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Credit Acceptance Corporation V. Matthew Blew

Case Last Refreshed: 4 months ago

Credit Acceptance Corporation, filed a(n) Breach of Contract - Commercial case represented by Low, Christopher Lloyd, against Blew Matthew Mark, in the jurisdiction of Wapello County. This case was filed in Wapello County Superior Courts .

Case Details for Credit Acceptance Corporation v. Blew Matthew Mark

Filing Date

February 16, 2024

Category

Contract - Debt Collection

Last Refreshed

February 19, 2024

Practice Area

Commercial

Filing Location

Wapello County, IA

Matter Type

Breach of Contract

Parties for Credit Acceptance Corporation v. Blew Matthew Mark

Plaintiffs

Credit Acceptance Corporation

Attorneys for Plaintiffs

Low, Christopher Lloyd

Defendants

Blew Matthew Mark

Case Events for Credit Acceptance Corporation v. Blew Matthew Mark

Type Description
Docket Event PETITION FILED
Docket Event CIVIL ORIGINAL NOTICE
See all events

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Ruling

ROBERT H. FELDMAN VS 13012 VALLEYHEART HOMEOWNERS ASSOCIATION, INC., A CALIFORNIA NON-PROFIT CORPORATION, ET AL.
Jul 10, 2024 | 21STCV38035
Case Number: 21STCV38035 Hearing Date: July 10, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 10, 2024 Case Name: Feldman v. 13012 Valleyheart Homeowners Association, Inc., et al. Case No.: 21STCV38035 Matter: Motion for Summary Judgment/Adjudication Moving Party: Defendants 13012 Valleyheart Homeowners Association, Inc., Daryn Wood, and Matthew Ferrone Responding Party: Plaintiff Robert H. Feldman Notice: OK Ruling: The Motion for Summary Judgment/Adjudication is denied. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. On May 5, 2022, Plaintiff Robert H. Feldman filed the operative First Amended Complaint (FAC) against Defendants 13012 Valleyheart Homeowners Association, Inc., Daryn Wood, Matthew Ferrone, and Millenium Air, Inc. for (1) Declaratory Relief; (2) Injunctive Relief; (3) Breach of Contract; (4) Violation of Civil Code Section 4775; (5) Private Nuisance; (6) Intentional Infliction of Emotional Distress (IIED); (7) Trespass to Property; (8) Age Discrimination; (9) Discrimination based on Religious Status; (10) Discrimination based on Disability; (11) Battery; (12) Negligence; and (13) Negligence. Plaintiff alleges that he owns a condominium unit and that Defendants, who are the HOA for Plaintiffs property and its board members, failed to properly assess whether the property required repairs, failed to complete adequate repairs (for example, to gutters, water valves, garage lights, and security cameras), and retaliated against Plaintiff for his management complaints by, among other things, tampering with his air conditioning and exposing him to toxic chemicals. Defendants 13012 Valleyheart Homeowners Association, Inc., Daryn Wood, and Matthew Ferrone now seek summary judgment or, alternatively, summary adjudication of all causes of action. Plaintiff filed an Opposition on June 26, 2024. Defendants did not file a reply. The law of summary judgment provides courts a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponents claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. ( Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc. § 437c(p)(2).) To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. ( Aguilar , at p. 849.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. ( Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Declaratory Relief; Injunctive Relief; Breach of Contract; & Violation of Civ. Code § 4775 Defendants argue that the declaratory relief, contract, injunction, and Civ. Code § 4775 claims fail for a multitude of reasons: Plaintiff cannot establish that Valleyheart has not properly discharged its duties, pursuant to the CC&Rs and applicable statutes. For example, Plaintiff is seeking a mandatory injunction requiring Valleyheart to conduct an investigation to determine if the previously installed gutter system and lighting system are efficient. However, the gutter system is identical to the previous one, there have been no issues or flooding since it was replaced, and the Property has not diminished in value as a result of the gutter system. (UMF 14, 15, 16, 17.) Regardless, rainfall never even entered Plaintiffs unit or damaged Plaintiffs unit or the Property. (UMF 10, 11.) Furthermore, Plaintiffs only complaint regarding the lighting is that they are on motion sensors. (UMF 34.) Plaintiff is also seeking a Court order for Valleyheart to provide instructions on how to access the security cameras, but he admits he was already told how to do so, and to inspect the Propertys water pressure, even though this was already done too. (UMF 23, 24, 32, 33.) Plaintiffs water-shut off valve has also already been replaced. (UMF 23.) Pursuant to the CC&Rs and the By-Laws of Valleyheart, Wood and Valleyheart are allowed to perform construction at the Property. (UMF 6, 7.) Plaintiff is demanding that the Valleyheart investigate, to determine if Wood performed construction work during quiet hours, without any basis whatsoever because plaintiff has never even witnessed Wood perform any construction work inside Woods unit and has never determined the source of any alleged noises at the Property. (UMF 35, 36, 37.) Nonetheless, Valleyheart has not permitted any homeowners to engage in construction activities during quiet time hours, and Valleyheart has responded to and investigated any noise complaints. (UMF 39, 40.) Lastly, Plaintiffs only complaint regarding the windows and skylights at the Property are that the windows are all not the same color and that the skylights at the Property are opaque, but Plaintiff cannot establish these windows or skylights violate the CC&Rs. At the very least, there is a factual dispute on these claims to the extent that Defendants plumber found that the subject propertys water pressure was 85 psi while Plaintiff points to the Uniform Plumbing Code and the advice of his plumber that pressure above 80 psi will lead to plumbing system failure. Again, no reply was filed. Private Nuisance & Trespass The elements for a nuisance claim are as follows: First, the plaintiff must prove an interference with his use and enjoyment of his property. [] Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer substantial actual damage. [] Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable [citation], i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. ( Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 26263 (internal quotation marks omitted).) The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm. ( Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.) Trespass may be by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person. A trespass may be on the surface of the land, above it, or below it. The migration of pollutants from one property to another may constitute a trespass, a nuisance, or both. ( Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) Defendants argue that Plaintiff cannot establish any substantial or unreasonable interference with the use and enjoyment of his unit. For instance, Plaintiff complains of a neighbor performing construction, his balcony railing being repainted, an exterminator spraying pesticides, construction materials in his parking space for one night, a neighbor watering his plants, and rainwater falling on his window that never entered or damaged his unit. Plaintiffs purported grievances are not substantial, as they are simply aspects of living in a community at worst. While Plaintiff may personally feel his gripes are insufferable, any normal, reasonable condominium owner would expect to encounter these common inconveniences. There are factual disputes to the extent that Plaintiff indicates that for a period of several years, Wood used hammers and power tools to create loud noise in the common wall he shares with Mr. Feldman, often during designated quiet time; . . . Wood and Ferrone painted Mr. Feldmans balcony against his express wishes and his exposure to the paint made his skin cancer worse; (5) Ferrone overwatered Mr. Feldmans plants; (6) Wood and Ferrone hired Millennium to tamper with Mr. Feldmans AC unit; and (7) Wood placed construction materials in Mr. Feldmans parking space. IIED Defendants argue that the IIED claim fails because Plaintiff does not allege extreme and outrageous conduct. The elements of the tort of IIED are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. . . . Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. ( Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903, internal quotations omitted.) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. ( Molko v. Holy Spirit Assn. (1986) 46 Cal.3d 1092, 1122.) Here, the issue of extreme and outrageous conduct is factual, particularly as Plaintiff asserts that Defendants intentionally exposed Plaintiff to toxic chemicals and intentionally chose to delay repairs so as to vex and harass Plaintiff. (See, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922.) Discrimination Defendants argue that Plaintiffs claims for age, religious, and disability discrimination fail because Plaintiff has no facts, only conclusory allegations, supporting any conceivable discriminatory motive for Defendants alleged conduct. On the contrary, Plaintiff alleges Wood retaliated against him because Wood was sick of Plaintiff and his complaints about the management of the Property. . . . Additionally, Ferrone and Wood did not even become aware that Plaintiff is Jewish until the filing of the instant action in 2021. (UMF 66.) Old age is not even specifically enumerated in the relevant statutes. Plaintiffs eighth through tenth causes of action for discrimination appear to be based on the FEHA and Unruh Civil Rights Act. There is a factual dispute as to whether Wood knew Plaintiff is Jewish. (Plaintiff Decl. ¶ 50.) There is also a dispute as to the propriety of Defendants repairs and their timeliness. Plaintiff further notes that a resident in her early 30s had a complaint about stolen packages immediately addressed by Defendants with Defendants going as far as proposing the installation of a $10,000 fence. Further, one board member stated in an email to another older resident that: The world and the lives of the homeowners in this building dont revolve around you and [Plaintiff]. Youre nothing but a paranoid grumpy old man who does nothing but manufacture problems to complain about. The work is done. So, shut the F up. Plaintiff also asserts that Defendants painted Plaintiffs balcony despite his request to the contrary and their knowledge of his cancer. There is also the assertion that Defendants believe Plaintiff is mentally ill and, therefore, they refuse timely repairs. One board member even stated, Why someone who has made numerous attempts to commit suicide is so concerned about his health is beyond me. Defendants have otherwise failed to carry their burden on these claims. Battery The elements of a civil battery are: 1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did not consent to the contact; [and][¶] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff. [Citation.] ( Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497.) Defendants argue that Plaintiff alleges that Wood and Ferrone caused Plaintiff to come in contact with a harmful chemical with the intent to harm him. First, Plaintiff has zero admissible evidence that anyone put the alleged unknown substance on his balcony at the Property or that anyone was instructed to do so. (UMF 50, 51.) Plaintiff baselessly alleges that Wood and Ferrone had the intent to harm him, but he admits that all the owners at the Property had their balconies painted. (UMF 45.) Regardless, Plaintiff also admits he did not even come in contact with the alleged unknown substance. (UMF 52.) Lastly, Plaintiff cannot establish he was exposed to high levels of benzine and toluene from anything on his balcony, that he was even exposed to high levels at all, or that anything on his balcony worsened his pre-existing, untreated skin cancer. (UMF 49, 53, 54.) Regardless of the unknown substance, again, there is an assertion that Plaintiff requested that his balcony (not a common area) not be painted and Defendants, regardless, painted the balcony, which exposed Plaintiff to chemicals that made him feel sick while having skin cancer. Negligence Finally, the negligence claim survives as an alternative theory pertaining to the incident about the painting of Plaintiffs balcony. There are factual disputes as to causation/damages. (See Hoang MD Decl. ¶ 8 [In my professional medical opinion, the high levels of benzene and toluene in Mr. Feldmans system was the result of the paint applied to Mr. Feldmans balcony, as benzene and toluene are chemicals found in paint. Since Mr. Feldman was essentially homebound at this time, and since he reported becoming sick right after the painting occurred, I believe he was likely exposed to these chemicals because of his balcony being painted, as opposed to this exposure from any other source.].) Summary The Motion for Summary Judgment/Adjudication is denied. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

Ruling

FIRST TECHNOLOGY FEDERAL CREDIT UNION VS MATTHEW CHRISTOPHER THOMAS, ET AL.
Jul 10, 2024 | 24STCV06346
Case Number: 24STCV06346 Hearing Date: July 10, 2024 Dept: 82 First Technology Federal Credit Union v. Matthew Christopher Thomas, et al. Case No. 24STCV06346 Order Denying Application for Writ of Possession INTRODUCTION Plaintiff First Technology Federal Credit Union (Plaintiff) moves for a writ of possession against Defendant Matthew Christopher Thomas (Defendant) over the following property: 2022 Tesla Model X, Vehicle Identification Number 7SAXCBE69NF333811 (the Vehicle). Plaintiff has not shown probable cause to believe that the Vehicle is located at the address specified in the application, as required by statute. (See Code Civ. Proc. §§ 512.010(b)(4), 512.080.) Accordingly, the application is denied without prejudice. LEGAL STANDARD Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought. (Code Civ. Proc. § 512.010(a).) Pursuant to Code of Civil Procedure section 512.010(b), the application must be submitted under oath and include: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. (3) A particular description of the property and a statement of its value. (4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there. (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 of the plaintiff; or, if so seized, that it is by statute exempt from such seizure. Before the hearing on the Writ of Possession, the Defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. (Code Civ. Proc. § 512.030.) The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established. (Code Civ. Proc. § 512.040(b).) A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc. § 511.090.) DISCUSSION A. Probable Validity of Plaintiffs Claim Plaintiff seeks a writ of possession based on its claims for breach of contract and money lent. On or about November 29, 2022, Defendant entered into Loan and Security Agreements (the Contract) with Plaintiff to finance the purchase of the Vehicle. In consideration for an auto loan in the amount of $154,310.78, Defendant granted Plaintiff a security interest in the Vehicle and agreed to pay interest of 12.0300% per year. (Dexheimer Decl. ¶¶ 5-6, Exh. 1 and 2.) Defendant defaulted on the Contract by failing to make payments when due, and there is presently a balance due of $153,981.28, plus interest. (Id. ¶ 8, Exh. 3.) Therefore, Plaintiff has satisfied this requirement. B. Wrongful Detention Pursuant to Code of Civil Procedure section 512.010(b)(2), the application must include a showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. Under the Contract, Plaintiff has the right to repossess the Vehicle in the event of default. ( Dexheimer Decl. Exh. 1.) Plaintiff has demanded that Defendant surrender the Vehicle, and Defendant has refused to do so. (Id. ¶ 11.) Therefore, Plaintiff has satisfied this requirement. C. Description and Value of Property Pursuant to Code of Civil Procedure section 512.010(b)(3), the application must include a particular description of the property and a statement of its value. Plaintiff has provided a particular description of the property, by make, and VIN number. Plaintiff has also given a statement as to value. Therefore, Plaintiff has satisfied this requirement. D. Probable Location of the Vehicle The court denies this application without prejudice because Plaintiff does not include sufficient evidence of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there, as required by Code of Civil Procedure section 512.010(b)(4). Plaintiffs application seeks a writ of possession directing the levying officer to take the Vehicle from Defendants last known residence address, which is a private place located at 4216 W. 59th Place, Los Angeles, CA 90043. (Appl. ¶ 6.) However, the declaration of Shaun Dexheimer is not sufficient to establish probable cause to believe the vehicle is located at that address. The declaration merely states: I am informed and believe that the Vehicle is currently in the possession of [Defendant] at his last known residence address and that Plaintiff is informed and believes that Defendant is concealing the Vehicle at his residence so Plaintiff cannot gain access to it. (Dexheimer Decl. ¶ 10.) The declaration provides no attribution for this information and appears to be based upon hearsay. Of equal concern, the record suggests that Plaintiff does not, in fact, reside at that address. Although Defendant listed the 59th Place address on his contract, Plaintiff has been personally serving Defendant at a different address: 3988 East Hardy Street, Apartment 132, in Inglewood, California 90303. The record does not clarify this inconsistency. Accordingly, Plaintiff does not establish sufficient probable cause to believe the vehicle is located at the address on the application. E. Turnover Order Plaintiff requests a turnover order. (See Memorandum 4:6-14.) Section 512.070 states: If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court. Thus a turnover order, issued pursuant to section 512.070 , is not a separate remedy but rather an alternative means of enforcing a writ of possession. ( Edwards v. Sup.Ct. (1991) 230 Cal.App.3d 173, 178.) Because the court is denying the application for a writ of possession, the court cannot issue a turnover order. CONCLUSION AND ORDER Based upon the foregoing, the court denies the application for a writ of possession without prejudice. Plaintiffs counsel shall provide notice and file proof of service with the court.

Ruling

MORALES, CARLOS vs VALENCIA, RAFAEL
Jul 10, 2024 | CV-22-004988
CV-22-004988 – MORALES, CARLOS vs VALENCIA, RAFAEL - Defendant Huboptics, LLC’s Demurrer to Plaintiff's First Amended Complaint - SUSTAINED, without leave to amend, and unopposed. Based upon review of the moving and supporting papers, the Court sustains the Demurrer in its entirety. The 1st and 2nd Causes of Action fail to state facts sufficient to support the stated emotional distress claims in this context. (Code Civ. Proc. § 430.10(e).) As Plaintiff has failed to demonstrate how the pleading could be amended to overcome demurrer in this context, leave to amend is DENIED.

Ruling

CREEKSIDE LOGGING VS. APPLIED UNDERWRITERS
Jul 12, 2024 | CVCV16-0185312
CREEKSIDE LOGGING VS. APPLIED UNDERWRITERS Case Number: CVCV16-0185312 This matter is on calendar for review regarding status of the case. No status report has been filed. An appearance is necessary on today’s calendar to provide the Court with an update regarding the status of the injunction against litigation.

Ruling

Y.P. VS. WELLS FARGO & COMPANY, ET AL
Jul 10, 2024 | CGC24613065
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 12. DEFENDANT EARL IGNACIO AND WELLS FARGO BANK, N.A.'s Motion To Compel Arbitration. Defendants Wells Fargo Bank, N.A. and Earl Ignacio's motion to compel arbitration and stay is denied. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

Mary Manning vs. Valerie Snow
Jul 11, 2024 | 23CECG01038
Re: Mary Manning v. Valerie Snow Superior Court Case No. 23CECG01038 Hearing Date: July 11, 2024 (Dept. 501) Motion: by Plaintiff for Reconsideration Tentative Ruling: To deny. (Code Civ. Proc., § 1008, subd. (a).) Explanation: Pursuant to Code of Civil Procedure section 1008, the losing party may bring a motion to reconsider, and a different order may be entered, if, subject to the following conditions, the motion is: (1) brought before the same judge that made the order; (2) made within 10 days after service upon the party of notice of the entry of the order; (3) based on new or different facts, circumstances, or law; and (4) made and decided before entry of judgment. Code of Civil Procedure section1008 is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A party requesting the court reconsider its prior orders must provide new evidence and a satisfactory explanation for why the evidence was not previously presented. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) The burden has been compared to “that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court, supra, 135 Cal.App.4th 206, 212-213.) Here, plaintiff has not addressed any of these requirements in her motion for reconsideration. As such, the motion to reconsider is denied. It appears that counsel has filed this motion in an effort to gain insight into court procedures regarding plaintiff’s application for default judgment. Plaintiff’s application for default judgment was denied on March 18, 2024, for the following reasons: 1) failure to correctly identify the defendant(s) in Judicial Council Form CIV-100 item 1(d); 2) failure to address plaintiff’s claim that she is a putative spouse; 3) whether financial contributions were gifts as opposed to consideration; 4) failure to sufficiently address the validity of an oral contract alleged to have manifested over the course of several months; and 5) failure to sufficiently plead a constructive trust where plaintiff does not seek recovery of property. Upon review of the documents presented in this motion to reconsider, plaintiff has still failed to address the following: 1) failure to correctly identify the defendant(s) in Judicial Council Form CIV-100 item 1(d); 2) failure to address plaintiff’s claim that she is a putative spouse; 3) failure to sufficiently address the validity of an oral contract alleged to have manifested over the course of several months; and 4) failure to sufficiently plead a constructive trust where plaintiff does not seek recovery of property. The denial of plaintiff’s request for default judgment was without prejudice. Nothing prevents plaintiff from submitting a new default judgment package addressing all of the court’s concerns. Additionally, nothing prevents plaintiff from filing an amended complaint in order to sufficiently plead causes of action relating to the oral contract and/or constructive trust. The court would note that an overwhelming number of requests for default judgment have created a backlog for this court in processing default judgments. It is not this court’s policy to ensure any pending request for default judgment is processed prior to any scheduled Case Management Conference. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: DTT on 7/9/2024 . (Judge’s initials) (Date)

Ruling

ANYELY SANCHEZ VS GENERAL MOTORS, LLC.
Jul 10, 2024 | 6/18/2022 | 23SMCV01704
Case Number: 23SMCV01704 Hearing Date: July 10, 2024 Dept: I The court is still waiting for the Supreme Courts ruling. Argument was held on June 4, 2024, so a decision should come out shortly. The court is inclined to continue the matter for 90 days, which will assure that the Court has ruled and allow the parties to file supplemental briefs15 calendar days before the hearingaddressing the impact of the Courts ruling.

Ruling

RAYMOND GHERMEZIAN, ET AL. VS ALMA NUNEZ, ET AL.
Jul 09, 2024 | 23STCV13104
Case Number: 23STCV13104 Hearing Date: July 9, 2024 Dept: 61 RAYMOND GHERMEZIAN, et al. vs ALMA NUNEZ, et al. TENTATIVE Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion for Protective Order is DENIED. No sanctions are awarded. Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion to Compel Deposition of Defendant Joseph H. Low IV is GRANTED. No sanctions are awarded. Defendant Joseph H. Low IVs Motion to Compel Deposition of Plaintiff Raymond Ghermezian is GRANTED. No sanctions are awarded. Plaintiffs to give notice. DISCUSSION MOTION FOR PROTECTIVE ORDER Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc. 2025.420, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b).) Plaintiff Raymond Ghermezian (Plaintiff) moves for an order preventing Defendants Alma Nunez and Joseph H. Low, IV (Defendants) from using an audio recording made by Nunez in the presence of Plaintiff without his consent in discovery, hearings, mediation, or any other purpose in this matter. (Motion at p. 2.) Plaintiff states that Nunez made an audio recording of him speaking to her regarding the underlying case, a fact revealed to him on May 28, 2024, during mediation in this matter.. (Ghermezian Decl. ¶ 3.) Plaintiff states the recording was played for the mediator and partially for himself. (Ibid.) Plaintiff contends that he did not consent to be recorded. (Ghermezian Decl. ¶ 4.) He argues that Defendants likely intend to present the recording at his deposition, in order to elicit testimony that may contradict its contents. (Ghermezian Decl. ¶ 5.) Defendants have no produced the recording in discovery. (Ghermezian Decl. ¶ 5.) Plaintiff relies on Penal Code § 632, which makes guilty of a misdemeanor any person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio. (Penal Code § 632, subd. (a).) This same statute states: Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding. (Penal Code § 632, subd. (d).) Defendants argue that Penal Code § 632s prohibition does not apply here, because the presence of a third person during the recorded conversation evidenced by a third voice on the recording renders the conversation not confidential. (Opposition at pp. 89.) But Defendants cite no authority for this argument, and it is contradicted by the statutory text. The statute prohibits a persons recording of a confidential communication without the consent of all parties, and does not indicate a limitation to bilateral communications between two persons. (Penal Code § 632, subd. (a), italics added.) The statute defines confidential communication to mean any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, once more indicating no limitation of confidentiality to two persons. (Penal Code § 632, subd. (c).) Defendants further argue that Penal Code § 632 is not applicable to civil proceedings(Opposition at p. 8), but this argument is contradicted by the statutory language itself, which prescribes inadmissibility in any judicial . . . proceedings, naturally including civil cases. (Penal Code § 632, subd. (d).) It is also contradicted by case authority, which has gone on to apply the provision to civil proceedings. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1492 [Neither the tainted recordings nor the notes derived from them can be read in evidence.].) Defendants arguments for the inapplicability of Penal Code § 632 is therefore unpersuasive. But regardless of whether or not Penal Code § 632 is applicable, Plaintiff has not shown good cause for the protective order he seeks here. Plaintiff seeks a total prohibition on the use of the recording, a sweeping order finding no basis in the operative statute. The legislature has defined the remedy appropriate for illicit recordings, which include criminal penalties and direction that such evidence be not admissible in judicial proceedings. (Penal Code § 632, subd. (d).) Plaintiff in fact misquotes the statute in his motion, stating that it prohibits the use of any illegal recording in any judicial, administrative, legislative, or other proceeding. (Motion at p. 5, italics added.) But the statute does not prohibit the recordings use; it renders the recording not admissible. (Penal Code § 632, subd. (d).) Such a recording therefore may not be admitted into evidence but it may be used for other purposes, such as, refreshing the recollection of the parties to the conversation. (See Frio, supra, 203 Cal.app.3d at p. 1494 [[W]e are unaware of any decision holding that a witness may not testify after simply refreshing recollection with tainted evidence.].) Plaintiff is therefore not entitled to a protective order. The motion for protective order is therefore DENIED. II. MOTION TO COMPEL DEPOSITION A party may make a motion compelling a witnesss deposition after service of a deposition notice if that witness fails to appear for examination, or to proceed with it. (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).) In competing motions, Plaintiff seeks to compel the deposition of Defendant Joseph R. Low, IV (Low), and Defendants seek to compel the deposition of Plaintiff. Defendants served Plaintiff with a deposition notice on April 30, 2024, with the deposition set for May 17, 2024, for which Plaintiff failed to appear after serving objections based on his lack of availability. (Lewis Decl. ¶¶ 34, Exhs. A, B.) Plaintiff stated in informal correspondence that he has priority for his deposition because he had noticed Lows deposition to take place first. (Lewis Decl. Exh. E.) Plaintiff, meanwhile, served Low with a deposition notice on February 1, 2024, with the deposition noticed for February 16, 2024. (Ghermezian Decl. ¶ 3, Exh. A.) Low objected to the date and to the requests for production on February 8, 2024. (Ghermezian Decl. ¶ 4, Exh. B.) Plaintiff sent an email on February 8, 2024, seeking alternative dates to depose Mr. Low in my office in February. (Ghermezian Decl. Exh. C.) Defendants evidently provided no dates. In a March 7, 2024 email, Defendants counsel told Plaintiff that Lows trial calendar one lasting six to eight weeks, another expected to last ten days would prevent his attendance at a mediation any earlier than the May 28 date offered by the mediator, (Ghermezian Decl. Exh. E.) But Defendants declined to offer dates for Lows deposition, even after noticing Plaintiffs deposition for May 17. (Ghermezian Decl. Exh. D.) Both parties motions shall be granted, and both Ghermezian and Low compelled to attend deposition. Both parties object on the basis of availability, yet neither have provided any dates of availability for the depositions to proceed. Plaintiff argues that he is entitled to take the deposition of Low first because he noticed the deposition first. (Opposition at pp. 23.) Plaintiff was not so entitled, because the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party. (Code Civ. Proc., § 2019.020, subd. (a).) Plaintiff relies on State Bar civility guidelines stating, When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsels agreement. (Cal. Attorney Guidelines of Civility and Professionalism, § 9, subd. (a)(1).) But the taking of Lows deposition during the time allotted by Plaintiff was prevented by Lows trial schedule. And in any event, these guidelines do not excuse either partys refusal to offer dates, in light of an express statutory directive against Plaintiffs argument limiting discovery based on priority. In addition to compelling Lows attendance at deposition, Plaintiff also seeks an order directing him to produce documents responsive to three requests for production contained in the deposition notice, which seek documents related to the settlement and Nunezs client file. (Motion at p. 5; Ghermezian Decl. Exh. A.) Although Defendants argue that they have already responded to similar requests offered as inspection demands (Opposition at pp. 34), Plaintiff may seek the same discovery by deposition notice that they earlier sought by written discovery, if they are dissatisfied with the earlier responses. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997 [[T]he inspection of documents procedure is quite different from a deposition at which a party is required to bring documents. Nothing in either section 2025 or section 2031 suggests that seeking documents under one statutory procedure bars a litigant from seeking the same documents under the other.].) The documents sought here relate to the subject matter of the action, and good cause for the production has been shown, subject to a privilege log under Code of Civil Procedure § 2031.240. The motions to compel deposition are therefore GRANTED. III. SANCTIONS If a motion to compel deposition is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).) Plaintiff seeks $2,400.00 in sanctions against Defendants and their counsel, representing six hours of attorney work at $400 per hour. (Ghermezian Decl. ¶ 11.) Defendant Low seeks $3,660.00 in sanctions against Plaintiff, representing six hours of attorney work at $600 per hour plus a $60 filing fee. (Lewis Decl. ¶¶ 1315.) No sanctions are awarded on either motion, as the parties have obtained relief against each other. Sanctions are also mandatory against the party who unsuccessfully makes or opposes a motion for a protective order, absent substantial justification or other circumstances that make the award of the sanctions unjust. (Code Civ. Proc. § 2025.420, subd. (h). Plaintiff seeks $2,100.00 in sanctions, representing a miscalculation of seven hours of attorney work at $400, which should yield a total of $2,800.00. (Ghermezian Decl. ¶ 7.) Defendants in turn seek $2,880.00 in sanctions on the same motion, representing a miscalculation of 4.5 hours of attorney work at $600 per hour, which should yield a sanctions request of $2,700.00. (Lewis Decl. ¶ 13.) No sanctions under the protective order motion are appropriate, as Plaintiff sought the order based on a misinterpretation of the reach of Penal Code § 632, subd. (d), and Defendants opposed it based on a misinterpretation of Penal Code § 632, subd. (c). It would therefore be unjust to award sanctions to either party

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