Motion to Amend February 03, 2021 (2024)

Case

DICKERSON, ISAAC, IIIet al. vs. CASTLE KEY INSURANCE COMPANY

Aug 24, 2024 |Patricia L. Strowbridge |CA - Breach of Agreement/Contract |CA - Breach of Agreement/Contract |2024-CA-007562-O

Case

VALERA, JUANet al. vs. STATE FARM FLORIDA INSURANCE COMPANY

Aug 26, 2024 |Chad K. Alvaro |CA - Breach of Agreement/Contract |CA - Breach of Agreement/Contract |2024-CA-007564-O

Case

BENITEZ, LESLEYvs.FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Aug 29, 2024 |Brian S. Sandor |CA - Premises Liability - Commercial |CA - Premises Liability - Commercial |2024-CA-007723-O

Case

OAK HILL RESERVE HOMEOWNERS ASSOCIATION INC vs. AMANDA L BUDD A K A AMANDA SHEPPARDet al.

Aug 29, 2024 |Margaret H. Schreiber |CA - Breach of Agreement/Contract |CA - Breach of Agreement/Contract |2024-CA-007696-O

Case

CLERCIDE, VERNELIEvs.CENTRAL FLORIDA TOURISM OVERSIGHT DISTRICT

Aug 29, 2024 |A. James Craner, III |CA - Premises Liability - Commercial |CA - Premises Liability - Commercial |2024-CA-007721-O

Case

DEAN, BERNADETTEvs.RP I DRIVE LLC DBA LA QUINTA INN SUITES

Aug 28, 2024 |Chad K. Alvaro |CA - Premises Liability - Commercial |CA - Premises Liability - Commercial |2024-CA-007677-O

Case

MARULANDA, CESARet al. vs. STATE FARM FLORIDA INSURANCE COMPANY

Aug 30, 2024 |Heather Pinder Rodriguez |CA - Breach of Agreement/Contract |CA - Breach of Agreement/Contract |2024-CA-007764-O

Case

EMERSON, MITCHELL vs. CITIZENS PROPERTY INSURANCE CORPORATION

Aug 29, 2024 |Margaret H. Schreiber |CA - Breach of Agreement/Contract |CA - Breach of Agreement/Contract |2024-CA-007730-O

Case

SGD DUBU HOLDINGS LLC vs. MOON, JUNG H

Aug 29, 2024 |Brian S. Sandor |CA - Breach of Agreement/Contract |CA - Breach of Agreement/Contract |2024-CA-007726-O

Ruling

Sara Coon vs Cedar Street Santa Cruz, LP

Aug 26, 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

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

Blum vs. Ford Motor Company

Aug 28, 2024 |24CV-0205226

BLUM, ET AL. VS. FORD MOTOR COMPANY, ET AL.Case Number: 24CV-0205226Tentative Ruling on Motion to Compel Arbitration: This matter is on calendar for hearing onDefendant Crown Motors’ Motion to Compel Arbitration and Stay Action. On August 14, 2024,Plaintiffs filed a Request for Dismissal of Crown Motors from the action. The Clerk entered theDismissal on August 14, 2024. Therefore, Crown Motors is no longer party to the action.Defendant Ford Motors did not join in the Motion to Compel Arbitration. The Motion is moot.Today’s hearing is VACATED. Additionally, a Notice of Removal of Action to Federal Courtwas recently filed on August 21, 2024, suspending this Court’s jurisdiction. This matter istherefore removed from the Court’s control. No other appearances are required by the partiesunless or until this matter is remanded back to state court. Plaintiff is ordered to dismiss this actionwhen the Federal matter resolves. No appearance is necessary on today’s calendar.CREDITORS ADJUSTMENT BUREAU, INC. VS. STRIKE FIRST SNIPERS LLC, ET

Ruling

MELENDEZ vs MERCEDES-BENZ USA, LLC, A DELAWARE LIMITED LIABILITY COMPANY

Aug 26, 2024 |CVRI2401164

Motion to Compel Responses withoutMELENDEZ vs MERCEDES-Objections to Plaintiff's Requests forBENZ USA, LLC, ACVRI2401164 Production of Documents, Set One andDELAWARE LIMITEDRequest for Sanctions by RICARDOLIABILITY COMPANYRAUL MELENDEZTentative Ruling:This is a lemon law matter. Ricardo Raul Melendez (“Plaintiff”) contends that he purchased a 2023Mercedes-Benz C-Class vehicle manufactured by Mercedes-Benz USA, LLC (“Defendant”). Heasserts that the vehicle is defective. The Complaint asserts two causes of action: (1) violation ofthe Song-Beverly Act – breach of express warranty and (2) violation of the Song-Beverly Act –breach of implied warranty.Plaintiff brings these motions. It asserts that Defendant has failed to provide responses to hisrequests for admission and request for production of documents. Plaintiff seeks sanctions in bothmotions.In the oppositions, Defendant contends that the parties agreed to electronic service onMBUSA@clarkhill.com. It argues that service was not made on this address. As such, theserequests were not properly served. It provides that responses have been served. It argues that itshould have relief from waiver of any objections.In reply, Plaintiff argues that while the proof of service does not identify that discovery was servedon MBUSA@clarkhill.com, it was. He contends that service was not required to be made onMBUSA@clarkhill.com. He argues that the responses provided are not all code compliant.AnalysisThe parties disagree on whether service was proper. The discovery at issue was servedelectronically. Under CCP § 1010.6(b)(3), “[b]efore first serving a represented personelectronically, the person effecting service shall confirm the appropriate electronic service addressfor the counsel being served.” Defendant contends that the address for service provided toPlaintiff was MBUSA@clarkhill.com. The proof of service provided with the moving papers doesnot indicate that this address was served. Plaintiff does not dispute that Defendant consented toservice at MBUSA@clarkhill.com but asserts that it can serve any email address listed on the firstpage of a document filed with the court. It cites to Local Rule 3118 and California Rule of Court,rule 2.111 to support this assertion. Neither one of these sections supports this argument. LocalRule 3118 states that:Pursuant to California Rules of Court, rule 2.111(1), all documents filed withthe court shall list the email address of counsel, or of the self-representedparty on the first page. For purposes of electronic service, this emailaddress will be deemed to be the proper email address for service subjectto the provisions set forth in Code of Civil Procedure section 1010.6,subdivision (d).CCP § 1010.6(d) discusses service on a party by the court, not by other parties. It also does notapply until July 2025. It states:On and after July 1, 2025, in any action in which a party of other person issubject to mandatory service under subdivision (b) or has consented toelectronic service under subdivision (c), the court shall electronically serve,to a person subject to mandatory electronic service or who consented toelectronic service, any document issued by the court is required to transmit,deliver, or serve. The electronic service of documents by the court shallhave the same legal effect as service by mail, except as provided inparagraph (3) of subdivision (a).These sections do nothing to advance Plaintiff’s argument. Based on CCP § 1010.6(b)(3), it doesnot appear that Plaintiff served the right address.In reply, Plaintiff contends that MBUSA@clarkhill.com was served with the discovery requests atissue. However, he provides no valid evidence to support this assertion. Counsel provides adeclaration that he contends supports service. However, he fails to indicate that he sent the emailat issue (it does not appear to be his email address). As such, it appears that he lacks foundationto support this assertion or to authenticate the email provided with the reply. Based on what iscurrently in front of the Court, the Court denies the motions because it appears that service wasnot proper. Responses have been provided. If after a good faith meet and confer, Plaintiff still hasissue with the responses, he can bring a motion to compel further responses.

Ruling

Christine Welisch vs. Volkswagen Group of America, Inc.

Aug 29, 2024 |CV0000889

DATE: 08/27/24 TIME: 1:30 P.M. DEPT: A CASE NO: CV0000889PRESIDING: HON. STEPHEN P. FRECCEROREPORTER: CLERK: RON BAKERPLAINTIFF: CHRISTINE WELISCH vs.DEFENDANT: VOLKSWAGEN GROUP OFAMERICA, INC.NATURE OF PROCEEDINGS: 1) MOTION — ATTORNEY’S FEES2) ORDER TO SHOW CAUSE — DISMISS RULINGThese matters moved to October 1, 2024 at 1:30 p.m. in Department A. All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B)to contest the tentative decision. Parties who request oral argument are required to appear inperson or remotely by ZOOM. Regardless of whether a party requests oral argument inaccordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with theannounced ruling as required by Marin County Superior Court Local Rules, Rule 2.11. The Zoom appearance information for August, 2024 is as follows: https://www.zoomgov.com/j/1602925171?pwd=NUdsaVlabHNrNjZGZjFsVjVSTUVqQT09 Meeting ID: 160 292 5171 Passcode: 868745 If you are unable to join by video, you may join by telephone by calling (669) 254-5252and using the above-provided passcode. Zoom appearance information may also be found onthe Court’s website: https:/Avww.marin.courts.ca.go'

Ruling

LAW OFFICES OF RAFI MOGHADAM, APC VS REZA SAFAIE

Aug 26, 2024 |23SMCV01005

Case Number: 23SMCV01005 Hearing Date: August 26, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 26, 2024 CASE NUMBER 23SMCV01005 related with 24SMCV00823 MOTION Motion for Reconsideration MOVING PARTY Plaintiff Law Offices of Rafi Moghadam, APC OPPOSING PARTIES Defendant Reza Safaie BACKGROUND On March 3, 2023, Plaintiff Law Offices of Rafi Moghadam, APC (Moghadam Law) filed the complaint in this action against Defendant Reza Safaie (Safaie) alleging three causes of action for (1) breach of guarantee; (2) fraud; and (3) common counts services rendered, alleging Safaie failed to honor his guarantee to pay for legal services Moghadam rendered to a third party. On November 13, 2023, default was entered against Safaie. On November 28, 2023, Safaie moved to set aside the default, which the Court denied on March 26, 2024. In the meantime, on February 21, 2024, Safaie filed a separate lawsuit, case number 24SMCV00823, against Moghadam Law and Rafi Moghadam (Moghadam), alleging six causes of action for (1) legal malpractice due to professional negligence; (2) breach of fiduciary duty; (3) construct fraud; (4) intentional fraud; (5) breach of implied covenant of good faith/fair dealing; and (6) negligence, arising from the same dispute over legal services Moghadam rendered to a third party, for which Safaie (at least initially) agreed to pay. On May 3, 2024, Moghadam Law filed a notice of related case in this case, alerting the Court to the existence of Safaies lawsuit. The Court related the cases on May 22, 2024. (See Minute Order, May 22, 2024.) On June 4, 2024, in 24SMCV00823, Safaie filed a peremptory challenge to the assigned judicial officer pursuant to Code of Civil Procedure section 170.6. On June 5, 2024, Judge Lisa K. Sepe-Wiesenfeld granted the peremptory challenge and both actions were transferred to Judge Edward B. Moreton, Jr. Minute orders approving the peremptory challenge were issued in both actions, indicating The Court reviews the Peremptory Challenge filed by Plaintiff pursuant to Code of Civil Procedure section 170.6 and finds that it was timely filed, in proper format, and is accepted. Subsequently, a Nunc Pro Tunc order issued in this case, changing Plaintiff to Defendant to reflect that Safaie filed the peremptory challenge. Although the Minute Orders in both actions seem to indicate that Safaies peremptory challenge was filed in both actions, this Court finds the record/docket regarding 23SMCV01005 to be unclear as to whether Safaie in fact filed a peremptory challenge in said action because Safaie is in default. Moghadam Law now moves for reconsideration of the Courts June 5 order granting the peremptory challenge, or in the alternative, to vacate that order. Safaie opposes the motion and Moghadam Law replies. LEGAL STANDARDS Reconsideration Under Code of Civil Procedure section 1008, subdivision (a), [w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circ*mstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circ*mstances, or law are claimed to be shown. (Code Civ. Proc., § 1008, subd. (a).) Where the statutory requirements are met, reconsideration should be granted; upon reconsideration, however, the court may simply reaffirm its original order. (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) The moving party on a motion for reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time[.] (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations & citations omitted; see New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 221 [on a motion for reconsideration, a party must present new or different facts, circ*mstances, or law, which the moving party could not, with reasonable diligence, have discovered or produced in connection with the original hearing].) Vacate Under Code of Civil Procedure section 473, subdivision (d), The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. ANALYSIS If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance. (Code Civ. Proc., § 170.6.) Foremost, assuming Safaie filed the peremptory challenge in both actions, Safaies peremptory challenge filed in 23SMCV01005 is procedurally defective. The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385. Further, the entry of default [c]uts off the defendant's right to file pleadings and motions (other than a motion to set aside default under § 473), and it also cuts off the defendant's right to notices and the service of pleadings or papers. (Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 347, emphasis added.) Here, the Court notes that default was entered against Safaie in 23SMCV01005 on November 13, 2023. As such, Safaie had no standing to file a peremptory challenge in the 23SMCV01005, and if Safaie in fact filed such challenge in 23SMCV01005, then the peremptory challenge should have been denied. CONCLUSION AND ORDER Therefore, the Court grants Moghadam Laws motion for reconsideration of the Courts June 5, 2024 orders and denies Safaies peremptory challenge, if in fact it was filed in 23SMCV01005, as procedurally defective. Notwithstanding, because the subject actions are related, the Court will confer with/defer to the Supervising Judge of the West District as to whether 23SMCV01005 should remain with Judge Moreton due to the peremptory challenge to Judge Sepe-Wiesenfeld in 24SMCV00823 which has not been challenged. The Clerk of the Court shall provide notice of the Courts ruling. DATED: August 26, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Ruling

Aug 30, 2024 |19GDCV00389

Case Number: 19GDCV00389 Hearing Date: August 30, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT JAMES P. MURPHY CONSTRUCTION, Plaintiff(s), vs. T.B. PENICK & SONS, INC., et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 19GDCV00389 (Lead Case) Consolidated w/: 19GDCV00733, 20GDCV00029, 19GDCV00828, 20GDCV00375, 19GDCV00857, 19GDCV01208, 19STCV16372, 19STCV19656, 19STCV21267, 19STCV34276, 19GDCV01062, 19GDCV01599, 22STCV12353 [TENTATIVE] ORDER RE: PASEO PASADENA HOTEL INVESTMENT, LLCS MOTION FOR SUMMARY JUDGMENT; T.B. PENICK & SONS, INC.S MOTION FOR SUMMARY ADJUDICATION Dept. 3 8:30 a.m. August 30, 2024 I. INTRODUCTION On March 27, 2019, this action was filed by James P. Murphy Construction against T.B. Penick & Sons (Penick), Paseo Pasadena Hotel Investment, LLC (Paseo), and CAPREF Paseo LLC (CAPREF). This action arises from a dispute related to the construction of the Hyatt Place Pasadena Hotel (Hotel) located at 399 East Green Street in Pasadena. This action was later deemed related to 15 other cases and consolidated with 13 of the 15 related cases involving subcontractors for the Hotel as the parties disputed who bore liability for additional costs which were incurred during construction. After a series of settlements and dismissals, the only parties remaining in this litigation are Penick, the general contractor, and Paseo, the ground leaseholder for the Hotel. The operative pleadings are Paseo Pasadenas cross-complaint (XC), filed on May 6, 2019, and Penicks First Amended Cross-Complaint (FACC) filed on July 29, 2024. In its cross-complaint against Penick, Paseo alleges that on or around July 6, 2017, it entered into a prime contract with Penick for the construction of the Hotel (Prime Contract) with a Guaranteed Maximum Price (GMP) of $28.15 million, which was later increased to $30,214,540.55 in a change order approved on January 1, 2019. Paseo asserts causes of action for declaratory relief, breach of contract, bad faith, negligence, and breach of fiduciary duty. As for Penicks FACC, Penick alleges that Paseo breached the Prime Contract by failing and refusing to pay invoices, change orders, claims, and requests for monies due. Penick also asserts quasi-contract claims for quantum meruit, open book account, and account stated, along with the foreclosure of a mechanics lien recorded on the Property and recovery on a mechanics lien bond. II. PROCEDURAL HISTORY Paseo previously brought a motion for summary adjudication which was heard and granted by the Honorable Teresa Sanchez-Gordon in this department. As stated in Judge Sanchez-Gordons order, dated February 18, 2022, Paseo sought and obtained summary adjudication as to the following issue: Penick has no, and cannot obtain, written approved change orders increasing the GMP above $30,214,540.55 and is thus financially responsible for any additional subcontractor costs. (2/18/2022 Order, p. 2.) Judge Sanchez-Gordon added, [T]he issue here is from which party may the subcontractors seek payment for services rendered, noting that [u]nder the Prime Contract, Paseo is responsible for payment of subcontractor work up to the GMP and work without prior written authorization from Paseo is Penicks responsibility. (Order, p. 5.) Due to the limited scope of the issue presented by the motion, Judge Sanchez-Gordon rejected Penicks argument that the GMP was increased due to additional subcontractor costs because written notice prior to performing work was required if Penick wanted to increase the GMP and there was no evidence that Penick provided such written notice. On December 21, 2022, the Honorable Colin P. Leis issued an order pursuant to stipulation that Judge Gordon-Sanchezs ruling did not resolve several issues raised by Penick in its opposition brief. (12/21/2022 Order, p. 7.) These issues include: waiver, Penicks claims due to Paseos allegedly misleading plans and specifications, and whether the contract between Paseo and Penick was abandoned. On June 13, 2024, Paseo filed a motion for summary judgment against Penick on Penicks FACC. Paseo argues that Penick is not entitled to any additional payment over and above the GMP because no written notice was provided before the work at issue was performed. On June 21, 2024, Penick filed a motion for summary adjudication of Paseos noncontract claims as well as Paseos claims for consequential damages. III. LEGAL STANDARD In reviewing a motion for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponents claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action. (Ibid.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Id., subd. (f)(2).) IV. PASEOS MOTION FOR SUMMARY JUDGMENT Penick and Paseo do not dispute the general events underlying this action. The parties agree that on or about July 6, 2017, Paseo retained Penick to act as the general contractor on the Project by entering into an American Institute of Architects (AIA) Form A102- 2007 and A201-2007 written contract (Prime Contract). (UMF No. 1.) The parties also agree that pursuant to the Prime Contract, all change order work must be approved by Paseo in writing prior to the commencement of the work. (UMF No. 3.) Additionally, the parties agree that the GMP for the Prime Contract was initially $28,150,000 but, as of the last executed Prime Contract Change Order (PCCO) No. 15, dated December 17, 2018, the GMP was increased to $30,214,540.55. (UMF Nos. 2, 18.) Last, the parties do not dispute that Penick does not have any executed PCCOs other than PCCO No. 15. (UMF No. 19.) A. Evidentiary Objections The Court disregards Paseos objections to the Declarations of Tim Penick, Rich Petersen, Tony Lee, Michelle Mangan because those declarations were not submitted with Penicks opposing papers. The Court OVERRULES Paseos objections to the declarations of Matt Adams and Phillip McDowell. Both experts premise their opinions on admissible documents including construction documents, change orders, and construction schedules. B. Paseos Moving Papers To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiffs performance of the contract or excuse for nonperformance, (3) the defendants breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Penick alleges that Paseo breached the Prime Contract by failing and refusing to pay Penicks invoices, change orders, claims and requests for monies incurred by Penick which are due and owing to Penick as required by the Prime Contract. (FACC, ¶ 12.) Penick contends that it has incurred at least $5,215,836 in damages. (FACC, ¶ 13.) First, Paseo argues that Penicks breach of contract claim fails because it is not required to pay Penick anything over and above the GMP, which was already determined to be $30,214,540.55 by Judge Sanchez-Gordon. Paseo submits the declaration of Conrad Garner, its representative who states that Paseos business records show that Paseo paid Penick $26,552,066, in addition to paying $3,262,942 to subcontractors who should have been paid by Penick but were not. (Paseos Ex. O, ¶¶ 2-3.) Therefore, Paseo states, a total of $30,295,818 has been paid to Penick and subcontractors, which exceeds the GMP. Paseo contends that Penick is not entitled to additional money due to any Claims because Judge Sanchez-Gordon already found that no written approval was obtained before the work at issue in those Claims was performed, and prior written approval was necessary to increase the GMP. Second, Paseo argues that Penick cannot recover under quantum meruit or the asserted common counts because there was no understanding or expectation that Penick would be compensated for more than the GMP, nor was there any relationship other than the Prime Contract. To recover in quantum meruit, a party need not prove the existence of a contract [citations], but it must show the circ*mstances were such that the services were rendered under some understanding or expectation of both parties that compensation therefor was to be made. [Citation.] (E. J. Franks Construction, Inc. v. Sahota (2014) 226 Cal.App.4th 1123, 11271128.) Last, Paseo argues that the Prime Contract establishes the amount it is obligated to pay Penick and therefore precludes Penicks mechanics lien or any recovery on the Mechanics Lien Release Bond. C. Penicks Opposition In opposition, Penick contends that an issue of fact remains as to whether the plans and specifications provided by Paseo breached the implied warranty that the plans are correct. (Opp., p. 8.) Penick claims that the factfinder must determine whether Paseo breached its implied warranty of correctness, and whether this breach of contract entitles Penick to additional compensation. The Court finds this argument unavailing, however. As previously determined by Judge Sanchez-Gordon, the Prime Contract establishes a procedure by which Penick was supposed to submit a request for an increase to the GMP and which required prior written approval. Accordingly, if Penick determined that there were issues with the plans and specifications which would have increased its costs, Penick would be able to assert a claim for an increase in the GMP. It is undisputed that none of the work for which Penick requests compensation was performed with prior written authorization. Therefore, Penicks claim for damages pursuant to the terms of the Prime Contract fails. As an alternate theory of recovery, however, Penick argues that it may recover under quantum meruit because triable issues of fact exist as to whether Paseo abandoned the Prime Contracts scope and provisions for extra work, and consequently, the GMP. (Opp., p. 10.) In C. Norman Peterson Co. v. Container Corp. of Am. (1985) 172 Cal.App.3d 628, 640 (Peterson), the Court of Appeal affirmed the trial courts finding that the owner had breached a construction contract and, as a result of the owners breach and abandonment of the contract, the contractor was entitled to recover the reasonable value of the work it performed on a quantum meruit basis, without being limited by the original contract amount. The Peterson court stated: In the specific context of construction contracts . . ., it has been held that when an owner imposes upon the contractor an excessive number of changes such that it can fairly be said that the scope of the work under the original contract has been altered, an abandonment of the contract properly may be found. [Citations.] In these cases, the contractor, with the full approval and expectation of the owner, may complete the project. [Citations.] Although the contract may be abandoned, the work is not. Under this line of reasoning, the trial court was well justified in determining that, by their course of conduct, the parties had abandoned the terms of the written contract while proceeding to complete the [] project. (Peterson, 172 Cal.App.3d at p. 640.) The Peterson court cited to Opdyke & Butler v. Silver (1952) 111 Cal.App.2d 912 (Opdyke), in which the parties disputed whether, during the course of performance, the written agreement with a maximum limit as to costs had been an abandoned and an oral agreement substituted for it. (Peterson, supra, 172 Cal.App.3d at p. 640.) The Peterson court noted that in Opdyke, the owner constantly changed his mind concerning the construction, and the completed project differed markedly from the original plans and specifications. (Ibid.) The Peterson court further noted that the appellate court in Opdyke enumerated 20 changes which materially increased the contractors costs and caused performance of the work to be done under disadvantageous circ*mstances. (Id. at p. 641.) Turning to the case before it, the Peterson court drew comparisons to the facts in Opdyke, pointing out that there was evidence of hundreds of changes, many of them significant, resulting in extra work having to be performed by [the contractor]. (Ibid.) Additionally, as in Opdyke, the requirement for written change orders was ignored during most of the project period, and it was completely abandoned during the critical shutdown stage. Similarly, in Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal.App.3d 151, 155, an owners changes resulted in a nearly $3 million dollar increase to a contract price because the project was completely redesigned and an experienced manager stated he had never seen anything comparable to the changes ordered by the owner, the project was the most poorly engineered he had ever seen, and this resulted in the enormous change orders. The Daughterty court concluded that due to numerous changes, a triable issue existed as to whether the contract had been abandoned by the parties. Relying on this collection of cases, Penick argues that Paseo abandoned the contract. Penick cites to various potential change orders and applications for payment in support of its claim that on multiple occasions, Paseo approved change orders for work and paid for work that was performed prior to written authorization being obtained from Paseo. (AMF Nos. 35-36.) Penick also cites to the deposition testimony of Rogers Stevenson, who identifies himself as Paseos representative and testified in deposition that it was customary for him to approve work over the phone and have Penick send emails afterwards to keep a record of the authorization. (Penicks Ex. 3, p. 121:10-20.) Rich Peterson, Penicks PMQ, testified that as project manager, he had an understanding that all change orders had to be approved by Paseo in writing before work commenced, but that this understanding changed when Paseos management gave [him] direct verbal [sic] on certain items to just get them done and submit the paperwork to avoid delay of the project. (Paseos Ex. 3, 30:14-25.) Penick also submits the declaration of Matt Adams (Adams). Adams identifies himself as the principal of Devcon CPM LLC and states that he has: (1) 40 years of experience with respect to construction management services and (2) significant experience consulting as an owners representative in connection with construction projects. (Adams Decl., ¶ 3.) Adams states that at least 179 of Penicks claims were based on changes to the original scope of work with a value of approximately $1.3 million and that these changes affected nearly every trade involved in the project from drywall to mechanical to electrical. (Adams Decl., ¶¶ 8-9.) Adams opines that scope changes of this quantity, type and magnitude are excessive and have the effect of fundamentally impacting both a contractors costs and its time for performance of work. (Adams Decl., ¶ 10.) Penick also submits the expert declaration of Phillip McDowell, who declares that he has significant experience with the forensic analysis of construction schedules and evaluation of project delays. (McDowell Decl., ¶ 3.) He states that he has analyzed the project delays that occurred during the construction project and determined that there were at least 141 days of excusable delays for which Penick was owed extensions of time to complete its work, and that Penick managed to mitigate at least 105 days, which amounts to a 75% reduction in project delay, despite a 33% increase in project duration. (McDowell Decl., ¶¶ 12, 14.) McDowell states that the increase in project duration, followed with acceleration to reduce any resulting delays by 75% is a significant change that fundamentally affects a contractors costs. (McDowell Decl., ¶ 15.) D. Paseos Reply In its reply brief, Paseo argues that Penick is precluded from arguing that the Prime Contract was abandoned because the issue was not raised in its original cross-complaint, or FACC. (Reply, pp. 3-4.) However, Penick asserted a claim for quantum meruit, which would only apply if the contract was abandoned. Paseo also claims that Penick has never raised the issue of abandonment in this litigation, which is a patently untrue statement. In 2022, Penick argued on pages 12 and 13 of its brief in opposition to Paseos previous MSA that Paseo waived the requirement for prior written authorization for additional work. Also, on page 15 of Penicks brief, the heading for Section IX states: THERE ARE TRIABLE ISSUES OF MATERIAL FACT REGARDING WHETHER THE CONTRACT WAS ABANDONED. The parties additionally stipulated that the issues of waiver or abandonment were not encompassed by Judge Sanchez-Gordons ruling; therefore, Paseos argument that Penick is not entitled to additional payment under the Prime Contract due to a prior ruling is unavailing. Paseos argument that the terms of the Prime Contract prohibit recovery on the theory of abandonment is also unpersuasive because the theory of abandonment would render the terms of the Prime Contract irrelevant. Furthermore, the Court additionally notes that Paseos response to Penicks additional material facts appears to be responding to an entirely different document because its responses do not correspond with any of the additional material facts listed in Penicks Separate Statement. Based on the evidence submitted by Penick, triable issues of material fact exist regarding whether the Prime Contract was abandoned and whether Penick is entitled to recover the reasonable value of its services under quantum meruit. Accordingly, Paseos motion for summary judgment is DENIED. V. PENICKS MOTION FOR SUMMARY ADJUDICATION Penick moves for summary adjudication on Paseos noncontract claims and Paseos claim for consequential damages. As an initial matter, Penick cannot seek summary adjudication on a claim for consequential damages. Code of Civil Procedure section 437c(f)(1) states, in relevant part: A party may move for summary adjudication as & one or more claims for damages, & if the party contends that & there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code. In DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 412, the court of appeal affirmed a trial courts denial of a motion for summary adjudication of the plaintiffs lost opportunity damages. The appellate court stated that a single item of compensatory damage which does not dispose of an entire cause of action is not a proper subject for summary adjudication. (Id. at p. 422.) Here, Penick concedes that it is not seeking to summarily adjudicate Paseos contract claim and does not identify any particular breach of contract which could be a deemed a basis for summary adjudication as a separate cause of action. (See Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848.) Therefore, the motion is DENIED as to Paseos claims for consequential damages. The remainder of Penicks motion addresses Paseos noncontract claims for bad faith, negligence, and breach of fiduciary duty. Penick essentially argues that Paseo cannot assert a basis for tort liability because all of Paseos claims arise from their contractual relationship under the Prime Contract. However, as stated above, the Court finds that Penick raises a triable issue of fact as to whether the Prime Contract was abandoned. Therefore, Penick cannot bar Paseos tort claims by hiding behind a contract that it claims was abandoned by both parties. Accordingly, Penicks motion for summary adjudication is DENIED. VI. CONCLUSION In light of the foregoing, Paseos motion for summary judgment is DENIED. Penicks motion for summary adjudication is DENIED. Moving party to give notice. Dated this 30th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Ruling

ROBERT W. BROWN, ET AL. VS NEWREZ LLC, DBA SHELLPOINT MORTGAGE SERVICING, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Aug 27, 2024 |24VECV00072

Case Number: 24VECV00072 Hearing Date: August 27, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT Robert W. Brown, et al., Plaintiffs, v. Newrez LLC, et al., Defendants. Case Number Department 24VECV00072 107 COURTS [TENTATIVE] ORDER RE: Demurrer to First Amended Complaint BACKGROUND Plaintiffs Robert W. Brown and Patricia Brown were the owners of property located at 4465 Tupelo Derive, Calabasas, CA (the Property). The Property was sold at a trustees sale on May 20, 2016. The Trustees Deed Upon Sale was recorded wit the Los Angeles Recorders Office on May 25, 2016 and it was conveyed back to the beneficiary of the Deed of Trust, The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders, CWALT, Inc. Alternative Loan Trust 2007-22 Mortgage Pass Through Certificates Series 2007-22. Plaintiffs filed this action to contest the foreclosure on their home. Plaintiffs previously filed other legal actions in federal and state court challenging the foreclosure. On January 5, 2024, Plaintiffs filed this action against Defendants NewRez LLC fka New Penn Financial LLC d/b/a Shellpoint Mortgage Servicing, New Residential Funding, II, The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders, CWALT, Inc. Alternative Loan Trust 2007-22 Mortgage Pass Through Certificates Series 2007-22 and Community Loan Servicing LLC fka Bayview Loan Servicing LLC (collectively Defendants). On June 4, 2024, Plaintiffs filed a First Amended Complaint (FAC) alleging (1) unfair business practices licensing; (2) fraud-concealment; (3) fraud-extrinsic; (4) Dodd-Frank Act; (5) Fraud-Conveyance; and (6) vacate ruling. On August 2, 2024, Defendants filed a demurrer to the FAC. No opposition has been filed. Defendants filed a Notice of Non-Opposition on August 21, 2024. DISCUSSION Request for Judicial Notice Defendants Request for Judicial Notice is granted pursuant to Evidence Code §452(c) and (d). Applicable Law The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:& The pleading does not state facts sufficient to constitute a cause of action. (CCP §430.10(e).) A demurrer for sufficiency tests whether the complaint states a cause of action. (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, the defects must be apparent on the face of the pleading or via proper judicial notice. (Code Civ. Proc., §§ 430.30, 430.70; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) A demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law. (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) A demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) Claim Preclusion Defendants argue Plaintiffs FAC is barred by the doctrine of res judicata, or claim preclusion. Defendants argue Plaintiffs have litigated their right to title to the Property and the validity of the foreclosure sale in two prior actions, a state court lawsuit filed prior to the trustees sale in February 2016 (State Lawsuit) and a federal lawsuit after the trustees sale in February 2019 (Federal Lawsuit). Plaintiffs acknowledge the likelihood that Defendants would raise res judicata as a defense based on the Federal Lawsuit. (FAC, 2:26-3:1-5.) Claim and issue preclusion have different requirements and effects. Claim preclusion prevents relitigation of entire causes of action. Claim preclusion applies only when a second suit involves (1) the same cause of action (2) between the same parties or their privies (3) after a final judgment on the merits in the first suit. Issue preclusion, by contrast, prevents relitigation of previously decided issues, rather than causes of action as a whole. It applies only (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party. (Samara v. Matar (2018) 5 Cal.5th 322, 326.) The doctrine promotes judicial economy by preventing claim splitting. It requires all claims based on the same cause of action, which were or could have been raised, to be decided in a single suit. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 9293.) Under what circ*mstances is a matter to be deemed decided by the prior judgment? Obviously, if it is actually raised by proper pleadings and treated as an issue in the cause, it is conclusively determined by the first judgment. But the rule goes further. If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. (Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 755 (homeowners lawsuit against driveway subcontractor was barred by doctrine of res judicata arising from prior arbitration between homeowner and general contractor; although issue of driveway cracks was not raised in prior arbitration, they could and should have been raised).) California employs the primary rights theory to determine if two successive proceedings involve the same cause of action. Under the primary rights theory, the invasion of one primary right gives rise to a single cause of action. A cause of action consists of 1) a primary right possessed by the plaintiff, 2) a corresponding primary duty devolving upon the defendant, and 3) a derelict or wrong done by the defendant which consists in a breach of such primary right and duty. The existence of a cause of action is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 557.) The cause of action is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief. Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) Defendants fail to establish that all three lawsuits seek redress for the same harm. Defendants argue Plaintiffs seek redress for loss of the Property due to their purported loan default in all three lawsuits. However, Plaintiffs FAC alleges wrongdoing and damages flowing from the issuance of a 1098 Form in connection with the sale of the property by Bank of New York to third parties in July 2020, the licensing status of the entities involved in that sale and other aspects of the sale that do not pertain to Plaintiffs right to the Property. The focus of the alleged wrongdoing in this litigation are actions by NewRez, LLC in 2020, after the May 2016 trustees deed sale that was the subject to the State Lawsuit and Federal Lawsuit. The Court cannot find based on the face of the convoluted FAC that the same primary right is necessarily involved in all three litigations. In fact, it is difficult to say what precise harm Plaintiffs are seeking redress for in this action, because the FAC is so poorly drafted. In addition, while Defendants discuss the same cause of action element, they do not brief at all whether the February 2016 and February 2019 lawsuits satisfy the same parties and final judgment on the merits elements of claim preclusion. Based on the caption page of the State Lawsuit, none of the demurring Defendants were named therein. (RJN, Ex. E.) Based on the caption of the Federal Lawsuit, only demurring Defendant The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders, CWALT, Inc. Alternative Loan Trust 2007-22 Mortgage Pass Through Certificates Series 2007-22 (Bank of New York) was named as a party. Thus, of the demurring Defendants, only Bank of New York establishes the same party element of claim preclusion. Plaintiffs also raised the lack of identity of parties as grounds to reject the res judicata defense in the FAC. (FAC, 3:6-9.) Defendants also submit evidence that the Federal Lawsuit was dismissed with prejudice. (RJN, Exs. H and I.) Defendants do not brief whether this qualifies as a final judgment on the merits. However, it is well-established that a dismissal with prejudice is considered a judgment on the merits preventing subsequent litigation between the parties on the dismissed claim. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91.) Defendants Demurrer based on claim preclusion fails and demurrer on that ground is overruled. 1st cause of action for unlicensed companies Defendants demurrer to the first cause of action for unlicensed companies is sustained for failure to state a cause of action. There is no recognized cause of action for unlicensed companies, nor is it clear from the substantive allegations what cognizable cause of action could be stated based on the facts alleged. Plaintiffs did not file an opposition to the demurrer. The burden is on Plaintiffs to establish that the defect is reasonably capable of cure with leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Defendants demurrer to the first cause of action for unlicensed companies is SUSTAINED WITHOUT LEAVE TO AMEND. 2nd cause of action for Dodd-Frank Wall Street Reform Act and IRS Violations Defendants demurrer to the 2nd cause of action for Dodd-Frank Wall Street Reform Act and IRS Violations is sustained. According to Plaintiffs, Defendant NewRez, LLC d/b/a Shellpoint Mortgage Servicing prepared and issued an IRS 1098 Form showing they were liable for $10,287.85 of the escrow money disbursem*nts. Plaintiffs claim this is a violation of the Dodd-Frank Wall Street Reform Act, because under that Act, the settlement agent (escrow officer) on the Closing Disclosure is responsible for preparing, issuing and filing tax documents upon closing of a real estate transaction. (FAC, ¶105.) Plaintiffs fail to state a cognizable claim. While Plaintiffs cite to the Dodd Frank Act, Plaintiffs fail to cite to a specific subsection of the act or any authority creating a private right of action for violation of the Act. Plaintiffs also failed to file any opposition. Defendants demurrer to the second cause of action for Dodd-Frank Act and IRS violations is SUSTAINED WITHOUT LEAVE TO AMEND. 3rd cause of action for concealment and extrinsic fraud Defendants demurrer to the third cause of action is sustained. Plaintiffs fail to allege any of the elements of concealment or fraud. Plaintiffs allege that NewRez LLC d/b/a Shellpoint Mortgage committed concealment of key events involving an ongoing case, thus giving rise to extrinsic fraud in influencing Judge Steven V. Wilsons decision against the Plaintiffs. (CA, Civil Code §1710 and 3924(c)(3)(d). (FAC, ¶113.) Defendants argue the fraud claim is also barred by statute of limitations. Plaintiffs fraud claim fails to identify any specific act of fraud, and it is unclear if Plaintiffs are claiming fraud based on the 1098 Form issued on February 2, 2020. For this reason, the Court cannot find based on the face of the complaint that the fraud claim is necessarily barred by statute of limitations. Demurrer therefore cannot be sustained based on statute of limitations. Plaintiffs allegations are conclusory and do not allege any fraud. Plaintiffs also failed to oppose. Defendants Demurrer to the third cause of action for fraud is SUSTAINED WITHOUT LEAVE TO AMEND. 4th cause of action for Vacate of Ruling and Res Judicata Defendants demurrer to the fourth cause of action for vacate of ruling and res judicata is sustained. There is no cognizable cause of action for vacate of ruling and res judicata. Moreover, Plaintiffs are requesting that this Court vacate the dismissal with prejudice entered in 2:19-cv-00991-SVW-PJW and to vacate any res judicata effect that case may have. The Court does not have jurisdiction or authority to vacate the ruling of a federal district court, nor is there a cognizable cause of action stated by these allegations. Plaintiffs did not file an opposition. Defendants demurrer to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. 5th cause of action for escrow fraud Defendants demurrer to the escrow fraud cause of action is sustained. There is no cognizable cause of action for escrow fraud, nor do Plaintiffs allege the elements of common law fraud. Plaintiffs do not allege a clear misrepresentation by Defendants upon which they detrimentally relied. Plaintiffs did not file an opposition. Defendants demurrer to the fifth cause of action for escrow fraud is SUSTAINED WITHOUT LEAVE TO AMEND. 6th cause of action void grant deed Defendants demurrer to the sixth cause of action for void grant deed is sustained. Plaintiffs seek to cancel the grant deed issued on July 23, 2020, conveying the Property from Bank of New York to third parties, Ronald A. Rosenblum and Jacqueline D. Rosenblum, Trustees of the Rosenblum Family Trust dated December 1, 2010. Civil Code section 3412 states that a written instrument may be cancelled if there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable. To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alternation of one's position. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193-1194.) Plaintiffs were not parties to the grant deed, nor do they allege any fraud that would entitle them to void the grant deed. (FAC, ¶¶122-130.) Plaintiffs did not file an opposition. Defendants Demurrer to the sixth cause of action for void grant deed is SUSTAINED WITHOUT LEAVE TO AMEND. 7th cause of action for business practices/pooling and service agreements Defendants Demurrer to the seventh cause of action for business practices/pooling and service agreements is sustained. There is no cognizable cause of action for business practices/pooling and service agreements, nor did Plaintiffs file an opposition asserting that these facts state a valid claim. Defendants demurrer to the seventh cause of action for business practices/pooling and service agreements is SUSTAINED WITHOUT LEAVE TO AMEND. CONCLUSION Defendants Demurrer to the FAC is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiffs fail to state any cause of action against Defendants, nor did Plaintiffs file an opposition. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 (plaintiffs failure to raise argument in opposition to demurrer deemed abandonment of issue); Hendy v. Losse (1991) 54 Cal.3d 723, 742 (burden on plaintiff to establish that defect is reasonably capable of cure with leave to amend).) Accordingly, Defendants demurrer SUSTAINED WITHOUT LEAVE TO AMEND. __________________________________ Judge Eric Harmon, Department 107, Van Nuys August 27, 2024 Los Angeles County

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