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Ruling
Jones, et al. vs. Taylor
Aug 09, 2024 |22CV-0201290
JONES, ET AL. VS. TAYLOR.Case Number: 22CV-0201290Tentative Ruling on Motion to Compel Responses to Form Interrogatories: Defendant Sally Taylor movesfor an order compelling responses to Form Interrogatories, Set One that was propounded to Plaintiffs TiffanieJones, Kim Harmon, and Steve Huston. Despite the motion being timely noticed, Plaintiffs did not file anOpposition.A party has thirty days after service to respond to Form Interrogatories. CCP § 2030.260(a). Not providing atimely response to propounded discovery results in a waiver of objections. CCP § 2030.290(a). If a party towhom a discovery request is directed fails to serve a timely response, the party propounding discovery may movefor an order compelling a response. CCP § 2030.290(c). Defendant has presented evidence that FormInterrogatories, Set One was served on Plaintiff Tiffanie Jones on February 26, 2024, Plaintiff Steve Huston onMarch 1, 2024, and Plaintiff Kim Harmon on April 1, 2024, and that no responses have been served on Defendant.Unlike a motion to compel further responses, a motion to compel responses when no responses have beenprovided does not require the propounding party to demonstrate good cause or that it satisfied a meet-and-conferrequirement. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th390. Despite there being no requirement to meet and confer, Defendant provided evidence of attempts to meetand confer regarding the missing responses.Sanctions. CCP § 2030.290(c) only provides for sanctions when an unsuccessful opposition is made, however,the Court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discoveryeven when no opposition was filed. CRC 3.1348. Defendant provided evidence that counsel spent an hoursending discovery and calling and writing a follow-up letter, one hour preparing the motion, and expects to spendone hour on any opposition and attending the hearing. The Court finds that one hour for preparing the motionand one hour to attend the hearing are reasonable. The Court will not award the hour requested for sendingdiscovery and writing the follow-up letter, as those acts are not necessarily connected with this motion. The Courtfinds the requested $350 per hour to be a reasonable hourly rate. Sanctions are awarded to Defendant in theamount of $760 which is comprised of two hours at $350 per hour plus the $60 filing fee.The motion is GRANTED. Plaintiffs are to serve verified responses to Form Interrogatories, Set One withinfifteen days of the filing of the Notice of Entry of Order. Objections are waived. Monetary sanctions are awardedto Defendant in the amount of $760. Defendant provided a proposed Order that will be modified to reflect theCourt’s ruling.
Ruling
LARRY POBRE VIGILIA, M.D. VS CYNTHIA R. SISON, ET AL.
Aug 09, 2024 |24NNCV00197
Case Number: 24NNCV00197 Hearing Date: August 9, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A TENTATIVE RULING AUGUST 9, 2024 DEMURRER & MOTION TO STRIKE Los Angeles Superior Court Case # 24NNCV00197 MP: Cynthia R. Sison & Nader Allahverdy (Defendants) RP: Larry Pobre Viglia (Plaintiff) [No Opposition Rendered] NOTICE: The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received. Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. ALLEGATIONS: Larry Pobre Viglia (Plaintiff) brings this action against Cynthia R. Sison & Nader Allahverdy (Defendants). Plaintiff alleges Defendants conspired to induce a loan in the amount of $20,000 and thereafter refused to repay the loan pursuant to their agreement. Plaintiffs Complaint contains causes of action for (1) Fraud, (2) Conversion, (3) Breach of Contract, and (4) Damages Pursuant to Cal. Penal Code § 496(c). Defendants now demur to Plaintiffs fourth cause of action for Damages Pursuant to Cal. Penal Code § 496(c). Defendants argue that Cal. Penal Code § 496(c) does not authorize an independent civil cause of action. Defendants also move to strike Plaintiffs claim for treble damages pursuant to Penal Code § 496(c) and his request for attorneys fees. Plaintiff has rendered no opposition to the demurrer or motion to strike. ANALYSIS: I. LEGAL STANDARDS Demurrer The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.) A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiffs allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318.) Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.) Motion to Strike Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, [t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. § 436 (b).) II. MERITS Meet and Confer C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Tran Decl. ¶ 2.) Fourth COA Damages pursuant to Cal. Penal Code § 496(c) Overruled Defendant demurs to this cause of action on grounds that it does not permit an independent right of action. Penal Code § 496(a) provides in relevant part: Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished... A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property. Penal Code § 496(c) provides: Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees. Defendants argument that Penal Code § 496(c) does not permit an independent right of action is unpersuasive. The statute explicitly states that, Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages& By its plain language the statute authorizes an independent cause of action and Defendants cite to no authority interpreting the statute otherwise. Defendants argument that this cause of action is subsumed by Plaintiffs causes of action for fraud and conversion is similarly unavailing for reasons that will be discussed below. Defendants cite to the recent California Supreme Court decision in Siry Investment, L.P. v. Farkhondehpour, which they argue stands for the idea that an action cannot be maintained under Penal Code § 496(c) where a Plaintiff alleges only simple misrepresentation. The Court finds this argument is not supported by the Courts reading of the holding in Siry. (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333). The Court in Siry did explain that not all consumer fraud or misrepresentations fall within the purview Penal Code § 496. To prove theft, a plaintiff must establish criminal intent on the part of the defendant beyond mere proof of nonperformance or actual falsity. If misrepresentations or unfulfilled promises are made innocently or inadvertently, they can no more form the basis for a prosecution for obtaining property by false pretenses than can an innocent breach of contract. (Siry Investment, L.P. v. Farkhondehpour, supra, 13 Cal.5th at 362 [internal quotation marks and citations omitted].) This quote from Siry, presented in Defendants moving papers, simply does not concern the sufficiency of pleadings. The Siry court was reinforcing that a plaintiff must prove theft and intent to commit theft in order to recover under the statute, they did not opine on the circumstances under which a plaintiffs pleadings concerning theft and intent were sufficient. Here, Plaintiff has alleged that Defendants purposefully defrauded him of $20,000 under the guise of needing funding for a film project. (Compl. ¶ 6.) Plaintiff further alleges that Defendant Sison issued a predated check which was intended to fulfil the loan, but thereafter closed the account the check was to draw upon. (Compl. ¶¶ 8-9.) It is unmistakable that Plaintiff alleges Defendants made the fraudulent representations with the intent to deprive Plaintiff of the $20,000. The holding in Siry makes clear that Plaintiff will eventually have to prove Defendants intent in committing theft to succeed on his cause of action. This is an element which separates the cause of action under 496(c) from those of fraud and conversion such that the statutory cause of action is not duplicative. While Plaintiff may ultimately be unable to prove the intent required to recover on this cause of action, it does not follow that the cause of action is subject to demurrer. Accordingly, the demurrer to the fourth cause of action is OVERRULED. Motion to Strike Defendants move to strike Plaintiffs claim for treble damages pursuant to Penal Code § 496(c). Defendants also move to strike Plaintiffs request for attorneys fees and related allegations, arguing there is no statutory basis for them. Defendants motion to strike is predicated on the success of their demurrer to Plaintiffs cause of action under Penal Code § 496(c). As the Court has overruled Defendants demurrer, the motion to strike is without basis. Plaintiff maintains a valid cause of action under Penal Code § 496(c) and the statute provides the basis for the recovery of attorneys fees. Accordingly, the motion to strike is DENIED. --- RULING: In the event the parties submit on this tentative ruling, or a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the Courts records. ORDER Cynthia R. Sison & Nader Allahverdy s Demurrer and Motion to Strike came on regularly for hearing on August 9, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows: THE DEMURRER TO THE FOURTH CAUSE OF ACTION IS OVERRULED. THE MOTION TO STRIKE IS DENIED IN ITS ENTIRETY. UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANTS TO GIVE NOTICE. IT IS SO ORDERED. DATE: August 9, 2024 _______________________________ F.M. Tavelman, Judge Superior Court of California County of Los Angeles
Ruling
GOBIND ENTERPRISES INC vs CERTAIN UNDERWRITERS AT LLOYDS LONDON
Aug 07, 2024 |CV-20-004260
CV-20-004260 – GOBIND ENTERPRISES INC vs CERTAIN UNDERWRITERS AT LLOYDS LONDON – Defendant’s Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication – CONTINUED, on the Court’s own motion.The Court requires additional time to review the pleadings.Accordingly, this matter is continued to September 13, 2024, at 8:30 am in Department 24
Ruling
ANGELIQ TURNER VS EXTRA SPACE STORAGE
Aug 09, 2024 |6/18/2022 |23SMCV05654
Case Number: 23SMCV05654 Hearing Date: August 9, 2024 Dept: I The motions to compel are GRANTED. Discovery was served on April 17, 2024 but no responses were served. When defense counsel contacted plaintiff, plaintiff said that the discovery had not been received. Defendant re-sent the discovery and the parties agreed on a due date. But no responses have been served up to the motion date and, to the best of the courts knowledge, not even to date. (Plaintiff also indicated that plaintiff would change venue, but that seems neither here nor there.) These unopposed motions to compel follow. The court sees no justification for the failure to respond. Accordingly, the motion is GRANTED. Verified responses without objection other than privilege are to be filed within 20 calendar days, including documents. Defendant, in a show of good faith, has not sought sanctions. The court appreciates that courtesy; plaintiff should as well.
Ruling
RENOVATE PROPERTIES, LLC vs BREWER
Aug 07, 2024 |CVRI2301676
Motion for Summary Judgment or in theAlternative Summary Adjudication onComplaint for Breach ofRENOVATE PROPERTIES, Contract/Warranty (Over $25,000) ofCVRI2301676LLC vs BREWER RENOVATE PROPERTIES, LLC byRENOVATE PROPERTIES, LLC,SELLERS ADVANTAGE, INC., ANDREJAVIER, DOUG HOPKINSTentative Ruling:I. FACTUAL/PROCEDURAL CONTEXTThis is a breach of contract and financial elder abuse case. Plaintiff Renovate Properties, LLC(“Renovate”) alleges that on March 4, 2023, it entered into a Real Estate Purchase and SaleAgreement (“Agreement”) with Defendant Katherine Brewer (“Brewer”) to purchase residentialreal estate located at 3593 Carlisle Street, Perris, California 92571 (“Subject Property”) or$335,000. On March 9, 2023, Brewer requested that the sale price be increased to $350,000 andescrow extended to May 15, 2023. Renovate agreed. However, on March 13, 2023, Brewerinformed Renovate she would not be selling the Subject Property. On April 4, 2023, Renovatefiled its Complaint for: (1) Breach of Contract; and (2) Specific Performance.Brewer alleges that she at all relevant times, she was 70 years old. On March 3, 2023, Brewersaw a television advertisement for Cross-Defendant Sellers Advantage (“Sellers”) featuringCross-Defendant Doug Hopkins (“Hopkins”). Brewer contacted Sellers and set up an appointmentfor what she believed would be an estimate with an opportunity to decide whether to sell. OnMarch 4, 2023, Cross-Defendant Andre Javier (“Javier”) arrived for the meeting. After quicklyviewing the home, Javier gave Brewer a document and told her to read and sign. Brewer allegesthat, due to her age and incapacity, she signed the Agreement without understanding that it wasa contract. Brewer argues that the sale price is substantially below market value. On May 18,2023, Brewer filed her Cross-Complaint. She asserts three causes of action for: (1) FinancialElder Abuse; (2) Fraud; and (3) Misrepresentation.Renovate, Sellers, Javier and Hopkins (collectively “Moving Parties”) now move for summaryjudgment, or in the alternative, summary adjudication of each cause of action of the Complaintand Cross-Complaint. Moving Parties argue that it is undisputed that Renovate entered into avalid Agreement with Brewer for the purchase of the Subject Property and that Brewer signed theAgreement, establishing her assent. Moving Parties argue that Brewer breached the Agreementby repudiation and Renovate’s performance was excused by the repudiation. Moving Partiesargue that they are entitled to specific performance because real property is unique. MovingParties argue that they are entitled to declaratory relief as to the validity of the Agreement. MovingParties argue that there elder abuse cause of action fails because they did not take any propertyfrom Brewer and the Agreement was negotiated. Moving Parties argue that there is no evidenceof fraud or misrepresentation.II. TIMELINESS OF MOTION• If the motion is made by plaintiff, is it made at least 60 days after defendant’sgeneral appearance? [X] Yes [] No [ ] Not Applicable• Is the motion set for hearing at least 30 days before trial date? [X] Yes [ ] NoIII. PROCEDURAL REQUIREMENTS• Supported by properly formatted separate statement? [ ] Yes [x] NoThe issues for adjudication are confusing and appear to seek adjudication of severalissues within the larger headings.IV. EVIDENCE SUPPORTING MOTION (list declarations, deposition testimony,discovery responses, requests for judicial notice etc.)Declaration of Troy Lines, manager of Renovate and Sellers, Declaration of Cross-DefendantAndre Javier, Declaration of Melissa Eaves, transaction coordinator for Renovate, Declaration ofCounsel Kirk Pearson authenticating Brewer’s discovery responses, which are contained in thelodged documents.V. LEGAL ANALYSIS (For each cause of action / affirmative defense, indicatehow movant satisfied its initial burden of proof)Any party may move for summary judgment in any action or proceeding if it is contended that theaction has no merit or that there is no defense to the action or proceeding. (Cal Code Civ Proc §437c(a).) “A defendant's motion for summary judgment should be granted if no triable issue existsas to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v.Eas bt Side Union High School Dist. (2003) 31 Cal. 4th 990, 1002-1003.) “The moving party bearsthe burden of production to make a prima facie showing of the nonexistence of any triable issueof material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) Once this burdenhas been met, the burden shifts to the opposing party to make a prima facie showing of theexistence of a triable issue of material fact. (Ibid.) Plaintiff does not move for summaryadjudication. Therefore, any disputed fact as to any cause of action is grounds to deny summaryjudgment.Breach of Contract:“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performanceor excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.”(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1031.) Mutualassent is required in every contract. (Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 787-788.) “Mutual assent is determined under an objective standard applied to the outwardmanifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts,and not their unexpressed intentions or understanding.’” (Ibid.) In the absence of fraud, mistake,the outward manifestation or expression of consent is controlling and there need not be a meetingof the minds. (Rodriguez v. Oto (2013) 212 Cal. App. 4th 1020, 1027.) In the absence of fraud oranother vitiating factor, a signature on a contract is an objective manifestation of assent to theterms of the contract. (Ibid; Monster Energy Co. v. Schechter (2019) 7 Cal. 5th 781, 789.)Moving Parties produced Real Estate Purchase and Sale Agreement, which appears to havebeen signed by Defendant as Kathy Brewer, although the signature has been crossed off, butinitialed. (COE, Ex. 1.) The sale price is listed as $335,000. (Id.) Moving Parties have alsoproduced an Addition and/or Amendment to Escrow Instructions which appears to increase thesale price to $350,000 and extend escrow to May 15, 2023. (COE, Ex. 2.) This document was notsigned by Brewer. (Id.) Although Brewer alleges fraud and lack of capacity, because the Motionis unopposed, there is no evidence to rebut the validity of the Agreement.Moving Parties argue that Brewer breached the Agreement by refusing to sell the SubjectProperty. Anticipatory breach occurs when a party whose performance is not yet due makes clearthat it does not intend to perform. (Civ. Code § 1440; 1 Witkin, Summary of California Law,Contracts §§ 886-893.) The repudiation may be express or implied. (Taylor v. Johnston (1975) 15Cal.3d 130, 137.) When a promisor repudiates a contract, the injured party can either: 1) treat therepudiation as an anticipatory breach and seek immediate seek relief; or 2) ignore the anticipatorybreach and later exercise its remedies for actual breach if a breach does, in fact, occur at suchtime. (Id.; AG Properties of Kingston, LLC v. Besicorp-Empire Dev’t Co. (2005) 14 A.D.3d 971,973.) A party’s repudiation of the contract may also serve as an excuse for the other party’snonperformance. (Alphonzo E. Bell Corp. v. Listle (1946) 74 Cal.App.2d 638, 644.)Moving Parties assert that on March 13, 2023, Brewer contacted the manager of Renovate andSellers. (Decl. of Lines, ¶ 9.) Brewer stated that she would not be proceeding with the transactionto sell the Subject Property and would be hiring an attorney. (Id.) This evidence is sufficient toestablish that Brewer breached the Agreement by repudiation and Renovate’s performance wasexcused.Moving Parties argue that they are entitled to specific performance. Specific performance of acontract may be decreed whenever: (1) its terms are sufficiently definite; (2) consideration isadequate; (3) there is substantial similarity of the requested performance to the contractual terms;(4) there is mutuality of remedies; and (5) plaintiff’s legal remedy is inadequate. (Blackburn v.Charnley (2004) 117 Cal. App. 4th 758, 766.) Where real property is the subject of a contract,there is a “presumption that the breach . . . cannot be adequately relieved by monetary damages.”(Civ. Code § 3387.) Where the property is other than a single family dwelling which the partyseeking performance intends to occupy, the presumption is rebuttable. (Ibid; Real EstateAnalytics, LLC v. Vallas (2008) 160 Cal. App. 4th 463, 474.) The party resisting specificperformance must produce evidence to rebut the presumption that damages are inadequate.(Ibid.)However, specific performance cannot be enforced against a party to a contract in any of thefollowing cases:(1) If he has not received adequate consideration for the contract;(2) If is not, as to him, just and reasonable;(3) If his assent was obtained by misrepresentation, concealment, circumvention or unfairpractices of any party to whom performance would become due under the contract, or byany promise of such party which has not been substantially fulfilled; or(4) If his assent was given under the influence of mistake, misapprehension, or surprise,except that where the contract provides for compensation in case of mistake, a mistakewithin the scope of such provision may be compensated for, and the contract specificallyenforced in other respects, if proper to be so enforced.(Civil Code § 3391.) In an action for specific performance the plaintiff must allege and proveadequacy of consideration and that the agreement is not as to the other party unconscionable orinequitable. (Milton Kauffman, Inc. v. Smith (1947) 82 Cal. App. 2d 302, 304-305.)The Agreement involves the purchase of an investment property. Thus, a rebuttable presumptionexists that legal remedies are inadequate and the terms of the Agreement are sufficiently definite.However, Moving Parties have not produced evidence of the adequacy of consideration or thatthe Agreement is not inequitable to Brewer. As stated below, Moving Parties have not establishedthat there are no triable issues as to the Financial Elder Abuse cause of action. Therefore, MovingParties have not established that there are no triable issues as to specific performance.A plaintiff’s motion for summary adjudication of a cause of action must show that there is nodefense to that cause of action. (Paramount Petroleum Corp. v. Superior Court (2014) 227Cal.App.4th 226, 241.) Likewise, a plaintiff’s motion cannot be granted unless it resolves theissue of damages as well as liability. (Id at, 243.) Here, Moving Parties have not established thatthere is no defense to the breach of contract action. Because they have not established that theyare entitled to specific performance, the issue of damages has not been established. Thus,summary adjudication should be denied.Declaratory Relief:Pursuant to Cal. Code Civ. Proc. §1060, any person under a written instrument who desires adeclaration of his or her rights or duties with respect to another, may, in cases of actualcontroversy relating to the legal rights and duties of the respective parties, bring an action orcross-complaint in the superior court for a declaration of his or her rights or duties. The purposeof declaratory relief is to eliminate uncertainties and controversies that may result in futurelitigation. (Marina Development Co. v. County of Los Angeles (1984) 155 Cal.App.3d 435, 443.)To demonstrate entitlement to declaratory relief, a plaintiff must show that the action presents“two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversyinvolving justiciable questions relating to the rights or obligations of a party.” (Lee v. Silveira (2016)6 Cal.App.5th 527, 546.)Renovate seeks a judicial of the rights, duties, and obligations of all parties under the Real EstatePurchase and Sale Agreement. (Comp., ¶19.) As stated above, there are triable issues as towhether Renovate is entitled to specific performance based on adequacy of consideration. Assuch, there are triable issues as to the rights and duties under the Agreement. Summaryadjudication should be denied. For the fraud cause of action, plaintiff also alleged, in a conclusorymanner, that Ocwen defendants committed elder abuse. The Elder Abuse and Dependent AdultCivil Protection Act (Welf. & Inst. Code, § 15600, et seq.) provides for enhanced remedies forabuse, including financial abuse, of any California resident 65 years old or older. (See , 177 Cal.Rptr. 3d 320.)Financial Elder Abuse:The purpose of the Elder Abuse and Dependent Adult Civil Protection Act (the “Elder Abuse Act”)is “to protect a particularly vulnerable portion of the population from gross mistreatment in theform of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) The ElderAbuse Act provides for enhanced remedies for abuse, including financial abuse of any elder 65years old or older. (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 478.) Financial elderabuse occurs when a person:(1) Takes, secretes, appropriates, obtains, or retains real or personal property ofan elder or dependent adult for a wrongful use or with intent to defraud, orboth.(2) Assists in taking, secreting, appropriating, obtaining, or retaining real orpersonal property of an elder or dependent adult for a wrongful use or withintent to defraud, or both.(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking,secreting, appropriating, obtaining, or retaining, real or personal property of anelder or dependent adult by undue influence, as defined in Section 15610.70.(Welf. & Inst. Code, §15610.30(a).) In order to prove financial elder abuse, a plaintiff mustdemonstrate that: (1) defendant took, hid, appropriated, obtained or retained Plaintiff’s property;(2) plaintiff was 65 years or older; (3) defendant took, hid, appropriated, obtained or retainedplaintiff’s property for a wrongful use, with intent to defraud or by undue influence; (4) plaintiff washarmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI3100) The harm contemplated by the statute includes financial harm; it need not be physical harmor mental suffering. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841,866; Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1316.)Pursuant to Welf. & Inst. Code, §15610.30(c), a person or entity takes, secretes, appropriates,obtains, or retains real or personal property when an elder or dependent adult is deprived of anyproperty right, including by means of an agreement. Further, a person or entity may be found tohave “assisted” a third party in the financial abuse of an elder only if the person knew of thirdparty’s wrongful conduct. (Das v. Bank of America N.A. (2010) 186 Cal.App.4th 727, 744.)Brewer alleges that on March 3, 2023, she was 70 years old. (X-Comp., ¶ 7.) She asserts thatafter viewing a television commercial for Sellers, she made an appointment for Sellers to come toher home to provide her with an estimate of the home’s value. (Id at ¶10.) When Mr. Javier arrivedthe following day, he spent 20 minutes examining the property, and then filled in the Agreementand told Brewer to “read and sign.” (Id at ¶12.) Brewer alleges that she was denied an opportunityto negotiate. (Id at ¶12.) Brewer further alleges that the $335,000 purchase prices is substantiallybelow the fair market value of $515,000. (Id at ¶ 14.)Moving Parties argue that Brewer cannot establish that the property was taken because sherepudiated the Agreement and Renovate’s lawsuit for specific performance is insufficient toestablish a taking. An executory agreement that significantly impairs the value of the elder’sproperty constitutes a taking by means of agreement under the elder abuse statute. (Bounds,supra, 229 Cal. App. 4th at 472.) The statute refers to taking by means of an agreement, but isnot expressly limited to a performed agreement and courts should not add this requirement. (Idat 480, emphasis in the original.) The Bounds Court concluded that the enacted the Elder AbuseAct to protect the elderly from overreaching conduct resulting in the deprivation of property, andrequiring a victim of elder abuse to wait until the property was actually obtained in order to file suitwould not further the intended goal. (Id at 481.) As such, to the extent Moving Parties entered intothe Agreement with for a wrongful use, with intent to defraud or by undue influence, it is a takingfor the purpose of the Elder Abuse Act.Moving Parties also argue that Brewer cannot establish the amount of damages based on herdiscovery responses. Factually devoid discovery responses may be sufficient to meet the movingparty’s initial burden and require the opposing party produce evidence. (Union Bank v. SuperiorCourt (1995) 31 Cal. App. 4th 573, 580.) However, the deficient responses must involve factslikely to be known by the responding party. (Villa v. McFerren (1995) 35 Cal. App. 4th 733, 749,discovery response indicating lack of knowledge about communications between defendants towhich plaintiff was not a party was insufficient to establish lack of triable issues.) While aresponding party has a duty to answer written discovery completely, evasive answers are not asufficient basis for granting summary judgment. (Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App. 4th 133, 145-146.) A summary judgment should not be based on tacit admissions orfragmentary and equivocal concessions, which are contradicted by other credible evidence."(Mason v. Marriage & Family Ctr (1991) 228 Cal. App. 3d 537, 546.)When asked to state facts supporting her claim that the Subject Property has a fair market valueof $515,000, Brewer responded that she obtained the estimate from Zillow, but is not positive.This is not an unequivocal admission. Moving Parties have not produced any evidence that thepurchase price under the Agreement was the fair market value or that they did not useoverreaching tactics with an intent to defraud Brewer. Because Moving Parties have not met theirinitial burden of establishing a lack of triable issues, summary adjudication should be denied.Fraud and Misrepresentation:The elements of fraud are: (1) misrepresentation or concealment, (2) knowledge of falsity, (3)intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Lovejoy v. AT&T Corp. (2004)119 Cal. App. 4th 151, 157-158.) Every element of the cause of action must be pled factually andspecifically and the policy of liberal pleading does not apply. (Quelimane Co. v. Stewart TitleGuaranty Co. (1998) 19 Cal. 4th 26, 47.)The essential elements of a count for intentional misrepresentation are: (1) a misrepresentation,(2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5)resulting damage.” (Chapman v. Skype (2013) 220 Cal. App. 4th 217, 230-231.) The elements ofa claim for negligent misrepresentation are: misrepresentation of a past or existing material fact,without reasonable ground for believing it to be true, and with intent to induce another’s relianceon the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentationby the party to whom it was directed; and resulting damage. (Hasso v. Hapke (2104) 227 Cal.App. 4th 107, 127.) Fraud and negligent misrepresentation must be pleaded with particularitysimilar to other fraud. (Charnay v. Cobert (2006) 145 Cal. App. 4th 170, 185, FN 14.)The Fraud and Misrepresentation causes of action are based on allegations that on March 3 and4, 2023, Cross-Defendants Hopkins and Javier made verbal representations to Brewer with theintent to make her believe that by selling her home directly to Sellers with no brokers involved thatshe would ultimately make about the same amount of money on the sale of her home as if shesold it on the open market.Moving Parties again rely on Brewer’s vague and equivocal discovery responses, one of whichstates that “Responding Party admits, however, that Andre Javier specifically stated toResponding Party that the amount would be the EXACT same amount of money as in the openmarket. (UMF No. 88.) In his declaration, Javier does not claim that he did not make thisrepresentation. Hopkins did not file a declaration. Thus, Moving Parties have not established thatno triable issues exist
Ruling
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CV-23-006807 – MILLER, RICK vs OGRADY, SUSAN – Defendant’s Motion for Attorneys’ Fees Based Upon Contract [CCP 1032, 1033.5] – HEARING REQUIRED.The Court is likely to grant the motion at least in part and has factual questions about the other cases and possible apportionment.
Ruling
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MOTION FOR ORDER TO SEALCVSW2204873 WOODCOCK VS DECHANT DOCUMENT(S) BY GERALDWOODCOCKTentative Ruling: Appearances required.
Ruling
Edgar Lopez Martinez vs AMERICAN HONDA MOTOR CO., INC., a California Corporation
Aug 07, 2024 |23CV01847
23CV01847MARTINEZ v. AMERICAN HONDA PLAINTIFF’S MOTION TO COMPEL REQUEST FOR PRODUCTION OF DOCUMENTS, SET TWO The motion is denied as moot. Defendant provided responses the day this motion wasfiled (which was within four (4) business days of the parties’ agreed-upon extension of time).The court declines to impose sanctions against plaintiff.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
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