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Chuck Marshall (State Bar No. 236444) MARSHALL LAW FIRM 2121 N. California Blvd., Suite 290 Walnut Creek, CA 94596 Telephone: (925) 575-7105 Facsimile: (855) 575-7105 cdm marshag-law-firm.corn Attorney for DEBBIE R. CANADA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES UNLIMITED CIVIL CASE10 DEBBIE R. CANADA, an individual, Case No.11 Plaintiff,12 COMPLAINT FOR: vs.13 1. VIOLATION OF CONSUMERS A & B MOTOR CARS 1NC., a California LEGAL REMEDIES ACT (CIV.14 corporation; THE GUARANTEE COMPANY CODE ('I('11750 et seq.); OF NORTH AMERICA USA, a Michigan 2. VIOLATION OF BUSINESS AND15 corporation; and DOES 1 through 10, PROFESSIONS CODE SECTION inclusive, 17200, etseq.16 3. FRAUDULENT Defendants. MISREPRESENTATION;17 4. NEGLIGENT MISREPRESENTATION;18 5. VIOLATION OF SONG-BEVERLY CONSUMER WARRANTY ACT19 (CIV. CODE tt 1790, et seq.) (BREACH20 OF THE IMPLIED WARRANTY OF MERCHANTABILITY); and 6. VIOLATION OF MAGNUSON-MOSS21 WARRANTY ACT (15 U.S.C. I'I 2310 et22 seq.) (BREACH OF IMPLIED WARRANTY OF23 MERCHANTABILITY); and 7. VIOLATION OF VEHICLE CODE tt 11711, etseq.2526 DEMAND FOR JURY TRIAL2728 COMPLAINT Plaintiff Debbie R. Canada alleges as follows: 2 INTRODUCTION 1. This complaint concerns unfair and deceptive trade practices in relation to the sale of an automobile. Plaintiff alleges causes of action against both the automobile dealer Defendant A & B Motor Cars inc. (referred to herein as "Dealer" ) —as well as Defendant The Guarantee Company of North America USA, sued herein as Dealer's surety bond holder. 2. Through this complaint, Plaintiff seeks (a) rescission of the purchase10 contract, including the return of the $ 1,800.00 down payment paid to the Dealer, all monthly payments made by Plaintiff under the Schools First Credit Union car12 loan, and payoff/satisfaction of that loan; in return, Plaintiff will return the Car13 to the Dealer in its current condition with no offset for use; (b) $ 13,986.67 in14 inspection and repair costs Plaintiff would not have incurred had the Dealer15 accurately represented the condition of the Car; (c) all other costs or expenses as1617 may be proven at trial; and (d) attorneys'ees and costs as provided for under18 applicable law. Plaintiff also seeks punitive damages from the Defendants for19 the malicious, oppressive, and fraudulent acts against Plaintiff as pleaded below.20 3. Plaintiff also seeks injunctive relief requiring the Dealer to (a) apply21 for and obtain a total loss salvage vehicle title for the Car before selling,22 transferring or otherwise disposing of the Car; (b) reform it's practices to ensure23 it reviews, learns and complies with Uehicle Code sections relating to salvage2425 title requirements in California; and (c) reform its practices to ensure that it26 properly discloses salvage title status of vehicles to potential buyers.27 COMPLAINT28 PARTIES AND VENUE 4. Plaintiff Debbie R. Canada is a California resident of the City of Los Angeles, County of Los Angeles, State of California at all times relevant to this complaint. 5. Defendant A & B Motor Cars Inc. (" Dealer" ) is a California corporation operating as an automobile dealership doing business in the City of Pasadena, County of Los Angeles, State of California. 6. Defendant The Guarantee Company of North America USA is a10 Michigan corporation and is Dealer's bonding and surety company. This claim is made under the Dealer's bond number 95807074, with an effective date of12 April 28, 2018.13 7. Plaintiff does not know the true names and capacities, whether14 corporate, partnership, associate, individual or otherwise, of defendants sued15 herein as Does 1 through 10, inclusive, and thus names them under the1617 provisions of Section 474 of the California Code of Civil Procedure. Defendant18 Does 1 through 10, inclusive, are in some manner responsible for the acts,19 occurrences and transactions set forth herein, and are legally liable to PlaintifF20 and/or they are the alter-ego of the Defendant named herein. Plaintiff will set21 forth the true names and capacities of the fictitiously named Defendants together22 with appropriate charging allegations when ascertained.23 8. All acts of the Defendants'mployees as hereafter alleged were2425 authorized or ratified by the owner or managing agents of Defendants.2627 COMPLAINT28 9. Each Defendant, whether actually or fictitiously named herein, was the principal, agent (actual or ostensible), co-conspirator, or employee of each of the Defendants and in acting as such principal or within the course and scope of such employment, agency, or conspiracy, took some part in the acts and omissions hereinafter set forth by reason of which each Defendant is liable to Plaintiff for the relief prayed herein. 10. Venue is proper in the County of Los Angeles pursuant to California Civil Code II 1780(d) and Code of Civil Procedure II 395, as the cause of action10 arises from a contract executed and performed in Los Angeles County. FACTUAL ALLEGATIONS12 A. The Dealer Sold Plaintiff A Car, But Misrepresented Its13 Accident and Salvage History 11. On April 29, 2022, Plaintiff Debbie R. Canada was in the market for15 a used car.16 12. While searching for a used car she visited Defendant A & B Motor17 Cars, Inc.'s (the "Dealer) used car lot. During her visit, Plaintiff told a Dealer18 salesperson that she was looking for safe and reliable transportation. In response,19 the Dealer showed her a 2016 BMW 228i, VIN WBAI K9CSXGV322830 (the20 ccCar11)2122 13. While discussing the Car with the Dealer, Plaintiff asked whether the23 Car was mechanically sound and whether it had been in any accidents. The24 Dealer represented to Plaintiff that the Car was recently inspected and found to25 be mechanically sound and had only been involved in one minor accident. The2627 COMPLAINT28 Dealer represented to Plaintiff that the Car was adequately repaired and was in excellent condition. In fact, the Dealer's online listing for the Car represented that the "LOW MILEAGE 2016 BMW 228i SPORT CONVERTIBLE WITH DRIVERS ASSIST PACKAGE IS IN EXCELLENT SHAPE[.]" (See a true and correct copy of the Dealer's advertisem*nt copy, highlighted, as part of the enclosed BadVIN VIN history report attached hereto as Exhibit QA. 14. The Dealer also represented the Dealer would include a "dealer warranty" in the sale covering all parts and labor relating to the engine and10 transmission of the Car for 30 days or 1,000 miles. (See a true and correct copy of the Car's Buyers Guide, attached hereto as Exhibit QB.12 15. Satisfied with the Car and the Dealer's representations, Plaintiff13 decided to buy the Car accepting the Dealer's offer consisting of an out-the-door14 price of $ 25,685.90. Ms. Canada agreed to pay $ 1,800.00 to the Dealer as a15 downpayment and finance the rest of the transaction though her own lender1617 (Schools First Credit Union). (See a true and correct copy of the Retail18 Installment Sales Contract (" RISC"), attached hereto as Exhibit .19 16. Having decided on terms for the sale, the Dealer presented Plaintiff20 with the sales paperwork and rushed her through the document review, signing,21 and closing of the transaction. The Dealer frequently showed Plaintiff22 documents with others overlapping them, and thus obscuring sections of those23 documents. Plaintiff trusted the Dealer was being honest and forthcoming about24 the documents and the Car, completed the paperwork, and drove the Car home.2627 COMPLAINT28 B. Plaintiff Discovered The Car's True Accident History And Discovered The Car Was Actually a Salvage Vehicle 17. Within the first two to three months after the purchase, the Car suffered many mechanical problems. Plaintiff complained to the Dealer, but because the Car was outside the 30-day dealer warranty the Dealer refuse to help. 18. In late 2022, Plaintiff took the Car to European Auto Repair (" European" ) in Reseda, California for inspection and repairs. European 9 discovered a variety of mechanical defects (See a true and correct copy of10 European Invoice Nos. 22, 43103, 43282, and 44576, attached hereto as Exhibit11 ~D, which Plaintiff paid $ 3,650.36 to repair.1213 19. European also advised Plaintiff that the Car had been in a serious14 accident, that much of the front end of the Car had been replaced, and that the15 repairs performed were incomplete and shoddy. European also noted that the16 bumper installed on the Car was the wmng bumper for the Car model.17 20. Upset, Plaintiff once again called the Dealer to complain. Once more,18 the Dealer told her that the condition of the Car was PlaintifFs problem and19 refused to help. Unsure what to do, given the Car's continued problems and clear2021 safety issues, Plaintiff replaced the front bumper, related sensors and22 components, and tires to ensure her safety. (See a true and correct copy of23 Invoice No. 44026, attached hereto as Exhibit QE. Ms. Canada paid $ 4,012.1924 for this work.252627 COMPLAINT28 21. In October 2022, the Car continued to have problems related to the severe accident, and Plaintiff took the Car in for more repairs, including replacing the thrust arms, front chock mount and assembly, and AC compressor, condenser and related components at a cost of $ 3,171.21. (See a true and correct copy of European Invoice No. 44740, attached hereto as Exhibit QF. Eventually the Car's transmission failed, also related to the severe trauma suffered by the Car. On April 18, 2024, Plaintiff paid $ 3,152.91 to have the transmission replaced. (See a true and correct copy of European Invoice No. 45964, attached10 hereto as Exhibit ~G. 22. By April 24, 2024, Plaintiff was exhausted with the mechanical and12 safety issues of the Car, so she took the Car to Southbay BMW ("Southbay")13 looking to trade it in. Plaintiff knew the Car's loan would be underwater, but she14 was concerned for her safety and could no longer afford the expense and time15 the Car required. Plaintiff was shocked, however, when Southbay offered her a1617 mere $ 3,000.00 for the Car. She paid over $ 25,000.00 for the Car only two years18 earlier!19 23. When Plaintiff asked Southbay why the offer was so low, Southbay20 explained that the Car had not only been in a severe accident, but that it was21 determined to be a total loss and was sold at auction by Ally Financial as a22 salvage vehicle. If the Dealer took the Car, it would have to be converted to a23 salvage tile and sold at auction. Southbay provided Plaintiff with an AutoCheck2425 report confirming this history. (See, for example, a true and correct copy of a26 current AutoCheck VIN History report, attached hereto as Exhibit ~H.27 COMPLAINT28 24. An internet search of the Car's VIN confirms the salvage history as true. For instance: a. BidFax.corn shows the Car's auction listing and photos. (See true and correct copies of photographs of the Car obtain from BidFax.corn, attached hereto as Exhibit JI. b. The BidFax.corn report shows that on June 6, 2021, the Car was offered for sale at an auction hosted by Insurance Auto10 Auction (IAA), with Ally Financial as the seller, and announced as having structural damage to the front end. The12 Car's estimated value at the time of auction was $ 19,927.00,13 with repairs estimated at $ 17,790.00. (See, Ex. QI.14 c. These photographs and salvage auction listing are15 corroborated by the BadVIN.corn report that also lists the IAA1617 auction in its report. (See Ex. A page 2, and part of page 3).18 25. As discussed in more detail below, if a vehicle is sold at auction after19 it is determined to be damaged to the extent it is uneconomical to repair, that20 vehicle is considered a "Total Loss Salvage Vehicle" under California law.21 26. As can been seen in the photos in Exs. A and I, the Car suffered22 severe structural damage, as well as likely frame damage. The entire front end of23 the Car is crushed and pushed in, with the impact bar visibly bent, and the24 radiator and fan deformed and pushed into the other components in the engine26 compartment. The damage was not "minor" as represented by the Dealer, nor27 COMPLAINT28 were the eventual repairs competent. Indeed, as discussed above, the bumper installed as a replacement was not even the correct bumper for the Car. The ultimate buyer— on information and belief, the Dealer—purchased the Car for $ 4,675.00 from the IAA auction. (See, Ex. JI. 27. It is noteworthy that the mileage on the Car at the time of the auction sale was 41,889, versus 43,052 when the Dealer sold the Car to Plaintiff. The Car was driven only 1,163 miles from the date it was purchased at auction and the ultimate sale by the Dealer to Plaintiff. This supports the allegation that it10 was the Dealer who acquired the Car from auction. Regardless of whether the Dealer was the auction buyer or not, the Dealer was clearly aware of the12 damage, as the auction records were readily available and, even after the repairs,13 the damage was easily ascertainable by an auto dealer, whose expertise is in14 inspecting and evaluating the condition of vehicles it buys and sells.15 28. Deeply troubled, Plaintiff contacted the Dealer and asked the Dealer1617 to send her the purchase paperwork.18 29. When the paperwork arrived from the Dealer, Plaintiff was surprised19 to find several documents purporting to disciose the severe damage; however,20 she was more surprised to find her signature forged on each one. For example,21 the Statement of Facts (a true and correct copy attached hereto as Exhibit J),22 CarFax (a true and correct copy attached hereto as Exhibit K), and NMVTIS23 Vehicle History Report (a true and correct copy attached hereto as Exhibit QL24 each bear a signature purporting to be that of Plaintiff, but which are not her26 actual signature. While those signatures appear consistent with each other, they27 COMPLAINT28 are not consistent with the true signatures of Plaintiff appearing on the other sales documents or elsewhere. Ms. Canada did not sign those documents, nor did the Dealer show them to her at the time of sale. Instead, the Dealer described the damage to Plaintiff as "minor" and advertised the Car as "IN EXCELLENT SHAPE." 30. Regardless of any dispute over whether the Dealer misrepresented the severity of the Car's accident and damage history, the Dealer never disclosed that the Car was sold as salvage or junk. In fact, as discussed below, the Dealer10 had an obligation to obtain a salvage title for this vehicle and post a mandatory "red sticker" salvage disclosure on the Car prior to sale. The Dealer did neither.12 C. What Vehicles Are Considered Total Loss Salvage Vehicles In California1314 31. The Dealer fails to understand what qualifies as a salvage car in15 California and when a dealer is required to obtain a salvage branded title. The1617 California Vehicle Code —which governs licensed auto dealers in Califomia—18 defines "Total Loss Salvage Vehicle" as follows:19 A vehicle, other than a nonrepairable vehicle, of a type subject to registration that has been wrecked,20 destroyed, or damaged, to the extent that the owner, leasing company, financial institution, or the insurance company that insured or is responsible for repair of the vehicle, considers it uneconomical to repair the vehicle and because of this, the vehicle is23 not repaired by or for the person who owned the vehicle at the time of the event resulting in damage.2425 Cal. Veh. Code tj 554(a).2627 10 COMPLAINT28 32. As is made clear by the auction records and VIN history reports, Ally Financial —the "financial institution" at the time of the accident— determined the Car to be "wrecked, destroyed, or damaged'* and considered "it uneconomical to repair the vehicle," with the end result that the "vehicle [was] not repaired by or for the person who owned the vehicle at the time of the event resulting in damage." As a result, the Car is considered a "Total Loss Salvage Vehicle" under California law. 33. The Dealer also fails to understand its duty in relation to Total Loss10 Salvage Vehicles. 34. The Dealer appears to believe it is under no duty to report or disclose12 to buyers that a vehicle is a Total Loss Salvage Vehicle. That is incorrect, as13 made clear under section 11515 of the California Vehicle Code. While the initial14 provisions of section 11515 describe an insurer 's duty regarding total loss15 vehicles, section 11515(e) describes a broader duty applicable to everyone.1617 Specifically, the code requires that "prior to the sale or disposal of a total loss18 salvage vehicle, the owner, owner's agent, or salvage pool, shall obtain a19 properly endorsed salvage certificate[.]" Because the Dealer knew that the Car20 had been declared a total loss— the Dealer admits that it pulled various VIN21 history reports at the time of sale and likely purchased the Car from the insurance22 auction —it was required to obtain a branded salvage title prior to selling the Car.23 The Dealer did not do that.2425 D. A Dealer's Duty To Disclose Salvage Title Vehicles, And General Duty To Buyers2627 COMPLAINT28 35. A licensed auto dealer in California shall not display or offer for sale at retail a used vehicle unless the dealer first obtains a NMVTIS vehicle history report from a NMVTIS data provider for the vehicle identification number of the vehicle. Veh. Code tj 11713.26(a). If the NMVTIS report indicates that the vehicle is or has been a junk automobile or a salvage automobile or the vehicle has been reported as a junk automobile or a salvage automobile by a junk yard, salvage yard, or insurance carrier, a dealer must (a) post a red tag warning on the vehicle stating its junk/salvage history and (b) provide the customer a copy of the10 NMVTIS report prior to sale. Ueh. Code tj 11713.26 (b)(1). Despite that this Car was declared a total loss and salvage by Ally Financial, the Dealer did neither.12 36. The state's sticker requirement is designed to prevent precisely the13 situation, where a dealer lures a customer to buy a car but does not disclose14 branded title; misrepresents the condition of the car; or hides that disclosure in15 the stack of documents flashed before a buyer during the signing process. The1617 mandatory red sticker is a clear warning to consumers, prior to the sale, that18 something is wrong with the car. The Dealer's failure to use one here is a19 violation of the Vehicle Code in itself, but also serves as further evidence that20 the Dealer had no intention of adequately disclosing the true status of the title to21 Plaintiff.22 37. Even if there was no "red sticker" duty, Vehicle Code tj1171323 prevents a dealership from making or disseminating any statement which is2425 untrue or misleading, and which is known, or which by the exercise of26 reasonable care should be known, to be untrue or misleading. Here, for the27 12 COMPLAINT28 reasons discussed above, the Dealer either knew, or should have known this Car had a severe accident and junk/salvage history and thus was under a duty to disclose that fact to Plaintiff. The Dealer's express representation that the Car was in "EXCELLENT SHAPE," suffered only minor damage, and was 5 adequately repaired falsely inflated the value of the Car resulted in Plaintiff 6 purchasing a Car she otherwise would have declined. 7 FIRST CAUSE OF ACTION 8 Violation of the Consumers Legal Remedies Act, 9 Civil Code II 1750 et seq. (For Equitable Relief and Damages)10 38. Plaintiff incorporates by reference each and every allegation set forth11 in paragraphs 1 through 37 as though alleged in full herein.12 39. The Car constitutes "goods" bought primarily for personal, family or1314 household use pursuant to California Civil Code II1761(a).15 40. Dealer is a "person" pursuant to California Civil Code $ 1761(c).16 41. Plaintiff is a "consumer" pursuant to California Civil Code II1761(d).17 42. The sale of the Car is a "transaction" pursuant to California Civi!18 Code II1761(e).19 43. Pursuant to the Consumer Legal Remedies Act ("CLRA") the2021 following methods of competition and unfair or deceptive acts or practices are22 prohibited:23 a. Representing that goods or services have sponsorship,24 approval, characteristics, ingredients, uses, benefits, or25 quantities which they do not have or that a person has a2627 13 COMPLAINT28 sponsorship, approval status, affiliation, or connection which he or she does not have (Cal. Civ. Code II 1770(a)(5)); b. Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another (Cal. Civ. Code $ 1770(a)(7)); Advertising goods or services with intent not to sell them as advertised; (Cal. Civ. Code II 1770(a)(9));10 d. Representing that the subject of a transaction has been supplied in accordance with a previous representation when it12 has not (Cal. Civ. Code 1770(a)(16)). II13 44. Dealer violated these sections by (a) misrepresenting that the Car14 suffered only minor damage, when the Car suffered severe damage leading to its15 sale by a former finance company as junk and/or salvage; (b) omitting and/or1617 misrepresenting the fact that the Car is a total loss salvage vehicle under18 California law; (c) misrepresenting that the Car was in "EXCELLENT SHAPE,"19 when it suffered severe damage and/or was a total loss salvage vehicle; (d)20 misrepresenting that the Car is safe and reliable, when it suffered severe damage21 with shoddy repairs, and was not mechanically sound; and (e) representing that22 the Car was recently inspected and found to be mechanically sound, when it23 suffered mechanical defects resulting from the severe damage to the Car's2425 engine compartment. (Cal Civ. Code $ Il 1770(a)(5), (7), (9), (16)).27 14 COMPLAINT28 45. Had Plaintiff known the truth about the condition and history of the Car, Plaintiff would not have paid Dealer any money for it. 46. Plaintiff seeks an order rescinding the purchase transaction, including the return of the purchase amounts paid to Dealer, as well as al! costs and expenses related to the Vehicle according to proof at trial. 47. Plaintiff also seeks injunctive relief requiring the Dealer to (a) apply for and obtain a total loss salvage vehicle title for the Car before selling, transferring or otherwise disposing of the Car; (b) reform it's practices to ensure10 it reviews, learns and complies with Vehicle Code sections relating to salvage title requirements in California; and (c) reform its practices to ensure that it12 properly discloses salvage title status of vehicles to potential buyers.13 48. Pursuant to California Civil Code Section 1780(d), Plaintiff are also14 entitled recover reasonable attorneys'ees and costs according to proof at time15 of trial.1617 49. On June 3, 2024, Plaintiff mailed to Dealer by certified mail, a CLRA18 demand letter as required under Civil Code section 1782. The Dealer failed to19 offer adequate corrective action. Thus, Plaintiff seeks all available damages20 according to proof, as well as punitive damages, from Dealer for the malicious,21 oppressive, and fraudulent acts against Plaintiff as pleaded above.22 SECOND CAUSE OF ACTION23 Violation of Business 4ti Professions Code tl 17200, et seq.2425 50. Plaintiff incorporates by reference all allegations of paragraphs 126 through 37 as though fully set forth herein.27 15 COMPLAINT 51. The Dealer committed acts of unfair competition, as defined by Business and Professions Code II 17200, et seq. As set forth more fully in the Summary of Allegations above, the Dealer has engaged in a course of conduct of systematically violating the consumer laws in this State prohibiting the commitment of deceptive practices, including the laws of fraud and deceit and the various prohibitions contained in the Consumers Legal Remedies Act and the Automobile Sales Financing Act. 52. The Dealer engaged in "unlawful" business acts and/or practices by10 misrepresenting the quality, condition, and/or history of the Car. Dealer engaged in "unlawful" business acts and/or practices as described by Business and12 Professions Code 17200 by engaging in conduct that violated the CLRA, Cal. II13 Code 8 1750, et seq.; the Federal Trade Commission Act, Section 5; the Song-14 Beverly Consumer Warranty Act, Civ. Code IIII 1790 et seq.); and the California15 Vehicle Code.1617 53. The harm to Plaintiff outweighs the utility of the Dealer's policies18 and practices particularly considering the available alternatives, and that the Dealer's policies and practices are immoral, unscrupulous, unethical and against20 public policy. The Dealer's policies and practices consequently constitute an21 "unfair" business act or practice within the meaning of Business and Professions22 Code Section 17200.23 54. The Dealer's deceptive policies and practices, as set forth above, also2425 are likely to and/or have deceived Plaintiff. Thus, the Dealer has also engaged in "fraudulent" business practices.27 16 COMPLAINT28 55. The Dealer has engaged in, and continues to engage in, the same form of deceptive acts and practices. 56. The Dealer's unlawful, unfair, and fraudulent business practices present a continuing threat to Plaintiff, and others, in that the Dealer will continue utilizing similar policies and practices. 57. Business and Professions Code Section 17203 provides that the Plaintiffs are entitled to an order enjoining the Dealer from engaging in acts or practices that violate Business and Professions Code Section 17200, as well as10 providing for equitable monetary relief so as to preclude the retention of all ill- gotten monies by the Dealer or so as to restore any monies wrongfully obtained12 by the Dealer to the Plaintiff. Plaintiff lost money and suffered injury in fact13 resulting from the Dealer's illegal conduct.14 58. Plaintiff seeks such equitable monetary relief, and an order enjoining15 the Dealer from engaging in the acts and practices set forth in this Complaint,1617 imposing an asset freeze or constructive trust over such monies as the Court18 deems appropriate, as well as compelling a corrective informational campaign to19 correct the misperceptions in the marketplace created by such conduct.20 59. Plaintiffs further seek recovery of their attorneys'ees and costs21 pursuant to Code of Civil Procedure tj 1021.5.22 THIRD CAUSE OF ACTION23 Fraudulent Misreuresentation2425 60. Plaintiff incorporates by reference all allegations of paragraphs 126 through 37 as though fully set forth herein.27 COMPLAINT28 61. The Dealer represented to Plaintiff that the Car suffered only minor damage. That representation is not true. 62. The Dealer omitting the fact that the Car is a total loss salvage vehicle under California law. 63. The Dealer represented that the Car was in "EXCELLENT SHAPE." That representation is not true. 64. The Dealer represented that the Car was safe and reliable. That representation is not true.10 65. The Dealer represented that the Car was safe and reliable. That representation is not true.12 66. The misrepresentations were made by the Dealer's employees,13 including Dealer's salesperson, and other employees whose identities are known14 to it and can be ascertained from reviewing the Dealer's file for the purchase15 transaction.1617 67. At the time of the transaction, the Dealer concealed and/or omitted18 material facts from Plaintiff.19 68. The Dealer knew, or should have known, of the Car's true condition20 and status, yet failed to disclose these facts in response to PlaintifF s direct21 inquiries or as required by law.22 69. Regardless of its actual belief(s), the Dealer made the23 representation(s) and/or omission(s) of material fact without any reasonable2425 grounds for believing them to be true.2627 18 COMPLAINT28 70. The Dealer failed to exercise due care in ascertaining the accuracy of the representations and/or omissions of fact made to Plaintiff, the same representations and omissions Plaintiff relied on in deciding to purchase the Car. 71. Plaintiff was unaware of the falsity of the representations and/or omissions, acted in reasonable reliance upon the truth of those representations and/or omissions, and was justified in relying upon those representations and/or omissions. The false representations were material to the transaction. 72. Plaintiff would not have purchased the Car if she had not been misled10 and/or knew the falsity of the representations made by the Dealer. 73. As a direct and proximate result of the Dealer's misrepresentations12 and/or omissions of material fact, Plaintiff suffered damages, including actual,13 consequential, and incidental damages, according to proof of trial.14 74. The Dealer's conduct constitutes conduct that is oppressive,15 fraudulent, and/or malicious, entitling Plaintiff to punitive damages under Civil1617 Code tj 3294, and the acts of the Dealer's employees as alleged were authorized18 or ratified by an officer, director, and/or managing agent of the Dealership.19 FOURTH CAUSE OF ACTION20 Negligent Misrepresentation21 75. Plaintiff incorporates by reference all allegations of paragraphs 122 through 37, and 61 through 65, as though fully set forth herein.23 76. The representations alleged above and made by the Dealer were not2425 true. Regardless of its actual belief, the Dealer made the representations without any reasonable grounds for believing them to be true. 19 COMPLAINT28 77. The Dealer failed to exercise due care in ascertaining the accuracy of the representations about the Car made to Plaintiff, or in satisfying its duties under the Vehicle Code. 78. Plaintiff relied upon those representations and acted in reliance thereon by purchasing the Car. 79. Plaintiff was unaware of the falsity of the representations and acted in reliance upon the truth of those representations and was justified in relying upon those representations.10 80. As a direct and proximate result of the Dealer's negligent misrepresentations of material fact, Plaintiff suffered damages, including all12 actual, consequential, and incidental damages according to proof at trial.13 81. Plaintiff was fraudulently induced to enter into the Purchase14 Contract, and, therefore, is entitled to rescission and/or restitution in an amount15 according to proof at trial, including all actual, consequential, and incidental1617 damages.18 FIFTH CAUSE OF ACTION19 Violation of Song-Beverly Consumer Warranty Act (Civil Code t'I 1790, et seq.) (Breach of Implied Warranty of Merchantability)2021 82. Plaintiff incorporates by reference all allegations of paragraphs 1 through 37 as though fully set forth herein.23 83. The Car is a "consumer good" as defined in Civil Code (j 1791(a).24 84. Dealer is a "retail seller," "seller," or "retailer" as defined in Civil25 Code tj1791(1).2627 20 COMPLAINT 85. The sale of the Car to Plaintiff was accompanied by an express written "dealer warranty" covering all parts and labor relating to the engine and transmission of the Car for 30 days or 1,000 miles. (See the Car's Buyers Guide, Ex. QB. The Dealer also created a warranty by description by advertising the Car as being in "excellent shape." 86. As such, under California law, there was created in connection with the sale of the Vehicle an implied warranty of merchantability as defined in Civil Code $ 1791.1. These warranties were part of the basis of the bargain of10 Plaintiff's contract for the purchase of the Car. 87. The Dealer impliedly warranted to Plaintiff that the Car was12 "merchantable" within the meaning of California Civil Code 8 1791.1(a) k.13 1792, however, the Car did not have the qualities or safety that were promised or14 that a buyer would reasonably expect.15 88. California Civil Code tj 1791.1(a) states: "Implied warranty of1617 merchantability" or "implied warranty that goods are merchantable" means that18 the consumer goods meet each of the following: (I) Pass without objection in the19 trade under the contract description. (2) Are fit for the ordinary purposes for20 which such goods are used'. (3) Are adequately contained, packaged, and labeled.21 (4) Conform to the promises or affirmations of fact made on the container or22 label.23 89. The Car would not pass without objection in the automotive trade in2425 the manner described because of the severe damage, incomplete and shoddy26 repairs, and requirement that the Car be titled as a salvage vehicle.27 21 COMPLAINT28 90. Plaintiff purchased the Car with the reasonable expectation that it was fit to be used for the ordinary and intended purpose of providing Plaintiff with safe and reliable transportation. Dealer knew when it warranted and sold the Car that the intended and ordinary purpose of the Vehicle was to provide its owner with safe and reliable transportation, free of material defects or damage. 91. The Car is not adequately labeled in that the Dealer failed to obtain a salvage title as required under California Law and failed to post a red tag warning on the Car stating its junk/salvage history.10 92. The Car fails to conform to the promises or affirmations of fact made by the Dealer on the container or label in that the Car is not in "excellent shape"12 as advertised, had more than minor damage as represented by the Dealer, and13 because the Dealer omitted the required red tag warning on the Car stating its14 junk/salvage history.15 93. From the time of sale, and at all times thereafter, the Car has been1617 defective, severely damaged, and unmerchantable. The actions of the Dealer in18 failing to tender to Plaintiff a Car that was free from material and/or significant19 defects and non-conformities constitutes a breach of the implied warranty of20 merchantability. Dealer was adequately notified of the defects and the21 unmerchantable condition, and of PlaintifFs request to revoke acceptance of the22 Car, but refused to do so.23 94. Plaintiff has performed each and every duty required of her under the24 terms of the warranties and the provisions of Song-Beverly, except as may have26 been excused or prevented by the conduct of the Dealer, as herein alleged. 22 COMPLAINT28 95. As a direct and proximate result of the Dealer's breach of the express warranty and the implied warranty of merchantability, Plaintiff received goods whose dangerous and/or dysfunctional condition substantially impairs its value to Plaintiff. Plaintiff has been damaged as a result of the diminished value of Defendant's product and the product's unsafe condition. 96. Pursuant to California Civil Code 8 1793.2 & 1794, Plaintiff is entitled to actual, consequential, and incidental damages, and other legal and equitable relief including, at her election, the purchase price of the Car, or the10 overpayment or diminution in value of the Car, as well as the costs to repair the Car as stated above.12 97. Pursuant to California Civil Code 8 1791.1(d) & 1794, Plaintiff is13 entitled to actual, consequential, and incidental damages, and other legal and14 equitable relief including, at her election, the purchase price of the Car, or the15 overpayment or diminution in value of the Car, as well as the costs to repair the1617 Car as stated above.18 98. Plaintiff is entitled to, in addition to the amounts recovered, a civil19 penalty from the Dealer of up to two times the amount of actual damages, in that20 Dealer has willfully failed to comply with its responsibilities under Song-21 Beverly.22 99. Pursuant to California Civil Code $ 1794, Plaintiff are entitled to23 costs and attorneys'ees.24252627 23 COMPLAINT28 SIXTH CAUSE OF ACTION Violation of Magnusson-Moss Warranty Act (15 U.S.C. g 2310 er seq.) (Breach of Implied Warranty of Merchantability) 100. Plaintiff incorporates by reference all allegations of paragraphs I through 37 as though fully set forth herein. 101. Plaintiff is a "consumer" as defined in the Magnuson-Moss Warranty Act, 15 U.S.C. I'12301(3). 102. The Dealer is a "supplier" and "warrantor" as defined in the10 Magnuson-Moss Warranty Act, 15 U.S.C. $ 2301(4) and (5). 103. The Car is a "consumer product" as defined in the Magnuson-Moss12 Warranty Act, 15 U.S.C. I'12301(I) because it is normally used for personal or13 household purposes.14 104. The sale of the Car to Plaintiff was accompanied by an express15 written "dealer warranty" covering all parts and labor relating to the engine and1617 transmission of the Car for 30 days or 1,000 miles. (See the Car's Buyers Guide,18 Ex. QB. The Dealer also created a warranty by description by advertising the Car19 as being in "excellent shape."20 105. The express warranties described herein were each a "written21 warranty" as defined in 15 U.S.C. tI 2301(6). Under the Magnuson-Moss22 Warranty Act and California law, there was created in connection with the sale23 of the Car an implied warranty of merchantability governed by California law.2425 106. California Civil Code ti 1791.1(a) states: "Implied warranty of26 merchantability" or "implied warranty that goods are merchantable" means that27 24 COMPLAINT28 the consumer goods meet each of the following: (1) Pass without objection in the trade under the contract description. (2) Are fit for the ordinary purposes for which such goods are used. (3) Are adequately contained, packaged, and labeled. (4) Conform to the promises or affirmations of fact made on the container or label. 107. The Car would not pass without objection in the automotive trade in the manner described because of the severe damage, incomplete and shoddy repairs, and requirement that the Car be titled as a salvage vehicle.10 108. Plaintiff purchased the Car with the reasonable expectation that it was fit to be used for the ordinary and intended purpose of providing Plaintiff12 with safe and reliable transportation. Dealer knew when it warranted and sold13 the Car that the intended and ordinary purpose of the Vehicle was to provide its14 owner with safe and reliable transportation, free of material defects or damage.15 109. The Car is not adequately labeled in that the Dealer failed to obtain a1617 salvage title as required under California Law and failed to post a red tag18 warning on the Car stating its junk/salvage history.19 110. The Car fails to conform to the promises or affirmations of fact made20 by the Dealer on the container or label in that the Car is not in "excellent shape"21 as advertised, had more than minor damage as represented by the Dealer, and22 because the Dealer omitted the required red tag warning on the Car stating its23 junk/salvage history.2425 111. The actions of the Dealer in failing to tender the Car to Plaintiff in26 accordance with the implied warranty of merchantability and refusing to honor27 25 COMPLAINT28 Plaintiff s request to revoke her acceptance of the Car, or to accept the return of the Car and refund PlaintifF s purchase price, constitute a breach of the written and implied warranties in violation of the Magnuson-Moss Warranty Act. 112. Plaintiff has performed each and every duty agreed to and required of her under the terms of the warranty agreement and under the provisions of the Magnuson-Moss Warranty Act, except as may have been excused or prevented by the conduct of the Dealer as herein alleged. 113. As a direct result of the acts and omissions of the Dealer, Plaintiff has10 suffered actual, incidental, and consequential damages, including attorneys'ees and costs, according to proof.12 SEVENTH CAUSE OF ACTION13 Violation of Vehicle Code I'I 11711, et seq.14 (As to Philadelphia Indemnity Insurance Company, only)15 114. Plaintiff incorporates by reference all allegations of paragraphs 116 through 37 as though fully set forth herein.17 115. As a condition of obtaining a license from the California DMV to sell18 vehicles, the Dealer was required by Vehicle Code lI 11710 to obtain, and did19 obtain, a surety bond in the amount of $ 50,000 I'rom The Guarantee Company of20 North America USA.22 116. The Guarantee C
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MICHAEL PIRCHER, ET AL. VS MICHAEL CHANDLER, ET AL.
Jul 15, 2024 |21STCV47364
Case Number: 21STCV47364 Hearing Date: July 15, 2024 Dept: 57 The Court is granting in part the motion of Plaintiff Michael Pircher ("Pircher") to quash the business records deposition subpoena ("the Subpoena") issued by Defendants Kevin Wheaton ("Wheaton") and Believable Bluff, LLC to third party Bergkivst Bergkvist & Carter, LLP ("BBC"). BBC was Pircher's counsel in connection with a financial transaction between Pircher, on the one hand, and Believable Bluff and one its two members, Michael Chandler, on the other hand. Wheaton was the other member of Believable Bluff. Pircher seeks to quash the Subpoena on the ground that the information sought from BBC constitutes communications between Pircher and BBC that are protected from disclosure by the attorney-client privilege. Wheaton and Believable Bluff argue that Pircher has waived the attorney-client privilege. According to Wheaton and Believable Bluff, the waiver occurred during Pircher's deposition earlier this year during which, in response to a a question from counsel for Wheaton and Believable Bluff, Pircher stated that his attorney Paul Carter ("Carter") of BBC advised him that Wheaton's signature probably was needed on a Pledge and Security Agreement ("PSA") that was part of the financial transaction referenced above. Pircher's current counsel objected on attorney-client privilege grounds at the deposition immediately after Pircher's response to the question about Carter's advice regarding the need for Wheaton's signature on the PSA. The objection was too late to protect the disclosure of that specific communication: the privilege was waived under Evidence Code Section 912 by Pircher's response to the question. Section 912 provides that the attorney-client privilege is waived with respect to a protected communication if any holder of the privilege voluntarily discloses a significant part of the communication." Here, Pircher, as holder of the privilege, voluntarily disclosed a significant part of the communication from Carter regarding the need for Wheaton's signature on the PSA. Wheaton and Believable Bluff may use that disclosure in their defense of Pircher's claims against them.This does not mean, however, that Pircher has waived the attorney-client privilege as to every single communication between himself and BBC that is manifested in the records sought in the Subpoena. Wheaton and Believable Bluff cite no precedent to support that notion, and the Court is unaware of any. In short, Pircher's assertion of the attorney-client privilege to protect from disclosure other communications that he had with BBC is not too late to block the Subpoena. Wheaton and Believable Bluff also argue that Pircher implicity waived the attorney-client privilege by "tendering" (meaning placing) his communications with BBC at issue through his claims related to the PSA. The Court disagrees. The precedent dealing with tendering of privileged communications so as to waive the privilege establishes a very narrow window through which the privilege can be waived. Wheaton and Believable Bluff's invocation of that exception here is misplaced. Because Pircher has not waived the attorney-client privilege beyond the disclosure of the one communication between himself and Carter to which he testified at his deposition, his motion to quash the Subpoena is granted to the extent the motion seeks to shield other communications between Pircher and BBC from disclosure.The Court is denying the motion to the extent it seeks an order imposing sanctions against Wheaton and Believable Bluff, for having issued the Subpoena, in the form of the attorney's fees and costs Pircher incurred in connection with the motion. In the Court's view, the issuance of the Subpoena was not sanctionable. Wheaton and Believable Bluff had a reasonable basis for issuing it.
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ARTUR ELIZAROV, ET AL. VS 1250 NORTH FAIRFFAX AVENUE, LLC, ET AL.
Jul 18, 2024 |23STCV28887
Case Number: 23STCV28887 Hearing Date: July 18, 2024 Dept: 61 ARTUR ELIZAROV, et al. vs 1250 NORTH FAIRFFAX AVENUE, LLC, et al. TENTATIVE Defendants 1250 North Fairfax Avenue, LLC and Sares Regis Management Company, LPs Demurrer to the Complaint is OVERRULED. Plaintiff to give notice. DISCUSSIONA demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [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. [Citation.]) In determining whether the complaint is sufficient as against the demurrer & if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Malys of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.) A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.) Defendants 1250 North Fairfax Avenue, LLC and Sares Regis Management Company, LP (Defendants) offer two arguments as to the claims asserted in Plaintiffs Artur Elizarov and Ilya Alekseyeffs (Plaintiffs) Complaint. First, they argue that the claims are barred by the doctrine of res judicata and the release signed by Plaintiffs in the underlying landlord-tenant litigation on which Plaintiffs claims are based. (Demurrer at pp. 710.) Second, Defendants argue that the first cause of action for fraud is not pleaded with adequate specificity. (Demurrer at pp. 1014.) The tenets of res judicata prescribe the preclusive effect of a prior final judgment on the merits. The doctrine has two distinct aspects: claim preclusion and issue preclusion. Claim preclusion, often referred to as res judicata, provides that a valid, final judgment on the merits precludes parties or their privies from relitigating the same cause of action in a subsequent suit. Issue preclusion, or collateral estoppel, precludes re-litigation of issues argued and decided in prior proceedings. Application of the doctrine of res judicata is intended to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation. It rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination. Whether the doctrine of res judicata applies in a particular case is a question of law which we review de novo. (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 227228, internal quotation marks and citations omitted.) Claim preclusion has three elements: First, the second lawsuit must involve the same cause of action as the first lawsuit. Second, there must have been a final judgment on the merits in the prior litigation. Third, the parties in the second lawsuit must be the same (or in privity with) the parties to the first lawsuit. (Id. at p. 228., internal quotation marks and citations omitted.) Defendants have shown the existence of a final judgment on the merits a dismissal with prejudice entered by Plaintiffs in a prior action against Defendants on April 19, 2023, LASC Case No. 22STCV12808 and the identity of parties between that first action and the present. (RJN Exh. 3.) However, Defendants have not shown that the present action concerns the same cause of action as the first. For res judicata purposes, [t]he cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) In the prior action, Plaintiffs claims were based on certain wrongs: the alleged misrepresentations made by Defendants regarding the condition of leased premises prior to renting it, and claims for nuisance conditions on the premises in breach of the lease agreement. (RJN Exh. 1.) The claims here, however, do not rest upon any promise contained in the lease, or any duty related to the condition of the property rented. The present claims arise from Defendants covenants contained in the settlement agreement and its alleged breach thereof. (Complaint ¶¶ 918.) The prior litigation did not arise out of the settlement agreement that ended the prior litigation. Defendants note that the settlement agreement contains a release of known and unknown claims then existing between the parties. (Demurrer at pp. 910.) But a claim for fraud in the inducement of a contract does not exist before the contract is signed: Undeniably, fraudulent inducement occurs before a contract is signed. But the reliance is not a past event; the reliance is the signing of the contract and the changing of legal positions, which is concurrent with the exemption clauses. Moreover, the damages are either concurrent or prospective. (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29 Cal.App.5th 146, 152153.) By the same token, Defendants cannot claim that the release in the settlement agreement absolves them of liability for the subsequent breach of that settlement agreement, as is alleged here. (Complaint ¶¶ 3641.) Defendants argument as to the lack of specificity in the fraud claim fares little better. [F]raud must be pled specifically; general and conclusory allegations do not suffice. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Here, the alleged fraud is the misrepresentation contained in the settlement agreement, signed by Defendants, that Defendants agreed to waive and discharge any debts owed by Plaintiffs, when in fact Defendants had reported that such debts were unpaid and written-off. (Complaint ¶¶ 3135.) Plaintiffs allege harm in their surrender of rights under the settlement, and in the denial of subsequent rental applications based on Defendants report. (Complaint ¶¶ 1718.) This suffices to allege a claim of fraud. The demurrer is therefore OVERRULED.
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STARS RESTORATION ENTERPRISES, INC. VS ISABEL DUCHARME, ET AL.
Jul 19, 2024 |23BBCV02709
Case Number: 23BBCV02709 Hearing Date: July 19, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B stars restoration enterprises, inc. dba servpro of monrovia, Plaintiff, v. isabel ducharme, et al., Defendants. Case No.: 23BBCV02709 Hearing Date: July 19, 2024 [TENTATIVE] order RE: motions for an order that the truth of any matters specified in Plaintiffs requests for admission, set one be deemed admitted There are two motions on calendar. On June 6, 2024, Plaintiff Stars Restoration Enterprises, Inc. dba Servpro of Monrovia (Plaintiff) filed a motion for order deeming Requests for Admissions (RFA), set one, admitted against Defendant Isabel Ducharme (Defendant). On June 11, 2024, Plaintiff filed another motion for order deeming RFA, set one, admitted against Defendant. It appears that the motions were filed twice. On March 21, 2024, Plaintiff served on Defendant the RFA requests, such that responses were due by April 25, 2024. As of the filing of the motions, Plaintiff states that it has not received responses from Defendant. Plaintiffs unopposed motions for an order deeming the RFAs admitted is granted, pursuant to CCP § 2033.280. Plaintiff requests sanctions against Defendant in the amount of $1,279.15 (= $300/hour x 3 hours spent on the motion and 1 anticipated hour for the hearing, plus $79.15 in filing fees). The request is granted in the reasonable sum of $500, plus $79.15 in filing fees. The Court will award sanctions once as it appears that the two motions against Defendant are identical. Defendant is ordered to pay monetary sanctions in the amount of $579.15 to Plaintiff, by and through counsel, within 20 days of notice of this order. Plaintiff shall provide notice of this order. DATED: July 19, 2024 ___________________________ John J. Kralik Judge of the Superior Court
Ruling
JUNKERS2JEWELS LLC, ET AL. VS LA-DORIS MCCLANEY, TRUSTEE OF THE LA-DORIS MCCLANEY FAMILY TRUST, ET AL.
Jul 17, 2024 |24STCV06042
Case Number: 24STCV06042 Hearing Date: July 17, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: July 17, 2024 TRIAL DATE: NOT SET CASE: Junkers2Jewels LLC, et al. v. La-Doris McClaney, Trustee of the La-Doris McClaney Family Trust, et al. CASE NO.: 24STCV06042 MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5 MOVING PARTY: Defendant La-Doris McClaney, Trustee of the La-Doris McClaney Family Trust RESPONDING PARTY(S): Plaintiffs Junkers2Jewels, LLC and Matthew Pelanne. CASE HISTORY: · 03/11/24: Complaint filed. · 03/25/24: Cross-Complaint filed. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is an action for breach of contract. Plaintiffs allege that Defendants breached a purchase agreement for a parcel of real property by unilaterally cancelling escrow. Defendant moves for sanctions against Plaintiffs and their counsel pursuant to Code of Civil Procedure section 128.5 for the filing of Plaintiffs Motion for Specific Performance. TENTATIVE RULING: Defendants Motion for Sanctions is DENIED. DISCUSSION: Defendant moves for sanctions against Plaintiffs and their counsel pursuant to Code of Civil Procedure section 128.5 for the filing of Plaintiffs Motion for Specific Performance. Compliance with the Safe Harbor Provisions of Code of Civil Procedure § 128.5(f)(1)(B) Defendant seeks sanctions under Code of Civil Procedure section 128.5. The safe-harbor provision of section 128.5 provides: If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected. (Code Civ. Proc. § 128.5(f)(1)(B) (bold emphasis added).) Defendants moving papers did not address the safe-harbor provision, and Plaintiffs object to the motion as improper for failure to comply with this requirement. In reply, Defendant argues that the safe harbor provision is not applicable in this instance because compliance with the 21-day requirement was not possible. Defendant principally relies on Changsha Metro Group Co. Ltd. v. Peng Xufeng (2020) 57 Cal.App.5th 1, in support of her position. In Changsha, the Court of Appeal confronted the issue of whether the safe harbor provision of section 128.5 applies to a request for attorneys fees based on the contention that a special motion to strike under Code of Civil Procedure section 425.16 is frivolous. (Changsha, supra, 57 Cal.App.5th at 6-7.) The Changsha court attempted to reconcile the safe harbor provision with subdivisions (a) and (c) of section 128.5, which state that a party may seek attorneys fees under this section only after a court order awarding expenses for actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. (Code Civ. Proc. § 128.5 (a), (c), (f); Changsha, supra, 57 Cal.App.5th at 7-11.) After reviewing the plain language and legislative history, the Court of Appeal concluded that it was not possible to reconcile all three subdivisions of the statute as written. (Changsha, supra, 57 Cal. App.5th at 11-18.) The Court of Appeal found that it was not possible to reconcile the statute as written, and, upon reviewing the legislative history, determined that the intent of the Legislature was if one is attempting to obtain attorneys fees under section 128.5, then one should use the procedures of subdivision (f) (minus the prerequisite for an order under subdivision (a)) if at all possible. (Id. at 18.) Applying this construction to section 425.16, the Court of Appeal concluded that compliance with the safe harbor and separate motion requirements was not possible in the context of the strict filing and hearing deadlines for a special motion to strike under subdivision (f) of section 425.16. (Changsha, supra, 57 Cal.App.5th at 19-21.) Defendant analogizes this case to Changsha, asserting that compliance with the safe harbor provision was not possible because Plaintiffs set the Motion for Specific Performance to be heard 22 days after service of the motion. This analogy is not well-taken. In Changsha, the Court of Appeal reasoned that the safe harbor provision was not workable in the context of a special motion to strike because its enforcement would either require continuance of the motion to strike, which is contrary to the express purpose of section 425.16 or would require a party to seek an order shortening the safe-harbor period any time they sought to pursue sanctions. (Changsha, supra, 57 Cal.App.5th at 19-21.) Here, however, the motion at issue was a regularly noticed motion pursuant to Code of Civil Procedure section 1005(b) which cited no specific authorizing provision and thus was not subject to any abbreviated briefing and hearing schedule. Moreover, Defendants approach essentially renders the safe-harbor provision a dead letter, since any party who seeks sanctions for a motion filed within the ordinary notice period could equally argue that it is not practical to provide a 21-day safe harbor to withdraw a motion within the 16 court days plus time for service allotted by section 1005. The Court declines to read Changshas holding so broadly, and, indeed, Changsha expressly states that the safe harbor provision should be enforced if at all possible. (Changsha, supra, 57 Cal.App.5th at 18.) The Court is therefore not persuaded that Changshas exception to the safe harbor provision is applicable in the context of Plaintiffs motion. Because Defendant freely concedes that she did not comply with the safe harbor requirements of Code of Civil Procedure section 128.5, the Court declines to award sanctions against Plaintiffs and their counsel for their Motion for Specific Performance. CONCLUSION: Accordingly, Defendants Motion for Sanctions is DENIED. Moving Party to give notice. IT IS SO ORDERED. Dated: July 17, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
HARRY T E WODEHOUSE VS GENERAL MOTORS LLC
Jul 16, 2024 |24STCV01080
Case Number: 24STCV01080 Hearing Date: July 16, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 HARRY T E WODEHOUSE, Plaintiff(s), v. GENERAL MOTORS, LLC., et al , Defendant(s). Case No.: 24STCV01080 DISCLOSURE AND ORDER Judge Beaudet hereby discloses that approximately 24 years ago, she and her husband purchased a pickup truck for her husbands use that he recalled was either a Dodge or Chrysler pickup; Judge Beaudet does not remember the maker of the pickup. The pickup developed electrical problems. Judge Beaudets husband took the pickup in to the dealer many times for the same electrical problem. The pickup was tested with some device while it was operating, and eventually, the manufacturer and the dealer agreed to take the pickup back and refund the purchase price. No litigation was involved. Judge Beaudet does not believe that her experience will cause her to be biased for or against either party. However, if you believe differently, you will have until July 31, 2024, to file and serve a verified statement of disqualification per section CCP 170.3(c)(1) (the Statement). If you do not file and serve a Statement, grounds for recusal will be deemed waived. The hearing on the status conference re completion of mediation or ADR will be continued to September 5, 2024, at 10:00 a.m. in Department 50 unless both parties waive the right to file the Statement. Plaintiff is ordered to give notice of this Disclosure to any new parties who are added to the case and to file proof of service of same promptly after service, witha courtesy copy delivered to Department 50. Any new party has 14 calendar days from the date of service to file and serve the Statement per section CCP 170.3. DATED: July 16, 2024 _____________________________ Honorable Teresa A. Beaudet Judge, Los Angeles Superior Court
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DEBORAH K. OGAWA VS AMERICAN HONDA MOTOR CO., INC, ET AL.
Jul 17, 2024 |21STCV11734
Case Number: 21STCV11734 Hearing Date: July 17, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: July 17, 2024 Case Name: Deborah K. Ogawa v. American Honda Motor Co., Inc. Case No.: 21STCV11734 Motion: Motion for Attorneys Fees and Costs Moving Party: Plaintiff Deborah K. Ogawa Responding Party: Defendant American Honda Motor Co., Inc. Tentative Ruling: Plaintiffs Motion for Attorneys Fees and Costs is GRANTED in the amount of $70,212. As to Plaintiffs costs, Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700. I. Background Plaintiff purchased a 2018 Honda Odyssey manufactured and distributed by Defendant American Honda Motor Co., Inc. Plaintiff alleges that the vehicle contained or developed defects during the warranty period. Plaintiff alleges that shepresented the vehicle to Defendant for repairs and Defendant was unable to repair the vehicle within a reasonable number of attempts. Plaintiff alleges Defendant failed to provide her with restitution pursuant to Song-Beverly Consumer Warranty Act. Plaintiff filed the operative Second Amended Complaint on November 8, 2021. Plaintiff filed a Notice of Conditional Settlement on May 3, 2024. II. Legal Standard A prevailing buyer in an action under Song-Beverly 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 attorneys 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,¿subd. (d).) The prevailing party has the burden of showing that the requested attorney fees were reasonably necessary to the conduct of the litigation, and were reasonable in amount. (Robertson v. Fleetwood Travel Trailers of California Inc.¿(2006) 144 Cal.App.4th 785, 817.) The party seeking attorney fees is not necessarily entitled to compensation for the value of attorney services according to [his] own notion or to the full extent claimed by [him]. (Levy v. Toyota Motor Sales, USA, Inc.¿(1992) 4 Cal.App.4th 807, 816.)¿¿Therefore, if the time expended or the monetary charge being made for the time expended are not reasonable under all the circ*mstances, then the court must take this into account and award attorney fees in a lesser amount. (Nightingale v. Hyundai Motor America¿(1994) 31 Cal.App.4th 99, 104.)¿¿ ¿¿ A court may reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.¿¿(Morris v. Hyundai Motor America¿(2019) 41 Cal.App.5th 24, 39.)¿¿It is also appropriate to reduce an award based on inefficient or duplicative efforts. (Id.¿at p. 38.) However, the analysis must be reasonably specific and cannot rely on general notions of fairness. (Kerkeles¿v. City of San Jose¿(2015) 243 Cal.App.4th 88,¿102.)¿¿Moreover, in conducting the analysis, courts are not permitted to tie any reductions in the fee award to some proportion of the buyers damages recovery. (Warren v. Kia Motors America, Inc.¿(2018) 30 Cal.App.5th 24, 39.) III. Request for Judicial Notice Plaintiff and Defendant request judicial notice of court opinions in other Song Beverly cases discussing counsels rates. The request for RJN is granted. IV. Evidentiary Objections Defendants Objections to Shahians Declaration are overruled. Defendants Objections to Castros Declaration are sustained. Plaintiffs Objections to Stuhlbergs Declaration are overruled. IV. Discussion Plaintiff moves for attorneys fees as prevailing party under Civil Code §1794(d) and the parties settlement agreement. Plaintiff obtained a settlement of $82,500 from Defendant after three years of litigation wherein Defendant agreed that Plaintiff would be prevailing party for purposes of a fee motion. (Castro Dec., ¶78, Ex. 4.) Plaintiff argues she is clearly the prevailing party under Civil Code §1794(d) and is entitled to a mandatory fee award in the amount of $129,110.59 based on (1) $84,751.50 in attorneys fees for Strategic Legal Practices, APC (SLP); (2) a 1.35 multiplier enhancement; (3) $11,196.06 in costs and expenses for SLP; and (4) an additional $3,500 for Plaintiffs counsel to review the Opposition, draft the Reply and attend the hearing on the Motion. Plaintiffs attorneys fees are based on 164.6 hours of attorney time. Plaintiffs counsel identifies no fewer than nineteen attorneys who worked on this case. The hourly rates of these attorneys ranged from $350 to $650. Defendant does not dispute that Plaintiff is entitled to attorneys fees as prevailing party under Civil Code §1794(d). Defendant argues, however, that when the parties were negotiating settlement, Plaintiff represented that the attorneys fees would range from $40,000 to $50,000. Defendant argues Plaintiffs request for $129,110.59 in fees is excessive. Defendant argues Plaintiff is, at most, entitled to $21,000 for this cookie cutter litigation. Defendant objects to the hourly rate and number of attorneys assigned to the case as excessive. Defendant argues the hourly rate should be set at no more than $350/hr for all attorneys. Defendant objects to the number of hours as excessive given the cookie-cutter nature of Song Beverly litigation. Defendant attached as Exhibit A to the Opposition a table addressing each of the time entries submitted by Plaintiff. Defendant also objects to the costs requested and requests a reduction of $6,023. Number of hours excessive and improper time entries submitted Plaintiff counsel expended 164.6 hours on this litigation, which was pending for approximately three years and was litigated up to the eve of trial. Parties submitted motions in limine and engaged in a last minute mediation before Judge Stern. (Minute Order dated January 4, 2024.) · Improper redactions. Based on a review of Plaintiffs time entries, the entries on the following dates are so heavily redacted that the court cannot determine their reasonableness or the nature of the task performed: (1) 3/15/22, Avelino, .5 hours @ $595/hr for a total of $297.50; (2) 9/29/22, Mkrdech, 7.6 hours @ $350/hr for a total of $2,660; (3) 11/9/22, Carvalho, .7 hours @ $550/hr for a total of $385; (4) 11/10/22, Mkrdech, 1.4 @ $350/hr for a total of $490; (5) 6/28/23, Carvalho and .7 hours @ $570/hr for a total of $399. As such, the requested fee award is reduced by $4,231.50 for failure to provide sufficient detail regarding the work performed. (Shahian Dec., Ex. 20, pp. 1 and 2.) · Unreasonably excessive time entries. Counsel Deleon spent (1) 2.4 hours on 5/10/23 preparing for deposition of Defendants PMQ; (2) 3.4 hours on 5/11/23 preparing for deposition of Defendants PMQ; and (3) 7.8 hours on 5/12/23 preparing and taking the deposition of Defendants PMQ. The billable rate for the task was $575/hr. Counsels entry on 5/12/23 also improperly block billed multiple tasks. (Shahian Dec., Ex. 20, p. 2.) The amount billed for the PMQ deposition totaled $7,820. The amount of billable time for both preparation and taking the deposition is reduced from 13.6 hours @ $575/hr to 8 hours @ $575/hr for a total of $4600, a reduction of $3,220. Counsel Miller indicates that he spent 10 hours preparing for, travel to and attend continued FSC on January 5, 2024. (Shahian Dec., Ex. 20, p. 3.) The Jury Trial/FSC began at 9 a.m. and the settlement was put on the record. (Minute Order dated 1/8/24.) There is nothing indicating that preparation for and attendance at the FSC on 1/5/24 would have required 10 hours. The 1/5/24 entry by Miller for 10 hours @ $595/hr for a total of $5,950 is reduced to 5 hours @ $595/hr for a total $2,975, a reduction of $2,975. · Estimated time for reply prep and hearing attendance. Plaintiffs counsel estimates $3,500 for preparation of the reply and hearing attendance. Counsel does not provide an hourly rate for this estimate. However, using the maximum rate allowed as discussed below ($575/hr), the number of hours spent would be 6 hours @ $575/hr for a total of $3,500. Given the reply, including objections and additional evidence, six hours for opposition review, reply prep and hearing attendance is reasonable. In total, the requested fees are reduced by $10,426.50 due to excessive hours or improperly redacted time entries. This leaves a balance of $72,073.50. Hourly rates The hourly rates to be used in computing the lodestar must be within the range of reasonable rates charged by and judicially awarded comparable attorneys for comparable work. (Children's Hospital & Medical Center v. Bonta ́ (2002) 97 Cal.App.4th 740, 783; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (The reasonable hourly rate is that prevailing in the community for similar work). Particularly where it is difficult to obtain evidence of market based rates for the same type of work, the courts look at fees charged for cases requiring similar skills. (The Utility Reform Network v. Public Utilities Com. (2008) 166 Cal.App.4th 522, 536537; Prison Legal News v. Schwarzenegger (9th Cir.2010) 608 F.3d 446, 454455 (all attorneys in the community engaged in equally complex Federal litigation, no matter the subject matter). In determining the reasonable rate and reasonable hours, the Court looks to that prevailing in the community for similar work. (PLCM Group, Inc., supra, 22 Cal.4th at 1095; Ketchum, supra, 24 Cal.4th at 1132 (the lodestar is the basic fee for comparable legal services in the community). A reasonable trial court might determine that the similar workor comparable legal services related to insurance defense litigation, rather than to civil litigation in general. Were the court to so conclude, it could view the relevant market to be that of insurance defense litigation and litigators, rather than general civil litigation. The market rate for such services might be limited accordingly. Again, we emphasize that such determinations lie within the broad discretion of the trial court. (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702703.) The burden is on the fee applicant to produce evidence that the requested rates are in line with those prevailing in the community for similar work. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.) Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.) The trial court is not required to adopt counsels opinion as to the market rate for services of the type performed. (Syers Properties III, supra, 226 Cal.App.4th at 702.) The trial court may accept the actual rate charged as the reasonable rate. (Id.) Plaintiffs counsel consisted of nineteen attorneys who performed work at hourly rates of $350, $385, $400, $450, $460, $475, $495, $550, $570, $575, $595, $610, $620 and $650. (Shahian Dec., Ex. 20, p. 5.) Counsel Shahian testifies as to his extensive experience in Song Beverly litigation, but he does not seek recovery for his time supervising this matter. (Id. at ¶¶1-45, 86.) The experience and background of the remaining attorneys is set forth in Shahians declaration. (Id. at ¶¶46-84.) Based on a review of the attorneys profiles and the market rate charged for similar services based on the courts own experience, the hourly rates charged above $575 are excessive. Those hours billed at $595, $610, $620 and $650 are recalculated at the hourly rate of $575. · Avelino. 7.8 hours @ $595 for a total of $4,641 reduced to $4,485, for total reduction of $156. · Carvalho. .9 hours @ $595 for a total of $535 reduced to $517, for total reduction of $18. · Lunn. 4.9 hours @ $620 and 9.8 @ $650 for a total of $9,408 reduced to $8,452.50, for a total reduction of $955.50. · McCallister and Miller. 34.5 hours @ $595 for a total of $20,527.50 reduced to $19,837.50, for a total reduction of $690. · Vaziri. 1.2 hours @ $610 for a total of $732 reduced to $690, for a total reduction of $42. The adjustment of hourly rates claimed by six of the nineteen attorneys will also address the overstaffing issue raised by Defendant. In total, the requested fee award is reduced by $1,861.50 for excessive hourly rates. Applying this further reduction to the balance of $72,073.50, the total remaining attorneys fees total $70,212. Multiplier Relevant factors to determine whether an enhancement is appropriate include (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, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 351.) Perhaps the most common multiplier applied, at least where a plaintiff prevails, is a modifier for the contingent nature of the representation. (Id.) The court may not consider the contingent nature of the representation in both setting the lodestar and applying a modifier. (Id.) Another factor considered by a court in applying a multiplier is the result obtained. The results obtained factor can properly be used to enhance a lodestar calculation where an exceptional effort produced an exceptional benefit. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582.) The purpose of such adjustment is to fix a fee at the fair market value for the particular action. In effect, the court determines, retrospectively, whether the litigation involved a contingent risk or required extraordinary legal skill justifying augmentation of the unadorned lodestar in order to approximate the fair market rate for such services. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 833.) Plaintiff fails to present any facts that would require a multiplier to compensate counsel for their services at fair market value. The lodestar presented by counsel, as adjusted by the Court, fixes the fee at fair market value. The cases did not involve any novel legal issues. There is no justification to apply a multiplier. Costs Plaintiff includes a request for an award of costs in the amount of $11,196.06. (Shahian, Dec., Ex. 20, pp. 4-5.) Defendant objects to the costs on grounds that no supporting documentation is provided, several entries associated with the demurrer provide no explanation as to the nature of the $896.95 in costs, the basis for $2,837.89 in deposition costs when the deposition only lasted a few hours and $4,614 in unnecessary reporter fees on 1/3/24, 1/8/24 and 1/10/24. Parties stipulated that Defendant would pay Plaintiffs reasonable fees and costs. (Castro Dec., Exs. 2 and 4, ¶2.) Parties also referenced a Motion for Attorneys Fees and Costs and stipulated that Plaintiff would be prevailing party for purposes of such a motion. However, there is nothing explicitly stating that Plaintiff would not be required to file a memorandum of costs under California Rules of Court, rule 3.1700. Based on the mandatory language of California Rules of Court, rule 3.1700, Plaintiff must comply with the procedure for recovery of costs under California Rules of Court, rule 3.1700, which requires submission of a verified memorandum of costs within 15 days of mailing of notice of entry of judgment. Submission of a memorandum of costs would organize the requested costs into categories under Code of Civil Procedure section 1033.5. A memorandum of costs would also trigger Defendants right to tax those costs by noticed motion, with an opportunity to reply to any opposition. Plaintiffs request for fees by noticed motion is denied. Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700. Conclusion Plaintiffs Motion for Attorneys Fees and Costs is GRANTED as to the request for attorneys fees in the amount of $70,212. As to Plaintiffs costs, Plaintiff must file a memorandum of costs pursuant to California Rules of Court, rule 3.1700.
Ruling
SONNY'S CAR WASH SERVICES OF CALIFORNIA, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS MICHAEL MCGUINNESS, ET AL.
Jul 16, 2024 |22STCV15997
Case Number: 22STCV15997 Hearing Date: July 16, 2024 Dept: 19 RULING After consideration of the briefing filed and oral argument at the hearing, Plaintiff Sonnys Car Wash Services of California, LLCs unopposed Motion for Leave to File Second Amended Complaint is GRANTED. Although the Court grants Plaintiffs motion for leave to file the [Proposed] Second Amended Complaint, the Court denies Plaintiffs motion for an order that the [Proposed] Second Amended Complaint be deemed filed. The Court signs the proposed order filed on May 7, 2024 as modified Counsel for Plaintiff to give notice. STATEMENT OF FACTS This case arises out of alleged breach of contract and fraud. Plaintiff Sonnys Car Wash Services of California, LLC (Plaintiff) brings suit against Defendants Michael McGuinness, MC Group, LLC, McGuinness VWS, and MEP Services, Inc. (collectively, Defendants) alleging the following causes of action in the First Amended Complaint (FAC): 1. Breach of Contract; 2. Fraud; 3. Unjust Enrichment; and 4. Misappropriation of Trade Secrets. In the Third Amended Cross-Complaint (the TACC), Cross-Complainants Michael McGuinness, McGuinness VWS (VWS), and McGroup, LLC (McG) (hereafter, Cross-Complainants) bring suit against Plaintiff (hereafter, Cross-Defendant) alleging the following causes of action: 1. Breach Of Contract; 2. Third-Party Breach of Contract; 3. Fraudulent Inducement; 4. Business And Professions Code 17200; 5. Breach Of Covenant of Good Faith and Fair Dealing; 6. Conversion; and 7. Labor Code Violations. Plaintiff filed the instant Motion for Leave to File Second Amended Complaint (the Motion). GROUNDS FOR MOTION Pursuant to Code of Civil Procedure sections 473 and 576, Plaintiff moves for an order granting leave to file the [Proposed] Second Amended Complaint that makes the following amendments: (1) ¿adds claims for Fraud in the Contract Formation based on Concealment, Intentional Misrepresentation, and Negligent Misrepresentation; (2) separates the claim for Breach of Contract into separate claims for each of the ¿separate breaches, and (3) adds a claim for interference with a contractual relationship against MEP Services, Inc., and Doe Defendants Shannon McLaughlin and MOM Investments. DISCUSSION As an initial matter, Defendants do not oppose the instant Motion, effectively consenting to the Court granting it. (See Cal. R. Ct., 8.54(c) [A failure to oppose a motion may be deemed a consent to the granting of the motion.].) A. Procedural Requirements Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules Ct., rule 3.1324(a).) Under California Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier. (Cal. Rules Ct., rule 3.1324(b).) The Court finds that Plaintiff complies with California Rules of Court Rule, rule 3.1324, subdivisions (a) and (b). (See Brandon D.B. Howard Decl., ¶¶ 3, 5-33, Exs. A-B.) B. Analysis The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473(a)(1).) Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code Civ. Proc., § 576.) The policy in California is that leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 531.) Generally, leave to amend must be liberally granted provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) Here, Plaintiff moves for leave to file the [Proposed] Second Amended Complaint on the grounds that, since the Court sustained Defendants demurrer to the Second Cause of Action [Fraud] and Third Cause of Action [Unjust Enrichment] without leave to amend on the basis of the economic loss rule, Plaintiff has conducted discovery and determined ¿numerous factual issues and violations that were unknown to Sonnys at the time that relate back to the allegations and claims set forth in the FAC. (Motion, p. 2.) Plaintiff contends that the case has progressed very little. Defendants have not served written discovery on Plaintiff or taken any deposition, and the Third Amended Cross-Complaint is still not at issue. (Id.) The Court does not find that granting Plaintiff leave to file the [Proposed] Second Amended Complaint would prejudice Defendants, particularly in light of Defendants lack of opposition. The Court agrees with Plaintiff that Cross-Complainants TACC, which was just filed on July 8, 2024, is not yet at issue. Thus, the Motion is GRANTED.
Ruling
AJ PLASTERING CORPORATION VS BURRELL CONSTRUCTION, INC, A CALIFORNIA CORPORATION, ET AL.
Jul 19, 2024 |23AHCV02843
Case Number: 23AHCV02843 Hearing Date: July 19, 2024 Dept: P [TENTATIVE] ORDER RE: DEFENDANT LANAI PROPERTY LLCS DEMURRER TO COMPLAINT INTRODUCTION This action arises from an agreement to develop a multi-unit and multi-story apartment complex located at 1120 E. Valley Blvd., San Gabriel, CA, County of Los Angeles, 91776. On December 8, 2023, Plaintiff AJ Plastering Corporation (Plaintiff) initiated this action suing Defendants Burrell Construction, Inc., a California corporation; Burrell Builders d/b/a Burrell Construction, a California corporation; Lanai Property, LLC, a California limited liability company (Defendant); The Connected Companies Corporation, a California limited liability company; North River Insurance Company, a New Jersey corporation; DOES 1-40 pursuant to a Complaint alleging claims of (1) breach of contract, (2) goods and services rendered, (3) open book account, (4) breach of contract-third party beneficiary, (5) breach of the implied covenant of good faith and fair dealing, (6) unjust enrichment, (7) conversion, and (8) recovery of contactors bond. On April 15, 2024, Defendant Lanai Property, LLC, demurred to the Complaints second, third, fourth, sixth, seventh, and eighth causes of action for common count-goods and services rendered, common count-open book account, breach of contract-third party beneficiary, unjust enrichment, conversion, and negligence,. (Motion, p. 2.) The demurrer is now before the Court. II. LEGAL STANDARD "A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties." (Code Civ. Proc., § 472, subd. (a).) "All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days ... before the hearing." (Code Civ. Proc., § 1005, subd. (b).) "[T]he filing of an amended complaint moots a motion directed to a prior complaint." (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477; see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 ["[t]he filing of [a] first amended complaint render[s] [a movant's] demurrer moot since "'an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading"'" (citations omitted)].) Accordingly, a "demurrer [directed to the original pleading] should [be] taken off calendar" when an amended complaint is filed. (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506.) However, this right is limited to the amendment of a complaint initiating an action into a first amended complaint; otherwise stated, a party cannot amend an already amended complaint as a matter of course even though a demurrer has been directed to the operative and already amended pleading. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 572-579.) III. ANALYSIS The demurrer filed by Defendant Lanai Property, LLC against Plaintiffs original December 8, 2023 complaint is MOOT. The hearing on the demurrer was set for July 19, 2024. Nine court days before the hearing, on July 8, 2024, Plaintiffs filed a First Amended Complaint. Such a filing was made as a matter of course. (Code Civ. Proc., § 472, subd. (a).) The FAC superseded the original December 8, 2023, Complaint and mooted the instant demurrer. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., supra, 122 Cal.App.4th at p. 1054.) IV. ORDER Defendants Demurrer to the complaint is MOOT due to Plaintiff filing the July 8, 2024 First Amended Complaint. Dated: July 19, 2024 JARED D. MOSESJUDGE OF THE SUPERIOR COURT [TENTATIVE] ORDER RE: DEFENDANT THE CONNECTED COMPANY CORPORATIONS DEMURRER TO THE COMPLAINT INTRODUCTION This action arises from an agreement to develop a multi-unit and multi-story apartment complex located at 1120 E. Valley Blvd., San Gabriel, CA, County of Los Angeles, 91776. On December 8, 2023, Plaintiff AJ Plastering Corporation (Plaintiff) initiated this action suing Defendants Burrell Construction, Inc., a California corporation; Burrell Builders d/b/a Burrell Construction, a California corporation; Lanai Property, LLC, a California limited liability company; The Connected Companies Corporation, a California limited liability company (Defendant); North River Insurance Company, a New Jersey corporation; DOES 1-40 pursuant to a Complaint alleging claims of (1) breach of contract, (2) goods and services rendered, (3) open book account, (4) breach of contract-third party beneficiary, (5) breach of the implied covenant of good faith and fair dealing, (6) unjust enrichment, (7) conversion, and (8) recovery of contactors bond. On April 15, 2024, Defendant The Connected Companies Corporation demurred to the Complaints second, third, fourth, sixth, seventh, and eighth causes of action for common count-goods and services rendered, common count-open book account, breach of contract-third party beneficiary, unjust enrichment, conversion, and negligence,. (Motion, p. 2.) The demurrer is now before the Court. II. LEGAL STANDARD "A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties." (Code Civ. Proc., § 472, subd. (a).) "All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days ... before the hearing." (Code Civ. Proc., § 1005, subd. (b).) "[T]he filing of an amended complaint moots a motion directed to a prior complaint." (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477; see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 ["[t]he filing of [a] first amended complaint render[s] [a movant's] demurrer moot since "'an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading"'" (citations omitted)].) Accordingly, a "demurrer [directed to the original pleading] should [be] taken off calendar" when an amended complaint is filed. (People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506.) However, this right is limited to the amendment of a complaint initiating an action into a first amended complaint; otherwise stated, a party cannot amend an already amended complaint as a matter of course even though a demurrer has been directed to the operative and already amended pleading. (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 572-579.) III. ANALYSIS The demurrer filed by Defendant against Plaintiffs December 8, 2023 complaint is MOOT. The hearing on the demurrer was set for July 19, 2024. Nine court days before the hearing, on July 8, 2024, Plaintiffs filed a First Amended Complaint. This filing was made as a matter of course. (Code Civ. Proc., § 472, subd. (a).) The FAC superseded the original complaint and mooted the instant demurrer. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc., supra, 122 Cal.App.4th at p. 1054.) IV. CONCLUSION Defendant's Demurrer to the Complaint is MOOT due to Plaintiff filing the July 8, 2024 First Amended Complaint. Dated: July 19, 2024 JARED D. MOSESJUDGE OF THE SUPERIOR COURT
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