COMPLAINT/PETITION FILED $ 07/12/2024 @ 1:01PM July 12, 2024 (2025)

Case

BANK OF AMERICA NA V PATRICK BOZE

Jul 08, 2024 |12TH CIRCUIT DIVISION 7 |CONTRACT - OTHER |CONTRACT - OTHER |66FCV-24-633

Case

PORTFOLIO RECOVERY VS LAUREN SIMPSON

Jul 12, 2024 |19TH STATE DISTRICT COURT DIV 2 |CV-CONTRACT |CV-CONTRACT |JOCV-24-219

Case

FORSYTHE FINANCE LLC VS MANDI WATTS

Jul 10, 2024 |1ST CIRCUIT DIVISION 2 |CONTRACT - OTHER |CONTRACT - OTHER |19CV-24-123

Case

CREDIT ACCEPTANCE CORP V JOHN CLEVELAND

Jul 08, 2024 |20TH CIRCUIT DIVISION 1 |CONTRACT - OTHER |CONTRACT - OTHER |23CV-24-1292

Case

U.S. BANK NATIONAL ASSOC V CHRISTOPHER N CLARK

Jul 12, 2024 |23RD CIRCUIT DIVISION 3 |CONTRACT - OTHER |CONTRACT - OTHER |43CV-24-653

Case

CAVALRY SPV I LLC V JUAN C ALBARRAN GARCIA

Jul 08, 2024 |4TH CIRCUIT DIVISION 1 |CONTRACT - OTHER |CONTRACT - OTHER |72CV-24-2314

Case

CORNING CREDIT UNION VS JEFFERY DEWITT

Jul 10, 2024 |1ST CIRCUIT DIVISION 1 |CONTRACT - OTHER |CONTRACT - OTHER |19CV-24-119

Case

Jul 10, 2024 |4TH CIRCUIT DIVISION 2 |CONTRACT - OTHER |CONTRACT - OTHER |72CV-24-2351

Ruling

PHILLIP PHARELL MCGOWAN, ET AL. VS FAME GARDENS, LP

Jul 15, 2024 |23STCV24498

Case Number: 23STCV24498 Hearing Date: July 15, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 15, 2024 Case Name: McGowan, et al. v. Fame Gardens LP Case No.: 23STCV24498 Matter: OSC re: Default Judgment Ruling: The Default Judgment Application is denied without prejudice. Plaintiffs to give notice. This is a habitability matter. Plaintiffs Phillip Pharell Mcgowan, Devon Monique Martinez, Joseph Manuel Eddins, and Cereniti Claire Martinez Mcgowan seek a default judgment against Defendant Fame Gardens LP. While Plaintiffs request $540,000 in damages, the Complaint fails to make any specific request for damages against Defendant. This is problematic as [t]he relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . . (Code Civ. Proc. § 580.) Further, phrases such as in an amount not less than do not give notice for the purposes of Code Civ. Proc. § 580. (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1173-1174.) Code Civ. Proc. § 580 applies even when a defendant has defaulted after having filed an answer and having participated in discovery. (See Greenup v. Rodman (1986) 42 Cal.3d 822, 828; Elec. Funds Sols., LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1175.) That a statement of damages was served is irrelevant as this is not a personal injury or wrongful death action. Thus, Plaintiffs can either accept the jurisdictional minimum of $25,001 in damages or else amend the Complaints allegations as to damages, which would be a material change opening Defendants default. (Cole v. Roebling Const. Co. (1909) 156 Cal. 443; Leo v. Dunlap (1968) 260 Cal.App.2d 24, 27-28.) Accordingly, the Default Judgment Application is denied without prejudice. Plaintiffs to give notice.

Ruling

Tpine Leasing Capital L.P. vs. Jarnail Multani

Jul 10, 2024 |23CECG03197

Re: Tpine Leasing Capital L.P. v. Jarnail Multani Superior Court Case No. 23CECG03197Hearing Date: July 10, 2024 (Dept. 501)Motion: by Defendant to Set Aside Default and Default JudgmentTentative Ruling: To deny the motion to set aside default and default judgment without prejudice.(Code Civ. Proc., § 473, subd. (b).)Explanation:No Copy of Proposed Pleading Application for relief from a judgment or court order must be filed timely (within sixmonths of the judgment or order) and must be accompanied by a copy of the answeror other proposed pleading to be filed. (Code Civ. Proc., § 473 subd. (b).) Here, defendant’s default was taken October 19, 2023, and judgment wasentered against him on March 21, 2024. Defendant filed this motion on April 22, 2024.Defendant’s application was timely. However, defendant did not provide a proposedresponsive pleading pursuant to code.No Mistake, Inadvertence, Surprise or Excusable Neglect A judgment may be vacated and so may the entry of default that preceded it.(Code Civ. Proc., § 473 subd. (b).) The court is empowered to relieve a party “upon anyterms as may be just … from a judgment, dismissal, order, or other proceeding takenagainst him or her through his or her mistake, inadvertence, surprise, or excusableneglect.” (Id.) This decision lies in the discretion of the court, and can only be exercisedif the moving party establishes a proper ground for relief, by the proper procedure, andwithin the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Here, defendant did not demonstrate that his failure to respond was due tomistake, inadvertence, surprise or excusable neglect. He stated that he learned of thedefault entered against him but “was not aware of the nature of any pending litigation.”(Multani Decl., ¶ 4.) Defendant incorrectly stated that the default should be “set asidedue to his mistake…in not responding to the lawsuit.” (Id.) He described no specificmistake, inadvertence, surprise or excusable neglect that led to him not responding.Defendant briefly stated that he was improperly served, however did not establish it as avalid reason for not responding to the Complaint. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 7/9/2024 . (Judge’s initials) (Date)

Ruling

BABAK ZARABIAN VS GLENN WILLWERTH, ET AL.

Jul 16, 2024 |20STCV29052

Case Number: 20STCV29052 Hearing Date: July 16, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 16, 2024 Case Name: Zarabian v. Willwerth, et al. Case No.: 20STCV29052 Matter: Demurrers (13x) Moving Party: Defendants (1) Zanna USA, LLC, (2) Zanna USA 5 Holdings, LLC, (3) Zanna USA, Inc., (4) Zanna USA Holdings, LLC, (5) Zanna USA 2SB Holdings, LLC, (6) Zanna USA 3 Holdings, LLC, (7) DKNK Holdings, LLC, (8) Zanna USA 4 Holdings, LLC, (9) SSZS Holdings, LLC, (10) Adelanto Warehousing, LLC, (11) Dan Kohanarieh, (12) Glenn Willwerth, and (13) Saeed Steve Aminpour Responding Party: Plaintiff Babak Zarabian Notice: OK Ruling: The Demurrers of Dan and Saeed are sustained as to the fifth, sixth, seventh, and ninth causes of action, but are otherwise overruled. Leave to amend is denied. The Demurrers of all other Defendants are sustained, without leave to amend. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. This is an action in which Plaintiff Babak Zarabian alleges that the Defendants cut him out of a partnership deal relating to the Zanna family of corporate entities. On December 28, 2023, Plaintiff filed the Fifth Amended Complaint (5AC) for (1) breach of contract, (2) breach of fiduciary duty, (3) accounting, (4) money had and received, (5) negligence, (6) intentional misrepresentation, (7) negligent misrepresentation, (8) unjust enrichment, and (9) promissory estoppel. Defendants (1) Zanna USA, LLC, (2) Zanna USA 5 Holdings, LLC, (3) Zanna USA, Inc., (4) Zanna USA Holdings, LLC, (5) Zanna USA 2SB Holdings, LLC, (6) Zanna USA 3 Holdings, LLC, (7) DKNK Holdings, LLC, (8) Zanna USA 4 Holdings, LLC, (9) SSZS Holdings, LLC, (10) Adelanto Warehousing, LLC, (11) Dan Kohanarieh, (12) Glenn Willwerth, and (13) Saeed Steve Aminpour now each separately demur to the entirety of the 5AC for failure to state sufficient facts. There are thirteen Demurrers at issue. When considering demurrers, courts read the allegations liberally and in context, and treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) It is error to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.) Breach of Contract The essential elements of a breach of contract cause of action are: (1) a contract between the parties; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff from the breach. (Wall Street Network, Ltd. v. New York Times Co.¿(2008) 164 Cal.App.4th 1171, 1178.)¿ Previously the Court ruled: While basic facts have been pleaded, the material terms of the contract have not been sufficiently indicated. What was the ownership stake that Plaintiff was supposedly entitled to or how was it supposed to be calculated? How did the parties share profits and losses? What were Defendants obligations? Nothing is clear other than that Plaintiff invested money and got nothing in return. There is now an allegation of what appears to be a general partnership or joint venture, with a 40/30/30 split in ownership amongst Dan, Saeed, and Babak, respectively; and sharing of control and profits and losses according to ownership, but changing with subsequent capital contributions, with Babak making a $13,000 investment. On the other hand, to the extent there is no allegation of partnership interest by Glenn or any of the entity Defendants, they cannot be liable for breach of any partnership or joint venture agreement, as they were never partners. Simply stating these parties entered into a contract is insufficient. The 5AC and the Opposition do not provide a coherent theory of liability. Thus, the Demurrers of Saeed and Dan are overruled as to the first cause of action. The Demurrers of all other Defendants are sustained as to the first cause of action. Given that there have already been six iterations of the complaint, the Court will not allow any further amendment. Breach of Fiduciary Duty The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.] (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044.) Defendants argue that a fiduciary relationship has not been alleged. This lacks merit with respect to Dan and Saeed because partners or joint venturers have a fiduciary duty to act with the highest good faith towards each other regarding affairs of the partnership or joint venture. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) On the other hand, a sufficient relationship has not been alleged to demonstrate a fiduciary duty for any of the other Defendants. Thus, the ruling on the second cause of action is the same as the ruling on the first cause of action. Accounting An account stated is an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing. [Citation.] To be an account stated, it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing. [Citation.] (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752.) The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due. [Citations.] (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) Here, the derivative accounting claim is sufficient against alleged partners Dan and Saeed. (See, e.g., Corp. Code § 16405.) A sufficient relationship has not been pleaded for the other Defendants. Thus, again, the ruling is the same here as it is for the first cause of action. Money Had & Received The elements of a cause of action on a common count for money had and received are: 1. That [name of defendant] received money that was intended to be used for the benefit of [name of plaintiff]; [¶] 2. That the money was not used for the benefit of [name of plaintiff]; and [¶] 3. That [name of defendant] has not given the money to [name of plaintiff]. (CACI No. 370, italics added.) A cause of action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff. [¶] This common count is available in a great variety of situations [citations] and lies wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937.) The Court will allow the subject claim as an alternative theory upon which Plaintiff could recover his $13,000 investment form Dan and Saeed, who are alleged not to have provided an ownership interest or other payout to Plaintiff despite his investment. This claim, however, fails against the other Defendants, who are not properly alleged to have any relationship in procuring a partnership interest for Plaintiff. Thus, again, the ruling here is the same as the ruling for the first cause of action. Negligence Negligence requires duty, breach of duty, proximate causation, and damages. (N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1402.) The negligence claim relates to the allegations that Defendants agreed to manage finances but did an inadequate job by misappropriating funds. This claim inappropriately recasts Plaintiffs contract claim as a tort claim and is, therefore, subject to the economic loss rule. (See, e.g., Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal. 4th 979, 989-90.) Thus, the Demurrer is sustained as to the negligence claim, without leave to amend. Intentional/Negligent Misrepresentation The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638, internal quotation marks omitted.) [F]raud must be pled specifically; general and conclusory allegations do not suffice. [Citations] Thus the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, internal quotation marks omitted.) Negligent misrepresentation requires misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage. (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 175.) A negligent misrepresentation claim should also be pleaded with specificity. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14.) These claims lack specificity because there is no indication as to where or how (telephone, in-person, etc.) the subject representations were made. Further, the negligent misrepresentation claim relates to a negligent false promise, which is not an actionable form of deceit. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) The Demurrer is sustained as to the subject claims, without leave to amend. Unjust Enrichment Unjust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies .... [Citation.] It is synonymous with restitution. [Citation.] (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d 347.) Unjust enrichment has also been characterized as describing the result of a failure to make restitution.... (Dunkin, supra, 82 Cal.App.4th at p. 198, fn. 15, 98 Cal.Rptr.2d 44, quoting Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448, 9 Cal.Rptr.2d 774 (Lauriedale ).) [¶] There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. (See generally 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, §§ 148150, pp. 218220; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, §§ 112, 118, pp. 137138, 142144.) Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory (an election referred to at common law as waiving the tort and suing in assumpsit). (McBride v. Boughton (2004) 123 Cal.App.4th 379, 38789 (internal quotes omitted).) There may be a basis to allow unjust enrichment to the extent the parties alleged contract is ineffective and Plaintiff tendered $13,000 to Dan and Saeed, but received nothing in return. Thus, the ruling here is again the same as the ruling for the first cause of action. Promissory Estoppel The Demurrer is sustained without leave to amend as to the promissory estoppel claim because Plaintiff pleads consideration in the form of having tendered $13,000. Indeed, a promissory estoppel claim is aimed solely at allowing recovery in equity where a contractual claim fails for lack of consideration . . . . (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 904.) Summary The Demurrers of Dan and Saeed are sustained as to the fifth, sixth, seventh, and ninth causes of action, but are otherwise overruled. Leave to amend is denied. The Demurrers of all other Defendants are sustained, without leave to amend. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

Ruling

Martinez VS Pinterest, Inc.

Jul 10, 2024 |Civil Unlimited (Other Breach of Contract/Warr...) |RG21112456

RG21112456: Martinez VS Pinterest, Inc. 07/10/2024 Hearing on Motion to Continue Motion to Continue Discovery Deadlines; filed by Christine Martinez (Plaintiff) in Department 20Tentative Ruling - 07/08/2024 Karin SchwartzThe Motion to Continue Plaintiffs Notice of Motion and Motion for Continuance of DiscoveryDeadlines; Memorandum of Points and Authorities in Support Thereof filed by ChristineMartinez on 06/04/2024 is Granted in Part.Plaintiff Christine Martinez’s motion to continue the fact discovery deadline is GRANTED INPART.BACKGROUNDOn September 13, 2021, Plaintiff filed a complaint against Defendants Pinterest, Inc., BenSilbermann, and Paul Sciarra. On April 21, 2022, Plaintiff filed a First Amended Complaint,alleging (1) breach of implied contract, (2) breach of implied contract (idea theft), (3) unjustenrichment, (4) conversion, and (5) unfair business practices.On February 8, 2024, the Court appointed the Hon. James Warren (ret.) as the Discovery Refereein this action pursuant to the parties’ stipulation. The Court modified the appointment pursuant tothe parties’ stipulation to address Judge Warren’s professional and case management fees onMarch 4, 2024. To date, Judge Warren has issued twelve (12) discovery management orders(“DMO”).Plaintiff moves to extend the discovery cut-off deadline to allow the Judge Warren to resolveoutstanding discovery issues regarding the production of documents, Person(s) Most Qualified(“PMQ”) designations, and depositions of percipient witnesses and PMQs. The moving papersoriginally requested an extension to July 14, 2024. On Reply, Plaintiff requests an extension to“mid-August”, but fails to identify a specified date certain. Defendants oppose the motion on thegrounds that there are no remaining discovery disputes, and issues identified in the movingpapers have since been resolved.DISCUSSIONPlaintiff argues that discovery remains outstanding as (1) Defendants must still producedocuments pursuant to various DMOs, and (2) Defendants have failed to designate PMQwitnesses as ordered by Judge Warren. Plaintiff further contends that Defendants have produceda large amount of discovery days before the June 14, 2024 discovery cut-off deadline, whichdeprives Plaintiff of the opportunity to meaningfully review the documents and questionwitnesses as to the import and meaning of such documents as they relate to Plaintiffs’ claims.Plaintiff further contends that there remain deficiencies as to the production of documentsresponsive to Request for Production of Documents Nos. 7-14, 42-43, 46, 53, 79, 81 and 247. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG21112456: Martinez VS Pinterest, Inc. 07/10/2024 Hearing on Motion to Continue Motion to Continue Discovery Deadlines; filed by Christine Martinez (Plaintiff) in Department 20(Reply at pp. 4-5.)Plaintiff argues that Defendants have failed to designate PMQ witnesses as to PMQ Topics 3, 11,15, and 26, pursuant to DMO No. 8. (Reply at p. 6.) Plaintiff further argues that there remainissues regarding the depositions of Defendant Silbermann and Jacob Jessick as PMQ designeeson their respective PMQ topics. (Reply at pp. 7-8.)Defendants’ Opposition, filed on June 26, 2024 (after the close of the discovery deadline)contends that since Plaintiff filed the motion on June 4, 2024, Defendants have provided therequested discovery. While Defendants argue that the discovery referee proceeding is complete(Opp. at p. 13), Plaintiff notes that Judge Warren heard argument on June 25 regarding twodiscovery issues raised by Defendants and on July 2, 2024, Defendants offered to further meetand confer remaining further discovery issues. (Reply at pp. 7-8, fn. 7.) Plaintiff represents thatalthough Judge Warren is out from July 8 – July 29, 2024, he has indicated that he will addressany outstanding discovery issues. (Reply at p. 1.)The Court finds that Plaintiff has established sufficient good cause to extend the discovery cut-off deadline to resolve the current outstanding disputes identified in the moving and reply papers.Thus, Plaintiff’s motion is GRANTED IN PART. The deadline for fact discovery is extended toAugust 9, 2024 but only for the Discovery Referee to resolve disputes identified by Plaintiff’smoving and reply papers. Neither party shall propound any further discovery.This Order shall not be construed as any decision by the Court on the merits as to the remainingdisputed discovery issues.If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, theTentative Ruling will become the order of the court.HOW DO I CONTEST A TENTATIVE RULING?THROUGH ECOURTNotify the Court and all the other parties no later than 4:00 PM one court day before thescheduled hearing, and briefly identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal2. Case Search3. Enter the Case Number and select “Search”4. Select the Case Name5. Select the Tentative Rulings Tab6. Select “Click to Contest this Ruling”7. Enter your Name and Reason for Contesting8. Select “Proceed”BY EMAILSend an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG21112456: Martinez VS Pinterest, Inc. 07/10/2024 Hearing on Motion to Continue Motion to Continue Discovery Deadlines; filed by Christine Martinez (Plaintiff) in Department 20court day before the scheduled hearing. This will permit the department clerk to send invitationsto counsel to appear remotely.BOTH ECOURT AND EMAIL notices are required.

Ruling

PVOM LLC VS LTG SOUTH HILLS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Jul 11, 2024 |24PSCV01041

Case Number: 24PSCV01041 Hearing Date: July 11, 2024 Dept: 6 CASE NAME: PVOM LLC v. LTG South Hills LLC, et al. 1 Defendant LTG South Hills LLCs Demurrer to Plaintiffs Complaint; 2 Defendant LTG South Hills LLCs Motion to Strike Portions of Plaintiffs Complaint; and 3 Defendants LT Management Group and Shao Xing Max Yangs Demurrer to Plaintiffs Complaint TENTATIVE RULING The Court OVERRULES Defendant LTG South Hills LLCs demurrer to the First and Second Causes of Action. The Court DENIES Defendant LTG South Hills LLCs motion to strike portions of the complaint. The Court SUSTAINS Defendants LT Management Group and Shao Xing Max Yangs demurrer to the First and Second Causes of Action of the complaint with 20 days leave to amend. Defendants LT Management Group and Shao Xing Max Yang are ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a breach of contract action. On April 2, 2024, plaintiff PVOM LLC (Plaintiff) filed this action against defendants LTG South Hills LLC (LTG), LT Management Group, Shao Xing Max Yang (Shao) (collectively, Defendants), and Does 1 through 50, alleging causes of action for breach of contract and specific performance. On May 3, 2024, LTG filed a demurrer to and motion to strike portions of the complaint. On the same date, LT Management Group and Shao demurred to the complaint. On June 27, 2024, Plaintiff filed oppositions. On July 3, 2024, LTG filed replies. On the same date, LT Management Group and Shao filed a reply. LEGAL STANDARD Demurrer A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; 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 ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Firemans Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) A demurrer can be utilized where the face of the complaint itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The face of the complaint includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Firemans Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleaders allegations as to the legal effect of the exhibits.]) A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) DISCUSSION Demurrer (LTG) Meet and Confer Per Code of Civil Procedure section 430.41, subdivision (a), LTG was required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds LTGs meet-and-confer efforts satisfactory. (Huang Decl., ¶ 2.) First Cause of Action Breach of Contract A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its termsset out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by referenceor by its legal effect. [Citation.] (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) LTG demurs to the First Cause of Action for breach of contract on the grounds that it fails to state a cause of action. LTG contends the complaint lacks specificity and factual support for Plaintiffs breach of contract claim. LTG contends Plaintiff has failed to identify the specific contractual provisions or terms that LTG allegedly breached and that even if the allegations are accepted as true, they fail to state a claim for breach of contract because Plaintiff has not articulated how LTGs alleged conduct constitutes a breach or how LTG has suffered damages as a result. LTG further contends Plaintiff fails to show how, when, where, and by what means the alleged representations and warranties were allegedly false. LTG also contends Plaintiff failed to attach the agreement to the complaint or otherwise articulate specific facts regarding what LTG did or did not do. In opposition, Plaintiff contends it is not required to satisfy a heightened pleading standard here because of modern discovery procedures. Plaintiff cites various paragraphs from the complaint to show that it pleaded sufficient facts to support its breach of contract claim, and notes that it need only plead the legal effect of the contract. The Court finds the complaint alleges sufficient facts to state a cause of action for breach of contract. The complaint alleges that the parties entered into a written contract for the sale of certain commercial property, that Defendants were obligated to perform certain obligations thereunder, such as prorating expenses, providing original accounting records, and transferring tenant files and property plans. (Compl., ¶¶ 8-9.) The complaint further alleges Defendants failed to perform their respective obligations and that Defendants representations were false, resulting in damages to Plaintiff. (Compl., ¶¶ 10-14.) While the Court agrees the complaint could contain more specifics, particularly regarding the representations and warranties in the PSA, Plaintiff correctly contends that a breach of contract claim is not subject to a heightened pleading requirement. (See Code Civ. Proc., § 425.10, subd. (a)(1) [complaint need only allege facts constituting the cause of action in ordinary and concise language]; compare Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [heightened pleading requirements for fraud claims].) The Complaint alleges sufficient facts regarding the failure to accurately prorate expenses, provide original accounting records, and transfer tenant files and property plans. Moreover, Plaintiff need not have attached the written contract to the complaint to state a cause of action for breach of contract. In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. [Citation.] (Constr. Protective Servs., Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) As noted above, the complaint adequately alleges facts to apprise the parties of the contract at issue and what LTG allegedly did or failed to do in connection therewith. (See Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 886.) Based on the foregoing, the Court OVERRULES the demurrer to the First Cause of Action. Second Cause of Action Specific Performance [S]pecific performance and injunctive relief are equitable remedies and not causes of action for injuries. [Citations.] (Mesa Shopping Ctr.-E., LLC v. O Hill (2014) 232 Cal.App.4th 890, 901.) LTG demurs to the Second Cause of Action for specific performance on the grounds that it fails to state a cause of action. LTG contends specific performance is a remedy to a breach of contract, and not a cause of action in and of itself. LTG contends the complaint fails to adequately plead facts demonstrating the inadequacy of monetary damages, which is necessary for injunctive relief like specific performance. LTG contends Plaintiff has monetary damages as an available remedy when specific performance is impracticable or inequitable. LTG further contends the contract must be sufficiently certain to enable the Court to determine what action is required of the parties, and Plaintiff has not demonstrated the terms of the contract are sufficiently clear and enforceable to warrant specific performance. LTG also contends specific performance is an equitable remedy granted at the Courts discretion, and that Plaintiff has not provided sufficient facts or legal arguments to warrant the Courts exercise of discretion in Plaintiffs favor. In opposition, Plaintiff contends the Second Cause of Action is another count of a breach of contract which seeks the remedy of specific performance, and that LTGs argument is one of form over substance. Plaintiff contends the complaint is properly pleaded here, and that certain allegations do not lend themselves to monetary damages, such as the obligation to provide original accounting records and transfer of tenant files and property plans. Plaintiff further contends the inadequacy of the legal remedy has been properly pleaded at paragraph 17 of the complaint and that it is self-evident here what contractual terms are sought to being enforced. Plaintiff then contends whether this equitable remedy is discretionary is beyond the scope of a demurrer. The Court agrees that specific performance is a remedy for breach of contract, not a cause of action. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 49; Miller v. Dyer (1942) 20 Cal.2d 526, 531; Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.3d 571, 575. A plaintiff seeking performance of a contract must demonstrate: "(1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract." (Tamarind 143 Cal.App.3d at 575.) As such, the specific performance remedy must be tethered to a breach of contract. As discussed above, Plaintiff adequately pled a cause of action for breach of contract. Plaintiff also adequately pled a claim for specific performance. (Compl., ¶¶ 7-17.) (See Collins v. Marvel Land Co. (1970) 13 Cal.App.3d 34, 40 (Court held trial court erred in sustaining a demurrer to cause of action for specific performance).) Based on the foregoing, the Court OVERRULES the demurrer to the Second Cause of Action. LEGAL STANDARD Motion to Strike (LTG) Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e). (Code Civ. Proc., § 435, subd. (b)(2).) The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) DISCUSSION Motion to Strike (LTG) Meet and Confer Per Code of Civil Procedure section 435.5, subdivision (a), LTG was required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds LTGs meet-and-confer efforts satisfactory. (Huang Decl., ¶ 2.) Paragraphs 11 and 12 of the Complaint LTG contends paragraph 11 of the complaint is improper because it fails to specify the nature of the alleged failures regarding its obligations under the contract and lacks the necessary factual detail to support a claim for relief. LTG contends paragraph 12 of the complaint is also improper because it is speculative and fails to provide any factual basis or evidence to support the assertion of fraudulent misrepresentation or concealment, and such allegations require a higher standard of pleading. LTG also contends Plaintiffs allegations of false representations is unfounded, improper, speculative, and lack any objective basis. In opposition, Plaintiff contends paragraphs 11 and 12 of the complaint are properly pleaded. Plaintiff contends this is a cause of action for breach of contract, and that the allegations of misrepresentations simply form part of the basis of LTGs alleged breach. The Court does not find these allegations to be improper, but instead form part of the basis for Plaintiffs breach of contract claim against LTG. Paragraph 11 specifically alleges what LTG failed to do under the contract, which is necessary for a breach of contract claim. (See Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) With respect to paragraph 12 of the complaint, the Court agrees that these allegations appear to be in the vein of a fraud claim rather than breach of contract. (See Vill. Northridge Homeowners Assn. v. State Farm Fire & Cas. Co. (2010) 50 Cal.4th 913, 921 [fraud in the inducement].) Nevertheless, the Court finds these allegations provide additional context and support for the breach of contract and are not irrelevant, false, or improper. (See Code Civ. Proc., § 436, subd. (a); Compl., ¶¶ 7-14.) Based on the foregoing, the Court DENIES the motion to strike with respect to paragraphs 11 and 12 of the complaint. Request for Pre-Judgment Interest at the Legal Rate LTG contends Plaintiff has not pleaded sufficient facts to support its demand for prejudgment interest at legal rates. LTG cites Civil Code section 3287, subdivision (a), which provides for recovery of prejudgment interest based on damages capable of being made certain. LTG contends the complaint fails to state the exact amount of damages sought and lacks sufficient factual support to demonstrate that LTG knows the amount owed or could have calculated it based on readily available information. LTG contends prejudgment interest is not a matter of right but rather an equitable remedy that should be granted only when warranted by the circumstances, which Plaintiff has failed to demonstrate here. In opposition, Plaintiff contends uncertainty or inappropriateness of prejudgment interest is not the standard, and that LTGs argument on this point goes to the merits of the action, which is beyond the scope of this motion. Plaintiff contends that this is merely one of the remedies Plaintiff seeks here as supported by its claim, and that there is nothing irrelevant, false, or improper about Plaintiffs prayer for relief. The Court finds LTGs arguments unpersuasive and unavailing. In Stein v. Southern Cal. Edison Co. (1992) 7 Cal.App.4th 565, 573, the Court held that "Where the amount of damages cannot be resolved except by account, verdict or judgment, interest prior to judgment is not allowable." Civil Code section 3287 provides, in pertinent part: (a) A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state. (Civ. Code § 3287(a) (emphasis added).) The plaintiff is entitled to seek an award of pre-judgment interest on his cause of action for breach of contract since, such claim is capable of being made certain by calculation, and his right to recover is vested upon him upon a particular day. He is entitled to recover interest thereon from that day. Nothing more is needed. Moreover, Civil Code section 3287, subdivision (b), provides for recovery of prejudgment interest for unliquidated damage claims. (Civ. Code, § 3287, subd. (b).) The complaint does not need to specify the exact amount of damages sought in order to recover them. A legal dispute concerning the defendant's liability or the proper measure of damages, however, does not render damages unascertainable. [Citations.] (Collins v. City of Los Angeles, supra, 205 Cal.App.4th at p. 151.) While the exact amount Plaintiff may be entitled to could be disputed, the Court could potentially award prejudgment interest under Civil Code section 3287, subdivision (b). Accordingly, the lack of specified amount of damages in the complaint does not render the request for prejudgment interest improper or subject to a motion to strike. Based on the foregoing, the Court DENIES the motion to strike with respect to Plaintiffs request for prejudgment interest on page 4 of the complaint. Request for Specific Performance LTG contends Plaintiff has not pleaded sufficient facts to support a request for specific performance. LTG contends Plaintiffs request for specific performance is insufficient because it fails to establish the elements necessary for equitable relief. LTG contends Plaintiff must demonstrate having satisfied all contractual requirements and that monetary damages are inadequate to remedy the breach, and that Plaintiff has failed to do so. LTG also contends the court must consider equitable factors in determining whether to grant such relief, and that specific performance is inequitable or impractical here. LTG further contends Plaintiff has failed to demonstrate that monetary damages would be inadequate here. In opposition, Plaintiff contends these are the same arguments raised in LTGs demurrer and that such arguments fail for the same reasons set forth in Plaintiffs opposition to the demurrer. Plaintiff contends the complaint is properly pleaded here and that some of the alleged breaches do not lend themselves to monetary damages, such as the obligation to provide original accounting records and transfer of tenant files and property plans. Plaintiff further contends it is self-evident here what contractual terms are being sought to be enforced, and that there is nothing irrelevant, false, or improper about Plaintiffs prayer for relief. The Court finds the complaint alleges sufficient facts to support Plaintiffs request for specific performance. As noted above, the Court finds the complaint alleges sufficient facts to state a cause of action for breach of contract. The subject contract allegedly required LTG to perform certain obligations, such as prorating expenses, providing original accounting records, and transferring tenant files and property plans, and that LTG failed to perform those obligations. (Compl., ¶¶ 9-11.) The complaint also alleges that Plaintiff needs those records from the Defendants for tax, accounting, and reconciliation purposes. (Compl., ¶¶ 16-17.) The court finds these allegations adequately demonstrate the inadequacy of a legal remedy for these items. (See Valley Crest Landscape Dev., Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 492 [party seeking specific performance must allege facts demonstrating inadequacy of legal remedy].) Based on the foregoing, the Court DENIES the motion to strike as to the request for specific performance on page 5 of the complaint. DISCUSSION Demurrer (LT Management Group and Shao) Meet and Confer Per Code of Civil Procedure section 430.41, subdivision (a), LT Management Group and Shao were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds LT Management Group and Shaos meet-and-confer efforts satisfactory. (Huang Decl., ¶ 2.) First Cause of Action Breach of Contract A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its termsset out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by referenceor by its legal effect. [Citation.] (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) LT Management Group and Shao (collectively, Moving Parties) demur to the First Cause of Action for breach of contract on the grounds that it fails to state a cause of action. Moving Parties contend this cause of action fails because it is clear that Moving Parties are not parties to the subject contract. Moving Parties contend the complaint lacks any specific factual allegations indicating their involvement in the contract or the subject property. Moving Parties contend there are no allegations that they were signatories to the contract or that they knew of or participated in the alleged breaches. Moving Parties also contend whether they made any misrepresentations are immaterial. In opposition, Plaintiff contends Moving Parties are alleged in the complaint to be alter egos of LTG. Plaintiff contends the complaint alleges there is a unity of interest and ownership between the Defendants and that Shao is a principal of both LTG and LT Management Group. The Court finds the complaint fails to allege sufficient facts to state a cause of action for breach of contract against Moving Parties. The Court notes that paragraph 8 alleges that Plaintiff and Defendant entered into a written agreement, while paragraphs 9 through 14 refers to Defendants. (Compl., ¶¶ 8-14.) Since Plaintiff alleges that only one Defendant entered into a written agreement and did not attach a copy of the agreement, there are no facts alleged to show the Plaintiff entered into any agreement with Moving Parties. Moreover, the Complaint fails to allege sufficient specific factual allegations that support an alter ego theory of liability against Moving Parties. Based on the foregoing, the Court SUSTAINS the demurrer to the First Cause of Action with leave to amend. Second Cause of Action Specific Performance Moving Parties demur to the Second Cause of Action for specific performance on the grounds that it fails to state a cause of action. Moving Parties contend this cause of action is duplicative of Plaintiffs claim for breach of contract. Moving Parties then reiterate their arguments that Plaintiff has not alleged sufficient facts to state a cause of action for breach of contract since there is no contractual relationship between Plaintiff and Moving Parties. Moving Parties also contend that specific performance is a remedy for breach of contract rather than a standalone claim. Plaintiffs opposition does not address these arguments. Since the Court finds that Plaintiff fails to state a cause of action for breach of contract as to Moving Parties, the Court also finds that the Second Cause of Action fails because specific performance must be tethered to a breach of contract claim. Based on the foregoing, the Court SUSTAINS the demurrer to the Second Cause of Action with leave to amend. CONCLUSION The Court OVERRULES Defendant LTG South Hills LLCs demurrer to the First and Second Causes of Action. The Court DENIES Defendant LTG South Hills LLCs motion to strike portions of the complaint. The Court SUSTAINS Defendants LT Management Group and Shao Xing Max Yangs demurrer to the First and Second Causes of Action of the complaint with 20 days leave to amend. Defendants LT Management Group and Shao Xing Max Yang are ordered to give notice of the Courts ruling within five calendar days of this order.

Ruling

RAUL RAYGOZA VS GENERAL MOTORS LLC

Jul 09, 2024 |21STCV30920

Case Number: 21STCV30920 Hearing Date: July 9, 2024 Dept: 37 HEARING DATE: Tuesday, July 9, 2024 CASE NUMBER: 21STCV30920 CASE NAME: Raul Raygoza v. General Motors MOVING PARTY: Plaintiff Raul Raygoza OPPOSING PARTY: General Motors TRIAL DATE: Post Settlement PROOF OF SERVICE: OK PROCEEDING: Motion for Attorneys Fees, Costs, and Expenses OPPOSITION: 24 June 2024 REPLY: 01 July 2024 TENTATIVE: Plaintiffs Motion for Attorneys Fees is granted in the sum of $20,934.50. No multiplier is awarded. The court declines to rule on the issue of costs. Plaintiff to provide notice. Background On August 20, 2021, Raul Raygoza (Plaintiff) filed a lemon law action against General Motors LLC (Defendant or GM) and Does 1 to 10 with five causes of action: (1) Violation of Civ. Code § 1793.2(d); (2) Violation of Civ. Code § 1793.2(b); (3) Violation of Civ. Code § 1793.2(A)(3); (4) Breach of Express Written Warranty (Civ. Code §§ 1791.2(a), 1794); and (5) Breach of Implied Warranty of Merchantability (Civ. Code §§ 1791.1, 1794, 1795.5). On December 4, 2023, a Notice of Settlement was filed. On April 9, 2024, Plaintiff filed a Motion for Attorneys fees, costs, and expenses. Defendant GM opposes the Motion. The matter is now before the court. Motion for Attorneys Fees, Costs, and Expenses I. Legal Standard Under the Civ. Code § 1794(d), the prevailing party in an action that arises out of the Song-Beverly Consumer Warranty Act is entitled to fees that were reasonably incurred. If the buyer prevails under this section, the buyer shall be allowed by the Court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. (Civ. Code, § 1794(d).)¿¿¿¿¿¿¿ The lodestar method is the primary method for determining a reasonable attorney fee award under Civ. Code § 1794(d).¿ (See Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 818-19.)¿ A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321 [internal quotations omitted].) The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.¿ [citation] The court may also consider whether the amount requested is based upon unnecessary or duplicative work. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)¿ The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.¿(Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.)¿The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.¿(Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)¿¿¿¿¿¿ II. Request for Judicial Notice The court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) Plaintiff requests judicial notice of the following: 1) An Order on attorneys fees and prejudgment interest in the lemon law matter of Abraham Forouzan v. BMW (United States District Court for the Central District of California Case No. 2:17-cv-03875-DMG-GJS), attached as Exhibit 1 to the Declaration of Payam Shahian. 2) An Order on attorneys fees, costs and expenses in the lemon law matter of Joshua Holeman v. FCA (United States District Court for the Central District of California Case No. 2:17- cv-08273-SVW-SK), attached as Exhibit 2 to the Declaration of Payam Shahian. 3) An Order on attorneys fees, costs and expenses in the lemon law matter of Catherine Shepard v. BMW (Los Angeles Superior Court Case No. BC622506), attached as Exhibit 3 to the Declaration of Payam Shahian. 4) Order on attorneys fees and prejudgment interest in the lemon law matter of Jerry Zomorodian v. BMW (United States District Court for the Central District of California Case No. 2:17-cv-5061-DMG(PLAx)), attached as Exhibit 4 to the Declaration of Payam Shahian. 5) Order on attorneys fees and prejudgment interest in the lemon law matter of Zargarian v. BMW (United States District Court for the Central District of California Case No. 2:18-cv-04857-RSWL-PLA), attached as Exhibit 5 to the Declaration of Payam Shahian. 6) April 29, 2021, Minute Order granting plaintiffs Motion for Attorneys Fees, Costs & Expenses in the lemon law matter of Jose Medina v. KMA (Los Angeles Co. Super. Ct., Civil Case No. 19STCV02985) attached as Exhibit 6 to the Declaration of Payam Shahian. 7) May 10, 2021, Tentative Ruling granting plaintiffs Motion for Attorneys Fees, Costs & Expenses in the lemon law matter of Michelle Williams v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC722351) attached as Exhibit 7 to the Declaration of Payam Shahian. 8) Order on attorneys fees in Oscar Millan vs. Kia Motors America, Inc., (Los Angeles Co. Super. Ct., Civil Case No. BC710535) attached as Exhibit 8 to the Declaration of Payam Shahian. 9) March 14, 2022, Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the Song Beverly matter of Jason J. Arnold, et al.. vs FCA US, LLC. Et al. (Los Angeles Superior Court Case No. 19STCV26274) attached as Exhibit 9 to the Declaration of Payam Shahian. 10) Order on Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the matter of Mo Rahman v. FCA US, LLC et al., (United States District Court for the Central District of California Case No. 2:21-cv-02584), attached as Exhibit 10 to the Declaration of Payam Shahian. 11) June 13, 2022, Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Klingenberg v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC709888) attached as Exhibit 11 or the Declaration of Payam Shahian. 12) January 24, 2023, Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Sandra J. Williams et al v. Ford Motor Company (United States District Court for the Central District of California Case No.: 5:21-cv01346-SPG-SHK) attached as Exhibit 12 to the Declaration of Payam Shahian. 13) A true and correct copy of the July 19, 2021, Order in the matter of Hoyt v. FCA, US LLC Orange Co. Super. Ct., Civil Case No. 30-2019-01066585-CU-BC-CJC) is Exhibit 13 to the Declaration of Payam Shahian. 14) April 24, 2023, Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Sergio Proa v. Kia Motors America Inc. (Los Angeles Co. Super. Ct. Civil Case No. BC716647) attached as Exhibit 14 to the Declaration of Payam Shahian. 15) July 6, 2023, Minute Order in Francisco Rodriguez and Norma Rodriguez v. Hyundai Motors America. (Los Angeles Co. Super. Ct. Civil Case No. 21STCV01655) (July 6, 2023) attached as Exhibit 15 to the Declaration of Payam Shahian 16) October 16, 2023, Minute Order in Charles Steven Sedlacek IV v. General Motors, LLC (Los Angeles Co. Super. Ct. Civil Case No. 21STCV23811) (October 16, 2023) attached as Exhibit 16 to the Declaration of Payam Shahian. 17) Order on attorneys fees in Holcomb v. BMW of N. Am., LLC, Case No. 18CV475JM(BGS) 2020 WL 759285 (S.D. Cal. Feb. 14, 2020) attached as Exhibit 17 to the Declaration of Payam Shahian. Plaintiffs request for judicial notice is granted. III. Evidentiary Objections Plaintiffs evidentiary objections to the Gavrilescu Declaration are overruled. IV. Discussion Plaintiff moves for attorney fees and costs as the prevailing party pursuant to a signed CCP § 998 Offer and under the Song-Beverly Act. Plaintiffs counsel, Strategic Legal Practices, APC (SLP) requests attorneys fees and costs consisting of 1) $26,845.50 in attorney fees for SLP (2) a 1.35 multiplier enhancement on the attorney fees totaling $9,395.93 and (3) $1,296.86 in costs and expenses. In addition, for filing this fee Motion and in anticipation of responding to Defendant GMs opposition, Plaintiff seeks an additional $3,500.00 in attorneys fees. A. Reasonable Hourly Rates In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of fees customarily charged by that attorney and others in the community for similar work. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.].)¿¿¿¿ SLP asserts that [a]lthough 14 SLP attorneys and 2 law clerks were staffed on this case, only 7 attorneys (David Berschauer, James Carroll, Christian Castro, Tionna Carvalho, Regina Liou, Ian McCallister, and Hannah Theophil) accounted for 38.30 hours out of the 57.30 total hours billed (i.e. around 70%) with other attorneys performing non-duplicative tasks[.] (Motion, at p. i, fn. 1.) The hourly billing rates of SLP are as follows: Elina Amirian 2022 rate is $375.00/hour Admitted 2021 Oliva Avelino 2023 rate is $595.00/hour Admitted 2007 David Berschauer 2022 rate is $520.00/hour Admitted 1991 Hector Calderon 2022 rate is $285.00/hour Law Clerk Eve Canton 2023 rate is $295.00/hour Law Clerk James Carroll 2022 & 2023 rate is $595.00/hour Admitted 2006 Christian Castro 2024 rate is $475.00/hour Admitted 2013 Tionna Carvalho 2023 rate is $570.00/hour and 2024 rate is $595.00/hour Partner, Admitted 2014 Mark Gibson 2021 rate is $475.00/hour Admitted 2008 Chrisine Haw 2023 rate is $500.00/hour Admitted 2013 Regina Liou 2023 rate is $475.00/hour Admitted 2007 Ian McCallister 2023 rate is $595.00/hour - Admitted 1998 Debora Rabieian 2022 rate is $410.00/hour and 2023 rate is $435.00/hour Admitted 2017 Nino Sanaia 2022 rate is $385.00/hour Admitted 2022 Hannah Theophil 2022 rate is $360.00/hour Received JD in 2019 Sanam Vaziri 2022 rate is $610.00/hour Admitted 1995 (Shahian, ¶¶ 44 -77, Ex. 18.) Having examined SLPs evidence submitted in support of its hourly rates, the court finds that SLP has shown that courts have approved SLPs billing rates, including $610.00 for Sanam Vairi. (See Shahian Decl. Ex. 16.) The court finds that the cases referenced in the Declaration of Payam Shahian are sufficient to show that SLPs hourly billing rates ranging from $285 to $585 and $610 for Sanam Vairi are reasonable. (Shahian Decl. Ex. 1 -16.) No deductions will be made to SLPs requested hourly rates. B. Time Reasonably Spent on the Litigation In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Lunada Biomedical v. Nunez¿(2014) 230 Cal.App.4th 459, 488, citing Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163¿Cal.App.4th¿550, 564.) The court will exercise its discretion in determining if the Plaintiffs attorneys fees request is reasonable by considering the following factors: the nature of litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)¿¿ SLP asserts that they reasonably spent about 57.30 hours totaling $26,845.50 in fees litigating this action. Defendant GM specifically objects to billing entries incurred after November 10, 2023, when GM served its second CCP § 998 Offer. (Gavrilescu Decl. ¶ 8; Castro Decl. ¶ 34.) Plaintiff accepted the 998 Offer on November 30, 2024, but between November 10 and November 30, Defendant GM asserts that SLP billed 11.7 hours ($6,530.00) for drafting templated trial documents, motions in liminie (MIL), and opposition, constitution 34% of the total fees sought. (Opposition at p. 3:5-6; see also Shahian Decl. Ex. 18 at p. 2.) SLPs billing records reflect that SLP did not review that 998 Offer until November 30, 2024. (Shahian Decl. Ex. 18 at p. 2.) Defendant GM also objects to the following billing entries: a) 08/18/2021 Complaint: SLP billed 2.0 hours to draft the Complaint, but it should have been completed in 0.5 hour because SLP used a template. (Gavrilescu Decl. ¶ 3, Ex. A-B.) Having reviewed the Gavrilescu Declaration, the court finds that SLP relied on a template Complaint that contained the same allegations against GM but with varying facts about when the wrongful conduct was discovered and the year, make and model of the subject vehicle. (Gavrilescu Decl. ¶ 3, Ex. A-B.) The court finds that SLP should have spent no more than 1.5 hours drafting the Complaint. The court will deduct 0.5 hours billed at a rate of $475.00/hour, or $237.50, from the lodestar. b) 2/07/2022- Written Discovery Responses: SLP billed 3.3 hours to draft Plaintiffs discovery responses, but it should only have taken no more than 0.5 hour because Plaintiffs responses were templated objections identical to other responses SLP responded to in other cases against GM. (Gavrilescu Decl. ¶ 5, Ex. C-D.) Having reviewed the written discovery responses, the court agrees that SLP used templated responses that required minimal changes. Accordingly, the court deducts 1.3 hours billed at a rate of $595.00/hour, or $773.50, from the lodestar. c) 2/14/2022 & 04/14/2022 Discovery Request to GM: SLP billed 6.2 hours to draft, review, and finalize the discovery requests to GM but it should have taken no more than 0.5 hour to change the caption and edit the document since SLP has edited similar documents. (Gavrilescu Decl. ¶¶ 6-7, Ex. E-H.) Having reviewed the SLPs discovery request, the court finds that deductions are warranted. The court deducts, 2.3 hours billed at a rate of $520.00/hour, or $1,196.00, from the lodestar d) 2/17/2022; 11/03/2022; 2/17/2023; & 11/28/2023 Block Billing for Preparing and Attending Status Conference and Drafting Hearing Outcome Memos: Amirian, Avelino, Vaziri, and McAllister billed 4.4 hours for preparing and attending the CMC, PMSC, and FSC and drafting a hearing outcome memo. Defendant GM asserts the fee should be reduced by half due to block billing. The court finds that SLP overbilled the time spent preparing, attending, and drafting an outcome memo for the CMC, PMSC, and FSC. The court makes the following deductions: 0.4 hours billed at a rate of $375.00 for the 02/17/2022 hearing, or $150.00 0.3 hours billed at a rate of $610.00 for the 11/03/2022 hearing, or $183.00 0.1 hours billed at a rate of $595.00 for the 02/27/2023 hearing, or $59.50 Accordingly, $392.50 will be subtracted from the lodestar. e) 11/10/2023 & 11/13/2023 In Limine Motions and Opposition: McCallister and Carvalo billed a total of 6.5 hours in drafting, reviewing, and finalizing templated in-limine motions and oppositions to GMs standard MIL. Defendant GM asserts the billed amount is unreasonable and SLP used motion templates and opposition. (Gavrilescu Decl. ¶ 9, Ex. I-J.) GM asserts it should have taken a total of 2.0 hours to complete this task. SLPs billing records reflect that it took two days to review GMs CCP § 998 Offer, communicate the offer to Plaintiff, and sign the Offer. (Shahian, Ex. 18.) Yet, neither party disputes that the CCP § 998 Offer was given to Plaintiff on November 10, 2023. (Gavrilescu Decl. ¶ 8; Castro Decl. ¶ 34.) SLP fails to explain why it waited until November 30, 2023, to review the 998 Offer. Had SLP diligently reviewed or contemplated the 998 Offer sooner, the trial preparation that was billed after November 10, 2023, would have been unnecessary. Accordingly, the court finds that the time spent reviewing and finalizing MIL and drafting trial documents was not reasonably incurred nor necessary for the conduct of the litigation, and deductions are warranted. Accordingly, $2,014.00 will be deducted from the lodestar. The court finds that no other deductions are warranted pertaining to trial documents and trial notices as those fees were reasonably incurred. f) 12/04/2023 Prepare for Vacated Final Status Conference: Defendant GM asserts that the .8 hours billed was unnecessary because Plaintiff had accepted the 998 Offer, and the hearing was vacated by the court. SLPs opposition fails to address the contention that preparation for the FSC hearing was unnecessary because Plaintiff had already accepted the 998 Offer. Accordingly, $380.00 will be subtracted from the lodestar. g) 4/08/2024 Attorneys Fee Motion: Defendant GM asserts that SLP should not have billed 7.2 hours preparing this fee Motion because the Motion is similar to other fee motions filed against GM. (Gavrilescu Decl. ¶ 10, Ex. I.) GM asserts that it is unreasonable for SLP to estimate billing for 7.3 hours spent reading the opposition, preparing a reply, and preparing for the hearing. GM asserts SLP should have spent 3.0 hours preparing the fee Motion, reviewing the opposition, and preparing a reply. SLPs moving papers reflect that SLP expects $3,500.00 for reviewing GMs opposition to this motion, drafting a reply, and attending the hearing. (Motion at p. 2:7-9.) This is on top of the 7.20 hours billed at a rate of $475.00/hour spent preparing this fee motion and supporting documents. (Shahian, Ex. 18.) The court reviewed the supporting papers attached to the Shahian Declaration and found that many of the cases cited as exhibits failed to show the hourly rates of the SLP attorneys who worked in this case and were inapplicable. The court also finds that Defendant GM has shown that SLP relied on a template in drafting the fee motion. Taken together the court finds a deduction is warranted. It should have taken SLP at most 5.0 hours to draft this fee Motion, review the opposition, write a reply, and prepare for a hearing. Accordingly, of the 14.3 hours spent on this fee Motion, the court deducts 9.3 hours billed at a rate of $475.00, or $4,417.50 from the lodestar. In total $9,411.00 will be deducted from the lodestar. C. Request for Multiplier The lodestar amount may be adjusted by the court based on factors including (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.¿ (Bernardiv. County of Monterey (2008) 167 Cal.App.4th 1379, 1399, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)¿ The purpose of any lodestar and the increase thereto is intended to approximate market-level compensation for such services and is entirely discretionary.¿ (Id.)¿The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.¿ (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.)¿¿¿¿ SLP requests a multiplier of 1.35 or $9,395.93 on the basis that SLP took this case on a contingency fee basis with no guarantee of recouping the costs expended in bringing this action. Moreover, SLP asserts that it obtained an excellent outcome. The court finds that the results of this case are not exceptional and awarding a multiplier is not warranted because the time and skill of counsel, as well as the contingent nature of the representation, are compensated with high fees. Plaintiffs counsel also failed to show how this case is different from other lemon law actions or presented new or complex issues that made this case particularly hard to litigate.¿¿¿¿ ¿¿¿ Accordingly, Plaintiffs request to award a multiplier is denied. D. Reasonable Costs and Expenses A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case. (CRC, rule 3.1700(a); see also Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927928.) Defendant GM asserts that the court should not award costs because no memorandum of costs has been filed. Plaintiffs moving papers fail to address why a memorandum of costs is not necessary and Plaintiffs reply asserts requiring a memorandum of costs would be a waste of the courts time. Plaintiff fails to show that a memorandum of costs is not necessary. Plaintiffs request for $1,296.86 in costs is supported only by SLPs billing system, with no verification from counsel that the costs incurred were reasonably incurred, necessary, and allowable. Moreover, Plaintiff did not seek to file a memorandum of costs until July 1, 2024. The memorandum of cost seeks $1,615.71 in costs. The court declines to award costs at this time to allow Defendant GM to review the memorandum of costs and decide if it will move to tax or strike costs. E. Adjusted Lodestar Plaintiffs unadjusted lodestar consists of (1) $26,845.50 in attorney fees for Strategic Legal Practices, APC (SLP); (2) a 1.35 multiplier enhancement on the attorney fees (or $9,395.93); (3) $1,296.86 in costs and expenses for SLP; and (4) an additional $3,500.00 in attorneys fees related to this fee motion. $26,845.50 + $3,500.00 = $30,345.50 $30,345.50 - $9,411.00 = $20,934.50 From the total attorney fee request of $30,345.00, the court deducts $9,411.00, resulting in an adjusted lodestar of $20,934.50. No multiplier is awarded. The court declines to award costs at this time. Accordingly, Plaintiffs request for attorneys fees is granted in the sum of $20,934.50. Conclusion Plaintiffs Motion for Attorneys Fees is granted in the sum of $20,934.50. No multiplier is awarded. The court declines to rule on the issue of costs. Plaintiff to provide notice.

Ruling

Fresno Community Hospital and Medical Center vs. Sante Physicians IPA Medical Corporation

Jul 10, 2024 |22CECG04105

Re: Fresno Community Hospital & Medical Center v. Santé Physicians IPA Medical Corporation Superior Court Case No. 22CECG04105Hearing Date: July 10, 2024 (Dept. 502)Motion: By Plaintiff for Summary Adjudication By Defendant for Summary JudgmentTentative Ruling: To deny plaintiff Fresno Community Hospital & Medical Center dba CommunityHealth System’s (“FCHMC” or “CHS”) motion for summary adjudication of the breach ofcontract cause of action. To grant summary adjudication of the following affirmativedefenses pled by Santé Physicians IPA Medical Corp.’s (“Santé”): unclean hands, waiver,estoppel, failure to state a cause of action, lack of specificity, and failure to mitigatedamages. To deny as to the statute of limitations, laches … affirmative defenses. (CodeCiv. Proc., § 437c, sud. (f)(1).) To deny Santé’s motion for summary judgment. (Code Civ. Proc., § 437c, subd.(c).)Explanation: In this action plaintiff Fresno Community Hospital & Medical Center sues to recoverover $2m for contracted reimbursement for medical services provided to Santé’sinsureds. The contract at issue was initially entered into between Santé and CommunityHospitals of Central California (“CHCC”), and according to plaintiff the contract wassubsequently assigned by CHCC to CHC. The parties have filed competing motions forsummary judgment or adjudication. Santé’s Motion Santé moves for summary judgment on the ground that Paragraph 9(b) of theAgreement (to which the amendment relates) mandates that "[t]his Agreement shall notbe … assigned by either party without the express written consent of the other party."(UMF 3.) Santé contends that no such written consent was ever provided. While CHSalleges that CHCC "assigned its rights and obligations to the Agreement to CHS"(Complaint at 6:27-28, 2), Santé has never provided express written consent to theassignment by CHCC to CHS of the Agreement. (UMF 5.) The Exhibit I amendment, aswith the original Agreement and all amendments thereto, was drafted by CHCC and/orby CHS, not by Defendant. Exhibit I states that "the original Agreement was entered intoby and between CMC and SCP [a.k.a. Santé Community Physicians IPA MedicalCorporation], effective April 1, 1996 . . ." Thus, Santé argues, the new designation for thecontracting party, Community Medical Centers, was stated to be the party that enteredinto the original Agreement in April 1996. As a result, there was nothing in theamendments that alerted Defendant that a new separate corporate entity wasreplacing CHCC. Santé points out, nonassignability clauses in contracts are enforceable. (Parkinsonv. Caldwell (1954) 126 Cal. App. 2d 54; Benton v. Hofmann Plastering Co. (1962) 207Cal.App.2d 61, 69.) Paragraph 9(b) of the Agreement requires that, before theAgreement may be assigned, express written consent from the other party to thecontract must be obtained. CHS points out that Santé’s moving papers omit reference to two criticalamendments - in a 2005 amendment, Santé consented to assignment of the agreementfrom Community Hospitals of Central California (“CHCC”) to FCHMC and then, for goodmeasure, reiterated that consent in a 2022 amendment. After CHCC’s alleged assignment of its rights under the Agreement that is thesubject of this dispute to FCHMC pursuant to a 2005 amendment, Santé and CHSsubsequently amended the underlying agreement on numerous occasions. Each of theamendments after 2005 indicates the parties to the amendment are Santé and FCHMC(or one of its dbas). For example, the March 1, 2006 amendment contains the followingopening paragraph and signature block: Community Medical Centers (“CMC”) and Community Health Systems (“CHS”)are dbas of FCHMC. (CHS’s AMF 2.) The January 1, 2009, reflects the same: Given that Santé signed multiple amendments to the Agreement with plaintiff’sdba, there is a triable issue as to Santé’s intent to consent to the assignment, even if therewas no specific assignment document. Other than requiring written consent, theAgreement does not prescribe any specific form for it to be transferred, delegated, orassigned. At issue in this litigation is a 2015 amendment to the Agreement entered intobetween Santé and CHS, which Santé’s President de Soto executed on behalf of Santé. Moreover, on December 15, 2022, the parties amended the Agreement toterminate the 2015 amendment. This 2022 amendment acknowledged that CHCCpreviously assigned its rights and obligations under the agreement to CHS: De Soto denies signing the 2022 amendment, which creates a triable issue ofmaterial fact as to whether the assignment was consented to in writing as required bythe Agreement. Evidence that Santé signed amendments with plaintiff’s dba as the partyon the other side of the agreement, and the 2022 acknowledgement of the assignment,are at least enough to raise a triable issue. The court does not find persuasive Santé’s reply argument that use of the “presentperfect tense” verbiage “has assigned” means that the assignment was prospectiveonly, as opposed to recognizing that an assignment occurred in the past. Accordingly, the court intends to deny Santé’s motion, and overrule the threeobjections by plaintiff to the De Soto declaration. The court declines to impose sanctionspursuant to Code of Civil Procedure section 437c, subdivision (j), as the de Sotodeclaration does not appear to have been presented in “bad faith or solely for thepurpose of delay.” CHS’s Motion CHS moves for summary adjudication of its second cause of action for breach ofcontract, and for summary adjudication of each affirmative defense set forth in Santé’sAnswer. In order to prevail on a breach of contract claim, the moving party must establish(1) existence of the contract, (2) plaintiff’s performance thereon, (3) breach of thecontract, and (4) damages to plaintiff as a result of the breach. (CDF Firefighters v.Maldonado (2008) 158 Cal.App.4th 1226, 1239.) The 2015 amendment provides that Santé shall pay CMC (a dba for FCHMC) $4.69PMPM for every pediatric member for pediatric services rendered pursuant to theamendment. It is undisputed that Santé never made any pediatric capitation paymentsowed under the amendment. There is no dispute that the 2015 amendment was validlyexecuted. One of the primary grounds for Santé’s opposition is that, as argued in Santé’sown MSJ, it never consented to the assignment of the Agreement to CHS. Assignment As discussed above, there are triable issues as to whether Santé consented to theassignment. Plaintiff’s PMK witness concerning when the assignment between CHCC andCHS occurred, Brandon Burnett, testified that it was by way of the November 1, 2005amendment (De Soto Decl., Exh. C) that the assignment by CHCC to CHS of the ProviderAgreement was accomplished. But the 2005 amendment does not expressly mention anassignment between CHCC and CHS; rather, on its face, it only announces CHCC's namechange to Community Medical Center1. Santé’s contention that this language merelyannounces that CHCC has undergone a name change is not implausible. A namechange is not necessarily the same as an assignment of contractual rights from one entityto another. CHS relies heavily on the 2022 amendment, arguing that it establishes Santé’swritten consent to the assignment. There is a triable issue on this contention, as De Sototestified and maintains that he never reviewed and signed the December 2022amendment, that the preprinted stamp of his signature was never authorized by him tobe placed on the document, and the handwritten date next to his signature is not in hishandwriting. Whether this testimony is credible or not, it does raise a triable issue of fact.As this is the primary document that would constitute consent to the assignment, and itis disputed that it was executed by Santé, there exists a triable issue of material fact. Dueto the triable issues relating to the assignment, the motion should be denied as to thecause of action for breach of contract. It is unnecessary to address Santé’s contentionthat the amendment was never implemented (though the court notes that there is noimplementation language in the agreement). Plaintiff’s Breaches In the opposition, Santé contends that plaintiff’s own breaches of the Agreementraise a triable issue of fact concerning whether its non-performance excuses Santé’salleged non-performance. "When a party's failure to perform a contractual obligationconstitutes a material breach of the contract, the other party may be discharged fromits duty to perform under the contract. Normally the question of whether a breach of anobligation is a material breach, so as to excuse performance by the other party, is aquestion of fact." (Brown v. Grimes (2011) 192 Ca1.App.4th 265, 277-278.) Santé contends that CHS failed to perform several of its obligations under thecontract, including failure to disclose to Santé: 1) that malpractice lawsuits had beenfiled against it (Burnett Depo. 205:16 – 206:6, 205:4-15); 2) that a significant modificationin its liability insurance had occurred in 2018 (Burnett Depo. 209:16-25, 210:1-3); and 3)that it had been subjected to various disciplinary proceedings in before the Departmentof Public Health (Burnett Depo. 225:9-16, 221:11-16). Under paragraph (2)(f) of the1"WHEREAS, the parties have agreed to change the Provider name of Community Hospitals ofCentral California to Fresno Community Hospital & Medical Center d/b/a Community MedicalCenters."(De Soto Decl., Exh. C.)Provider Agreement, plaintiff was required to give notice within three days of any suchoccurrence. However, Santé fails to show that the parties’ respective obligations are notindependent of one another. (See Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172,1182-83 [“If the parties’ obligations are independent, the breach by one party does notexcuse the other party’s performance. Instead, the nonbreaching party still must performand its remedy is to seek damages from the other party based on its breach of thecontract.”]) Nothing in the Agreement conditions payment on CHS’s disclosureobligations. The parties’ respective alleged breaches do appear independent, andCHS’s breaches would not appear to excuse Santé’s own breaches. This issue does notcreate a triable issue of material fact. Damages Damages are an “essential element” of a breach of contract claim. (Belmke v.State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1468.) Plaintiff contends that the damages are undisputed and easily established byreference to documents produced by Santé in this action. Based on Defendant’s ownrecords of monthly pediatric member totals, as produced in this action, CHS’s damagesover the four-year limitation period total $2,023,350.42. Santé contends that the claim for $2,023,350.42 in contract damages fails to takeinto account the expenses that were saved when the parties decided not to implementthe 2015 Amendment. Santé contends that “a breach of contract plaintiff ‘must show loss of netpecuniary gain, not just loss of gross revenue.’ Kids' Universe v. In2Labs (2002) 95Cal.App.4th 870, 884.” However, Kids’ Universe was addressing the issue of lost profitsdamages. That is not what plaintiff is seeking here. It is simply seeking the moneys thatSanté was (allegedly) obligated to pay under the Agreement. Santé attempts to dispute the damages amount by arguing that CHS failed tomitigate its damages. “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffersdamage as a result of ... a breach of contract ... has a duty to take reasonable steps tomitigate those damages and will not be able to recover for any losses which could havebeen thus avoided.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691,32 Cal.Rptr.2d 329.) Under the doctrine, “[a] plaintiff may not recover for damagesavoidable through ordinary care and reasonable exertion.” (Ibid.) However, “[t]he dutyto mitigate damages does not require an injured party to do what is unreasonable orimpracticable.” (Ibid.) “Whether a plaintiff acted reasonably to mitigate damages ... is a factual matter to be determined by the trier of fact.” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp. U.S.A. (2013) 221 Cal.App.4th 867, 884, 164 Cal.Rptr.3d 811.) The burden of proving a plaintiff failed to mitigate damages is on the defendant. (Ibid.) Here, the trial court concluded the Gavras did not carry that burden. Therefore, the question on appeal is whether there was “ ‘ “uncontradicted and unimpeached” [evidence] “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support” ’ ” the finding that Agam failed to mitigate his damages. (Sonic, supra, 196 Cal.App.4th at p. 466, 126 Cal.Rptr.3d 301.)(Agam v. Gavra (2015) 236 Cal.App.4th 91, 111.) Santé argues that plaintiff should have sought to mitigate its damages by, withina few months of not receiving payment, alerting Santé that it was in breach instead ofwaiting years to raise the issue. However, plaintiff submits that it did not discover that Santé was not paying thecapitation payments associated with pediatric enrollees (although it was paying forservices rendered to adult patients) until late 2022 (Burnett Decl., ¶ 26), and it promptlyfiled suit. Santé does not show that plaintiff should have discovered the lack of pediatriccapitation payments sooner. Given that Santé’s only argument is that it should havebeen notified sooner, without any evidence relating to the reasonableness of when theissue was in fact raised, the motion is not denied on this ground. Santé’s affirmativedefense of failure to mitigate damages is shown to lack merit, and Santé does not showthe existence of a triable issue of material fact. Summary Adjudication of Affirmative Defenses Plaintiff moves for summary adjudication of eight affirmative defenses. First Affirmative Defense: Statute of limitations The court cannot grant summary adjudication of the statute of limitationsaffirmative defense. As both parties point out, the applicable statute of limitations for anaction on a written contract is four years. (Code Civ. Proc., § 337, subd. (a).) But theaffirmative defense would also apply to the cause of action for accounting, which is notaddressed in the moving papers. Moreover, though in the motion for summary adjudication plaintiff only seeksdamages for the four years preceding filing this action, the operative complaint filed onDecember 21, 2022 seeks damages going back to January 2015, nearly eight years.(Complaint ¶ 39.) Accordingly, the court cannot find that no damages sought in theComplaint would be barred by the statute of limitations. Second Affirmative Defense: Laches CHS contends that the equitable defense of laches has no application to a suitfor damages for breach of contract. (See In re Marriage of Parker (2017) 14 Cal.App.5th681, 687 [“The doctrine of laches is to actions in equity what statutes of limitations are toactions in law.” (citation omitted)].) However, the case does not hold or show that thedefense has no application here. CHS argues that it could not have unreasonably delayed bringing suit given thatthis suit was brought within the applicable statute of limitations, citing David Welch Co.v. Erskine & Tulley (1988) 203 Cal.App.3d 884, 893. But as pointed out above, some of thedamages sought in the Complaint are beyond the statute of limitations. As these are the only arguments raised specifically as to the laches defense, themotion should be denied on this defense. Third Affirmative Defense: Unclean Hands The third affirmative defense alleges that the alleged unclean hands conduct"includes but is not limited to . . ." other unconscientious conduct that would support anunclean hands defense. Santé contends that this conduct includes CHS's "lying in wait"by intending to enforce a 2015 Amendment while otherwise acting like it did not intendto enforce the 2015 Amendment and by not performing all of the covenants required ofit under the Outpatient Provider Agreement. (See Response to UMF 25.) “Any conduct that violates conscience, or good faith, or other equitablestandards of conduct is sufficient cause to invoke the doctrine.” (Kendall-Jackson WineryLtd. v. Superior Court (1999) 76 Cal.App.4th 970, 979.) As the moving papers point out, a three-pronged test is used to determine whethera plaintiff’s unclean hands conduct is a bar to the claim for relief: (i) the existence ofanalogous case law, (ii) the nature of the misconduct, and (iii) the relationship of themisconduct to the claimed injuries. (East West Bank v. Rio School Dist. (2015) 235Cal.App.4th 742, 751.) CHS challenges the first prong of the test – the existence of analogous case law.(See, id. at pp. 751-52 [finding of no analogous case law “is sufficient to warrant the denialof the defense . . . as a matter of law”].) Though Santé acknowledges this argument, itcites to no analogous case law. (See Supp. Oppo. 6:9-16.) Accordingly, summaryadjudication of this defense should be granted. Fourth Affirmative Defense: Waiver Section 20 of the Agreement (“No Waiver”) provides: “No waiver, whether expressor implied, or [sic] any breach of a provision of this Agreement will be deemed to be awaiver of any other provision or waiver of a subsequent breach of the same provision.”(UMF 26.) However, as the opposition points out, “Even a waiver clause may be waivedby conduct.” (Bettelheim v. Hagstrom Food Stores, Inc. (1952) 113 Cal.App.2d 873, 878.) Accordingly, the “No Waiver” clause is not dispositive. The affirmative defense argues that CHS “voluntarily and knowingly waived its rightto assert the contract and accounting claims . . . by not asserting its alleged claims . . .for years without ever complaining about Defendant’s alleged non-performance.”However, Santé cites to no authority providing that simple delay in raising the issue of analleged breach of contract constitutes a knowing and intentional waiver. Such a delayin bringing a claim is appropriately raised in the context of a statute of limitations defense,which would operate to limit CHS’s damages. The court intends to grant summaryadjudication of this affirmative defense. Fifth Affirmative Defense: Estoppel The elements of equitable estoppel are “(i) the party to be estopped must beapprised of the facts; (ii) he must intend that his conduct shall be acted upon, or must soact that the party asserting the estoppel has a right to believe it was so intended; (iii) theother party must be ignorant of the true state of facts; and (iv) he must rely upon theconduct to his injury. The detrimental reliance must be reasonable.” (Schafer v. City ofL.A. (2015) 237 Cal.App.4th 1250, 1261.) Santé does not identify what “words or conduct” on the part of CHS causeddefendant to believe it need not fulfill its explicit contractual obligations under the 2015Amendment. Defendant must show that it relied “upon [plaintiff’s] conduct to his injury.”CHS points to evidence that it did not discover that Santé was not paying pediatriccapitation payments until late 2022, just before filing the Complaint. (UMF 16-19.) What the defense comes down to is Santé’s contention that CHS should haveinformed Santé of its own breach at a time earlier than it did. While, as pointed out above(and implicitly recognized by CHS), much of the damages alleged in the Complaintwould be barred by the statute of limitations, Santé points to no contractual provision orlegal authority requiring notification of the breach at any particular time. The courtintends to grant summary adjudication of the estoppel affirmative defense. Santéidentifies no actual action or communications from CHS that caused Santé to fail to takeaction on the issue of the capitation payments. Sixth and Seventh Affirmative Defenses: Failure to State a Cause of Action and Lack of Specificity However, the supplemental opposition states that these affirmative defenses “canbe eliminated.” (Supp. Oppo. p. 10, fn. 3.) Accordingly, the court intends to grantsummary adjudication of these defenses. Eighth Affirmative Defense: Failure to Mitigate Damages The court intends to grant summary adjudication of this affirmative defense for thereasons discussed above. Objections The court intends to rule as follows on CHS’s objections to the opposition evidence: Plaintiff’s objections to De Soto Declaration: overrule objections 1, 2 (parts of thematerial referenced may be objectionable, but the objection includes parts to which noobjection should be sustained), 3, 5, 6, 7, 8, 9; sustain objection 4. Plaintiff’s objections to Rafferty Declaration (Whelan Decl. Exh. A): overruleobjections 2, 3, 4; sustain objection 1. The court will not consider the extensive evidence submitted with the reply. (SeeNazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249, 252; San Diego Watercrafts,Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312-313, 316.) Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 07/05/24 . (Judge’s initials) (Date)

Ruling

JAMES DENSLEY VS CALIFORNIA STATE LOTTERY COMMISSION, A PUBLICLY OWNED ENTITY, ET AL.

Jul 12, 2024 |22STCV13089

Case Number: 22STCV13089 Hearing Date: July 12, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 12, 2024 Case Name: Densley v. California State Lottery Commission Case No.: 22STCV13089 Matter: Motion to be Relieved as Counsel Moving Party: Mark Quigely, counsel for Plaintiff James Densley Responding Party: Unopposed Notice: OK Ruling: If a fully filled-out Form MC-053 is provided, the Motion is granted. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Mark Quigely seeks to be relieved as counsel for Plaintiff James Densley. If counsel brings a fully filled-out proposed order on form MC-053 to the hearing, the Court would rule as follows: the Motion is granted because it meets all requirements of Cal. Rules of Court, Rule 3.1362. The proposed order must have the correct hearing date on it. Moving party to give notice. Attorney is relieved as counsel of record for client effective upon the filing of the proof of service for the Court order (form MC-053) upon the client. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

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