Silvia Elizabeth Diaz Berrios V. Sean T. Puzzo

22CV005828: BENTON, et al. vs CVS HEALTH CORPORATION, et al. 07/16/2024 Hearing on Motion to be Admitted Pro Hac Vice filed by Anthony Swetala (Plaintiff) + in Department 21 Tentative Ruling - 07/02/2024 Noël Wise The Motion to Be Admitted Pro Hac Vice filed by Ralph Milan, Joyce Benton, Melissa Greco, Anthony Swetala on 06/18/2024 is Granted. Pursuant to Government Code section 70617(e)(2), on or before the anniversary of the date of this order Pro Hac Vice Applicant ANTONIO VOZZOLO shall pay a renewal fee of five hundred dollars ($500) for each year that Pro Hac Vice Applicant maintains pro hac vice status in this case. The Court hereby sets a compliance hearing for 08/25/2025 at 01:30 PM in Department 21 at Rene C. Davidson Courthouse. If the renewal fee has been paid at least 10 calendar days before the hearing, no appearance will be required. PLEASE NOTE: This tentative ruling will become the ruling of the court if uncontested by 04:00pm the day before your hearing. If you wish to contest the tentative ruling, then both notify opposing counsel directly and the court at the eCourt portal found on the court’s website: www.alameda.courts.ca.gov. If you have contested the tentative ruling or your tentative ruling reads, “parties to appear,” please use the following link to access your hearing at the appropriate date and time: https://alameda-courts-ca-gov.zoomgov.com/my/department21 . If no party has contested the tentative ruling, then no appearance is necessary.

SOCIAL SERVICES), ET AL. Case Number: 22CV-0200829 This matter is on calendar for review regarding status of default and trial setting. This case was filed in October of 2022, but is still not at issue. Doe Defendant La-Z-Boy Incorporated was served on December 4, 2023, but has not yet appeared. The Court has received and executed a stipulated order re filing of a Second Amended Complaint. The Court will therefore continue this matter 60 days to allow said Complaint to be filed and served. The Court continues this matter to September 16, 2024 at 9:00 p.m. in Dept. 64. The parties are to file with the Court a Status Conference Statement 5 days prior thereto. No appearance is necessary on today’s calendar.

Case Number: 24NWCV00022 Hearing Date: July 17, 2024 Dept: C ZHOIE PEREZ v. SANDRA NGAYAN, et al. CASE NO .: 24NWCV00022 HEARING : 7/17/24 @ 9:30 A.M. #6 TENTATIVE RULING Defendants Sandra Ngayan and Francisco Alejandro Ngayans demurrer to Plaintiffs first amended complaint is CONTINUED to July 23, 2024 at 9:30 A.M. in Dept. SE-C. Moving Party to give NOTICE. The motion is unopposed as of July 15, 2024. This is a status hearing. At the June 12, 2024 hearing, the Court learned that Plaintiff was incarcerated. According to Court records, it appears Plaintiff is held without bail in People v. Zhoie Perez , Case No. PA098371-01. Her Probation and Sentencing Hearing on June 26, 2024 at 8:30 a.m. in San Fernando Courthouse, Dept. 1 was continued October 9, 2024. Plaintiff remains in custody for the criminal case. The Court has been in contact with Rosemary Chavez, new counsel for Plaintiff in the criminal matter, and has invited her to make a limited appearance in this case and to update the Court on the criminal matter.

MARTINEZ VS. PG&E CORPORATION, ET AL. Case Number: 22CV-0200316 This matter is on calendar for review regarding status of coordinated proceeding. This matter is currently coordinated as JCCP No. 5165 in the San Francisco County Superior Court. The Court has received status statements from Plaintiff and Defendants, which indicate the dismissal with prejudice of Plaintiff’s action (following summary judgment) is currently under appeal. The parties request continuance pending appeal. Today’s hearing is continued to Monday, January 13, 2025, at 9:00 a.m. in Department 64. The parties are ordered to file a status report at least five court days prior to the continued hearing date. No appearance is necessary on today’s calendar. MASON VS. CONTECH ENGINEERED SOLUTIONS LLC, ET

Motion to Compel: Answer/Response to CVPS2305851 ORTEGA vs MILLER Special Interrogatories by THERESA MILLER Tentative Ruling: No tentative ruling. A hearing will be conducted. Trial counsel are ordered to appear in person in Department PS1. No telephonic or video appearances will be permitted. Counsel should be prepared to address in detail whether verified discovery responses were served in May 2024, prior to the time this motion was filed. Based on its review of the pleadings, the Court finds it is necessary to remind all counsel that civility and professionalism among counsel should be the norm and not the exception. Counsel need not always agree, but their disagreements, especially when relayed to the Court, should be free of rancor unbecoming of legal professionals. No further briefing of any kind may be filed.

CV-24-002994 – MANISCALCO, ANTHONY vs TURLOCK RV CENTER INC – Defendants’ Turlock RV Center, Inc, Hudson Insurance Company and Bank of America’s Petition to Compel Arbitration – GRANTED. Defendants have established the existence of a valid agreement to arbitrate between Plaintiff and Turlock RV Center, Inc. (Code Civ. Proc. § 1281.2.)  With regard to Plaintiff’s claim of unconscionability, the Court finds that Plaintiff has demonstrated that the fee and cost provisions in the agreement are inappropriate, as they have the effect of denying Plaintiff the rights and remedies he would have if he were to proceed in court. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83; Serafin v Balco Properties, Ltd., LLC (2015) 235 Cal.App.4th 165.) That being said, the Court finds that this element of unconscionability does not so permeate the arbitration agreement that the flawed attorney fees and costs provisions cannot be severed and the balance of the agreement enforced. (Serafin, supra, at 183-184.) Therefore, the Court exercises its discretion to grant the motion herein, conditioned on Plaintiff being afforded the opportunity to seek in arbitration all statutory remedies provided for under the CLRA, including an award of attorney’s fees and costs, should he prevail on his CLRA claim. As the remaining Defendants are not parties to the arbitration agreement, the matter is stayed pending completion of the arbitration proceeding. (Code Civ. Proc. § 1281.4.)

Case Number: 22STCV20052 Hearing Date: July 17, 2024 Dept: 74 McDaniel v. Colaianni et al. Defendants Motion to Correct and Confirm Arbitration Award BACKGROUND Plaintiff April McDaniel sued defendants Rodrigue Colaianni and Lisa Colaianni aka Lisa Leroy on September 14, 2022 for (1) breach of contract, (2) negligence, (3) fraud, (4) negligent misrepresentation, and (5) concealment. Plaintiff alleged Defendants knowingly sold her a home replete with construction defects after Defendants negligently remodeled it. On October 31, 2022, the parties stipulated to arbitrate their claims and stay court proceedings in the interim. The arbitrator, Ernest C. Brown, issued a twenty-six-page Final Award on April 19, 2024, awarding Plaintiff $391,114.50, accruing simple interest at 10% annually from the date of the award. (D.Ex. 10, 26:2-7 (Award).) On May 28, 2024, Defendants filed the instant Motion to Confirm the Arbitration Award With Corrections by Striking the Award of Attorneys fees and Pre-Judgment Interest. On July 3, 2024, Plaintiff opposed. On July 10, 2024, Defendants replied. LEGAL STANDARD ¿¿ Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. (Code Civ. Proc., § 1285.) If a petition or response under [section 1285] is duly served and filed, the court shall confirm the award as made ... , unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding. ( Id. , § 1286.) [T]he court ... shall correct the award and confirm it as corrected if the court determines that: (a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or (c) The award is imperfect in a matter of form, not affecting the merits of the controversy. ( Id. , ¶ 1286.6.) [A]n arbitrator's decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties. ( Moncharsh v. Heily & Blase ¿(1992) 3 Cal.4th 1, 6.) An arbitrator does not exceed their powers by assigning an erroneous reason for their decision. ( Id . at 28.) Arbitrators do not exceed their statutory powers merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators. ( Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 348.) DISCUSSION 1. Attorneys Fees Defendants move the Court to strike the arbitrators $87,320.00 attorneys fees award. Defendants mistakenly suggest that the award of attorneys fees and the award of interest [by the arbitrator] are reviewed de novo but the authorities they cite refer to the standard a higher court applies when reviewing a lower court s fees determination. (Mot., 3:27-28.) When a trial court reviews an arbitrators decision, the standard is more deferential, as described above. (See Moncharsh , supra , 3 Cal.4th at p. 6.) Defendants argue Plaintiff is not entitled to fees because she did not attempt to mediate with them before resorting to legal action. The arbitrator found differently. The Final Award includes findings that on May 25, 2022, Plaintiffs counsel demanded prompt mediation, and between June and August 2022, Plaintiff requested that Respondents participate in an early mediation and Respondents and its [ sic ] counsel did nothing and refused to agree to mediate. (Award, 14:20-26, 15:7-14.) Defendants ask the Court to reverse the arbitrators factual determinations, not to correct them. The Court cannot do so. [P]arties who enter into arbitration agreements are presumed to know the arbitrators decision will be final and binding; arbitral finality is a core component of the parties agreement to submit to arbitration. ( SingerLewak LLP v. Gantman (2015) 241 Cal.App.4th 610, 616, quoting Moncharsh , supra , at pp. 6, 10.) The Court defers to the arbitrators finding of fact that Plaintiff tried to mediate and Defendants refused. The arbitrator was thus empowered to award fees. 2. Prejudgment Interest Defendants contend the arbitrators award is not clear and unequivocal as to the scope of interest awarded. (Mot., 10:23-25 [heading].) The contention is unavailing because the award is straightforward. The arbitrator awarded Plaintiff 10% simple annual interest beginning on the date of the award. That rate will continue after judgment. The arbitrator simply formalized the date on which damages were capable of being ascertained for purposes of post-award, prejudgment interest. 3. Attorneys Fees for This Motion A party entitled to attorneys fees in an arbitration award is similarly entitled to fees incurred to confirm it, where fees are otherwise authorized by the parties contract. (See Carole Ring & Associates v. Nicastro (2001) 87 Cal.App.4th 253, 260-261.) The prevailing partys right to fees extends from Code of Civil Procedure section 1293.2, entitling a party to costs after a successful petition to confirm, and Code of Civil Procedure section 1033.5(a)(10), incorporating attorneys fees within costs when authorized by contract. Here, the parties contract authorized a fees award. (See Mot. Ex. 1, ¶ 25 [reasonable fees to prevailing party [i]n any action, proceeding, or arbitration between the parties arising out of [their] Agreement].) The arbitrator determined Plaintiff to be the prevailing party and awarded fees. The Court awards Plaintiff the costs of litigating this petition based on section 1293.2, and per section 1033.5, those costs include Plaintiffs fees. Plaintiffs two attorneys charge a reasonable hourly rate of $400.00 based on their experience and qualifications. (Markow Dec., ¶¶ 17-19.) Counsel Ari Markow estimates his colleague spent 15.4 hours reading and analyzing Defendants motion, conducting legal research, and writing the opposition, and Markow himself spent 2.2 hours discussing the motion, case status, and strategy with Plaintiff, and reviewing and finalizing [counsels] declaration and related exhibits. ( Id. , ¶ 21 [typo omitted].) Markow estimated 3.5 hours reviewing a reply brief and appearing at the hearing. Plaintiffs counsels billing is slightly excessive. 2.2 hours spent meeting with the client about a single law and motion matter is unnecessary, as is 3.5 hours to review the reply and prepare for the hearing on a straightforward legal issue. The Court will award 15.0 hours, in total, to review the motion and reply and prepare the opposition, and 1.0 hours to prepare for and attend the hearing, which can be accomplished remotely. The Court awards $6,400.00 in attorneys fees. 4. Prejudgment Interest The Court also calculates interest from April 19, 2024, through date of judgment as follows: ten percent, divided by three-hundred sixty five, multiplied by the total award of $391,114.50, results in a $107.15 per diem accrual. Eighty-nine (89) days passed between the award on April 19, 2024 and the judgment on July 17, 2024; $107.15 multiplied by 89 is $9,536.35. CONCLUSION The Court denies Defendants petition to correct the arbitration award. The Court confirms the award as rendered and enters judgment for Plaintiff against Defendants, jointly and severally, in the amount of $413,450.85, inclusive of attorneys fees and interest accrued to the date of judgment.

MOTION TO STRIKE COMPLAINT ON 2ND AMENDED COMPLAINT FOR OTHER PERSONAL CVRI2304396 M. VS GONGCO FOODS INJURY/PROPERTY DAMAGE/WRONGFUL DEATH TORT (OVER $25,000) OF X. M. BY THE PEGGS COMPANY, INC. Tentative Ruling: The Motion is denied. The Second Amended Complaint sufficiently alleges the ultimate facts supporting a claim for punitive damages pursuant to Civil Code section 3294.