Crown Asset Management Llc , Vs. Brittany Turcios .

Matter on the Discovery Calendar for Monday, July 22, 2024, line 6, PLAINTIFF 2075 SUTTER STREET HOMEOWNERS ASSOCIATION'S Motion To Compel Responses To Plaintiff 2075 Sutter Street Homeowners Associations Request For Production Of Documents (Set One) And Form Interrogatories - Construction Litigation (Set One) Directed To Defendant East Bay Construction & Management, Llc And Imposing Monetary Sanctions. Pro Tem Judge David McDonald, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: No opposition filed; motion granted. Responses to the discovery shall be served by August 16, 2024. Sanctions of $750 imposed against Defendant. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear 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 (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to davididaho14@gmail.com 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. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear 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/JPT)

For Plaintiff John Ziegler: John J. Thyne III, Adam T. Carralejo, Thyne Taylor Fox Howard LLP For Defendant and Cross-Complainant Dennis Allen Associates: Domingo R. Tan, S. Joanna Dyriam, Wood, Smith, Henning & Berman LLP For Cross-Defendant John Kenney Construction, Inc.: David M. Levy, Natalie V. Glavinovich, Janine M. Fiel-Cosse, Van De Poel, Levy, Thomas LLP Additional parties: See List Emails: acarralejo@ttfhlaw.com(link sends email); abarron@nixonpeabody.com(link sends email); dtan@wshblaw.com(link sends email); dbraasch@macdonaldcody.com(link sends email); jmcelroy@jacobsenmcelroy.com(link sends email); dcrespo@bremerwhyte.com(link sends email); margaret.eum@amtrustgroup.com(link sends email); jim@orlandlawgroup.com(link sends email); eriffle@ccllp.law(link sends email); mgallagher@eghblaw.com(link sends email); ccannon@thomaslucaslegal.com(link sends email); RULING For all reasons discussed herein, the Court will continue the hearing on the motions of cross-Defendant John Kenney Construction, Inc., to August 14, 2024. On or before July 31, 2024, cross-Defendant shall pay the filing and other fees required for the motion to compel Dennis Allen Associate’s further responses to Form Interrogatories-Construction Litigation, Requests For Production Of Documents, And Special Interrogatories Set One, and the filing and other fees required for the motion to compel John Ziegler’s further responses to Form Interrogatories-Construction Litigation, Requests For Admission, Requests For Production Of Documents, And Special Interrogatories Set One. In addition, on or before August 2, 2024, cross-Defendant shall file and serve a notice of payment of fees identifying the motion(s) for which filing fees have been paid and for which adjudication is sought. Background On January 26, 2023, Plaintiff John Ziegler (Ziegler) filed a complaint against Defendant Dennis Allen Associates (Allen Associates), alleging three causes of action: (1) negligence – construction defect; (2) breach of contract – construction agreement; and (3) violation of Business and Professions Code section 7159. As alleged in the complaint: Ziegler owns a residence located at 1050 Cold Springs Road in Montecito, California. (Compl., ¶¶ 1 & 6.) On March 8, 2021, Ziegler and Allen Associates entered into a “Construction Agreement – Cost Plus a Fee” (the contract) pursuant to which Allen Associates was to construct and complete a residential remodel for a price stated in the contract. (Id. at ¶¶ 7-9.) Allen Associates was to commence the work under the contract on April 26, 2021, and complete the work on March 28, 2022. (Id. at ¶¶ 10-11.) The work of Allen Associates suffered delays and was defective. (Compl., ¶¶ 12-13.) On July 5, 2022, Ziegler demanded that Allen Associates remedy all problems within 7 business days. (Id. at ¶ 14.) Despite this opportunity to cure, Allen Associates failed to remedy the problems and defects. (Ibid.) On August 16, 2022, Allen Associates demanded an additional $293,480.32 prior to delivering an “End of Job Cost Report” (the cost report) on August 30, 2022. (Compl., ¶ 15.) Upon a preliminary review of the cost report, Ziegler determined that there were excess costs and overcharges totaling $405,336. (Id. at ¶ 16.) Allen Associates refused to accept the findings of Ziegler’s preliminary review of the cost report. (Id. at ¶ 17.) In addition, a preliminary defect list identified defects which Allen Associates admitted and agreed to in part. (Compl., ¶ 19.) Ziegler permitted Allen Associates to perform repairs to address issues identified in the preliminary defect list which were unsuccessful. (Id. at ¶¶ 19-23.) Additional defects emerged during the repair attempts made by Allen Associates. (Id. at ¶ 23.) On March 17, 2023, Allen Associates filed its answer to the complaint of Ziegler generally denying its allegations and asserting sixty affirmative defenses. Also on March 1, 2023, Allen Associates filed a cross-complaint against: Action Roofing; Big Phase Inc. dba A. Wood Electric; Embers West, Inc.; Fordyce Custom Carpentry, Inc.; Insulate SB, Inc.; J N L Glass, Inc.; John Kenney Construction, Inc.; Korbacher Glass, Inc.; Montie Wayne Sheet Metal And Heating, Inc.; Pyramid Tile Company; Specialty Team Plastering, Inc.; Ventura County Plumbing Inc.; and, Wick Boiler Service, Inc. The cross-complaint of Allen Associates alleges nine causes of action against all named cross-Defendants described above: (1) implied contractual indemnity; (2) total indemnity; (3) equitable indemnity; (4) express contractual indemnity; (5) breach of express warranty; (6) breach of implied warranty; (7) breach of written contract; (8) declaratory relief (duty to defend); and (9) declaratory relief (duty to indemnify). Court records reflect that cross-Defendants named in the cross-complaint of Allen Associates have each filed answers generally denying its allegations and asserting affirmative defenses. Cross-Defendants Fordyce Custom Carpentry, Inc., and Insulate SB, Inc., have also each filed cross-complaints against, respectively, “MOE” and “POE” Defendants. Court records further reflect that on June 5, 2024, Allen Associates filed a request for dismissal of its cross-complaint, without prejudice, as to cross-Defendant Insulate SB, Inc., only. On June 18, 2024, cross-Defendant John Kenney Construction, Inc. (Kenney), filed a motion for an order compelling further responses from Allen Associates (the Allen Motion) to Kenney’s Form Interrogatories-Construction Litigation (the Allen FI), Requests for Production of Documents (the Allen RFP), and Set One Special Interrogatories (the Allen SI). The motion is opposed by Allen Associates. Also on June 18, 2024, Kenney filed a motion for an order compelling further responses from Ziegler (the Ziegler Motion) to Kenney’s Form Interrogatories (the Ziegler FI), Requests for Admission (the Ziegler RFA), Requests for Production of Documents (the Ziegler RFP), and Set One Special Interrogatories (the Ziegler SI). The motion is opposed by Ziegler. Analysis “Every direction of a Court or judge, made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.” (Code Civ. Proc., § 1003.) Code of Civil Procedure section 2016.010 et seq. (the Civil Discovery Act) authorizes the Allen Motion and the Ziegler Motion in which Kenney seeks orders compelling, respectively, Allen Associates and Ziegler to provide further responses to specific discovery requests described above. (Code Civ. Proc., §§ 2030.290, subd. (b); 2030.300, subd. (a); 2031.300, subd. (b); 2031.300, subd. (a); 2033.290.) The Allen Motion and the Ziegler Motion are each keyed or correlated to the responses of Allen Associates and Ziegler to a particular set or method of discovery, specifically and as described in each notice of motion, the Allen FI, the Allen RFP, the Allen SI, the Ziegler FI, the Ziegler RFA, the Ziegler RFP, and the Ziegler SI. (See Code Civ. Proc., §§ 2030.210, 2030.220, 2030.230, 2030.240, 2030.250 [setting forth form and content requirements applicable to responses and objections to interrogatories]; 2030.300 [setting forth requirements applicable to a motion for an order compelling a further response to interrogatories]; 2031.210, 2031.220, 2031.230, 2031.240, 2031.250 [setting forth form and content requirements applicable to responses and objections to inspection demands]; 2031.310 [setting forth requirements applicable to a motion for an order compelling a further response to inspection demands]; 2033.210, 2033.220, 2033.230, 2033.240 [setting forth form and content requirements applicable to responses and objections to requests for admissions]; 2033.290 [setting forth requirements applicable to a motion for an order compelling a further response to requests for admissions].) The fee to file a motion applies to “[d]iscovery motions under Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.” (Gov. Code, § 70617, subd. (a)(4).) “Regardless of whether each motion or matter is heard at a single hearing or at separate hearings, the filing fees required by subdivisions (a), (c), (d), and (e) apply separately to each motion or other paper filed.” (Gov. Code, § 70617, subd. (f).) In addition, “[o]fficers of the state, or of a county or judicial district, shall not perform any official services unless upon the payment of the fees prescribed by law for the performance of the services, except as provided in this chapter.” (Gov. Code, § 6100.) “An unbroken line of decisions by our Supreme Court holds that it is mandatory for Court clerks to demand and receive the fee required by statute before documents or pleadings are filed.” (Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 459.) The Allen Motion combines three motions in a single motion, each requesting an order compelling Allen Associates to provide further responses to distinct and different discovery methods as further discussed above. Similarly, the Ziegler Motion combines four motions for orders compelling Ziegler to provide further responses to four different discovery methods also as further discussed above. Though in general a party is not prohibited from combining documents supporting certain types of motions, such as Kenney has done here, there exists a procedural problem regarding the payment of filing fees. Because each motion of Kenney to compel further responses from Allen Associates and Ziegler to a specific set of discovery is a separately authorized motion, a separate filing fee is required for each motion whether or not the motions are presented in a single notice with combined supporting papers or presented with separate notices and separate supporting papers. Here, the Court’s records reflect that Kenney paid one filing fee for the Allen Motion notwithstanding that the Allen Motion includes three motions as further discussed above, and one filing fee for the Ziegler Motion also notwithstanding that the Ziegler Motion includes four motions as further discussed above. While the Court could address only one request for an order with respect to each motion (for example, the requests for orders compelling further responses to, respectively, the Allen FI and the Ziegler FI, which are the first requests described in each respective notice filed by Kenney), the Court declines to do so in the interests of judicial efficiency. Kenney must pay additional filing fees for the Allen Motion if Kenney wishes the Court to address the request for an order compelling Allen Associates to provide further responses to the Allen RFP and Allen SI. Kenney must also pay additional filing fees for the Ziegler Motion if Kenney wishes the Court to address the request for an order compelling Ziegler to provide further responses to the Ziegler RFA, the Ziegler RFP, and the Ziegler SI. Therefore, the Court will continue the hearing on the Allen Motion and the Ziegler Motion to permit Kenney to pay any required additional filing or other fees. In addition, the Court will order Kenney to file and serve a notice of payment of fees identifying each motion(s) for which filing fees have been paid and for which adjudication is sought.

23CV028479: NOTARO vs REYNOLDS, et al. 07/25/2024 Hearing on Demurrer Defendant Janelle P. Santi's Notice of Demurrer and Demurrer to Plaintiff's Complaint in Department 25 Tentative Ruling - 07/19/2024 Jenna Whitman The Hearing on Demurrer Defendant Janelle P. Santi's Notice of Demurrer and Demurrer to Plaintiff's Complaint scheduled for 07/25/2024 is continued to 11/21/2024 at 03:00 PM in Department 25 at Rene C. Davidson Courthouse .

KING, ET AL. VS. TYNER, ET AL. Case Number: 23CV-0202922 This matter is on calendar for review regarding status of arbitration or dismissal. The Court is in receipt of a status report in which Plaintiff reports that the arbitration scheduled for July has been rescheduled to August 6 th and 8th. The case will be continued to Tuesday, September 3, 2024, at 9:00 am for review regarding status of arbitration or dismissal. No appearance is necessary on today’s calendar.

ANGULO VS D.R. HORTON MOTION FOR CLASS CVRI2304408 LOS ANGELES HOLDING CERTIFICATION COMPANY, INC. Tentative Ruling: No tentative ruling, appearances requested.

24CV080631: KASPER vs NFHS NETWORK, LLC 07/23/2024 Complex Determination Hearing in Department 21 Tentative Ruling - 07/17/2024 Noël Wise COMPLEX DETERMINATION The Court designates this case as complex pursuant to Rule 3.400 et seq. of the California Rules of Court. Counsel are advised to be familiar with the Alameda County Local Rules concerning complex litigation, including Rule 3.250 et seq. An order assigning the case to a judge and an initial case management order will be issued. COMPLEX CASE FEES Pursuant to Government Code section 70616, any non-exempt party who has appeared in the action but has not paid the complex case fee is required to pay the fee within ten days of the filing of this order. The complex case fee is $1,000 for each plaintiff or group of plaintiffs appearing together and $1,000 PER PARTY for each defendant, intervenor, respondent or other adverse party, whether filing separately or jointly, up to a maximum of $18,000 for all adverse parties. All payments must identify on whose behalf the fee is submitted. Please submit payment to the attention of the Complex Litigation Clerk located in the Civil Division at the Rene C. Davidson Courthouse, 1225 Fallon Street, Oakland, CA 94612. Please make check(s) payable to the Clerk of the Superior Court. Documents may continue to be filed as allowed under Local Rule 1.9. Note that for those admitted pro hac vice, there is also an annual fee. (Gov't Code section 70617.) PROCEDURES Calendar information, filings, and tentative rulings are available to the public at http://www.alameda.courts.ca.gov/domainweb/. All counsel are expected to be familiar and to comply with pertinent provisions of the Code of Civil Procedure, the California Rules of Court, the Alameda County Superior Court Local Rules and the procedures outlined on the domain web page of the assigned department. SERVICE OF THIS ORDER Counsel for plaintiff(s) shall have a continuing obligation to serve a copy of this order on newly joined parties defendant not listed on the proof of service of this order and file proof of service. Each party defendant joining any third party cross-defendant shall have a continuing duty to serve a copy of this order on newly joined cross-defendants and to file proof of service. Pursuant to Government Code Sections 70616(a) and 70616(b), a single complex fee of one thousand dollars ($1,000.00) must be paid on behalf of all plaintiffs. For defendants, a complex fee of one thousand dollars ($1,000.00) must be paid for each defendant, intervenor, respondent or adverse party, not to exceed, for each separate case number, a total of eighteen thousand SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV080631: KASPER vs NFHS NETWORK, LLC 07/23/2024 Complex Determination Hearing in Department 21 dollars ($18,000.00), collected from all defendants, intervenors, respondents, or adverse parties. All such fees are ordered to be paid to Alameda Superior Court, within 10 days of service of this order. Order has been filed. The Initial Case Management Conference scheduled for 10/21/2024 is continued to 08/18/2025 at 01:30 PM in Department 21 at Rene C. Davidson Courthouse . Plaintiff must file a motion for class certification prior to the August 18, 2025 hearing. The parties shall, no later than 15 calendar days before the next case management hearing, file a joint case management statement on pleading paper. The Court orders counsel to obtain a copy of this order from the eCourt portal. 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.

C23-02657 CASE NAME: MARIA GUTIERREZ VS. AMERICAN HONDA MOTOR CO ., INC HEARING ON DEMURRER TO: DEMURRER TO COMPLAINT FILED BY: AMERICAN HONDA MOTOR CO ., INC *TENTATIVE RULING:* Before the Court is a demurrer to the second cause of action in plaintiff’s complaint, filed by defendant American Honda Motor Co., Inc. (“Honda”), as well as Honda’s motion to strike portions of plaintiffs’ complaint. As discussed below, the demurrer is overruled. The motion to strike is denied. Defendant’s previous answer (filed April 22, 2024) is stricken, and defendant shall file a new answer to the existing complaint by July 29, 2024. I. Factual Background This suit arises out of the purchase of a new Honda Pilot by plaintiff, Maria Sanchez Gutierrez, on or about August 15, 2022. (Complaint, ¶8.) As part of the purchase, defendant Honda and plaintiff entered into an express written contract, referred to as the New Vehicle Limited Warranty (“Warranty”). (Complaint, ¶9.) The vehicle, sold by Honda of El Cerrito, an authorized dealership, was equipped with Honda Sensing. The Complaint describes a defect with plaintiff’s vehicle in the Honda Sensing system, a defect which causes the various subsystems within it to malfunction, including, SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/17/2024 “most severely,” the Collision Mitigating Braking System ("CMBS"). (Complaint, ¶ 16; see also ¶¶13- 22, 84-85.) Plaintiff asserts a Song-Beverly breach of warranty cause of action as well as a fraud cause of action. In support of fraud, she asserts that Honda knew or should have known about the safety hazard posed by the Honda Sensing Defect before the sale of vehicles such as hers. (Complaint, ¶23.) She alleges that Honda knew about the defect from pre-market testing, consumer complaints to the National Highway Traffic Safety Administration (“NHTSA”), consumer complaints, testing in response to those complaints, high failure rates and replacement part sales data, and other sources which drove Honda to issue Technical Service Bulletins acknowledging this defect. (Complaint, ¶23.) Plaintiff alleges Honda should not have sold, leased, or marketed vehicles equipped with the Sensing Defect without a full and complete disclosure of the defect, and should have voluntarily recalled all vehicles equipped with the Sensing Defect long ago, but instead Honda sold and leased defective vehicles, and continues to do so. (Complaint, ¶¶23-24.) In purchasing the vehicle, plaintiff relied on the reputation and representations by Honda and its agents, none of whom disclosed the defects. (Complaint, ¶¶87-88.) Shortly after purchase, she began to experience problems which led her to bring the vehicle back for repairs covered under the Warranty. Still, even after multiple attempts, the defendant did not bring the vehicle into conformity. (Complaint, ¶¶88-104.) Plaintiff initially filed this suit in San Francisco in May 2023, but it was transferred to this Court in October of 2023. Defendant filed this demurrer in 2023. It was not opposed by plaintiff and the Court issued a tentative ruling in February based on the lack of any opposition brief, sustaining the demurrer with leave to amend. No one contested the tentative ruling, and no amended complaint was filed. Honda then proceeded to file its answer (a general denial) on April 22, 2024. Pursuant to stipulation, and because it appears the lack of opposition was due to plaintiff’s lack of notice, the ruling on the demurrer was vacated on May 15, 2024. Nothing in the stipulation addressed the previously filed answer and no moving papers were re-filed. However, because that answer responded to the complaint to which the demurrer was sustained, the answer is no longer valid. In light of this background, the Court strikes the answer previously filed to enable the present motions to proceed. Honda’s demurrer is directed at the second cause of action (inducement – concealment) on the basis that plaintiff fails to state sufficient facts, as well as uncertainty. Honda also moves to strike punitive damages. Plaintiff opposed both motions on July 3, 2024. Plaintiff requests leave to amend in the event the demurrer or motion to strike is granted. II. Meet and Confer Defendant’s counsel states a meet and confer was held by telephone on November 14, 2023, pursuant to statutory requirements. (See Declaration of Monica Y. Hernandez, attached to Memorandum of Points and Authorities in Support of Demurrer). Plaintiff does not dispute this contention and the Court finds it is sufficient. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/17/2024 III. Request for Judicial Notice Plaintiff has requested judicial notice of the second amended complaint filed in Dhital v Nissan North America, Inc., No. RG19009260 in Alameda County. This was the pleading at issue in the appellate court’s decision to reverse the trial court’s sustaining of a demurrer. Defendant does not oppose the request which is granted. IV. Demurrer A. Standard The limited role of a demurrer is to test the legal sufficiency of a complaint. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A complaint will be upheld if it provides the defendant with “notice of the issues sufficient to enable preparation of a defense.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) For purposes of a demurrer, all properly pleaded facts are admitted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) Only the face of the pleading attacked and matters subject to judicial notice are considered in ruling on a demurrer. (Code Civ. Proc. § 430.30(a).) The Court gives the complaint a reasonable interpretation, reading it as a whole and its parts in context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The trial court exercises its discretion in declining to grant leave to amend, but such discretion is abused where such leave is denied, and it is reasonably possible the pleading can be cured by amendment. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) B. Discussion Defendant specially demurs to the second cause of action based on uncertainty and generally demurs to the second cause of action based on plaintiff’s purported failure to state sufficient facts to constitute a cause of action. i. Uncertainty Honda’s demurrer for uncertainty is essentially unsupported by any argument. The Court construes this as an admission on Honda’s part that uncertainty is not a ground for the Court to sustain its demurrer. (See Rule of Court 3.1113.) In any event, uncertainty is a disfavored ground for sustaining a demurrer, and a demurrer for uncertainty will be sustained only when the pleading is such that the responding party cannot even discern to what it must respond. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.) The pleading here meets that low bar. The Court expects that any lingering issues can be illuminated through discovery. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616 [“demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures”].) On this ground, the demurrer is overruled. ii. General Demurrer Based on Preemption Defendant argues that federal law preempts the second cause of action for fraudulent SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/17/2024 inducement – concealment. The type of preemption asserted by Honda appears to be conflict preemption (which is implied preemption rather than express), though this is not particularly clear in Honda’s brief. (See Memorandum in Support of Demurrer, 7:14-18.) Still, while Honda’s bolding and italics suggest conflict preemption, Honda also suggests field preemption since it asserts the lack of any California statute on the disclosures at issue here. Plaintiff’s response to the preemption argument is that it is inappropriate for demurrer. The Court does not find the demurrer persuasive in this respect. Neither form of preemption (conflict or field) is thoroughly explained or demonstrated. While federal regulation may exist concerning what information must be disclosed to the government, it does not follow that the information required to be disclosed is necessarily sufficient for consumers. Nor does compliance with that regulatory scheme provide manufacturers license to commit fraud when a disclosure is not covered by the scheme. Honda contends application of the common law here would “directly conflict with and stand as an obstacle to accomplishment of the full purposes and objectives of NHTSA, in a field which California has NOT traditionally occupied” (See Memorandum in Support of Demurrer pages 23 & 24.) First, the Court observes that this statement is not about a particular federal statute, but an argument broadly invoking the universe of purposes served by a particular federal agency, NHTSA. This suggests a sort of field preemption argument that is undermined by Honda’s concession that California has regulated in the general area (such as in its passage of a Car Buyer Bill of Rights). Additionally, states such as California have traditionally occupied the area of tortious fraud claims. Honda fails to cite any legal authority in which a state law claim for fraud in the sale of a motor vehicle has been found to be preempted by federal law regulating vehicle safety standards. Further, Honda does not explain why it cannot comply with both the federal disclosure requirements and avoid tort liability through refraining from active concealment. This would be a necessary condition for conflict preemption to apply. Plaintiff alleges that Honda knew its cars contained defects and actively concealed this information. (Complaint, ¶¶23-25, 37, 43.) To the extent that Honda’s knowledge included the vehicle plaintiff purchased, and to the extent Honda actively concealed the issue, the Court agrees with the opposition argument that these are fact-intensive inquiries not subject to determination on demurrer. Also, fact-intensive would be whether any of the information plaintiff contends should have been disclosed could be subject to the “confidential business information” protections applicable to government disclosure regulations. The intent of the NTHSA regulatory scheme does not appear to have been to immunize manufacturers from consumer fraud claims. Defendant also asserts NHTSA is in a better position to provide the information to plaintiff. This bears little relevance as to whether Honda had a duty of disclosure and this argument does not defeat, as a matter of law, a fraud claim. NHTSA is not a defendant here. Honda does not satisfy its own (acknowledged) burden. (See Memorandum in Support of Demurrer, 6:14-17.) The demurrer is overruled on the basis that federal law preempts this cause of action. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/17/2024 iii. General Demurrer Based on Purported Failure to Allege a “Transaction” Honda argues plaintiff has not alleged a transaction because she does not allege she purchased the vehicle from Honda directly. In response, plaintiff argues it was Honda’s superior knowledge and active concealment that made it responsible for disclosure. Plaintiff further argues this case is distinguishable from the authorities Honda cites, such as Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, at least in part because Honda’s dealer here was acting as its agent. There are “four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311, citations omitted.) Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, though not binding currently, is persuasive as to this transaction point. That court stated: At the pleading stage […], we conclude plaintiffs‘ allegations are sufficient. Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan's authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs’ claim is barred on the ground there was no relationship requiring Nissan to disclose known defects. (Id. at 844.) As pointed out by the plaintiff, her allegations mirror that case. She alleges a contractual relationship with Honda directly via the express warranty provided to her, and she alleged that the authorized dealer from which she purchased the vehicle was an agent of defendant. The fraudulent concealment claim is not barred by any lack of a transactional relationship. iv. General Demurrer Based on Economic Loss Doctrine Defendant attempts to invoke the economic loss rule to demonstrate plaintiff’s cause of action for fraud is barred as a matter of law. This Court is persuaded by the discussion in Dhital, wherein the appellate court stated unambiguously that “fraudulent inducement by concealment is not subject to demurrer on the ground it is barred by the economic loss rule.” (Dhital, supra, at 840- 841.) If the California Supreme Court reaches the opposite conclusion during the pendency of this action, defendant may raise its economic loss rule argument again. For now, the demurrer to the second cause of action is overruled on the grounds that it is barred by the economic loss rule. v. General Demurrer Based on Lack of Specificity in Pleading Fraud The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/17/2024 justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Honda argues the fraud allegations lack the requisite specificity. It is true that “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice. […] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id. at 645.) Honda does not engage, however, with the allegations of the complaint in making this argument, possibly because the allegations are sufficiently specific. Plaintiff has asserted that the Sensing defect is what was concealed and should have been disclosed (see, e.g., Complaint ¶16), that Honda had knowledge about the defect (Complaint, ¶112) and an intent to deceive plaintiff through concealment in order to sell the vehicle (see, e.g., Complaint, ¶119). Plaintiff further pleads her reliance and that it was justifiable, and that she was damaged as a result of the concealment. (Complaint ¶¶124-125.) Nothing more is required. The demurrer is overruled on the basis that the fraud cause of action lacks specificity. V. Motion to Strike A. Standard The Court may, in its discretion and upon a motion to strike by defendant: (a) strike out any irrelevant, false, or improper matter inserted in any pleading, or (b) strike 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. (Code Civ. Proc., §§ 435-436.) The matter must appear on the face of the complaint or be subject to judicial notice. (Code Civ. Proc., § 437.) B. Discussion Honda challenges plaintiff’s request for punitive damages based on her failure to allege a cause of action for fraud. As noted in the motion, Civil Code § 3294 provides: “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) Given the above discussion regarding the sufficiency of the fraud claim, the motion to strike is denied. A valid cause of action for fraud has been asserted and, accordingly, plaintiff may include a claim for punitive damages.

Matter on the Discovery Calendar for Monday, July 22, 2024, line 1, PLAINTIFF JENNIFER SARKANY, RAMSEY ABOUREMELEH, SANDRA FIERRO, NINA ROBINS Motion To Compel Post-Judgment Discovery Responses From Defendant Christie West Pro Tem Judge David McDonald, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: No opposition filed, motion granted. Sanctions of $750 imposed against Defendant. Responses to be served by August 16, 2024. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear 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 (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to davididaho14@gmail.com 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. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear 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/JPT)