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in Maricopa County
Ruling
FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS
Jul 25, 2024 |
FCS059237
FCS059237
Motion to Compel Arbitration
TENTATIVE RULING
The Court (Department Seven) self recuses pursuant to CCP Section 170.1(b)(6)(iii).
Pursuant to the direction of Judge Stephen Gizzi, Supervising Judge of the Civil
Division, the matter is reassigned and continued to August 1, 2024 at 9:30 a.m.,
Department Three.
Ruling
China Tianjiu International Resources Group Limited vs Renee Kwan, et al
Jul 26, 2024 |
20CV01351
20CV01351
CHINA TIANJIU INT’L RESOURCES GRP LTD v. KWAN et al.
(UNOPPOSED) DEFENDANT GAN’S MOTION TO FURTHER COMPEL
RESPONSES TO FORM INTERROGATORIES (SET ONE), SPECIAL
INTERROGATORIES (SET ONE), AND REQUESTS FOR ADMISSIONS (SET
ONE), AND FOR MONETARY SANCTIONS
The unopposed motion is granted in part.
Defendant Zhenging Gan seeks responses to the following discovery from plaintiff:
Page 1 of 2
• Form interrogatories, nos. 1.1, 17.1, and 50.1 through 50.6;
• Special interrogatories, nos. 1-84, 86-99, 101-102, 104-105, 107-108, 110-111, 113-114,
116-120, 122-123, 125-129, 131-132, 134-135, 137-138, 140-141, 143-147, 149-156;1
• Request for admission (“RFA”), nos. 7, 8, 10, 12-15, 18, 19, 21, 22-25.
The discovery was served on 3/6/24. (Korte Declaration, ¶ 3.) The parties agreed to an
extension of time and responses were served on 4/17/24. (Korte Decl., ¶ 8.) The responses were
deficient and following meet and confer, the parties agreed that plaintiff would provide further
responses, with an extension to 6/10/24. No further responses were provided due to plaintiff’s
failure to communicate with its former attorney. (Korte Decl., ¶¶ 9-13.)
The court orders plaintiff to provide verified code-compliant responses to the following
requests no later than 8/23/24:
• Form interrogatories, nos. 1.1, 17.1 (as to RFA nos. 7, 8, 10, 18, 19), and 50.1 through
50.6;
• Special interrogatories, nos. 1-84, 86-99, 101-102, 104-105, 107-108, 110-111, 113-114,
116-120, 122-123, 125-129, 131-132, 134-135, 137-138, 140-141, 143-147, and 149-156;
• Request for admission, nos. 7, 8, 10, 18, and 19.
The court declines to impose monetary sanctions.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal
order incorporating, verbatim, the language of any tentative ruling – or attaching and
incorporating the tentative by reference - or an order consistent with the announced ruling of the
Court, in accordance with California Rule of Court 3.1312. Such proposed order is required
even if the prevailing party submitted a proposed order prior to the hearing (unless the
tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the
imposition of sanctions following an order to show cause hearing, if a proposed order is not
timely filed.
1
Several special interrogatories are included in defendant’s Separate Statement that do not provide
reasons for further responses. Those interrogatories have not been included in this list since they are not
supported by the Separate Statement.
Page 2 of 2
Ruling
SUPERIOR INTEGRATED SERVICES, INC. vs QUINONEZ
Jul 25, 2024 |
Frank Anthony Moschetti |
CVCO2401857
MOTION TO STRIKE COMPLAINT ON
SUPERIOR INTEGRATED COMPLAINT FOR BREACH OF CONTRACT/
CVCO2401857
SERVICES VS QUINONEZ WARRANTY OF SUPERIOR INTEGRATED
SERVICES BY BRIAN QUINONEZ
Tentative Ruling: No tentative at this time, due to lack of notice as required pursuant to
Local Rule 3316.
Ruling
MARIA GUTIERREZ vs. AMERICAN HONDA MOTOR CO ., INC
Jul 17, 2024 |
C23-02657
C23-02657
CASE NAME: MARIA GUTIERREZ VS. AMERICAN HONDA MOTOR CO ., INC
HEARING ON DEMURRER TO: DEMURRER TO COMPLAINT
FILED BY: AMERICAN HONDA MOTOR CO ., INC
*TENTATIVE RULING:*
Before the Court is a demurrer to the second cause of action in plaintiff’s complaint, filed by
defendant American Honda Motor Co., Inc. (“Honda”), as well as Honda’s motion to strike portions of
plaintiffs’ complaint. As discussed below, the demurrer is overruled. The motion to strike is denied.
Defendant’s previous answer (filed April 22, 2024) is stricken, and defendant shall file a new answer
to the existing complaint by July 29, 2024.
I. Factual Background
This suit arises out of the purchase of a new Honda Pilot by plaintiff, Maria Sanchez Gutierrez,
on or about August 15, 2022. (Complaint, ¶8.) As part of the purchase, defendant Honda and plaintiff
entered into an express written contract, referred to as the New Vehicle Limited Warranty
(“Warranty”). (Complaint, ¶9.) The vehicle, sold by Honda of El Cerrito, an authorized dealership, was
equipped with Honda Sensing. The Complaint describes a defect with plaintiff’s vehicle in the Honda
Sensing system, a defect which causes the various subsystems within it to malfunction, including,
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 27
JUDICIAL OFFICER: TERRI MOCKLER
HEARING DATE: 07/17/2024
“most severely,” the Collision Mitigating Braking System ("CMBS"). (Complaint, ¶ 16; see also ¶¶13-
22, 84-85.)
Plaintiff asserts a Song-Beverly breach of warranty cause of action as well as a fraud cause of
action. In support of fraud, she asserts that Honda knew or should have known about the safety
hazard posed by the Honda Sensing Defect before the sale of vehicles such as hers. (Complaint, ¶23.)
She alleges that Honda knew about the defect from pre-market testing, consumer complaints to the
National Highway Traffic Safety Administration (“NHTSA”), consumer complaints, testing in response
to those complaints, high failure rates and replacement part sales data, and other sources which
drove Honda to issue Technical Service Bulletins acknowledging this defect. (Complaint, ¶23.) Plaintiff
alleges Honda should not have sold, leased, or marketed vehicles equipped with the Sensing Defect
without a full and complete disclosure of the defect, and should have voluntarily recalled all vehicles
equipped with the Sensing Defect long ago, but instead Honda sold and leased defective vehicles, and
continues to do so. (Complaint, ¶¶23-24.)
In purchasing the vehicle, plaintiff relied on the reputation and representations by Honda and
its agents, none of whom disclosed the defects. (Complaint, ¶¶87-88.) Shortly after purchase, she
began to experience problems which led her to bring the vehicle back for repairs covered under the
Warranty. Still, even after multiple attempts, the defendant did not bring the vehicle into conformity.
(Complaint, ¶¶88-104.)
Plaintiff initially filed this suit in San Francisco in May 2023, but it was transferred to this
Court in October of 2023. Defendant filed this demurrer in 2023. It was not opposed by plaintiff and
the Court issued a tentative ruling in February based on the lack of any opposition brief, sustaining
the demurrer with leave to amend. No one contested the tentative ruling, and no amended complaint
was filed. Honda then proceeded to file its answer (a general denial) on April 22, 2024. Pursuant to
stipulation, and because it appears the lack of opposition was due to plaintiff’s lack of notice, the
ruling on the demurrer was vacated on May 15, 2024. Nothing in the stipulation addressed the
previously filed answer and no moving papers were re-filed. However, because that answer
responded to the complaint to which the demurrer was sustained, the answer is no longer valid. In
light of this background, the Court strikes the answer previously filed to enable the present motions
to proceed.
Honda’s demurrer is directed at the second cause of action (inducement – concealment) on
the basis that plaintiff fails to state sufficient facts, as well as uncertainty. Honda also moves to strike
punitive damages.
Plaintiff opposed both motions on July 3, 2024. Plaintiff requests leave to amend in the event
the demurrer or motion to strike is granted.
II. Meet and Confer
Defendant’s counsel states a meet and confer was held by telephone on November 14, 2023,
pursuant to statutory requirements. (See Declaration of Monica Y. Hernandez, attached to
Memorandum of Points and Authorities in Support of Demurrer). Plaintiff does not dispute this
contention and the Court finds it is sufficient.
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 27
JUDICIAL OFFICER: TERRI MOCKLER
HEARING DATE: 07/17/2024
III. Request for Judicial Notice
Plaintiff has requested judicial notice of the second amended complaint filed in Dhital v
Nissan North America, Inc., No. RG19009260 in Alameda County. This was the pleading at issue in the
appellate court’s decision to reverse the trial court’s sustaining of a demurrer.
Defendant does not oppose the request which is granted.
IV. Demurrer
A. Standard
The limited role of a demurrer is to test the legal sufficiency of a complaint. It raises issues of
law, not fact, regarding the form or content of the opposing party's pleading. (Donabedian v. Mercury
Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A complaint will be upheld if it provides the defendant with
“notice of the issues sufficient to enable preparation of a defense.” (Doe v. City of Los Angeles (2007)
42 Cal.4th 531, 549-550.) For purposes of a demurrer, all properly pleaded facts are admitted as true.
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) Only the face of the pleading attacked and
matters subject to judicial notice are considered in ruling on a demurrer. (Code Civ. Proc. § 430.30(a).)
The Court gives the complaint a reasonable interpretation, reading it as a whole and its parts in
context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The trial court exercises its discretion in declining to grant leave to amend, but such discretion
is abused where such leave is denied, and it is reasonably possible the pleading can be cured by
amendment. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)
B. Discussion
Defendant specially demurs to the second cause of action based on uncertainty and generally
demurs to the second cause of action based on plaintiff’s purported failure to state sufficient facts to
constitute a cause of action.
i. Uncertainty
Honda’s demurrer for uncertainty is essentially unsupported by any argument. The Court
construes this as an admission on Honda’s part that uncertainty is not a ground for the Court to
sustain its demurrer. (See Rule of Court 3.1113.)
In any event, uncertainty is a disfavored ground for sustaining a demurrer, and a demurrer for
uncertainty will be sustained only when the pleading is such that the responding party cannot even
discern to what it must respond. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135,
139.) The pleading here meets that low bar. The Court expects that any lingering issues can be
illuminated through discovery. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616
[“demurrer for uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery procedures”].)
On this ground, the demurrer is overruled.
ii. General Demurrer Based on Preemption
Defendant argues that federal law preempts the second cause of action for fraudulent
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 27
JUDICIAL OFFICER: TERRI MOCKLER
HEARING DATE: 07/17/2024
inducement – concealment. The type of preemption asserted by Honda appears to be conflict
preemption (which is implied preemption rather than express), though this is not particularly clear in
Honda’s brief. (See Memorandum in Support of Demurrer, 7:14-18.) Still, while Honda’s bolding and
italics suggest conflict preemption, Honda also suggests field preemption since it asserts the lack of
any California statute on the disclosures at issue here.
Plaintiff’s response to the preemption argument is that it is inappropriate for demurrer.
The Court does not find the demurrer persuasive in this respect. Neither form of preemption
(conflict or field) is thoroughly explained or demonstrated. While federal regulation may exist
concerning what information must be disclosed to the government, it does not follow that the
information required to be disclosed is necessarily sufficient for consumers. Nor does compliance
with that regulatory scheme provide manufacturers license to commit fraud when a disclosure is not
covered by the scheme.
Honda contends application of the common law here would “directly conflict with and stand
as an obstacle to accomplishment of the full purposes and objectives of NHTSA, in a field which
California has NOT traditionally occupied” (See Memorandum in Support of Demurrer pages 23 & 24.)
First, the Court observes that this statement is not about a particular federal statute, but an
argument broadly invoking the universe of purposes served by a particular federal agency, NHTSA.
This suggests a sort of field preemption argument that is undermined by Honda’s concession that
California has regulated in the general area (such as in its passage of a Car Buyer Bill of Rights).
Additionally, states such as California have traditionally occupied the area of tortious fraud claims.
Honda fails to cite any legal authority in which a state law claim for fraud in the sale of a motor
vehicle has been found to be preempted by federal law regulating vehicle safety standards.
Further, Honda does not explain why it cannot comply with both the federal disclosure
requirements and avoid tort liability through refraining from active concealment. This would be a
necessary condition for conflict preemption to apply.
Plaintiff alleges that Honda knew its cars contained defects and actively concealed this
information. (Complaint, ¶¶23-25, 37, 43.) To the extent that Honda’s knowledge included the vehicle
plaintiff purchased, and to the extent Honda actively concealed the issue, the Court agrees with the
opposition argument that these are fact-intensive inquiries not subject to determination on
demurrer. Also, fact-intensive would be whether any of the information plaintiff contends should
have been disclosed could be subject to the “confidential business information” protections
applicable to government disclosure regulations. The intent of the NTHSA regulatory scheme does not
appear to have been to immunize manufacturers from consumer fraud claims.
Defendant also asserts NHTSA is in a better position to provide the information to plaintiff.
This bears little relevance as to whether Honda had a duty of disclosure and this argument does not
defeat, as a matter of law, a fraud claim. NHTSA is not a defendant here.
Honda does not satisfy its own (acknowledged) burden. (See Memorandum in Support of
Demurrer, 6:14-17.) The demurrer is overruled on the basis that federal law preempts this cause of
action.
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 27
JUDICIAL OFFICER: TERRI MOCKLER
HEARING DATE: 07/17/2024
iii. General Demurrer Based on Purported Failure to Allege a “Transaction”
Honda argues plaintiff has not alleged a transaction because she does not allege she
purchased the vehicle from Honda directly. In response, plaintiff argues it was Honda’s superior
knowledge and active concealment that made it responsible for disclosure. Plaintiff further argues
this case is distinguishable from the authorities Honda cites, such as Bigler-Engler v. Breg, Inc. (2017)
7 Cal.App.5th 276, at least in part because Honda’s dealer here was acting as its agent.
There are “four circumstances in which nondisclosure or concealment may constitute
actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the
defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the
defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes
partial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 311, citations omitted.)
Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, though not binding currently,
is persuasive as to this transaction point. That court stated:
At the pleading stage […], we conclude plaintiffs‘ allegations are sufficient. Plaintiffs alleged
that they bought the car from a Nissan dealership, that Nissan backed the car with an express
warranty, and that Nissan's authorized dealerships are its agents for purposes of the sale of
Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs’ claim
is barred on the ground there was no relationship requiring Nissan to disclose known defects.
(Id. at 844.)
As pointed out by the plaintiff, her allegations mirror that case. She alleges a contractual
relationship with Honda directly via the express warranty provided to her, and she alleged that the
authorized dealer from which she purchased the vehicle was an agent of defendant.
The fraudulent concealment claim is not barred by any lack of a transactional relationship.
iv. General Demurrer Based on Economic Loss Doctrine
Defendant attempts to invoke the economic loss rule to demonstrate plaintiff’s cause of
action for fraud is barred as a matter of law. This Court is persuaded by the discussion in Dhital,
wherein the appellate court stated unambiguously that “fraudulent inducement by concealment is
not subject to demurrer on the ground it is barred by the economic loss rule.” (Dhital, supra, at 840-
841.)
If the California Supreme Court reaches the opposite conclusion during the pendency of this
action, defendant may raise its economic loss rule argument again.
For now, the demurrer to the second cause of action is overruled on the grounds that it is
barred by the economic loss rule.
v. General Demurrer Based on Lack of Specificity in Pleading Fraud
The elements of fraud are: (1) a misrepresentation (false representation, concealment, or
nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4)
SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY
MARTINEZ, CA
DEPARTMENT 27
JUDICIAL OFFICER: TERRI MOCKLER
HEARING DATE: 07/17/2024
justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
Honda argues the fraud allegations lack the requisite specificity. It is true that “[i]n California,
fraud must be pled specifically; general and conclusory allegations do not suffice. […] This particularity
requirement necessitates pleading facts which show how, when, where, to whom, and by what
means the representations were tendered.” (Id. at 645.)
Honda does not engage, however, with the allegations of the complaint in making this
argument, possibly because the allegations are sufficiently specific. Plaintiff has asserted that the
Sensing defect is what was concealed and should have been disclosed (see, e.g., Complaint ¶16), that
Honda had knowledge about the defect (Complaint, ¶112) and an intent to deceive plaintiff through
concealment in order to sell the vehicle (see, e.g., Complaint, ¶119). Plaintiff further pleads her
reliance and that it was justifiable, and that she was damaged as a result of the concealment.
(Complaint ¶¶124-125.) Nothing more is required.
The demurrer is overruled on the basis that the fraud cause of action lacks specificity.
V. Motion to Strike
A. Standard
The Court may, in its discretion and upon a motion to strike by defendant: (a) strike out any
irrelevant, false, or improper matter inserted in any pleading, or (b) strike 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. (Code Civ. Proc., §§ 435-436.) The matter must appear on the face of the complaint or be
subject to judicial notice. (Code Civ. Proc., § 437.)
B. Discussion
Honda challenges plaintiff’s request for punitive damages based on her failure to allege a
cause of action for fraud. As noted in the motion, Civil Code § 3294 provides: “[i]n an action for the
breach of an obligation not arising from contract, where it is proven by clear and convincing evidence
that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the
actual damages, may recover damages for the sake of example and by way of punishing the
defendant.” (Civ. Code, § 3294, subd. (a).) Given the above discussion regarding the sufficiency of the
fraud claim, the motion to strike is denied. A valid cause of action for fraud has been asserted and,
accordingly, plaintiff may include a claim for punitive damages.
Ruling
KATHRYN BURDGE vs AIRSTREAM, INC.
Jul 23, 2024 |
24CV00800
24CV00800
BURDGE v. AIRSTREAM INC.
AIRSTREAM’S MOTION TO STAY
The motion to stay is denied.
I. BACKGROUND
Kathryn Burdge’s (“Burdge’) amended complaint, filed on March 26, 2024, alleges a
violation of the Song-Beverly Consumer Warranty Act in relation to her purchase of a 2023
Airstream Atlas RV. She purchased the Airstream in Temecula, California and she resided in
Page 6 of 9
Santa Cruz County at the time of the purchase. Burdge asserts various deficiencies/defects with
the RV.
In connection with the purchase of the Airstream, Burdge signed a Limited Warranty
which stated, in part, the following: “LEGAL REMEDIES: EXCLUSIVE JURISDICTION FOR
DECIDING LEGAL DISPUTES RELATING TO THE ALLEGED BREACH OF EXPRESS
WARRANTY AND BREACH OF THE IMPLIED WARRANTIES ARISING BY
OPERATION OF LAW AS WELL AS THOSE RELATING TO REPRESENTATIONS OF
ANY NATURE RESTS IN THE COURTS WITHIN THE STATE OF MANUFACTURE,
WHICH IS OHIO.” (Ex. B to Dec. of March.)
This language is found on the second page of the Limited Warranty and is the second
paragraph before the signature line for the purchaser. The sales contract is 6 pages long and
signatures were required on each page and, on some pages, multiple signatures on each page.
II. MOTION
Airstream seeks to stay this action to allow Burdge to re-file the case in Ohio, the forum
selection state. Airstream bases its motion on the above-referenced forum selection clause
contained in the signed limited warranty. Airstream contends a motion to enforce a forum
selection clause is a motion to stay (or dismiss) the action to allow a plaintiff to file in the proper
court.
Airstream argues the forum selection provision is mandatory and reasonable. Further,
Airstream acknowledges Burdge cannot be compelled to waive her rights under Song-Beverly,
and thus, it will stipulate to have the Ohio courts apply Song-Beverly in this case. Airstream
contends a stay would allow for time to determine if the Ohio courts would apply Song-Beverly.
If they will not, then Burdge could bring the case back to Santa Cruz.
Burdge opposes the stay. She argues Airstream failed to provide evidence demonstrating
she freely and voluntarily agreed to the forum selection clause. Even though Burdge signed the
limited warranty “she had to sign the document even if she did not understand the importance of
the forum selection clause.” (Opp at pg. 3.) That is, Burdge was required to sign the
acknowledgment of document and that does not prove she waived her rights under Song-Beverly
freely and voluntarily.
Burdge asserts Airstream failed to provide evidence that the designated forum will not
diminish her rights afforded under California law. Specifically, she argues, even if the court finds
she freely and voluntarily agreed to the forum selection clause, Airstream cannot show that Ohio
law will not diminish her substantive rights. Burdge contends Airstream’s offer to stipulate to
have the Song-Beverly apply in Ohio is insufficient because the choice of law in the Limited
Page 7 of 9
Warranty states that Ohio law will govern procedural issues and how the express warranty is
construed and interpreted.
III. DISCUSSION
“Trial courts generally have the inherent power to stay proceedings in the interests of
justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33
Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79;
CCP § 128(a)(3) [“Every court shall have the power to do all of the following: To provide for the
orderly conduct of proceedings before it, or its officers.”].)
"The procedure for enforcing a forum selection clause is a motion to stay or dismiss for
forum non conveniens." (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294.)
“California law is ‘in accord with the modern trend which favors enforceability of such
[mandatory] forum selection clauses. [Citations.] No satisfying reason of public policy has been
suggested why enforcement should be denied a forum selection clause appearing in a contract
entered into freely and voluntarily by parties who have negotiated at arm's length. For the
foregoing reasons, we conclude that forum selection clauses are valid and may be given effect, in
the court's discretion and in the absence of a showing that enforcement of such a clause would be
unreasonable.’ [Citation.]” (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21
Cal.App.5th 438, 444-445.)
“‘California courts will refuse to defer to the selected forum if to do so would
substantially diminish the rights of California residents in a way that violates our state's public
policy.’ [Citation.]” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147.) “The party
opposing enforcement of a forum selection clause ordinarily ‘bears the substantial burden of
proving why it should not be enforced.’ [Citations.] That burden, however, is reversed when the
claims at issue are based on unwaivable rights created by California statutes. In that situation,
the party seeking to enforce the forum selection clause bears the burden to show litigating
the claims in the contractually designated forum ‘will not diminish in any way the
substantive rights afforded … under California law.’ [Citations.]” (Id.) (Emphasis added.)
In this case, while she did sign the limited warranty, the court agrees with Burdge that the
warranty was not signed knowingly as to the forum selection clause and that application of the
clause would be unreasonable and/or unfair. The clause is buried in the second to the last
paragraph and is written in legalese such that a reasonable consumer could not be expected to
understand they were acquiescing to file a lawsuit in Ohio. The exclusive jurisdiction section
does not adequately inform the consumer that they would need to file suit in Ohio for warranty
issues, especially given that Burdge lives in California and purchased the Airstream in
Page 8 of 9
California. The court also notes the length of the sales contract and number of signatures
required as factors which balance in Burdge’s favor.
The court does not find Airstream has carried its burden in demonstrating that Burdge’s
substantive rights will not be diminished in any way if the case is brought in Ohio. Despite the
offer of Airstream’s counsel to stipulate to apply California law in Ohio, there is no guarantee
the Ohio courts will agree to this arrangement; that is, what is the effect of the stipulation in the
Ohio courts? Second, Airstream’s proposal would create two pending actions, which does not
promote judicial economy. Third, having California courts apply California law simply makes
more sense in terms of protecting Burdge’s rights under the Song-Beverly Act and for efficient
case management.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 9 of 9
Ruling
JAIRO REGALADO CANCHOLA ET AL VS. AMERICAN HONDA MOTOR CO., INC, ET AL
Jul 26, 2024 |
CGC23610505
Matter on the Discovery Calendar for Friday, Jul-26-2024, Line 9, 2-PLAINTIFFS JAIRO CANCHOLA AN INDIVIDUAL, and ANDREA RODRIGUEZ' Motion To Compel Responses, Without Objections, To Plaintiffs' Requests For Production Of Documents (Set One). Continued on the court's motion to August 21, 2024. (D302)
Ruling
China Tianjiu International Resources Group Limited vs Renee Kwan, et al
Jul 23, 2024 |
20CV01351
20CV01351
CHINA TIANJIU INT’L RESOURCES GRP LTD v. KWAN et al.
(UNOPPOSED) PLAINTIFF’S MOTION TO BE RELIEVED
The unopposed motion to be relieved is granted. Plaintiff is ordered to immediately
secure successor counsel, since a business entity party cannot proceed in pro per.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
HUDSON INSURANCE COMPANY, A CORPORATION vs MAKSOUD
Jul 27, 2024 |
CVRI2300335
HUDSON INSURANCE
Motion for Attorney's Fees by HUDSON
COMPANY, A
CVRI2300335 INSURANCE COMPANY, A
CORPORATION vs
CORPORATION
MAKSOUD
Tentative Ruling: Award Attorneys fees in the amount of 8,768.89, Award costs in the amount
of 1,316.82.
No opposition or motion to tax costs having been filed, the court awards fees and cost in the
amount requested by the prevailing party. Plaintiff to prepare, circulate and submit an order
consistent with the courts ruling.