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Ruling
George Engs vs State Farm General Insurance Company, et al
Aug 03, 2024 |22CV00747
22CV00747ENGS v. STATE FARM, et al. DEFENDANT STATE FARM’S MOTION TO CONTINUE TRIAL The parties are ordered to appear.
Ruling
PRIME INSURANCE COMPANY VS GREENIFY, ET AL.
Aug 01, 2024 |21STCV26872
Case Number: 21STCV26872 Hearing Date: August 1, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING PRIME INSURANCE COMPANY, Plaintiff, v. GREENIFY, et al., Defendants. Case No: 21STCV26872 Hearing Date: August 1, 2024 Calendar Number: 6 Plaintiff Prime Insurance Company (Plaintiff) moves for an order granting summary judgment against Defendants Greenify, Amazon Logistics Inc. (Amazon Logistics), Good Brothers, LLC (Good Brothers), the Estate of Calvin Everhart, and Luis Valdes (collectively, Defendants). The Court DENIES Plaintiffs motion for summary judgment. The Court DENIES Plaintiffs motion for summary adjudication. Moreover, the Court directs the parties to meet and confer about dismissing this lawsuit if all parties agree that the claims are moot. Background This is an insurance dispute. The following facts are taken from the parties separate statements. Plaintiff issued insurance policy SC20030826 to Greenify effective March 10, 2020 to March 10, 2021 (the Policy). (Undisputed Fact (UF) 1.) The Policy is a business auto insurance policy that provides liability coverage for claims against the insured. (UF 2.) Coverage is limited to scheduled automobiles operated by scheduled drivers. (UF 3.) Angie Sandoval is the CEO of Greenify. (Sandoval Decl. ¶ 1.) Sandoval was always the person responsible for purchasing Greenifys insurance. (UF 19.) When Sandoval applied for the Policy, she scheduled driver Gary Shain on the Policy. (UF 20.) The Policy reflects that Gary Strain is the only scheduled driver. (Caffey Decl., Ex. A, DEF000007.) Sandoval does not recall if she notified Plaintiff of any other drivers that were to be scheduled on the Policy. (UF 21.) No one else at Greenify would have notified Plaintiff of any other scheduled drivers. (UF 22.) The Policy reflects that two vehicles were scheduled: a 2010 Kenworth heavy truck, and a 2020 non-owned trailer. (Caffey Decl., Ex. A, DEF000006.) Greenify contracted with Amazon Logistics for transportation and delivery of goods. (UF 26.) Amazon Logistics is an additional insured on the Policy. (UF 15, 16.) Greenify subcontracted some of its transportation and delivery services to Good Brothers, L.L.C. (Good Brothers). (UF 24-25.) On July 23, 2020, an automobile collision occurred between another vehicle and a truck operated by Good Brothers on behalf of Greenify. (UF 44-46, 50.) At the time of the accident, the Good Brothers truck was operated by Defendant Calvin Everhart. (UF 44-46.) The collision resulted in Everharts death and serious bodily injury to Defendant Luis Valdes. On September 24, 2020, Valdes filed a personal injury action, 20STCV36549 Luis Angel Valdez v. Good Brothers LLC, et al. (the Underlying Action) against Greenify, Good Brothers, the Estate of Everhart, and Amazon Logistics. (UF 49-52.) Greenifys attorney tendered the Underlying Action to Plaintiff on March 8, 2021. (UF 54.) Plaintiff issued reservation of rights letters dated May 25, 2021 to Greenify and June 15, 2021 to Amazon Logistics, in each of which Plaintiff asserted that there was no coverage for the underlying action. (UF 55.) Plaintiff filed this action on July 21, 2021. The operative complaint is now the First Amended Complaint (FAC), which raises claims for (1) declaratory relief that Plaintiff has no duty to defend or indemnify Greenify, Amazon Logistics, Good Brothers, and Everhart in the Underlying Action, and (2) indemnity for any sums expended for defense and indemnity on behalf of Greenify and Amazon Logistics related to the Underlying Action. The Court takes judicial notice that the Underlying Action was dismissed on October 24, 2023 pursuant to Valdezs request. Plaintiff moved for summary judgment on January 9, 2024. Greenify filed an opposition. Legal Standard The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party. (Aguilar, supra, at pp. 844-845 [quotation marks omitted].) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the 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 or a defense thereto. (Code Civ. Proc. § 437c, subd. (p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 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.) Discussion Indemnity Second Claim An indemnitee seeking to recover on an agreement for indemnification must allege the parties contractual relationship, the indemnitees performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties indemnification agreement, and the amount of damages sustained. (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380.) Plaintiffs separate statement does not reflect facts showing that Plaintiff expended any costs in defense of the Underlying Action. The Court therefore denies summary adjudication on this claim. Declaratory Relief First Claim To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the partys rights or obligations. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.) Further, there is no basis for declaratory relief where only past wrongs are involved. (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.) Here, the Underlying Action has been dismissed. Plaintiffs claim is therefore moot because there is no current controversy over Plaintiffs coverage obligations that is eligible for declaratory relief. The Court therefore denies summary adjudication on this claim. The Court denies the motion for summary judgment.
Ruling
FALCON ENTERPRISES, LLC VS 8210 S. WESTERN AVE 26, LLC, ET AL.
Jul 09, 2024 |22SMCV00451
Case Number: 22SMCV00451 Hearing Date: August 1, 2024 Dept: O Case Name: Falcon, LLC v. 8210 S. Western Ave 26, LLC Case No.: 22SMCV00451 Complaint Filed: 4-24-20 Hearing Date: 8-1-24 Discovery C/O: 3-28-24 Calendar No.: 12 Discover Motion C/O: 4-15-24 POS: OK Trial Date: 3-5-24 SUBJECT: MOTION FOR SUMMARY JUDGEMENT MOVING PARTY: Defendants/Cross-Complainants 8210 S. Western Ave 26, LLC; Mama Moti, LLC; YHK 18, LLC; Javid Somekh and Yehezkel Kashanian RESP. PARTY: Plaintiff and Cross-Defendant Falcon Enterprises. TENTATIVE RULING Defendants/Cross-Complainants 8210 S. Western Ave 26, et al.s Motion for Summary Judgment is DENIED as to the Cross-Complaint, and to the Complaint. Defendants/Cross-Complainants do not meet their burden to show there is no triable issue of material fact as to the Cross-Complaint. Defendant/Cross-Complainants do not meet their burden to show that one or more the elements of the FAC cannot be met, or a defense thereto. Defendants objection Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are SUSTAINED. Plaintiffs untimely Request for Judicial Notice is DENIED. While the Court could potentially take judicial notice of the existence of some of the government records, and possibly their legal effect, the Court could not take judicial notice the truth of any facts stated therein. REASONING [T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. [Citation.] (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463; see also Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 11531154.) A plaintiff moving for summary judgment establishes the absence of a defense to a cause of action by proving each element of the cause of action entitling the party to judgment on that cause of action. [Citation.] The plaintiff need not, however, disprove any affirmative defenses alleged by the defendant. [Citation.] Once the plaintiff's burden is met, the burden of proof shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. [Citation.] In meeting this burden, the defendant must present specific facts showing the existence of the triable issue of material fact. (City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1081.) The court's assessment of whether the moving party has carried its burdenand therefore caused a shiftoccurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers. (Emphasis added) (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434435 [landlords failure to address issue of whether they were aware of their tenants marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].) In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment). (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) I. Western fails to meet is burden to show it is entitled to summary judgment or summary adjudication of its claims in its Cross-Complaint. A plaintiff ...has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant 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)(1).) A moving Plaintiff or Cross-Complainant does not bear the burden of disproving a defendants affirmative defenses or cross-claims to succeed on a motion for summary judgment. (See Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App. 4th 554, 564 [Plaintiffs initial burden of proof in moving for summary judgment, however, did not include disproving any affirmative defenses asserted by defendants].) Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion. (Code Civ. Proc., § 437c, subd., (b)(1).) A breach of commercial lease cause of action is essentially a cause of action for breach of contract which requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach[,] and damage to plaintiff resulting therefrom (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655.) Defendants/Cross-Complainants 8210 S. Western Ave 26, LLC, Mama Moti, LLC, YHK 18, LLC, Javid Somekh and Yehezkel Kashanian (collectively Western) argue they are entitled to Summary judgment on their Cross-Complaint against Plaintiff/Cross-Defendants Falcon (Falcon), Rami Varrdi (Vardi), David Zemach (Zemach), and Yaniv Shlomof (Shlomof) (collectively Falcon). The separate statement makes the conclusory statement that It is an undisputed material fact that per the terms and conditions of the LEASE, [Falcon] is in default for failing to make the agreed upon lease payments which should have begun on or about April 25, 2022. (SSUF, ¶¶ 2629.) The separate statement does not point to any evidence to support these facts, which is grounds to deny the motion alone under CCP § 437c(b)(1). Western submits a declaration from 8210 S. Western Ave 26, LLC Managing Member Javid Somekh (Somekh) which declares Since April 25, 2021, and continuing to the present, FALCON has failed to pay the monthly lease payments that they are obligated to pay, and/or guaranteed, under the LEASE. The failure of FALCON to make the agreed monthly lease payments under the LEASE constitutes a breach of the LEASE. (Somekh Decl., at p. 7:1724.) There is no foundation shown to support that statement or how Somekh knows it to be true. Somekh does not reference any evidence to support this statement in the declaration. Supporting ...declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. (CCP 473c(d).) Declarations based on information and belief are insufficient to satisfy the burden of the moving party. (Lopez v. University Partners (1977) 54 Cal.4th 1117, 1124. [A] boilerplate sentence, If called as a witness I could and would competently testify under oath to the above facts which are personally known to me, is not sufficient to establish personal knowledge. (Citation.) Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored. ). (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 168169) Westerns cause of action for breach of guaranty is based on the first cause of action for breach of commercial lease and since the breach element was not proven by supporting evidence, the motion for summary judgment as to the second cause of action must be denied as well. Westerns Motion for Summary Judgment, or in the alternative Summary Adjudication, as to the Cross-Complaint is DENIED. II. Defendant Westerns Motion for Summary Judgment as to the FAC Where a defendant seeks summary judgment or adjudication, he must show that either one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. (Code of Civil Procedure §437c(o)(2).) A defendant may satisfy this burden by showing that the claim cannot be established because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense thereto. (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.) The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is different than the burden to show that one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense. If the defendant does not meet this burden, the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467468.) In general, the opposing party may not rely on the opposing party's own pleadings (even if verified) to oppose the motion. Code Civ. Proc. § 437c, subd. (p); Roman v BRE Props., Inc. (2015) 237 CA4th 1040, 1054, 188 [plaintiff must show specific facts to defeat defendant's summary judgment motion and may not rely on allegations of complaint].). A plaintiff may rely on the plaintiff's pleadings to resist a summary judgment motion if the defendant's motion is based on the legal insufficiency of the plaintiff's claims as alleged. Hand v Farmers Ins. Exch. (1994) 23 CA4th 1847, 1853, 29 CR2d 258. (Cal. Judges Benchbook Civ. Proc. Before Trial § 13.24 (2023).) As a preliminary matter, whether the SAC is the operative pleading or not, the Court may hear this Motion based on the FAC since no new facts are alleged in the SAC, and thus the SAC does not substantially affect the nature of the summary judgment motion. (See National Grange of Order of Patrons of Husbandry v. California Guild (2017) 17 Cal.App.5th 1130, 1148 [holding that a motion for summary judgment can move forward based on a SAC that was not the operative pleading because the TAC was not materially different than the SAC].) The only difference between the two pleadings is the breach of contract claim addition in the SAC, so this claim will not be adjudicated in this motion. a. Intentional and Negligent Misrepresentation Causes of Action The elements of an intentional misrepresentation claim are: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498.) The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true (Bains v. Moores (2009) 172 Cal.App.4th 445, 454.) The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559, 1573.) Western argues it is undisputed that Falcon cannot prove that WESTERN intended to defraud FALCON or otherwise concealed that the SUBJECT PROPERTY allegedly did not comply with the building codes, applicable laws, covenants or restrictions of record, regulations and ordinances, which the Court understands is intended to negating the fourth element of Intentional Misrepresentation. (Motion, p. 24.) However, in the separate statement, none of the undisputed facts associated with this argument point to any evidence to support the argument. Again, the separate statement is not organized in a plain and concise manner pointing to the elements and evidence that are allegedly undisputed. (See CCP § 437c(b)(1).) Western argues Falcon cannot prove that Westerns alleged misrepresentation was made without reasonable ground believing it to be true. (Motion, p. 24.) Western points to the fact that Falcon has allegedly not provided a shred of evidence that Western intended to defraud Falcon or that Western knowingly concealed facts about the Subject Property. Westerns arguments are not persuasive because again no evidence is provided to show that Falcon did not provide evidence or that they cannot provide evidence of the issues stated above. The deficiency of the separate statement alone is grounds to deny this motion, but the deficiency plus no evidence provided in support of the arguments other than conclusory statements and one declaration are not enough to meet the defendants burden on summary judgment. b. Rescission based on Fraud and Failure of Consideration Causes of Action (b) A party to a contract may rescind the contract in the following cases: (1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party. (2) If the consideration for the obligation of the rescinding party fails, in whole or in part, through the fault of the party as to whom he rescinds. Civ. Code, § 1689 "A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Every element must be specifically pleaded. [citations omitted]" (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) [T]he facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made. (Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (1976) 57 Cal.App.3d 104, 109.) Fraud actions against corporations require the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) However, the specificity requirement is relaxed when the allegations indicate that the defendant must necessarily possess full information concerning the facts of the controversy or when the facts lie more in the knowledge of the opposite party. (Ibid., citations omitted.) Failure of consideration is the failure to execute a promise, the performance of which has been exchanged for performance by the other party. (Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 410.) Western again argues that Falcon has no evidence to prove their claims, but that is not the burden of Western on a motion for summary judgment. Western must supply evidence, and a plain and concise separate statement, pointing to the evidence that supports their argument that Falcon cannot meet an element, or multiple elements, of their claims. Western fails in meeting their burden since again conclusory statements without evidence will not meet the Defendants burden on a motion for summary judgment. Western argues that California law does not concern itself with the adequacy of consideration, but under the statutory based cause of action for Rescission of Contract based on failure of consideration or fraud pursuant to pursuant to Civ. Code § 1689, the Court must consider the consideration given, or not given,. Thus, the Court does not find this argument persuasive. a. Unjust Enrichment Cause of Action Western argues that Unjust Enrichment is not a separate cause of action recognized by California, and furthermore the cause of action is duplicative of other causes of action without specifying which causes of action in particular. (Motion, p. 28.) The Court agrees with Western, in part. There is no separate or independent cause of action for Unjust Enrichment recognized by California. (See Sepanossian v. National Ready Mix Company, Inc. (2023) 97 Cal.App.5th 192, 206 [As an initial matter, [t]here is no cause of action in California labeled unjust enrichment.]; City of Oakland v. Oakland Raiders (2022) 83 Cal.App.5th 458, 477 [There is no cause of action in California labeled unjust enrichment.] However, regardless of what Falcon calls it, Falcon may be stating a claim for restitution or quasi contract which can be an independent cause of action, and would not be duplicative of other causes of action. (See Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal.App.5th 230, 238.)The elements of a cause of action based on unjust enrichment are simply stated as receipt of a benefit and unjust retention of the benefit at the expense of another.] Regardless, Western, does not provide any evidence to show that Falcon cannot meet the elements of an unjust enrichment based claim, and therefor does not meet their burden. Case Name: Falcon Enterprises, LLC v. 8210 S. Western Ave 26, LLC Case No.: 22SMCV00451 Complaint Filed: 4-24-20 Hearing Date: 7-9-24 Discovery C/O: 3-28-24 Calendar No.: 5 Discover Motion C/O: 4-15-24 POS: OK Trial Date: 3-5-24 SUBJECT: MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT MOVING PARTY: Plaintiff Falcon Enterprises, LLC RESP. PARTY: Defendant 8210 S. Western Ave 26, LLC TENTATIVE RULING Plaintiff Falcon Enterprises, LLC Motion for Leave to File Second Amended Complaint is GRANTED. Plaintiffs declaration in support of the motion satisfies the requirements under CRC Rule 3.1324. Plaintiff identifies the amendments, their effect, the recently received information that prompted the amendment, and attaches the proposed Second Amended Complaint to the declaration. (Hanigan Decl., ¶¶3-7, Ex. 1.). The proposed amendment is timely, as the trial is scheduled for 3-5-25, and will not prejudice the Defendants as no new facts are alleged. Plaintiff is ordered to file its proposed SAC under separate cover forthwith.
Ruling
BLACK BREWED COFFEE L.L.C. VS BERKSHIRE HATHAWAY DIRECT INSURANCE COMPANY
Aug 06, 2024 |23STCV24849
Case Number: 23STCV24849 Hearing Date: August 6, 2024 Dept: 34 Counsel for Plaintiff Black Brewed Coffee LLCs (i.e., Jenner & Block LLP) Motion to be Relieved as Counsel is GRANTED, effective upon the filing of a proof of service showingvservice of the signed order upon the Client at the Clients last known address. Before the court grants the motion, it will continue the hearing to August 14, 2024 at 9:00 a.m. Background Plaintiff Black Brewed Coffee LLC (Plaintiff) alleges that it was denied insurance coverage. On October 11, 2023, Plaintiff filed a complaint, asserting causes of action against Berkshire Hathaway Direct Insurance Company (Defendant) for: 1. Declaratory Relief; 2. Breach of Contract; and, 3. Insurance Bad Faith. A Final Status Conference is scheduled for February 25, 2025 and a Jury Trial is scheduled for March 10, 2025. Discussion[1] Jenner & Block LLP (Firm) seeks to be relieved as counsel of record for Plaintiff (Client). The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.) California Rules of Court (CRC) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as CounselCivil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as CounselCivil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as CounselCivil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. Attorney David Kroeger (Kroeger) represents that Plaintiff has ceased communicating with its attorneys. Plaintiff's attorneys have made numerous attempts to contact Plaintiff, including sending email correspondence to Plaintiff's current email address and calling Plaintiff's last known phone number multiple times. Plaintiff's attorneys are severely limited in their ability to act on behalf of Plaintiff without the Plaintiff's active participation in the litigation. The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have been sufficiently met. Accordingly, the motion is granted, effective upon the filing of a proof of service showing service of the signed order upon the Client at the Clients last known address. However, given the notice issue, the matter is continued. [1] The motion was filed (and served electronically) on July 12, 2024, and set for hearing on August 6, 2024. Based on the hearing date, the motion should have been filed and served on July 11, 2024. The court will continue the matter to August 14, 2024, at 9:00 a.m. Counsel for Plaintiff is ordered to provide notice.
Ruling
Earnell Hunt vs Geico
Jul 29, 2024 |STK-CV-UIC-2023-0007157
TENTATIVE RULING NOTICE Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department and Case Number must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To attend the remote hearing with Judge Kronlund in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows: Bridge # 6940 Pin # 3782 Tentative Ruling Defendant's motion to quash summons and complaint is Granted. CCP Sections 416.10, 415.20. No opposition filed. Defendant's request for judicial notice is Granted. The attempted service on Geico is defective, leaving the Court without jurisdiction or authority over the Defendant. Plaintiff failed to serve a copy of the summons and complaint as authorized by law, and instead, attempted to serve two former corporate officers who are not employed by Geico and are not authorized agents for service of process. Plaintiff is advised that they should try to secure legal Counsel to prosecute this serious case and to preserve their legal rights. Court will sign proposed Order submitted with this motion. Barbara A. Kronlund
Ruling
ADALBERTO CAMPOS VS NATIONAL GENERAL INSURANCE COMPANY, ET AL.
Jul 29, 2024 |23STCV16760
Case Number: 23STCV16760 Hearing Date: July 29, 2024 Dept: 32 ADALBERTO CAMPOS, Plaintiff, v. NATIONAL GENERAL INSURANCE COMPANY, et al., Defendants. Case No.: 23STCV16760 Hearing Date: July 29, 2024 [TENTATIVE] order RE: plaintiffs motion to deem matters admitted BACKGROUND On July 18, 2024, Plaintiff Adalberto Campos filed this action against various insurance companies, asserting breach of contract and breach of the implied covenant of good faith and fair dealing. The complaint stems from Defendants alleged refusal to cover an auto accident that Plaintiff was involved in. Specifically, Defendants allegedly rescinded coverage based on Plaintiffs purported failure to disclose an additional driver (Daniel Campos) on the policy. Plaintiff alleges that Daniel Campos was a minor at the time of the accident, was not an additional driver, and was not driving or present at the time of the accident. On July 3, 2024, Plaintiff filed the instant motion to deem matters admitted against Defendant National General Insurance Company. Defendant filed its opposition on July 16, 2024. Plaintiff filed his reply on July 18, 2024. LEGAL STANDARD Responses to requests for admission are due thirty days after service of the requests. (Code Civ. Proc., § 2033.250(a).) If a party fails to timely respond to RFAs, the propounding party may move to deem the matters admitted. (Id., § 2033.280(b).) The motion must be granted unless the responding party serves substantially compliant responses before the hearing on the motion. (Id., subd. (c).) Monetary sanctions are mandatory regardless of whether the matters are deemed admitted and regardless of substantial justification. (Ibid.) DISCUSSION Plaintiff served the subject RFAs on December 20, 2023. (Tabone Decl. ¶ 3.) Defendant requested extensions, which were granted. (Id., ¶ 4, Ex. B.) Defendant ultimately served its responses on March 4, 2024. (Id., ¶ 5, Ex. C.) The responses contained both objections and substantive answers. (Ibid.) However, the responses were unverified. (Ibid.) The party to whom the requests for admission are directed shall sign the response under oath, unless the response contains only objections. (Code Civ. Proc., § 2033.240(a).) Unverified responses are tantamount to no response at all. (Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 636.) Here, Defendants RFA responses contained more than objections, yet Defendant failed to verify them. Thus, Defendant has essentially failed to provide any response at all. However, Defendant provided the missing verification on July 16, 2024. (Austin Decl. ¶ 10, Ex. 1.) Defendants responses are otherwise substantially compliant. (See Tabone Decl., Ex. C.) Thus, the matters are not deemed admitted. (See Code Civ. Proc., § 2033.280(c).) Nonetheless, monetary sanctions are mandatory because Defendants failure to timely provide verified responses necessitated the motion. (See Code Civ. Proc., § 2033.280(c).) There is no exception for substantial justification, and there is no requirement to meet and confer for a motion to deem matters admitted. The reasonable amount is $860, representing 2 hours at $400 per hour, plus a $60 filing fee. CONCLUSION Plaintiffs motion to deem matters admitted is DENIED. The Court sanctions Defendant National General Insurance Company and its counsel in the total amount of $860, to be paid within 30 days of this order.
Ruling
OCEAN PROMENADE, INC.., A CALIFORNIA CORPORATION, ET AL. VS MORDECAI NOTIS, ET AL.
Jul 30, 2024 |24SMCV00413
Case Number: 24SMCV00413 Hearing Date: July 30, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 30, 2024 CASE NUMBER 24SMCV00413 MOTIONS Demurrer and Motion to Strike Portions of First Amended Complaint MOVING PARTIES Defendants Ritz Flooring, Inc. and Mordecai Notis OPPOSING PARTIES Plaintiffs Ocean Promenade, Inc., dba Ocean View Hotel and Pacificside, Inc. dba Santa Monica Hotel MOTIONS On April 17, 2024, Plaintiffs Ocean Promenade, Inc. dba Ocean View Hotel and Pacificside, Inc. dba Santa Monica Hotel (Plaintiffs) filed the operative First Amended Complaint (FAC) against Defendants Ritz Flooring, Inc. (Ritz); Mordecai Notis (Notis); and Navigators Insurance Company (Navigators) alleging five causes of action for (1) Breach of Contract; (2) Negligence; (3) Fraud; (4) Negligent Misrepresentation; and (5) Complaint Against Contractors Bond. Defendants Ritz and Notis (Moving Defendants) now demur to all five causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action and are uncertain, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively. In addition, Moving Defendants move to strike Plaintiffs allegations regarding and request for punitive damages. Plaintiffs untimely opposed both motions, but the Court continued the hearing to give Moving Defendants an opportunity to file reply briefs. ANALYSIS 1. DEMURRER It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts [a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [in considering the merits of a demurrer, however, the facts alleged in the pleading are deemed to be true, however improbable they may be].) Further, in ruling on a demurrer, a court must liberally construe the allegations of the complaint with a view to substantial justice between the parties. (See Code Civ. Proc., § 452.) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) In summary, [d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) A. UNCERTAINTY [D]emurrers for uncertainty are disfavored. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Malys of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) Moving Defendants argue that the first cause of action for breach of contract is uncertain, because the FAC does not allege the material terms of the contract(s) at issue. The FAC alleges: 32. Between October 8, 2020, and January 6, 2023, Plaintiffs entered into the Contracts with Defendants wherein Defendants agreed to supply and install recommended flooring material at Plaintiffs hotels at prices stated in the Contracts. (FAC ¶ 32.) Thus, the Court finds that the basic terms of the contract(s) at issue are alleged in the FAC. Moving Defendants argue the second cause of action for negligence is uncertain because it is unclear what Plaintiffs allege Defendants did wrong. The FAC alleges: 44. Defendants have breached their duty and negligently performed their services by failing to cause the flooring installation to be completed in a proper and workmanlike manner. (FAC ¶ 44.) Therefore, the breach alleged is not uncertain. Moving Defendants do not raise any arguments that the remaining causes of action are uncertain. Ultimately, Moving Defendants do not demonstrate that any portions of the FAC are so bad that Moving Defendants cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. The Court thus declines to sustain Moving Defendants demurrer on the basis of uncertainty. B. FAILURE TO STATE A CAUSE OF ACTION i. First Cause of Action Breach of Contract To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Moving Defendants argue that because the invoices attached to the FAC indicate they were issued by Ritz, as opposed to Notis, Plaintiffs fail to state a breach of contract claim against Notis. The FAC alleges: 6. Plaintiffs are informed and believe, and based thereon allege that at all times herein mentioned, Defendant MORDECAI NOTIS (hereinafter Notis) is an individual and at all times relevant herein was conducting business in the County of Los Angeles, State of California and is one of the owners, responsible party, managing partner, controlling shareholder, CEO, and/or President, or otherwise directs and controls defendant Ritz. 7. Since July 29, 2024, Defendant Notis has been the Responsible Managing Officer (RMO) for Defendant Ritz and acting as the sole qualifier for Defendant Ritzs California Contractors license. 8. As the RMO of Defendant Ritz and pursuant to California Business and Professions Code Section 7068.1 Defendant Notis is &responsible for exercising supervision and control of their employer's or principal's construction operations to secure compliance with this chapter and the rules and regulations of the board. 9. As the RMO of Defendant Ritz, Defendant Notis has personal liability for the wrongdoing of Defendant Ritz based upon Defendant Notis direct participation and decision making, authorization, and direction, in the wrongdoing alleged herein. Michaelis v. Benavides, 71 Cal. Rptr. 2d 776, 779 (Cal. App. 2d Dist. 1998). [&] 13. Plaintiffs are informed and believe, and thereupon allege that each defendant was the agent, servant, and employee of the other defendants, and each of them, and in committing the acts and omissions herein mentioned was acting within the course and scope of said agency, servitude and employment. At all times mentioned herein, each defendant was chargeable and bound by the knowledge and information received by and on behalf of each other defendant. 14. Plaintiffs are informed and believe and thereon allege that Ritz is, and at all times herein mentioned was, a mere shell and sham without sufficient capital, assets, and/or insurance coverage considering the business done by Ritz; that Ritz is, and at all times mentioned herein was, conceived, intended, and used by Notis, and Does 1-50 as a device to avoid individual liability by means of substituting a financially insolvent and inadequately capitalized and/or insured business entity in place of said beneficial owners; that there exists, and at all times mentioned herein has existed, a unity of interest and ownership between Defendants such that any separateness has ceased to exist between them; that Notis, and Does 1-50 have used assets of Ritz for personal use, have caused the assets of Ritz to be transferred to them without adequate consideration, and have withdrawn funds from Ritzs bank accounts for personal use that Notis, and Does 1-50 manipulated the assets and liabilities of Ritz so that the assets were concentrated in persons and/or entities other than Ritz; that Ritz was a mere shell, instrumentality, and conduit through which Notis, and Does 1-50 carried business in the entitys names exactly as they had previous to incorporation, exercising complete dominance and control of such business to such an extent that any individuality or separateness of Defendants would permit abuse of the corporate privilege and would sanction fraud and injustice in that said person, through their control, domination and manipulation of Ritz have purposely sought to insulate themselves from liability for wrongful acts and to substitute in their place a shell lacking adequate capital when assessed in light of the activities of Ritz, thereby rendering Ritz insolvent and unable to meet its obligations. 15. All of the acts of the defendants, and each of them, were ratified and adopted by the acts of their co-defendants, and each of them. 16. Between October 8, 2020, and January 6, 2023, Plaintiff Ocean Prominade hired Defendants Ritz and Notis to supply and install flooring material at Ocean Prominades property based upon prices stated in the invoices. The invoices are attached and incorporated hereto as Exhibit 1. 17. Between May 21, 2021, and May 26, 2022, Plaintiff Pacificside hired Defendants Ritz and Notis to supply and install flooring material at Pacificsides property based upon prices stated in the invoices. The invoices are attached and incorporated hereto as Exhibit 2. (Exhibits 1 and 2 are collectively referred to as the Contracts). 18. Prior to the selection of the LVP flooring, Defendant Ritz and Notis recommended to Plaintiffs that the LVP flooring was the appropriate material to install and utilize at Plaintiffs hotels. 19. As a flooring contractor, when the recommendation was made, Defendant Ritz and Notis knew that the LVP flooring was not the appropriate material to install and utilize at Plaintiffs hotels. 20. Prior to the work commencing, Defendants Ritz and Notis provided the invoices (contracts) to Plaintiffs specifically recommending the material and stating the cost of the material including the installation thereof. Thereafter, Plaintiffs would review the invoices and approve them prior to work commencing. 21. Based upon Defendants Ritz and Notis representations, Plaintiffs installed LVP flooring at both locations. Plaintiffs relied on Defendants Ritz and Notis recommendation regarding the type of flooring material to install. As further alleged below, the flooring material recommended and suggested was not the appropriate material to install in hotels. 22. Almost immediately following installation of the flooring materials Plaintiffs began noticing numerous problems with the installed flooring materials, including but not limited to, cracking, splitting, unlevel finish, and floating flooring materials. Additionally, the installed flooring materials exhibited excessive noise, which is unacceptable for hotels. 23. Following installation, the problems with the flooring materials were brought to Defendants Ritz and Notis attention at which time, numerous repairs were attempted by Ritz and Notis. Unfortunately, these repairs were not successful and the floors continued exhibiting the same problems. 24. Finally, Ritz and Notis admitted the flooring material recommended was not appropriate for a hotel setting and was rather designed for apartments. Following this admission, Ritz and Notis offered to sell Plaintiffs more expensive flooring which would be appropriate for a hotel. 25. In entering into the Contracts, Defendants Ritz and Notis implicitly promised to provide flooring materials which met the standard of care set by professionals in the construction industry for flowing materials in hotel settings. 26. Plaintiffs reasonably relied on both the implicit and explicit contractual promises by Defendants Ritz and Notis in entering into the contracts and paying Defendants. 27. Defendants, and each of them, intentionally misled Plaintiffs in order to induce Plaintiffs to hire them. 28. As a direct and proximate result of the foregoing acts, conduct and/or omissions of the Defendants, and each of them, said defects have caused, and continue to cause, resultant damage to the component parts of construction. Additionally, said defects constituted a life safety issue, including but not limited to, constituting trip hazards to Plaintiffs employees and customers, and require repair and replacement. 29. Plaintiffs have further been damaged in the nature of the costs incurred to repair the work agreed to be performed by the Defendants and the cost to repair consequential damage to the Plaintiffs property, purchase materials, and pay for permits; all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. 30. As a direct and proximate result of Defendants actions as herein alleged, Plaintiffs have further been damaged by the loss of use of the properties and hotel rooms, including lost profit in being unable to rent the affected hotel rooms during attempted repairs and until proper repairs can take place in the affected rooms all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. [&] 32. Between October 8, 2020, and January 6, 2023, Plaintiffs entered into the Contracts with Defendants wherein Defendants agreed to supply and install recommended flooring material at Plaintiffs hotels at prices stated in the Contracts. 33. Defendants began performing the services under these Contracts. 34. Plaintiffs have performed all conditions precedent, if any, to Defendants bargained for and due performance under the Contracts, and further, Plaintiffs have performed all conditions, covenants and promises required to be performed, unless excused, on their part under the Contracts. 35. Defendants implicitly agreed to perform their work, labor, and/or services in a good and workmanlike manner in accordance with all operative codes, rules, and regulations. 36. Plaintiffs are informed and believe and thereon allege that the Defendants breached the Contracts as set forth in paragraphs 13 through 29 above, including, but not limited to performing work in a non-workmanlike manner, and recommending and installing inappropriate material in Plaintiffs hotels 37. As a direct and proximate result of the foregoing acts, conduct and/or omissions of the Defendants, and each of them, said defects have caused, and continue to cause, resultant damage to the component parts of construction. Additionally, said defects constituted a life safety issue, including but not limited to, constituting trip hazards to Plaintiffs employees and customers, and require repair and replacement. 38. Plaintiffs have further been damaged in the nature of the costs incurred to repair the work agreed to be performed by the Defendants and the cost to repair consequential damage to the Plaintiffs property, purchase materials, and pay for permits; all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. 39. As a direct and proximate result of Defendants actions as herein alleged, Plaintiffs have further been damaged by the loss of use of the properties and hotel rooms, including lost profit in being unable to rent the affected hotel rooms during attempted repairs and until proper repairs can take place in the affected rooms all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. (FAC ¶¶ 6-9, 13-39.) Thus, Plaintiffs have adequately alleged breach of contract as to Notis. ii. Second Cause of Action Negligence The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) The FAC alleges: 41. Plaintiffs are informed and believe and thereon allege that Defendants knew, or should have known, that if the improper flooring was installed and/or not properly or adequately installed, that the Plaintiffs would be substantially damaged thereby, including loss of use, and lost profits, and that installed floors would be defective and not of merchantable quality. 42. Defendants were under a duty to exercise ordinary and reasonable care, to avoid reasonably foreseeable injuries to Plaintiffs, and knew or should have known with reasonable certainty that Plaintiffs would suffer the monetary damages set forth herein if Defendants failed to perform their duty to cause the construction to be completed in a proper and workmanlike manner. 43. Pursuant to California Business and Professions Code Section 7109(a), Defendants were under a duty to exercise ordinary and reasonable care, to avoid reasonably foreseeable injuries to Plaintiffs, and knew or should have known with reasonable certainty that Plaintiffs would suffer the monetary damages set forth herein if Defendants failed to perform their duty to cause the construction to be completed in a proper and workmanlike manner. 44. Defendants have breached their duty and negligently performed their services by failing to cause the flooring installation to be completed in a proper and workmanlike manner. Defendants negligent work has resulted in damage to adjacent parts of the properties and caused further damages which both needed to be repaired at additional cost. 45. As a direct and proximate result of the foregoing acts, conduct and/or omissions of the Defendants, and each of them, said defects have caused, and continue to cause, resultant damage to the component parts of construction. Additionally, said defects constituted a life safety issue, including but not limited to, constituting trip hazards to Plaintiffs employees and customers, and require repair and replacement. 46. Plaintiffs have further been damaged in the nature of the costs incurred to repair the work agreed to be performed by the Defendants and the cost to repair consequential damage to the Plaintiffs property, purchase materials, and pay for permits; all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. 47. As a direct and proximate result of Defendants actions as herein alleged, Plaintiffs have further been damaged by the loss of use of the properties and hotel rooms, including lost profit in being unable to rent the affected hotel rooms during attempted repairs and until proper repairs can take place in the affected rooms all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. (FAC ¶¶ 41-47.) Therefore, Plaintiffs have adequately stated a cause of action for negligence. iii. Third and Fourth Causes of Action Fraud and Negligent Misrepresentation The elements for fraudulent misrepresentation are (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605606.) The essential elements of a count for negligent misrepresentation are the same [as intentional misrepresentation] except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231 (hereafter Chapman).) Like intentional misrepresentation, causes of action for negligent misrepresentation sound in fraud, and must also, therefore, be pleaded with particularity. (Ibid.) In California, fraud must be pled specifically; general and conclusory allegations do not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) One of the purposes of the specificity requirement is notice to the defendant, to furnish the defendant with certain definite charges which can be intelligently met. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) As such, less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy[.] (Ibid.) Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party. (Ibid.) Moving Defendants demur to the third and fourth causes of action on the grounds that they are not pleaded with requisite specificity. As to the Third Cause of Action, the FAC alleges: 49. Prior to entering into the Contracts, and before any work was performed on the Subject Property, Defendants, represented to Plaintiff that the installed LVP flooring was the appropriate flooring materiel to utilize in Plaintiffs hotels. 50. The representation and suggestion that the installed LVP flooring was the proper material to use in a hotel setting was false when made and each of Defendants knew the Misrepresentations were false at the time that they made them. 51. Defendants made the misrepresentations with regard to the installed LVP flooring with the intention of defrauding Plaintiffs and inducing Plaintiffs to rely upon the Misrepresentations in contracting with Defendants to do the Work. 52. Plaintiffs were ignorant of the true facts concerning Defendants Misrepresentations. If Plaintiffs had known the truth about the Misrepresentations, Plaintiffs would never have agreed to contract with Defendants for the installed LVP flooring and would have taken steps to prevent the use of substandard materials at its hotels. 53. Plaintiffs relied upon the false statements made by entering into the Contracts and Permitting Defendants to continue to perform work. 54. Defendant RITZ FLOORING, INC., by and through its corporate officers, directors, and managing agents, presently unknown to Plaintiffs and according to proof at the time of trial, ratified the misconduct and statements alleged herein in that they were aware that Defendant RITZ FLOORING, INC. improperly recommended the use of the installed LVP flooring. That notwithstanding this knowledge, these officers, directors, and/or managing agents meaningfully disregarded these issues even though they knew this would lead to unnecessary damages to Plaintiff. 55. Plaintiffs have further been damaged in the nature of the costs incurred to repair the work agreed to be performed by the Defendants and the cost to repair consequential damage to the Plaintiffs property, purchase materials, and pay for permits; all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. 56. As a direct and proximate result of Defendants actions as herein alleged, Plaintiffs have further been damaged by the loss of use of the properties and hotel rooms, including lost profit in being unable to rent the affected hotel rooms during attempted repairs and until proper repairs can take place in the affected rooms all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. 57. In doing the acts alleged herein, Defendants, and each of them, acted fraudulently and with malice, oppression, and the intention of depriving Plaintiff s of their property, legal rights, and otherwise causing injury to Plaintiff. This conduct was despicable and conducted with the willful and conscious disregard for the rights of Plaintiffs, thereby resulting in injury justifying an award of exemplary and punitive damages. (FAC ¶¶ 49-57.) Similarly, the FAC alleges as to the fourth cause of action: 58. The allegations of paragraphs 1 through 57 are incorporated by reference and realleged herein. 59. At the time said Defendants, and each of them, made the representations as herein alleged, including the representations that the installed LVP flooring was appropriate for hotel use, the Defendants knew these representations were untrue and the said Defendants, and each of them, did not have sufficient knowledge and/or they did not possess a sufficient factual basis upon which to make said representations, and they knew that Plaintiffs would rely on said representations as if they were true and correct in making their decision to enter into the Contracts with Defendants. 60. In making said representations, the said Defendants, and each of them, acted in a negligent and careless manner and knew or should have known that these negligent misrepresentations made to Plaintiffs were likely to be relied on by Plaintiffs and would mislead Plaintiffs (and they did in fact mislead Plaintiffs) such that based thereon Plaintiffs agreed to enter into the Contracts with Defendants. 61. At the times these misrepresentations were made, and at the times Plaintiffs acted as described herein in reliance thereon, Plaintiffs were ignorant of their falsity, and of the existence of the true facts. Had Plaintiffs been aware of the falsity of the facts that said Defendants, and each of them, represented to Plaintiffs as being true, Plaintiffs would not have entered into the Contracts with Defendants. 62. Said misrepresentations were negligently made by the said Defendants, and each of them, with the intent that Plaintiffs would rely on them as true, which they did. 63. Plaintiffs have further been damaged in the nature of the costs incurred to repair the work agreed to be performed by the Defendants and the cost to repair consequential damage to the Plaintiffs property, purchase materials, and pay for permits; all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. 64. As a direct and proximate result of Defendants actions as herein alleged, Plaintiffs have further been damaged by the loss of use of the properties and hotel rooms, including lost profit in being unable to rent the affected hotel rooms during attempted repairs and until proper repairs can take place in the affected rooms all in a sum in excess of $250,000.00 together with interest thereon at the legal rate according to proof. (FAC ¶¶ 58-64.) Thus, in context, Plaintiffs allege that prior to entering into the contracts at issue, which were entered into between May 21, 2021 and May 26, 2022 (FAC ¶ 17), Defendants misrepresented to Plaintiffs that the LVP flooring was appropriate to install in Plaintiffs hotel. Plaintiffs further allege that shortly following the installation, Moving Defendants admitted the flooring material was not suitable for hotels and was designed for apartments. (FAC ¶ 24.) This suggests that Moving Defendants either knew or should have known at the time they made the misrepresentation that it was false. Further, the misrepresentation appears calculated to induce Plaintiffs to purchase the flooring at issue and hire Moving Defendants to do the installation. As such, Plaintiffs have pleaded the third and fourth causes of action with requisite particularity. iv. Fifth Cause of Action Complaint Against Contractors Bond Moving Defendants demur to the fifth cause of action on the grounds that Complaint Against Contractors Bond is a remedy, not an independent cause of action, citing to Nakash v. Superior Court (1987) 196 Cal.App.3d 59; Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559; McDowell v. Watson (1997) 59 Cal.App.4th 1155; R.A. Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188. The Court finds those appellate opinions to be distinguishable and do not stand for the proposition that the Moving Defendants seek to advance. (See, e.g., FNB Mortg. Corp. v. Pacific General Group (1999) 76 Cal.App.4th 1116, 1132 [Language used in any opinion is of course to be understood in light of the facts and the issue before the court, and an opinion is not authority for a proposition not therein considered].) In opposition, Plaintiffs cite to Code of Civil Procedure section 996.430 which provides in relevant part: The liability on a bond may be enforced by civil action. Both the principal and the sureties shall be joined as parties to the action. . . . (c) A cause of action on a bond may be transferred and assigned as other causes of action. (See, e.g., National Technical Systems v. Commercial Contractors, Inc. (2001) 89 Cal.App.4th 1000, 1007 [Liability on a bond may be enforced in a single civil action by the subcontractor in which both the principal and sureties are joined as parties to the action].) The Court finds Plaintiffs opposition to be persuasive. Therefore, the Court overrules Moving Defendants demurrer to the fifth cause of action. 2. MOTION TO STRIKE Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) In ruling on a motion to strike punitive damages, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) As set forth in the Civil Code, (1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) When nondeliberate injury is charged, allegations that the defendants conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs assertions related to their claim for punitive damages were insufficient to meet the specific pleading requirement. (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circ*mstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim].) Moreover, the imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others. (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporations employees. But the law does not impute every employees malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents. (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) Here, Moving Defendants move to strike from the FAC, references to and claims for punitive damages. As discussed above, Plaintiffs have alleged their fraud-based causes of action with requisite specificity to withstand demurrer. Further, Plaintiffs allege that the misrepresentations were made by Notis, as the responsible managing officer of Ritz. Therefore, Moving Defendants motion to strike punitive damages from the FAC is denied. CONCLUSION AND ORDER For the reasons stated, the Court overrules Moving Defendants Demurrer to the First Amended Complaint in its entirety. Further, the Court denies Moving Defendants Motion to Strike in its entirety. Further, the Court orders Moving Defendants to file and serve an Answer to the FAC on or before August 20, 2024. Moving Defendants shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 30, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court
Ruling
George Engs vs State Farm General Insurance Company, et al
Aug 04, 2024 |22CV00747
22CV00747ENGS v. STATE FARM, et al. DEFENDANT STATE FARM’S MOTION TO CONTINUE TRIAL The parties are ordered to appear.
Ruling
RMO LLP VS ALEX BORDEN
Aug 05, 2024 |24SMCV00527
Case Number: 24SMCV00527 Hearing Date: August 5, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE June 12, 2024, continued to August 5, 2024 CASE NUMBER 24SMCV00527 MOTION Demurrer MOVING PARTY Defendant Alex Borden, Personal Representative of the Estate of Mark Jarmus, deceased OPPOSING PARTY Plaintiff RMO LLP BACKGROUND This case arises from a dispute concerning unpaid legal fees for services rendered to and at the behest of now-deceased Mark Jarmus, as Trustee of the Leslie Jarmus Family Trust. From January 25, 2017 through October 10, 2022, Plaintiff RMO LLP (Plaintiff) provided legal representation to Mark Jarmus as Successor Trustee of the Leslie Jarmus Family Trust in litigation involving Mark Jarmuss administration of the trust, which is still currently pending -- Los Angeles Superior Court Case No. BP173009 (Leslie Jarmus Trust Matter). (Compl. ¶¶ 1, 10.) That case also involves claims against Mark Jarmus in his individual capacity, stemming from allegations that he took funds from the Trust in bad faith. (Compl. ¶ 13.) Plaintiff has since withdrawn as counsel in that matter. (Compl. ¶ 24.) Plaintiff alleges substantial legal fees were incurred that remain outstanding. (Compl. ¶ 1.) On February 3, 2023, Mark Jarmus (Jarmus) died. (Compl. ¶¶ 3, 26.) On July 26, 2023, Plaintiff filed a creditor claim in the probate matter of Mark Jarmuss estate, seeking the outstanding legal fees. On February 5, 2024, Plaintiff filed this action against Mark Jarmus estate alleging one cause of action for failure to approve creditors claim. Defendant Alex Borden, Personal Representative of the Estate of Mark Jarmus, deceased (Defendant) demurs to the complaint on the grounds that this Court lacks jurisdiction, pursuant to Code of Civil Procedure, section 430.10, subdivision (a); that there is another action pending between the same parties on the same causes of action, pursuant to subdivision (c); that there is a defect or misjoinder of parties, pursuant to subdivision (d); that it fails to state facts sufficient to constitute a cause of action, pursuant to subdivision (e); and that it is uncertain, pursuant to subdivision (f). Plaintiff opposes the demurrer and Defendant replies. MEET AND CONFER REQUIREMENT Code of Civil Procedure section 430.41, subdivision (a) requires that Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The statute further requires As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 430.41, subd. (a)(1).) The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency. (Ibid.) The parties shall meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41, subd. (a)(2).) The demurring party shall file and serve with the demurrer a declaration stating either the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request. (Id., subd. (a)(3).) At the initial hearing, the Court found that the parties had not adequately met and conferred on all grounds for the demurrer prior to filing, and therefore continued the hearing to allow the parties to meet and confer and file a declaration regarding their meet and confer efforts. According to the joint declaration filed on July 24, 2024, the parties have since met and conferred telephonically and determined that the issues required a decision by the Court. Therefore, the Court finds that the parties have satisfied their meet and confer obligations. REQUEST FOR JUDICIAL NOTICE Defendant requests judicial notice of the following: · Exhibit A: Case Summary/Register of Actions for the proceeding entitled In the Matter of Leslie Jarmus Family Trust, dated June 4, 2009 (LASC Case No. BP173009) (Trust Proceeding). · Exhibit B: The Third and Final Account and Report of Trustee and Petition for Settlement Thereof and Petition for Order Approving Attorneys Fees and Costs Advanced; Declaration of Scott E. Rahn in Support Thereof, filed on January 14, 2022, in the Trust Proceeding. · Exhibit C: The Second Account Current and Report of Former Trustee and Petition for Settlement Thereof and Petition for Order Approving Anticipated Attorneys Fees in Association With The Instant Petition, filed on February 7, 2022, in the Trust Proceeding. · Exhibit D: The Petition for Order Directing Payment of Attorneys Fees and Confirming RMO LLPs Interest in Trust Assets, filed on July 26, 2023, in the Trust Proceeding. Judicial notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Because the above documents are part of court records for Leslie Jarmus Trust Matter, Case No. BP173009, the Court may take judicial notice of them. (Ibid.) However, while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) Accordingly, the Court takes judicial notice of the existence of exhibits as court records, but not the truth of the hearsay statements contained therein. ANALYSIS 1. DEMURRER It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts [a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [in considering the merits of a demurrer, however, the facts alleged in the pleading are deemed to be true, however improbable they may be].) Further, in ruling on a demurrer, a court must liberally construe the allegations of the complaint with a view to substantial justice between the parties. (See Code Civ. Proc., § 452.) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) In summary, [d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) A. UNCERTAINTY & FAILURE TO STATE A CAUSE OF ACTION [D]emurrers for uncertainty are disfavored. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Malys of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.) Defendant first contends that the Complaint is uncertain and fails to state facts sufficient to constitute a cause of action because Failure to Approve Creditors Claim is not a viable cause of action. Probate Code section 9351 provides: An action may not be commenced against a decedents personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part. (Prob. Code, § 9351.) Thus, Plaintiff contends this lawsuit is proper because Plaintiff submitted the creditors claim and Defendant failed to timely act on it, giving it the same legal effect as a rejection under Probate Code section 9256. But Section 9351 is a legal prerequisite to bringing a cause of action; it does not provide a legal basis for a cognizable cause of action. Defendant also argues that, at its heart, this appears to be a breach of contract case stemming from the retainer agreement between Mark Jamus as Trustee and RMO, and is therefore not properly brought against Borden as personal representative of Mark Jamus estate. In opposition, Plaintiff points out that a trustee may be personally liable for obligations arising from his ownership or control of the trust property if the trustee is personally at fault. (Prob. Code, § 18001.) While it is clear that Plaintiff seeks to hold Defendant liable on the grounds that Mark Jarmus is personally liable for failing to pay RMOs legal fees from the Trust fund, it is ultimately unclear exactly what underlying cause of action or legal theory should be attributed to Mark Jarmus personally. Defendant guesses that it may be breach of contract, but it could also be any number of other potential legal theories. Defendant and the Court cannot be left to guess Plaintiffs underlying theor(ies) of liability. Therefore, because neither Defendant nor the Court cannot reasonably discern what specific cause(s) of action are directed against Defendant, the Court sustains the demurrer for uncertainty.[1] B. EXCLUSIVE CONCURRENT JURISDICTION The rule of exclusive concurrent jurisdiction provides that when two or more courts have subject matter jurisdiction over a dispute, the court that first asserts jurisdiction assumes it to the exclusion of the others. (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1062.) It does not matter if the parties or remedies sought are not exactly the same; it is sufficient that the issue in both actions is the same and arises out of the same transaction or events. (County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 89.) Exclusive concurrent jurisdiction should be raised by demurrer where the issue appears on the face of the complaint and by answer where factual issues must be resolved. (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 771.) If raised by answer, the party asserting the application of the rule may obtain a trial court ruling on the issue by a motion to dismiss or abate or a motion for summary judgment. (Ibid.) Further, Probate Code section 17000, subdivision (b) provides, The superior court having jurisdiction over the trust pursuant to this part has concurrent jurisdiction over the following: [&] (3) Other actions and proceedings involving trustees and third persons. Here, the crux of Plaintiffs complaint is that Mark Jarmus is personally liable for failing to pay RMOs legal fees out of the Trust funds as the trustee. Plaintiff argues in opposition that because this Complaint seeks to recover against Mark Jarmus personally, as opposed to recovering from the Trust, it is not another action or proceeding involving the trustee and a third person. The Court disagrees. Mark Jarmus was the trustee, and although Plaintiff seeks to hold him personally liable (via his estate), the action arose from his actions and omissions conducted in his role as trustee. Whether Mark Jarmus is ultimately liable as trustee, such that the Trust must pay RMOs legal fees, as alleged in the Trust Matter, or personally liable, such that his estate must pay RMOs legal fees, as alleged in this matter, both actions clearly arise from the same underlying act (failing to pay RMOs legal fees on behalf of the Trust). As such, this action involves the trustee and third persons, and as such, the earlier filed Trust Matter has jurisdiction. Therefore, the Court also sustains Defendants demurrer on the grounds that this Court lacks jurisdiction over the dispute. 2. LEAVE TO AMEND A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend. (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) Here, Plaintiff does not indicate any facts that could be added to the Complaint to cure the deficiencies identified above. Although the uncertainty as to what specific cause of action Plaintiff seeks to assert could potentially be cured by amendment, Plaintiff could not cure the jurisdictional issue by way of amendment. CONCLUSION AND ORDER Therefore, because the Complaint is uncertain, and because this Court lacks jurisdiction, the Court sustains Defendants demurrer without leave to amend. Defendant shall prepare and file a proposed Order and Judgment of Dismissal on or before August 26, 2024. Further, on the Courts own motion, the Court vacates the Case Management Conference set on September 25, 2024, and sets an Order to Show Cause re Entry of Order and Judgment (Demurrer) on September 25, 2024 at 8:30 A.M. in Department 207. No appearance will be necessary if the Judgment is entered beforehand. Defendant shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: August 5, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court [1] Because it is uncertain what cause(s) of action Plaintiff intends to allege, the Court cannot discern whether Plaintiff has failed to state facts sufficient to constitute a cause of action.
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