Greenstate Credit Union V. Wash, Lavell

TREPTOW vs KIA AMERICA CVPS2104074 Motion for Attorney's Fees INC. Tentative Ruling: Granted. Lodestar fees: $113,548.50 subtracted by $2,910.00 = $110,638.50 granted in reasonable attorney fees. Moving party to provide notice pursuant to CCP 1019.5. Plaintiff Michael Treptow alleges that he purchased a new 2016 Kia Soul that has a defective gasoline direct injection engine (GDI), i.e. the Nu engine. Plaintiff alleges Defendant concealed the defect, resulting in a tolling of the statute of limitations. From 8/13/18-3/6/21, Plaintiff had the vehicle inspected for various issues, but Defendant never informed Plaintiff of the engine defect. Plaintiff filed this action on 8/3/21. After the court sustained Defendant’s demurrer, Plaintiff filed the First Amended Complaint (FAC) on 12/17/21. The FAC asserts: (1) Song-Beverly (express warranty); (2) Song-Beverly (implied warranty); (3) fraudulent inducement—concealment; (4) fraudulent inducement—intentional misrepresentation. On 7/20/23, the Court granted KA’s Motion for Summary Adjudication of Plaintiff’s cause of action for fraudulent inducement -- intentional misrepresentation but denied the Motion with respect to Plaintiff's fraudulent inducement -- concealment cause of action, as well as Plaintiff's cause of action for breach of implied warranty. On 3/11/24, as the case was about to go to trial, Plaintiff dismissed all his causes of action, except for his cause of action for breach of express warranty. After a brief discussion, Plaintiff agreed to settle the case for $36,500.00. In the instant motion, Plaintiff seeks attorney fees in the amount of $170,322.75 - $113,548.50 for hours billed plus $56,774.25 through a 0.5 enhancement. He contends the fees, rates and costs are reasonable and a Lode Star multiplier is warranted. In Opposition, Kia asserts Plaintiff cannot recover fees in connection with the fraud claims, the hours and rates claimed are unreasonable and a Lode Star Multiplier is unwarranted. Motion for Attorney Fees Under Civ. Code §1794(d), “[i]f the buyer prevails in an action under [the Song-Beverly Act], the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” In the present case, there is no dispute that Plaintiffs are the prevailing parties in this action and is entitled to reasonable attorney fees and costs. Thus, the only question to be determined by this motion is the amount of the award. The California Supreme Court has indicated that attorney fee awards “should be fully compensatory.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) Thus, in the absence of “circumstances rendering an award unjust, an attorney fee award should ordinarily include compensation for all of the hours reasonably spent, including those relating solely to the fee.” (Id.) However, “[a] fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) Importantly, the matter of reasonableness of a party’s attorney fees is within the sound discretion of the trial court. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Fee motions should ordinarily be based upon detailed time records. (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 271.) The records should detail crucial information as the types of issues involved, services performed, numbers of hours, billing rates, etc. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) In determining the reasonable amount of attorney fees, the court first determines a lodestar figure (time reasonably spent by each biller multiplied by an hourly rate that is reasonable for each biller). (Serrano, supra, 20 Cal.3d at 48.) In exercising its discretion, the Court may consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney fee award. (Bernardi v. Cnty. of Monterey (2008) 167 Cal.App.4th 1379, 1394; see also PLCM Grp. V. Drexler, (2000) 22 Cal.4th 1084, 1096 [factors considered in determining the reasonableness of a party’s attorney fees include the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given and the success or failure].) The court does not need expert testimony to determine the reasonable amount of a fee award. (PLCM Grp., supra, 22 Cal.4th at 1095.) Defendant argues that Plaintiff’s attorney fees should be reduced to $45,000, which is 100 hours at a blended hourly rate of $450 for attorneys and paralegals. Prosecution of Fraud Claims Defendant argues Plaintiff is not entitled to recover fees in connection the prosecution of his fraud claims. Defendant notes Plaintiff was not successful in his fraud claims but that even if he was he is not entitled to recover fees for prosecution of those claims under the Song-Beverly Act. (See Civil Code §1794(d).) When a cause of action for which attorney fees are provided by statute is joined with other causes of action for which attorney fees are not permitted, attorney fees are generally only recoverable on the statutory cause of action. (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th 1127, 1133–34.) This generally requires the apportionment of fees to ensure that the losing party is only required to pay for the fees incurred in prosecuting or defending the statutory action. (Bell v. Vista Unified Sch. Dist. (2000) 82 Cal.App.4th 672, 687.) “However, such fees need not be apportioned when incurred for representation on an issue common to both causes of action in which fees are proper and those in which they are not.” (Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 349.) “Moreover, ‘apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.’” (Id.) “[A]pportionment of th[e] award [of attorney fees] rests within the court’s sound discretion.” (Maxim Crane Works, L.P. v. Tilbury Constructors (2012) 208 Cal.App.4th 286, 297.) Defendant contends that 47.3 hours, for a total billed amount of $16,089.50, were spent by Plaintiff’s attorneys on the unsuccessful prosecution of Plaintiff’s fraud claims. Specifically, Defendant lists the following work performed by Plaintiff’s counsel: opposing demurrers to and motions to strike fraud claims, drafting amended Complaints, filing motion for reconsideration of order sustaining demurrer to fraud causes of action, and opposing motion for summary adjudication of fraud claims. Plaintiff argues “there was no work on the common-law fraud claims that was not relevant for Plaintiff’s Song-Beverly causes of action.” (Reply p.5:16-17.) Plaintiff argues all of the work performed was intertwined with the Song-Beverly claims and, as a result, is recoverable. The demurrer to the First Amended Complaint was to the third and fourth causes of action, the fraud claims. The court sustained the demurrer with leave to amend on March 17, 2022. Plaintiff then moved for reconsideration of this ruling. On December 20, 2022, the court granted the motion for reconsideration and entered a new and different order overruling the demurrer to the third and fourth causes of action. (12/20/22 Minute Order.) Although these motions only dealt with the third and fourth causes of action, case law permits fees incurred are still recoverable. In Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 350, the court noted the alleged defect with the vehicle at issue in that case – known as the TIPM defect – was at the core of both the fraud and Song-Beverly causes of action. “In the case of fraud, the harm stems from a deception. And in the case of the Song-Beverly Act, it stems from the failure to honor the warranty. Same essential facts. Different conduct gives rise to the harm.” (Ibid.) The situation here is similar: all of Plaintiff’s claims arose out of the same set of facts and the issues argued in these motions were intertwined with one another. The fees are recoverable. Defendant’s motion for summary adjudication was granted as to the fraudulent inducement – intentional misrepresentation claim but denied as to the fraudulent inducement – concealment and breach of implied warranty claims. Since the motion for summary adjudication dealt with the fraud claims, as well as a breach of implied warranty claim, the work performed on this motion was intertwined with Song- Beverly claims. The requested fees will not be reduced on this basis. Houry Rates Defendant argues Plaintiff’s attorneys billed at artificially inflated and arbitrary hourly rates. Defendant notes that Plaintiff’s attorneys each increased their hourly rates since the case was filed on August 3, 2021. Some attorneys increased their rates by only $25/hour (Roger Kirnos & Caitlin Rice) while others increased their rates by $100/hour (Amy Morse & Maxwell Kreymer). The hourly rates for each attorney who worked on the case are as follows: 1. Roger Kirnos: $550; 13 years 2. Amy Morse: $400 - $500 (depending on year); 9 years 3. Brian Plummer: $475 - $500 (depending on year); 19 years 4. Caitlin Rice: $350 - $375 (depending on year); 3 years 5. Diana Folia (paralegal): $250; 30 years 6. Daniel Kalinowski: $350; 9 years 7. Debra Reed: $495; 15 years 8. Elvira Kamosko: $295 - $350 (depending on year); 3 years 9. Heidi Alexander: $350; 7 years practice in CA 10. Jeffery Mukai: $495, 14 years 11. Jacob Cutler: $495, 15 years 12. Katherine Smith: $175 (law clerk), 3 years 13. Maite Colon: $345 - $425 (depending on year); 6 years practice in CA 14. Maxwell Kreymer: $250 - $350 (depending on year); 4 years 15. Sundeep Samra: $325 - $400; 6 years 16. Scot Wilson: $645/hour; partner with over 10 years of experience 17. Thomas Dreblow: $295 - $350; 9 years 18. Timothy Lupinek: $415; 3 years 19. Thach Tran: $395; 8 years 20. Zachary Davina: $325; 6 years 21. Zachary Powell: $325; 9 years Defendant argues that “Plaintiff’s attorneys have not identified any client who has ever voluntarily agreed to pay them at these rates or any Court that has ever found the rate increases to be reasonable.” (Opp. 7:21-22.) Defendant also says “[n]o real client would stand for the billing practices of Plaintiff’s attorneys.” (Opp. 7:26.) These arguments do not show that the rates are unreasonable. Overall, these rates appear to be reasonable based on the rates awarded for similar cases in Riverside and Southern California. However, this court will reduce Attorney Scot Wilson’s rate from $645.00 an hour to $595.00 an hour which is consistent with similar matters involving similarly experienced attorneys. Reduction of $1,760.00 Number of TimeKeepers Defendants argue that Plaintiff padded the fees by employing multiple attorneys to work on the case. “[I]t is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, noncomplex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.” (Morris v. Hyundai Motor America (2019) 41 Cal. App. 5th 24, 39.) In Morris, the appellate court upheld the trial court’s determination that the use of 11 attorneys from two firms, including Knight, was unreasonable for a non-complex lemon law case. (Id. at 41.) The court further held that, where voluminous records are submitted, the trial court may strike all fees incurred by the excess attorneys. (Id.) In the present case, upon review of the submitted time records, it does not appear that there was significant duplication. Each task appears to have been performed by one attorney without excessive reviews and edits by additional attorneys. It also appears that discovery and motions required less time than usual, likely due to the canned, template documents. However, twenty-one staff members working on the case does appear excessive. Yet, this appears to be due, at least in part, to the fact that various associates at Knight Law Group left the firm during the pendency of the action so there was a decent amount of staff turnover. This case was originally filed in 2021 and has been actively litigated for the last several years. The majority of the work was completed by Caitlin Rice (21.1 hours), Brian Plummer (24 hours), Diana Folia (27.4 hours), Jeffery Mukai (25.6 hours), Jacob Cutler (15.5 hours), Maxwell Kreymer (17.8 hours), Sundeep Samra (24.5 hours), and Scot Wilson (35.2 hours). All other time keepers spent around 10 hours or fewer on the case (Amy Morse – 3.2 hours Daniel Kalinowski – 10.4 hours; Heidi Alexander – 6.4 hours; Katherin Smith – 6.7 hours; Maite Colon – 6.1 hours; Roger Kirnos – 6.2 hours; Thach Tran – 5.8 hours; Zachary Davina – 6.2 hours; and Zachary Powell – 4.4 hours). Thus, it does not seem that this case was “overstaffed,” but rather staffed by eight main timekeepers (one of whom was a paralegal) and various other timekeepers who attended to one or two tasks over the course of the litigation. This is not unreasonable. Complexity of the Case Defendant argues the hourly rates of Plaintiff’s attorneys are unreasonable given the non-complex nature of the case. Defendant bases their argument entirely on the facts of Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, where the Los Angeles Superior Court reduced hourly rates to $350/hour. Yet, the rates awarded in counties other than Riverside are not particularly relevant. Moreover, Plaintiff’s hourly rates appear reasonable for Riverside County based on the level of experience and skill of the relative attorneys. (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774 [the court may rely on its own experience in determining whether the hourly rate sought or hours spent in the matter are reasonable].) Thus, Defendant’s argument that Plaintiff’s counsel’s rates are excessive is without merit. Specific Billing Entries Defendant challenges various specific billing entries. Defendant challenges the “excessive and unnecessary time billed for noticing and taking the depositions of five individuals in Palm Springs Kia” and contends that none of those witnesses had “any relevant information.” (Opp. 5:10-13.) Only 5.2 hours was spent on these depositions and discovery is permissible so long as it is reasonably calculated to lead to the discovery of admissible evidence. (CCP §2017.010.) Any doubt is generally resolved in favor of permitting discovery. (Colonial Life & Accident Ins. Co. v. Sup. Ct. (Perry) (1982) 31 Cal.3d 785, 790.) There is no evidence that these depositions were unreasonable in any way. Defendant also challenges the time spent for defending and summarizing Plaintiff’s deposition. Plaintiff’s counsel spent 2.5 hours preparing for Plaintiff’s deposition (8/4/22), 2.7 hours defending the deposition (8/5/22), 0.7 hours drafting a memo regarding the deposition (8/5/22), 3 hours preparing for Plaintiff’s deposition (4/7/23), 3.2 hours attending the deposition and drafting a memo (4/11/23), and 2.2 hours reviewing and summarizing Plaintiff’s deposition transcript (7/6/23). These tasks are reasonable and the time spent is not overly excessive. Defendant challenges the time spent preparing for, attending, and summarizing the deposition of Defendant’s PMK. Counsel spent 9.9 hours preparing for the deposition (10/4/22, 10/5/22), 4.2 hours attending the deposition (10/6/22), and 1.1 hours drafting a memorandum regarding the deposition (10/6/22). Spending 9.9 hours preparing for a deposition that only took 4.2 hours to attend is excessive. Will reduce this by three hours at a rate of $475/hour – Reduced by $1,425. Defendant challenges the time spent on motion to compel further deposition of Defendant’s PMK on Defendant’s prelitigation repurchase offer. No argument is offered to explain why this amount of time was excessive and unnecessary. On 2/8/23, the court denied the motion to compel attendance at deposition and ruled no additional deposition was to be held. The court found it was unclear why an additional deposition of the PMK was necessary. (2/8/23 Minute Order.) The fact that the motion was unsuccessful does not mean it is not recoverable. Absent any further argument explaining why these fees are unreasonable, the court should not reduce the award. Defendant claims excessive time was billed for generating motions in limine. However, only 5.5 hours was billed and it appears there were twelve MIL. This is not an excessive amount of time to spend on these motions. Defendant claims there is duplicative billing of 3.6 hours on 2/22/24 and 3/7/24 for preparation of trial documents that were already prepared on 8/29/23 and 8/30/23. These entries were months apart and there is no evidence that the documents did not need to be updated from the original drafting. This is not a reason to reduce the award. Defendant argues attorney “SW” billed excessive time for file review – a total of 21.3 hours on five different dates. The most significant entry was for 7.2 hours on 3/4/24 for “review trial exhibits, depositions and prepare for trial.” Another 6 hours were spent on 3/7/24 reviewing motions in limine and trial documents to prepare for the trial. An additional 4.3 hours were spent preparing for and attending TRC and having multiple phone calls with the client regarding trial and settlement on 3/8/24. These are not inherently unreasonable. Trial preparation takes a significant amount of time and given the number of depositions and motions in limine in this case it is reasonable that trial counsel would need to spend several hours reviewing the file to prepare for trial. Defendant takes issue with “duplicative and excessive billing by two attorneys for trial,” however, it appears one of the timekeepers who billed for attending trial on March 11, 2024 was a paralegal. The fees will not be reduced. Finally, Defendant challenges the excessive time spent on the instant fee motion. The motion took 4.7 hours to draft. The review of the Opposition took 2 hours and drafting the Reply took 4 hours. It is anticipated that an additional 1.5 hours will be spent appearing at the hearing. The 4 hours for a reply along with the 1.5 hours to appear at a hearing are excessive. The court will reduce the requested amount by 3 total hours. Spending 6 hours to review an Opposition and draft a Reply is excessive. Reduced by $1,485. Multiplier “The court then has the power and the duty to enhance, or to reduce, the lodestar through the use of multipliers, by taking into consideration factors such as the novelty and complexity of the issues, the skill and expertise of counsel, the extent that the litigation precluded other employment and the contingent nature (or risk) of nonrecovery.” (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 448.) Here, Plaintiff seeks a multiplier of 0.5 (an additional $56,774.25) based on the contingent fee, the risk and delay associated with a contingent fee scenario, and the result achieved. Defendants argue this is inappropriate given the routine nature of this case. Contrary to Plaintiffs’ contention, this case is not novel or complex. It is a routine lemon law case, nearly identical to the many others filed by counsel. While counsel clearly has extensive lemon law experience which may have contributed to the outcome, that experience is reflected in the high hourly rates, and further enhancement is not necessary. Although counsel worked on a contingency basis, because attorney’s fees are mandatory under the Song-Beverly Act, the risk that counsel would not recover for hours incurred was relatively low. Accordingly, the request for multiplier is denied. 3. TRILLIUM PARTNERS, L.P., A DELAWARE LIMITED Order to Show Cause Re: Preliminary CVPS2305959 PARTNERSHIP vs Injunction NUTRANOMICS, INC., A WYOMING CORPORATION Tentative Ruling: Granted. Reviewed with related Application for Writ of Possession. Happy Hours, LLC shall be enjoined from transferring, selling, conveying, or otherwise disposing of the Collateral (as defined in Plaintiff’s Response to OSC Seeking Preliminary Injunction) until writ of possession is issued by clerk’s office. Moving party to provide notice pursuant to CCP 1019.5.

JOHNSON, ET AL VS. PARENT, ETAL Case Number: CVCV21-0197618 This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s calendar to discuss the status of arbitration.

C23-02049 CASE NAME: UNITED BUSINESS BANK VS. LYNNE BUI *HEARING ON MOTION FOR DISCOVERY COMPELLING DEFTKHLORIS BIOSCIENCES TO PROVIDE FURTHER RESPONSE, PRODUCE ALL RESPONSIVE DOCS, PROVIDE PRIVILEGE LOG FILED BY PLAINTIFF FILED BY: *TENTATIVE RULING:* Pursuant to a prior notice of stay of proceedings filed by plaintiff, a stay was filed in this lawsuit on November 30, 2023. The court is aware of no further action concerning this stay. As a result, plaintiff’s motion is off calendar.

Motion to Compel Defendant Fritts Ford MORA vs FORD MOTOR to Respond to Plaintiff's Special CVRI2305266 COMPANY Interrogatories, Set One by OCTAVIO MORA, BARBARA MORA Tentative Ruling: This matter was stayed as to Fritt’s Ford on 4/22/2024. As such, this motion is off calendar.

C23-02609 CASE NAME: FR CROW CANYON, LLC VS. SHOBA SEKAR HEARING ON DEMURRER TO: TO: 1ST AMENDED CROSS-COMPLAINT FROM: FR CROW CANYON, LLC FILED BY: FR CROW CANYON, LLC *TENTATIVE RULING:* Before the Court is a demurrer by plaintiff and cross-defendant FR Crow Canyon to the first amended cross-complaint. For the reasons set forth, the Court rules as follows: (a) general demurrers to 1st, 2nd, 4th, 8th, and 10th C/As – sustained with leave to amend; and (b) general demurrers to 5th, 7th, and 9th C/As – sustained, without leave to amend. Background Plaintiff and cross-defendant FR Crow Canyon, LLC is the lessor under a commercial lease of the premises located at 3191 Crow Canyon Place, Store #K11, in San Ramon. (First Amended Cross- Complaint ("FACC") ¶¶ 17, 28.) Spavia San Ramon, LLC (“Spavia”) is the lessee under the lease. (FACC ¶¶ 22, 28.) FR Crow Canyon sued Spavia and individual defendants Shoba Sekar, Elango Vaithianathan, Kristy Lucas, and Booker Lucas for breach of the lease and breach of the individual defendants' guaranties of the lease. Defendants and cross-complainants Sekar, Vaithianathan, and Ary S World Corp. ("AWC") filed the FACC against FR Crow Canyon and others. Legal Standards for Ruling on Demurrer In ruling on the demurrer, the Court must accept as true all well-pleaded factual allegations of the complaint, but not " 'contentions, deductions or conclusions of fact or law.' " (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) The Court gives the complaint "a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan, supra, 39 Cal. 3d at 318.) (See also Code Civ. Proc. § 452.) If a complaint fails to state a cause of action but there is a reasonable possibility it can be amended to cure the deficiencies, leave to amend must be granted. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 39.) Though the Court also considers judicially noticeable facts (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6), "a court cannot consider . . . the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents. [Citations omitted.]" (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) (See also Blank v. Kirwan, supra, 39 Cal.3d at 318.) Demurrers for uncertainty are generally disfavored and generally only properly sustained when the pleading "is so incomprehensible that a defendant cannot reasonably respond." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Analysis FR Crow Canyon has made general demurrers and special demurrers for uncertainty to the eight causes of action in which it is named as a cross-defendant. Cross-complainants have conceded and agreed to abandon three of the causes of action against FR Crow Canyon: the 5th C/A (equitable indemnity), 7th C/A (violation of the Unfair Competition Law, Business & Professions Code section 17200 et seq.), and the 9th C/A (intentional interference with prospective economic advantage). (Opp. p. 6, ll. 2-7, 13-17.) The Court sustains the general demurrers to those causes of action without leave to amend. A. 1st C/A – Intentional Misrepresentation 1. Parol Evidence Rule The FACC does not attach the lease or any guaranty, portions of which FR Crow Canyon quotes in its demurrer. (Dem. p. 5, l. 17 – p. 6, l. 5.) FR Crow Canyon did not ask for judicial notice of the lease or guaranty attached to FR Crow Canyon's complaint. The Court is limited to consideration of the face of the FACC and matters subject to judicial notice. (Donabedian, supra, 116 Cal.App.4th at 994.) Even if the Court considered the quoted provisions of those documents, the FR Crow Canyon's argument that the fraud claim is barred by the integration clauses in the lease and guaranty under the parol evidence rule is misplaced. As the Court explained in Marani v. Jackson (1986) 183 Cal.App.3d 695, cited by FR Crow Canyon, "The timing of the oral agreement is important as '[the] parol evidence rule precludes extrinsic evidence of prior or contemporaneous agreements that contradict, vary, or add to an integrated writing -- it does not relate to future agreements and does not bar extrinsic evidence that proves that the parties subsequently modified their integrated writing. [Citation.] ' [Citation, italics omitted, emphasis added.]." (Id. at 699, fn. 2.) Further, the argument that the fraud exception to the parol evidence rule does not apply when the alleged misrepresentation contradicts an express provision of a contract was rejected in more recent California Supreme Court authority. (See Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1171-1172.) The Court in Marani also explains that "[u]se of extrinsic evidence to prove subsequent oral modification of an integrated written contract is governed by Civil Code section 1698. (Marani, supra, 183 Cal.App.3d at 699, fn. 2.) The demurrer does not argue the FACC fails to allege facts to support an enforceable oral modification of the lease under Civil Code section 1698; the Court does not reach that issue. 2. Failure to Plead Facts Supporting Essential Elements of the Claim " 'The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' [Citations omitted.]" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud is required to be pled with specificity. (Id. at 645.) "In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations omitted.] . . . 'This particularity requirement necessitates pleading facts which "show how, when, where, to whom, and by what means the representations were tendered." ‘ [Citation omitted.]" (Id.) To state a claim for intentional misrepresentation based on a promise made without intent to perform, cross-complainants must allege circumstances that support an inference of a contemporaneous intention not to perform when the promise is made, to differentiate the alleged false promise from a simple breach of contract. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) As to the reliance element, whether reliance is reasonable or justifiable is usually a question of fact. (See generally Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.) The FACC alleges that on January 5, 2023, months after the lease was signed and after Spavia apparently failed to begin construction as the lease required (FACC ¶ 36), FR Crow Canyon's agent Christian Irwin "represented" to Sekar and Vaithianathan that if Spavia "could start construction" the rent would be "abated." (FACC ¶ 73.) They allege FR Crow Canyon "knew" the statement was false when made because FR Crow Canyon "never intended to forgive or waive any rent." (FACC ¶ 74.) They essentially allege FR Crow Canyon made a post-contract false promise to waive rent due under the lease without an intent to perform the promise. Cross-complainants do not allege that Christian Irwin, the FR Crow Canyon agent, knew this alleged promise or representation that FR Crow Canyon would waive or abate back rent if construction began was false when he made it. (FACC ¶ 74 ["FR Crow Canyon knew the statement was false"].) In addition, the false promise allegations are made in conclusory terms without allegations of additional facts or circumstances supporting an inference FR Crow Canyon did not intend to perform the alleged promise when it was made, rather than it merely failed to perform in breach of the alleged oral representation or promise. (Tenzer, supra, 39 Cal.3d at 30.) The only additional facts or circumstances cross-complainants allege are that the Lucases intended for cross-complainants to rely on the representation regarding the rent abatement "to allow them to continue working toward construction so that they could keep the Premises and transfer it over to the new LLC they were forming." (FACC ¶ 75.) These are not facts showing FR Crow Canyon made the alleged promise without intent to perform. The cause of action as pleaded does not adequately allege these essential facts. In addition, cross-complainants' reliance on the false promise or misrepresentation must be actual and justifiable. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332 [explaining actual reliance means "that the representation was an 'immediate cause' that altered their legal relations [citation, internal quotation marks omitted]" and justifiable reliance means that "circumstances were such to make it reasonable for plaintiff to accept defendant's statements without an independent inquiry or investigation [citation omitted]"].) Cross-complainants allege they relied on Irwin's statement in January 2023 regarding rent abatement by not "breaking" the lease, by "allowing FR Crow Canyon to continue to charge" Spavia rent while also working to replace the tenant and continuing to "work toward construction and finding a replacement investor." (FACC ¶¶ 75, 77.) They allege they would have "taken a different course of action" if they had known FR Crow Canyon's representation that it would abate the rent "if Spavia could start construction" was false. (FACC ¶¶ 73, 76.) Cross-complainants seem to be alleging that had they not relied on Irwin's representation and had they known that FR Crow Canyon's representation regarding the promise of rent abatement if construction started was false, cross-complainants would have terminated the lease sooner; however, the subsequent allegation that they "would have taken a different course of action" is so unspecific that it is not clear whether terminating the lease is the "different course of action" they contend they would have taken. (FACC ¶ 76.) The FACC also does not allege facts explaining how cross-complainants' terminating the lease sooner would have "minimized" their injury or liability to FR Crow Canyon under their guaranty of the lease, such that they relied to their detriment on the alleged false promise or representation by Irwin regarding rent abatement, in light of their guaranties of the lease. Nor do they allege facts explaining how their reliance on the alleged false promise “allowed” FR Crow Canyon to charge Spavia rent; they allege, implicitly and explicitly (FACC ¶ 28) that the lease provided for Spavia to pay rent but that cross-complainants asked for FR Crow Canyon to “abate” the rent otherwise due. For these reasons, the general demurrer to the first cause of action is sustained, with leave to amend. B. 2nd C/A - Concealment The essential elements of a fraudulent concealment cause of action are: " '(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.' [Citation, internal quotation marks omitted.]" (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198.) (See also Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) Concealment is a form of fraud, and similarly subject to the specificity requirement. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 844 ["The tort of concealment is simply another species of fraud or deceit. [Citations omitted.]"]; Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472 ["the requirement that '[f]raud must be pleaded with specificity . . .' applies equally to a cause of action for fraud and deceit based on concealment. [Citation omitted.]"].) Cross-complainants allege FR Crow Canyon concealed from cross-complainants that it had approved a new investor in Spavia (Carmen Brammer) in March 2023. (FACC ¶ 93.) They allege that from February 2023 through September 2023, FR Crow Canyon refused to substitute the new investor as the guarantor of the lease in place of Sekar and Vaithianathan because the new investor's financials were not strong enough. (FACC ¶ 92.) They allege FR Crow Canyon "did this to deceive Cross- Complainants into being on the hook for as much back-rent as possible even though FR Crow Canyon already had a replacement tenant," and AWC was already part of Spavia and a personal guarantor of the lease. (FACC ¶ 93.) The concealment claim appears to be premised on a theory that if a new investor in Spavia was approved by the lessor, the lessor was required to “substitute” the investor or "remove" the cross- complainants from the lease (though Spavia, not the cross-complainants, is the lessee) and release Sekar and Vaithianathan from their liability under their lease guaranties. (See Opp. p. 5, ll. 1-6.) The opposition to the demurrer cites no legal authority that supports that proposition. Cross- complainants have alleged no facts or provided any law that FR Crow Canyon’s approval of a new investor joining Spavia and the new investor providing an additional guaranty of the lease is not legally inconsistent with FR Crow Canyon's refusal to release Sekar and Vaithianathan from their contractual guaranties of the lease. Cross-complainants also cite no authority to support their claim that the failure by FR Crow Canyon to disclose to cross-complainants its approval of the additional guarantor breached any duty to disclose or the legal basis on which such a duty might arise. They have not alleged facts or opposed the demurrer with law demonstrating why that information was material to cross-complainants or why having the information would have changed cross-complainants' legal obligations to FR Crow Canyon under their guaranties. Cross-complainants would have remained liable to FR Crow Canyon under their guaranties, even if they knew the new investor had been approved; they cite no law to the contrary. Cross-complainants also allege again in the most non-specific terms that had they known the new investor had been approved "they would have behaved differently" (FACC ¶ 94), but they allege no specific facts showing what they would have or could have done differently that would have resulted in them being released from their obligations under their guaranties, which appears to be the basis on which they allege they were damaged by being charged "back-rent." (FACC ¶ 98.) The general demurrer to the second cause of action is sustained, with leave to amend. C. Fourth C/A – Promissory Estoppel Promissory fraud, addressed above in the first cause of action, is a different claim from promissory estoppel. The fourth cause of action based on its title and allegations is a claim for promissory estoppel. (FACC p. 24, ll. 19-20.) "The elements of a promissory estoppel claim are '(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.' [Citations, internal quotation marks omitted.]" (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416-417 [quoting Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 225].) For the reasons set forth above, FR Crow Canyon's argument regarding the integration clauses and the parol evidence rule is misplaced; the rule does not apply to a promise made after the lease became effective. For promissory estoppel, Cross-complainants also do not have to allege FR Crow Canyon knew the alleged promise it made in January 2023 that rent would be abated if "construction was started quickly" was false, only that the promise was made. (FACC ¶ 114; Granadino v. Wells Fargo Bank, N.A., supra, 236 Cal.App.4th at 416-417.) Though the FACC alleges FR Crow Canyon did not intend to perform the promise (FACC ¶ 115), that allegation is not essential to the claim. (Granadino v. Wells Fargo Bank, N.A., supra, 236 Cal.App.4th at 416-417.) Given the obligation by the lessee to perform the construction (FACC ¶¶ 28, 36) and cross- complainants' obligations under their guaranties, cross-complainants have not alleged other facts essential to state this claim. They have not alleged facts showing it was reasonable for them to rely on the alleged rent abatement promise based on Spavia fulfilling obligations it already had under the lease and which it had apparently failed to perform, or that it was foreseeable to FR Crow Canyon that cross-complainants would rely on the alleged rent abatement promise under those circumstances, nor have they alleged facts demonstrating how they were harmed by their reliance on the promise. (FACC ¶¶ 116-119.) They do not allege facts regarding the harm they suffered or facts connecting any such harm to their reliance on FR Crow Canyon's alleged promise, rather than the fact they had signed guaranties of the lease. The general demurrer to the fourth cause of action is sustained, with leave to amend. D. Eighth C/A – Breach of the Implied Covenant "[I]n California every contract contains an implied covenant of good faith and fair dealing that 'neither party will do anything which will injure the right of the other to receive the benefits of the agreement.' [Citations, internal omitted.]" (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1120.) A claim for breach of contract or breach of the implied covenant of good faith and fair dealing in a contract can only be made against a party to the contract. (Aljabban v. Fontana Indoor Swap Meet, Inc. (2020) 54 Cal.App.5th 482, 509 [no right to judgment against corporate principal for breach of a lease contract between plaintiff and corporation as principal was not a party to the contract and plaintiff asserted no other basis for liability of principal]; Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 576 ["Obviously, the non-insurer defendants were not parties to the agreements for insurance; therefore, they are not, as such, subject to an implied duty of good faith and fair dealing."].) The implied covenant cannot defeat an express right granted to the other party under the contract. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 350.) The Court through the implied covenant of good faith and fair dealing "cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement." (Id. at 349-350 ["Precisely because employment at will allows the employer freedom to terminate the relationship as it chooses, the employer does not frustrate the employee's contractual rights merely by doing so."].) (See also Carma Developers (Cal.), Inc. v. Marathon Dev. Cal., Inc. (1992) 2 Cal.4th 342, 373 [holding that lessor's enforcement of termination and recapture provision in commercial lease to directly obtain profit from new lease with lessee's proposed sublessee was expressly authorized under the lease and not a breach of the implied covenant of good faith and fair dealing].) The FACC alleges AWC was a member of the limited liability company that signed the lease, not a party to the lease. (FACC ¶ 147.) Sekar and Vaithianathan allege they are parties to guaranties of the lease, not the lease, and none of the parties allege any facts showing what benefits they claim they were entitled to receive under the lease or guaranty agreements that they were denied because FR Crow Canyon breached the implied covenant in these contracts. (FACC ¶¶ 147-149.) Cross- complainants "acknowledge the allegations are unclear as to how [FR Crow Canyon] breached the implied covenant of good faith and fair dealing." (Opp. p. 6, ll. 9-10.) The Court agrees. Based on the deficiencies in the allegations, acknowledged by cross-complainants, the general demurrer to this cause of action is sustained, with leave to amend. E. Tenth C/A – Inducing Breach of Contract The primary elements of a claim for inducing breach of contract are "the existence of a valid contract, defendant's intent to induce a breach of the contract, and a breach resulting from defendant's unjustifiable or wrongful conduct. [Citation omitted.]" (Bledsoe v. Watson (1973) 30 Cal.App.3d 105, 108.) (See also Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 ["The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. [Citations omitted.]"].) Cross-complainants allege FR Crow Canyon induced the Lucases to breach the Spavia Operating Agreement with cross-complainants. (FACC ¶¶ 102-107.) FR Crow Canyon's argument that there is "no third party involved" is incorrect. Cross-defendants the Lucases are the third parties to the Operating Agreement with the cross-complainants (see FACC Exh. A), to which FR Crow Canyon is not a party, and cross-complainants allege FR Crow Canyon induced the Lucases to breach that agreement. (FACC ¶¶ 102-105.) FR Crow Canyon, however, also argues that cross-complainants have not alleged that it engaged in any wrongful activity and that it did not have to negotiate to add guarantors or replace cross- complainants as guarantors. Cross-complainants plead no facts in this cause of action as to what intentional acts FR Crow Canyon engaged in that allegedly induced the Lucases to breach their Operating Agreement with the cross-complainants, nor does the opposition to the demurrer point to any facts that meet the elements of this cause of action. They "acknowledge the allegations are unclear as to how [FR Crow Canyon] induced a breach of contract between Cross-Complainants and the Lucases." (Opp. p. 6, ll. 19-20.) The Court agrees. Based on the deficiencies in the allegations, acknowledged by cross-complainants, the general demurrer to this cause of action is sustained, with leave to amend. Special Demurrers for Uncertainty The Court does not reach FR Crow Canyon’s special demurrers for uncertainty as to the first, second, fourth, eighth and tenth causes of action based on the Court’s ruling sustaining general demurrers to each of those causes of action.

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.

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.

TRILLIUM PARTNERS, L.P., A DELAWARE LIMITED CVPS2305959 PARTNERSHIP vs Application for Writ of Possession NUTRANOMICS, INC., A WYOMING CORPORATION Tentative Ruling: Granted. Trillium’s security interest in the property is a senior security interest to Happy Hours’ implied security interest in the property to recover storage costs from the tenant. Court will sign proposed order for writ of possession filed March 8, 2024. However, $50,000.00 undertaking will be required pursuant to CCP 515.010 within 10 days of this order becoming final for clerk to issue the writ of possession. Moving party to provide notice pursuant to CCP 1019.5. From April 2022 to July 2022 defendant Nutranomics Inc. entered into a series of loans with plaintiff Trillium Partners L.P., under which Trillium lent Nutranomics something in the neighborhood of $1,660,000. On each loan Trillium took a security interest in certain property owned by Nutranomics. Nutranomics fell into default, and in addition in August of 2023 was evicted from the tenancy at which the property was held by its landlord, defendant Happy Hours LLC. As a result of the eviction, Happy Hours is now in possession of the security on the Trillium loans. Trillium filed this action against Happy Hours and Nutranomics. Happy Hours initially defaulted but has obtained relief from that and has answered the complaint, while Nutranomics and a third defendant, DHS Development, have been served; Nutranomics is currently in default. Trillium now seeks a writ of possession as to the secured equipment, which Happy Hours opposes. Writ of Possession Upon the filing of the complaint or at any time thereafter, a plaintiff may apply for a writ of possession. (Cal. Code Civ. Pro § 512.010(a). The application shall include all of the following: 1. A showing of the basis of the plaintiff’s claim that the plaintiff is entitled to possession, including the written instrument; 2. A showing that the property is wrongfully detained by defendant and of the manner in which defendant came into possession and the reason for the detention; 3. A particular description of the property and a statement of its value; 4. A statement of the property’s location based on plaintiff’s knowledge, information and belief; and 5. A statement that the property has not been taken for a tax, assessment or fine pursuant to a statute; or seized under an execution against the property; or if so seized, that it is by statute exempt from such seizure. (C.C.P. §512.010(b).) The court may order the defendant to transfer possession of the property to the plaintiff. (C.C.P. §512.070.) The property sought to be recovered must exist in a concrete or tangible form, capable of identification and seizure and the writ does not issue for intangibles such as bank accounts. (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2023) §9:768.) in addition to establishing the probable validity of the claim of possession, in order to obtain a writ of possess or TRO, Petitioner must post a bond that is equal to twice the value of Respondent’s interest in the property, which is the market value less amounts of liens or balances due under the conditional sales contracts or security agreements. (C.C.P. §515.010(a).) At or after the time a plaintiff files an application for writ of possession, he or she may apply for a temporary restraining order if: (1) the plaintiff has established the probable validity of his claim to possession of the property; (2) the plaintiff has provided an undertaking; (3) the plaintiff has established the probability that there is an immediate danger that the property claimed may become unavailable to levy by reason of being transferred, concealed, or removed or may become substantially impaired in value. (C.C.P. §513.010.) The party requesting a writ of possession must establish the probable validity of his or her claim to possession of the property, which means that it is more likely than not that the plaintiff will obtain a judgment against the defendant on the claim. (RCA Service Co. v. Superior Court (1982) 137 Cal.App.3d 1, 3.) The defendant may not retain wrongful possession of property even if he or she has a valid claim for damages against the plaintiff. (RCA Service Co., 137 Cal.App.3d 1, 3.) Here, the procedural requirements of the application have been met and plaintiff’s claim obviously has probable validity over Nutranomics, which is in default. The question raised by the parties is whether Happy Hours claim for storage fees has priority over Trillium’s right to repossess the collateral. Under C.C.P. §1174(h), if personal property is left on rental property after execution of an unlawful detainer judgment, “[t]he landlord shall release the personal property pursuant to Section 1965 of the Civil Code or shall release it to the tenant or, at the landlord’s option, to a person reasonably believed by the landlord to be its owner if the tenant or other person pays the costs of storage as provided in Section 1990 of the Civil Code and claims the property not later than the date specified in the writ of possession before which the tenant must make his or her claim or the date specified in the notice before which a person other than the tenant must make his or her claim.” Early versions of the statute were either silent as to what to do with the tenant’s property or required the county to store leftover property; “[t]he 1968 amendment with which we are here concerned shifted the duty of storing the tenant’s property to the plaintiff landlord and provides that the reasonable costs of storage incurred by the landlord are to be reimbursed to him either by the tenant, if the property is redeemed by him, or out of the proceeds realized upon a public sale of the property if it is not redeemed by the tenant as prescribed in the statute.” (Gray v. Whitmore (1971) 17 Cal.App.3d 1, 15.) Under the statute “a deposit for purposes of storage is created by the terms of the statute and the landlord becomes a depositary for the safekeeping of the property for the benefit of the tenant.” (Gray, 17 Cal.App.3d 1, 16.) “To secure the payment of such compensation section 1174, in essence, gives the plaintiff a special lien on the property dependent on possession.” (Gray, 17 Cal.App.3d 1, 16.) Insofar as the landlord has something in the nature of a lien on the property, however, there is no reason to conclude that the landlord’s lien is senior to an earlier created security interest in favor of plaintiff here. In general, conflicting security interests are ranked in priority of time of filing or perfection. (Commercial Code §9322.) There are various exceptions but nothing in the language of C.C.P. §1174 or Civil Code §1965 suggest that an interest of a landlord as depository achieves priority over existing security interests in property. The language of section 1174(h) only suggests a right to recover costs of deposit from the tenant or by the owner of the property being held. Trillium, it bears noting, is neither of these. It is the holder of a security interest in the property, while Nutranomics remains both the tenant and the owner of the property. Like any other person taking a junior interest in a security, Happy Hours runs the risk of having its interest in the security extinguished by a senior security interest; this does not give it the right to withhold the property from the holder of senior security interest. Neither of Happy Hours’ briefs provide any argument as to why a section 1174 interest in the property should be deemed superior to a preexisting security interest, nor does it analyze the statutory language in any way that explains why the holder of a senior security interest should be required to pay the tenant’s storage expenses before seizing or foreclosing on the property. Also troublesome is Happy Hours’ claim that it has incurred storage costs of $900,266.22 from the August 2023 eviction through April 19, 2024. (Nichani declaration, ¶8.) By Happy Hours’ own account, this is $4,142.67 per day. (Opposition to Writ of Possession, p. 6.) There is no explanation for why storage costs are so high—no description of the property being held, its size or any special needs in maintaining it, no calculation performed or explained. The size of the storage space is not given. A bald statement that the storage costs are $124,280 a month, without any further explanation, has no evidentiary value to the court in attempting to determine a reasonable bond to require.