Hubbard, Erik V Nationwide Insurance Company , Et Al.

Case Number: 23NWCV02045 Hearing Date: July 9, 2024 Dept: C HERRERA v. BAGUES CASE NO.: 23NWCV02045 HEARING: 07/09/24 #8 I. Defendants CUNNINGHAM; GUERRA ENTERPRISES, INC.; and BAGUES Demurrer to Plaintiffs First Amended Complaint is placed OFF-CALENDAR as MOOT pursuant to the Joint Stipulation to File a Second Amended Complaint RECEIVED on June 24, 2024. II. Defendants CUNNINGHAM; GUERRA ENTERPRISES, INC.; and BAGUES Motion to Strike Portions of Plaintiffs First Amended Complaint is placed OFF-CALENDAR as MOOT pursuant to the Joint Stipulation to File a Second Amended Complaint RECEIVED on June 24, 2024. The Second Amended Complaint RECEIVED by this Court on June 24, 2024 is REJECTED. Plaintiffs are ORDERED to FILE and SERVE their Second Amended Complaint within 5 days of the Courts issuance of this Order. Court Clerk to give notice.

23CV00719 AMADEI v. MORGAN (UNOPPOSED) MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE AND FOR MONETARY SANCTIONS The unopposed motion is granted. Plaintiff seeks an order deeming the truth of all matters specified in his requests for admissions, set one, propounded on defendant Morgan. Plaintiff also seeks monetary sanctions in the amount of $2,145.00. I. Legal Authority Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), if a party fails to serve a timely response to requests for admission, the requesting party may move for an order that the genuineness of any documents and the truth of any matter specified in the request be deemed admitted, as well as for monetary sanctions. Code of Civil Procedure section 2033.280, subdivision (c) requires the court to make this order “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” II. Discussion Page 2 of 3 Pursuant to the Discovery Act, the court shall order the requests for admission as admitted unless code-compliant responses are served before the hearing. (Code of Civ. Proc. § 2033.280, subd. (c).) Plaintiff served requests for admissions, set one on April 5, 2024, via electronic service, on defendant. (Ex. 2 to Dec. of U. Singh.) Defendant failed to respond to the requests and has not communicated with plaintiff’s counsel regarding the requests. (Dec. of U. Singh at ¶ 8.) The court deems admitted all matters specified in requests for admissions, set one, attached to the Declaration of Mr. Singh as Ex. 2. (Code Civ. Proc. § 2033.280, subd. (b).) This will be the order of the court unless defendant serves, before the hearing on the motion, a proposed response to the requests for admissions that is in substantial compliance with Code of Civil Procedure section 2033.220. The court imposes monetary sanctions against defendant Morgan in the amount of $1,195.00, payable no later than July 31, 2024. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed.

Case Number: 23SMCV04014 Hearing Date: July 11, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 20 5 ADAM J. TENSER , Plaintiff, v. ROBERT JOSHUA RYAN, et al. , Defendant s . Case No.: 2 3 SMCV0 4014 Hearing Date: July 11 , 202 4 [ TENTATIVE] ORDER RE: DEFENDANT CATHERINE TOWNSENDS SPECIAL MOTION TO STRIKE FIRST AMENDED COMPLAINT (CODE OF CIVIL PROCEDURE 425.16) BACKGROUND This is a slander case . Plaintiff Adam Tenser is an entertainment lawyer . ( First Amended Complaint ( F AC) ¶ 15.) He did transactional work for Blake Leibel . ( Id. ) Leibel was arrested and later convicted of the gruesome murder of his girlfriend who was mutilated and drained of blood . ( Id. ) While attending Leibels trial, Tenser was accused of stalking a juror . The juror was frightened and was relieved of jury duty by stipulation of counsel . ( Id. ¶ 22 .) The Court said: I dont want anyone following jurors, and juror #9 responded: I really dont think he was following me, Im paranoid now. ( Id. ) Defendant Catherine Townsend is a journalist and hosts a weekly podcast called Blood Money that covers true crimes . ( Id. ¶ 2 5 ; Townsend Decl. ¶10 .) Townsend reported on the Liebel trial, and as relevant here, stated that During the trial ... weird things started to happen . A juror went to the judge Mark Windham and said that she had been followed by a guy she recognized . She claimed that she was being stalked by Jeremy Tenser, Blakes friend . The judge said QUOTE: This juror was so frightened by the behavior that she described that this court was forced to relieve her . END QUOTE . Now Jeremy Tenser completely denied this; he said that this charge was ridiculous but the judge ended up banning Jeremy from the rest of the trial . The juror was so freaked out that she had to be replaced. (Ex. 2 to Townsend Decl.) The podcast aired on November 3, 2022 . ( Id. ; F AC ¶ 2 5 ) Tenser argues that the foregoing was slander because Townsend failed to report the jurors statement that: I really dont think he was following me, Im paranoid now. ( F AC ¶ 27 .) Tenser brings a single claim for defamation /slander per se against Townsend . This hearing is on Townsends special motion to strike the FAC pursuant to Code Civ. Proc. §425.16(e ) . Townsend argues that Tensers claims against her arise from protected activity, as statements in her podcast were speech in connection with a public issue or an issue of public interest . Townsend further contends the re is no probability that Tensers claims will prevail because her statements are protected by the fair report privilege , and the claims fail to allege the required element of actual malice . There was no opposition filed as of the posting of this tentative ruling . LEGAL STANDARD Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged . Second, for each claim that does arise from protected activity, the plaintiff must show the claim has at least minimal merit. If the plaintiff cannot make this showing, the court will strike the claim. ( Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009. ) DISCUSSION First Prong On the first prong, courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability . The defendant s burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. ( Bonni , 11 Cal.5th at 1009. ) A defendant need only make a prima facie showing at this stage. ( Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 10351036. ) To make a showing under the first prong, the moving defendant must demonstrate that the alleged conduct underlying each cause of action fits one of the categories spelled out in § 425.16 subdivision (e) . ( Nevallier v. Sletten (2002) 29 Cal.4 th 82, 88.) Townsend contends her podcast falls within two categories : S ubd. (e)(3) protects statements made in a place open to the public or a public forum in connection with an issue of public interest. Subd. (e)(4) applies to conduct in furtherance of the exercise of & the constitutional right of free speech in connection with a publi c issue or an issue of public interest. To fall within the scope of subdivision (e)(3) and (4) of the anti-SLAPP statute, a defendant must establish: (1) that the challenged statement or conduct implicates a public issue or a matter of public interest; and (2) that the speech or conduct was made in connection with a public issue or a matter of public interest. ( See § 425.16, subd. (e)(3) ( 4) ; see also FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149 .) To determine whether challenged speech or other conduct involves a public issue or a matter of public interest, courts look to whether the subject of the speech or activity was a person or entity in the public eye or could affect large numbers of people beyond the direct participants; and whether the activity occur[red] in the context of an ongoing controversy, dispute or discussion[.] ( Id. at pp. 145146 .) As to the second (in connection with) requirement, t he California Supreme Court recently articulated a two-part test to determine whether speech or conduct was made in connection with an issue of public interest. ( FilmOn , 7 Cal.5th at 149 .) First, we ask what public issue or & issue of public interest the speech in question implicatesa question we answer by looking to the content of the speech . Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. ( Id. at pp. 149150 .) The second part of this test address[es] the specific nature of [the defendant s] speech and its relationship to the matters of public interest. ( Id. at 152 .) Here, Defendants podcast involved a public issue or a matter of public interest , namely, the murder trial of Leibel which was widely publicized due to the violent nature of the murder and Leibels celebrity as a graphic novelist . The subject of the speech was a person who was already in the public eye -- Tenser had given an in depth interview to the Hollywood Reporter magazine about Leibel on December 8, 2017 (Townsend Decl. ¶14) , well before Townsends podcast aired on November 3, 2022 . Tenser was also the subject of a National Post article describing his conduct at the Leibel trial, including that he had been thrown out of the murder trial for allegedly tailing a juror to his car . (Townsend Decl. ¶ 15; Ex. 4 to Townsend Decl.) The article was published on June 18, 2018, more than four years before Townsends podcast aired . ( Id. ) Further, the speech occurred in the context of an ongoing public controversy about a notorious murder trial . ( See D.C. v. R.R. (2010) 182 Cal.App.4 th 1190, 1215 (in general, a public issue is implicated if the subject of the statement underlying the claim was a person in the public eye or was part of an ongoing controversy ).) Indeed, every statement in the podcast relating to T enser had already been widely reported by other news sources and in court records . (Townsend Decl. ¶13.) The podcast was also made in connection with a public issue . It contributed to and furthered public conversation on the crimes committed by white collar criminals. Even assuming it is not serious news, it is still speech in connection with a public issue . ( See e.g. , Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 808-810 (discussion of a reality show contestant was protected by the anti-SLAPP statute ; the in connection with requirement, like all of section 425.16 , is to be construed broadly so as to encourage participation by all segments of our society in vigorous public debate related to issues of public interest ).) Finally, the po d cast was made in a public online forum . Online forums are open to the public where information is freely exchanged. ( ComputerXpress Inc. v. Jackson (2001) 93 Cal.App.4 th 993, 1007 (website that organized a chat room where public was free to post messages was a public forum) .) Online forums are considered public forums within the meaning of the anti-SLAPP law . ( Barrett v. Rosenthal (2006) 40 Cal.4 th 33, 41 fn. 4; Traditional Cat Assn. Inc. v . Gilbreath (2004) 118 Cal.App.4 th 392, 397.) Accordingly , because Tensers claims arise from Townsends podcast, a protected activity, the Court concludes Townsend has met the first prong, and the burden shifts to Tenser . Second Prong Standard of Review Once a defendant demonstrates that protected conduct is at issue, the plaintiff must show that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited . ( See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89. ) Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant s evidence only to determine if it defeats the plaintiff s submission as a matter of law. Only a cause of action that lacks even minimal merit constitutes SLAPP. ( Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699. ) The SLAPP statute s second element- - a probability of prevailing- - means a reasonable probability of prevailing, not prevailing by a preponderance of the evidence . For this reason, a court must apply a summary-judgment-like test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant s evidence only to determine whether the defendant has defeated the plaintiff's evidence as a matter of law. ( Gerbosi v. Gaims , Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444. ) Here, by failing to file an opposition, Plaintiff has not met his burden to show his claims have minimal merit . Even if he had, the Court concludes Plaintiff cannot show he has a reasonable probability of prevailing, for reasons set forth below . Second Prong Fair Report Privilege Townsend argues Defendants claims fail because her podcast is protec ted by the fair report privilege . The Court agrees. Civil Code section 47 (d) makes privileged a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued. ( Civ. Code, § 47, subd. (d) .) The party invoking the privilege bears the burden of proving the privilege applies. ( Carver v. Bonds (2005 ) 135 Cal.App.4th 328, 348-349 ; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 109 ; Burrill v. Nair (2013) 217 Cal.App.4th 357, 396 .) The fair report privilege has been construed broadly . ( Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 240, 83 Cal. Rptr . 2d 677 .) For section 47(d) to apply, the report need only have some connection or logical relation to the proceedings, a lenient standard that is more lax than the concept of relevancy itself. ( McClatchy Newsps . v . Superior Court (1987) 189 Cal.App.3d 961, 972- 74.) The privilege carries with it a certain amount of literary license . The reporter is not bound by the straitjacket of the [reports] exact words. (Id. at 975-76.) Instead, a repor t is absolutely protected if it captures the substance, the gist [or] the sting of the court record or proceeding . ( Sipple , 71 Cal.App.4 th at 244.) The privilege does not depend on whether each statement is expressly attributed to an official record . Consistent with this broad construction, Section 47(d) shields news reports that present a history of [a] proceeding, including not only court records but also related interviews . ( Hayward v. Watsonville Register- Pajaronian and Sun (1968) 265 Cal.App.2d 255, 260-61.) This application reflects the principl e that the privilege must ensure a certain amount of breathing room for newspapers to explain the basis of a judicial proceeding without at the same time opening themselves up to exposure for defamation liability. ( Dorsey v. National Enquirer ( 1992) 973 F.2d 1431, 1437.) Here, the podcast fairly reported on the fact that the judge had to dismiss a juror who believed he may have been followed by Tenser . W hile the juror may have later equivocated as to whether Tenser was following him , this does not alter the gist of the jurors earlier complaint . Nor does it alter the fact that Tenser was in fact banned from the trial by the Court who apparently credited the jurors first account that Tenser was following him . In sum, Townsends statements fall within the broad scope of the fair report privilege . Second Prong-Actual Malice Townsend argues that Tenser must show (but cannot) actual malice as to all his claims, as he is a limited public figu re . The Court agrees . The concepts of public figure and actual malice normally arise in th e context of a defamation action . However, non-defamation claims brought by public figure plaintiffs also require a showing of actual malice . ( Balla , 59 Cal.App.5 th at 687 (requiring proof of actual malice to a false light claim); Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 240 (requiring proof of actual malice not only for defamation claim but also for false light invasion of privacy and intentional infliction of emotional distress claims).) Where the plaintiff is a limited public figure, he must prove that the defendant made the slanderous statement with actual malice. ( Balla v. Hall (2021) 59 Cal.App.5th 652, 675 .) A lim ited public figure is one who voluntarily injects herself into a public controversy and thereby becomes a public figure for a limited range of issues . ( Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351-52.) To qualify as a limited purpose public figure, a plaintiff must have undertaken some voluntary [affirmative] act[ion] through which he seeks to influence the resolution of the public issues involved." ( Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 254 .) Whether or not one is a limited public figure is a question of law for courts to decide . ( Id . at p. 252.) Here, Tenser made himself a limited public figure by voluntarily injecting himself into coverage over the Leibel murder . Tenser gave an in-depth interview to the Hollywood Reporter where he posited what caused his friend, Leibel, to murder his girlfriend . (Ex. 3 to Townsend Decl.) Tensers actions at the trial were also the subject of news coverage, including by the National Post . (Ex. 4 to Townsend Decl. , Townsend Decl. ¶13. ) As a limited public figure, Tenser was required to plead and must show by clear and convincing evidence that Townsend acted with actual malice . ( Rosenaur v. Scherer (2001) 88 Cal.App.4 th 260, 2 74.) I n addressing the issue whether plaintiff has demonstrated the existence of a prima facie case, we [must] bear in mind the higher clear and convincing standard of proof. ( Id. ) A def e ndant acts with actual malice when publishing a knowingly false statement or where s he entertained serious doubts as to [its] truth. ( Reader's Digest, 37 Cal.3d at 256 .) A plaintiff must plead and prove evidence of actual doubt concerning the truth of the publication. ( Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 184 (emphasis in original).) Here, Tenser has not pled clear and convincing evidence demonstrating actual malice . Tenser has only identified one allegedly false statement that he stalked a juror -- but he has not pled facts which would show Townsend had serious doubts as to the truth of this statement . Indeed, Townsend did not state one way or another that this account was true . She in fact qualified the statement with the following: Now Jeremy Tenser complied denied this; he said that this charge was ridiculous [.] Accordingly , on this additional basis, the Court grants the special motion to strike as to all of Tensers claims against Townsend . Because the Court concludes Tensers claims are protected by the fair report privilege and also fail to allege an essential element of actual malice, the Court does not consider other claim-specific grounds raised by Townsend for granting the special motion to strike . CONCLUSION For the foregoing reasons, the Court GRANTS Defendant Catherine Townsend s special motion to strike Plaintiffs first amended complaint . DATED: July 11 , 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Case Number: 24SMCV01057 Hearing Date: July 10, 2024 Dept: M City of Santa Monica v. Colonial Manor et al., 24SMCV01057 Background On April 25, 2024, the parties stipulated in this matter and the related matter, 24SMUD00651, Colonial Manor v. Reyes, to have the Court resolve the legal issue of whether Santa Monica Rent Control Charter Amendment (SMRCC) Section 1806(c) and other ordinances permit Colonial Manor to raise the rent to the market rate under the agreed upon factual circumstances of the case. (4/25/24 Order.) On July 6, 2024, the parties submitted their Stipulated Facts for the July 10, 2024, Non-Jury Trial on Rent Increase Validity. The specific issue to be addressed is whether Colonial Manor had the right to impose an unlimited rent increase for a unit that was occupied by the spouse of the original occupant who is now deceased. Colonial Manor contends that when the original occupant(s) vacate a unit, the landlord can raise the rent on everyone else. Colonials interpretation of the statute relies upon the language in Civil Code section 1954.53(d)(2) permitting an owner to increase rent to a lawful sublessee or assignee when the original occupant(s) are no longer permanently residing there. If Mrs. Reyes falls within that category, then the Costa-Hawkins Rental Housing Act preempts the local Santa Monica rent control ordinance preventing Colonial from raising the rent. Therefore, the Court must interpret the terms sublessee and assignee as used in section 1954.53, as well as the term original occupant. Does Section 1954.53(d)(2) Apply to the Facts of this Case The effect of the Costa-Hawkins Rental Housing Act provision allowing residential landlords to establish the initial rental rate for a dwelling or unit is to permit landlords to impose whatever rent they choose at the commencement of a tenancy. ( Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232.) The term occupant is not limited to a party to the rental agreement, but rather applies to any individual who has resided in the dwelling from the start of a tenancy, with the landlord's permission. ( Mosser Companies v. San Francisco Rent Stabilization & Arb. Bd. , (2015) 233 Cal. App. 4th 505, 512 [city rent control protections applied to tenants' sons occupancy because he was an original occupant that continuously resided at the Unit pursuant to the original lease even after the sons parents had moved out]; Cobb v. San Francisco Residential Rent Stabilization and Arbitration Bd. (2002) 98 Cal.App.4th 345 [landlord did not have authority to increase tenant's rent where tenant occupied apartment before effective day of rent increase, tenant was not assignee or sublessee of previous tenant, and landlord negotiated prior rent increase with tenant, and demanded prompt payment of rent].) Civil Code section 1954.53(d)(2) authorizes unlimited rent increases only when the occupants that remain are sublessee[s] or assignee[s] of the previous tenant. The Court concludes that the terms sublessee or assignee was not an attempt to refer to all persons still occupying a unit after the original occupants. The use of the term occupant in the same subsection suggests that the legislature was intending to use the more specific meanings behind sublessee and assignee, as opposed to non-original occupants. ( See In re M.A. , (2022) 83 Cal. App. 5 th 143, 150 (when different terms are used in part of same statutory scheme, they are presumed to have different meanings.) The statute can be fairly read to narrowly permit rent increases only to a sublessee or assignee who occupied a unit after January 1, 1996, and where the original occupants have vacated. Thus, if the individual is not a sublessee or assignee, the provisions would not apply even if the original occupants have vacated. This conclusion is supported by the remaining sections of Civil Code section 1954.53. Section 1954.53 subsection (d)(1)-(4) all refer to subletting. For example, subsection (d)(1) states that the Act does not preclude express agreements in leases establishing rent for sublessees. ((d)(1) Nothing in this section or any other provision of law shall be construed to preclude express establishment in a lease or rental agreement of the rental rates to be applicable in the event the rental unit subject thereto is sublet&) (d)(3) provides the subdivision does not apply to partial changes in occupancy of a dwelling or unit where one or more of the occupants of the premises& remains an occupant in lawful possession of the dwelling or unit (emphasis added). As discussed below, this case could be considered a partial change in occupancy referred to in (d)(3), which demonstrates a recognition of the type of situation presented here . Furthermore, subsection (d)(4) also recognizes that nothing in the section prohibits a covenant against sublease or assignment, unless the owner received written notice from the tenant and accepted rent. Thus, the context of subsection (d)(2) supports the position that it is referring specifically to sublets or assignments, as opposed to any other kind of occupant whether original or not. As the caselaw explains, the purpose of this subsection was to preclude friends and family from creating subtenancies and assignments that could avoid the Costa Hawkins Act. It would not preclude an owner establishing a new, oral lease with occupants during partial changes in occupancy. Giving a strict interpretation of the terms, section 1954.53(d)(2) would not preempt Santa Monicas ordinance and allow for the 400% increase in rent. The stipulated facts admit that Vilma Reyes is not an assignee or subtenant. Milton Reyes lived at the Unit as a tenant until his death on September 8, 2023. (Stipulated Fact (SF) 2.) Defendant, Mrs. Reyes, moved into the Unit in about February 2021. (SF 4, 5.) The couple got married in February 2022. (SF 3.) Mrs. Reyes never paid Milton Reyes rent. (SF 6.) Mrs. Reyes also never entered into any written, verbal, or implied agreement for Mr. Reyes to assign or transfer his tenancy rights to the Rental Unit. (SF 7.) Thus, it is undisputed that she never paid rent to, or entered into an assignment with, her husband. Furthermore, Mrs. Reyes persuasively argues that a marital relationship cannot create a common law subtenancy between husband and wife. As such, the Court concludes that Vilma Reyes is neither a subtenant or assignee of Milton Reyes and Costa Hawkins does not authorize a rental increase that would violate SMRCC law. Alternatively, Mrs. Reyes would still be protected from the rent increase as a tenant. A landlord and new occupant may informally create a tenancy. It is well established that a tenancy need not be created by a lease, but may be created by occupancy by consent. ( Miller v. Elite Ins. Co. , (1980) 100 Cal. App. 3d 739, 750; see also Parkmerced Co. v. San Francisco Rent Stabilization & Arbitration Bd. , (1989) 215 Cal. App. 3d 490, 494-95.) Family members and friends who subsequently move into the apartment are not protected unless the landlord consents to the occupancy and accepts rent from the new occupant, thus creating a new tenancy. Here, the evidence before the Court set forth in the stipulated facts is that Colonial Manor explicitly, implicitly, or by operation of law, created a new tenancy with Mrs. Reyes. Once married in 2022, Mrs. Reyes can be considered to have owed and paid rent to Colonial Manor based upon her husbands rental payments. Mrs. Reyes did not owe a duty to pay rent to her husband but did owe an obligation to Landlord to pay the rent owed to it by her husband. (Family Code § 914(a)(1).) Since Plaintiff accepted this rent from Mr. Reyes and his spouse (the new occupant), a new tenancy would have been created so long as the landlord was aware that Mrs. Reyes was occupying the unit. There is no evidence that Colonial Manor was not aware of Mrs. Reyes occupying the Unit. In fact, the evidence points to the opposite conclusion since Colonial Manor sent her the notice of the rent increase immediately after her husband died. Therefore, as an alternative to concluding that section 1954.53(d)(2) is inapplicable, the Court would conclude that Colonial Manor and Mrs. Reyes created a new tenancy in 2021 or February 2022, which pursuant to the terms of the December 2022 notice, was at a rental rate of $666.00, including all surcharges. (SF 9.) As stated, there is no evidence that Colonial Manor did not know the Reyes were married, and that Vilma Reyes was residing with Milton Reyes at the Unit. By accepting rent from Milton Reyes, Colonial Manor was accepting rent from husband and wife. Furthermore, the Courts ruling would fulfill the purpose behind the Costa Hawkins Act. As the legislative history makes clear, t he Costa-Hawkins Act establishes vacancy decontrol for residential dwelling units where the former tenant has voluntarily vacated, abandoned or been legally evicted. (Legis. Analyst, analysis of Assem. Bill No. 1164 (1995-1996 Reg. Sess.) p. 2.) It was not intended to be used to evict or raise rental rates on a surviving spouse, who was not part of the initial lease agreement.

Case Number: 20STCV38569 Hearing Date: July 11, 2024 Dept: 28 Having considered the moving papers, the Court rules as follows. BACKGROUND On October 7, 2020, Plaintiff Janice Michelle Supe (Plaintiff) filed this action against Defendants City of Los Angeles (City), County of Los Angeles (County), and Does 1-50 for general negligence and premises liability. On May 6, 2022, Plaintiff filed a first amended complaint against the City, the County, and Does 1-50 for premises liability. On June 10, 2022, the City filed an answer and a cross-complaint against Cross-Defendants Roes 1-10 for indemnification, apportionment of fault, and declaratory relief. On August 10, 2022, the Court dismissed the County without prejudice at Plaintiffs request. On June 27, 2023, the City amended its cross-complaint to include Cross-Defendant Montshire, LLC as Roe 1 (Montshire). On December 15, 2023, Montshire filed an answer to the cross-complaint. On June 20, 2024, Montshire filed an application for pro hac vice admission of Daniel R. Sarther to be heard on July 11, 2024. Trial is currently set for November 13, 2024. PARTYS REQUEST Montshire asks the Court to admit Daniel R. Sarther pro hac vice. LEGAL STANDARD A person who is not a licensee of the State Bar of California but who is an attorney in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States, and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active licensee of the State Bar of California is associated as attorney of record. No person is eligible to appear as counsel pro hac vice under this rule if the person is: (1) A resident of the State of California; (2) Regularly employed in the State of California; or (3) Regularly engaged in substantial business, professional, or other activities in the State of California. (Cal. Rules of Court, rule 9.40(a).) Absent special circumstances, repeated appearances by any person under this rule is a cause for denial of an application. (Cal. Rules of Court, rule 9.40(b).) A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office. The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed a shorter period. (Cal. Rules of Court, rule 9.40(c)(1).) The application must state: (1) The applicant's residence and office address; (2) The courts to which the applicant has been admitted to practice and the dates of admission; (3) That the applicant is a licensee in good standing in those courts; (4) That the applicant is not currently suspended or disbarred in any court; (5) The title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) The name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record. (Cal. Rules of Court, rule 9.40(d.) The applicant must also pay a fee to the State Bar. (Cal. Rules of Court, rule 9.40(e).) DISCUSSION Montshires application for pro hac vice admission of Daniel R. Sarther satisfies the requirements of California Rules of Court, rule 9.40. The Court grants the application. CONCLUSION The Court GRANTS Cross-Defendant Montshire, LLCs application for pro hac vice admission of Daniel R. Sarther. Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling with the Court within five days.

CASE NUMBER: 21STCV30905 MOTION FOR TERMINATING SANCTIONS (CCP §§ 2023.010, et seq.) TENTATIVE RULING : Defendant CDC Madison Lomita LLCs Motion for Terminating Sanctions is GRANTED. Plaintiff Eva Mayess First Amended Complaint is dismissed with prejudice. Defendants request for monetary sanctions is also GRANTED in the amount of $2,678.23, to be paid by Plaintiff Eva Mayes within thirty (30) days of the Courts Order. ANALYSIS: I. Background On August 20, 2021, Plaintiff Eva Mayes (Mayes) filed an action against Defendants The Regents of the University of California (Regents) and UCLA Sky Park Medical Facility (Sky Park) (collectively Defendants) for general negligence and premises liability. On November 4, 2022, Plaintiff amended the Complaint to add CDC Madison Lomita LLC (CDC) as Defendant Doe 1. On June 16, 2023, following stipulation of the parties, Plaintiff filed the First Amended Complaint against Defendants Regents and CDC. Plaintiff alleges that on December 16, 2019, she sustained serious injuries on the premises owned, possessed, worked upon, managed, supervised, operated, maintained, or controlled by Defendants as a result of the negligent placement of a stanchion outside of the elevator. On July 31, 2023, Defendants Regents and CDC filed a Cross-Complaint against Roes 1 through 25 for equitable indemnity, contribution/apportionment of fault, declaratory relief, breach of contract, and express indemnity. On November 21, 2023, pursuant to Plaintiffs Request for Dismissal, the Court dismissed Defendant Regents without prejudice. On March 25, 2024, Defendant CDC filed the instant Motion for Terminating Sanctions and Request for Monetary Sanctions (Motion). No opposition has been filed. On July 2, 2024, Defendant filed a Notice of Non-Opposition to the Motion. On June 7, 2024, the matter was assigned to Judge Karen Moskowitz in Department B of the Van Nuys Courthouse East. II. Legal Standard Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010(d), (g), 2023.030; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) Code of Civil Procedure § 2030.040 requires that [a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. Furthermore, the notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. (Code of Civ. Proc. § 2030.040.) Monetary sanctions may be imposed ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct&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 of Civ. Proc. § 2030.030(a).) Issue sanctions may be imposed ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses. (Code of Civ. Proc. § 2030.030(b).) Evidence sanctions may be imposed by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code of Civ. Proc. § 2030.030(c).) In more extreme cases, the Court may also impose terminating sanctions by striking out the pleadings or parts of the pleadings, staying further proceedings, dismissing the action, or any part of the action, or rending a judgment by default against the party misusing the discovery process. (Code of Civ. Proc. § 2030.030(d).) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. ( Lang v. Hochman (2000) 77¿Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. ( Van Sickle v. Gilbert (2011) 196¿Cal.App.4th 1495, 1516.) [A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith. ( Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure [citations], a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. ( Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604-605.) In City of Los Angeles v. PricewaterhouseCoopers, LLC , the Court ruled that Code of Civil Procedure §§ 2023.010 and 2023.030 list the available discovery sanctions but do not independently authorize a court to impose specific sanctions. ( PriceewaterhouseCoopers (2022) 84 Cal.App.5th 466, 503-504.) Thus, a courts authority to impose the sanctions specified in §§ 2023.010 and 2023.030 must arise from a statute governing a particular method of discovery. ( Ibid. ) III. Discussion Defendant CDC moves for terminating sanctions against Plaintiff Mayes and for dismissal of the Complaint with prejudice. (Mot. pp. 1-2.) Defendant also moves for an order imposing monetary sanctions in the amount of $5,428.23 against Plaintiff. ( Ibid. ) Defendant states that Plaintiff has failed to appear at seven (7) properly noticed depositions. (Braun Decl. ¶¶ 2, 8-13, 15-16, Exs. A-I.) On November 17, 2023, after Plaintiff failed to appear at a deposition for the sixth time, Defendant Filed a Motion to Compel Plaintiffs Deposition. The Court granted Defendants Motion on December 15, 2023, and ordered Plaintiff to appear at a mutually agreed upon date and to pay monetary sanctions in the amount of $1,132.36. Sanctions were paid and the following deposition was set for February 6, 2024. (Braun Decl. ¶ 5, Ex. H.) On the day of the deposition, Plaintiffs counsel informed Defendant that she would not be attending the deposition. ( Ibid. at ¶ 6.) Defendant recorded a Certificate of Non-Appearance. ( Ibid. , Ex. I.) The Court notes that on March 28, 2024, the Court granted Plaintiffs counsels Motion to Be Relieved as Counsel and to date, the Court has been informed that Plaintiff has not retained a new representative. Defendant also requests monetary sanctions in the amount of $5,428.23 as follows: 10 hours of attorney time, billed at a rate of $500 per hour (6.5 hours for preparing the instant Motion, 0.5 hour spent at the February 6, 2024, deposition, additional 2 hours anticipated for reviewing Plaintiffs opposition and preparing a reply, and 1.5 hours to attend the hearing), $341.23 in Court reporter fees for the final deposition, $15 for CourtCall, $60 in motion filing fees, $12 for e-filing fees. (Braun Decl. ¶¶ 17-20.) Defendant argues that Plaintiff has a pattern and practice of constant delays by failing to participate in the discovery process even to the point of defying a Court Order to appear for her deposition. (Mot. p. 4.) Although Plaintiff has been sanctioned by the Court, she has continued to fail to comply with the discovery process and the Courts order. ( Ibid. ) These delays have substantially interfered with Defendants ability to litigate and defend against Plaintiffs claims. ( Ibid. p. 5.) Defendant also argues that terminating sanctions are appropriate because Plaintiffs violation has been willful, demonstrated a history of abuse, and less severe sanctions have not been effective. ( Ibid. at p. 6.) First, the Court notes that the Notices of Taking Deposition for the following dates were issued solely by Defendant Regents, which has since been dismissed from the case: September 27 and December 19, 2022, and April 17 and June 27, 2023. (Braun Decl. ¶¶ 8-11, Exs. A-D.) On December 15, 2023, the Court noted that there was no evidence that Plaintiff has served any valid objections to the deposition notices and granted Defendants Motion to Compel Plaintiffs Deposition. (12-15-23 Minute Order.) Code of Civil Procedure § 2025.450 governs the imposition of sanctions when a party fails to obey a Court order compelling attendance, testimony, and production at a noticed deposition. According to § 2025.450(h), The court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010) against that party deponent or against the party with whom the deponent is affiliated. In lieu of, or in addition to, this sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that deponent or against the party with whom that party deponent is affiliated, and in favor of any party who, in person or by attorney, attended in the expectation that the deponents testimony would be taken pursuant to that order. Pursuant to this section, the Court has authority to impose any of the sanctions specified in § 2030.030. In determining whether terminating sanctions are appropriate in the instant case, the Court considers the totality of the circumstances, including whether there has been a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. Here, the Court finds that Defendant has presented sufficient evidence to support its request for terminating sanctions. Plaintiff has failed to attend several noticed depositions and failed to comply with the Courts December 15, 2024 Order. Furthermore, monetary sanctions have not been effective in promoting compliance with the Courts order and there is a pattern of discovery abuse. The Motion is unopposed, and Plaintiff has not demonstrated any justification for her failure to comply with discovery. The Court also finds that $2,678.23 in monetary sanctions are appropriate, as follows: 4.5 hours of attorney time for preparing the Motion, attending the final deposition, and appearing at the hearing on the instant Motion, at $500 per hour, as well as $341.23 in Court reporter fees, $15 for CourtCall, $60 in motion filing fees, and $12 for e-filing fees. Accordingly, Defendants Motion for Terminating Sanctions is GRANTED. Defendants request for monetary sanctions is also GRANTED in the amount of $2,678.23. IV. Conclusion & Order For the foregoing reasons, Defendant CDC Madison Lomita LLCs Motion for Terminating Sanctions is GRANTED. Plaintiff Eva Mayess First Amended Complaint is dismissed with prejudice. Defendants request for monetary sanctions is also GRANTED in the amount of $2,678.23, to be paid by Plaintiff Eva Mayes within thirty (30) days of the Courts Order. Moving parties are ordered to give notice.

Case Number: 19STLC05734 Hearing Date: July 11, 2024 Dept: 26 State Farm v. Tomakili, et al. MOTION TO VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION (CCP § 664.6) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS. ANALYSIS: On June 14, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed this subrogation action against Defendant Olutoyin Ola Tomakili (Defendant). Defendant filed an answer on August 16, 2019. On October 26, 2022, Plaintiff filed a copy of the parties settlement agreement with a request for dismissal and retention of jurisdiction under Code of Civil Procedure section 664.6. The Court dismissed the action pursuant to the stipulation on November 15, 2022. (Order for Dismissal, 11/15/22.) On April 17, 2024, Plaintiff filed the instant Motion to Vacate Dismissal, Enforce Settlement, and Enter Judgment. To date, no opposition has been filed. Legal Standard The instant motion is brought under Code of Civil Procedure, section 664.6, which states in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Prior to January 1, 2021, parties under section 664.6 meant the litigants themselves, not their attorneys. ( Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) The current statute provides that parties includes an attorney who represents the party and an insurers agent. (Code Civ. Proc., § 664.6, subd. (b).) The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. ( J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.) The settlement agreement complies with the statutory requirements set forth above because it was signed by both parties and their attorneys. (Motion, Reese Decl., Exh. A, pp. 2-3.) Furthermore, the request for retention of jurisdiction must be made in writing, by the parties, before the action is dismissed for the Courts retention of jurisdiction to conform to the statutory language. ( Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.].) The parties request for retention of jurisdiction complies with these requirements because it was made in writing to the Court before the action was dismissed. (Motion, Reese Decl., Exh. A, ¶3.) The settlement provides that Defendant would pay Plaintiff $12,400.00 through an initial payment from Defendants insurer of $10,000.0, followed by Defendants monthly payments starting on September 1, 2022. ( Id . at Exh. A, ¶2.) The settlement agreement also provides that upon Defendants default, Plaintiff may seek judgment in the settlement amount, plus costs not to exceed $500.00, less any monies paid. ( Id . at ¶3.) Payments of $11,100.00 were made towards the settlement, after which Defendant defaulted. ( Id . at ¶¶4-5 and Exh. C.) Based on the foregoing, Plaintiff is entitled to entry of judgment against Defendant in the amount of $1,300.00 principal ($12,400.00 - $11,100.00) plus costs of $500.00. ( Id . at ¶8.) Conclusion Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS. Moving party to give notice.

CASE BACKGROUND On October 11, 2022, Plaintiffs Dong Yoong Kwak (“Kwak”) and Laura Nomura (“Nomura”) (collectively, “Plaintiffs”) filed this motor vehicle personal injury case based on a motor vehicle accident that occurred on July 27, 2020. The Hon. Judge Charlie Hill sustained Defendant’s demurrer to the original complaint based on statute of limitations grounds on August 29, 2023 with 20 days leave to amend. Plaintiffs subsequently filed their first amended complaint (“FAC”), also a form complaint, on September 18, 2023 nearly identical to the original complaint but containing an attachment with pre-filing case history and allegations, including a reference to an arbitration hearing from Arbitrations Forums, Inc., No. A2100B85A8C-C1-D1. Judge Hill sustained Defendant’s demurrer to the FAC on statute of limitations grounds with 20 days leave to amend on February 23, 2024. Plaintiffs subsequently filed their non-Judicial Council second amended complaint (“SAC”) on March 14, 2024 alleging a single cause of action for negligence. At issue today is Defendant’s demurrer to the SAC, again based on statute of limitations grounds. Defendant filed a Meet and Confer declaration from defense attorney Emily Corea (“Corea”). 2 Plaintiffs filed an opposition along with a request for judicial notice; Defendant replies. DISCUSSION Meet and Confer Effort Before filing a demurrer, the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading for purposes of “determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) This meet and confer applies to amended pleadings as well as originals. (Code Civ. Proc., § 430.41, subd. (a).) The meet and confer shall occur at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) If there is no resolution, the demurring party shall submit a declaration with the demurrer stating either (a) the means in which the parties met and conferred and that no resolution was reached, or (b) the opposing party failed to respond to the demurring party’s meet and confer requests or failed to meet and confer in good faith. (Code Civ. Proc., § 430.41, subd. (a)(3).) Defense counsel Corea declares that she spoke with opposing counsel on March 27, 2024, who stated that he would not agree to dismiss the case based on the statute of limitations expiring. (Corea Decl., ¶ 4.) The Court finds that a sufficient meet and confer occurred. Request for Judicial Notice Pursuant to Evidence Code sections 451, 452, and 453, Plaintiffs request the court take judicial notice of the same two documents it requested judicial notice of with their opposition to Defendant’s demurrer to their FAC: 1. The docket for San Bernardino Superior Court small claims case No. SCVA2100957. (Request for Judicial Notice, Exh. 1.) 3 2. The May 3, 2021 arbitration decision (“the arbitration decision”) issued by Arbitration Forums, Inc. (Request for Judicial Notice, Exh. 2.) Judicial notice may be taken of records of any court of this state. (Evid. Code § 452, subd. (d).) Therefore, the court GRANTS Plaintiffs’ unopposed request for judicial notice of Exhibit 1. In regards to the document described by Plaintiffs’ counsel as “a true and correct copy” of the May 3, 2021 arbitration decision attached as Exhibit 2, Plaintiffs have only provided pages 2 and 3 of the arbitration decision. Plaintiffs previously attached all three pages of the same arbitration decision as Exhibit 2 to the SAC and to Plaintiffs’ previous request for judicial notice in support of its opposition to Defendant’s demurrer to the FAC. The reason for the omission of the first page of the decision at this point in the litigation is unknown. However, it should be noted that the missing first page clearly lists the names of the parties who participated in the intercompany arbitration, which, as will be discussed in more detail, did not include Defendant Fernando Suarez. Furthermore, as all three pages of the arbitration decision were attached as an exhibit to the SAC, this request is duplicative and irrelevant. Therefore, the court DENIES Plaintiffs’ request for judicial notice of Exhibit 2 as duplicative/irrelevant and incomplete. Any references to the May 3, 2021 arbitration decision in this memo refer to the complete document attached as Exhibit 2 to the SAC. Statement of the Law The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As a general rule, in testing a pleading against a demurrer, the facts alleged in the pleading are deemed true, however improbable they may be. (Del E. 4 Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court assumes the truth of all material facts that have been properly pleaded, of facts that may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) All that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief. In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties.” (Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955; Michaelian v. State Compensation Insurance Fund (1996) 50 Cal.App.4th 1093, 1104-1105.) A demurrer for failure to state a cause of action should be sustained only where the facts alleged on the face of the complaint fail to state any valid claim entitling the plaintiff to relief. The plaintiff may be mistaken as to the nature of the case or the legal theory on which he or she can prevail, but if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) Statute of Limitations Personal injury negligence actions are subject to the two-year statute of limitations found in Code of Civil Procedure, section 335.1, which addresses "[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." The accident occurred on July 27, 2020 and the complaint was filed on October 11, 2022, 76 days after July 27, 2022. Analysis 5 Defendant again demurs on statute of limitations grounds, arguing that the second amended complaint is essentially the same as the original complaint and still demonstrates that Plaintiffs filed their complaint after the statute of limitations had passed. In opposition, Plaintiffs argue for the third time that their complaint was timely filed due to tolling under Emergency Rule 9. Plaintiffs additionally argue for the second time that their claims were equitably tolled due to intercompany arbitration. In reply, Defendant correctly points out that Plaintiff’s arguments and interpretation of tolling under Emergency Rule 9 were already rejected by this court at when it sustained Defendant’s demurrer to the original complaint in August 2023 and February 2024. He further argues the insurance carriers’ participation in intercompany arbitration has “nothing to do with the filing of the plaintiffs’ bodily injury lawsuit.” (Reply at p. 4:10-12.) Defendant is again correct.1 1. Plaintiff’s argument that Emergency Rule 9 tolled the statute of limitations in this case to January 23, 2023 fails Emergency Rule 9 stopped the running of the statute of limitations in this action from July 27, 2020, the date Plaintiffs’ cause of action accrued, to October 1, 2020. The time between is 66 days. To the extent Plaintiffs contend Emergency Rule 9 tolled the time for Plaintiffs to file their action from April 6, 2020 to August 27, 2020, it lacks merit because Plaintiffs’ cause of action did not exist during this period. There was thus nothing for Emergency Rule 9 to toll during this time. Plaintiffs' cause of action did not accrue until July 27, 2020, and only at that point did the limitations period stop running. The limitations period stopped running for 66 days until October 1, 2020, at which point it began to run again. (See Lantzy [v. Centex Homes (2003) 31 Cal.4th 363, 370].) The tolled interval of 66 days is then tacked onto the end of the limitations period. (Id. at 370-71; Graybar Electric Co. v. Lovinger (1947) 81 Cal.App.2d 936, 938 ["When the 1 It should be noted that Defendant’s motion and reply and Plaintiffs’ opposition are largely duplicative of previous pleadings. In some portions of his demurrer, Defendant refers to the FAC as the operative complaint instead of the SAC and left out some details regarding the Court’s ruling on the demurrer to the FAC. Because Plaintiffs responded to the demurrer on the merits, any due process concerns regarding the errors in Defendant’s demurrer have been satisfied. 6 operation of a statute of limitations is suspended for a given period of time the effect is to add an equal period to the statutory limitation."].) Consequently, because Emergency Rule 9 tolled Plaintiffs’ cause of action for 66 days, this interval was tacked onto the end of the limitations period and extended the time for Plaintiff to file this action by 66 days. (See Lantzy, supra, 31 Cal.4th at p. 370; see also Willis, supra, 48 Cal.App.5th at pp. 1120-21.) Two years after the date of the accident was Wednesday, July 27, 2022. Sixty-six days after July 27, 2022, was Saturday, October 1, 2022, with the next court day being Monday October 3, 2022. Therefore, Plaintiffs had until October 3, 2022, to file their complaint. Plaintiffs, however, did not file the complaint until Tuesday, October 11, 2022, eight days after the statute of limitations for Plaintiffs' personal injuries claims had passed. In their current opposition, Plaintiffs fail to raise any new and/or persuasive arguments regarding tolling under Emergency Rule 9. Thus, the court rejects Plaintiffs’ arguments that Emergency Rule 9 tolled the statute of limitations in this case to January 23, 2023, find that Emergency Rule 9 tolled the statute of limitations 66 days, and find that the statute of limitations in this case expired when Plaintiffs failed to file their complaint by October 3, 2022. 2. Intercompany arbitration did not equitably toll the statute of limitations In their SAC, Plaintiffs allege that Defendant negligently operated his vehicle on July 27, 2020 and struck Plaintiff Nomura, which caused a secondary collision with Plaintiff Kwak, causing multiple injuries to both plaintiffs. (SAC, ¶¶ 1, 35.) Plaintiffs allege that auto insurance companies Mercury (Defendant’s insurance carrier), USAA Insurance company (Plaintiff Kwak’s insurance carrier) and Kemper Insurance Company (Plaintiff Nomura’s insurance carrier) filed for intercompany arbitration on January 7, 2021. (SAC, ¶¶ 11, 15-16.) On May 5, 2021, “unbeknownst to Plaintiffs, an arbitrator found Defendant 100% liable for the accident. 7 Exhibit “1”(sic2).” (SAC, ¶ 20.) However, the arbitration decision itself shows that someone named Luisana Suarez was found 100% liable; indeed, Fernarndo Suarez’s name is not mentioned at all in the arbitration decision. (SAC, Exh. 2, p. 1.) Neither Plaintiffs nor Defendant have identified who Luisana Suarez is or her relationship (if any) to this case. Plaintiffs were advised that the intercompany arbitrator found in their favor in late 2021. Plaintiffs allege that they “made Mercury aware that Plaintiff intended to file suit.” (SAC, ¶¶ 23- 24.) They further allege that they provided timely notice of the claim via the initial insurance claim process, via intercompany arbitration, and “were provided notice that suit would be forthcoming since late 2021.” (SAC, ¶ 27.) They also allege that Defendant filed a small claims action against Plaintiff Nomura and her husband on May 5, 2021, which was dismissed without prejudice on June 22, 2021 when Defendant failed to appear in court. (SAC, ¶¶ 19, 21.) Plaintiffs now argue for the second time that their claims were equitably tolled 117 days from the date of the intercompany arbitration demand date on January 7, 2021 through May 3, 2021, the date of the intercompany arbitration decision. (Opp. at p. 7:2-4.) Although the minute order from February 23, 2024 does not specify all the reasons the Court previously sustained Defendant’s demurrer on statute of limitations grounds, it appears the Court has already rejected that argument. However, Plaintiffs now attempt to stretch their previously rejected argument further by asserting without authority that the present case “was under the sole jurisdiction of Arbitration Forums Inc. from the commencement of arbitration on January 7, 2021 to May 5, 2021, and by operation of law, [the statute of limitations] was tolled for an additional 118 days.” (Opp at p. 7: 1-3.) 2 Plaintiffs mistakenly labelled the May 3, 2021 arbitration decision as Exhibit 1 to the SAC; however, the arbitration decision was attached to the SAC as Exhibit 2. (SAC, Exhibits 1 and 2) 8 “Broadly speaking, the doctrine [of equitable tolling] applies “‘[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’” [Citation.] Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where administrative remedies must be exhausted before a second action can proceed; or where a first action, embarked upon in good faith, is found to be defective for some reason.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100 (“McDonald”).) “Tolling eases the pressure on parties ‘concurrently to seek redress in two separate forums with the attendant dangers of conflicting decisions on the same issue.’ [Citations.]” (Ibid.) Application of the doctrine of equitable tolling requires: 1) timely notice to the defendant in filing the first claim; 2) lack of prejudice to the defendant; and 3) reasonable and good faith conduct on the part of the plaintiff in filing the second claim. (Addison v. State of California (1978) 21 Cal.3d 313, 319 (“Addison”); Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 924 (“Collier”).) In the equitable tolling situation, the element of timely notice is not of a potential claim, it is of a plaintiff’s intention to file suit and pursue a claim. (Addison, supra, 21 Cal.3d at p. 319.) Additionally, the timely notice requirement “means that the first claim must have been filed within the statutory period.” (Collier, supra, 142 Cal.App.3d at p. 924.) For example, in McDonald, our Supreme Court held equitable tolling applied under FEHA during the period the aggrieved party’s claims were being addressed in an alternate forum. In Addison, the issue was whether the filing of an action in federal court tolled the running of the six-month limitations period under Government Code section 945.6. Plaintiff had timely filed a suit in federal court, which was later dismissed without prejudice. Plaintiff then 9 filed suit in state court. The trial court dismissed the suit as barred by the six-month statute of limitation applicable to suits against public entities. The California Supreme Court reversed and remanded after concluding the plaintiff’s timely filing in federal court tolled the limitations period under the doctrine of “equitable tolling.” In both of these cases, timely notice was found because the defendant was made aware the plaintiff was timely pursuing his or her claim under alternative remedies. However, that is not the situation here – there is no evidence that by the insurance carriers participating in arbitration to determine liability and property damage, the Defendant was put on timely notice of Plaintiffs’ intent to file a personal injury and lawsuit against him. Neither Defendant Fernando Suarez nor Plaintiffs were parties to the intercompany arbitration, as they are not “companies.3” The first page of the arbitration decision attached as Exhibit 2 to Plaintiffs’ SAC shows that the parties involved in the arbitration were insurance companies – USAA General Indemnity Co., Mercury Insurance Co., and Unitrin Preferred Insurance Co.4 Although both Plaintiffs’ names appear in the arbitration decision, Defendant Fernando Suarez’s name is absent from the entire document; instead, “Luisana Suarez” is mentioned. As such, Plaintiffs fail to prove that the intercompany arbitration qualifies as Plaintiffs’ “first claim” against Defendant Fernando Suarez, nor did they allege sufficient facts to show the intercompany arbitration put Suarez on notice of Plaintiffs’ intention to file suit against him. 3 Merriam-Webster defines “intercompany” as “occurring or existing between two or more companies.” Please see the definition of “intercompany” at: https://www.merriam- webster.com/dictionary/intercompany#:~:text=%3A%20occurring%20or%20existing%20between%20tw o%20or%20more%20companies. 4 No party has explained who “Unitrin Preferred Insurance Co.” is or their relationship to either the instant case or the arbitration. 10 Plaintiffs similarly fail to prove that they acted reasonably and in good faith in “filing a second claim.” Plaintiffs assert a somewhat confusing and conclusory argument that, even if Emergency Rule 9 did not grant them an additional 180 days of tolling (which, as already discussed, it only granted 66 days of tolling), equitable tolling based on the dates of the intercompany arbitration granted them an additional 117 days in the statute of limitations and, because they filed their complaint on October 11, 2022 with 107 days remaining under the equitable tolling doctrine, this is “prima facia (sic) reasonable and in good faith” proof that they promptly filed their lawsuit. (Opp. at p. 8:8-11.) However, the cases they cite in support of their argument all involved timely “second claims” filed subsequently to timely filed “first claims.” (See Collier, supra, 142 Cal.App.3d at pp. 924, 927 [filing a workers’ compensation claim equitably tolled the statute of limitations for filing a disability pension claim arising out of the same disabling injury]; McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88 [discussed above]; and Addison, supra 21 Cal.3d 313 [discussed above.]) As discussed above, the insurance companies’ intercompany arbitration was not a “first claim” by Plaintiffs Nomura and Kwak against Suarez – it involved only the insurance companies. Thus, Plaintiffs cannot prove their reasonable and good faith conduct in filing a “second claim,” as the instant lawsuit is actually the first claim. Plaintiffs provide no additional authority to support their argument that the intercompany arbitration between the insurance companies somehow tolls the statute of limitations for Plaintiffs to file a personal injury lawsuit and Defendant. Additionally, Plaintiffs do not provide any statutory or case law authority for their bizarre assertion contrary to settled law that “the present case” was under the sole jurisdiction of 11 Arbitration Forums Inc. between the dates intercompany arbitration commenced and concluded. Indeed, the only material they cite to in support of this claim is to an apparent Arbitration Forums, Inc.’s rule found on a website that pertains to the statute of limitations regarding counterclaims, which is irrelevant Lastly, Plaintiffs mention that Defendant filed a small claims action against Plaintiff Nomura and her husband on April 8, 2021 that was dismissed due to Defendant’s failure to appear. Plaintiffs’ argue this small claims action and the arbitration provided Defendant “ample opportunity to prosecute their claims” (Opp., p. 8:20-21) and to “obtain additional information” from Plaintiffs. They conclude that Plaintiffs’ engagement in arbitration [despite their claim in the SAC that they were not notified that an arbitration date had been set or of the arbitration decision until the summer/fall of 2021, calling into question what their “engagement” in the arbitration was] and Plaintiffs’ “forced defense against Defendant’s small claims” demonstrate that they are entitled to equitable tolling. (Opp. at p. 9:19-21.) However, they do not provide any authority to support this assertion. As Plaintiffs cannot prove two of the three requirements for equitable tolling [timely notice to the defendant in filing the first claim and reasonable and good faith conduct on the part of the plaintiff in filing the second claim], their argument fails and the court need not determine whether the defendant was prejudiced. Based on the foregoing, the court SUSTAINS Defendant’s demurrer to the FAC on statute of limitations grounds. Leave to Amend Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. 12 Kennedy (1976) 18 Cal.3d 335, 349.) "Liberality in permitting amendment is the rule; if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) This does not mean that leave to amend should always be granted. “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.) The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy, supra, 18 Cal.3d at 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, Plaintiffs request leave to amend the complaint to “include facts that will assert that Plaintiffs’ action is equitably tolled and therefore timely.” However, Plaintiffs have had two prior opportunities to amend their complaint to demonstrate but failed. As such, the Court DENIES Plaintiffs’ request for leave to amend. CONCLUSIONS The court rules as follows: 1. FINDS that the meet and confer requirement in Code of Civil Procedure section 430.41, subdivision (a) was met; 2. GRANTS Plaintiffs’ requests for judicial notice of Exhibit 1 pursuant to Evidence Code section 452, subdivision (d) but DENIES Plaintiffs’ 13 request for judicial notice Exhibit 2 as duplicative/irrelevant and incomplete; AND 3. SUSTAINS Defendant’s demurrer to the SAC on statute of limitations grounds without leave to amend. Defendant’s counsel is ordered to provide notice. 14 CASE NUMBER CASE NAME TYPE OF HEARING CIVSB 2203862 Cosco Shipping Lines, Inc. Motion to Set Aside Default Judgment, v. Sanctions under Code of Civil Procedure, section 128.5 Public Mutual Corp. etc. And related Cross-Action Tentative Ruling CASE BACKGROUND On February 17, 2022, Plaintiff Cosco Shipping Lines (North America) Inc. (“Cosco”) filed this common count / open book account action against Defendant Public Mutual Corp. dba Legendary Trucking Company (“Public Mutual”). On April 28, 2023, Public Mutual answered Cosco’s complaint and filed its own cross-complaint against Cosco and a third-party cross-defendant, Lever Logistics, LLC (“Lever Logistics”). Public Mutual alleges it entered into a settlement agreement with Lever Logistics in which Lever Logistics agreed to pay Public Mutual $67,390. (See Cross-Compl. ¶3.) Lever Logistics breached the agreement “by failing to pay the full amount . . . .” (Id., ¶5 (emphasis added).) Public Mutual’s cross-complaint included five causes of action against Lever Logistics: (1) breach contract; (2) negligence; (3) indemnity; (4) accounting; and (5) declaratory relief. On July 13, 2023, Cosco answered Public Mutual’s cross-complaint. 15 On August 18, 2023, default was entered against Lever Logistics on the cross-complaint. On November 21, 2023, Public Mutual filed a request for entry of Clerk’s default judgment. On February 21, 2024, the Court ordered Cosco’s complaint dismissed based on Cosco’s failure to appear at multiple hearings. Lever Logistics’ attorney, Margaret Morrow, informed the Court that she was unaware her client was in default and that Lever Logistics would be filing a motion to set aside the default. (See Minutes, 2/21/24.) On March 15, 2024, Lever Logistics filed “objections” to Public Mutual’s request for entry of default judgment. On April 8, 2024, the Court entered default judgment on Public Mutual’s cross-complaint in favor of Public Mutual, and against Lever Logistics, in the amount of $42,078.30. The following day, April 9, 2024, Lever Logistics filed this Motion to Set Aside the Default Judgment. Meanwhile, on April 12, 2024, the Court entered a minute order stating it was modifying the judgment by reducing it by $100 in costs, to $42,078.30. (See Minutes, 4/12/24.) On April 25, 2024, Lever Logistics filed its notice of intent to file a motion for new trial. The Court set the hearing for May 29, 2024 and on May 6, 2024, Lever Logistics filed its motion for new trial which Public Mutual opposed. The Court (the Honorable Judge Charlie Hill) denied the motion after hearing it on May 29, 2024. Two days later, on May 31, 2024, Lever Logistics filed the instant Motion to Set Aside Default and Default Judgment. An Opposition and Reply have been filed. 16 DISCUSSION There is a jurisdiction question which must be addressed by the parties with further briefing. On June 7, 2024, Lever Logistics filed a Notice of Appeal from the May 29, 2024 order denying its motion for new trial. The Notice of Appeal does not refer to the April 8, 2024 default judgment, or its modification on April 12, 2024. Only the Order denying the Motion for New Trial is on appeal. However, the Motion for New Trial sought relief from the judgment claiming: (1) Pacific Mutual did not allege entitlement to contractual attorney fees in its cross-complaint; (2) the default judgment is void because it was entered after the Court dismissed Cosco’s underlying complaint; (3) Lever Logistics was never served with the complaint or cross-complaint; (4) counsel for Pacific Mutual was aware Lever Logistics was represented by counsel but never contacted counsel prior to seeking default and default judgment; (5) counsel for Pacific Mutual misled counsel for Lever Logistics; and (6) Lever Logistics has a meritorious defense to this case. At present, the parties have not addressed the impact, if any, of the pending appeal and whether this Court has jurisdiction to hear the current motion or if the Court of Appeal must remand the case first. Code of Civil Procedure, section 916.5 [Stay of proceedings on perfecting appeal] provides: 17 (a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (b) When there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from. Conclusion The Court continues the hearing on the instant motion to allow the parties to brief the issue whether this Court has jurisdiction to hear and rule upon the Motion to Set Aside Default while the appeal re: Motion for New Trial is pending. The Court sets the following briefing and hearing schedule: 1. Lever Logistics, LLC shall file its brief by July 23, 2024; 2. Public Mutual shall file its opposition brief by August 6, 2024; and 3. Lever Logistics may file a reply by August 6, 2024. The hearing on the motion is continued to August 26, 2024 at 8:30 a.m. Counsel for Lever Logistics is ordered to provide notice. 18 CASE NUMBER CASE NAME TYPE OF HEARING Tentative Ruling: 19 CASE NUMBER CASE NAME TYPE OF HEARING Tentative Ruling: 20