Lobel Financial Corp., A California Corporation Vs. Breanna A Elliott

Case Number: 24LBCV00120 Hearing Date: July 9, 2024 Dept: S27 Plaintiff has discovery motions scheduled for 7/09/24, 7/18/24, and 7/23/24. There is also a status conference re: appointment of a discovery referee scheduled for 7/09/24. In the interest of efficiency, the Court continues the 7/09/24 and 7/18/24 motions to 7/23/24, to be heard concurrently with the currently scheduled motion to deem RFAs admitted. The Court takes off calendar the status conference re: appointment of discovery referee. Upon further review, all pending motions are related motions to compel responses to initial discovery (and deem RFAs admitted), based on the contention that Defendant has not served any timely responses to outstanding discovery. The Court finds this is not the type of discovery dispute that warrants appointment of a referee. Plaintiff is ordered to give notice. Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org . If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar . If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Case Number: 21STCV30920 Hearing Date: July 9, 2024 Dept: 37 HEARING DATE: Tuesday, July 9, 2024 CASE NUMBER: 21STCV30920 CASE NAME: Raul Raygoza v. General Motors MOVING PARTY: Plaintiff Raul Raygoza OPPOSING PARTY: General Motors TRIAL DATE: Post Settlement PROOF OF SERVICE: OK PROCEEDING: Motion for Attorneys Fees, Costs, and Expenses OPPOSITION: 24 June 2024 REPLY: 01 July 2024 TENTATIVE: Plaintiffs Motion for Attorneys Fees is granted in the sum of $20,934.50. No multiplier is awarded. The court declines to rule on the issue of costs. Plaintiff to provide notice. Background On August 20, 2021, Raul Raygoza (Plaintiff) filed a lemon law action against General Motors LLC (Defendant or GM) and Does 1 to 10 with five causes of action: (1) Violation of Civ. Code § 1793.2(d); (2) Violation of Civ. Code § 1793.2(b); (3) Violation of Civ. Code § 1793.2(A)(3); (4) Breach of Express Written Warranty (Civ. Code §§ 1791.2(a), 1794); and (5) Breach of Implied Warranty of Merchantability (Civ. Code §§ 1791.1, 1794, 1795.5). On December 4, 2023, a Notice of Settlement was filed. On April 9, 2024, Plaintiff filed a Motion for Attorneys fees, costs, and expenses. Defendant GM opposes the Motion. The matter is now before the court. Motion for Attorneys Fees, Costs, and Expenses I. Legal Standard Under the Civ. Code § 1794(d), the prevailing party in an action that arises out of the Song-Beverly Consumer Warranty Act is entitled to fees that were reasonably incurred. If the buyer prevails under this section, the buyer shall be allowed by the Court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. (Civ. Code, § 1794(d).)¿¿¿¿¿¿¿ The lodestar method is the primary method for determining a reasonable attorney fee award under Civ. Code § 1794(d).¿ (See Robertson v. Fleetwood Travel Trailers of California, Inc . (2006) 144 Cal.App.4th 785, 818-19.)¿ A trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the careful compilation of the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. ( Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321 [internal quotations omitted].) The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved.¿ [citation] The court may also consider whether the amount requested is based upon unnecessary or duplicative work. ( Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)¿ The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time.¿( Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.)¿The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records.¿( Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)¿¿¿¿¿¿ II. Request for Judicial Notice The court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. ( Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) Plaintiff requests judicial notice of the following: 1) An Order on attorneys fees and prejudgment interest in the lemon law matter of Abraham Forouzan v. BMW (United States District Court for the Central District of California Case No. 2:17-cv-03875-DMG-GJS), attached as Exhibit 1 to the Declaration of Payam Shahian. 2) An Order on attorneys fees, costs and expenses in the lemon law matter of Joshua Holeman v. FCA (United States District Court for the Central District of California Case No. 2:17- cv-08273-SVW-SK), attached as Exhibit 2 to the Declaration of Payam Shahian. 3) An Order on attorneys fees, costs and expenses in the lemon law matter of Catherine Shepard v. BMW (Los Angeles Superior Court Case No. BC622506), attached as Exhibit 3 to the Declaration of Payam Shahian. 4) Order on attorneys fees and prejudgment interest in the lemon law matter of Jerry Zomorodian v. BMW (United States District Court for the Central District of California Case No. 2:17-cv-5061-DMG(PLAx)), attached as Exhibit 4 to the Declaration of Payam Shahian. 5) Order on attorneys fees and prejudgment interest in the lemon law matter of Zargarian v. BMW (United States District Court for the Central District of California Case No. 2:18-cv-04857-RSWL-PLA), attached as Exhibit 5 to the Declaration of Payam Shahian. 6) April 29, 2021, Minute Order granting plaintiffs Motion for Attorneys Fees, Costs & Expenses in the lemon law matter of Jose Medina v. KMA (Los Angeles Co. Super. Ct., Civil Case No. 19STCV02985) attached as Exhibit 6 to the Declaration of Payam Shahian. 7) May 10, 2021, Tentative Ruling granting plaintiffs Motion for Attorneys Fees, Costs & Expenses in the lemon law matter of Michelle Williams v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC722351) attached as Exhibit 7 to the Declaration of Payam Shahian. 8) Order on attorneys fees in Oscar Millan vs. Kia Motors America, Inc ., (Los Angeles Co. Super. Ct., Civil Case No. BC710535) attached as Exhibit 8 to the Declaration of Payam Shahian. 9) March 14, 2022, Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the Song Beverly matter of Jason J. Arnold, et al.. vs FCA US, LLC. Et al . (Los Angeles Superior Court Case No. 19STCV26274) attached as Exhibit 9 to the Declaration of Payam Shahian. 10) Order on Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the matter of Mo Rahman v. FCA US, LLC et al ., (United States District Court for the Central District of California Case No. 2:21-cv-02584), attached as Exhibit 10 to the Declaration of Payam Shahian. 11) June 13, 2022, Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Klingenberg v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC709888) attached as Exhibit 11 or the Declaration of Payam Shahian. 12) January 24, 2023, Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Sandra J. Williams et al v. Ford Motor Company (United States District Court for the Central District of California Case No.: 5:21-cv01346-SPG-SHK) attached as Exhibit 12 to the Declaration of Payam Shahian. 13) A true and correct copy of the July 19, 2021, Order in the matter of Hoyt v. FCA, US LLC Orange Co. Super. Ct., Civil Case No. 30-2019-01066585-CU-BC-CJC) is Exhibit 13 to the Declaration of Payam Shahian. 14) April 24, 2023, Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Sergio Proa v. Kia Motors America Inc . (Los Angeles Co. Super. Ct. Civil Case No. BC716647) attached as Exhibit 14 to the Declaration of Payam Shahian. 15) July 6, 2023, Minute Order in Francisco Rodriguez and Norma Rodriguez v. Hyundai Motors America . (Los Angeles Co. Super. Ct. Civil Case No. 21STCV01655) (July 6, 2023) attached as Exhibit 15 to the Declaration of Payam Shahian 16) October 16, 2023, Minute Order in Charles Steven Sedlacek IV v. General Motors, LLC (Los Angeles Co. Super. Ct. Civil Case No. 21STCV23811) (October 16, 2023) attached as Exhibit 16 to the Declaration of Payam Shahian. 17) Order on attorneys fees in Holcomb v. BMW of N. Am., LLC , Case No. 18CV475JM(BGS) 2020 WL 759285 (S.D. Cal. Feb. 14, 2020) attached as Exhibit 17 to the Declaration of Payam Shahian. Plaintiffs request for judicial notice is granted. III. Evidentiary Objections Plaintiffs evidentiary objections to the Gavrilescu Declaration are overruled. IV. Discussion Plaintiff moves for attorney fees and costs as the prevailing party pursuant to a signed CCP § 998 Offer and under the Song-Beverly Act. Plaintiffs counsel, Strategic Legal Practices, APC (SLP) requests attorneys fees and costs consisting of 1) $26,845.50 in attorney fees for SLP (2) a 1.35 multiplier enhancement on the attorney fees totaling $9,395.93 and (3) $1,296.86 in costs and expenses. In addition, for filing this fee Motion and in anticipation of responding to Defendant GMs opposition, Plaintiff seeks an additional $3,500.00 in attorneys fees. A. Reasonable Hourly Rates In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of fees customarily charged by that attorney and others in the community for similar work. ( Bihun v. AT&T Information Systems, Inc . (1993) 13 Cal. App. 4th 976, 997 [affirming rate of $450 per hour], overruled on other grounds by Lakin v. Watkins Associated Indus . (1993) 6 Cal. 4th 644, 664; see also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [[R]ate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.].)¿¿¿¿ SLP asserts that [a] lthough 14 SLP attorneys and 2 law clerks were staffed on this case, only 7 attorneys (David Berschauer, James Carroll, Christian Castro, Tionna Carvalho, Regina Liou, Ian McCallister, and Hannah Theophil) accounted for 38.30 hours out of the 57.30 total hours billed (i.e. around 70%) with other attorneys performing non-duplicative tasks[.] (Motion, at p. i, fn. 1.) The hourly billing rates of SLP are as follows: Elina Amirian 2022 rate is $375.00/hour Admitted 2021 Oliva Avelino 2023 rate is $595.00/hour Admitted 2007 David Berschauer 2022 rate is $520.00/hour Admitted 1991 Hector Calderon 2022 rate is $285.00/hour Law Clerk Eve Canton 2023 rate is $295.00/hour Law Clerk James Carroll 2022 & 2023 rate is $595.00/hour Admitted 2006 Christian Castro 2024 rate is $475.00/hour Admitted 2013 Tionna Carvalho 2023 rate is $570.00/hour and 2024 rate is $595.00/hour Partner, Admitted 2014 Mark Gibson 2021 rate is $475.00/hour Admitted 2008 Chrisine Haw 2023 rate is $500.00/hour Admitted 2013 Regina Liou 2023 rate is $475.00/hour Admitted 2007 Ian McCallister 2023 rate is $595.00/hour - Admitted 1998 Debora Rabieian 2022 rate is $410.00/hour and 2023 rate is $435.00/hour Admitted 2017 Nino Sanaia 2022 rate is $385.00/hour Admitted 2022 Hannah Theophil 2022 rate is $360.00/hour Received JD in 2019 Sanam Vaziri 2022 rate is $610.00/hour Admitted 1995 (Shahian, ¶¶ 44 -77, Ex. 18.) Having examined SLPs evidence submitted in support of its hourly rates, the court finds that SLP has shown that courts have approved SLPs billing rates, including $610.00 for Sanam Vairi. (See Shahian Decl. Ex. 16.) The court finds that the cases referenced in the Declaration of Payam Shahian are sufficient to show that SLPs hourly billing rates ranging from $285 to $585 and $610 for Sanam Vairi are reasonable. (Shahian Decl. Ex. 1 -16.) No deductions will be made to SLPs requested hourly rates. B. Time Reasonably Spent on the Litigation In challenging attorney fees as excessive because too many hours of work are claimed, it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. ( Lunada Biomedical v. Nunez¿ (2014) 230 Cal.App.4th 459, 488, citing Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn . (2008) 163¿Cal.App.4th¿550, 564.) The court will exercise its discretion in determining if the Plaintiffs attorneys fees request is reasonable by considering the following factors: the nature of litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. ( Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.)¿¿ SLP asserts that they reasonably spent about 57.30 hours totaling $26,845.50 in fees litigating this action. Defendant GM specifically objects to billing entries incurred after November 10, 2023, when GM served its second CCP § 998 Offer. (Gavrilescu Decl. ¶ 8; Castro Decl. ¶ 34.) Plaintiff accepted the 998 Offer on November 30, 2024, but between November 10 and November 30, Defendant GM asserts that SLP billed 11.7 hours ($6,530.00) for drafting templated trial documents, motions in liminie (MIL), and opposition, constitution 34% of the total fees sought. (Opposition at p. 3:5-6; see also Shahian Decl. Ex. 18 at p. 2.) SLPs billing records reflect that SLP did not review that 998 Offer until November 30, 2024. (Shahian Decl. Ex. 18 at p. 2.) Defendant GM also objects to the following billing entries: a) 08/18/2021 Complaint: SLP billed 2.0 hours to draft the Complaint, but it should have been completed in 0.5 hour because SLP used a template. (Gavrilescu Decl. ¶ 3, Ex. A-B.) Having reviewed the Gavrilescu Declaration, the court finds that SLP relied on a template Complaint that contained the same allegations against GM but with varying facts about when the wrongful conduct was discovered and the year, make and model of the subject vehicle. (Gavrilescu Decl. ¶ 3, Ex. A-B.) The court finds that SLP should have spent no more than 1.5 hours drafting the Complaint. The court will deduct 0.5 hours billed at a rate of $475.00/hour, or $237.50 , from the lodestar. b) 2/07/2022- Written Discovery Responses : SLP billed 3.3 hours to draft Plaintiffs discovery responses, but it should only have taken no more than 0.5 hour because Plaintiffs responses were templated objections identical to other responses SLP responded to in other cases against GM. (Gavrilescu Decl. ¶ 5, Ex. C-D.) Having reviewed the written discovery responses, the court agrees that SLP used templated responses that required minimal changes. Accordingly, the court deducts 1.3 hours billed at a rate of $595.00/hour, or $773.50 , from the lodestar. c) 2/14/2022 & 04/14/2022 Discovery Request to GM : SLP billed 6.2 hours to draft, review, and finalize the discovery requests to GM but it should have taken no more than 0.5 hour to change the caption and edit the document since SLP has edited similar documents. (Gavrilescu Decl. ¶¶ 6-7, Ex. E-H.) Having reviewed the SLPs discovery request, the court finds that deductions are warranted. The court deducts, 2.3 hours billed at a rate of $520.00/hour, or $1,196.00 , from the lodestar d) 2/17/2022; 11/03/2022; 2/17/2023; & 11/28/2023 Block Billing for Preparing and Attending Status Conference and Drafting Hearing Outcome Memos : Amirian, Avelino, Vaziri, and McAllister billed 4.4 hours for preparing and attending the CMC, PMSC, and FSC and drafting a hearing outcome memo. Defendant GM asserts the fee should be reduced by half due to block billing. The court finds that SLP overbilled the time spent preparing, attending, and drafting an outcome memo for the CMC, PMSC, and FSC. The court makes the following deductions: 0.4 hours billed at a rate of $375.00 for the 02/17/2022 hearing, or $150.00 0.3 hours billed at a rate of $610.00 for the 11/03/2022 hearing, or $183.00 0.1 hours billed at a rate of $595.00 for the 02/27/2023 hearing, or $59.50 Accordingly, $392.50 will be subtracted from the lodestar. e) 11/10/2023 & 11/13/2023 In Limine Motions and Opposition : McCallister and Carvalo billed a total of 6.5 hours in drafting, reviewing, and finalizing templated in-limine motions and oppositions to GMs standard MIL. Defendant GM asserts the billed amount is unreasonable and SLP used motion templates and opposition. (Gavrilescu Decl. ¶ 9, Ex. I-J.) GM asserts it should have taken a total of 2.0 hours to complete this task. SLPs billing records reflect that it took two days to review GMs CCP § 998 Offer, communicate the offer to Plaintiff, and sign the Offer. ( Shahian, Ex. 18.) Yet, neither party disputes that the CCP § 998 Offer was given to Plaintiff on November 10, 2023. (Gavrilescu Decl. ¶ 8; Castro Decl. ¶ 34.) SLP fails to explain why it waited until November 30, 2023, to review the 998 Offer. Had SLP diligently reviewed or contemplated the 998 Offer sooner, the trial preparation that was billed after November 10, 2023, would have been unnecessary. Accordingly, the court finds that the time spent reviewing and finalizing MIL and drafting trial documents was not reasonably incurred nor necessary for the conduct of the litigation, and deductions are warranted. Accordingly, $2,014.00 will be deducted from the lodestar. The court finds that no other deductions are warranted pertaining to trial documents and trial notices as those fees were reasonably incurred. f) 12/04/2023 Prepare for Vacated Final Status Conference: Defendant GM asserts that the .8 hours billed was unnecessary because Plaintiff had accepted the 998 Offer, and the hearing was vacated by the court. SLPs opposition fails to address the contention that preparation for the FSC hearing was unnecessary because Plaintiff had already accepted the 998 Offer. Accordingly, $380.00 will be subtracted from the lodestar. g) 4/08/2024 Attorneys Fee Motion: Defendant GM asserts that SLP should not have billed 7.2 hours preparing this fee Motion because the Motion is similar to other fee motions filed against GM. (Gavrilescu Decl. ¶ 10, Ex. I.) GM asserts that it is unreasonable for SLP to estimate billing for 7.3 hours spent reading the opposition, preparing a reply, and preparing for the hearing. GM asserts SLP should have spent 3.0 hours preparing the fee Motion, reviewing the opposition, and preparing a reply. SLPs moving papers reflect that SLP expects $3,500.00 for reviewing GMs opposition to this motion, drafting a reply, and attending the hearing. (Motion at p. 2:7-9.) This is on top of the 7.20 hours billed at a rate of $475.00/hour spent preparing this fee motion and supporting documents. ( Shahian, Ex. 18.) The court reviewed the supporting papers attached to the Shahian Declaration and found that many of the cases cited as exhibits failed to show the hourly rates of the SLP attorneys who worked in this case and were inapplicable. The court also finds that Defendant GM has shown that SLP relied on a template in drafting the fee motion. Taken together the court finds a deduction is warranted. It should have taken SLP at most 5.0 hours to draft this fee Motion, review the opposition, write a reply, and prepare for a hearing. Accordingly, of the 14.3 hours spent on this fee Motion, the court deducts 9.3 hours billed at a rate of $475.00, or $4,417.50 from the lodestar. In total $9,411.00 will be deducted from the lodestar. C. Request for Multiplier The lodestar amount may be adjusted by the court based on factors including (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.¿ ( Bernardiv. County of Monterey (2008) 167 Cal.App.4th 1379, 1399, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)¿ The purpose of any lodestar and the increase thereto is intended to approximate market-level compensation for such services and is entirely discretionary.¿ (Id.)¿The purpose of a fee enhancement is not to reward attorneys for litigating certain kinds of cases, but to fix a reasonable fee in a particular action.¿ ( Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-72.)¿¿¿¿ SLP requests a multiplier of 1.35 or $9,395.93 on the basis that SLP took this case on a contingency fee basis with no guarantee of recouping the costs expended in bringing this action. Moreover, SLP asserts that it obtained an excellent outcome. The court finds that the results of this case are not exceptional and awarding a multiplier is not warranted because the time and skill of counsel, as well as the contingent nature of the representation, are compensated with high fees. Plaintiffs counsel also failed to show how this case is different from other lemon law actions or presented new or complex issues that made this case particularly hard to litigate.¿¿¿¿ ¿¿¿ Accordingly, Plaintiffs request to award a multiplier is denied. D. Reasonable Costs and Expenses A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case. (CRC, rule 3.1700(a); see also Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 927928.) Defendant GM asserts that the court should not award costs because no memorandum of costs has been filed. Plaintiffs moving papers fail to address why a memorandum of costs is not necessary and Plaintiffs reply asserts requiring a memorandum of costs would be a waste of the courts time. Plaintiff fails to show that a memorandum of costs is not necessary. Plaintiffs request for $1,296.86 in costs is supported only by SLPs billing system, with no verification from counsel that the costs incurred were reasonably incurred, necessary, and allowable. Moreover, Plaintiff did not seek to file a memorandum of costs until July 1, 2024. The memorandum of cost seeks $1,615.71 in costs. The court declines to award costs at this time to allow Defendant GM to review the memorandum of costs and decide if it will move to tax or strike costs. E. Adjusted Lodestar Plaintiffs unadjusted lodestar consists of (1) $26,845.50 in attorney fees for Strategic Legal Practices, APC (SLP); (2) a 1.35 multiplier enhancement on the attorney fees (or $9,395.93); (3) $1,296.86 in costs and expenses for SLP; and (4) an additional $3,500.00 in attorneys fees related to this fee motion. $26,845.50 + $3,500.00 = $30,345.50 $30,345.50 - $9,411.00 = $20,934.50 From the total attorney fee request of $30,345.00, the court deducts $9,411.00, resulting in an adjusted lodestar of $20,934.50. No multiplier is awarded. The court declines to award costs at this time. Accordingly, Plaintiffs request for attorneys fees is granted in the sum of $20,934.50. Conclusion Plaintiffs Motion for Attorneys Fees is granted in the sum of $20,934.50. No multiplier is awarded. The court declines to rule on the issue of costs. Plaintiff to provide notice.

Case Number: 24STCV05465 Hearing Date: July 9, 2024 Dept: 52 Tentative Ruling Order to Show Cause Re: Default Judgment Plaintiff KF Sunray, LLC dba Sunray Healthcare Center requests court judgment by default against defendant Francis Mejia aka Francis R. Mejia, Sr. aka Francis R. Mejia. Plaintiffs application meets all requirements for default judgment. Plaintiffs request for default judgment is granted . The court will sign the proposed judgment plaintiff submitted on form JUD-100 and will enter judgment.

MSC-192506, Romano v. Golden State Lumber Defendant’s unopposed Anti-SLAPP motion is DENIED. Defendant’s request for judicial notice is GRANTED. Due to the lack of opposition, the Court’s minute order shall constitute the order of the Court. The Court notes that the reply brief references an opposing brief, but there has been no opposing brief filed with the Court. Nonetheless, as explained in detail below, Defendant did not meet its burden of showing that the action arises out of protected activity. I. Background On January 17, 2023, Defendant Golden State Lumber filed a limited jurisdiction collections action in this Court against its customer Generator Joe, Inc. and its personal guarantor, Joseph Romano, (MCV-260730) due to an unpaid credit account balance. Defendant’s complaint includes a mechanics lien foreclosure cause of action against Generator Joe, Inc.’s property. Generator Joe, Inc. did not file an answer to the complaint. However, Plaintiff Joseph Romano subsequently filed the instant small claims action on March 2, 2023. The small claims action was transferred to this court, but was not consolidated with MCV-260730. Defendant Golden State Lumber, Inc. herein alleges that the small claims action was filed in retaliation for Golden State not abandoning its collections action and not abandoning its mechanics lien rights and remedies. Defendant contends that its lawsuit, service of preliminary notices in relation to the mechanics lien, and ultimate recordation of the mechanics lien is protected activity; thus, the entire small claims action should be stricken. II. Analysis A. Burdens on an Anti-SLAPP Motion CCP § 425.16(b)(1) provides that a cause of action against a person “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. CCP § 425.16(e)(1) defines the foregoing phrase to include “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (CCP § 425.16(b)(2).) A defendant has the initial burden to make a prima facie showing that the complaint “arises from” her exercise of free speech or petition rights. (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449 at 458-59.) “At the first step of the analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. (See § 425.16, subd. (e).) And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887.) If defendant meets that initial burden, the burden shifts to the plaintiff to establish a “probability” that he will prevail on the claims which are based on protected activity. (CCP § 425.16(b).) To establish a “probability” of prevailing on the merits, the plaintiff must demonstrate that the claim is both legally sufficient and supported by a prima facie showing of facts sufficient to support a favorable judgment if the evidence submitted by the plaintiff is credited. (Navelier v. Sletten (2002) 29 Cal.4th 82, 89.) The court does not weigh credibility or comparative strength of the evidence in making this summary judgment-like determination. (See, e.g. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) But to demonstrate a probability of prevailing on the merits, the plaintiff must produce admissible evidence sufficient to overcome any privilege or defense that the defendant has asserted to the claim. (See, e.g. Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) In making its determination, the Court considers the pleadings, as well as supporting and opposing affidavits. (CCP § 425.16(b).) The court considers defendant's evidence only to determine if it defeats plaintiff's showing as a matter of law. (Soukup v. Law Offices of Herbert Hafif, supra, at 291.) The court must accept as true the evidence favorable to plaintiff. (Ibid.) B. Defendant Has Not Met Its Burden to Show that Plaintiff’s Allegations Arise Out of Protected Activity “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 v. St. Joseph Health Sys. (2021) 11 Cal. 5th 995, 1009.) “‘[T]he statutory phrase ‘cause of action ... arising from’ means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.’” (CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 269–70. Italics in original.) “‘In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.’” (Ibid. Italics in original.) Here, Plaintiff’s allegations are as follows: Plaintiff ordered approx [sic] $38,000 in lumber which was specificed [sic] by Plaintiff to be redwood construction heart. Defendant delivered a large load of material, but not all that was ordered, and on inspection Plaintiff discovered that the lumber delivered did not meet the specifications of material ordered. Plaintiff contacted Defendant and Defendantgs [sic] management employee agree [sic] to take the materiasl [sic] back without charge. Defendant later claimed material was missing and demanded restocking fees and other charges. Plaintiff demanded labor reimbursemen [sic]” [The allegations end here.] Though Defendant claims that Plaintiff’s small claim action arises out of activity protected by the litigation privilege, none of the allegations raised by Plaintiff involve protected activity. Defendant fails to identify which allegations implicate such protected activity. Plaintiff does not complain of Defendant’s act of filing its own complaint nor of Defendant’s acts in pursuing the mechanics lien. The mere timing of the filing of the small claims action alone is not sufficient to show that the complaint arises out of protected activity without more. The simple raising of counter allegations of breach is not sufficient to show that the claims arise out of protected activity. Furthermore, though defendant has submitted evidence that Plaintiff demanded in an email that the preliminary notice be dropped to avoid legal challenge, this does not show that this small claims action arose out of protected activity because Plaintiff does not challenge the preliminary notice. The allegations raised by Plaintiff solely involve the underlying dispute and do not challenge Defendant’s legal actions. The cases cited by Defendant are inapposite. For example, in CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, which involved a declaratory relief action seeking determination regarding compliance with Proposition 65, “CKE's action arose entirely from the filing of the Proposition 65 notice.” (Id. at 271. Italics in original.) “‘…[W]ithout the Notice, there would have been no actual, present controversy, and no controversy at all.’” That is not the case here as there does exist a controversy without Defendant’s complaint and mechanic’s lien and Plaintiff’s small claims action makes no mention of either. The case of Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, involved statements made in anticipation of a lawsuit. Defendant has not identified any statements or writing made by it that Plaintiff challenges in this small claims action. The case of Comstock v. Aber (2012) 212 Cal.App.4th 931, involved the question of whether statements made to an HR manager could be considered statements made in anticipation of litigation. There are no similarities between the facts of that case and the facts of the present case. While Defendant argues that the “gravamen” of Plaintiff’s small claims action is that “Golden State never should have made demands on Generator Joe Inc. to satisfy its outstanding credit account balance” and that Plaintiff filed this action only after Defendant sued to foreclose on its mechanics lien, the California Supreme Court has “rejected the ‘gravamen’ approach in evaluating anti-SLAPP motions directed to an entire cause of action or complaint, holding that each allegation of protected activity must be evaluated separately.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial, § 7:775 (2024); see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010-1011.) If the Court were to adopt the “gravamen” approach, it would “risk saddling courts with an obligation to settle intractable, almost metaphysical problems about the ‘essence’ of a cause of action that encompasses multiple claims. (Id. at 1011.) Plaintiff has made no allegations of protected activity. Since Defendant has failed to show that any of Plaintiff’s claims arise out of protected activity, the Court need not move on to the second prong of its analysis to determine whether Plaintiff’s claims have a likelihood of success on the merits.

Re: Folland v. Rogers Superior Court Case No. 21CECG01468 Hearing Date: July 10, 2024 (Dept. 501) Motion: Plaintiff/Petitioner’s Petition to Confirm Arbitration Award Tentative Ruling: To grant, confirming the arbitration award in favor of plaintiff/petitioner in the amount of $76,265 plus $435 in costs, and $14,709.74 in prejudgment interest, for a total of $91,409.74. Plaintiff/petitioner is directed to submit a proposed judgment consistent with the court’s ruling within 7 days of the service of the minute order. Explanation: Any party to an arbitration in which an award has been made may petition the court to confirm the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other person bound by the arbitration award. (Code Civ. Proc., §1285.) A petition shall: (a) set forth the substance or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.) If a petition is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., §1286.) Here, the moving papers conform to the requirements set forth in the Code of Civil Procedure sections 1285 and 1285.4. In accordance with Code of Civil Procedure, section 1285, petitioner names Denna Rogers as the party to be bound by the arbitration award. A copy of the arbitration agreement is attached to the Complaint which commenced this action. (Compl., Exh. A.) Also, a copy of the arbitrators’ award is attached to the Petition. (Petn., Attachment 6C.) The Petition and Notice of Hearing were properly served on June 6, 2024 by mail. The Petition also provides that the arbitration award was served to respondent on July 7, 2022. (Petn., Item 7.) The Petition provides that the arbitration award is binding because more than 30 days have passed since notice of the award was mailed, and no party filed a rejection of the award or requested for trial. (Petn., Item 8(b).) Further, the Petition is unopposed and no evidence indicating any application has been made to correct or vacate the award, and the statutory period for making such application has now passed. (Code Civ. Proc., § 1288. [“A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.”].) Thus, the Petition to confirm the arbitration award is granted. However, Plaintiff/Petitioner has calculated the prejudgment interest to the date of September 17, 2024. The court calculates the prejudgment interest to be $14,709.74.1 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) 1This figure is calculated using an interest rate of 10% per annum from the date the arbitration award became binding, August 6, 2022 (30 days following the day the award was mailed) through July 10, 2024 (the hearing date of this petition).

FISCUS VS. PATTERSON, ET AL. Case Number: CVCV22-0199210 Tentative Ruling on Motion to Continue Trial Date: This matter involves multiple parties and Cross- Complaints. Plaintiff is Paula Fiscus. Defendant/Cross-Defendants/Cross-Complainants Gregory G. Gonzales and Marcia J. Gonzales, Trustees of the Greg and Marcia Gonzales Family 2014 Revocable Trust will be referred to as the Gonzales Defendants. James Patterson and Patterson Landscape/Yard Manicurist Agency will be referred to as the Patterson Defendants. The Gonzales Defendants have filed a Motion to Continue the presently set August 20, 2024, trial date. The Patterson Defendants have joined the motion. Plaintiff has opposed the motion. Defendant American Contractors Indemnity Company has not filed anything related to the motion and did not attend the ex parte hearing on June 27, 2024, at which time was shortened to hear the motion today instead of July 22, 2024, as originally noticed. There is no evidence that the Gonzales Defendants provided notice of today’s hearing to Defendant American Contractors Indemnity Company. Cross-Defendant Mark Behnke Construction has also not filed anything related to the motion but did attend the ex parte hearing and is therefore aware of today’s hearing. Merits. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” CRC 3.1332(a). “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” CRC 3.1332(c). Circumstances that may indicate good cause are: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. CRC 3.1332(c). When considering whether to grant a motion to continue, there are several factors that the Court must consider including: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application. CRC 3.1332(d). The reasons presented by the Gonzales Defendants to continue the trial are that trial counsel has a conflicting trial schedule and because Marcia Gonzales’s son is getting married the week of trial. In the moving papers, the Gonzales Defendants note that the wedding date was set prior to the Court setting the Augst 20, 2024 trial date. The reasons for the Patterson Defendants joining the motion are because counsel has a conflicting trial schedule, counsel is moving homes in late August, and because the Pattersons have a prepaid vacation from August 26- September 6, 2024. It is not clear whether the Pattersons’ vacation was set and prepaid when the Court set the trial date of if the Pattersons planned it after the trial date was set. Plaintiff opposes the continuance on the grounds that Defendants have failed to show good cause for the continuance, and because Plaintiff will be prejudiced by a continuance. The prejudice alleged is that a later trial would not allow time for necessary remediation of the landscaping issues before the next rainy reason. These issues have resulted in significant erosion and flooding. Plaintiff also argues that the parties stipulated to the August 20, 2024, trial date and all agreed that no further continuances would be granted absent stipulation. While this agreement did not make it into the Court’s Order dated April 10, 2024 (which was submitted by the Patterson Defendants), it is clear from the Stipulation that the parties did reach such a stipulation. Conflicting trial schedules do not automatically create good cause to continue a trial. Trial counsel regularly have multiple trials set for the same week. Any attorney who practices in civil law is well aware that not every trial set actually goes forward as scheduled. No good cause has been presented in that regard. As to the wedding, it appears the counsel for the Gonzales Defendants did not check with their client prior to agreeing to a trial date. Had they checked, surely Ms. Gonzales would have pointed out that her son was getting married that week. The unavailability of Ms. Gonzales due to her son’s wedding may constitute an excusable circumstance under CRC 3.1332(c)(2). Similarly, the Patterson’s vacation could also be such a circumstance, depending on when it was scheduled. Regarding the CRC 3.1332(d) factors, the trial date is one month and twelve days away. Trial has been continued twice before. The first was by stipulation on October 13, 2022. The second was by stipulation on April 9, 2024, as discussed above. The Gonzales Defendants have requested a continuance to November of 2024 while the Patterson Defendants have requested 45-60 days. The only alternative means to address the problem that gave rise to the motion or application for a continuance would be potentially taking witnesses out of order at trial. Plaintiff may be prejudiced by the continuance. The matter is not entitled to preferential trial setting. Regarding the Court’s calendar, one of the two civil trial courts will be dark on the currently set date of August 20, 2024, which reduces the chance that this matter will be assigned to a courtroom for trial. Counsel is not currently engaged in another trial that causes a conflict and only provides evidence that there are other trials that might affect counsel’s availability. There is no stipulation for a continuance. The parties previously agreed that no further continuances would occur absent a stipulation. Regarding the interests of justice, the Court is in a position of having to weigh how much counsel’s failure to consult with their clients regarding their schedules should be permitted to affect their client on a personal level. It is clear that counsel should have done a better job to make sure that the agreed upon trial date worked for all parties, and not just counsel. This is particularly so when the parties explicitly stipulated that no further continuances would take place. However, the Court does not feel that it is in the interest of justice to punish Ms. Gonzales by potentially preventing her from participating in her son’s wedding based on counsel’s failure to communicate properly. As to the Patterson vacation, it is unclear whether this vacation was set at the time the trial was set or if the Pattersons scheduled their vacation later. However, the Court does understand the need for the Pattersons to be present for the trial to present their testimony. On balance, the Court finds that granting of a short continuance would be in the interest of justice. The Pattersons’ vacation lasts until September 6, 2024. Therefore, the Court intends to continue the trial to Tuesday, September 10, 2024. If this trial date does not work for Plaintiff, the Court will entertain the first available date for Plaintiff. Should the trial be continued, all discovery deadlines will flow from the new trial date. However, the Court notes that Defendant American Contractors Indemnity Company was not provided with notice of today’s hearing. Absent an appearance by Defendant American Contractors Indemnity Company, the Court will continue today’s hearing to July 22, 2024, at 8:30 a.m. in Department 63 as that is the date that was originally noticed.

Case Number: 24CHCV00391 Hearing Date: July 9, 2024 Dept: F43 Dept. F43 Date: 7-9-24 Case #24CHCV00391, J.B. Hunt Transport, Inc. vs. Contractors Wardrobe, Inc. Trial Date: N/A DEMURRER WITH MOTION TO STRIKE MOVING PARTY: Defendant Contractors Wardrobe, Inc. RESPONDING PARTY: Plaintiff J.B. Hunt Transport, Inc. RELIEF REQUESTED Demurrer to the Complaint · 2 nd Cause of Action for Common Counts · 3 rd Cause of Action for Unjust Enrichment Motion to Strike · Request for attorneys fees and costs of suit herein incurred and according to the Agreement in Plaintiff's Prayer [p. 6:17-18 of the Complaint] · Attorneys fees [pp. 4:16, 4:25, 5:6, 5:8, and 5:13] · Request for special and consequential damages in Plaintiffs Prayer [p. 6:15] RULING : Demurrer is sustained; motion to strike is granted. SUMMARY OF ACTION Plaintiff J.B. Hunt Transport, Inc. (Plaintiff) is alleging that it entered into a written agreement with Defendant Contractors Wardrobe, Inc. (Defendant). The written agreement, titled Dedicated Contract Services Transportation Agreement, was signed on March 12, 2020. The Agreement is attached as Exhibit A to Plaintiffs complaint. Pursuant to the terms of the Agreement, Plaintiff was to provide transportation of Defendants good throughout California for an initial term of five years, beginning on April 1, 2020. Plaintiff alleges that Defendant terminated the Agreement on August 25, 2023, effective September 9, 2023. Plaintiff is alleging that Defendant has failed to pay Plaintiff for services provided by Plaintiff under the Agreement at the total costs of $1,448,158.87. Plaintiff also alleges that Defendant failed to pay Plaintiff $340,282.82 in unamortized start-up costs and permanent delete charges. Plaintiffs complaint, filed on February 8, 2024, alleges three causes of action for (1) breach of contract, (2) common counts, and (3) unjust enrichment. Defendant filed its demurrer and motion to strike on May 13, 2024. Defendant demurs to Plaintiffs Second and Third Causes of Action. Plaintiff filed an opposition to Defendants demurrer and motion to strike on June 25, 2024. ANALYSIS A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. ( Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& ( Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. ( Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Second Cause of Action for Common Counts Defendant demurs to Plaintiffs Second Cause of Action for Common Counts on the basis that it fails to state facts sufficient to state a cause of action and is uncertain. Defendant argues that Plaintiffs cause of action for common counts pleads four different types of common counts that should have been listed as separate causes of action. Those four distinct common counts are (1) open book account; (2) account stated; (3) goods and services rendered; and (4) money had and received. Each cause of action, count, or defense must be separate stated and given a separate number. (Cal. Rules of Court Rule 2.112.) Defendant argues that the four common counts listed by Plaintiff should be distinct causes of action because they each have separate jury instructions: Money Had and Received (CACI § 370); Goods and Services Rendered (CACI § 371); Open Book Account (CACI § 372); and Account Stated (CACI § 373). Demurrers have long been sustained when separate causes of action are not listed separately. ( Haddad v. McDowell (1931) 213 Cal. 690, 692; Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235 (the special demurrer was properly sustained because the complaint was defective in that two purported causes of action were not separately stated).) Plaintiffs opposition does not address Defendants arguments that the common counts should be listed separately. Instead, Plaintiff only argues that common counts are not subject to fact pleading standards. However, as Defendant argues in its reply, the case that Plaintiff cites in support of this argument sustains a demurrer to common counts for failing to comply with facts pleadings standards. ( Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 (demurring to common counts because plaintiff failed to comply with fact pleading standards by pleading them in a conclusional fashion).) Defendants demurrer to this cause of action is sustained on the basis that the common costs listed under this cause of action should be pled as separate causes of action. Defendant also demurs to this cause of action on the basis that it improperly pleads common counts seeking the same damages as the breach of contract cause of action. Plaintiffs cannot simultaneously: (1) plead that an enforceable express contract exists; and (2) plead common counts seeking the same relief for the same alleged breach. (See Leoni v. Delany (1948) 83 Cal.App.2d 303, 307 (It is the unenforceability of an otherwise valid contract which gives rise to the right of relief through the medium of a common count.); Moore v. Bartholomae Corp. (1945) 69 Cal.App.2d 474, 477 (The law is established in California that a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated.).) Plaintiffs complaint alleges that the damages sought by the common counts cause of action are the same as those caused by Defendants breach of a valid and enforceable contract. (See Comp., ¶¶ 12, 13, 18, 22, 24, 29, 31, and 33.) Two of the common counts also expressly allege that they are based on an alleged breach of contract and seek breach of contract damages. (See Comp., ¶¶ 20-21; 24-25, 27.) Plaintiffs cause of action for common counts is based on the same damages as Plaintiffs cause of action for breach of contract and is therefore improperly pled. Defendants demurrer to the second cause of action can also be sustained on this basis. Defendant also argues that the second cause of action is uncertain because Plaintiff does not plead that it is an alternative to the breach of contract cause of action and instead pleads it as its own distinct cause of action. Plaintiffs opposition argues that the common counts are pled in the alternative, but as Defendant points out in its reply, there is no language in Plaintiffs complaint indicating that the common counts are being pled as an alternative to the breach of contract cause of action. The opposition also does not explain how the common counts could be pled in the alternative. Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend for the reasons given above. Third Cause of Action for Unjust Enrichment Defendant demurs to Plaintiffs Third Cause of Action for Unjust Enrichment on the basis that it fails to state facts sufficient to state a cause of action against Defendant. Defendant argues that demurrer to this cause of action is appropriate because there is no cause of action for unjust enrichment in California. ( Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 785, 793 (unjust enrichment is not a valid cause of action under California law).) Defendant further argues that unjust enrichment cannot stand as its own cause of action. (See Everett v. Mountains Recreation & Conservation Authority (2015) 239 Cal.App.4th 541, 553.) Plaintiffs opposition does not address Defendants argument that unjust enrichment is not a cause of action in California. Plaintiff cites CACI § 375 in its opposition, but that section does not apply to the unjust enrichment that Plaintiff has pled because it involves third-party middlemen, and that section states that unjust enrichment is not a cause of action. Defendant also argues that even if there were a cause of action for unjust enrichment in California, this cause of action would also be duplicative of Plaintiffs breach of contract cause of action because it requests the same damages. (See Comp., ¶ 37.) Because there is no cause of action for unjust enrichment in California, Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend. Motion to Strike A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, [a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Under CCP § 436(a), [t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading. Under CCP § 436(b), the court may [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Attorney Fees Defendant has requested that Plaintiffs request for attorney fees be stricken because attorney fees are available only when provided for by contract or statute. (CCP §1021.) Plaintiffs complaint claims that it can recover attorney fees according to the Agreement, but the Agreement makes no provision for attorney fees. Plaintiff also makes this claim in its opposition, but its claim is not supported by reference to any section of the Agreement. Plaintiff does refer to Paragraph 3(a) on page 2 of the Contract, but that paragraph only mentions costs, not attorney fees. Accordingly, Plaintiffs request for attorney fees is ordered stricken from the complaint. Special and Consequential Damages Plaintiff also requests special and consequential damages, but Defendant points out that the alleged relevant agreement expressly prohibits the parties from seeking such damages. (Wilson Decl., Ex. A, § 6(d) (in no event will either Party be liable for incidental, consequential (including lost profits and chargebacks), special, punitive or exemplary damages in connection with the goods or the services rendered hereunder even if notice was given of the possibility of such damages and even if such damages were reasonably foreseeable).) Plaintiff argues in its opposition that it does not seek damages for the goods or services rendered; rather, Plaintiff seeks damages for Defendants unilateral cancellation of the contract. However, Plaintiff does not give a basis for seeking special and consequential damages for the cancellation of the contract. Furthermore, Defendant argues in its reply that terminating the services under a service contract arises in connection with&the services rendered hereunder. Therefore, the provision cited above could, in fact, apply to this situation. Because the requested damages are based on a breach of the Agreement but the Agreement forbids recovery of such damages, Plaintiffs request for special and consequential damages is ordered stricken from the complaint. CONCLUSION Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend. Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend. Defendants motion to strike is granted. Plaintiff is given 30 days leave to amend. Moving party to give notice to all parties.

Case Number: 22STCV11303 Hearing Date: July 10, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 FIDEL HERNANDEZ MEDINA, an individual and PATRICIA HERNANDEZ, an individual, Plaintiff, v. TOYOTA MOTOR SALES, U.S.A., INC., a California Corporation, and DOES 1 through 10, inclusive, Defendants . Case No.: 22STCV11303 Hearing Date: 7/10/24 Trial Date: N/A [TENTATIVE] RULING RE: Plaintiffs Fidel Hernandez Medina and Patricia Hernandezs Motion to Tax Costs Background Pleadings Plaintiffs Fidel Hernandez Medina and Patricia Hernandez (Plaintiffs) sue Defendant Toyota Motor Sales, U.S.A., Inc. (Toyota USA) pursuant to an October 14, 2022 Third Amended Complaint (TAC) alleging claims of (1) Violation of Song-Beverly Act Breach of Express Warranty, (2) Violation of Song-Beverly Act Breach of Implied Warranty, and (3) Violation of the Song-Beverly Act Section 1793.2(b). The claims arise from allegations that Toyota USA has breached express and implied warranties in favor of Plaintiffs by failing to repair, replace, or repurchase a used Toyota vehicle purchased by the Hernandez Plaintiffs subject to express warranties through which Toyota USA undertook to preserve or maintain the utility or performance of Plaintiffs vehicle or to provide compensation if there was a failure in such utility or performance. Relevant Procedural History On February 20, 2024, trial commenced in this action before concluding on February 26, 2024. On February 24, 2024, the jury issued its verdict in favor of Toyota USA. On March 8, 2024, judgment was entered in Toyota USAs favor. On March 21, 2024, Toyota USA filed its Memorandum of Costs, seeking to recover $22,309.48 in costs. On April 9, 2024, Plaintiffs filed the instant Motion to Tax Costs. On June 26, 2024, Toyota USA filed its opposition to the instant motion. On July 2, 2024, Plaintiffs filed their reply papers. Motion to Tax Costs Legal Standard : In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the prevailing party requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. ( Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) The term prevailing party for costs purposes is defined by statute to include: ¿ (1) The party with a net monetary recovery; ¿ (2) A defendant who is dismissed from the action; ¿ (3) A defendant where neither plaintiff nor defendant recovers anything; and ¿ (4) A defendant as against those plaintiffs who do not recover any relief against that defendant. (Code Civ. Proc., § 1032, subd. (a)(4).) If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. (See Lincoln v. Schurgin (1995) 39 Cal.App.4th 100, 105.) If any party recovers other than monetary relief and in situations other than as specified, the prevailing party shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (Code Civ. Proc., § 1032, subd. (a)(4).) For example, even if a plaintiff maintains a net monetary recovery, in determining the prevailing party in the litigation, the trial court should also consider, if applicable, the defendants success on its declaratory relief claims and exercise its discretion to allow costs or not and, if allowed, to apportion them as appropriate. ( Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1142; see, e.g., Lincoln v. Schurgin , supra , 39 Cal.App.4th at pp. 104-105 [when plaintiff wins net monetary recovery but defendant prevails in its cross-action for declaratory relief, case presents circumstance not otherwise specified; in that case, determination of prevailing party is matter within courts discretion].) ¿Allowable costs under Code of Civil Procedure section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. ( Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. ( Rappenecker v. Sea-Land Serv., Inc . (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. ( Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266, superseded by statute on other grounds in Code Civ. Proc., § 998, subd. (c)(1) [whether costs permissible from filing of complaint or from date of 998 offer].) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. ( Jones v. Dumrichob , supra , at p. 1266.)¿On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. ( Ibid .) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. ( Ladas v. California State Automotive Assoc. , supra , 19 Cal.App.4th at p. 774.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. ( Ibid .) Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circumstances being considered. ( Lincoln v. Schurgin , supra , 39 Cal.App.4th at p. 105.)¿ Order Striking or Taxing Costs : GRANTED IN PART As a preliminary matter, it is undisputed that Toyota USA is not seeking to recover costs pursuant to Code of Civil Procedure § 1794(d) because that statute is limited to buyers of consumer goods. Rather, as the prevailing party in this action, Toyota USA is entitled to recover costs pursuant to Code of Civil Procedure § 1032(a)(4) and 1033.5. Nevertheless, Plaintiffs appear to argue the opposite. (See Reply at pp. 3-4, relying on Wohlgemuth v. Caterpillar, Inc. (2012) 207 Cal.App.4th 1252, 1264.) However, this argument is not persuasive. Code of Civil Procedure § 1794(d) does not explicitly preclude a seller of consumer goods from recovering their costs under Code of Civil Procedure § 1032. Indeed, in Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, the Court rejected this argument. ( Id. at p. 988 [In this case, plaintiff filed suit under the Song-Beverly Act, but defendants prevailed. Defendants sought to recover their costs and expert witness fees under sections 1032, subdivision (b) and 998, subdivision (c), whereas plaintiff argued the more specific provisions of the Act prohibited prevailing defendants from any such recovery. We conclude defendants are entitled to their costs and expert witness fees].) Thus, in determining whether an award of costs should be issued, the Court will rely on the guideline set forth under Code of Civil Procedure § 1033.5(c). Here, Toyota USA seeks $22,309.48 pursuant to Code of Civil Procedure §§ 1032 and 1033.5. By way of its motion, Plaintiffs seek to tax these costs in the following categories: (1) motion and filing fees in its entirety or alternatively $181.08; (2) deposition costs in the amount of $4,351.70; (3) court reporter fees in their entirety; and (4) other costs and fees in the amount of $2,338.49. First, Plaintiffs argue that Toyota USAs requested costs of $1,447.72 for motion and filing fees should be stricken because they include attorney service fees, and Toyota USA has failed to correctly identify the actual court motion and filing fees incurred. (Motion at pg. 5.) However, this ignores the numerous invoices enclosed and referenced by Toyota USAs Memorandum of Costs at Attachment 1g that identify the court motion and filing fees incurred. Furthermore, [i]f the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the prevailing party. (Citation.) To controvert this evidence, the burden is on the objecting party to present evidence showing the contrary. (Citation) ( Whatley-Miller v. Cooper (2013) 212 Cal.App.4th 1103, 1115.) Filing fees and electronic filing fees are recoverable costs (See Code Civ. Proc. § 1033.5(a)(1), (14).) Thus, it is Plaintiffs burden to present evidence to show why these costs should not be awarded. In this regard, Plaintiffs identify $181.08 worth of filing fee costs that should be taxed. (Motion at pp. 6-7.) Of these costs, the Court finds that the filing fees associated with Toyota USAs Motions in Limine were not reasonably necessary to the conduct of the litigation because they had been untimely filed. Therefore, these costs are taxed in the amount of $65.34. As to the costs associated with unsuccessful motions, the Court finds that these costs were not prepared merely out of convenience and are recoverable as a result. (Code Civ. Proc. § 1033.5(c).) Second, Plaintiffs argues the claimed deposition costs should be taxed in the amount of $4,351.70 because the amounts are excessive and unnecessary. Recovery of deposition costs is allowed. (Code Civ. Proc. § 1033.5(a)(3).) Defendants point out that multiple deposition dates for the plaintiffs had to be scheduled and rescheduled. In this instance, Plaintiffs have failed to meet their burden to undermine the prima facie evidence that the expenses were necessarily incurred by Toyota USA. ( Whatley-Miller, supra, 212 Cal.App.4th at 1115.) Third, Plaintiffs contend that Toyota USAs claimed court reporter fees should be taxed because they are not recoverable pursuant to Code of Civil Procedure § 1033 subd. (b)(5). (Motion at pg. 8.) This argument is not persuasive. The Court has discretion to allow additional costs that are reasonable in amount. (Code Civ. Proc. § 1033.5 subd. (c)(4). Based on the invoices submitted with its Memorandum of Costs, Toyota USA has shown that these claimed costs were for court reporting fees during the trial. Such expenses are reasonable in light of the understandable prudence of preserving a record for appeal. Notably, Plaintiff has failed to submit any evidence to suggest that the amount of these fees is unreasonable. Therefore, the Court declines to tax this category of costs. Fourth, Plaintiffs argue that the claim for other costs and expenses that include meals, copying charges, travel, and lodging. (Motion at pp. 8-12.) The Court largely agrees that many of these costs are either not allowed or not reasonably necessary to the conduct of the litigation. For instance, Toyota USA seeks to recover $50.37 in FedEx charges of trial documents and the final status conference. Courier and messenger fees are recoverable, at the discretion of the trial court, if they are reasonably necessary to the conduct of the litigation. ( Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 696, as modified (July 18, 2019), rehg denied (Aug. 9, 2019), review denied (Oct. 23, 2019).) Because these costs are not expressly allowed under Code of Civil Procedure § 1033.5, it is Toyota USAs burden to establish why these costs were necessary. ( Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) However, the opposition fails to articulate such a necessity. Thus, the Court taxes these courier costs as not reasonable. Also, Toyota USA seeks to recover $19.98 associated with a CARFAX report for trial, but Code of Civil Procedure § 1033.5(b)(2) excludes investigation costs. Moreover, Toyota USA seeks to recover a combined amount of $2,095.49 for meals, lodging, and travel. While it is in the Courts discretion to award these costs pursuant to Code of Civil Procedure § 1033.5(c)(4), they have been properly objected to, and Toyota USA has failed to meet its burden in establishing why these costs were not merely convenient and reasonable in amount. In terms of the $196.90 in costs spent for additional copies of trial exhibits, these costs are allowed under Code of Civil Procedure § 1033.5(a)(13) and appear to be reasonable in amount. Thus, the Court declines to tax these amounts. Based on the foregoing, Plaintiffs motion to tax costs is granted in part in the amount of $2,231.18. Consequently, Toyota USA shall be entitled to recover $20,078.30 in costs. Conclusion Plaintiffs Fidel Hernandez Medina and Patricia Hernandezs Motion to Tax Costs is GRANTED in part in the amount of $2,231.18. Consequently, Toyota USA shall be entitled to recover $20,078.30 in costs.