E-FILED SUMMONS ISSUED August 28, 2024 (2024)

Case

RAMIREZ, WIMING vs AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA

Aug 26, 2024 |Chandler, Cory |Civil |CC Breach of Contract $30,000.01 to $50,000.00 |24-CC-048209

Case

Citibank N.A. vs Salmeron Castillo, Zilma N

Aug 26, 2024 |Makholm, Marc. S |Civil |CC Breach of Contract $15,000.01 to $30,000.00 |24-CC-048264

Case

Restocon Corporation vs Slater, Thomas

Aug 30, 2024 |Daniel, Helene. L |Civil |Breach of Contract |24-CA-007127

Case

Jpmorgan Chase Bank, N.A. vs Dahlstrom, Mitchell M

Aug 26, 2024 |Smith, Matthew. A |Civil |SC Breach of Contract-Tier 5 $5,000.01-$8,000.00 |24-CC-048259

Case

Geico Advantage Ins Co vs Erie Insurance Co.

Aug 21, 2024 |Smith, Matthew. A |Civil |CC Breach of Contract $15,000.01 to $30,000.00 |24-CC-047231

Case

SYNOVUS BANK vs YAC STONE SOLUTION LLC

Aug 21, 2024 |Giardina, James. S |Civil |CC Breach of Contract $30,000.01 to $50,000.00 |24-CC-047298

Case

Capital One, N.A. vs Garcia, Vianey

Aug 27, 2024 |Chandler, Cory |Civil |CC Breach of Contract $8,000.01 to $15,000.00 |24-CC-048700

Case

Forsythe Finance Llc vs Joseph, Ashley

Aug 22, 2024 |Valkenburg, Miriam. V. |Civil |SC Breach of Contract-Tier 4 $2,500.01-$5,000.00 |24-CC-047752

Case

AMERICAN EXPRESS NATIONAL BANK vs TZELEPIS, ALEX D

Aug 22, 2024 |Felix, Matthew |Civil |SC Breach of Contract-Tier 5 $5,000.01-$8,000.00 |24-CC-047740

Ruling

['CAMPOS, AUSTIN ET AL V. FORD MOTOR COMPANY ET AL', 'CITY OF CHICO, PSI, ADMINISTERED BY SEDGWICK V. ORNELAS-']

Aug 28, 2024 |22CV02432

22CV02432 CAMPOS, AUSTIN ET AL V. FORD MOTOR COMPANY ET ALEVENT: Plaintiffs’ Motion for Attorneys’ Fees, Costs and ExpensesThe Court will hear from counsel.7-||8. 23CV00398 CITY OF CHICO, PSI, ADMINISTERED BY SEDGWICK V. ORNELAS-LUNA, JAIME ET ALEVENTS: (1) Defendant Yohana Garcia’s Motion to Enforce Order re: Motion to CompelResponses to Requests for Production of Documents, Set One; Request forMonetary, Issue and Terminating Sanctions(2) Defendant Yohana Garcia’s Motion to Enforce Order re: Motion to CompelResponses to Special Interrogatories, Set One; Request for Monetary, Issue andTerminating SanctionsAs an initial matter, Plaintiff’s request for a “reversal” of the May 29, 2024 Orders basedon untimely notice is procedurally improper and untimely, and such request is denied.Defendant Yohana Garcia’s Motions to Enforce Order re: Motion to Compel Responsesare granted, in part.The Court finds that Plaintiff has failed to comply with this Court’s May 29, 2024 Ordersand the Court orders that Plaintiff City of Chico, PSI, Administered by Sedgwick providefurther responses to Requests for Production of Documents, Set One and SpecialInterrogatories, Set One, and payment of the previously issued sanctions no later thanclose of business on September 4, 2024.The Court finds that there has been no showing of ongoing and willful disobedience of aCourt's discovery order nor blatant and ongoing abuse of the discovery process thatrises to the level of discovery abuse to support terminating sanctions. As such,terminating sanctions are not warranted on this record. See, Liberty Mutual Fire Ins. Co.v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093.Defendant’s request for further monetary sanctions is denied. Defendant shall submit arevised form of order consistent with this ruling within two weeks.3|Page

Ruling

DOWNARD VS. GOLDMAN

Aug 29, 2024 |CVCV20-0195408

DOWNARD VS. GOLDMANCase Number: CVCV20-0195408This matter is on calendar for review regarding status of sale. The Court notes that Defendant filed a Motion forEntry of Final Judgment on Accounting and for Distribution of Proceeds of Sale that was denied without prejudiceon August 5, 2024 due to a lack of notice. The Court is therefore aware that the property has sold. Defendanthas not refiled the motion with proper notice, but it appears from the Petitioner’s Status Report filed August 22,2024 that a stipulation for entry of judgment is being considered by the parties. The matter is continued toMonday, October 28, 2024 at 9:00 a.m. in Department 63 for status of the case. No appearance is necessaryon today’s calendar.

Ruling

TJG/Summitt Development Corporation vs. North State Grocery, Inc.

Aug 29, 2024 |22CV-0200775

TJG/SUMMITT DEVELOPMENT CORPORATION VS. NORTH STATE GROCERY, INC.Case Number: 22CV-0200775This matter is on calendar for review regarding trial re-setting. The litigation is at issue. The Court designatesthis matter as EXEMPT from the case disposition time standards. The matter is ready to be re-set for a court trial.An appearance is necessary on today’s calendar to provide the Court with available trial dates.

Ruling

Martin Esqueda vs. Hyundai Motor America

Aug 29, 2024 |23CECG01671

Re: Esqueda v. Hyundai Motor America Superior Court Case No. 23CECG01671Hearing Date: August 29, 2024 (Dept. 503)Motion: By Defendant Hyundai Motor America to Compel Arbitration, and Request for StayTentative Ruling: To deny the motion to compel arbitration in its entirety, and request for stay.Explanation: Plaintiff Martin Esqueda (“Plaintiff”) filed the present action regarding thepurchase of a 2020 Hyundai Elantra, which Plaintiff alleges came with manufacturerwarranties. Problems with the vehicle ensued which form the basis of the instantcomplaint for damages. Plaintiff brought three causes of action against defendantHyundai Motor America (“Defendant”), for breach of express warranties affordedthrough the Song-Beverly Act; breach of implied warranties afforded through the Song-Beverly Act, and violation of section 1793.2 of the Civil Code.1 The agreement is a retailinstallment sales contract (“RISC”) made between Plaintiff and a non-party, LithiaHyundai of Fresno. Defendant submits again for consideration that arbitration is warranted due toPlaintiff’s agreement to do so in the Owner’s Handbook and Warranty Informationmanual (“the Manual”); and in the RISC with a non-party, under the theory of equitableestoppel.Compel Arbitration A trial court is required to grant a motion to compel arbitration “if it determinesthat an agreement to arbitrate the controversy exists.” (Code Civ. Proc. § 1281.2)However, there is “no public policy in favor of forcing arbitration of issues the parties havenot agreed to arbitrate.” (Garlach v. Sports Club Co. (2012) 209 Ca1.App.4th 1497, 1505)Thus, in ruling on a motion to compel arbitration, the court must first determine whetherthe parties actually agreed to arbitrate the dispute. (Mendez v. Mid-Wilshire Health CareCenter (2013) 220 Cal.App.4th 534, 541.) Defendant is not a signatory to either arbitration agreement in question. (SeeMayo Decl., ¶ 2, Ex. A.) Generally speaking, one must be a party to an arbitrationagreement to be bound by it or invoke it. (Westra v. Marcus & Millichap Real EstateInvestment Brokerage Co., Inc. (2005) 129 Cal.App.4th 759, 763.) Strong public policy infavor of arbitration does not extend to those who are not parties to an arbitration1 Plaintiff’s Objections to the Declaration of James P. Mayo are overruled in their entirety.agreement, and a party cannot be compelled to arbitrate a dispute that he has notagreed to resolve by arbitration. (Buckner v. Tamarin (2002) 98 Cal.App.4th 140, 142.)However, both California and federal courts have recognized limited exceptions to thisrule, allowing nonsignatories to an agreement containing an arbitration clause tocompel arbitration of, or be compelled to arbitrate, a dispute arising within the scope ofthat agreement. (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1352.)Owner’s Manual Defendant submits that there is an arbitration provision housed in the Manual.Plaintiff admits to having received a copy of the Manual. (Mayo Decl., ¶ 7, Ex. E, Responseto Request for Admission No. 5.) The Manual appears to have provisions pertaining toCalifornia vehicles only. (Mayo Decl., ¶ 3, Ex. B, pp. 13-14.) As Plaintiff notes in opposition, nothing in the Manual suggests that a contract wascreated. Among other things, essential to a contract are: parties capable of contracting;and their consent. (Civ. Code § 1550.) Nowhere in the Manual is there any indication ofwho “you and we” are, in the statement “you and we each agree that any claim ordisputes between us…”. (See Mayo Decl., ¶ 3, Ex. B, p. 13.) Neither is there, anywhere inthe Manual, any indication that the ill-defined parties to these writings manifested anyassent to be bound by the terms therein. Terms of a contract are ordinarily to be determined by an external, not an internalstandard; the outward manifestation or expression of assent is the controlling factor.(Windsor Mills, Inc. v. Collins & Aikman Corp. (1972) 25 Cal.App.3d 987, 992.) Where anofferee does not know that a proposal has been made to him, this objective standarddoes not apply. (Id. at p. 993.) An offeree, regardless of apparent manifestation of hisconsent, is not bound by inconspicuous contractual provisions of which he was unaware,contained in a document whose contractual nature is not obvious. (Ibid.) This principleof knowing consent applies with particular force to provisions for arbitration; if a partywishes to bind in writing another to an agreement to arbitrate future disputes, suchpurpose should be accomplished in a way that each party to the arrangement will fullyand clearly comprehend that the agreement to arbitrate exists and binds the partiesthereto. (Id. at pp. 993-994.) Plaintiff expressly rejects that he ever signed any agreement under the Manual.(Esqueda Decl., ¶¶ 6-7.) Plaintiff further declared that he had no notice from either thenon-party seller nor Defendant that there was any agreement to arbitrate in the Manual,and that his failure to opt out constituted an agreement. (Id., ¶ 6.) On reply, Defendantdoes not refute Plaintiff’s statements, focusing instead on unconscionability.Unconscionability presupposes the existence of a valid agreement. Based on the above, the court finds that the Manual is not an enforceable writtenagreement to arbitrate. (Windsor Mills, Inc. v. Collins & Aikman Corp., supra, 25Cal.App.3d at pp. 993-994 [finding that where a plaintiff was not advised of thearbitration provision and had no knowledge of the provision until after the demand forarbitration, there is no agreement to arbitrate, regardless of outward manifestations ofapparent assent by acceptance of the object of the contract].) The parties to thispurported agreement are not defined, nor is there any indication of assent by anypurported party to be bound by the terms therein. Even if there had been, because ofthe nature of the agreement is for arbitration, the party sought to be compelled toarbitration must have demonstrated knowledge or expectation of the provision. All ofthese factors are absent as to the Manual. Accordingly, the motion is denied as to theManual.Pertinent Language of the RISC Defendant renews its prior argument regarding the doctrine of equitable estoppelto preclude Plaintiff from honoring the arbitration provision in the RISC. As pertinent to the issue of standing to compel arbitration based on eitherequitable estoppel, the arbitration provision included in the agreement Plaintiff signedreads as follows: 1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN US DECIDED BY ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. […] Any claim or dispute, whether in contract, tort, statute or otherwise… between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. (Mayo Decl., ¶ 2, Ex. A.) The first page of the five-page agreement indicates that the word “you” refers to“the Buyer” (i.e., Plaintiff), and the words “we” or “us” refers to the “Seller – Creditor” (i.e.,Lithia Hyundai of Fresno.). (Mayo Decl., ¶ 2, Ex. A.) Defendant is neither of these partiesand cannot be said to have “express” authority to compel arbitration under the plainlanguage of the arbitration agreement. Governing Law The arbitration provision provides that “[a]ny arbitration under this ArbitrationProvision shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and notby any state law concerning arbitration.” (Mayo Decl., ¶ 2, Ex. A.) Even where anarbitration provision falls under the purview of the Federal Arbitration Act, “[b]ecause theCalifornia procedure for deciding motions to compel serves to further, rather than defeat,full and uniform effectuation of the federal law’s objectives, the California law, ratherthan section 4 of the [United States Arbitration Act], is to be followed in California courts.”(Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 410; see also ArthurAndersen LLP v. Carlisle (2009) 556 U.S. 624, 632 [holding that “a litigant who was not partyto the relevant arbitration agreement may invoke [a stay pending arbitration] if therelevant state contract law allows him to enforce the agreement.”][emphasis added]) Equitable Estoppel “The sine qua non for allowing a nonsignatory to enforce an arbitration clausebased on equitable estoppel is that the claims the plaintiff asserts againstthe nonsignatory are dependent on or inextricably bound up with the contractualobligations of the agreement containing the arbitration clause.” (Goldman v. KPMG,LLP (2009) 173 Cal.App.4th 209, 213-214.) Even if a plaintiff’s claims touch matters relatingto the arbitration agreement, the claims are not arbitrable unless the plaintiff relies on theagreement to establish its cause of action. (Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th541, 552.) “The reason for this equitable rule is plain: One should not be permitted to relyon an agreement containing an arbitration clause for its claims, while at the same timerepudiating the arbitration provision contained in the same contract.” (DMS Services,LLC, supra, 205 Cal.App.4th at p. 1354.) Defendant argues that the claims for warranties are premised on, and arise out ofthe RISC that houses the arbitration agreement. Specifically, Defendant argues that hadthere not been a purchase agreement, Defendant would not have issued any of thewarranties upon which Plaintiff now relies. In other words, Plaintiff’s complaint presumesthe existence of the underlying installment contract between Plaintiff and Lithia Hyundaiof Fresno that houses the arbitration provision. However, a plain reading of the installmentcontract reveals that, as to warranties: If you do not get a written warranty, and the Seller does not enter into a service contract within 90 days from the date of this contract, the Seller makes no warranties, express or implied, on the vehicle, and there will be no implied warranties of merchantability or of fitness for a particular purpose. This provision does not affect any warranties covering the vehicle that the vehicle manufacturer may provide. If the Seller has sold you a certified used vehicle, the warranty of merchantability is not disclaimed. (Mayo Decl., ¶ 2, Ex. A [emphasis original].)In other words, the RISC distinguishes and separates the manufacturer warranties from itsterms. It does not follow that Plaintiff’s complaint, arising out of manufacturer warranties,presumes the presence of the RISC. State decisions are split as to how to treat Defendant’s relationship with Plaintiffunder the RISC. Defendant relies on Felisilda v. FCA US LLC, in arguing that it, as a non-signatory to the arbitration agreement may still compel arbitration under equitableestoppel. (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 498 [“Felisilda”].) In Felisilda,the motion to compel arbitration was filed by the dealership (Elk Grove Dodge), andincluded a request that its co-defendant, manufacturer FCA, US, LLC (FCA) also beincluded as a party to the arbitration. (Ibid.) FCA filed a notice of nonopposition. (Ibid.)The trial court granted the motion. After the motion was granted, plaintiff dismissed ElkGrove Dodge. (Id. at p. 489.) FCA prevailed at arbitration, and the Felisildas appealed.The appellate court found that it was appropriate to compel arbitration based on thetheory of equitable estoppel. (Id. at p. 497.) Defendant argues that this case controls,and mandates that this court find that it has standing to compel arbitration pursuant tothe purchase agreement which is virtually identical to the one in Felisilda. On the other hand, Plaintiff relies on In re Ford Motor Warranty Cases, which standsfor the opposite conclusion to Felisilda, and adopts the reasoning set forth in a federalopinion, Ngo v. BMW of North America, LLC (“Ngo”). (In re Ford Motor Warranty Cases(2023) 89 Cal.App.5th 1324, 1337.)2 Ngo held that Song-Beverly Act claims are notintertwined with the terms of the purchase agreement. (Ngo v. BMW of North America,LLC (9th Cir. 2022) 23 F.4th 942, 947.) The Ngo court rejected the manufacturer’sargument that the warranties and the purchase agreement were intertwined becauseno warranties would have issued absent the purchase. (Ibid.) The Ngo court stated that,“under California law, warranties from a manufacturer that is not a party to the salescontract are ‘not part of [the] contract of sale.’” (Id. at p. 949, citing Corp. of PresidingBishop of Church of Jesus Christ of Latter-Day Saints v. Cavanaugh (1963) 217 Cal.App.2d492, 514.) Where there is a conflict of appellate decisions, the trial court can and must makea choice between the conflicting decisions. (Auto Equity Sales, Inc. v. Superior Court(1962) 57 Cal.2d 450, 456.) This court follows In re Ford Motor Warranty Cases and finds that the Ngo holdingon this issue as persuasive because the reasoning relies on California law and isanalytically sound. A careful review of the complaint reveals no claims being madeunder the RISC, only under those warranties related to the Song-Beverly Act codifiedunder Civil Code section 1790 et seq. Consistent with California law, the terms of thepurchase agreement make a clear separation between it and manufacturer warranties.(Mayo Decl., ¶ 2, Ex. A; In re Ford Motor Warranty Cases, supra, 89 Cal.App.5th at p. 1334.) The court distinguishes the present case from Felisilda. The motion in Felisilda wasby the dealership and not the manufacturer, which took no part in the motion beyondfiling a notice of nonopposition. Here, the dealership is not the party seeking to compelarbitration or even a party to this action. This is a significant difference and limits theapplication of Felisilda. At best, Felisilda stands for the proposition that, where a plaintiffbuyer files a complaint against both the dealership and the manufacturer, the dealershipcan compel plaintiff to arbitrate the claims against both. This is consistent with thelanguage of the arbitration agreement, since it provides that any claim or dispute “whicharises out of or relates to your . . . purchase or condition of this vehicle . . . or any resultingtransaction or relationship (including any such relationship with third parties who do notsign this contract) shall, at your or our election be resolved” by arbitration. (AmeripourDecl., ¶ 4, Ex. 2 [emphasis added].) As defined by the contract, the word “our” meansLithia Hyundai of Clovis, not Defendant. Thus, under the express language of thearbitration clause, arbitration could be compelled on behalf of a third party non-signatory, and there is nothing in this language authorizing it to be compelled by a third2On July 19, 2023, the California Supreme Court granted review of In re Ford Motor WarrantyCases. Pending review, the California Supreme Court has authorized that In re Ford MotorWarranty Cases may continue to be cited, not only for its persuasive value, but also for the purposeof allowing trial courts to exercise discretion to choose between conflicts of law. (In re Ford MotorWarranty Cases, review granted July 19, 2023, S279969.)party non-signatory. (In re Ford Motor Warranty Cases, supra, 89 Cal.App.5th at pp. 1334-1335.) Accordingly, the court finds that Plaintiff is not estopped from resisting arbitrationof his claims against Defendant. For the reasons above, the motion as to compelling arbitration based on the RISCis denied, as is the request for stay.3 Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 8/28/24 . (Judge’s initials) (Date)3 Plaintiff’s Request for Judicial Notice is granted only to the extent that such opinions exist.

Ruling

Sara Coon vs Cedar Street Santa Cruz, LP

Aug 29, 2024 |22CV02745

22CV02745COON v. CEDAR STREET SANTA CRUZ, LP DEFENDANT’S MOTION TO STRIKE AND DEMURRER TO THE FIRST AMENDED COMPLAINT The demurrer is sustained without leave to amend. The motion to strike the punitivedamages request is granted without leave to amend. The motion to strike the remainder of therequested portions of the FAC is granted, without leave to amend. I. BACKGROUND AND FIRST AMENDED COMPLAINT This case involves allegations of a refusal to return a security deposit from a landlord to atenant as well as habitability issue. The original complaint was filed on 12/14/22 and a firstamended complaint (“FAC”) was filed on 5/21/24. Plaintiff alleges she is a disabled person as defined by Civil Code section 3345 and thatshe rented a home located at 517 Cedar St. #25, Santa Cruz. The security deposit was $3,170.00,which plaintiff asserts she paid to defendant, Cedar Street Santa Cruz, LP. Plaintiff moved intothe home on 2/5/19 and moved out on 10/31/22. Plaintiff asserts defendant illegally took portionsof the security deposit: • $300.00 non-refundable cleaning deposit related to the common areas of the building (pursuant to defendant’s response to special interrogatories nos. 1 and 5, attached to the FAC as Exhibit 2). • $1,285.00 for cleaning the rental (pursuant to defendant’s responses to special interrogatories nos. 1 and 5, attached to the FAC as Exhibit 2). Plaintiff contends defendant did not comply with Civil Code section 1950.5: defendantfailed to notify plaintiff about their right to initial inspection, and any deductions from thesecurity deposit is per se illegal. Plaintiff alleges that due to this violation, defendant could notlegally make the deductions, which had to be returned within 21 days of departing the rental unit. Plaintiff asserts defendant also failed to provide an itemized statement to plaintiff within21 days of plaintiff moving out; failed to provide documents supporting the itemized deductionswithin 21 days of plaintiff moving out, failed to obtain express consent from plaintiff to acceptthe itemized and supporting documents by electronic means, and failed to obtain express consentfrom plaintiff to receive the security deposit by electronic means. (FAC at ¶¶ 32-37.) Page 1 of 14 Causes of action alleged are as follows: (1) unlawful retention of security depositpursuant to Civil Code section 1950.5, (2) breach of residential lease agreement, (3) negligence,(4) conversion, (5) violation of Business and Professions Code section 17200, (6) declaratoryrelief pursuant to Code of Civ. Procedure section 1950.5, (7) breach of warranty of habitability(mold infestation), and (8) violation of Civil Code section 1942.4 for allowing the rental unit tofall into a state of disrepair. Plaintiff seeks damages related to the unreturned security deposit,punitive damages, general damages, attorney fees and costs, statutory damages. Attached to the FAC as Exhibit 1 is the rental agreement between plaintiff and defendantand attached as Exhibit 2, are a portion of defendant’s verified responses to certain specialinterrogatories, propounded by plaintiff’s counsel. Of note, in a verified response to specialinterrogatories numbers 1 and 5, defendant states plaintiff did not pay the deposit at issue.Instead, the deposit was paid by the Homeless Services Center. II. DEMURRER AND MOTION TO STRIKE a. Demurrer Defendant’s primary argument is that the deposit at issue was paid by the HomelessService’s Center, not by plaintiff and that after plaintiff’s tenancy was terminated, the remainderof the deposit, after deductions, was sent to the Homeless Services Center. (FAC at ¶¶ 28, 25,and 26, Ex. 2 to FAC, pgs. 3 – 4.) Defendant demurs to the first, second, fourth, and fifth causesof action on the basis that FAC incorporated exhibits which demonstrate plaintiff did not pay thesecurity deposit and therefore, she failed to state a cause of action for a violation of Civil Codesection 1950.5, failed to state a cause of action for breach of contract, failed to state a cause ofaction for conversion, and failed to state a cause of action for a violation of Business andProfessions Code section 17200. b. Motion to Strike Defendant moves to strike the following section of the FAC as follows: 1. Paragraphs 1 – 5 in their entirety, appearing on page 2, line 2, through and including page 3, line 2. These paragraphs outline general statements concerning security deposits and references to a study regarding security deposit retention by landlords. 2. Paragraphs 45 – 47 in their entirety, appearing on page 11, lines 8 – 18. These paragraphs contain general statements regarding moving, the costs associated with moving, and security deposits. 3. Paragraph 60 in its entirety, appearing on page 12, lines 25 – 27, relating to an award for exemplary/punitive damages. Page 2 of 14 4. Paragraph 83 in its entirety, appearing on page 14, lines 23 – 24 relating to punitive damages. 5. Paragraph 94 in its entirety, appearing on page 16, lines 15 -16 relating to “[punitive] damages.” 6. Paragraph 96 in its entirety, appearing on page 16, lines 19 – 20, relating to punitive damages. 7. Paragraph 108(e) in its entirety, appearing on page 18, lines 15 -2- stating that plaintiff and other tenants are entitled to restitution of all sums collected by defendant over the four years prior to the filing of this complaint from residential tenants and statutory damages for each of those tenants who had their deposits illegally deducted. 8. Paragraph 140 in its entirety, appearing on page 22, lines 1 -3, relating to punitive damages. 9. From the Prayer for Relief, paragraph F in its entirety, appearing on page 24, line 20, regarding punitive damages. 10. From the Prayer for Relief, paragraph G(vi), appearing on page 25, lines 7- 12. III. DISCUSSION a. Demurrer The basis for defendant’s demurrer is Exhibit 2 to the FAC, an excerpt from defendant’sverified responses to special interrogatories. The responses state plaintiff did not pay the securitydeposit but instead it was paid by the Homeless Services Center. The FAC, in contradiction,alleges plaintiff paid the deposit. A demurrer challenges only defects on the face of the pleadings or those matters whichare judicially noticeable. In this case, the allegations in the FAC are contradicted by the exhibitwhich is attached to the FAC. Defendant asserts the court can consider these exhibits, citingNealy v. Couty of Orange (2020) 54 Cal.App.5th 594. In Nealy, the court noted that in addition tothe pleading itself, “[w]e may also look to exhibits attached to the complaint for operativefacts.[Citations.] And because the ‘allegations that we accept as true necessarily include thecontents of any exhibits attached to the complaint, … in the event of a conflict between thepleading and an exhibit, the facts contained in the exhibit take precedence over and supersedeany inconsistent or contrary allegations in the pleading.’ [Citation.]” (Id. at p. 596-597.) “Thewell-pled allegations that we accept as true necessarily include the contents of any exhibitsattached to the complaint. Indeed, the contents of an incorporated document (in this case, theagreement) will take precedence over and supersede any inconsistent or contrary allegations setout in the pleading. In the case of such a conflict, we will look solely to the attached exhibit.”(Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409.) Page 3 of 14 In the FAC, plaintiff alleges she paid the security deposit yet the attached exhibit,defendant’s verified responses to special interrogatories, states the deposit in question was paidby Homeless Services Center, not by plaintiff. The FAC expressly refers to the discoveryresponses (see FAC ¶¶ 25 – 27), to support her claim that deductions were taken from thedeposit. However, plaintiff completely disregards the other part of the discovery responses, thatis, that she did not pay the deposit. Plaintiff does not address this discrepancy in her opposition.As a result, the demurrers are sustained without leave to amend. b. Motion to Strike Defendant seeks an order to strike the claims relating to the prayer for punitive damages,the claim for disgorgement of fees to non-party tenants, and to strike the irrelevant languagefrom the FAC regarding general background information on security deposits in California and astudy relating to withheld security deposits. These motions are granted. The primary crux of the FAC is that defendant failed to return the security deposit andfailed to provide an itemized statement of deductions. Plaintiff also alleges the condition of therental, due to untreated mold problems, created a breach of the warranty of habitability and aviolation of Civil Code section 1942.4. First, defendant contends the first five paragraphs of the FAC that consist of statementsabout the general problem of retention of security deposits and a summary of a 2013 studyrelated to this topic are improper and should be stricken. In addition, paragraphs 45 - 47 of theFAC concern tenants in general and their expectations regarding the return of deposits and whathappens to tenants in general when deposits are not returned. Defendant asserts these paragraphsshould all be stricken as irrelevant and immaterial pursuant to Code of Civil Procedure sections436 and 431.10, subdivision (c). Defendant’s argument is well-taken. These paragraphs havenothing to do with the particular case brought by plaintiff and are not essential or pertinent to theclaims. This is particularly true given the exhibit attached to the FAC indicating plaintiff did notactually pay the security deposit. The motion to strike these paragraphs is granted as requested,without leave to amend. Second, defendant seeks to strike the claims for disgorgement of fees collected from non-party tenants in connection with her claim for Business and Professions Code section 17200.This motion is granted in light of the court’s ruling on the demurrer as to this cause of action,without leave to amend. Finally, defendant moves to strike refences to and requests for punitive damages. “[A]motion to strike [punitive damages] may lie where the facts alleged do not rise to the level of‘malice, fraud, or oppression’ required to support a punitive damages award.” (Weil & BrownCivil Procedure Before Trial (TRG 2023) § 7:186.) Plaintiff, in her opposition, refers to her Page 4 of 14original complaint, which contains some different causes of action than the FAC and does notattach the discovery responses. However, it is this FAC which is before the court. Civil Code section 3294, subdivision (a) states that “[i]n an action for the breach of anobligation not arising from contract, where it is proven by clear and convincing evidence that thedefendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actualdamages, may recover damages for the sake of example and by way of punishing the defendant.” Civil Code section 3294 defines malice, oppression and fraud. Malice is “conduct whichis intended by the defendant to cause injury to the plaintiff or despicable conduct which is carriedon by the defendant with a willful and conscious disregard of the rights or safety of others.”Oppression is characterized as “despicable conduct that subjects a person to cruel and unjusthardship in conscious disregard of that person’s rights.” Finally, fraud is defined as “anintentional misrepresentation, deceit, or concealment of a material fact known to the defendantwith the intention on the part of the defendant of thereby depriving a person of property or legalrights or otherwise causing injury.” (See Civil Code § 3294, subd. (c)(1) – (3).) The cases interpreting section 3294 make it clear that in order to warrant the allowance ofpunitive damages the act complained of must not only be willful in the sense of intentional, but itmust also be accompanied by aggravating circ*mstances, amounting to malice. The malicerequired implies an act conceived in a spirit of mischief or with criminal indifference towards theobligations owed to others. There must be an intent to vex, annoy or injure. Mere spite or ill willis not sufficient; and mere negligence, even gross negligence is not sufficient to justify an awardof punitive damages. [Citations.]” (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) In this case, there are insufficient facts pled to support a claim for punitive damages,particularly in light of the attached exhibit to the FAC showing plaintiff did not pay the depositwhich is the primary basis for the FAC and which is uncontested by plaintiff in her opposition.Further, defendant is a corporate entity. “Corporations are legal entities which do not have mindscapable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damageagainst a corporation therefore must rest on the malice of the corporation's employees.” (Cruz v.Homebase (2000) 83 Cal.App.4th 160, 167.) While punitive damages liability can be imputedupon a corporate entity in certain circ*mstances (see Civil Code section 3294), the FAC does notcontain any allegations which could be a basis for punitive damages as to this defendant. The motion to strike punitive damages is granted. When read as a whole, the FAC doesnot set forth a theory for recovery of punitive damages. Leave to amend is not granted. Shouldplaintiff later find additional facts to support a claim for punitive damages against defendant, shecan seek leave to amend the complaint. Page 5 of 14Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

BRUCE FISHMAN, M.D., ET AL. VS PATRICK NAZEMI, ET AL.

Aug 30, 2024 |20STCV34289

Case Number: 20STCV34289 Hearing Date: August 30, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT BRUCE E. FISHMAN, M.D., et al., Plaintiffs, vs. PATRICK NAZEMI, et al., Defendants. CASE NO.: 20STCV34289 [TENTATIVE] ORDER RE: MOTION FOR ORDER TO REQUIRE POSTING OF BOND PURSUANT TO CCP § 917.9(a)(3) Date: August 30, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Defendants MLA DEFINED BENEFIT PENSION PLAN and MLA MONEY PURCHASE PENSION PLAN (Judgment Creditors) RESPONDING PARTY: None The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) On September 9, 2020, Plaintiffs filed a complaint (Complaint) against Judgment Creditors and other defendants, asserting the following causes of action: (1) intentional fraudulent transfer; (2) fraudulent transfer; (3) transfer resulting in debtors insolvency; (4) common law fraudulent transfer; (5) aiding and abetting fraudulent transfer; (6) declaratory relief; and (7) unjust enrichment. On May 31, 2023, MLA Defined Benefit Pension Plan filed a cross-complaint (Cross-Complaint) against Plaintiffs seeking a declaratory judgment. On the same date, Judgment Creditors filed a Motion for Summary Judgment relating to the Complaint and relating to the Cross-Complaint. On September 27, 2023, summary judgment was granted in favor of Judgment Creditors as to the Complaint and in favor of MLA Defined Benefit Pension Plan as to the Cross-Complaint. On November 2, 2023, the Court issued a Judgment in favor of Judgment Creditors and against Plaintiffs. On November 3, 2023, a Notice of Judgment was served on counsel for Plaintiffs. On February 2, 2024 (more than 60 days after Notice of the original Judgment against Plaintiffs and in favor of Judgment Creditors was served), Plaintiffs filed a Notice of Appeal. On April 4, 2024, this Court issued an Amended Judgment amending the original Judgment to assess attorneys fees in the amount of $68,835. On July 26, 2024, Judgment Creditors filed the instant Motion for Order to Require Posting of Bond Pursuant to CCP § 917.9(a)(3) (the Motion). On August 16, 2024, the Court of Appeal (Second District) issued an order dismissing Plaintiffs appeal due to default. On the Courts own motion, the hearing for the Motion is continued until October 23, 2024. Moving party is ordered to give notice of this ruling. Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. Dated this 30th day of August 2024 Hon. Holly J. Fujie Judge of the Superior Court

Ruling

RICHARD SWEET, ET AL. VS ARCHIBUILDZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY

Aug 28, 2024 |23STCV12448

Case Number: 23STCV12448 Hearing Date: August 28, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 28, 2024 TRIAL DATE: September 16, 2024 CASE: Richard Sweet, et al. v. Archibuildz, LLC CASE NO.: 23STCV12448 MOTION TO DEEM REQUESTS FOR ADMISSION, SET ONE, ADMITTED MOVING PARTY: Plaintiffs Richard Sweet, et al. RESPONDING PARTY: No opposition I. FACTUAL AND PROCEDURAL BACKGROUND On July 12, 2024, Plaintiffs Richard Sweet, Lori Sweet, individually and as Co-Trustees of the Sweet Living Trust, filed this motion to deem Plaintiffs Requests for Admissions, Set One, admitted (the Motion) against Defendant Archibuildz, LLC. Plaintiffs seek sanctions against Defendant and its counsel. On July 16, 2024, Plaintiffs filed an ex parte application to specially set the hearing on Plaintiffs Motion. The application was heard by Judge Escalante in Department 24 due to unavailability of this department. Judge Escalante granted the application and specially set the hearing for August 28, 2024. The Motion is unopposed. II. LEGAL STANDARD If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted.¿ (Code Civ. Proc., § 2033.280, subd. (b).)¿ Failure to timely serve responses waives objections to the requests. ¿(Code Civ. Proc., § 2033.280, subd. (a).)¿ ¿ ¿ Monetary Sanctions¿¿ ¿¿ Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for misuse of the discovery process, which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿¿ ¿¿¿ If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿ ¿¿¿ In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).)¿ Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿¿¿ ¿¿¿¿¿ By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a partys attorney unless the court finds that the attorney advised the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the attorney advis[ed] that conduct. (Ibid.) It is not enough that the attorney's actions were in some way improper. (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is peculiarly within [his or her] knowledge, the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿¿ III. DISCUSSION It is undisputed that Plaintiffs properly served Defendant with Requests for Admissions, Set One, on May 30, 2024. To date, Defendant has not responded. (See Declaration of Rebecca D. Wester, ¶¶ 3-4.) Accordingly, Plaintiffs are entitled to an order deeming Plaintiffs Requests for Admissions admitted against Defendant. Monetary Sanctions Plaintiffs request sanctions against Defendant. Given the courts ruling, sanctions are mandatory.¿ (Code Civ. Proc., § 2033.280, subd. (c).)¿ Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel does not meet their burden.¿ Accordingly, sanctions are imposed against Defendant and its counsel of record in the amount of $1,350, consisting of two hours at defense counsels hourly rate. Accordingly, sanctions are imposed against Defendant and its counsel in the sum of $675, consisting of one and a half hours at Plaintiffs counsels hourly rate. IV. CONCLUSION The unopposed motion is GRANTED. Plaintiffs Requests for Admissions, Set One, is deemed admitted against Defendant Archibuildz, Inc.¿¿¿ ¿ The request for sanctions is granted.¿ Defendant and its counsel are ordered to pay, jointly and severally, sanctions in the amount of $675 to Plaintiffs, by and through their counsel, within 30 days of this order. Plaintiffs to give notice. Dated: August 28, 2024 ¿ ¿¿¿ ¿ ¿ Kerry Bensinger¿¿ ¿ Judge of the Superior Court¿

Ruling

KARINE HARUTYUNYAN, AN INDIVIDUAL VS GENERAL MOTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Aug 27, 2024 |24STCV12953

Case Number: 24STCV12953 Hearing Date: August 27, 2024 Dept: 57 The Court is continuing the hearing on the demurrer and motion to strike filed by General Motors and ordering counsel for General Motors to meet and confer with counsel for Plaintiff. The Court is making this order pursuant to Code of Civil Procedure Sections 430,41(c), which applies to the demurrer, and 435.1(c)(2), which applies to the motion to strike.

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