COMPLAINT May 18, 2021 (2024)

Case

MADISON LANE LLC vs QUINONES, JOSE

Jul 08, 2024 |Chandler, Cory |Civil |LT Residential Eviction/Past Due Rent $0.00-$15,000.00 |24-CC-038000

Case

Portfolio Recovery Associates, Llc vs Baltodano, Karlos

Jul 05, 2024 |Black, Melissa. C |Civil |SC Debt Owed-Tier 4 $2,500.01-$5,000.00 |24-CC-037900

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Rose Radiology Centers, LLC.,Hernandez Juarez, Guadalupe vs Peak Property and Casualty Insurance Corporation

Jul 10, 2024 |Costello, Jessica |Civil |SC Personal Injury Protection-Tier 1 $0.00-$99.99 |24-CC-038643

Case

ESTOPINAN, ALFREDO vs CABRERA, RAUL

Jul 08, 2024 |Giardina, James. S |Civil |LT Residential Eviction/Past Due Rent $0.00-$15,000.00 |24-CC-037994

Case

ORTIZ, SONIA vs Bloomin Brands, Inc. d/b/a BONEFISH GRILL

Jul 11, 2024 |Ellison, Alissa. McKee |Civil |Premises Liability-Commercial |24-CA-005632

Case

Swann Medical, Inc. vs Progressive Select Insurance Company

Jul 05, 2024 |Smith, Matthew. A |Civil |SC Personal Injury Protection-Tier 1 $0.00-$99.99 |24-CC-037960

Case

ESPINEL, JOSE ALBERTO vs ESPINEL, JULIA MARIA

Jul 10, 2024 |DePaul, Wendy. J. |Family |Dissolution of Marriage |24-DR-009059

Case

Ameripro Auto Glass, Llc vs Progressive American Insurance Company

Jul 09, 2024 |Makholm, Marc. S |Civil |SC Windshield Litigation-Tier 2 $100.00-$500.00 |24-CC-038442

Ruling

PHILIP MARKOWITZ, AN INDIVIDUAL VS FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, A MICHIGAN CORPORATION

Jul 11, 2024 |24STCV07667

Case Number: 24STCV07667 Hearing Date: July 11, 2024 Dept: 45 Superior Court of California County of Los Angeles PHILIP MARKOWITZ, Plaintiff, vs. FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, et al., Defendants. Case No.: 24STCV07667 DEPARTMENT 45 [TENTATIVE] RULING Complaint Filed: 03/27/24 Trial Date: N/A Hearing date: July 11, 2024 Moving Party: Defendant Foremost Insurance Company Grand Rapids, Michigan Responding Party: Plaintiff Philip Markowitz Motion to Strike Punitive Damages Allegations The court has considered the moving papers, opposition, and reply. The motion is granted with 20 days leave to amend. Background This is an action arising from the alleged not providing coverage and unreasonably delaying in making a coverage determination on [a] claim. (Complaint, ¶ 29.) On March 27, 2024, Plaintiff Philip Markowitz (Plaintiff) filed a Complaint against Defendants Foremost Insurance Company Grand Rapids, Michigan (Defendant) and Does 1 to 10, alleging causes of action for: (1) Breach of Insurance Contract; and (2) Tortious Breach of Insurance Contract. On March 28, 2024, this action was reassigned to the Honorable Mel Red Recana sitting in Department 45 at the Stanley Mosk Courthouse. (03/28/24 Minute Order.) On May 8, 2024, Defendant filed and served the instant Motion to Strike Punitive Damages Allegations. Also, on such date, Plaintiff filed and served an opposition to the motion. Defendant filed and served a reply brief on July 2, 2024. Legal Standard Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.¿ (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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.)¿ Meet and Confer Before filing a motion to strike, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., § 435.5, subd. (a).) A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).) Counsel for Defendant, James P. Lemieux (Lemieux), provides a declaration in support of the motion. Counsel states the following: on April 30, 2024, he wrote to Plaintiffs counsel, Jeffrey A. Cohen, Esq., regarding Plaintiffs punitive damages allegations. (Lemieux Decl., ¶ 2; Ex. A.) He expressed his concern that the complaint did not allege sufficient facts to support the claim and that the claim was unsupported and defective as pleaded. (Id.) He asked that Plaintiff agree to strike his punitive damages claim from the complaint without prejudice. (Id.) Shortly after the letter was transmitted, Mr. Cohen responded by e-mail on April 30, 2024, and Mr. Cohen disagreed. (Id., ¶ 3; Ex. B.) Mr. Cohen argued that Plaintiff sufficiently alleged a bad faith claim and that bad faith allows for punitive damages awards. (Id.) Given the impasse over the propriety of Plaintiffs punitive damage claim, the instant motion was necessary to resolve the issue. (Id., ¶ 4.) The Court finds that the meet and confer requirement has not been met as counsel did not meet and confer in person, by telephone, or by video conference. The Court, however, will still assess the merits of the motion to strike. The Court reminds the parties of the need to comply with the requirements of the Code of Civil Procedure. Discussion Allegations of the Complaint The Complaint relevantly states the following: in 2018, Plaintiff obtained a marine insurance policy from Defendant that provided for insurance coverage to and for Plaintiffs watercraft vessel (the Vessel). (Complaint, ¶ 4.) In June 2022, Plaintiff renewed the policy, and the effective dates of the policy were from June 18, 2022, through June 18, 2023. (Complaint, ¶¶ 5-6.) The coverage amount for losses under the policy is $95,000.00. (Complaint, ¶ 7.) On January 23, 2023, heavy rains flooded the Vessel and damaged its engines, which resulted in an unforeseen, sudden, and accidental loss to the Vessel. (Complaint, ¶ 9.) Plaintiff reported the loss to Defendant in February 2023. (Complaint, ¶ 10.) Plaintiff submitted a claim to Defendant. (Complaint, ¶¶ 11-12.) Plaintiff then alleges that Defendant asked for additional information concerning the claim, which was provided, and to this day Defendant has failed to provide a coverage determination for the amount of the loss. (Complaint, ¶¶ 13-24.) Defendant has not paid Plaintiff any money on the claim, in whole or in part, to date, and has not made a coverage determination after over a year to review, analyze, and process the claim. (Complaint, ¶ 26.) Appropriateness of Striking Punitive Damages In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civil Code § 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either 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. (Civil Code § 3294(c)(1).) Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) 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. California Civil Code, Section 3294(c)(2) defines oppression as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Facts must be pled to show that a defendant act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiffs rights. (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.) The Court finds that Plaintiffs punitive damages allegations are insufficient. Plaintiff seeks punitive damages pursuant to its second cause of action. (Complaint, ¶ 33.) Such allegations, however, are set forth in a conclusory manner. Plaintiff has not alleged sufficient facts to impose punitive damages against Defendant. Plaintiff has not made a showing of malice, fraud, or oppression. Moreover, the opposition to the motion to strike seems to argue as to the sufficiency of the second cause of action and does not make a reasoned argument as to the sufficiency of the punitive damages allegations in the complaint. The Court therefore finds it appropriate to strike punitive damages allegations from the complaint. Based on the foregoing, the Court GRANTS the motion to strike with 20 days leave to amend. It is so ordered. Dated: July 11, 2024 _______________________ MEL RED RECANA Judge of the Superior Court

Ruling

LOS ANGELES UNIFIED SCHOOL DISTRICT, A SCHOOL DISTRICT, VS SCOTTSDALE INDEMNITY COMPANY, ET AL.

Jul 11, 2024 |21STCV28642

Case Number: 21STCV28642 Hearing Date: July 11, 2024 Dept: 53 Superior Court of California County of Los Angeles Central District Department 53 los angeles unified school district ; Plaintiff, vs. scottsdale indemnity company a/k/a nationwide e&s / specialty , et al.; Defendants. Case No.: 21STCV28642 Hearing Date: July 11, 2024 Time: 10:00 a.m. [tentative] Order RE: plaintiffs motion for court determination of defendant scottsdale indemnity companys claim of privilege MOVING PARTY: Plaintiff Los Angeles Unified School District RESPONDING PARTY: Defendant Scottsdale Indemnity Company Motion for Court Determination of Defendant Scottsdale Indemnity Companys Claim of Privilege The court considered the moving, opposition, and reply papers filed in connection with this motion. DISCUSSION Plaintiff Los Angeles Unified School District (Plaintiff) moves the court for an order determining, pursuant to Code of Civil Procedure section 2031.285, that the attorney-client privilege or the attorney work production protection do not apply, or that defendant Scottsdale Indemnity Company (Defendant) has waived any claim of such privilege or protection, as to (1) all or part of Defendants production of documents identified as Bates Nos. SCD0000732 SCD0001049, and (2) the portions of the March 25, 2024 deposition of Ana Campos concerning Exhibit 17 to that deposition. If electronically stored information produced in discovery is subject to a claim of privilege or of protection as attorney work product, the party making the claim may notify any party that received the information of the claim and the basis for the claim. (Code Civ. Proc., § 2031.285, subd. (a).) After being notified of a claim of privilege or of protection under subdivision (a), a party that received the information shall immediately sequester the information and either return the specified information and any copies that may exist or present the information to the court conditionally under seal for a determination of the claim. (Code Civ. Proc., § 2031.285, subd. (b).) As a threshold matter, the court notes that the parties have not set forth, in their briefs, the exact documents in the approximate 400-page production that Defendant contends are privileged. (Andrade Decl., Ex. A [March 26, 2024 letter requesting the destruction of documents bates-numbered SCD0000732-SCD0001049]; Gerson Decl., ¶¶ 4-8.) However, Defendants revised privilege log, dated April 19, 2024, has identified the following page numberswhich consist of emails, draft letters, counsels notes, and a form setting forth premium information of a third partyas privileged: (1) numbers 906-910 (attorney-client privilege); (2) numbers 912-917 (attorney-client privilege); (3) numbers 918-920 (work product protection); (4) numbers 924-928 (attorney-client privilege); (5) number 943 (work product protection); (6) numbers 956-958 (attorney-client privilege and work product protection); (7) numbers 959-962 (work product protection); (8) numbers 962-966 (attorney-client privilege); (9) numbers 1046-1049 (attorney-client privilege); and (10) counsels notes set forth on pages 733, 827, 831, 836, 839, 842, 845, 852, 854, 856, 858, 860, 861, 871, 972, 973, 975, 977, 1005, 1009, 1011, 1013, 1016, 1018, 1020, 1022, 1025, 1027, 1030, 1034, 1037, 1040, 1042, 1044, and 1045 (work product protection). (Andrade Decl., Ex. F, Privilege Log, p. 1; Gerson Decl., ¶ 15 [On April 19, 2024, [Defendant] reproduced the file with appropriate redactions of the privileged documents contained within the file, and produced alongside it a new privilege log, noting the redactions].) Thus, the court has evaluated Plaintiffs motion and Defendants claims of privilege as to the documents identified in Defendants April 19, 2024 privilege log. First, the court finds that Defendant has met its burden to show that the documents containing email correspondence are protected by the attorney-client privilege. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship].) Defendant has submitted evidence establishing that it retained (1) the law firm Selman Breitman, LLP (the Selman Firm) as its outside coverage counsel, and (2) the law firm Manning & Kass, Ellrod, Ramirez, Trester LLP (the Manning Firm) to defend defendant After School All Stars (ASAS) in the underlying action and in this action. (Gerson Decl., Ex. A, McRoberts Decl., ¶ 7; Hochhausler Decl., ¶¶ 1-2, 4.) Defendant has also submitted evidence explaining that K&K Insurance Group, Inc. (K&K) acted as its claims administrator, and performed various claims administrations functions, including retaining defense counsel for ASAS. (Gerson Decl., Ex. A, McRoberts Decl., ¶ 8.) As to the communications between Defendant (including through its claims administrator, K&K) and the Manning Firm regarding the defense of ASAS, the court finds that Defendant has made a prima facie showing that the communications were made in the course of a tripartite attorney-client relationship and therefore are protected by the attorney-client privilege because (1) [w]hen an insurer retains counsel to defend its insured, a tripartite attorney-client relationship arises among the insurer, insured, and counsel[,] and (2) Defendant has submitted evidence establishing that it, as the insurer for ASAS, retained the Manning Firm to represent ASAS, its insured. (Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1083; Hochhausler Decl., ¶ 4; Andrade Decl., Ex. F, Privilege Log, p. 1, ¶ 9 [email correspondence between Manning Firm and K&K].) Thus, the confidential communications between either the insurer [(here, Defendant)] or the insured [(here, ASAS)] and counsel [(here, the Manning Firm)] are protected by the attorney-client privilege, and both the insurer and insured are holders of the privilege. (Bank of America, N.A., supra, 212 Cal.App.4th at p. 1083.) As to the communications between Defendant (including through its claims administrator, K&K) and the Selman Firm, the court finds that Defendant has made a prima facie claim of privilege by showing that (1) Defendant retained the Selman Firm to act as its coverage counsel, such that (2) the communications described in the privilege logwhich describe the subject emails as confidential communications with coverage counselwere made in the course of an attorney-client relationship. (Gerson Decl., Ex. A, McRoberts Decl., ¶ 7; Costco Wholesale Corp., supra, 47 Cal.4th at p. 733 [party has initial burden of establishing preliminary facts of a communication made in the course of an attorney-client relationship]; Andrade Decl., Ex. F, Privilege Log, p. 1, ¶¶ 1 [email correspondence between Selman Firm and K&K], 2 [email correspondence forwarding communications from Selman Firm between K&K and Defendant], 4 [email correspondence between K&K, Selman Firm, and Defendant], 6 [email correspondence between K&K, Selman Firm, and Defendant], 8 [email correspondence between Selman Firm, K&K, and Defendant].) Thus, the court finds that Defendant has met its burden to make a prima facie claim of privilege as to the communications between it, its claims adjuster K&K, the Manning Firm, and the Selman Firm. (Costco Wholesale Corp., supra, 47 Cal.4th at p. 733.) Second, the court finds that Plaintiff has not met its burden to show that the communications are not privileged. (Costco Wholesale Corp., supra, 47 Cal.4th at p. 733 [Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply].) Plaintiff contends that the privilege arising from an attorney-client relationship (whether arising from a tripartite relationship or generally) does not apply here because such privilege does not protect an insurers internal communications concerning coverage issues relevant to the insureds litigation and Defendant retained coverage counsel to perform [Defendants] investigation of the claim (i.e., claims handling)[.] (Reply, p. 3:1-3, 3:8-9.) The court disagrees. The court acknowledges that a court should determine the dominant purpose of the relationship between an insurance company and its in-house attorneys to determine whether the relationship is one of attorney-client or one of claims adjuster-insurance corporation. (Costco Wholesale Corp., supra, 47 Cal.4th at pp. 739-740.) If the court determines that the dominant purpose of such a relationship is not that of attorney and client, communications between the insurer and its counsel that is acting as a claims adjuster would not be protected by the attorney-client privilege. (Id. at p. 740.) As set forth above, Defendant met its initial burden to show the existence of an attorney-client relationship by submitting evidence establishing that it retained the Selman Firm as its coverage counsel, such that it is presumed that the communications were made in confidence. (Gerson Decl., Ex. A, McRoberts Decl., ¶ 7; Costco Wholesale Corp., supra, 47 Cal.4th at p. 733.) Plaintiff contends that Defendants relationship with the Selman Firm is more analogous to claims adjuster-insurance company than attorney-client. In support of this contention, Plaintiff relies on the following two assertions made by Defendant in its motion for summary judgment or, alternatively, summary adjudication: (1) Defendant retained coverage counsel who promptly sought information necessary for [Defendants] coverage investigation[,] and (2) Defendant promptly retained coverage counsel and promptly agreed to defend [Plaintiff] under a reservation of rights. (Andrade Reply Decl., Ex. H, p. 24:4-5, 24:8-11.) The court finds that these two statements do not show that the dominant purpose of the relationship between Defendant and the Selman Firm was that of claims adjuster-insurance corporation. These statements do not establish that the Selman Firm was acting solely as a claims adjuster, or even acting mostly as a claims adjuster, on behalf of Defendant. As set forth above, the inquiry concerns the dominant purpose of the relationship between Defendant and the Selman Firm. (Costco Wholesale Corp., supra, 47 Cal.4th at p. 739 [emphasis added].) Thus, the court finds that Plaintiff has not shown that the attorney-client privilege does not apply on the ground that the dominant purpose of Defendant and the Selman Firms relationship was that of claims adjuster-insurance corporation. Moreover, the court finds relevant that, in its opposition papers, Defendant represented that its communications involving, inter alia, the Selman Firm concerned case strategy and case updates, further supporting Defendants assertion of the existence of an attorney-client relationship between it and the Selman Firm. (Opp., p. 12:11-13.) Third, the court finds that Plaintiff has not met its burden to show that Defendant waived its right to assert the attorney-client privilege and work product protection. (Costco Wholesale Corp., supra, 47 Cal.4th at p. 733.) The right of any person to claim attorney-client privilege is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to the disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege. (Evid. Code, § 912, subd. (a).) [T]he disclosure contemplated in Evidence Code section 912 involves some measure of choice and deliberation on the part of the privilege holder. (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1038, 1101; State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 652 [Based on the language of Evidence Code section 912, we hold that waiver does not include accidental, inadvertent disclosure of privileged information by the attorney].) When determining whether an inadvertent disclosure waived the attorney-client privilege, a trial court must examine both the subjective intent of the privilege holder and any manifestation of the holders intent to disclose the information. [Citations.] Other relevant considerations include the precautions the holder took to maintain the privilege and the promptness with which the holder sought return of the inadvertently disclosed document. (McDermott Will & Emery LLP, supra, 10 Cal.App.5th at pp. 1101-1102 [internal citations omitted].) Plaintiff contends that both Defendant and ASAS waived their rights to assert the attorney-client privilege and work product protection because (1) Defendant did not attempt to claw back the documents until two years after the production thereof; (2) Defendant raised a privileged-based objection at the end of deposition, after allowing Plaintiffs counsel to question Ana Campos about one of those documents; and (3) ASAS did not assert the privilege at the deposition of Ana Campos. The court disagrees. Defendant has submitted evidence establishing that (1) its counsel inadvertently overlooked the subject communications and documents and did not intend to include those documents in Defendants production, and (2) it did not discover the production of the privileged documents until the March 25, 2024 deposition of Ana Campos. (Gerson Decl., ¶¶ 8-13; Roberts Decl., ¶¶ 2-4.) Moreover, counsel states that they did not have occasion to review the documents after Defendants 2022 production. (Gerson Decl., ¶ 12; Roberts Decl., ¶ 6.) The court finds that Defendant did not have the subjective intent to disclose privileged materials to Plaintiff in its production, nor did Defendant manifest an intent to disclose or to consent to disclose such information by asserting the privilege two years after its production, in light of the evidence establishing that Defendant first learned of the disclosure at that time and (1) asserted the privilege at the end of the deposition and on the record, and (2) promptly requested, the day after the deposition, that Plaintiff destroy the documents. (McDermott Will & Emery LLP, supra, 10 Cal.App.5th at p. 1101; Evid. Code, § 912, subd. (a); Andrade Decl., Ex. A [March 26, 2024 letter from Defendant requesting destruction of documents].) The court acknowledges, as Plaintiff has pointed out, that Defendants counsel did not object to the use of one privileged document (labeled as Exhibit 17) until the conclusion of Ana Camposs deposition. (Limber Decl., ¶ 5 [stating that, [a]t the conclusion of the Campos deposition[,] counsel asserted privilege].) However, the court finds that this conduct does not evidence a subjective intent to disclose privileged information. The attorney representing Defendant in this deposition has stated, in her declaration, that while she believed the exhibit appeared on its face to contain privileged material, she wanted to fully review and analyze the document and identify all individuals referenced, before making any statements on the record. (Limber Decl., ¶ 3.) After reviewing the exhibit during a break, counsel asserted the attorney-client privilege on the record. (Limber Decl., ¶¶ 4-5.) The court finds that Defendants counsels conduct, in ensuring the applicability of the claim of privilege before asserting it on the record and doing so at the conclusion of the deposition, does not show a subjective intent to disclose the information, or to consent to its disclosure. (McDermott Will & Emery LLP, supra, 10 Cal.App.5th at p. 1101; Evid. Code, § 912, subd. (a).) The court further finds that ASAS did not waive its right to claim the attorney-client privilege and work product protection by electing not to assert the privileges at the deposition of Ana Campos. Counsel for ASAS has stated, in his declaration, that (1) he did not intend to waive any privilege claims on behalf of ASAS, and (2) he did not make an objection on the deposition record because Defendant had already asserted the privilege, such that counsel did not see the need to make a redundant objection. (Hochhausler Decl., ¶¶ 8, 6.) The court finds that this evidence shows that ASAS did not have the subjective intent to disclose or to consent to the disclosure of privileged information. (McDermott Will & Emery LLP, supra, 10 Cal.App.5th at p. 1101; Evid. Code, § 912, subd. (a).) Thus, for the reasons set forth above, the court finds that Plaintiff did not meet its burden to show that Defendant and/or ASAS waived their rights to assert the attorney-client privilege. Finally, the court notes that three entries on Defendants privilege log identify three categories of documents that it contends are subject to the work product protection. (Andrade Decl., Ex. F, Privilege Log, p. 1, ¶¶ 3, 5, 10.) The parties do not expressly address these entries or dispute that they are subject to the work product protection provided by Code of Civil Procedure section 2018.010 et seq.; instead, Plaintiff appears only to argue that Defendant and ASAS waived this protection. (Mot., p. 10:22-25.) However, the court has determined, for the reasons set forth above, that Defendant did not waive its right to claim that the documents in the subject production are privileged. The court finds that Defendant did not waive its right to claim the work product protection for the same reasons set forth above. ORDER The court denies plaintiff Los Angeles Unified School Districts motion for determination of claim of privilege. The court orders defendant Scottsdale Indemnity Company to give notice of this ruling. IT IS SO ORDERED. DATED: July 11, 2024 _____________________________ Robert B. Broadbelt III Judge of the Superior Court

Ruling

McIntyre, Patrick et al vs. Fire Insurance Exchange

Jul 22, 2024 |S-CV-0052426

S-CV-0052426 McIntyre, Patrick et al vs. Fire Insurance Exchange** NOTE: telephonic appearances are strongly encouragedNOTE: Plaintiff has not paid advance jury fees pursuant to CCP § 631.Trial Date & Length: 12/08/25 8 day Jury Trial(Please contact Master Calendar (916) 408-6061 on the business dayprior to the scheduled trial date to find courtroom availability.)Civil Trial Conference: 11/21/25(heard at 8:30 am in Dept. 3)Mandatory Settlement Conference: 11/14/25(heard at 8:30am; report to Jury Services)NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ONTHE THURSDAY PRIOR TO HEARING DATE. REQUESTS FORAPPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMCCLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS ANDPARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TOTHE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.

Ruling

CHINYERE VALERIE IBE VS BAMBOO INSURANCE SERVICES, INC., A CORPORATION, ET AL.

Jul 11, 2024 |24CHCV00588

Case Number: 24CHCV00588 Hearing Date: July 11, 2024 Dept: F43 Dept. F43 Date: 7-11-24 Case #24CHCV00588 , Chinyere Valerie Ibe vs. Bamboo Insurance Services, Inc., et al. Trial Date: N/A DEMURRER TO FIRST AMENDED COMPLAINT MOVING PARTY: Defendant Sutton National Insurance Company RESPONDING PARTY: Plaintiff Chinyere Valerie Ibe RELIEF REQUESTED Demurrer to the Complaint · 4th Cause of Action for Intentional Misrepresentation · 5th Cause of Action for Violation of California Business & Professional Code · 6th Cause of Action for Unjust Enrichment · 7th Cause of Action for Defamation RULING: Defendants demurrer is sustained. SUMMARY OF ACTION Plaintiff Chinyere Valerie Ibe (Plaintiff) filed her First Amended Complaint (FAC), in pro per, on March 25, 2024. Plaintiffs complaint alleges seven causes of action for (1) Breach of the Duty of Good Faith and Fair Dealing; (2) Bad Faith Denial of Insurance Claim; (3) Breach of the Contractual Duty to Pay a Covered Insurance Claim; (4) Intentional Misrepresentation; (5) Violations of Cal. Bus. & Prof. Code §§ 17200, et. seq.; (6) Unjust Enrichment; and (7) Defamation. The First through Third Causes of Action are only against Defendant Bamboo Insurance Services, Inc. The Fourth through Seventh Causes of Action are against all Defendants. Defendant Sutton National Insurance Company (Sutton) is the demurring Defendant in this instance. Sutton demurs to the Fourth through Seventh Causes of Action. Plaintiffs FAC alleges that the water heater in the garage of her home burst. This caused the garage to flood, damaging the drywall and items that were stored in the garage. Sutton indicates in its demurrer that it is Plaintiffs homeowners insurer, and Bamboo IDE8 Insurance Services, LLC (Bamboo) is Suttons claims administrator, but there is nothing in Plaintiffs FAC that indicates what the relationship is between Bamboo and Sutton. While Bamboo is mentioned throughout Plaintiffs FAC, Sutton is only mentioned by name once, under the parties section of Plaintiffs FAC. (FAC, ¶ 4.) It is unclear from Plaintiffs FAC what allegations, if any, are directed at Sutton. Sutton filed its demurrer on May 28, 2024. Plaintiff filed an opposition on June 26, 2024. On July 3, 2024, Sutton filed its reply. Plaintiffs opposition argues that she was not validly served with the demurrer because she had not consented to service of the demurrer via email, which is how she claimed she received the demurrer. However, the proof of service filed with Defendants demurrer indicates that Plaintiff was served via U.S. Mail, so it is unknown why she did not receive the demurrer in the mail. Plaintiff also argues that Defendant did not meet and confer, but Defendants demurrer indicates that it attempted to meet and confer with Plaintiff, but Plaintiff did not respond to attempts to meet and confer with her. The Court will address the merits of the demurrer. Request for Judicial Notice: Defendant requests that the Court take judicial notice of Plaintiffs FAC. The Court takes judicial notice of this document. ANALYSIS A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Fourth Cause of Action for Intentional Misrepresentation Defendant Sutton demurs to Plaintiffs cause of action for intentional misrepresentation on the basis that it fails to plead any specific allegations against Sutton. The elements of intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245.) Notably, 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. (Id.) There are no specific allegations against Sutton under this cause of action. Instead, Plaintiff just alleges that Defendants made misrepresentations regarding what would be covered by Plaintiffs insurance policy. (FAC, ¶ 78.) There are no allegations under this cause of action for any misrepresentations made specifically by Sutton. Defendants demurrer to Plaintiffs Fourth Cause of Action is sustained with leave to amend. Fifth Cause of Action for Violation of Cal. Bus. & Prof. Code §§ 17200 et. seq. Sutton demurs to this cause of action on the basis that there are insufficient facts against Sutton to support this cause of action. Cal. Business & Professions Code § 17200 et seq. includes the California Unfair Competition Law and provides consumers with remedies when businesses engage in unfair or fraudulent practices. The Unfair Competition Law (UCL) is an equitable action by means of which a plaintiff may recover money or property obtained from the plaintiff or persons represented by the plaintiff through unfair or unlawful business practices. (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1338.) The UCL does not permit recovery of damages but is limited to injunctive relief and restitution. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1995) 20 Cal.4th 163, 179.) Thus, through the UCL, a plaintiff may seek restitution in money or property taken by means of unfair competition or may seek injunctive relief. (Troyk, 171 Cal.App.4th at 1339.) Plaintiffs FAC does not contain any allegations indicating that Sutton violated the Business and Professions Code. Furthermore, Plaintiff is not seeking restitution under this cause of action but is instead seeking damages. Damages are not a permitted form of relief under the UCL. For these reasons, Defendants demurrer to Plaintiffs Fifth Cause of Action is sustained with leave to amend. Sixth Cause of Action for Unjust Enrichment Sutton demurs to this case of action on the basis that Plaintiff cannot assert a cause of action for unjust enrichment. The theory of unjust enrichment requires one who acquires a benefit at the expense of another to either return the thing or its equivalent to the aggrieved party so as not to be unjustly enriched. (Lyles v. Sangadeo-Patel (2014) 255 Cal.App. 4th 759.) There is also no cause of action for unjust enrichment in California. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 785, 793 (unjust enrichment is not a valid cause of action under California law).) Unjust enrichment is not a valid cause of action. Furthermore, Plaintiffs FAC contains no allegations indicating how Sutton was unjustly enriched separate from any breach of contract. Because unjust enrichment is not a valid cause of action, Defendants demurrer to Plaintiffs Sixth Cause of Action is sustained without leave to amend. Seventh Cause of Action for Defamation Sutton demurs to this cause of action on the basis that it does not allege facts sufficient to constitute a cause of action for defamation. Defamation is an intentional tort that requires proof that the defendant intended to publish the defamatory statement. (Stellar v. State Farm General Ins. Co. (2007) 157 Cal.App 4th 1498.) California law requires that any words constituting an alleged defamation must be specifically identified, if not pleaded verbatim, in the complaint. (ZL Technologies, Inc. v Does 1 17 (2017) 13 Cal.App. 5th 603.) There are no specific allegations against Sutton under this cause of action. There is nothing in Plaintiffs FAC to indicate how Sutton defamed Plaintiff, nor does Plaintiff specifically identify the alleged defamation. Plaintiff also does not attach the alleged defamatory letter to her FAC, despite identifying the denial letters as Exhibits A, B, and C. Defendants demurrer to Plaintiffs Seventh Cause of Action is sustained with leave to amend. CONCLUSION Defendants demurrer to Plaintiffs Fourth, Fifth, and Seventh Causes of Action is sustained with leave to amend. Defendants demurrer to Plaintiffs Sixth Cause of Action is sustained without leave to amend. Moving party to give notice to all parties.

Ruling

LIEL LEVI VS KEYES HYUNDAI OF VAN NUYS, AN ENTITY, ET AL.

Jul 10, 2024 |23VECV02505

Case Number: 23VECV02505 Hearing Date: July 10, 2024 Dept: T Levi v Keyes 23VECV02505 Tentative rulings Defendants motion to strike First Amended Complaint-GRANT. The opposition was not considered because plaintiffs counsel was to provide a declaration from Saniel Sanft attaching a copy of the overnight mail receipt, and proof of delivery or status of delivery (he stated in his 5/10/2024 proof of service that it was served by overnight delivery.). He failed to do so, and defense denies receiving the opposition. By court order of 2/7/2024, the first amended complaint was to be served and filed no later than 20 days. Because notice was given by the court by mail, an additional 5 days were added, which would make the due date 3/4/2024. It was not served until 3/13/2024 and not filed until 3/14/2024 after the answer had been filed. Therefore, the First Amended Complaint was late, and it is disregarded. The ruling on the demurrer as to the original complaint stands: Defendants Hyundai Motor America and Van Nuys-H, Inc. dba Keyes Hyundai of Van Nuyss Demurrer to the Complaint is OVERRULED as to the eighth cause of action; SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the second cause of action; and SUSTAINED WITHOUT LEAVE TO AMEND as to the fourth, fifth, seventh, tenth, twelfth, and thirteenth causes of action. The Answer to the Complaint filed on 3/13/2024 stands. Plaintiffs Demurrer to Answer: SUSTAINED WITH 20 DAYS LEAVE TO AMEND THE ANSWER. Plaintiff may demur to an answer, particularly as to affirmative defenses. (Timberidge Enterps., Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879; see Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 535 [proper vehicle to test the sufficiency of an answer].) The affirmative defenses must do more than set forth bare legal conclusion. Affirmative defenses must specify supporting facts. (FPI Devel., Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) Allegations stating a legal conclusion (rather than pleading facts) are inadequate. (Berger v. California Ins. Guar. Assn. (2005) 128 Cal.App.4th 989, 1006; Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.) Here, the court finds that the demurrer is justified because there are no factual allegations supporting the bare legal conclusions. The demurrer is sustained with 20 days leave to amend. The Second Affirmative Defense at page 19, lines 3-6, is uncertain in that it cannot be ascertained what was the improper conduct of Plaintiff, and what applicable statutes required notice: Sustained as to lack of facts which is alleged to have been improper conduct. The Sixth Affirmative Defense is uncertain in that on page 19, line 26, it cannot be ascertained who are the persons or entities other than Defendants, nor can it be ascertained how, when, or in what manner such persons or entitles were reckless, careless and/or negligent: Sustained. No facts identified. The Twelfth Affirmative Defense fails to allege facts sufficient to state a defense; Sustained. No facts alleged. The Twelfth Affirmative Defense is uncertain in that on page 21, line 18, it cannot be ascertained what the statutory requirements were: Sustained. No facts alleged. The Fourteenth Affirmative Defense fails to allege facts sufficient to state a cause of action; Sustained. No facts alleged. The Fourteenth Affirmative Defense is uncertain in that on page 21, lines 26-28, it cannot be ascertained how, when, or in what manner there was either a release or a settlement; Sustained. No facts alleged. The Twentieth Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-First Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-Second Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-Fifth Affirmative defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Second Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Third Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Fourth Affirmative Defense is uncertain in that on page 25 lines 24- 25, it cannot be ascertained in what action or proceeding was there a prior class action settlement, nor can it be ascertained how, when or in what manner, Plaintiff was given notice so as to prevent his being opted out: Sustained. No facts alleged. 14. The Thirty Sixth Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged.

Ruling

['HERRERA, ADESS ET AL V. ANDERSON, ROB ET AL', 'C D V. COUNTY OF BUTTE ET AL']

Jul 10, 2024 |21CV01931

21CV01931 HERRERA, ADESS ET AL V. ANDERSON, ROB ET ALEVENT: Defendants Nationwide Insurance Company and Allied Property and CasualtyInsurance Company’s Motion for Summary Judgment or, Alternatively, SummaryAdjudicationThe Court finds that there is no triable issue of material fact as to Plaintiffs’ SecondCause of Action for Breach of Contract as Plaintiffs failed to oppose the Motion in thisregard. See, Plaintiff’s Memorandum of Points and Authorities in Support of theOpposition to Motion for Summary Judgment or Alternatively Summary Adjudication atPg. 1, Lines 4-5 [“Plaintiffs do not contend that payment of the drastically underinsuredproperties was bad faith...”]; and see, Undisputed Material Fact Nos. 1-4. As such, theMotion for Summary Adjudication is GRANTED as to the Second Cause of Action forBreach of Contract.Without a breach of contract, there can be no bad faith liability. See Waller v. Truck Ins.Exch. (1995) 11 Cal.4th 1, 36 [the covenant of good faith and fair dealing is “based upon”the contract and has no existence independent of such contract]; Everett v. State FarmGen. Ins. Co. (2008) 162 Cal.App.4th 649, 663 [“Because there was no breach ofcontract, there was no breach of the implied covenant”; 823-24 [where homeownerclaimed to be underinsured, but insurer paid full policy limits, there was no breach ofcontract and therefore no bad faith]; Vulk v. State Farm Gen. Ins. Co. (2021) 69Cal.App.5th 243, 263 [underinsured homeowner had no bad faith claim where he waspaid all benefits due under policy]; and see, Undisputed Material Fact Nos. 1-4. Basedupon the Court’s ruling as to the Second Cause of Action for Breach of Contract, theFirst Cause of Action for Bad Faith likewise fails and the Motion for SummaryAdjudication is GRANTED as to the First Cause of Action for Bad Faith.The evidence presented leads the Court to conclude that there is no triable issue ofmaterial fact in regard to the application of an exception to the general rule that aninsurance agent has no duty to advise an insured on types of coverages or policy limits.Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927; Everett v. State Farm General Ins.Co. (2008) 162 Cal.App.4th 649, 660; Vulk v. State Farm Gen. Ins. Co. (2021) 69Cal.App.5th 243, 254-255; see also Undisputed Material Fact Nos. 24-47. The Motion forSummary Adjudication is GRANTED as to the Third Cause of Action for Negligence andFourth Cause of Action for Negligent Misrepresentation.Plaintiffs do not oppose the Motion as it relates to their punitive damages claim See,Plaintiff’s Memorandum of Points and Authorities in Support of the Opposition to Motionfor Summary Judgment or Alternatively Summary Adjudication at Pg. 1, Line 3 [“Plaintiffswithdraw the request for punitive damages.”] As such, the Motion for SummaryAdjudication is GRANTED as to the Plaintiffs’ claim for punitive damages.Counsel for the Defendants shall submit a form of order consistent with this ruling withintwo weeks.1||2. 22CV01639 C D V. COUNTY OF BUTTE ET ALEVENT: Defendant County of Butte’s Motion to Seal Defendant’s Motion for SummaryJudgment, or in the Alternative, Motion for Summary Adjudication, and AttachedExhibitsThe Motion is unopposed and is granted. The Court will sign the form of order submittedby counsel.

Ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. VS. MICAHEL Y. HUANG et al

Jul 09, 2024 |CGC11509296

Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 1. PLAINTIFF STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.'s HEARING ON CLAIM OF EXEMPTION. The judgment debtor's claim of exemption is denied. The levying officer is directed to release all sums held to the judgment creditor for payment on the judgment. The levying officer shall withhold $220 per pay period ($440 per month) from debtor's earnings and pay that sum to the judgment creditor. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court will execute a judicial council form of order repeating the tentative if it adopts the tentative ruling. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

ARMANI MARSALIS GATES, I VS LEMONADE INSURANCE AGENCY, LLC.

Jul 09, 2024 |23STCV05225

Case Number: 23STCV05225 Hearing Date: July 9, 2024 Dept: 45 Superior Court of California County of Los Angeles ARMANI MARSALIS GATES I, Plaintiff, vs. LEMONADE INSURANCE AGENCY, LLC, Defendants. Case No.: 23STCV05225 DEPARTMENT 45 [TENTATIVE] RULING Action Filed: 03/09/2023 [1st Amended Complaint Filed: N/A] Trial Date: 05/27/2025 Hearing date: 07/09/2024 Moving Party: Defendant Lemonade Insurance Agency, LLC Responding Party: N/A - Unopposed Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1) The Court considered the moving papers. Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1), is GRANTED. The Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Responses and the monetary sanctions are due to Defendant within 20 days of this order. Background Armani Marsalis Gates I filed a Complaint on March 9, 2023 alleging breach of contract and intentional infliction of emotional distress. The motion before the Court now is Lemonade Insurance Agency, LLCs (Defendant) Motion to Compel Plaintiffs Responses to Request for Production of Documents, Set 1 (the Motion). No opposition has been filed, and Defendant files a Notice of Non-Opposition. Discussion Legal Standard If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4&(b) The party making the demand may move for an order compelling response to the demand. (c) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (CCP § 2031.300) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (CCP § 2023.030(a).) Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery. (CCP § 2023.010) Analysis Attached to the moving papers, Defendant provides the Declaration of William A. Hadikusumo (Hadikusumo Decl.) which states that on July 5, 2023, Plaintiff was served by Defendant with Requests for Production of Documents, Set 1. (Hadikusumo Decl., ¶3.) The deadline to provide responses was August 8, 2023 but no responses were provided. On August 9, 2023, Defendant reach out and provided an extension until September 6, 2023, however, no responses were ever received. (Hadikusumo Decl., ¶¶5-9.) Therefore, the Motion is granted, and sanctions are warranted. Sanctions Defense counsel provides the following calculations: · Counsels hourly rate is $240.00 · Counsel spent 5 hours preparing the instant Motion · Counsel anticipates the hearing taking 1 hour · Counsel incurred a filing fee of $60.00 · Counsel requests a total of $1,500.00 Accordingly, the Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Conclusion Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1), is GRANTED. The Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Responses and the monetary sanctions are due to Defendant within 20 days of this order. It is so ordered. Dated: July 9, 2024 _______________________ MEL RED RECANA Judge of the Superior Court

Ruling

MOISES CRUZ, ET AL. VS SAMO ENTERPIRSES, INC., ET AL.

Jul 11, 2024 |23STLC02808

Case Number: 23STLC02808 Hearing Date: July 11, 2024 Dept: 25 Hearing Date: Thursday, July 11, 2024 Case Name: MOISES CRUZ; SANDY TORIBIO v. SAMO ENTERPRISES, INC. dba WESTERN MOTOR SPORT; JB FINANCIAL, a PARTNERSHIP CONSISTING OF SUSAN DEMIRCI AND IGYA DEMIRCI; HUDSON INSURANCE COMPANY; and DOES 1-40 Case No.: 23STLC02808 Motion: Motion to Compel Arbitration and for the Court to Pick Arbitration Forum and Request for a Stay of Proceedings Moving Party: Plaintiffs Moises Cruz and Sandy Toribio Responding Party: Unopposed Notice: OK Recommended Ruling: Plaintiffs Motion to Compel Arbitration and for the Court to Pick Arbitration Forum and Stay Proceedings is GRANTED. BACKGROUND On April 27, 2023, Plaintiffs Moises Cruz and Sandy Toribio (Plaintiffs) filed a Complaint against Defendants Samo Enterprises, Inc. dba Western Motor Sport (Samo Enterprises or Samo), JB Financial, a partnership consisting of Susan Demirci and Igya Demirci (JB), and Hudson Insurance Company (Hudson) (collectively, Defendants), alleging causes of action for: (1) violation of the Consumer Legal Remedies Act (CLRA) pursuant to California Civil Code section 1750 et seq.; (2) violation of California Business and Professions Code section 17200 et seq.; (3) claim against dealer bond; and (4) violation of Code of Civil Procedure sections 1281.97 and 1281.99. The complaint arises from the sale of an allegedly defective used 2010 Chevrolet Silverado 1500 (the Subject Vehicle). On May 11, 2023, Plaintiffs filed a Motion to Compel Arbitration and for the Court to Pick Arbitration Forum and Request for Stay (the Motion), seeking an order compelling Defendants Samo Enterprises and JB to arbitrate the controversy pursuant to the Retail Installment Sale Contract (RISC). On June 23, 2023, Plaintiffs filed a Proof of Service indicating that Defendant JB had been served with the summons, complaint, and Motion by substituted service. On June 23, 2023, Plaintiffs filed a Non-Service Report as to Defendant Samo Enterprises which sets forth attempts to serve Defendant Samo Enterprises at 17477 Doric St., Los Angeles, CA 91344. On July 10, 2023, the Court issued a minute order noting that Plaintiffs had filed a defective Notice of Motion, which did not list the address of the Spring Street Courthouse, where the hearing on the Motion would take place. (See July 10, 2023 Minute Order.) Plaintiffs also failed to file proof that the moving papers were served on Samo Enterprises or Hudson. (Id.) The Court continued the hearing on the Motion to August 10, 2023 and ordered Plaintiffs to file and serve a corrected Notice of Motion and to serve all parties in the case. (Id.) On July 7, 2023, Plaintiffs filed and served a Notice of Continued Motion, listing the Spring Street Courthouse Address. On July 7, 2023, Plaintiffs filed a Proof of Service indicating that Defendant Hudson had been served with the summons, complaint, and Motion. On July 19, 2023, Plaintiffs filed the Declaration of Nima Heydari in response to the Courts July 10, 2023, Order. On July 25, 2023, Defendant Hudson filed an Answer to the Complaint. On August 1, 2023, Plaintiffs filed a Non-Service Report as to Defendant Samo Enterprises. On August 10, 2023, the Court continued the hearing on the Motion to allow Plaintiffs additional time to serve Defendant Samo Enterprises with the Complaint and moving papers. (See August 10, 2023 Minute Order.) The Court continued the hearing on the Motion to November 8, 2023 and ordered Plaintiffs to file supplemental papers addressing the issues discussed [in the Courts order] at least 16 court days before the next scheduled hearing. Failure to do so may result in the Motion being placed off calendar or denied. (Id.) On September 27, 2023, Plaintiffs filed a Non-Service Report as to Defendant Samo Enterprises. On September 28, 2023, Plaintiffs filed an Application to Serve Defendant Samo Enterprises through the California Secretary of State (the Application). On October 24, 2023, Plaintiffs filed a declaration from Nima Heydari re: an Order to Show Cause as to Service of Defendant Samo Enterprises. This declaration appears to be in response to the Courts August 10, 2023 Order. On November 8, 2023, the Court continued the hearing on the Motion to allow Plaintiffs additional time to serve Defendant Samo Enterprises with the summons, complaint, and Motion. (11/08/23 Minute Order at p. 5.) The Court also ordered Plaintiffs to file supplemental papers addressing any additional service efforts on Defendant Samo Enterprises. (Id.) Additionally, the Court ordered Plaintiffs to reserve a hearing date for their application for service. (Id.) On February 5, 2024, Plaintiffs counsel filed a supplemental declaration regarding the issue of service on Defendant Samo Enterprises. On February 8, 2024, the Court, on its own motion, continued the hearing on the Motion to April 4, 2024, and ordered Plaintiffs to serve and electronically file supplemental papers addressing the issue of service of the Motion on Defendant Samo Enterprises. (02/08/24 Minute order at pp. 5-6.) On March 8, 2024, the Court rejected Plaintiffs Application due to a defect in the proposed order. On March 11, 2024, Plaintiffs counsel filed a supplemental declaration regarding the issue of service on Defendant Samo Enterprises. On March 25, 2024, the Court, on its own motion, continued the hearing on the Motion to June 6, 2024 so that Plaintiff could cure the defects in the Application. (03/25/24 Minute Order at pp. 1-2.) On April 12, 2024, Plaintiffs filed an Application to Serve Defendant Samo Enterprises through the California Secretary of State (the 2d Application). On April 29, 2024, the 2d Application was granted. On May 24, 2024, Plaintiffs filed a proof of service showing that the summons, complaint, and the instant motion were served on Defendant Samo Enterprises on May 21, 2024 via the California Secretary of State. On May 28, 2024, Plaintiffs counsel filed a declaration in support of the Motion. In such declaration, counsel requested a 30-day continuance on the motion given that Defendant Samo was served by way of the California Secretary of State on May 21, 2024. On June 6, 2024, the Court continued the hearing on the Motion to July 11, 2024 so that Defendant Samo could be afforded the opportunity to file an opposition brief as the Motion was served on Defendant Samo with less than 16 court days notice. (06/06/24 Minute Order at pp. 5-6.) Also, on June 6, 2024, Plaintiffs filed and served a Notice of Continued Motion to Compel Arbitration Hearing. MOVING PARTY POSITION Plaintiffs contend that the controversy is covered by the arbitration provision in the RISC. Plaintiffs assert that the parties do not agree on the forum of arbitration. Plaintiffs indicate that they elect the American Arbitration Association (AAA) or, in the alternative, JAMS as the arbitration forum. OPPOSITION None filed as of July 8, 2024. ANALYSIS I. Compelling Arbitration A. Legal Standard A party who claims that there is a written agreement to arbitrate may petition the superior court for an order to compel arbitration pursuant to California Code of Civil Procedure section 1281.2. Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356. California law, like federal law, favors enforcement of valid arbitration agreements. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97. On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. (Code Civ. Proc. § 1281.2.) A party opposing a petition to compel arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Banner Entertainment, Inc. v. Superior Court, supra, 62 Cal.App.4th 348, 356. Where a petition to compel arbitration is granted, a court shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. (Code Civ. Proc. § 1281.4.) B. Discussion In support of the motion, Plaintiffs counsel, Kasra Sadr (Sadr), provides a declaration. Counsel attaches a copy of the RISC to her declaration. (Sadr Decl., ¶ 3; Exh. 1.) On or about March 7, 2022, counsels office sent a pre-filing CLRA demand letter to Defendants Samo and JBs respective places of business on behalf of Plaintiffs, and the demand included a demand for arbitration with the AAA. (Sadr Decl., ¶ 4; Exh. 2.) Counsel did not receive any agreement to arbitrate or pay for the AAA initial arbitration fees from Defendants Samo or JB before filing for arbitration. (Sadr Decl., ¶ 6.) On or around June 21, 2022, counsels office filed for arbitration with the AAA on behalf of the Plaintiff against Defendants Samo and JB. (Sadr Decl., ¶ 7.) On or around August 16, 2022, counsels office received a letter from the AAA which indicated that the AAA decided to close its file because there was a previous failure of Defendant Samo to comply with AAA policies. (Sadr Decl., ¶ 8; Exh. 3.) As such, counsels office informed the AAA by email that it would like to proceed solely against Defendant JB with the AAA. (Sadr Decl., ¶ 9.) On August 22, 2022, the AAA accepted arbitration of the dispute between Plaintiff and Defendant JB and demanded payment to be made by Defendant JB on or by September 4, 2022. (Sadr Decl., ¶ 10; Exh. 4.) Due to Defendant JB not making the required payments by the due date provided by the AAA, the AAA sent a letter indicating that it declines to administer the arbitration. (Sadr Decl., ¶¶ 11-12; Exh. 6.) Counsel states that the RISC, which was attached as Exhibit 1 to the Complaint, was authenticated by Plaintiffs by way of an affidavit. (Sadr Decl., ¶ 13; Exh. 7.) The Court has reviewed the RISC. (Sadr Decl., ¶ 3; Exh. 1.) The RISC was entered into between Plaintiffs and Defendant Samo. (Id.) The RISC contains an arbitration provision therein which states that [a]ny claim or dispute, whether in contract, tort, statute or otherwise . . . which arises out of or relates to . . . [the] 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 court action. (Sadr Decl., ¶ 3; Exh. 1 at p. 6.) The arbitration provision provides that Plaintiff may chose the American Arbitration Association . . . or any other organization to conduct the arbitration subject to our approval. (Id.) The Court finds that there is a valid arbitration agreement between Defendant Samo and Plaintiffs, and that the arbitration agreement covers the claims alleged in the Complaint. The Court notes that the Court can compel Defendant JB to arbitrate as the Complaint alleges that Defendant JB was assigned the RISC and is the holder of the RISC. (Complaint, ¶¶ 39-40.) Defendant JB has failed to oppose the Motion and therefore the Court finds that Defendant JB has conceded to Plaintiffs argument that it can be compelled to arbitration as [c]ontentions are waived when a party fails to support them with reasoned argument and citations to authority. Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215. As to Defendant Hudson, the Court notes that Plaintiffs are not seeking to compel the arbitration of Defendant Hudson. Defendant Hudson is not a signatory to the RISC and Plaintiffs do not present any authority to compel Defendant Hudson to arbitrate this action. Plaintiffs indicate in the motion that the parties disagree on the arbitration forum, but Plaintiffs elect the AAA or, alternatively, JAMS as the arbitration forum. Given that the instant motion is unopposed, the Court finds that Defendants do not take issue with the AAA conducting the arbitration. II. Conclusion Based on the foregoing, the Court therefore GRANTS Plaintiffs Motion to Compel Arbitration and orders arbitration of this matter with the AAA. The Court STAYS this action pending the completion of arbitration. (CCP § 1281.4.) Moving party is ordered to give notice.

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MARKUSON, BENJAMIN D vs WALKER, LARRY

Aug 11, 2017 |Peaco*ck, Emily. A |Civil |Insurance Claims |17-CA-007585

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MARKUSON, BENJAMIN D vs WALKER, LARRY

Aug 11, 2017 |Peaco*ck, Emily. A |Civil |Insurance Claims |17-CA-007585

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MARKUSON, BENJAMIN D vs WALKER, LARRY

Aug 11, 2017 |Peaco*ck, Emily. A |Civil |Insurance Claims |17-CA-007585

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REYES, NAHUM vs TYPTAP INSURANCE COMPANY

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MARKUSON, BENJAMIN D vs WALKER, LARRY

Aug 11, 2017 |Peaco*ck, Emily. A |Civil |Insurance Claims |17-CA-007585

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REYES, NAHUM vs TYPTAP INSURANCE COMPANY