Credit Acceptance Corporation V. Reagan West

HARRIS vs PREMIUM AUTO, Motion to Compel Arbitration by CVRI2400962 INC. PREMIUM AUTO, INC. Tentative Ruling: Grant. Factual/Procedural Context This action involves the sale and purchase of a used automobile. On 9/21/2023, Plaintiff and Defendant entered into a Retail Installment Sale Contract (“RISC”) concerning Plaintiff’s purchase of a used 2016 Range Rover Sport. The RISC contains an arbitration clause, in which Plaintiff agreed to arbitrate “[a]ny claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between [Plaintiff] and [Defendant]” that arises out of Plaintiff’s purchase of the subject vehicle. (See Hazrat Decl. ¶ 2, Ex. 1.) On 2/21/2024, Plaintiff filed the operative Complaint against Defendant, alleging (1) intentional misrepresentation, (2) negligent misrepresentation, (3) violation of Bus. & Prof. Code § 17200, and (4) violation of the Consumer Legal Remedies Act (“CLRA”). *** Defendant brings the instant motion to compel arbitration on the basis of the RISC. Defendant argues that California Supreme Court’s decision in Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 898 found that arbitration clauses in an automobile sales contract are not unconscionable. Defendant thus asks the Court to compel Plaintiff to arbitrate this action before the American Arbitration Association (“AAA”) and to stay this action pending completion of arbitration. In opposition, Plaintiff argues that the motion should be denied, because under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, his claim for “public injunctive relief” under the CLRA to enjoin Defendant’s illegal and deceptive practices is a matter of public policy not subject to arbitration. In reply, Defendant argues that all of Plaintiff’s claims are subject to arbitration, and that Plaintiff seeks “private” injunctive relief for the benefit of the public, not public injunctive relief. In the event the Court finds that such claim is not arbitrable, Defendant asks the Court to sever and stay Plaintiff’s claim for injunctive relief pending arbitration. Analysis Under the Federal Arbitration Act (“FAA”), the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Mgmt., LLC (9th Cir. 2016) 656 F. App’x. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or “the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development, LLC (2012) 55 Cal.4th 223, 236.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Id.) Plaintiff does not dispute that the FAA applies in this case, or that he entered into a written arbitration agreement that covers the instant dispute. (See Hazrat Decl. ¶ 2, Ex. 1.) Instead, Plaintiff opposes the instant motion solely on the basis that the arbitration agreement is invalid based on the California Supreme Court’s ruling in McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 and Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691. Plaintiff argues that he is seeking a public injunction under the CLRA to enjoin Defendant “from continuing to make false and misleading statements to consumers regarding the sale of motor vehicles.” (Compl. ¶ 71.) Plaintiff relies upon McGill and Mejia to argue that because California law prohibits arbitration of claims for public injunctive relief, the arbitration provision in this case is invalid and unenforceable. However, neither McGill nor Mejia stand for the proposition that an arbitration provision is invalid simply because it requires arbitration of claims for which a public injunction is a remedy or because it does not allow an arbitrator to issue a public injunction. Rather, the arbitration provision is invalid only if it precludes the parties from seeking a public injunction altogether, “in any forum.” (See McGill, supra, 2 Cal.5th at 961 [“Thus, insofar as the arbitration provision here purports to waive McGill’s right to request in any forum such public injunctive relief, it is invalid and unenforceable under California law.”] [emphasis added]; Mejia, supra, 54 Cal.App.5th at 704 [“We concur with the trial court’s interpretation of the arbitration clause as barring Mejia from seeking public injunctive relief ‘in any forum,’ thereby rendering the arbitration clause unenforceable under McGill.”] [emphasis added].) For instance, the McGill Court acknowledged that the parties had “elected in the Arbitration Agreement to exclude public injunctive relief requests from arbitration” but noted that the case could still go to arbitration on some of the claims asserted by the plaintiff. (McGill, supra, 2 Cal.5th at 966.) “Moreover, case law establishes that a stay of proceedings as to any inarbitrable claims is appropriate until arbitration of any arbitrable claims is concluded. [Citation]) Thus, arbitration of claims the parties have agreed to arbitrate may proceed pursuant to whatever procedures the arbitration agreement specifies, unaffected by any subsequent proceedings made necessary by invalidation of the waiver regarding the public injunctive relief claims the parties did not agree to arbitrate. According to the high court, “‘piecemeal’ litigation” of claims the parties have agreed to arbitrate and claims they have not agreed to arbitrate is consistent with the FAA.” (Id.) Thus, some of Plaintiff’s claims and requests for relief may be arbitrated and others may be tried in this Court after arbitration is completed. In Mejia, the trial court found that the arbitration agreement prevented plaintiff from seeking and obtaining a public injunction in arbitration and made arbitration the only forum available to the plaintiff. (Mejia, supra, 54 Cal.App.5th at 704.) The Court of Appeal noted that the trial court “might have ‘saved’ the arbitration clause by ‘sever[ing] the prohibition on public injunctive relief from the Arbitration Provision’” but could not do so due to a “poison pill” provision that restricted the right to sever.” (Id.) In this case, the arbitration agreement does not include any provision that prevents Plaintiff from seeking public injunctive relief in arbitration. (See Hazrat Decl. ¶ 2, Ex. 1.) The arbitration agreement simply states that “[a]ny award by the arbitrator shall be in writing and will be final and binding on all parties, subject to any limited right to appeal under the Federal Arbitration act.” (Id.) Moreover, the arbitration agreement prohibits claims, not brought on an individual basis, but as a “consolidated, representative, class, collective, injunctive or private attorney general action.” (Id.) It further states: Neither you nor we waive the right to arbitrate any related or unrelated claims by filing any action in small claims, court, or by using self-help remedies, such as repossession, or by filing an action to recover the vehicle, to recover a deficiency balance, or for individual or statutory public injunctive relief. (Id. [emphasis added].) Based on the above language, the arbitration agreement only seeks to limit the class action capacity in which an individual can bring a claim against Defendant. In other words, the only limitation as to a public injunctive relief claim is in a class representative capacity. This is important, because claims under the CLRA other consumer protection statutes may be asserted as individual claims seeking public injunctive relief. (McGill, supra, 2 Cal.5th at 959; Dicarlo v. Moneylion, Inc. (C.D. Cal. Dec. 20, 2019) 2019 U.S. Dist. LEXIS 228268, at *8 [provision that preserved the plaintiff’s right to obtain in arbitration “all remedies available in an individual lawsuit” did not bar public injunctive relief and was valid under McGill]; Gonzalez-Torres v. Zumper, Inc. (N.D. Cal. Dec. 2, 2019) 2019 U.S. Dist. LEXIS 207390, at *24 [concluding that an arbitration agreement that empowered the arbitrator to “issue any and all remedies authorized by law” did not run afoul of McGill because “[a]lthough a plaintiff may not assert claims on behalf of a class in arbitration, the Agreement does not prohibit plaintiff from being awarded public injunctive relief as a remedy for his individually-asserted claims in arbitration”].) Thus, based on the above, Plaintiff has failed to demonstrate that the arbitration agreement at issue is unenforceable under McGill or Mejia. In any event, the issue of which claims or disputes should be arbitrated must be decided by the arbitrator and not this Court. In Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, the arbitration agreement delegated “the determination of the scope or applicability of the arbitration provision” to the arbitrator. (Id. at 891.) Under those circumstances, the Court of Appeal concluded that “it is the arbitrator who will consider the conscionability of the agreement and the scope of the arbitration clause, including whether the class arbitration is available under the arbitration provision, and whether the provision purports to waive the Aanderuds’ right to seek public injunctive relief in all forum and, if so, what impact this has on the enforceability of the arbitration provision as a whole.” (Id. at 897; see also Henry Schein Inc. v. Archer & White Sales, Inc. (2019) 139 S.Ct. 524, 530.) Here, the arbitration agreement delegates questions of arbitrability to the arbitrator. (Hazrat Decl. ¶ 2, Ex. 1 [“Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision . . . and the arbitrability of the claim or dispute) . . . shall, at your or our election, be resolved by neutral, binding arbitration and not by court action.”] [emphasis added].) Thus, Plaintiff has agreed to submit to arbitration questions of the interpretation and scope of the arbitration provision and the arbitrability of specific claims. Accordingly, the Court grants Defendant’s motion to compel arbitration to allow the arbitrator to determine the threshold question of which claims and disputes are to be arbitrated and then, to arbitrate any claims or disputes the arbitrator finds to be arbitrable. All proceedings in this action are stayed pending completion of the arbitration proceedings.

Matter on the Law & Motion calendar for Thursday, July 25, 2024, Line 13. MOTION TO BE RELIEVED AS COUNSEL AS TO DEFENDANT. Hearing required re apparent lack of emergency circumstances. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Real Property/Housing Court Law and Motion Calendar for July 25, 2024 line 1. PLAINTIFF STEPHEN WEISSBERG NOTICE OF MOTION AND MOTION FOR ASSIGNMENT OF RENTS [CCP 708.510] AND APPOINTMENT OF RECEIVER [CCP 708.620 ET SEQ.] Transferred to department 302 to be heard on August 7, 2024, per the order of the presiding judge. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

HADLEY, ET AL. VS. AMERICAN HONDA MOTOR CO, INC. Case Number: 23CV-0201803 This matter is on calendar for review regarding status. The Court notes that the parties filed a Stipulation to Continue Trial on July 19, 2024. However, no proposed order on the Stipulation has been filed. The trial is therefore still set to commence on September 9, 2024. The parties are ordered to lodge a proposed order on the Stipulation to Continue Trial forthwith. This matter is continued to Monday, August 12, 2024, at 9:00 a.m. in Department 64 for confirmation of filing the proposed order and for trial resetting. No appearance is necessary on today’s calendar.

CV-24-003737 – EASTERN FUNDING LLC vs PATEL TOWING LLC – a) Plaintiff’s Application for Writ of Possession as to Defendant Patel Towing LLC; b) Plaintiff’s Application for Writ of Possession as to Defendant Leonard Lal Patel -   a-b) DENIED, without prejudice. No proof of service has been submitted. THE COURT’S PHONE SYSTEM IS DOWN. If you desire a hearing, you must email your request to the court before 4:00 p.m. today. In addition, your email must list the email addresses of all counsel who will appear at the hearing. Upon receipt, the court will schedule a Zoom hearing.

Case Number: 21TRCV00651 Hearing Date: July 26, 2024 Dept: 8 Tentative Ruling HEARING DATE: July 26, 2024, continued from July 19 due to cyber attack CASE NUMBER: 21TRCV00651 CASE NAME: Martorell Law APC v. Evgeny Afineevsky, et al. MOVING PARTY: Plaintiff, Martorell Law APC RESPONDING PARTY: Defendant, Evgeny Afineevsky TRIAL DATE: August 5, 2024 MOTION: (1) By Plaintiff: Motion for Summary Judgment (2) By Defendant: ex parte application to Continue the August 5, 2024 Trial Tentative Rulings: This is the same tentative ruling posted for the July 19 hearing, which counsel might have been unable to review because of the effects of the cyber-attack on the Courts computer systems. (1) Motion for Summary Judgment is DENIED. Triable issues of facts material to the reasonableness of fees and the defense of quality of the representation preclude summary judgment (2) The ex parte application in tentatively denied, or would be granted only for a short period of time sufficient to permit defense counsel to review the remaining 4/5 of the belatedly produced documents. The Application indicates the Plaintiffs failure to provide its work product until the eve of trial has been ongoing for over a year, and that Defendant elected to pursue a strategy of relying on that failure to seek exclusion of evidence at trial rather than other remedies. Defendant did not seek a motion to compel further production, or a motion in limine, or file objections to evidence submitted in support of the pending MSJ, or even seek to continue the hearing on the pending MSJ to allow completion of discovery. The parties reported to the Court in early May that the mediation was not successful, yet this issue of a failure to produce documents requested over a year ago was only first brought to the Courts attention in Defendants July 3, 2024 Separate Statement. I. BACKGROUND A. Factual On September 3, 2021, Plaintiff, Martorell Law APC (Plaintiff) filed an action against Defendant including Evgeny Afineevsky, Pray for Ukraine Production, LLC, and DOES 1 through 100 arising out a claim of failure to pay for Plaintiffs legal services rendered in the representation of the Defendants. The suit alleges causes of action for: (1) Breach of Contract; (2) Account Stated; (3) Open Book Account; and (4) Reasonable Value of Services Rendered. Now, Plaintiff files a motion for summary judgment, or in the alternative, summary adjudication of the following issues: 1. Issue No. 1: As alleged against Evgeny Afineevsky and Pray for Ukraine Production LLC, Plaintiffs First Cause of Action, Breach of Contract, succeeds as a matter of law because Defendants did not uphold their obligations. 2. Issue No. 2: As alleged against Evgeny Afineevsky and Pray for Ukraine Production LLC, Plaintiffs Second Cause of Action, Common Count of Account Stated, succeeds as a matter of law because Plaintiff Martorell Laws assignor upheld its obligations to submit billing statements to Defendants, but Defendants have not paid the billing statements, despite stating they would do so. 3. Issue No. 3: As alleged against Evgeny Afineevsky and Pray for Ukraine Production LLC, Plaintiffs Third Cause of Action, Common Count for Open Book Account, succeeds as a matter of law because Plaintiff Martorell Laws assignor maintained a record of the debts owed to its assignee. 4. Issue No. 4: As alleged against Evgeny Afineevsky and Pray for Ukraine Production, LLC, Plaintiffs Fourth Cause of Action, Reasonable Value of Service Rendered (Quantum Meruit), succeeds as a matter of law because Plaintiff Martorell Laws assignor performed the work under the attorney-client relationship and Defendants retained the benefit of those services. B. Procedural On April 2, 2024, Plaintiff filed a motion for summary judgment, or in the alternative, summary adjudication. On July 3, 2024, Defendant, Evgeny Afineevsky filed an opposition brief and declarations. On July 12, 2024, Plaintiff filed a reply brief with a new declaration and new exhibits not included in the original moving papers. II. EVIDENTIARY OBJECTIONS Overrule: all. Sustain: none. III. ANALYSIS A. Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.¿ (Dore v. Arnold Worldwide, Inc.(2006) 39 Cal.4th 384, 389.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) B. Discussion Preliminarily, this Court notes that in opposition, Defendants have brought an issue of Plaintiffs standing to sue. First, Defendant argues that Bordin Martorell LLO was the original creditor of the alleged debt Plaintiff is now seeking to enforce. Defendants assert that Plaintiff has not provided a single piece of documentary evidence establishing an assignment of rights from BM LLP. Defendants contend that in discovery, they asked for such proof, but to date, Plaintiff has provided zero documentation. Plaintiff only includes, in his declaration, that his former law firm, BM LLP, assigned its rights and interests associated with the Lawsuit, including rights and interests to any past due bills, to [his] current law firm, Martorell Law APC. (Martorell Decl., ¶ 7.) The Reply papers provide documentary proof of the assignment to Plaintiff, but that proof was not included in the moving papers. The Courts practice is to consider new evidence submitted at the reply phase and to allow the opposing party to file a sur-reply responding to that new matter. But as discussed below, even if the Court were to reject the standing argument because of the evidence first submitted at the reply phase, there are other grounds for the Court to deny the motion which would render unnecessary a sur-reply and continued MSJ hearing. Here, Plaintiff argues that it established a contract was formed between Defendants and Bordin Martorell LLP (BM LLP). Plaintiff argues that on July 19, 2017, BM LLP and Defendants, Evgeny Afineevsky and Pray for Ukraine Production, LLC entered into a written fee agreement in Los Angeles, California, whereby BM LLP entered into a written fee agreement in Los Angeles, California whereby BM LLP agreed to act as Defendants legal representative in the lawsuit. (Martorell Decl., ¶ 2.) Plaintiff contends that the written free agreement included a $10,000 retainer deposit, which Defendants paid on July 18, 2017. (Martorell Decl., ¶2.) On July 19, 2017, Plaintiff asserts it began legal services. (Martorell Decl., ¶ 2.) Plaintiff contends that among the legal services involved in the subject lawsuit, it drafted a motion to dismiss based on forum non conveniens (that Defendants chose not to file) and analyzing the same, choice of law analysis, retention of and communication with additional attorneys, communications with various potential witnesses, a pro hac vice application, meeting and conferring with opposing counsel, drafting discovery requests, responding to discovery requests, tens of phone calls, drafting motions to quash, drafting and analyzing benefit of motion for security, drafting a motion for sanctions, drafting a motion for summary judgment, reviewing of large amounts of evidence, and document production. (Martorell Decl., ¶ 3.) Further, Plaintiff asserts that it has established that Defendants failed to uphold their obligations on the basis of the fee arrangement. Pursuant to the work performed and the terms of the fee arrangement, BM LLP sent two billing statements to Defendants associate with an outstanding bill of approximately $57,836.54. (Martorell Decl., ¶ 5.) Plaintiff contends that the first billing statement was sent on or around September 12, 2017, and pursuant to the agreement, the payments were to be due within fifteen (15) days of mailing of BM LLPs statement. (Martorell Decl., ¶ 2.) Plaintiff further asserts that Defendants agreed to pay the outstanding legal fees, but that to this day, Defendants have not paid the outstanding legal fees. (Martorell Decl., ¶ 6.) Based on these facts, Plaintiff argues that this Court can and should grant summary judgment as to each of the four causes of action. In opposition, Defendants correctly point out that Plaintiff has failed to show that the facts are undisputed on its causes of action. For example, Defendants dispute that there was a meeting of the minds as to the amount owed, that there is a dispute as to the duration of the representation, that Plaintiff failed to investigate insurance coverage or to earlier tender the defense of the underlying action to Defendants production companys errors and omissions policy carrier. See 7/3/24 Separate Statement UMFs 4, 5, 10. Defendants dispute Plaintiffs standing because no corroboration was submitted with the moving papers of the claimed assignment from BM LLP to Plaintiff. See 7/3/24 Sep. Statement UMF 8. The Opposition raises a dispute as to its defense of overbilling for work that was never used or filed to advance the interests of its clients. Furthermore, Defendants argue that Plaintiff filed no substantive pleadings in the case while representing Defendant and its work was not used by Defendants subsequent attorneys. Defendants have provided the declaration of counsel Tarasov indicating that such work was not used nor was it instrumental in the ultimate outcomes of the case. While Mr. Martorell addresses a number of these issues in his reply declaration and its attached exhibits, the conflict between his declaration and that of his former co-counsel Mr. Tarasov by itself demonstrates that the trier of fact will need to resolve the disputed issues of reasonableness of billings, the claimed failure to earlier tender a defense to an E&O carrier and at whose feet lays the blame for that, the affirmative defense of excuse or of quality of the representation, and other matters. IV. CONCLUSION For the foregoing reasons, Plaintiffs Motion for Summary Judgment is DENIED. Defendants are ordered to provide notice.

DAWODU vs Demurrer on Complaint for Breach of CVRI2400534 ABDOLHOSSEINI Contract/Warranty (Over $35,000) of TOYIN DAWODU by TINA ABDOLHOSSEINI Tentative Ruling: SUSTAIN the general demurrer for failure to allege sufficient facts to state a cause of action as to Plaintiff’s third cause of action for fraud with 30 days leave to amend; OVERRULE the general demurrer as to Plaintiff’s first cause of action for breach of oral contract and second cause of action for common counts. OVERRULE the special demurrer to Plaintiff’s entire complaint for uncertainty. FACTUAL / PROCEDURAL CONTEXT This action is brought by Plaintiff Toyin Dawodu (“Plaintiff”) against Tina Abdolhosseini (“Defendant”). The complaint utilizes Judicial Council Form Pleadings to assert the following causes of action: (1) Breach of Contract (Oral); (2) Common Counts; and (3) Fraud. The breach of contract cause of action alleges that in March of 2022, the parties entered into an oral contract when Plaintiff paid $3,500 for the services of Defendant Tina Abdolhosseini to expunge a lien on a property that Plaintiff was in the process of acquiring. The breach allegedly occurred in April 2022 when “Defendant went beyond the scope of Plaintiff’s instructions and authority and took it upon herself to perform unauthorized services.” According to the complaint, the lien was not expunged. It is unclear what the “scope of instructions” were or what “unauthorized services” were performed by Defendant. Because the lien was not expunged, Plaintiff alleges the real estate deal fell through and he suffered approximately $100,000 in damages. The common counts cause of action alleges that within the last two years, Defendant became indebted to Plaintiff for money had and received (the $3,500 payment to expunge the lien) by Defendant for the use and benefit of Plaintiff. A copy of the check is attached to the complaint as Exhibit A. Finally, the fraud cause of action alleges that on or about March 2022, Defendant promised to expunge the lien without any intention of performing said promise. Via the Judicial Counsel Form Pleading, Plaintiff alleges that the promise was made with the intent to defraud and induce Plaintiff to rely upon it and “act as described in item FR-5.” In item FR-5, Plaintiff states that he “relied upon Defendant Tina Abdolhosseini to perform the services she was paid to perform and expunge a lien on a property Plaintiff was in the process of acquiring.” Defendant brings a general demurrer against all three causes of action for failure to allege sufficient facts to state a cause of action. The general demurrer relies on two arguments. First, using a “Statement of Facts” and supporting declaration, Defendant argues that Plaintiff previously filed a lawsuit concerning the same facts and the case was dismissed with prejudice. (Defendant’s Demurrer, p. 5, lines 4-5.) Defendant attaches the minute order from 12/18/2023 as Exhibit D to the demurrer. The order states the prior case was dismissed without prejudice. Defendant argues the minute order is incorrect and reasserts that the prior case was “unequivocally” dismissed with prejudice. (Defendant’s Demurrer, p. 5, lines 4-19.) Second, the general demurrer argues that each of the three causes of action fail to state facts sufficient to constitute a cause of action. As to the breach of contract cause of action, Defendant argues there are “no factual allegations” and that the complaint “consists entirely of ‘conclusions’ with no supporting facts.” Similarly, as to the common counts cause of action, Defendant argues “there are no factual allegations whatsoever alleged under this cause of action.” For the fraud cause of action, Defendant points out the higher pleading standard required for fraud and argues that Plaintiff fails to specify what detrimental action was taken by Plaintiff to cause damage. For these same reasons, Defendant also brings a special demurrer for uncertainty. Plaintiff’s opposition first addresses the dismissal of the prior case and states it was dismissed without prejudice. The opposition also generally reasserts the facts in the complaint, arguing that the Judicial Council Pleading Forms adequately allege sufficient facts to support each cause of action. Defendant filed a “Declaration in Objection to Plaintiff’s Opposition to Defendant’s Demurrer 2” making a single argument that she received the opposition on July 17, 2024 in the mail. She argues the opposition was thus served late. Defendant further objects to not receiving the opposition via email. ANALYSIS A. Meet & Confer Requirement CCP §430.41 and §435.5 require a meet and confer process via phone or in person before filing a demurrer or motion to strike five days before the responsive pleading is due. The meet and confer process requires the moving party to identify the causes of action or allegations subject to attack and the plaintiff must provide legal support for its position. (CCP §430.41(a)(1), 435.5(a)(1).) The demurring party must file a declaration stating the means by which the parties met and conferred, or the responding party failed to respond or meet and confer in good faith. (CCP §430.41(a)(3).) Defendant indicates she attempted to call Plaintiff to meet and confer but he did not answer. (Decl. of Tina Abdolhosseini in Support of Defendant’s Demurrer, ¶ 3.) She was unable to leave a message as Plaintiff’s voicemail box was full. (Id.) Defendant’s declaration states she has been “unsuccessful in reaching Plaintiff to meet and confer prior to submitting this demurrer.” (Id.) Defendant has thus satisfied the meet and confer requirement. B. General Demurrer for Failure to State Facts Sufficient to Constitute a Cause of Action (CCP § 430.10(e)) A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which 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. th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) i. Plaintiff’s Prior Lawsuit and Defendant’s Failure to Request Judicial Notice For her first argument, Defendant asserts that Plaintiff previously filed a lawsuit concerning the same facts, multiple demurrers were filed, and the case was ultimately dismissed with prejudice. Thus, Defendant argues the entire action is subject to a general demurrer. To support this argument, Defendant provides extrinsic evidence in the form of both exhibits and her declaration. This extrinsic evidence impermissibly goes beyond the four corners of the complaint and cannot be considered. (Blank, supra, 39 Cal.3d at 318.) While the 12/18/2023 Court order dismissing the prior lawsuit is judicially noticeable (Cal. Evid. Code § 452(d).), there is no such request included with Defendant’s demurrer. Even if Defendant had requested judicial notice of the 12/18/2023 Court order, it dismisses the prior lawsuit without prejudice. (See Exhibit D to Defendant’s Demurrer.) 2 Plaintiff’s opposition included a proof of service which states the opposition was sent via overnight mail on July 10, 2024. This is timely (nine court days plus two days for overnight delivery per CCP § 1005(b).) The date Defendant received the opposition is irrelevant. (CCP § 1013.) First Cause of Action for Breach of Contract The elements of a breach of oral contract are the same as those for a breach of written contract: a contract, its performance or excuse for nonperformance, breach and damages. (Careau & Co. v. Security Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388). An oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, via the Judicial Counsel Pleading Form, Plaintiff pleads that on or about March 2022, Plaintiff entered into an oral contract with Defendant to expunge a lien. (Plaintiff’s Complaint, p.3, ¶ BC-1.) Paragraphs BC-2, BC-3, and BC-4 satisfy the other requirement elements in pleading that there was breach, Plaintiff performed his obligations under the oral agreement, and damages. The general demurrer as to Plaintiff’s first cause of action is OVERRULED. ii. Second Cause of Action for Common Counts A general demurrer that a common count does not state facts sufficient to constitute a cause of action will usually be overruled nor is a complaint in the form of a common count subject to a special demurrer on the ground of uncertainty. (Moya v. Northrup (1970) 10 Cal. App. 3d 276, 279.) The only essential allegations of a common count are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) Here, Plaintiff has met this low burden. Via the Judicial Counsel Pleading Form, it is alleged that Defendant became indebted to Plaintiff within the last two years for money had and received by defendant for the use and benefit of the Plaintiff. (Plaintiff’s Complaint, p. 4, ¶ CC-1.) It is also alleged that the amount due and unpaid, despite Plaintiff’s demand, is $3,500 as of March 2022. (Plaintiff’s Complaint, p. 4, ¶ CC-2.) Nothing further is required. The general demurrer as to Plaintiff’s second cause of action is OVERRULED. iii. Third Cause of Action for Fraud Plaintiff’s fraud claim is for “promissory fraud.” Under Civil Code § 1709, promissory fraud occurs when someone “willfully deceives another with intent to induce him to alter his position to his injury or risk.” Civil Code § 1710 defines deceit for the purposes of Civil Code § 1709 as “[a] promise, made without any intention of performing it.” The elements of promissory fraud are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) A plaintiff must allege what was said, by whom, in what manner (i.e., oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) Each element must be alleged with particularity.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) Using the Judicial Council Form Pleading for fraud “does little to lighten the pleading burden” as it “contains only the skeleton of a fraud cause of action.” (Weil and Brown, The Rutter Group, Calif. Civil Procedure Before Trial (2024) Chapter 6 Pleadings, p. 6-56, § 6:146.) Plaintiff must still provide the details as to what representations were made, why they were false, and in what way plaintiff was induced to act. (Id.) Here, Plaintiff sufficiently alleges the who, what, and when of the promissory fraud. (Plaintiff’s Complaint, p. 6, ¶¶ FR-1 and FR-4.) But, as Defendant points out, Plaintiff fails to identify what detrimental course of action was taken as a result of his justifiable reliance on Defendant’s promise. (Beckwith, supra, 205 Cal.App.4th at p. 1060.) The complaint says that “Plaintiff Toyin Dawodu relied upon Defendant Tina Abdolhosseini to perform the service she was paid to perform and expunge a lien on a property Plaintiff was in the process of acquiring.” (Plaintiff’s Complaint at p.6, ¶ FR-5.) But there are no facts pleaded that state what, if anything, Plaintiff did or did not do because of Defendant’s promise to expunge the lien. The general demurrer as to Plaintiff’s third cause of action is SUSTAINED. C. Special Demurrer for Uncertainty (CCP § 430.10(f)) Defendant argues that the complaint is uncertain as to what causes of action are being pleaded and what relief is being sought. Demurrers for uncertainty are generally disfavored. (Chen v. Berenjian (2019) 33 Cal.App.5th 811.) To that end, demurrers for uncertainty will only be sustained where the defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him; or where the pleading is so incomprehensible that a defendant cannot reasonably respond. (Khoury, supra, 14 Cal.App.4th at p. 616; Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3.) Demurrers for uncertainty are to be overruled when addressed to inconsequential matters, the facts are within the knowledge of the defendant or ascertainable in discovery, or not dispositive of one or more causes of action. (Khoury, supra, at p. 616.) To that end, “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Id.) Here, Defendant fails to demonstrate that the allegations of the complaint are so uncertain that she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against her. While the complaint does utilize the Judicial Council Form Pleadings without adding a lot of his own facts, Defendant can still reasonably determine the crux of Plaintiff’s allegations. Moreover, additional facts would be within the knowledge of Defendant and ascertainable in discovery. Defendant’s special demurrer for uncertainty under CCP § 430.10(f) is OVERRULED.

24CV073476: PEOPLE OF THE STATE OF CALIFORNIA vs THE PROGRESSIVE CORPORATION, et al. 07/23/2024 Hearing on Motion to be Admitted Pro Hac Vice filed by THE PROGRESSIVE CORPORATION (Defendant) + in Department 21 Tentative Ruling - 07/22/2024 Noël Wise The Motion to Be Admitted Pro Hac Vice filed by THE PROGRESSIVE CORPORATION, PROGRESSIVE NORTHWESTERN INS. CO., PROGRESSIVE SELECT INS. CO., PROGRESSIVE COMMERCIAL CASUALTY INS. CO., PROGRESSIVE EXPRESS INS. CO., PROGRESSIVE DIRECT INS. CO., PROGRESSIVE CASUALTY INS. CO., PROGRESSIVE DIRECT HOLDINGS, INC., PROGRESSIVE ADVANCED INS. CO., PROGRESSIVE SPECIALTY INS. CO., ASI SELECT AUTO INS. CORP. on 06/20/2024 is Granted. Pursuant to Government Code section 70617(e)(2), on or before the anniversary of the date of this order Pro Hac Vice Applicant JAMES MATTHEW BRIGMAN shall pay a renewal fee of five hundred dollars ($500) for each year that Pro Hac Vice Applicant maintains pro hac vice status in this case. The Court hereby sets a compliance hearing for 08/25/2025 at 01:30 PM in Department 21 at Rene C. Davidson Courthouse. If the renewal fee has been paid at least 10 calendar days before the hearing, no appearance will be required. PLEASE NOTE: This tentative ruling will become the ruling of the court if uncontested by 04:00pm the day before your hearing. If you wish to contest the tentative ruling, then both notify opposing counsel directly and the court at the eCourt portal found on the court’s website: www.alameda.courts.ca.gov. If you have contested the tentative ruling or your tentative ruling reads, “parties to appear,” please use the following link to access your hearing at the appropriate date and time: https://alameda-courts-ca-gov.zoomgov.com/my/department21 . If no party has contested the tentative ruling, then no appearance is necessary.