or repair the Vehicle to conform to the applicable 17 warranties within 30 days, in violation of Civil Code section 1793.2, subdivision (b). Plaintiffs 18 did not extend the time for completion of repairs beyond the 30-day requirement. 19 45. Plaintiffs have been damaged by Defendant's failure to comply with its 20 obligations pursuant to Civil Code section 1793.2(b), and therefore brings this Cause of Action 21 pursuant to Civil Code section 1794. 22 46. Plaintiffs have rightfully rejected and/or justifiably revoked acceptance of the 23 Vehicle and has exercised a right to cancel the purchase. By serving this Complaint, Plaintiff 24 does so again. Accordingly, Plaintiffs seeks the remedies provided in California Civil Code 25 section 1794(b)(1), including the entire contract price. In the alternative, Plaintiffs seek the 26 remedies set forth in California Civil Code section 1794(b)(2), including the diminution in value 27 of the Vehicle resulting from its defects. Plaintiffs believe that, at the present time, the Vehicle's 28 value is de minimis. 7 COMPLAINT; JURY TRIAL DEMANDED 1 47. Defendant's failure to comply with its obligations under Civil Code section 2 1793.2(b) was willful, in that Defendant and its representative were aware that they were 3 obligated to service or repair the Vehicle to conform to the applicable express warranties within 4 30 days, yet they failed to do so. Accordingly, Plaintiffs are entitled to a civil penalty of two 5 times Plaintiffs' actual damages pursuant to Civil Code section 1794(c). 6 THIRD CAUSE OF ACTION 7 BY PLAINTIFF AGAINST DEFENDANT NISSAN 8 VIOLATION OF SUBDIVISION (A)(3) OF CIVIL CODE SECTION 1793.2 9 48. Plaintiffs incorporate by reference the allegations contained in paragraphs set 10 forth above. 11 49. In violation of Civil Code section 1793.2, subdivision (a)(3), Defendant failed toSTRATEGIC LEGAL PRACTICES, APC 1888 CENTURY PARK EAST, 19TH FLOOR, LOS ANGELES, CA 90067 12 make available to its authorized service and repair facilities sufficient service literature and 13 replacement parts to effect repairs during the express warranty period. Plaintiffs have been 14 damaged by Defendant's failure to comply with its obligations pursuant to Civil Code section 15 1793.2(a)(3), and therefore brings this Cause of Action pursuant to Civil Code section 1794. 16 50. Defendant's failure to comply with its obligations under Civil Code section 17 1793.2, subdivision (a)(3) was willful, in that Defendant knew of its obligation to provide 18 literature and replacement parts sufficient to allow its repair facilities to effect repairs during 19 the warranty period, yet Defendant failed to take any action to correct its failure to comply with 20 the law. Accordingly, Plaintiffs are entitled to a civil penalty of two times Plaintiffs' actual 21 damages pursuant to Civil Code section 1794(c). 22 FOURTH CAUSE OF ACTION 23 BY PLAINTIFF AGAINST DEFENDANT NISSAN 24 BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY 25 (CIV. CODE, § 1791.1; § 1794; § 1795.5) 26 51. Plaintiffs incorporate by reference the allegations contained in the paragraphs set 27 forth above. 28 52. Pursuant to Civil Code section 1792, the sale of the Vehicle was accompanied 8 COMPLAINT; JURY TRIAL DEMANDED 1 by Defendant's implied warranty of merchantability. Pursuant to Civil Code section 1791.1, the 2 duration of the implied warranty is coextensive in duration with the duration of the express 3 written warranty provided by Defendant, except that the duration is not to exceed one-year. 4 53. Pursuant to Civil Code sec
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PAUL F. VALLES VS FORD MOTOR COMPANY, ET AL.
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Case Number: 24VECV02320 Hearing Date: August 27, 2024 Dept: O SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT PAUL F. VALLES, Plaintiff, vs. FORD MOTOR COMPANY; AUTONATION FORD VALENCIA; and DOES 1 through 10, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 24VECV02320 ORDER OVERRULING DEFENDANT FORD MOTOR COMPANYS DEMURRER I. INTRODUCTION This case arises out of alleged violations of the Song-Beverly Act. Plaintiff Paul Valles (Plaintiff) alleges he purchased a defective 2017 Ford F150 (Subject Vehicle) on May 26, 2020, from Defendant Ford Motor Company (Ford) that Defendant AutoNation Ford Valencia (AutoNation) (collectively, Defendants) failed to repair and that Ford subsequently failed to repurchase. Ford now seeks to demurrer to Plaintiffs third and sixth causes of action for violation of Civil Code § 1793.2(a)(3) and fraudulent concealment inducement, respectively. II. PROCEDURAL HISTORY On May 16, 2024, Plaintiff filed his Complaint, alleging (1) Violation of Civil Code § 1793.2(d); (2) Violation of Civil Code § 1793.2 (b); (3) Violation of Civil Code § 1793.2(a)(3); (4) Breach of the Implied Warranty of Merchantability (Civ. Code, § 1791.1; § 1794; § 1795.5); (5) Negligent Repair; and (6) Fraudulent Inducement Concealment. Plaintiffs fifth cause of action is the only one alleged against AutoNation. On July 8, 2024, AutoNation filed its Answer. On July 16, 2024, Ford filed the instant Demurrer. On August 14, 2024, Plaintiff filed his Opposition. On August 19, 2024, Ford filed its Reply. III. LEGAL STANDARD 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 (complaint, answer or cross-complaint). (See Code of Civ. Proc. §§ 422.10, 589[1]; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (See Donabedian, 116 Cal.App.4th at 994.) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.] (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [the facts alleged in the pleading are deemed to be true, however improbable they may be].) Allegations are to be liberally construed. (See Code of Civ. Proc. § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (See Code of Civ. Proc. § 430.10(e).) A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) [T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Id.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (See SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) No other extrinsic evidence can be considered. (See Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Firemans Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) Accordingly, [w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.) A demurrer can only be sustained when it disposes of an entire cause of action. (See Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court a pleading can be amended successfully. (Id.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). IV. MEET AND CONFER Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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. (See Code Civ. Proc. § 430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (See Code Civ. Proc. § 430.41(a)(3).) Fords meet and confer efforts consist of one email and attached letter sent on June 7, 2024. (See Declaration of Sydney Sloas filed July 16, 2024, ¶ 2.) The Court finds a single email/letter an insufficient attempt to avoid this Courts involvement and in direct violation of the Code of Civil Procedures requirements. The Court will nonetheless rule on the Demurrer in the interest of judicial efficiency. V. ANALYSIS A. Plaintiff Sufficiently Pleads His Third Cause of Action for Violation of Code of Civil Procedure § 1793.2(a)(3) Code of Civil Procedure § 1793.2(a)(3) requires every manufacturer of consumer goods for which the manufacturer has made an express warranty to [m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Ford argues Plaintiffs third cause of action fails to state any facts concerning damages or what parts or what literature were not available at any repair facilities at any time and that it thus fails to state a claim. (Demurrer, pg. 3.) In opposition, Plaintiff argues he provided examples of literature Ford provided to its service centers in his Complaint, that said literature clearly failed to remedy the defect, and, as a result, [a]n inference that can be drawn at the pleading stage is that this literature was insufficient and/or other literature (or replacement parts) that would have been sufficient was not provided to authorized repair facilities. (Opposition, pg. 4; see also Complaint, ¶¶ 26-31, 32.) In any event, what parts or literature Ford made available at any repair facilities is entirely in the possession of Ford and more specificity is thus not possible. (See Opposition, pg. 5.) The Court finds Plaintiffs has sufficiently pleaded his third cause of action for violation of Code of Civil Procedure § 1793.2(a)(3). It is true that, as Ford argues, the substantive paragraphs within this cause of action only contain bare recitations of the law. (See Complaint, ¶¶ 61-62.) However, paragraph 60 incorporates all preceding paragraphs by reference, including the substantive factual allegations identifying various Technical Service Bulletins (TSBs) concerning the defective transmission system. (See id. at ¶¶ 26-31.) The Complaint clearly alleges that these TSBs do not suffice to fix the transmission defects. (See id. at ¶ 32.) One possible reason for this failure is that the technicians never had adequate information which would allow them to properly evaluate and respond to the Subject Vehicles problems. Before discovery, Plaintiff has no way of knowing what materials Ford did or did not give to its repair facilities. There is no reason, at this stage of the proceedings, to require Plaintiff specify exactly what documents or information Ford failed to give to its repair facilities. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550 (less particularity required where defendant is the party in possession of the facts).) Plaintiff also directly alleges damages. (See Complaint, ¶¶ 13-22.) Accordingly, the Court OVERRULES Fords Demurrer as to Plaintiffs third cause of action for violation of Code of Civil Procedure § 1793.2(a)(3). B. Plaintiff Sufficiently Pleads His Sixth Cause of Action for Fraudulent Inducement Concealment The elements of fraud, which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage. (Conroy v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255.) The elements for a fraudulent concealment claim are: (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) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Nissan Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 826 (internal quotations omitted).) No liability for concealment exists unless there is a duty to disclose. (Id.) There are four circ*mstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 (quoting Heliotis v. Schuman (1986) 181 Cal.App.3d 646, 651).) [F]raud must be specifically pleaded. This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) In addition, a cause of action of fraud against a corporation requires a plaintiff to allege the names of persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when. (See Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157-58.) However, this rule of particularity must be applied differently in the case of non-disclosure because it is difficult to allege "who" or "how" or "by what means" something was not disclosed or "when" or "where" a statement was not made. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) Less particularity is required in these cases because the facts supporting concealment are more likely to be known by a defendant. (See id.) 1. Transactional Relationship Ford first argues there is no transactional relationship between Ford and Plaintiff as Ford did not sell the Subject Vehicle to Plaintiff. (See Demurrer, pg. 4.) Absent such a relationship, Ford argues Plaintiff is still required to plead some sort of relationship between the parties in which a duty to disclose can arise. (See id. (quoting LiMandri, 52 Cal.App.4th at 336-337).) Ford argues Plaintiff has failed to make such a showing as Plaintiff does not allege any direct dealings between Ford and Plaintiff and such a relationship cannot arise between a defendant and the public at large. (See Demurrer, pg. 4 (quoting Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-312).) Without any claims of agency, Ford argues Plaintiffs claim fails. Plaintiff opposes by arguing Ford, as a vendor, has a duty to disclose material facts to not only immediate purchase but also subsequent purchasers. (See Opposition, pg. 8 (quoting OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 851).) Plaintiff further argues strict retail privity is not required at the pleading stage. (See Opposition, pg. 8.) In support, Plaintiff cites Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 844, where the court found plaintiffs allegations that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan's authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers sufficient to plead the existence of a relationship at the pleading stage. (Dhital, 84 Cal.App.5th at 844.) As a preliminary matter, the Court does not find Plaintiffs reliance on Dhital persuasive because Plaintiffs Complaint does not allege he bought the car from a dealership nor does he allege any kind of agency relationship between Ford and a dealership. Nonetheless, the Court finds Plaintiff has pled sufficient facts to allege Ford had a duty to disclose alleged transmission defects to Plaintiff. First, Fords discussion of Bigler-Engler is unpersuasive. Although true that a manufacturer does not have a transactional relationship with the public at large, a vendor has a duty to disclose material facts not only to immediate purchasers, but also to subsequent purchasers when the vendor has reason to expect that the item will be resold. (OCM Principle Opportunities Fund, 157 Cal.App.4th at 851 (emphasis in original).) Furthermore, Bigler-Engler is distinguishable from the present case. In Bigler-Engler, the plaintiff rented a medical device from her doctor which she claimed caused serious injury to her knee. (See Bigler-Engler, 7 Cal.App.5th 276 at 286-292.) The court found there was no transactional or other relationship between the plaintiff and the medical device manufacturer and thus the manufacturer had no duty to disclose. (See Bigler-Engler, 7 Cal.App.5th 276 at 314.) Here, by contrast, Plaintiff is a subsequent purchaser of the product himself, not merely the person on whom the product was used. Plaintiff also alleges a direct relationship between the parties because he alleges the parties entered into a warranty agreement when he purchased the Subject Vehicle. (See Complaint, ¶ 7.) Whether through a direct transaction (like a warranty agreement) or through Plaintiffs status as a subsequent purchaser, Plaintiff appears to have pled sufficient facts to allege a transactional relationship between the parties. Regardless of the transactional nature of the parties relationship, however, Plaintiff has alleged relationship between the parties via Fords exclusive knowledge of the transmission defect. (See Complaint, ¶¶ 23-34.) Because allegations of nondisclosure require less particularly at the pleading stage, and taking Plaintiffs facts as true, the Court finds these facts sufficient to constitute a duty to disclose. Accordingly, the Court OVERRULES Fords Demurrer on this ground. /// /// 2. Specificity Ford next argues Plaintiff has not pleaded his third cause of action with the specificity required for alleging fraud generally, or for fraud against a corporation. (See Demurrer, pp. 5-6.) Ford argues Plaintiff failed to allege any statements by Ford or Plaintiffs subsequent reliance on those statements. (See id. at 6.) In opposition, Plaintiff argues each element has been alleged with the specificity required of cases of non-disclosure where a defendant necessarily possesses knowledge of the facts. (See Opposition, pg. 6.) Plaintiff again relies on the Dhital case for support, arguing he alleged he entered into a warranty contract with Ford around May 26, 2020 (Complaint, ¶¶ 7-8); Plaintiff identified the material facts Ford knew prior to his acquisition of the Subject Vehicle that Ford withheld from Plaintiff (Id., ¶ 23); Plaintiff alleged that [Ford] had superior knowledge of the facts (Id., ¶¶ 24, 78, 81a-c); the safety risks posed by the Transmission Defect (Id., ¶¶ 33, 77); the materiality of that information (Id. ¶¶ 83, 84); Plaintiffs reliance on the non-disclosure (Ibid.); and damages. (Id., ¶¶ 14, 21, 86-87.). (See Opposition, pg. 7.) Plaintiff asserts such allegations were sufficient for the Dhital court and thus are sufficient here. (See id.) The Court finds Plaintiff has alleged fraud with the specificity required in cases of non-disclosure. Again, the rule of particularity must be applied differently in the case of non-disclosure because it is difficult to allege who or how or by what means something was not disclosed or when or where a statement was not made. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) Less particularity is required in these cases because the facts supporting concealment are more likely to be known by a defendant and such details are properly the subject of discovery, not demurrer. (See id. at 1384-85.) As Plaintiffs references to portions of his Complaint demonstrate, Plaintiff appropriately alleges the elements of fraud. Plaintiff alleges Fords intentional concealment of the transmission defect, a duty to disclose (as discussed above), Plaintiffs unawareness of the defect and that Plaintiff would not have purchased the Subject Vehicle had he known of the defect, and damages. The Court finds Plaintiff has pleaded these allegations with the requisite specificity for fraud allegations. Accordingly, the Court OVERRULES Fords Demurrer on this ground. 3. Economic Loss Rule Ford further argues its Demurrer should be sustained because Plaintiffs fraud cause of action is barred by the economic loss rule. (See Demurrer, pp. 7-8.) Under the economic loss rule, [w]here a purchasers expectations in a sale are frustrated because the product he bought is not working properly, his remedy is in contract alone, for he has suffered only economic losses. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) The economic loss rule hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts. (Id.) Simply stated, the economic loss rule prevents the law of contract and the law of tort from dissolving one into the other. (Id.)¿¿ ¿ The restrictions on contract remedies serve purposes not found in tort law they protect the parties freedom to bargain over special risks, and they promote contract formation by limiting liability to the value of the promise. (See Harris v. Atlantic Richfield (1993) 14 Cal.App.4th 70, 77.) This encourages efficient breaches, resulting in increased production of goods and services at a lower cost to society. (See id.) Because of these overriding policy considerations, the California Supreme Court has proceeded with caution in carving out exceptions to the traditional contract remedy restrictions. (See id.)¿¿ Nevertheless, the most widely recognized exception to the economic loss rule is when a defendants conduct constitutes a tort as well as a breach of contract. (See Harris, 14 Cal.App.4th at 78.) When one party commits fraud during the contract formation or performance, the injured party may recover in both contract and tort. (See id.)¿¿ Here, because Plaintiff has adequately alleged fraud, the Complaint is not barred by the economic loss rule. Accordingly, the Court OVERRULES Fords Demurrer as to Plaintiffs sixth cause of action for fraudulent inducement-concealment. VI. CONCLUSION Based on the foregoing analysis, the Court OVERRULES Fords Demurrer as to Plaintiffs third and sixth causes of action for violation of Code of Civil Procedure § 1793.2(a)(3) and fraudulent inducement-concealment, respectively. The Court orders Ford to file an Answer only on or before September 13, 2024. IT IS SO ORDERED. DATED: August 27, 2024 Hon. Michael R. Amerian Judge, Superior Court [1] All statutory references are to California codes unless stated otherwise.
Ruling
KPG HEALTHCARE LLC, AN ARIZONA LIMITED LIABILITY COMPANY VS SAVANT CARE INC., A CALIFORNIA NONPROFIT CORPORATION, ET AL.
Aug 29, 2024 |23STCV29725
Case Number: 23STCV29725 Hearing Date: August 29, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT KPG HEALTHCARE LLC, Plaintiff, vs. SAVANT CARE INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23STCV29725 [TENTATIVE] ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL Dept. 48 8:30 a.m. August 29, 2024 Tara Aleagha, counsel of record for Defendant Mindful Values, seeks to be relieved as counsel. Counsels declaration states that Defendant has decided to cease operations and dissolve the business. Defendants director informed counsel that they do not want to retain counsel, making it impractical and burdensome for counsel to continue the representation. No party opposed the motion. Absent a showing of resulting prejudice, an attorneys request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) Counsels motion generally complies with California Rules of Court, rule 3.1362. Trial is not until March 10, 2025, and there is no prejudice to Defendant. The unopposed motion to be relieved is GRANTED and effective upon filing a proof of service showing service of the signed Form MC-053 order and this order on Mindful Values and all parties who have appeared. However, a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney. (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101.) Therefore, an Order to Show Cause Re: Failure to Retain New Counsel for Mindful Values is scheduled for November 26, 2024 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse. Mindful Values must retain new counsel by that date or the Court may strike its answer and place it in default. 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 29th day of August 2024 Hon. Thomas D. Long Judge of the Superior Court
Ruling
MERCEDES-BENZ FINANCIAL SERVICES USA, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS ROMEO GUNT, AN INDIVIDUAL, ET AL.
Sep 03, 2024 |24VECV02911
Case Number: 24VECV02911 Hearing Date: September 3, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT MERCEDES-BENZ FINANCIAL SERVICES USA LLC Plaintiff, v. ROMEO GUNT, ET AL. Defendants. Case Number Department 24VECV01159 107 COURTS [TENTATIVE] ORDER RE: APPLICATION FOR WRIT OF POSSESSION BACKGROUND This action arises from the alleged default on a contract for the purchase of a 2019 Mercedes-Benz C300, Serial No. 55SWF8DB5KU284053 (the Subject Vehicle). On June 20, 2024, Plaintiff Mercedes-Benz Financial Services USA LLC (Plaintiff) filed a Complaint against Defendants Romeo Gunt (Gunt), David Swen (Swen), and DOES 1 through 20, inclusive (collectively, Defendants) alleging causes of action for: (1) Breach of Contract; (2) Common Count; (3) Claim & Delivery; and (4) Conversion. On June 26, 2024, Plaintiff filed the instant Application for Writ of Possession (the Application) as to Defendant Gunt. Pursuant to the Application, Plaintiff seeks recovery of the Subject Vehicle. On August 14, 2024, Plaintiff filed a Declaration of Due Diligence setting forth attempts to serve Defendant Gunt with the Summons, Complaint, the Application, and documents associated with the Application. [Tentative] Ruling Plaintiffs Application for Writ of Possession (the Application) as to Defendant Romeo Gunt is CONTINUED to Friday, October 18, 2024, at 9:00 AM in this department so that Plaintiff can effectuate service on Defendant Romeo Gunt. LEGAL STANDARD No writ of possession may issue, except after a hearing on a noticed motion (Code Civ. Proc., § 512.020, subd. (a)) or by ex parte application satisfying the conditions of section 512.020, subdivision (b). Prior to the section 512.020 hearing, the defendant must be served with all of the following: (a) A copy of the summons and complaint; (b) A Notice of Application and Hearing; (c) A copy of the application and any affidavit in support thereof. (Code Civ. Proc., § 512.030, subd. (a).) If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5. (Code Civ. Proc., § 512.030, subd. (b).) Substitute service of summons and complaint may be effectuated where personal service cannot be accomplished with reasonable diligence. (Code Civ. Proc., § 415.20, subd. (b).) The "Notice of Application and Hearing" must inform the defendant of all of the following: (a) A hearing will be held at a place and at a time, to be specified in the notice, on plaintiff's application for a writ of possession; (b) The writ will be issued if the court finds that the plaintiff's claim is probably (not actually) valid and the other requirements for issuing the writ are established; (c) If the defendant desires to oppose the issuance of the writ, he must file with the court either an affidavit providing evidence sufficient to defeat the plaintiff's right to issuance of the writ or an undertaking to stay the delivery of the property in accordance with section 515.020; (d) The notice must contain the following statement: If you believe the plaintiff may not be entitled to possession of the property claimed, you may wish to seek the advice of an attorney. Such attorney should be consulted promptly so that he may assist you before the time set for the hearing. (Code Civ. Proc., § 512.040.) DISCUSSION Plaintiff applies for a writ of possession pursuant to CCP § 512.010. However, the Court finds that Defendant Gunt has neither appeared in this action, nor has he been served with the Application or its associated documents. Plaintiff has therefore not complied with CCP § 512.030 and the Court cannot rule on the Application at this time. The Court recognizes that Plaintiff has attempted to serve Defendant Gunt on eight separate occasions. (See 08/14/24 Declaration of Due Diligence.) However, prior to the hearing on the Application, Code Civ. Proc. § 512.030 requires that Defendant Gunt be served with: (1) a copy of the summons and complaint; (2) the notice of application and hearing; and (3) a copy the application and any affidavit in support thereof. [D]ue process requires a party to be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481.) The Court cannot grant the Application or, for that matter, even rule on the Application until Defendant Gunt is served.[1] The Court recognizes that Plaintiff has had issues serving Defendant Gunt. Plaintiff, however, may take other means to effectuate proper service on Defendant Gunt such as by filing an application for service by publication. The Court reminds Plaintiff that all moving and supporting papers shall be served and filed at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (b), emphasis added.) The Court therefore CONTINUES the hearing on the Application so that Plaintiff can effectuate service on Defendant Gunt. CONCLUSION Based on the foregoing, the Court CONTINUES the hearing on Plaintiffs Application for Writ of Possession as to Defendant Romeo Gunt to Friday, October 18, 2024 at 9:00 AM (which is at the same time as the Case Management Conference) in this department so that Plaintiff can properly serve Defendant Romeo Gunt. Moving party is ordered to give notice. __________________________________ Judge Eric Harmon, Department 107, Van Nuys September 3, 2024 Los Angeles County Superior Court [1] Although not before the Court at this time, based upon a review of the court file, the Court notes that the Application for Writ of Possession as to Defendant David Swen (Swen), which is set for hearing on September 5, 2024, is also procedurally deficient as Defendant Swen has not been served with the summons, complaint, application, or documents associated with the application. Defendant Swen has also not appeared in this action.
Ruling
MIGUEL MAGDALENO VS MURANAKA FARM, A CALIFORNIA CORPORATION, ET AL.
Aug 27, 2024 |19STCV12070
Case Number: 19STCV12070 Hearing Date: August 27, 2024 Dept: 39 TENTATIVE RULING DEPT: 39 HEARING DATE: August 27, 2024 CASE NUMBER: 19STCV12070 MOTION: Motion to Compel Discovery Responses MOVING PARTY: Defendant Muranaka Farm OPPOSING PARTY: Plaintiff Miguel Magdaleno MOTION Defendant Muranaka Farm (Defendant) moves to compel responses from Plaintiff Miguel Magdaleno (Plaintiff) to Form Interrogatories, set two (FROG). After Defendant filed the motion, Plaintiff served responses. As such, the motion is moot, except as to Defendant seeking sanctions in connection with the motion. The Court finds Plaintiffs failure to timely respond to the FROG an abuse of the discovery process and awards sanctions. The Court imposes sanctions against Plaintiff and his counsel of record, Brett L. Francisco, in the amount of $1,845, which represents three hours of attorney time to prepare the motion and attend the hearing at $595 per hour, plus the filing fee. Plaintiff and his counsel of record, jointly and severally, are to pay $1,845 to Defendant, by and through counsel, within 30 days of notice of this order. Defendant is ordered to provide notice of this order and to file proof of service of same.
Ruling
QING FANG VS ZHOU GUO, ET AL.
Aug 29, 2024 |20BBCV00504
Case Number: 20BBCV00504 Hearing Date: August 29, 2024 Dept: X Tentative Ruling MOTION FOR ATTORNEYS FEES MOVING PARTY: Defendant Guo Zhou RESPONDING PARTY: Plaintiff Qing Fang SERVICE: Filed June 12, 2024 OPPOSITION: Filed August 21, 2024 REPLY: Filed August 21, 2024 RELIEF REQUESTED Defendants counsel moves for Plaintiff to pay attorneys fees totaling $32,025.00, pursuant to a contract between the parties. BACKGROUND This case arose out of Plaintiffs complaint for breach of contract, fraud, negligent misrepresentation, and unjust enrichment. This Court found Defendant to be the prevailing party in the present action after a one day non-jury trial on May 7, 2024. TENTATIVE RULING Defendants motion for attorneys fees is GRANTED in the amount of $29,875.00. LEGAL STANDARD Civil Code section 1717 states in part: (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. [¶] · [¶] (b)(1) The court, upon notice and motion by party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. (2) Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section. Civ. Code § 1717; see also Code Civ. Proc. § 1033.5(a)(10)(A) (attorneys fees authorized by contract are recoverable as costs under Civ. Proc. Code § 1032). Reasonable attorneys fees shall be fixed by the court and shall be an element of the costs of suit. (Civ. Code § 1717(a).) DISCUSSION A. Entitlement to Attorneys Fees Plaintiff does not dispute the validity of the contract or that Defendant is the prevailing party. Plaintiff instead argues that Defendant is entitled to attorneys fees because of unclean hands. This argument is unpersuasive. Plaintiffs other argument is that the fees should be adjusted downward due to the cases simple procedural history. Neither side litigated any pretrial motions nor were depositions conducted. In this case the Defendant is entitled to recover attorneys fees pursuant to Civil Code section 1717. There is a signed contract, i.e., the franchise agreement, between Plaintiff and Defendant that allows the recovery of attorney fees in the event of any dispute between the parties . . . the non-prevailing party will pay the prevailing party all costs and expenses, including attorneys fees incurred by the prevailing party . . . . Motion, Exh. 1 ¶ 20. Judgment was entered for Defendant and thus, Defendant is the prevailing party in this action. B. Amount of Attorneys Fees When determining a reasonable attorneys fees award using the lodestar method, the court begins by deciding the reasonable hours the prevailing partys attorney spent on the case and multiplies that number by the prevailing hourly rate for private attorneys in the community who conduct noncontingent litigation of the same type. Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dept of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248. The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009. As an initial matter, the court finds Defendants counsels hourly rates reasonable (Attorney Hanley $450-500 per hour). Having reviewed and considered Defendants evidence, and having presided in similar cases, the court finds these hourly rates reasonable for attorneys in the community who conduct litigation of the same type as in this case. The court has read and considered Plaintiffs arguments, Defendants arguments, and Defendants counsels invoice (Motion, Exh. 2). Defendant identifies a baseline lodestar of $32,025.00. Plaintiff attacks the billed hours, contending the case has a simple procedural history with no motions and no depositions. The Court considers this argument and finds some time not compensable. First, the Court finds that the time spent on 07/21/2023 for Draft mediation Brief for Court mediation is not compensable because the Court does not see a mediation brief filed by Defendant. Accordingly, $750.00 is subtracted. Second, the Court scrutinizes the time spent on 04/26/2024 for Trial preparation, prepare witness list, exhibit list, trial brief as excessive services as trial preparation matters appeared quite a few times in the invoices. Accordingly, it is not compensable and $1,400.00 is subtracted. In total, $2,150.00 is subtracted. Otherwise, the number of hours is reasonable. Defendants counsel expended those hours over three-plus years of litigation, which included preparation of Defendants answer, discovery, court appearances, conferences, efforts to resolve the case, and trial. The Court awards Defendants counsel $29,875.00 in attorneys fees. CONCLUSION Defendants motion for attorneys fees is GRANTED in part, as follows: Defendants baseline Lodestar: $32,025.00 Removal of unrecoverable items: ($2,150.00) Total Fees & Expenses: $29,875.00 Defendants counsel is awarded $29,875.00. Dated: August 29, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org
Ruling
KAREN S. DARLING VS HOVIG MEGUERDICHIAN, PERSONALLY AND AS IN HIS CAPACITY AS PERSONAL ADMINISTRATOR OF THE ESTATE OF DESIREE MARIE MEGUERDICHIAN,
Aug 30, 2024 |24NNCV01110
Case Number: 24NNCV01110 Hearing Date: August 30, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A TENTATIVE RULING AUGUST 30, 2024 MOTION FOR PRELIMINARY INJUNCTION Los Angeles Superior Court Case # 24NNCV01110 MP: Karen S. Darling (Plaintiff) RP: The Estate of Desiree Marie Meguerditchian, Hovig Meguerditchian, Joanne Martinez (Defendants) 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: Karen S. Darling (Plaintiff) brings this action against the Estate of Desiree Marie Meguerditchian (Decedent), Hovig Meguerditchian (Hovig), individually and in his capacity as administrator of Decedents estate, and Joanne Martinez (Martinez). Plaintiff alleges that she was an attorney for Foothill Law Group (FLG) from 2017 to 2022. (Compl. ¶¶ 18, 35.) FLG was owned and operated by Decedent until her death in 2022. (Compl. ¶ 19.) Plaintiff alleges that around July 2021 FLG stopped paying her. (Compl. ¶ 28.) Plaintiff states that she was not paid from March 2021 to March 2022, though she continued to work for FLG and bill hours. (Compl. ¶¶ 29-35.) Plaintiff alleges that Decedent was either not around or on medical leave during most of this time. (Compl ¶ 31.) Plaintiff alleges she was eventually paid $32,000 in 2022 but maintains that she is owed in excess of $250,000 for her billed hours. (Compl. ¶¶ 39, 60.) Plaintiff brings claims against Decadents estate and its administrator Hovig. Plaintiff has also included Martinez, FLGs administrator, as a Defendant. Plaintiff alleges that she submitted her billed hours and time sheets to Martinez regularly. (Compl. ¶36.) Plaintiff alleges she notified Martinez that some invoices incorrectly listed the handling attorney as Decedent. (Compl. ¶ 41.) Plaintiff alleges Martinez inputed these incorrect invoices regardless of being advised of the error. (Compl. ¶ 42.) Plaintiff previously submitted a creditors claim in the administration of Decedents Estate which was denied. (Compl. ¶ 17.) Plaintiff alleges, among other things, that Hovig purchased a home in Lake Havasu with funds from the FLG account. (Compl. ¶ 50.) Plaintiff now seeks an injunction restraining all assets of Defendants in Decedents Estate as well as any real or personal property in Defendants names and a right to attach order over the same. (Mot. pgs. 10-11.) ANALYSIS: I. LEGAL STANDARD As a threshold matter, preliminary injunctions may be granted only after the moving party shows there is no adequate remedy at law. (Wilkison v. Wiederkehr (2002) 101 Cal.App.4th 822, 832-833.) The rule in this state is that injunctive and declaratory relief will not be granted where there is a plain, complete, speedy, and adequate remedy at law. (Rickley v. County of Los Angeles (2004) 114 Cal.App.4th 1002, 1013 [internal quotations and citations omitted].) A preliminary injunction's main purpose is to preserve the status quo pending trial. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) The trial court's decision rests on the consideration of two interrelated factors: (1) the likelihood that [moving party] will prevail on the merits at trial and (2) the interim harm that [moving party] is likely to suffer if the injunction is denied, compared to the harm the [opposing party] is likely to suffer if the injunction issues. (Perez v. Hastings College of the Law (1996) 45 Cal.App.4th 453, 456 [citing Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286].) These factors are applied on an inverse sliding scale: the greater the likelihood of success on the merits, the less that must be shown for interim harm, and vice versa. (Butt v. State of California (1992) 4 Cal.4th 668, 678.) A trial court has broad discretionary powers to grant or deny a request for a preliminary injunction so long as it does not act capriciously. The court should exercise its judgment in favor of the party most likely to be injured. (Robbins v. Superior Court (1985) 38 Cal.3d 199, 205.) If the denial of an injunction would result in great harm to the plaintiff, and the defendant would suffer little harm if it were granted, then it is an abuse of discretion to fail to grant the preliminary injunction. (Id.) II. MERITS The Court finds that Plaintiff fails to demonstrate the lack of an adequate legal remedy such that injunction should issue. Injunctions will rarely be granted (absent specific statutory authority) where a suit for damages provides an adequate remedy. (See Thayer Plymouth Ctr., Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 307; Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1110.) In considering the adequacy of damages as a remedy, the court may consider whether the party against whom the judgment is sought is able to respond in damages, i.e., if the defendant is shown to be insolvent, a monetary judgment may be inadequate. (West Coast Const. Co. v. Oceano Sanitary Dist. (1971) 17 Cal.App.3d 693, 700.) Here, Plaintiffs claims are entirely for monetary damages. Plaintiffs claims are for unpaid wages resulting from breach of contract. Plaintiffs Complaint simply does not seek any remedy in equity. Even where Plaintiff pleads for restitution or the creation of constructive trust, the result is still a request for monetary damages. To the extent that Plaintiff argues that she would not be able to collect on a money judgment such that injunctive relief is appropriate, she provides no evidence that this is the case. Plaintiffs self-serving declaration in support of this motion contains nothing related to Defendants solvency. Plaintiff never claims to have had a possessory interest in the any FLG bank account. Further, this action does not imply the transfer of any property rights such that monetary damages would be insufficient. (See Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, 1380 [holding that monetary damages are generally unavailable when the situs of a claim was in the transfer of real property.].) Although the lack of legal remedy alone is fatal to Plaintiffs motion, the Court also notes that the scope of her requested injunction is far too broad. Plaintiff seeks an order enjoying the alienation of any real or personal property currently in possession of any Defendant. Such an order would effectively result in Defendants being unable to do something as simple as pay bills, as any money they possess would be restrained. Such an order would impose such a massive detriment on Defendants that the Court cannot conceive of a scenario in which Plaintiffs potential harm would outweigh it. This is exacerbated by the fact that Plaintiff has made no showing that there is any risk to her should an injunction not issue. As previously mentioned, Plaintiff has presented no evidence of Defendants inability to pay the appropriate remedy of damages. Accordingly, Plaintiffs motion for preliminary judgment and right to attach order is DENIED. --- 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 Karen S. Darlings Motion for Preliminary Injunction came on regularly for hearing on August 30, 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 FOR PRELIMINARY INJUNCTION IS DENIED. UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE. IT IS SO ORDERED. DATE: August 30, 2024 _______________________________ F.M. TAVELMAN, Judge Superior Court of California County of Los Angeles
Ruling
MANUEL FERNANDEZ, TRUSTEE OF THE PENA FAMILY REVOCABLE TRUST DATED NOVEMBER 9, 2022 VS SHMUEL Y MAHGEREFTEH, ET AL.
Sep 04, 2024 |24PSCV00137
Case Number: 24PSCV00137 Hearing Date: September 4, 2024 Dept: 6 CASE NAME: Manuel Fernandez, trustee of the Pena Family Revocable Trust dated November 9, 2022 v. Shmuel Y. Mahgerefteh, et al. 1 Defendant Mahgereftehs Motion for Order Establishing Admissions and for Sanctions in the Amount of $2,475.00 Against Plaintiff; 2 Defendant Mahgereftehs Motion to Compel Responses to Interrogatories and for Sanctions in the Amount of $585.00 Against Plaintiff; and 3 Defendant Mahgereftehs Motion to Compel Responses to Request for Production of Documents and for Sanctions in the Amount of $585.00 Against Plaintiff TENTATIVE RULING The Court GRANTS Defendant Mahgereftehs motion for order establishing admissions. The Court hereby deems the truth of the matters specified in Requests for Admission (Set One) admitted and conclusively established as to Plaintiff. The Court further GRANTS Defendant Mahgereftehs request for monetary sanctions in the reduced amount of $900.00 against Plaintiff. Plaintiff must pay said monetary sanctions to counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court GRANTS Defendant Mahgereftehs motion to compel responses to Request for Production of Documents. Plaintiff must serve verified responses, without objections, and all responsive documents on counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court further GRANTS Defendant Mahgereftehs request for monetary sanctions in the amount of $585.00 against Plaintiff. Plaintiff must pay said monetary sanctions to counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court GRANTS Defendant Mahgereftehs motion to compel responses to interrogatories, but only as to Form Interrogatories (Set One). Plaintiff must serve verified responses to Form Interrogatories (Set One), without objection, on counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court further GRANTS the request for monetary sanctions in the amount of $585.00 against Plaintiff. Plaintiff must pay said monetary sanctions to counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court will grant the motion as to Special Interrogatories (Set One), but on the condition that Defendant Mahgerefteh pays the additional motion filing fee for the Special Interrogatories within five days of the Courts order. Otherwise, the motion will be denied without prejudice as to Special Interrogatories (Set One). Assuming the filing fee gets paid, Plaintiff must provide verified responses, without objection, to Special Interrogatories (Set One), within 30 days of the Courts order. Defendant Mahgerefteh is ordered to give notice of this ruling and file proof of service of same within five calendar days. BACKGROUND This is a real property loan dispute. On January 12, 2024, plaintiff Manuel Fernandez, trustee of the Pena Family Revocable Trust dated November 9, 2022 (Plaintiff) filed this action against defendants Shmuel Y. Mahgerefteh (Mahgerefteh), Law Offices of Richard G. Witkin APC (collectively, Defendants) and Does 1 through, alleging causes of action for declaratory relief, unfair and unlawful business practice, injunctive relief, cancellation of instruments, rescission based on unconscionability, and accounting. On July 2, 2024, Defendant Mahgerefteh moved to deem requests for admissions admitted. On July 25, 2024, Mahgerefteh moved to compel responses to interrogatories and requests for production of documents. The motions are unopposed. LEGAL STANDARD When a party fails to serve a timely response to interrogatories, the party propounding the interrogatories may move for an order compelling a response. (Code Civ. Proc., § 2030.290, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2030.290, subd. (a).) The court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Id., § 2030.290, subd. (c).) When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand. (Code Civ. Proc., § 2031.300, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2031.300, subd. (a).) [T]he court shall impose a monetary sanction& against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Id., § 2031.300, subd. (c).) When a party fails to serve a timely response to a request for admission, the party propounding the request for admission may move for an order to deem the genuineness of any documents and the truth of any matters specified in the requests admitted. (Code Civ. Proc., § 2033.280, subd. (b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (Id., § 2033.280, subd. (a).) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction& on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Id., § 2033.280, subd. (c).) DISCUSSION Meet and Confer Although meeting and conferring is not required before bringing motions to compel, (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 404), the Court appreciates Mahgereftehs efforts to meet and confer, (Ramos Decls., ¶ 9). Analysis Defendant Mahgerefteh served Requests for Admissions (Set One), Request for Production of Documents (Set One), Form Interrogatories (Set One), and Special Interrogatories (Set One) on Plaintiff on March 7, 2024. (Ramos Decls., ¶ 3, Ex. A.) Despite having granted extensions to respond, Plaintiff failed to provide responses. (Ramos Decls., ¶¶ 5-10.) The Court finds Mahgereftehs motions to be well taken. However, the Court notes that Mahgereftehs motion to compel responses to interrogatories combines both Form Interrogatories and Special Interrogatories into one motion. Each set of discovery requests requires its own motion and a separate filing fee. (See Govt. Code, § 70617, subds. (a), (f); Code Civ. Proc., §§ 2030.010 et seq., 2031.010, et seq., 2033.010, et seq.) Therefore, the Court will GRANT the motions as to Requests for Admissions (Set One), Request for Production of Documents (Set One), and Form Interrogatories (Set One). The Court will later grant the motion as to Special Interrogatories (Set One) once Mahgerefteh pays the necessary filing fee; otherwise, the motion will be denied without prejudice as to Special Interrogatories (Set One). With respect to monetary sanctions, the Court GRANTS Mahgereftehs request as to Requests for Admission (Set One) in the reduced amount of $900.00, comprised of 1.0 hour preparing the motion and 1.0 hour appearing at the hearing on the motion, for a total or 2.0 hours, multiplied by the hourly rate of $450.00. The Court further GRANTS Mahgereftehs requests as to Request for Production of Documents (Set One) and Form Interrogatories (Set One) in the requested amount of $585.00 for each motion. CONCLUSION The Court GRANTS Defendant Mahgereftehs motion for order establishing admissions. The Court hereby deems the truth of the matters specified in Requests for Admission (Set One) admitted and conclusively established as to Plaintiff. The Court further GRANTS Defendant Mahgereftehs request for monetary sanctions in the reduced amount of $900.00 against Plaintiff. Plaintiff must pay said monetary sanctions to counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court GRANTS Defendant Mahgereftehs motion to compel responses to Request for Production of Documents. Plaintiff must serve verified responses, without objections, and all responsive documents on counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court further GRANTS Defendant Mahgereftehs request for monetary sanctions in the amount of $585.00 against Plaintiff. Plaintiff must pay said monetary sanctions to counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court GRANTS Defendant Mahgereftehs motion to compel responses to interrogatories, but only as to Form Interrogatories (Set One). Plaintiff must serve verified responses to Form Interrogatories (Set One), without objection, on counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court further GRANTS the request for monetary sanctions in the amount of $585.00 against Plaintiff. Plaintiff must pay said monetary sanctions to counsel for Defendant Mahgerefteh within 20 days of the Courts order. The Court will grant the motion as to Special Interrogatories (Set One), but on the condition that Defendant Mahgerefteh pays the additional motion filing fee for the Special Interrogatories within five days of the Courts order. Otherwise, the motion will be denied without prejudice as to Special Interrogatories (Set One). Assuming the filing fee gets paid, Plaintiff must provide verified responses, without objection, to Special Interrogatories (Set One), within 30 days of the Courts order. Defendant Mahgerefteh is ordered to give notice of this ruling and file proof of service of same within five calendar days.
Ruling
VITOLI BUILDERS, INC., A CALIFORNIA CORPORATION VS JONATHAN GOLDHAMMER, ET AL.
Aug 27, 2024 |22STCV07432
Case Number: 22STCV07432 Hearing Date: August 27, 2024 Dept: 49 Vitoli Builders, Inc. v. Jonathan Goldhammer, et al. CROSS-DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION AS TO THE FIRST AMENDED CROSS-COMPLAINT MOVING PARTY: Cross-Defendants Vitoli Builders, Inc., and Reuven Nathaniel Litman RESPONDING PARTY(S): Cross-Complainant Jonathan Goldhammer STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiff Vitoli Builders, Inc., is a Los Angeles based company providing landscaping and related services to high-net-worth customers. Through the course of business, Plaintiff alleges it maintained customized invoices and customized contracts as an advantage over its competitors. Plaintiff alleges two of its former employees, Defendants Jonathan Goldhammer and Itay Zeltseralong with Goldhammers wife, Moran Vakninstole Plaintiffs trade secrets to use in a competing business, Defendant Sequoia Pools and Masonry, Inc. Defendant Goldhammer has filed a cross-complaint against Vitoli Builders and its sole shareholder, Reuven Nathaniel Litman. Cross-complainant alleges that he is a 50% owner of Vitoli Builders, Inc., and that Cross-Defendants have committed breach contract, and breach of fiduciary duties, among other things, by terminating him from the company. Cross-Defendants Vitoli Builders and Litman now move for summary judgment [FN 1] or adjudication of the First Amended Cross-Complaint. [FN 2] Defendant/Cross-Complainant Goldhammer opposed. TENTATIVE RULING: Cross-Defendants Motion for Summary Adjudication of the First, Second, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action is GRANTED. Moving parties are ordered to give notice, unless waived. DISCUSSION: I. Evidentiary Objections Pursuant to CCP § 437c(q), the Court only rules upon objections asserted against evidence which the Court deems to be material to the disposition of this motion, as follows: Cross-Defendants objections numbered 1-6 are OVERRULED. II. Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Courts consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741. III. Background In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) For background, Plaintiff Vitoli Builders, Inc., provides landscaping and design services to high-net-worth customers. (FAC ¶ 1.) In the First Amended Complaint, Vitoli alleges that through its use of Customized Invoices and Customized Contracts, it maintained a distinct advantage over its competitors. (Id. ¶¶ 2, 3.) Plaintiff alleges that a former employee, Jonathan Goldhammer, stole money and trade secrets from Vitoli, including the Customized Invoices and Customized Contracts. (Id. ¶ 5.) Goldhammer has filed a First Amended Cross-Complaint individually and derivatively on behalf of Vitoli, against Vitoli and Reuven Nathaniel Litman. Goldhammer alleges that he is a 50% shareholder in Vitoli, and that any attempts to fire [him] from any position at Vitoli is without any force or effect. (Id. ¶ 18.) Although the paperwork of Vitoli was never updated to reflect that Goldhammer became a 50% partner in the business, he alleges that [a]ll profits were equally split between Litman and Goldhammer, and Litman always referred to Goldhammer as his partner in front of employees and customers. (Id. ¶ 9.) Goldhammer alleges that since his ouster from Vitoli, Litman has caused several of Vitolis existing customers to cancel their contracts and/or projects with Vitoli, to Vitolis and Goldhammers detriment. (Id. ¶ 13.) IV. Analysis The burden begins with Cross-Defendants to show that one or more elements of a cause of action . . . cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. In support of the motion, Cross-Defendants argue that all remaining causes of action except the fourth fail because Goldhammers claim of a partnership is a legal impossibility. [FN 3] Particularly, Cross-Defendants asserts that Goldhamerrs failure to purchase shares in Vitolian existing corporationmeans he cannot be a partner in the corporation.Cross-Defendants present evidence that Vitoli Builders was formed on June 4, 2018. (SSUMF 1.) Litman is Vitolis only shareholder, and no other personincluding Goldhammerhas ever held Vitolis shares. (Id. 2, 3.) Despite Vitolis accountant having explained to Goldhammer the necessity of purchasing shares, Goldhammer never did so. (Id. 11.) In addition, Goldhammer did not sign a partnership agreement. (Id. 5.) Cross-Defendants have therefore met their initial burden. In opposition, Goldhammer argues that his alleged equitable interest in Vitolieither as a partner or shareholderis a triable issue of material fact. (See Opp. 3: 2 [contending he is a de facto shareholder in Vitoli].) He points to various factors to suggest he is a 50% equitable owner, including that he and Litman essentially split the businesss 2021 profits equally. (SSAMF 28.) First, Goldhammers partnership theory is untenable because it is undisputed that Vitoli is organized as a corporation. (SSUMF 1.) [T]he association of two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership. (Corp. Code § 16202, subd. (a).) However, [a]n association formed under a statute other than this chapter, a predecessor statute, or a comparable statute of another jurisdiction is not a partnership under this chapter. (§ 16202, subd. (b).) With this in mind, the Court in Persson v. Smart Inventions, Inc. (2005) 125 Cal. App. 4th 1141 held that a partnership cannot exist concurrently with a corporate enterprise. Consequently, considerable doubt exists that the obligations that flow from a partnershipincluding fiduciary duties among partnersmay be imposed on the shareholders of a corporation duly formed and operated under California statutes. (Id.) Goldhammer has cited no authority in its opposition demonstrating a corporation can have de facto partners. Thus, to the extent Goldhammer claims to be a partner in the Vitoli, [FN 4] his claims must fail. Second, Goldhammers theory that he is a de facto shareholder, or otherwise contains some equitable interest in Vitoli, also fails. It is undisputed that Goldhammer never held shares in Vitoli. (SSUMF 3.) This courts research has not returned any California authorities recognizing a de facto or equitable shareholder. Goldhammer has not cited any. Therefore, Goldhammer has not met his burden to establish a triable issue of material fact. (CCP § 437c(o)(2).) Accordingly, Cross-Defendants Motion for Summary Adjudication is GRANTED as to the First, Second, Third, Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Actions. IT IS SO ORDERED. Dated: August 27, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior CourtFN 1 - Cross-Defendants are not moving to adjudicate the Fourth Cause of Action for Breach of Contract, which still remains in the First Amended Cross-Complaint. Thus, the motion is one for summary adjudication, not summary judgment. FN 2 - In the First Amended Cross-Complaint, Cross-Complainant Moran Vaknin asserted causes of action for (1) defamation and (2) intentional interference with prospective economic relations. (See FACC, 10th and 11th Causes of Action.) After Cross-Defendant filed its motion for summary judgment, Vaknin dismissed these causes of action. (See 03/07/2024 Request for Dismissal.)FN 3 - The parties apparently agree that all causes of action, except the fourth, require that Goldhammer maintain at least an equitable interest in Vitoli. Thus, absent this, these claims will fail.FN 4 - Although Goldhammer uses the word partner in the First Amended Cross-Complaint, he asserts in opposition that he is contending to be a 50% shareholder in Vitolinot a partner. (Opp. 3: 1-4.) Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
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