Daniel Cottrell V Lawrence Viveiros

Case Number: 22PSCV00196 Hearing Date: July 25, 2024 Dept: 6 CASE NAME: Langer Juice Company, Inc. v. Silly Brands, Inc., et al. Plaintiff Langer Juice Company, Inc. and Cross-Defendants Bruce Langer and David Langers Motion for Summary Judgment and/or in the Alternative Summary Adjudication TENTATIVE RULING The Court DENIES Plaintiff/Cross-Defendant Langer Juice Company, Inc. and Cross-Defendants Bruce Langer and David Langers motion for summary judgment and/or in the alternative summary adjudication, without prejudice. Moving parties are ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a breach of contract case. On March 2, 2022, plaintiff Langer Juice Company, Inc. (Plaintiff) filed this action against defendants Silly Brands, Inc. (Silly Brands) and Keith Davis (Davis), alleging causes of action for breach of contract and common counts. On May 4, 2022, Silly Brands filed a cross-complaint against Plaintiff, Bruce Langer, and David Langer, alleging causes of action for breach of contract (Co-Packing Agreement), breach of implied duty to perform with reasonable care, breach of implied covenant of good faith and fair dealing, unjust enrichment, breach of contract (Operating Agreement), and breach of fiduciary duty. On June 10, 2022, Bruce Langer and David Langer (Langer Parties) filed a cross-complaint against Silly Brands and Davis, alleging causes of action for breach of Silly Brands Inc. operating agreement (against Davis only) and breach of fiduciary duty. On May 8, 2024, Plaintiff and Langer Cross-Defendants (collectively, Moving Parties) moved for summary judgment and/or in the alternative summary adjudication. On July 11, 2024, Defendant Davis opposed the motion, and Defendant Silly joined. On July 18, 2024, Moving Parties replied. LEGAL STANDARD The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (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, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) 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.) DISCUSSION Procedural Defects The Court notes the motion contains multiple procedural defects that render it defective. First, Moving Parties combined multiple pleadings into one summary judgment motion, which is improper. A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c, subd. (a), italics added.) A party may move for summary adjudication as to one or more causes of action within an action & ( Id. , § 437c, subd. (a), italics added.) Plaintiffs complaint and Silly Brands cross-complaint are separate actions. ( Metro. Transit Sys. v. Superior Ct. (2007) 153 Cal.App.4th 293, 302 [a cross-complaint is to be treated as an independent action]; Westamerica Bank v. MBG Indus., Inc. (2007) 158 Cal.App.4th 109, 132 [A complaint and cross-complaint are treated as independent actions for most purposes, except with respect to the requirement of one final judgment. [Citation.]) Moving Parties should have filed two separate motions for summary judgment, one directed at the complaint and another directed at Silly Brands cross-complaint, and paid the separate filing fees. (See Govt. Code, § 70617, subd. (d).) Second, Moving Parties separate statement fails to comply with the requirements of Rule 3.1350 of the California Rules of Court. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. (Cal. Rules of Court, rule 3.1350, subd. (d)(2).) Moving Parties separate statement is 134 pages long. This is grossly excessive, even if many causes of action and affirmative defenses are at issue. It is difficult to conceive of a properly drafted Separate Statement that includes over 600 paragraphs of undisputed material facts&. Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. ( Beltran v. Hard Rock Hotel Licensing, Inc. (2024) 97 Cal.App.5th 865, 876 ( Beltran ), footnote omitted.) The Court does not have the time or resources to read through 134 pages of purported statements of material fact. Third, the separate statement is rife with immaterial facts. For example, paragraph 3 reads: Silly Brands, Inc. has breached the terms of the verbal agreement for co-packing services with Langer Juice Company by failing to pay the sum due of $316,821.80 due and owing to the series of invoices issued by Langer Juice Company, and storage charges invoice of $14,310.00 for total damages of $331,131.80. The following further damages are claimed and may be determined on this summary judgment and or by summary adjudication as not being subject to any issue of material fact: The invoices of Langer Juice (Decl. of Bruce Langer, Exhibits C and E) contain a requirement that: If this invoice is not paid within 30- days of the billing date, the invoice amounts will be subject to a finance charge of 1.5% per month (annual percentage rate 18%) The interest accrued since the date of breach [October 10, 2020] until April 2024 is calculated as follows: $316,821.80 x 1.5 % per month for the period from the date of breach [October 10, 2020] until the present, a period of 42 months would total $199,597.23. Thus, the damages complained of and to be adjudicated by this motion for summary judgment and summary adjudication includes this amount of accrued interest of $199,597.23. Further damages for which there are no disputed material facts and that should be allowed and ordered in this motion for summary judgment and/or summary adjudication are rental amounts assessed by Langer Juice Company, because of Silly Brands left-over bottle caps (which have the Silly Juice tradename on them, and thus cannot be used by Langer Juice Company on its other products), and Silly Juice labels is requested, and was invoiced back in April 27, 2022 [see invoice submitted as part of Langer Juice Companys response to request for bill of particulars, the Excerpts of which is attached as Exhibit N to the Declaration of Bruce Langer, the invoice is found at Exhibit C of that Response. The invoice was calculated based on the amount of space occupied by Silly Brands in the Langer Juice Company warehouse, and applying that space as a proportion of the total space in the warehouse, and allocating a matching proportion of the total rent of the Langer Juice Company warehouse, to arrive at a figure of $14,310.00. No objection to that invoice was ever received by Langer Juice Company. Bringing the rental forward from the date of that invoice results in the following calculation of further rental amounts due: $540 per month times two because my rent doubled to $1080/month times 48 months equals $51,840.00. This calculation is described at paragraphs 10-12 of the Declaration of Bruce Langer and results in $51,840.00 further rental amounts due and owing, for total rental amounts due and owing of $14,310.00 + $51,840.00 = $66,150.00 Total damages requested and not subject to any material dispute of fact are: $316,821.80 + $199,597.23 + $66,150.00 rental total = $582,569.03 in total damages. (Moving Parties Separate Statement, ¶ 3.) This is far from the only example of such a purported statement of material fact. The Court of Appeal in Beltran stated that: Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. (Italics added.) California Rules of Court, rule 3.1350(d)(2) states: The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Under the Rules of Court, Material facts are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion. (Rule 3.1350(a)(2).) What neither the rule nor the statute states is that the moving party must include in the separate statement every fact they intend to include in their motion, regardless of its materiality. ( Beltran, supra, 97 Cal.App.5th at pp. 874-875, italics in original and footnote omitted.) Fourth, Moving Parties separate statement fails to comply with the formatting requirements set forth in subdivision (h) of Rule 3.1350 of the California Rules of Court. (Cal. Rules of Court, rule 3.1350, subd. (h).) Fifth, the separate statement fails to comply with subdivision (b) of Rule 3.1350 of the California Rules of Court, which provides that, [i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts . (Cal. Rules of Court, rule 3.1350, subd. (b), italics added.) Moving Parties separate statement does not repeat verbatim the issues listed in the notice. Sixth, Issue Number 29 is not directed towards a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See Notice, p. 44; Code Civ. Proc., § 437c, subd. (f).) Any lesser issues sought to be addressed on a motion for summary adjudication require a joint stipulation of the parties and the courts approval. ( Id. , § 437c, subd. (t).) Nothing in the record indicates any such stipulation or court approval, and therefore this issue was improperly included in the motion. Finally, the notice of motion is 50 pages, due in large part to it containing arguments throughout regarding each purported issue. This is also grossly excessive and improper, as it is effectively an attempt to evade the 20-page limit of a motion for summary judgment or summary adjudication. (See Cal. Rules of Court, rule 3.1113, subd. (d).) Moving Parties are also reminded that new evidence filed with a reply is not generally considered by the Court. The Court declines to address any other procedural defects in Moving Parties separate statement or in their motion at this time. For the foregoing reasons, the Court DENIES the motion without prejudice. (See Beltran, supra, 97 Cal.App.5th at p. 876 fn. 5 [trial courts may permit parties an opportunity to correct deficiencies in separate statements].) The Court admonishes the parties to comply with the requirements of the California Rules of Court and Code of Civil Procedure going forward, and to otherwise be mindful of the Courts limited time and resources. CONCLUSION The Court DENIES Plaintiff/Cross-Defendant Langer Juice Company, Inc. and Cross-Defendants Bruce Langer and David Langers motion for summary judgment and/or in the alternative summary adjudication, without prejudice. Moving parties are ordered to give notice of the Courts ruling within five calendar days of this order.

C24-00327 CASE NAME: DISCOVERY REALTY INC. VS. SEECON FINANCIAL & CONSTRUCTION INC. HEARING IN RE: COMPLEX DESIGNATION FILED BY: *TENTATIVE RULING:* See Line 2.

Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear in person or remotely no later than 4:00 PM on the day before the scheduled hearing. The Department and Case Number must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To attend the hearing remotely in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows Bridge # 6940 Pin # 3782 TENTATIVE RULING - On its own motion, the Court continues this Demurrer to October 9, 20024 at 9:00 A.M. in Department 10D. Court will post a Tentative Ruling pursuant to the Court's Tentative Ruling procedure as set forth in the Local Rules. The Court also continues the Further Case Management Conference and Court's OSC to October 9, 2024 at 9:00 A.M. in Department 10D. No oral argument will be allowed as to this continuance. Barbara A. Kronllund

DREYER vs TURNING CVRI2103782 Motion for Attorney's Fees POINT EDUCATION INC Tentative Ruling: A. Settlement Agreement Between the Parties The procedural history of the dispute dates back 5 years with the Purchase Agreement in which Defendants purchased a school along with 90 percent of the membership interest in two LLC entities from Plaintiff on or about April 25, 2019. On February 14, 2020, Plaintiff and Defendants entered into the Settlement Agreement. (Declaration of John E. Bowerbank (“Bowerbank Decl.”), Exhibit 1). The Parties entered into a Purchase Agreement on April 25, 2019, in which Turning Point purchased from Plaintiff 90% of the membership interest of 2 limited liability companies. Also on April 25, 2019, the Parties entered into a Management Agreement in which Plaintiff agreed to provide certain services for a period of two years to Turning Point. The Settlement Agreement states that each Party alleged that the other Party is in material default under the prior Purchase Agreement and the Management Agreement entered into between the Parties. (See Exhibit 1, ¶ 1.3). By entering into the Settlement Agreement, the Parties intended to compromise their respective claims and resolve the disputes between them. (Id., 1.5). The Settlement Agreement sets forth the respective obligations of each party. (Id., ¶¶ 2.1-2.4). The terms included the purchase of the remaining membership interest of the LLCs, settlement payment and holdback payment. (Id.) Critically, the Settlement Agreement contains an attorney’s fees provision. Exhibit 1, 10.8. The provision states that “in the event that any suit or proceeding is brought to enforce, construe, interpret, rescind or cancel this Agreement or any of its provisions, the prevailing party shall recover against the other party all of its reasonable attorney fees and costs incurred in connection with such action or proceeding, including any appeals.” (Id.) B. Plaintiff’s Complaint Plaintiff filed this action on August 12, 2021, alleging causes of action for breach of contract and fraud. (Bowerbank Decl., Exhibit 2). The gravamen of the Complaint was that Defendants allegedly breached the Management Agreement and have not paid Plaintiff as outlined in the Settlement Agreement. (See Exhibit 2, ¶6). Plaintiff filed Complaint, but service on Defendants was gravely problematic, with the Court of Appeal later taking judicial notice that Plaintiff is involved in other lawsuits in which he is accused of having engaged in the service of process fraud to obtain default judgments. (See Exhibit 3, page 6). C. Default Entered Plaintiff was able to take the defaults of Defendants and requested for entry of defaults. Default Judgment was entered on February 23, 2022. The Court issued an Order on November 18, 2022, upon which the Los Angeles Sheriff's Department was able to receive and hold $248,376.28 from Defendants’ Chase Bank account. D. Defendants’ Request to Set Aside Default Defendants became aware of the lawsuit when notified of the levy attachment activity related to Defendants” Chase Bank account. Defendants obtained counsel and on November 10, 2022, Defendants moved ex parte to set aside the entry of default and default judgment and enjoin the enforcement of the judgment obtained by Plaintiff on the grounds that Defendant did not have actual notice of the lawsuit. The trial court deemed the ex parte application a motion to set aside the default judgment under CCP § 473.5 and denied the motion as untimely without prejudice to refiling by December 19, 2022. Defendants moved to vacate the default judgment on December 13, 2022. E. Court Orders Default Prove-Up Hearing This Court granted the motion to set aside the default judgment on February 17, 2023, and ordered a new prove-up hearing upon presentation of the new evidence of the Settlement Agreement which was not attached to the Complaint. F. Plaintiff Appeals To The Court Of Appeal Plaintiff filed a notice of appeal of the post judgment order. The matter was known as Case No. E080877 in the Fourth Appellate District, Division Two. The Parties fully briefed the matter and oral argument was held on February 6, 2024. The Court of Appeal issued its Opinion on February 7, 2024, affirming the trial court's order setting aside default judgment and stating that Defendants are entitled to costs on appeal. (Bowerbank Decl. Exhibit 3). On page 7 of the Court of Appeal's Opinion, the appellate court stated that “Dreyer failed to submit the parties” settlement agreement before the prove-up hearing. The details of the settlement were important evidence in determining whether Dreyer was entitled to the damages he claimed.” (See Bowerbank Decl., Ex. 3, pg. 7). Further, the appellate court stated, “The complaint itself incorporated the parties” settlement by reference, but Dreyer failed to attach the settlement to the Complaint. As a result, when it came time for the trial court to determine what damages Dreyer had established would be just, the court did not consider whether the settlement release the claims Dreyer brought in his lawsuit or whether defendants had compensated him for a portion of those damages. When the settlement agreement was produced in evidence in litigating the dispute over notice and service of process, the court realized the omission and its materiality to the decision to award Dreyer damages in the default judgment.” (See Bowerbank Decl., Ex. 3, pg. 8). The Court of Appeal affirmed the order setting aside default judgment and awarded Defendants costs on appeal. Plaintiff filed a petition for re-hearing with the Court of Appeal on February 16, 2024. Plaintiff's petition was denied. G. Plaintiff Petitions For Review To The Supreme Court Plaintiff then filed a Petition for Review in the California Supreme Court (Case No. $283995). Defendants filed a timely Answer to the Petition for Review. The Supreme Court denied the petition. *** Defendants Turning Point Education Inc. and Zhen Li Yu (collectively, “Defendants”) move for an order for attorneys” fees and costs following a series of appeals taken by Plaintiff Kristopher Dreyer (“Plaintiff”) which was decided solidly in favor of Defendants and which was remitted to this Court on April 23, 2024. The Court of Appeal affirmed this Court's ruling to set aside default judgment. This Motion is made on two grounds. The first is that Defendants are the “prevailing party” under Code of Civil Procedure section 1032, with the Court of Appeal ordering that Defendants recover costs. The second ground is by contract. Here, Plaintiff and Defendants entered into a contract for the provision of attorneys” fees. Civil Code section 1717 (a) mandates that “where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract... shall be entitled to reasonable attorney’s fees in addition to other costs.” The Confidential Settlement Agreement and Purchase and Sale Agreement (“Settlement Agreement”) between the Parties contains a provision awarding attorneys” fees to the prevailing party on the contract. The Court of Appeal solidly ruled in Defendants’ favor (and denied re-hearing requests). As such, Defendants are the prevailing parties entitling them to recovery of attorneys” fees under the terms of the Settlement Agreement. Defendants request that this Court award Defendants attorney’s fees and costs in the amount of $25,668.56, as they were the prevailing parties when forced to defend against Plaintiff's appeals and enforce the Settlement Agreement from June 2023 to April 2024, not including the fees and costs associated with this motion which are estimated to be $6,500. Defendants request said sums be entered as a judgment in favor of Defendants and against Plaintiff or that any existing judgment against Plaintiff be amended to reflect same. In opposition, Plaintiff appears to argue that the appeal would not have been necessary had Defendants responded to the Complaint at the onset. Plaintiff does not dispute that Defendants are the prevailing party on appeal, that the Court of Appeal awarded Defendants costs on appeal and does not dispute the amount of fees and costs requested by Defendants. In reply, Defendants point out that Plaintiff has not refuted any of the moving arguments and essentially repeats moving arguments. Analysis I. The Court will Grant motion because Defendants have established that they are entitled to attorney’s fees on appeal. A. Defendants are the prevailing party on appeal. CRC, rule 3.1702 (“Claiming attorney’s fees”) subsection (a) provides: Except as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney's fees and claims for attorney's fees provided for in contract. Subdivisions (b) and (c) apply when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to "reasonable" fees, because it requires a determination of the prevailing party or for other reasons. The issue of entitlement to attorney's fees on appeal is determined by a motion in the trial court pursuant to Rule 3.1702 of the California Rules of Court. (CRC, rule 8.278(d)(2).) When attorneys” fees are authorized to be awarded under a statute or contract provision, attorney’s fees are available when incurred on appeal as well as when incurred at trial. (Harbour Landing-Dolfann, Ltd v. Anderson (1996) 48 Cal.App.4th 260, 263; see CRC, rule 3.1702(c)(1).) The court in Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, established the rule that trial courts retain discretion to award attorneys” fees incurred on appeal to the eventual prevailing party without an order from the appellate court. Here, the Complaint was filed by Plaintiff in 2021. Plaintiff appealed the February 2023 Order to set aside default judgment and new default prove-up hearing. Ultimately, this Court’s Order was affirmed by the Appellate Court. Plaintiff requested re-hearing by the Court of Appeal and was denied. Plaintiff request for review by the California Supreme Court was also denied. Essentially three attempts for appeal and review were denied. Having had that determination affirmed by the Court of Appeal, there is no doubt that Defendants are the prevailing parties on the Appeal and entitled to an award of attorneys’ fees and costs incurred in successfully prevailing on the Appeal. Moreover, pursuant to CRC, rule 8.278(a)(2), the affirmance by the Appellate Court of this Court's Order establishes Defendants as the prevailing parties on appeal. “The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.” (CRC, rule 8.278(a)(2).) Further, the Court of Appeal has made clear in its decision and provided in the Remittitur that appellant Dreyer must pay respondents Defendants” costs on appeal. (See Bowerbank Decl., Ex. 4.) CRC, rule 26(a) defines the "prevailing party" upon appeal: "In the case of a general and unqualified affirmance of the judgment, or the dismissal of an appeal, the respondent shall be deemed the prevailing party..." Because Plaintiff dismissed the most recent appeal, Defendants should be deemed the prevailing parties. B. Plaintiff must pay Defendants’ Attorney’s Fees on Appeal 1. Parties can contract for provision of attorney’s fees. “Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees. [Citation].” (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751 (Mountain Air).) However, CCP § 1021 “permits parties to “contract out” of the American rule’ by executing an agreement that allocates attorney fees.” (Id.) Here, as noted by Defendants, Defendants and Plaintiff entered into a Settlement Agreement that allowed the prevailing party to recover reasonable costs and attorney’s fees in the event that any suit or proceeding is brought to enforce, construe, interpret, rescind or cancel the Settlement Agreement or any of its provisions. (See Bowerbank Decl., Exhibit 1, § 10.8). There is no denying that the Settlement Agreement was a key fact in the action brought by Plaintiff. Defendants make a valid point that one could argue that Plaintiff was attempting to rescind or cancel the Settlement Agreement with this lawsuit. Plaintiff apparently sought to hide the terms of the Settlement Agreement from the Court in obtaining Plaintiff’s first default judgment, e.g. that the parties settled the disputes between them as to the Purchase Agreement and Management Agreement (Bowerbank Decl., Ex. 2, §§ 1.1-1.5), that Defendants had made a settlement payment to Plaintiff (Bowerbank Decl., Ex. 2, § 2.2). Defendants were forced to defend against Plaintiff’s action, incurring substantial attorneys” fees. In addition, Defendants had to introduce the Settlement Agreement to enforce, construe and interpret the Settlement Agreement and its provisions, as the terms directly affected the amount of damages claimed by Plaintiff. Section 10.8 of the Settlement Agreement is exactly meant to cover attorney’s fees at issue in this action. As such, Defendants are entitled to those reasonable costs and attorneys” fees under CCP § section 1032 and Civil Code § 1717. This Court must award Defendants their reasonable attorney’ fees and costs, and it is reversible error not to do so. (Zintel Holdings, LLC v. McLean (2012) 209 Cal.App.4th 431, 442-443 [“Because the award of costs to [the prevailing party] under [Code of Civil Procedure] section 1032 was mandatory, the trial court had no discretion to deny his request for attorney fees under the terms of the parties' lease agreement.”].) 2. The present action and subsequent appeals fell within the Settlement Agreement’s fee provisions. CCP § 1021 provides, generally: “the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties”. Accordingly, “[t]he parties to a contract may validly agree to allow for the award of attorney's fees, even though the suit is based on tort rather than contract.” (Skyway Aviation, Inc. v. Troyer (1983) 147 Cal.App.3d 604, 610-611; Wagner v. Benson (1980) 101 Cal.App.3d 27, 36-37, Lerner v. Ward (1993) 13 Cal.App.4th 155, 161). In analyzing whether attorneys” fees are allowed based on a contract, courts must first “determine whether the parties entered an agreement for the payment of attorney fees and, if so, the scope of the attorney fee agreement.” (Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 990). Analysis of an attorneys” fee provision involves applying the traditional rules of contract interpretation. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608). Furthermore, courts typically rely on “clear and explicit” meaning of ... provisions, interpreted in their “ordinary and popular sense”. (Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744 at 752; see also Khan v. Shim (2016) 7 Cal.App.5th 49, 61 [“Our responsibility... is to interpret the contract that these parties agreed to”]. Courts have interpreted attorneys” fees provisions using broad language like “arising from,” “related to,” and “concerning” to cover actions beyond just causes of action for breach of contract. (E.g. Khan, supra, 7 Cal.App.4th at p. 61 [prevailing party entitled to attorneys” fees Where the contract allowed for recovery of fees for any litigation concerning a purchase agreement's terms, its interpretation, or its enforcement]; Lerner v. Ward (1993) 13 Cal.App.4th 155, 159 [allowing for recovery of noncontract fees for “any action or proceeding arising out of this agreement’]; Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1799 [allowing for recovery of attorneys’ fees where a lease allowed fees for any legal action brought by either party to enforce the terms hereof or relating to the demised premises].) The present matter is covered by the attorney’s fees provision of the Settlement Agreement entered into by the Plaintiff and Defendants. The Settlement Agreement was entered into following disputes as to the Management Agreement, and with the intention to resolve those disputes related to the Management Agreement. (See Bowerbank Decl., Ex. 1, §§ 1.2-1.5). Plaintiff's Complaint alleges that the Management Agreement and the Settlement Agreement were breached. (See Bowerbank Decl., Ex 2, ¶¶ 4-6). As noted by Defendants: (1) no allegations have been raised by the Parties calling into question that any party did not actually sign the Settlement Agreement; (2) there is no doubt that Plaintiff's Appeal is a suit or proceeding; and (3) the attorneys’ fees provision of the Settlement Agreement encompasses this Appeal in which the Settlement Agreement and its provisions were enforced, construed, and interpreted. C. The fees were reasonable and necessary. Trial courts typically use a lodestar method to determine the amount of reasonable attorney's fees to be awarded, i.e., the number of attorney hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136). In Ketchum, the California Supreme Court held that attorney fee awards "should be fully compensatory.” (Id. at 1133). An award of attorney's fees should compensate the defendant for all the hours reasonably spent, including drafting and revising pleadings, meeting with clients, interviewing witnesses, drafting and revising motions, and communicating with clients and other counsel. (Serrano v. Priest (1997) 20 Cal.3d 25, 48-49; Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 233) Here the attorney’s fees on appeal were reasonable. The time records/entries are attached as Ex. 5 to the Bowerbank Decl. In his declaration, Mr. Bowerbank goes through his own hourly rate ($450) and experience as well as that of that of other attorneys and paralegal who worked on the appeal: John Bowerbank - $450 – total charged $1,665 Joan C. Chan (Of Counsel) - $395 – total charged $18,578.50 Jeffrey Blank (Partner) - $450 – total charged $5,100.50 Ashnish Verna (Paralegal) - $125 – total charged $475 (See Bowerbank Decl., ¶¶ 8-12). Advanced costs were $1,109.06 which brings all of the above to total of $25,668.56 for attorney’s fees and costs in connection with the appeal. D. Fees are awarded to prepare for the present motion. California courts have also held it is reasonable to award attorney's fees to the prevailing defendant for the time the attorney spends in preparing the motion for attorney's fees and attending the hearing on the attorney fee motion. (Ketchum, supra, 24 Cal.4th 1122, 1141; Serrano v. Unruh (1982) 32 Cal.3d 621, 639). Bowerbank declares he spent 10 hours: reviewing the docket and file, review of the billing, conducting legal research, drafting, and preparing the motion and related filings, which includes this declaration and the compendium of exhibits attached hereto. At the hourly rate of $495 that totals $4,950. Paragraph 17 of the Bowerbank Declaration provides for his hourly rate of $495, not $450 as he stated was his hourly rate in connection with the appeal in ¶8. Bowerbank anticipates spending an additional 3 hours to review any opposition and draft a reply brief. That totals $1,485. Bowerbank anticipates spending an additional 2 hours preparing for and appearing the instant motion. The total of the foregoing is $990. The filing fee for this Motion for Attorney's Fees is $60. Bowerbank states that the fees for the present motion amount to approximately $6,495, but in his chart he rounds up the amount to $6,500. (See Bowerbank Decl., ¶17.) However, his figures do not appear to add up. If he is requesting 15 hours at $495 per hour, the total is $7425. When the $60 filing fee is added, the total is $7485. If the hourly rate of $450 is used, the total is $6,810. Since counsel asks for less, $6,500, the Court will award that amount – the lower amount of $6,500. Summary: Grant motion. Determine that Defendants are the prevailing parties on appeal. Grant attorney’s fees on appeal of $24,559.50 and costs on appeal as $1,109.06. Grant attorney’s fees and costs for the present motion in the amount of $6,500. The Court awards a total $32,168.56 to Defense payable by Plaintiff forthwith.

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.

23CV-04549 N&S Tractor v. Soletrac, Inc. Order of Examination Appearance required.

KING, ET AL. VS. TYNER, ET AL. Case Number: 23CV-0202922 This matter is on calendar for review regarding status of arbitration or dismissal. The Court is in receipt of a status report in which Plaintiff reports that the arbitration scheduled for July has been rescheduled to August 6 th and 8th. The case will be continued to Tuesday, September 3, 2024, at 9:00 am for review regarding status of arbitration or dismissal. No appearance is necessary on today’s calendar.

MOTION TO COMPEL FURTHER REQUEST FOR PRODUCTIONS FURTHER RESPONSES TO PLAINTIFFS' REQUESTS FOR GALIPO VS HYUNDAI CVRI2306113 PRODUCTION OF DOCUMENTS, MOTOR AMERICA SET ONE AND REQUEST FOR MONETARY SANCTIONS BY KRISTINA GALIPO, SANTIAGO GALVEZ Tentative Ruling: Discovery in this matter is Stayed, pending the hearing on Defendant’s Motion to Compel Arbitration, which is currently scheduled for August 29, 2024, at 8:30am, D-4. This Motion is continued to August 29, 2024, at 8:30am, D-4.