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Portfolio Recovery Associates, Llc Vs Schneider, Donna J

Case Last Refreshed: 8 months ago

Portfolio Recovery Associates, Llc, filed a(n) Breach of Contract - Commercial case represented by Nordyke, Dale R, against Schneider, Donna J, in the jurisdiction of Benton County, OR, . Benton County, OR Superior Courts with Matthew J. Donohue presiding.

Case Details for Portfolio Recovery Associates, Llc v. Schneider, Donna J

Judge

Matthew J. Donohue

Filing Date

August 09, 2018

Category

Contract

Last Refreshed

November 11, 2023

Practice Area

Commercial

Filing Location

Benton County, OR

Matter Type

Breach of Contract

Case Outcome Type

Judgment

Parties for Portfolio Recovery Associates, Llc v. Schneider, Donna J

Plaintiffs

Portfolio Recovery Associates, Llc

Attorneys for Plaintiffs

Nordyke, Dale R

Defendants

Schneider, Donna J

Case Events for Portfolio Recovery Associates, Llc v. Schneider, Donna J

Type Description
Docket Event Digitized Judgment Document
General Jgm and Money Award

Judge: Donohue, Matthew

Docket Event Order - Default

Judge: Donohue, Matthew

Docket Event Statement - Costs & Disbursement
Docket Event Closed
Docket Event Notice - Judgment Entry
Docket Event Motion - Default Order
Docket Event Declaration
Docket Event Proof - Service
Docket Event Summons
Docket Event Service
See all events

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Ruling

JAIRO REGALADO CANCHOLA ET AL VS. AMERICAN HONDA MOTOR CO., INC, ET AL
Jul 09, 2024 | CGC23610505
Matter on the Disocvery Calendar for Tuesday, July 9, 2024, line 4, 3 - PLAINTIFF JAIRO CANCHOLA'S, ANDREA RODRIGUEZ Motion To Compel Responses, Without Objections, To Plaintiffs' Form And Special Interrogatories (Set One) Continued to July 26, 2024. No JPT available. = (302/JPT)

Ruling

EDWARD WESTERMAN VS. FTI CONSULTING, INC. ET AL
Jul 09, 2024 | CGC24615152
Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 12. PLAINTIFF EDWARD WESTERMAN's Motion To Seal. Plaintiff's unopposed motion to seal is granted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

VALLEY FRESH PRODUCE, INC. vs JOSE BARRAGAN, et al
Jul 10, 2024 | 20CV01416
20CV01416 VALLEY FRESH PRODUCE, INC. v. BARRAGAN (UNOPPOSED) MOTIONS TO BE RELIEVED AS COUNSEL The unopposed motions to be relieved as counsel filed by Dianna L. Albini are granted as they comply with California Rules of Court, Rule, 3.1362. The court will sign the proposed orders. Page 1 of 3 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

TALAL ALTAMIMI, ET AL. VS LIEF ORGANICS, LLC
Jul 10, 2024 | 23CHCV02417
Case Number: 23CHCV02417 Hearing Date: July 10, 2024 Dept: F47 Dept. F47 Date: 7/10/24 Case #23CHCV02417 MOTION TO STRIKE Motion filed on 5/28/24. MOVING PARTY: Defendant Lief Organics, LLC RESPONDING PARTY: Plaintiff Mankind Essentials, Inc. NOTICE: ok RELIEF REQUESTED : An order striking the Second Amended Complaint filed by Plaintiff Mankind Essentials, Inc. and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5. RULING : The motion is denied. SUMMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of an agreement entered into by former plaintiffs Talal Altamimi, III (Altamimi) and Plaintiff Mankind Essentials, Inc. (Mankind/Plaintiff) and Defendant Lief Organics, LLC (Defendant) for the manufacture of fertility and dietary products for Mankind. Based on three orders, Altamimi and Plaintiff paid Defendant deposits totaling $22,787.50. Plaintiff alleges that Defendant failed to perform under the agreement. On 8/11/23, Altamimi and Mankind filed this action against Defendant for: (1) Breach of Contract, (2) Fraudulent Deceit, (3) Breach of the Covenant of Good Faith and Fair Dealing, (4) Promissory Fraud and (5) Negligence. After attempts to meet and confer regarding the issues Defendant had with the complaint were unsuccessful, on 11/20/23, Defendant filed and served a demurrer to the original complaint. On 12/28/23, 9 court days before the 1/11/24 hearing date on the demurrer, Plaintiff Mankind Essentials, Inc. (Plaintiff), alone, filed and served a First Amended Complaint which rendered the demurrer moot. ( See 1/11/24 Minute Order citing CCP 472(a); CCP 1005(b)). After meet and confer efforts failed to resolve the issues Defendant had with the First Amended Complaint, pursuant to an extension of time to respond to the First Amended Complaint, on 2/9/24, Defendant filed and served a demurrer to the 2 nd , 4 th and 5 th causes of action in the First Amended Complaint. On 3/7/24, the date a reply was due to be filed and served, Defendant filed and served a Notice of Non-Opposition to the demurrer. See CCP 1005(b) On that same date and without any explanation, Plaintiff filed and served a late opposition to the demurrer. On 3/8/24, Defendant filed and served a reply to the opposition. On 3/14/24, the Court sustained the demurrer with 30 days leave to amend making a Second Amended Complaint due on or before 4/15/24. ( See 3/14/24 Minute Order). Plaintiff filed and served its Second Amended Complaint on 5/2/24. Thereafter, Defendant contacted Plaintiff regarding the impropriety of filing the Second Amended Complaint beyond the deadline set by the Court and asked Plaintiffs counsel to withdraw the Second Amended Complaint. (Bamford Decl. ¶¶6-7, Ex.C). Plaintiff did not directly respond to the request to withdraw the Second Amended Complaint and has not withdrawn the pleading. (Bamford Decl. ¶¶6-7). On 5/28/24, Defendant filed and served the instant motion seeking an order striking the Second Amended Complaint filed by Plaintiff and for sanctions against Plaintiff and Plaintiffs counsel in the amount of $4,042.50 pursuant to CCP 128.5. At the 5/29/24 Case Management Conference, former plaintiff Talal Altamimi represented that Plaintiff was no longer represented by counsel, although a substitution of attorney had not been filed. ( See 5/29/24 Minute Order). On 6/14/24, at the hearing on Defendants Motion to Compel Arbitration, Plaintiffs counsel represented that Plaintiffs counsel had substituted out; however, a substitution of attorney had still not been filed. ( See 6/14/24 Minute Order). At the same hearing, defense counsel represented to be in contact with Plaintiff; the parties had entered into a settlement agreement and requested the hearing on the motion be continued. Id . Therefore, the hearing on the motion to compel arbitration was continued to 8/14/24. Id . Despite the foregoing, on 7/2/24, Defendant filed a Notice of Non-Opposition to the instant motion to strike. Also, on 7/2/24, Plaintiff filed a substitution of attorney indicating that former plaintiff, Talal Altamimi, is substituted in as counsel for Plaintiff. As noted on the Substitution of Attorney form itself, unless Altamimi is an attorney, Altamimi cannot represent the corporate Plaintiff in court. ANALYSIS Defendant seeks to strike the Second Amended Complaint on the ground that it was not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court because it was filed beyond the 30-day deadline set forth in the Courts 3/14/24 order sustaining Defendants demurrer with 30 days leave to amend. See CCP 436(b). Defendant also seeks sanctions against Plaintiff and Plaintiffs (former) counsel on the ground that the filing of the Second Amended Complaint beyond the court ordered deadline constitutes frivolous conduct. See CCP 128.5. While the Second Amended Complaint was filed and served beyond the court-ordered deadline, Defendant has not shown that it has suffered any prejudice as a result of the late filing and service. Similarly, the Court does not find the late filing and service of the Second Amended Complaint constitutes frivolous conduct which warrants the imposition of sanctions. CONCLUSION Based on the foregoing, the motion is denied. As noted above, unless Talal Altamimi is an attorney, Altamimi cannot represent Plaintiff Mankind Essentials, Inc. in court. Therefore, Altamimi cannot appear on behalf of Plaintiff at this hearing or any future hearing. If Altamimi is not an attorney, Plaintiff must obtain counsel before the next scheduled court hearing or the Court will set an Order to Show Cause as to why the action should not be dismissed.

Ruling

EVAN KROW VS. ACCESS MARIN, INC. ET AL
Jul 10, 2024 | CGC23604737
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 6. DEFENDANT ROBERT ELAM's Motion For Relief From Default. Continued to July 26, 2024, to be heard by Judge East. =(302/RBU)

Ruling

Edwards, et al. vs. General Motors LLC
Jul 10, 2024 | 22CV-0200334
EDWARDS, ET AL. VS. GENERAL MOTORS LLC Case Number: 22CV-0200334 Tentative Ruling on Motion for Attorney Fees and Costs: Plaintiffs David and Stephanie Edwards filed this action alleging violation of the Song-Beverly Consumer Warranty Act (“Act”) against General Motors, LLC (“GM”) and Taylor Motors, Inc. (“TMI”) on August 4, 2022. Following extensive motion practice, primarily concerning discovery issues, the parties settled the matter on May 7, 2024. Pursuant to the Act, and the terms of the settlement agreement, Plaintiffs are the prevailing party entitled to recover reasonable attorney fees and costs. Plaintiffs seek a total of $319,464.80 in attorney fees and costs. This request consists of $149,773.50 in attorney fees for 269.3 hours of work litigating this matter from August 5, 2022 to the present, a 2.0 multiplier, and $19,917.80 in costs. Objections to Evidence: Plaintiffs have raised 10 Objections to portions of the Declaration of Cameron Major on the grounds that certain statements and supporting exhibits are improper argument, lack foundation, are conclusory, and lack personal knowledge. The Objections are OVERRULED. Song-Beverly: The Song-Beverly Act contains a cost-shifting provision that specifically allows prevailing buyers to recover their costs, including attorney’s fees. Civ. C. § 1794(d). The attorney’s fee award is limited to the amount the court determines was reasonably incurred by the buyer in commencing and prosecuting the action, based on actual time expended. The prevailing buyer has the burden of proving the fees were both reasonably necessary to conduct the litigation and reasonable in amount. Civil Code § 1794(d); Robertson v. Fleetwood Travel Trailers of California, Inc., (2006) 144 Cal. App. 4th 785. The lodestar method applies to determining attorney’s fees under the Song-Beverly Act. Id. at 817. When determining a reasonable attorney's fee award, using the lodestar method, the judge begins by deciding the reasonable hours the prevailing party's attorney spent on the case and multiplies that number by the prevailing hourly rate for private attorneys in the community who conduct non-contingent litigation of the same type. Doppes v Bentley Motors, Inc. (2009) 174 CA4th 967, 998. Plaintiff is entitled to be compensated at rates that reflect the reasonable market value of their services in the community. Serrano v. Unruh (1982) 32 Cal.3d 621, 643. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is the best judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752. Reasonableness of Hours: The court has discretion to decide which of the hours expended by the attorneys were reasonably spent on litigation. Hammond v. Agran (2002) 99 Cal.App.4th 115, 133. The predicate of any attorney fee award is the necessity and usefulness of the conduct for which compensation is sought. Thayer v. Wells Fargo Bank, N.A. (2001) 92 Cal.App.4th 819, 846. The court’s focus in evaluating the fee request should be to provide a fee award reasonably designed to completely compensate attorneys for the services provided. The starting point for this determination is the attorney’s time records. Absent clear indication they are erroneous, verified time records are entitled to credence. Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 395-397. Plaintiffs seek a total of $149,773.50 in attorney’s fees associated with 269.3 hours of work performed by four attorneys and one unknown individual. Plaintiffs have submitted detailed time records to support their request. Defendant challenges numerous specific entries. (Opposition pp. 8 – 11.) The Court has reviewed the billing records in detail, as well as Defendant’s objections. Counsel billed a total of 269.3 hours to this litigation, which commenced August 4, 2022. The parties engaged in extensive law and motion practice over 22 months of litigation. The matter settled on the eve of trial for the maximum possible recovery under the law. The Court finds the time spent was reasonably expended, with the following exceptions: 1) time billed by Erika Kavicky – no information regarding this attorney’s qualifications and experience has been provided, a total of 0.6 hours will be stricken for Ms. Kavicky’s time, and 2) time billed by Angela Mason – no information regarding this individual’s position, qualifications or experience has been provided, a total of 1.7 hours will be stricken for Ms. Mason’s time. The billing records Plaintiffs provided show the following hours were reasonably expended: 133.9 by Deborah Horowitz, 115.4 by Joseph Kaufman and Associates, and 18.4 for the Kaufman and Kavicky firm. The total hours reasonably expended on this matter are therefore 267.7. Reasonableness of Rates: A reasonable hourly rate is determined by the prevailing rate charged to attorneys of similar skill and experience in the relevant community. See PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095. However, the court may also consider the attorney’s skill and expertise, the nature of the work performed, the relevant area of expertise and the attorney’s customary billing rates. Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632. A plaintiff seeking to recover hourly rates for out-of-town counsel that are higher than the local rates must show (1) a good faith effort to find local counsel, and (2) demonstrate that hiring local counsel was impracticable. Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1243. The Court is the best judge of the value of professional services provided and may use its discretion to apply rates in line with the market rates for the services provided. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132. This Court has extensive experience in presiding over Song Beverly actions including motions for attorney’s fees, costs and expenses under Song Beverly. As such this Court is aware of the reasonable hourly rates charged in actions of this nature. It is also aware of the prior hourly rates found to be reasonable. Based on the Court’s extensive knowledge and experience, it finds that reasonable hourly rates are $400 per hour for the partners, and $350 per hour for the associate (Isaac Agyeman - 10 years of experience). The Court notes that Plaintiff Anthony Edwards has submitted a Declaration indicating that he made a good faith effort to find local counsel but was unable to do so. The Court has reviewed this voluminous case file, which contains numerous discovery motions supported by attorney declarations regarding fees. It appears that Plaintiff has not previously submitted a declaration regarding inability to find local counsel in support of hourly rates above reasonable local rates. The Court has previously, consistently, found a rate of $400 per hour a reasonable rate for partners in this matter. In the interest of consistency within this case, and fairness to Defendants who have previously been ordered to pay sanctions at the rate of $400 per hour, the Court will again find that $400 per hour is a reasonable rate for partners in this matter. The Court finds that $350 per hour is a reasonable rate for the associate in this matter. The Court notes that the billing records submitted do not break out total hours billed by each individual partner and associate. Considering the large number of billing entries, it is impractical for the Court to recalculate the correct billing at the approved rates. Plaintiffs are ordered to submit recalculated totals using the Court’s approved rates. Multiplier: Plaintiffs seek a 2.0 multiplier based on the results obtained and the contingent risks. Adjustment factors that may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved, 2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) the contingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 348. Plaintiff has not demonstrated a multiplier is warranted in this case. The issues involved in this litigation were neither novel nor difficult. Counsel have demonstrated they are specialists, who are experienced and skilled in this area of law, but this case involved routine issues under Song-Beverly. This litigation precluded other employment to the extent any litigation would. The matter was taken on a contingent fee basis as is all Song-Beverly litigation. The Court acknowledges Plaintiffs’ Counsel obtained the maximum award for the client. However, simply obtaining a positive result in a factually and legally standard Song-Beverly case does not warrant a multiplier. Costs and Expenses: The Song-Beverly Act provides that the court will award a successful plaintiff a sum equal to the aggregate amount of costs and expenses, which have been determined to have been reasonably incurred. Civil Code § 1794(d). Plaintiffs have requested an award of costs and expenses in the amount of $19,917.80. However, the declarations submitted in support of the moving papers only include itemized costs for a total of $16,247.81. The discrepancy is addressed only in the Reply materials. (Plaintiffs submitted a Supplemental Declaration of Isaac Agyeman which attaches a record of costs of $3,730 as Exhibit 6.) GM did not have the opportunity to review and oppose those costs, as they were raised for the first time in the Reply brief. Therefore, they will not be awarded. The remaining amount of $16,247.81 appears reasonably incurred with the following exceptions, which will be stricken: 1) $602.26 for Plaintiff’s mistakenly filing the Complaint twice, 2) $304.99 for Plaintiff’s “Re-Filing” Motion for Leave to Amend, as it is a duplicate entry without explanation, 3) $180.16 and $592.73 for Plaintiff’s Notice of Association of Counsel and Substitution of Attorney, respectively, as they are business expenses of Counsel, not proper litigation expenses. As for costs related to Taylor Motors, the Court notes the parties’ settlement agreement is between and among David Edwards and Stephanie Edwards (“Plaintiffs”) and General Motors LLC and Taylor Motors, Inc (“Defendants”). The agreement provides “Defendants shall pay Plaintiffs attorney’s fees, costs, and expenses in an amount determined by the Court, by way of a single noticed motion…” (Decl. Kaufman Ex. 1.) The Court finds the parties’ agreement contemplates that Plaintiffs’ costs related to Taylor Motors would be included in the instant motion for fees and costs. The total costs and expenses reasonably incurred are $14,567.67. The Motion for Fees and Costs is GRANTED in part, as detailed above. Plaintiff is ordered to prepare a proposed order consistent with the Court’s ruling. Plaintiff is also ordered to file and serve a declaration which includes the recalculated totals for attorney fees using the Court- approved rates detailed above. This matter is set for Monday August 12, 2024, at 8:30 a.m. in Department 64 for review regarding the supplemental declaration and proposed order. If a satisfactory supplemental declaration and proposed order are submitted at least five court days prior to the continued date, the hearing may be vacated. P.J. MCAULIFFE FAMILY PARTNERSHIP, L.P. VS. THE TESTATE OR INTESTATE SUCCESSORS OF NORA

Ruling

SEROP BEJANIAN VS JAMIE GAO
Jul 09, 2024 | 23STCV10907
Case Number: 23STCV10907 Hearing Date: July 9, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: July 9, 2024 TRIAL DATE: NOT SET CASE: Serop Bejanian v. Jamie Gao CASE NO.: 23STCV10907 DEMURRER TO FIRST AMENDED CROSS-COMPLAINT; MOTION TO STRIKE PORTIONS OF FIRST AMENDED CROSS-COMPLAINT MOVING PARTY : Plaintiff/Cross-Defendant Serop Bejanian RESPONDING PARTY(S) : Defendant/Cross-Complainant Jamie Gao CASE HISTORY : · 05/16/23: Complaint filed. · 07/10/23: Cross-Complaint filed. · 08/25/23: First Amended Cross-Complaint filed. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is an action for breach of contract and fraud. Plaintiff alleges that Defendant agreed to sell all his rights and interests in a holding company that was jointly owned by the parties but failed to deliver the assets pursuant to the agreement. Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint and moves to strike portions of the Cross-Complaint. TENTATIVE RULING: Cross-Defendants Demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first cause of action and otherwise OVERRULED. Cross-Defendants Motion to Strike is GRANTED as to the request for attorneys fees and otherwise DENIED as moot. // DISCUSSION: Plaintiff/Cross-Defendant demurs to the First Amended Cross-Complaint and moves to strike portions of the Cross-Complaint. Legal Standard A demurrer tests whether the complaint or cross-complaint states a cause of action. ( Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. ( Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. ( Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. ( SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. ( Hahn, supra , 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the [cross-] complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. ( Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, [o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true].) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. ( Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) Meet and Confer Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet-and-confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet-and-confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).) The declaration of Matthew Eanet in support of the demurrer states that his office sent a letter to Cross-Complainants counsel on September 20, 2023 identifying the issues raised in this demurrer, but received no response. (Declaration of Matthew Eanet ISO Dem. ¶¶ 3-5, Exh. 1.) Cross-Defendant has therefore satisfied his statutory meet-and-confer obligations. First Cause of Action: Conversion Cross-Defendant demurs to the first cause of action for conversion for failure to state facts sufficient to constitute a cause of action. Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiffs ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages. ( Lee v. Hanley (2015) 61Cal.4th 1225, 1240.) Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. A generalized claim for money [is] not actionable as conversion. ( PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 [internal citations omitted].) Cross-Defendant contends that the First Amended Cross-Complaint does not allege sufficient facts because it merely alleges a generalized claim for money, not misappropriation of a specific sum of which Cross-Defendant was the custodian. The Cross-Complaint alleges that Cross-Defendant has diverted profits from the operations of [Smash Me Baby Holdings, LLC] or arising from the use of the assets belonging to SMB and has retained them for himself. (FAXC ¶ 45.) Cross-Complainant argues that this allegation is sufficient because a 50% interest in the company is a specific, identifiable sum. Cross-Complainant attempts to analogize this case to Mendoza v. Continental Sales to argue that profits from a business venture are a specific sum for which a party may maintain a conversion claim. ( Mendoza v. Continental Sales (2006) 140 Cal.App.4th 1395.) As Cross-Defendant argues in reply, this analogy is misplaced because Mendoza concerned crop consignment agreements in which a commission merchant sold crops entrusted to it and thereafter kept a specific, definite sum of the sale proceeds in excess of the agreement. ( Mendoza, supra, 140 Cal.App.4th at 1405.) The Cross-Complaint does not allege such a definite sum, but rather makes a general claim for uncertain profits. Accordingly, Cross-Defendants demurrer to the first cause of action is SUSTAINED. Uncertainty Cross-Defendant also demurs to the cross-complaint in its entirety as uncertain. Demurrers¿for uncertainty are disfavored, because discovery can be used for clarification, and they apply only where defendants cannot reasonably determine what issues or claims are stated.¿( Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal., Inc. ¿(1993) 14 Cal.App.4th 612, 616.) If the complaint is sufficiently comprehensible that Defendant can reasonably respond, the complaint is not uncertain. ( Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848 n.3.) Cross-Defendant argues that the Cross-Complaint is uncertain because it conflates two different corporate entities regarding dividend distributions, does not specify the terms of the Asset Purchase Agreement at issue, does not set forth the circumstances of dividend distributions, and does not specify damages. "The objection of uncertainty does not go to the failure to allege sufficient facts." ( Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) These arguments, which go to the failure to allege sufficient facts, are not sufficient to demonstrate uncertainty. Accordingly, Cross-Defendants Demurrer to the second cause of action is OVERRULED. Leave to Amend When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a party has pleaded the general set of facts upon which his cause of action is based, the court should give the plaintiff an opportunity to amend his complaint, since the cross-complainant should not be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars. ( Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the cross-complainant to demonstrate the manner in which they can amend their pleadings to state their claims against a cross-defendant. ( Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) Here, Cross-Complainant has not shown how the Cross-Complaint might be amended to cure this defect. However, in deference to the policy strongly in favor of amendment, the Court will exercise its discretion to grant leave to amend. Conclusion Accordingly, Cross-Defendants Demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first cause of action and otherwise OVERRULED. Motion to Strike Portions of First Amended Cross-Complaint Cross-Defendant moves to strike portions of the First Amended Cross-Complaint pertaining to treble damages and attorneys fees. Legal Standard The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike 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. Id ., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. Id.§ 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id .§ 437. When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768. A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders. Code Civ. Proc., § 436(b). This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed." Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (emphasis in original). Meet and Confer Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet-and-confer efforts. (Code Civ. Proc., § 435.5(a).) However, an insufficient meet-and-confer process is not grounds to grant or deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4).) The declaration of Matthew Eanet in support of the motion states that his office sent a letter to Cross-Complainants counsel on September 20, 2023 identifying the issues raised in this demurrer, but received no response. (Declaration of Matthew Eanet ISO Mot. ¶¶ 3-5, Exh. 1.) Cross-Defendant has therefore satisfied his statutory meet-and-confer obligations. Analysis Cross-Defendant moves to strike portions of the First Amended Cross-Complaint pertaining to treble damages and attorneys fees. With respect to the prayer for treble damages, Cross-Complainant argues in opposition that this request is justified by the first cause of action for conversion. As the Court has sustained the demurrer to that cause of action with leave to amend, the motion to amend is moot as to this prayer for relief and must be denied on that basis. As to the request for attorneys fees, Cross-Defendant argues that the Cross-Complaint discloses no basis for attorneys fees. Such fees are only recoverable when authorized by contract, statute, or other law. (Code Civ. Proc. § 1033.5(a)(10).) In opposition, Cross-Complainant argues that this request is premature. It is not. Nothing in the Cross-Complaint demonstrates entitlement to attorneys fees, and Cross-Complainant offers no argument demonstrating why those fees are proper. The request for attorneys fees must therefore be stricken. Conclusion Accordingly, Cross-Defendants Motion to Strike is GRANTED as to the request for attorneys fees and otherwise DENIED as moot. // CONCLUSION : Accordingly, Cross-Defendants Demurrer to the First Amended Cross-Complaint is SUSTAINED with leave to amend as to the first cause of action and otherwise OVERRULED. Cross-Defendants Motion to Strike is GRANTED as to the request for attorneys fees and otherwise DENIED as moot. Moving Party to give notice. IT IS SO ORDERED. Dated: July 9, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Ruling

TOYOTA INDUSTRIES COMMERCIAL FINANCE INC. VS AIR BOY EXPRESS, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 | 22STCV17241
Case Number: 22STCV17241 Hearing Date: July 9, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING TOYOTA INDUSTRIES COMMERCIAL FINANCE INC., vs. AIR BOY EXPRESS, INC., et al. Case No.: 22STCV17241 Hearing Date: July 9, 2024 Plaintiff Toyota Industries Commercial Finance, Inc.s unopposed motion to amend the judgment entered on August 25, 2023, is granted. Plaintiff Toyota Industries Commercial Finance, Inc. (Toyota) (Plaintiff) moves unopposed for this Court to amend the judgment in this matter entered on August 25, 2023, against Defendants Kil H Choi aka Kil Han Choi and Air Boy Express, Inc. (collectively Defendants) to remove the name of Air Boy Express, Inc., erroneously included in the Judgment as a Plaintiff on line 5. (Notice of Motion, pg. 1; C.C.P. §473(d).) Background On August 25, 2023, the court granted Plaintiffs default judgment against Defendants. Plaintiff filed multiple default judgment packets to the Court, which necessitated this Courts line edit to include the name of Air Boy Express, Inc. on the judgment listing Kil H Choi aka Kil Han Choi according to the one judgment rule. However, this Court erroneously entered the name of Air Boy Express, Inc. as a Plaintiff instead of as a Defendant. Plaintiff filed the instant motion on March 13, 2024. As of the date of this hearing no opposition has been filed. Motion to Amend Judgment Legal Standard Once a judgment is entered, trial courts lose jurisdiction to set aside or amend the judgment except in accordance with statutory procedures. ( APRI Insurance Co. v. Superior Court (1999) 76 Cal.App.4th 176, 182; Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238). However, [t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (C.C.P. §473(d).) Discussion Plaintiffs motion to amend the clerical error in the judgment to remove the name of Air Boy Express, Inc. from line 5 as a Plaintiff and include the name of Air Boy Express, Inc. as a Defendant is granted. Here, the Court made an error by placing the name of Air Boy Express, Inc. on the Judgment in the wrong location. Accordingly, Plaintiffs unopposed motion is granted. Conclusion Plaintiffs unopposed motion to amend the judgment to remove the clerical error listing Defendant Air Boy Express, Inc. as a Plaintiff and add the name Air Boy Express, Inc. as a Defendant is granted. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

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