Zen Holdings, Llc Vs. Andrew Alexander Eroset Al

Case Number: 22NWCV00409 Hearing Date: July 17, 2024 Dept: C ELITE HOME REMODELING, INC. v. LARRY VANCE CASE NO.: 22NWCV00409 HEARING: 7/17/24 @ 9:30 A.M. #1 TENTATIVE ORDER I. Plaintiff Elite Home Remodeling, Inc.s Motion to Compel Responses to Special Interrogatories, Set One as to Defendant is MOOT. Monetary sanctions are DENIED. II. Plaintiff Elite Home Remodeling, Inc.s Motion to Compel Responses to Requests for Production of Documents, Set One as to Defendant is MOOT. Monetary sanctions are DENIED. III. Plaintiff Elite Home Remodeling, Inc.s Requests for Admissions as to Defendant is MOOT. Monetary sanctions are awarded in the amount of $1,100.00. Moving Party to give NOTICE. Plaintiff Elite Home Remodeling, Inc. is a general contractor, and it entered a contract with Defendant for construction services to be performed. Defendant has not paid Plaintiff. Plaintiff m oves to compel responses to Special Interrogatories, Set One from Defendant, Requests for Production of Documents, Set One from Defendant, and Requests for Admissions, Set One from Defendant. Special Interrogatories, Set One Code of Civil Procedure section 2030.290, subdivision (b) allows the propounding party to file a motion to compel responses to interrogatories if a response has not been received. If responses are untimely, the responding party waives objections. (Code Civ. Proc., §§ 2030.290, subd. (a).) Plaintiff served Defendant with Special Interrogatories, Set One on March 22, 2023 by electronic service. (Decl. Baradarian, ¶ 2, Ex. A.) Adding the two days because of electronic service, responses were due on or before April 25, 2024. (Decl. Baradarian, ¶ 2, Ex. A.) Defendant served responses without objections on July 3, 2024. (Decl. Diefenbach, ¶ 3.) Thus, the motion is MOOT. Sanctions: Discovery sanctions may not be imposed under Section 2023.030, even together with Section 2023.010, absent another provision of the Discovery Act that authorizes the imposition of sanctions. ( City of L. A. v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 500.) Sanctions with respect to interrogatories are only authorized against a party who unsuccessfully makes or opposes a motion to compel responses. (Code of Civ. Proc. § 2030.290, subd. (c).) Here, sanctions are denied because the motion is moot. Requests for Production of Documents, Set One Code of Civil Procedure section 2031.300, subdivision (b) allows the propounding party to file a motion to compel responses to document demands if a response has not been received. If responses are untimely, the responding party waives objections. (Code Civ. Proc., § 2031.300, subd. (a ).) Plaintiff served Defendant with Requests for Production of Documents, Set One on March 22, 2023 by electronic service. (Decl. Baradarian, ¶ 2, Ex. A.) Adding the two days because of electronic service, responses were due on or before April 25, 2024. (Decl. Baradarian, ¶ 2, Ex. A.) Defendant served responses without objections on July 3, 2024. (Decl. Diefenbach, ¶ 3.) Thus, the motion is MOOT. Sanctions: Discovery sanctions may not be imposed under Section 2023.030, even together with Section 2023.010, absent another provision of the Discovery Act that authorizes the imposition of sanctions. ( City of L. A. v. PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 500.) Sanctions with respect to requests for production of documents are only authorized against a party who unsuccessfully makes or opposes a motion to compel responses. (Code of Civ. Proc. § 2031.300, subd. (c).) Here, sanctions are denied because the motion is moot. Requests for Admissions, Set One Where a party fails to respond to requests for admissions, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (Code Civ. Proc., § 2033.280, subd. (b).) The court shall grant a motion to deem admitted the matters specified in the requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc., § 2033.280, subd. (c).) The motion is moot because Defendant served responses that are in substantial compliance with Section 2033.220. (Decl. Diefenbach, ¶ 3.) Sanctions: It is mandatory that the court impose a monetary sanction under [Code of Civil Procedure section 2023.010, et seq. ] on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc., § 2033.280, subd. (c).) Plaintiffs attorney requests $3,561.65. Because of the straightforward nature of this motion, the Court awards $1,100.00 total.

Case Number: 24STCV02708 Hearing Date: July 18, 2024 Dept: 37 HEARING DATE: Thursday, July 18, 2024 CASE NUMBER: 24STCV02708 CASE NAME: Stringcandy LLC, et al. v. American Federation of Musicians, et al. MOVING PARTY: Defendant American Federation of Musicians of the United States and Canada (AFM) OPPOSING PARTY: Plaintiffs Stringcandy LLC and Stephanie Matthews TRIAL DATE: Not Set PROOF OF SERVICE: OK PROCEEDING: Demurrer to First Amended Complaint OPPOSITION: 11 July 2024 REPLY: 05 July 2024 TENTATIVE: D efendant AFMs demurrer to the first, second, third, fifth, and sixth causes of action is sustained without leave to amend. The demurrer to the fourth cause of action for declaratory relief is sustained with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for August 5, 2024, at 8:30 a.m. Defendant AFM to give notice. Background On February 1, 2024, Stringcandy LLC and Stephanie Matthews (Plaintiffs) filed a Complaint against the American Federation of Musicians of the United States and Canada (AFM); Musicians Union of Las Vegas, Local No. 369 and Does 1 to 20. The operative First Amended Complaint (FAC) alleges six causes of action: 1) Fraud; 2) Breach of Contract; 3) Breach of the Implied Covenant of Good Faith and Fair Dealing; 4) Declaratory Relief; 5) Intentional Interference with Prospective Economic Advantage (IIPEA); and 6) Breach of the Duty of Fair Representation. Defendant AFM demurs to the FAC. Plaintiffs oppose the Motion. The matter is now before the court. Discussion I. Legal Standard Where pleadings are defective, a party may raise the defect by way of a demurrer. ( Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainants properly pled facts as true and ignores contentions, deductions, and conclusory statements. ( Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. ( Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. ( Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. ( Ibid .) II. Demurrer [1] Plaintiff Stringcandy is a California limited liability corporation that operates in the music industry as a business that hires musicians and other music professionals to perform musical services for a variety of musical productions. Plaintiff Matthews, acting in her capacity as a managing member of Plaintiff Stringcandy, engaged in negotiations for a new collective bargaining agreement with LOCAL 369. Defendant AFM demurs to the FAC on the basis that the action is preempted by the National Labor Relations Act (NLRA) and the Labor-Management Relations Act (LMRA). In opposition, Plaintiff concedes that demurrer should be sustained as to the second, third, fourth, and sixth causes of action but asserts that the first cause of action for fraud and the fifth cause of action for IIPEA are not preempted by federal law. (Opposition at p. 4:14-21.) In addition, Plaintiffs request leave to amend the declaratory relief cause of action to allege that disciplinary proceedings violate the bylaws of Defendant AFM. (Opposition, at p. 4: 21-23.) A. First Cause of Action - Fraud The fraud cause of action alleges that Defendants concealed facts prior to the signing of the 2023 Collective Bargaining Agreement (2023 CBA). (FAC, ¶ 33-35.) Had Plaintiffs known about the concealed facts, Plaintiff would have behaved differently. (FAC. ¶ 38.) After the 2022 CBA ended, on December 21, 2022, while the parties were in negotiations for the 2023 CBA, Defendants without Plaintiffs knowledge, instructed its members to file labor grievances to be filed against the Plaintiffs until after the signing of the 2023 CBA. (FAC, ¶¶ 9, 10, 13, 19, 20.) Four grievances were filed by former musicians (the Grievants) who worked on the 2022 Weekends with Adele residency shows but were excluded from the 2023 shows. (FAC, ¶¶ 10-12.) The four Grievants contend that Plaintiffs failure to hire them constituted wrongful termination, notwithstanding the LOCAL 369s written authorization of the specific list of individuals who would be hired to perform services under the 2023 CBA. (FAC, ¶ 19.) Plaintiffs assert that Defendants knew Plaintiffs would not have agreed to the terms of the 2023 CBA or the LPH-LV Contract if Plaintiff MATTHEWS was aware of the Concealed Facts. (FAC, ¶ 15.) In December 2023, Defendants caused Plaintiffs to be placed on Defendants Do Not Work For List resulting in in Plaintiffs not being able to hire musicians from AFM or render any musical services. (FAC, ¶ 32.) Defendant AFM maintains that their alleged fraudulent conduct falls within the purview of the NLRA, 29 U.S.C. § 158. The court agrees. The NLRA imposes on the parties the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder[.] ( 29 U.S.C.A. § 158(d).) Hence, the NLRA prohibits bad faith bargaining during the contract negotiations. ( N. L. R. B. v. Royal Plating & Polishing Co . (3d Cir. 1965) 350 F.2d 191, 194.) The court is not persuaded that Plaintiffs allegations of fraud based on concealment occurring during and after the negotiations of the 2023 CBA are actions that fall outside of the purview of the NLRA and are unrelated to the parties obligations to bargain in good faith. [The NLRA supersedes state law if it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by [s]ection 7 of the National Labor Relations Act, or constitute an unfair labor practice under [s]ection 8. ( Jackson v. Teamsters Local Union 922 (D.D.C. 2014) 991 F.Supp.2d 71, 78 citing San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon (1959) 359 U.S. 236, 244 ( Garmon ). ) In other words, if the subject of the labor dispute relates to an activity [that] is arguably subject to [section] 7 or [section] 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board. ( Gorman , at p. 245.) Therefore, the NLRA preempts the jurisdiction of state and federal courts when the conduct pertains to activities arguably subject to the NLRA. (See Amalgamated Ass'n of St., Elec. Ry. and Motor Coach Emp. of America v. Lockridge (1971) 403 U.S. 274, 284.) Here, Plaintiffs fail to explain how misrepresentations made during the collective bargaining process pertain to activities not regulated by the NLRA or relate to conduct that is merely peripheral concern of the Labor Management Relations Act . . . (or) touched interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act. ( Farmer v. United Broth. of Carpenters and Joiners of America, Local 25 (1977) 430 U.S. 290, 296297.) Plaintiffs cite no case law finding that fraud claims related to the collective bargaining process fall outside the jurisdiction of the NLRA. Meanwhile, Defendant AMF relies on Kolentus v. Avco Corp. (7th Cir. 1986) 798 F.2d 949, where the 7 th Circuit found fraud claims related to the misrepresentations and omissions about a plant closure made at the time of negotiating and entering into the collective bargaining agreements and the pension agreements was conduct preempted by the NLRA. ( Id . at p. 960.) The fraudulent conduct alleged by the plaintiffs clearly is of far more than peripheral concern under the NLRA. Insuring that employers and employees bargain with each other in good faith is of central importance under the Act. ( Id . at p. 961.) Similarly, in Serrano v. Jones & Laughlin Steel Co. (6th Cir. 1986) 790 F.2d 1279 , the 6th Circuit found that allegations of fraud in the announcement of the decision to rebuild the coke plant, fraud in the execution of the announced plan to rebuild, and fraud in negotiations with the Union at other coke plant were preempted by federal labor law. ( Id . at p. 1282.) Failure of an employer to bargain in good faith about terms and conditions of employment is not peripheral to the concerns of federal labor law; rather, it strikes at the heart of one of the basic concerns of that law. Unless the fraud claims bring this case within an exception, the Garmon preemption doctrine applies. ( Id . at p. 1287.) Good faith bargaining is a core concern of the Labor Act, not a matter of only peripheral concern. Eroding the Board's jurisdiction over claims involving a failure to bargain in good faith will inevitably eviscerate the Labor Act and all that it has accomplished. Consequently, we do not believe that the employees' claims fit into any recognized exception to the Garmon preemption doctrine. ( Parker v. Connors Steel Co . (11th Cir. 1988) 855 F.2d 1510, 1518.) Plaintiffs fail to explain how the Defendants intent to have the Grievants file labor grievances after the signing of the 2023 CBA is a peripheral concern and is not an activity arguably subject to the NLRA. Plaintiffs further fail to show that the remedies requested in their Prayer for Relief, such as a request for an injunction and damages, can be awarded by this court and are not precluded under the 2023 CBA. Lastly, Plaintiffs fail to show that allegations of fraud related to the bargaining of the 2023 CBA is not premised on bad faith bargaining conduct and is conduct that falls outside the purview of the NLRA such that no charge can be filed with the NLRB. Therefore, the demurrer to the first cause of action is sustained without leave to amend. B. Fifth Cause of Action Intentional Interference with Prospective Economic Advantage (IIPEA) The FAC alleges that agents or employees of Defendants made representations to representatives of the Weekends with Adele that Plaintiff had wrongfully terminated member of LOCAL 369 and had filed charges with the National Labor Relations Board (NLRB). (FAC, ¶¶ 26- 27.) The FAC further alleges that Grievant Yunior Lopez deliberately listed the physical address for Weekends with Adele production office on the grievance Charge Against Employer to damage Plaintiffs reputation with clientele, and that the conduct was ratified by Defendants. (FAC, ¶ 27-29.) Plaintiffs maintain that by providing the address for Weekends with Adele as the address for Plaintiffs on the charges before the NLRB, Defendants disrupted the economic relationship between Plaintiff and the production entities for Weekends with Adele. (Fac, ¶¶ 62-64.) The FAC further asserts that Defendants intentionally publishing false and defamatory statements about Plaintiffs in its March 2023 newsletter and made these false and defamatory statements to representatives of the Weekends with Adele production company resulting in the Plaintiffs being unable to contract with their prospective business relationships. (FAC, ¶ 68.) The five elements for intentional interference with prospective economic advantage are: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. ( Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6.) Defendant AFM similarly maintains that publicizing a labor dispute to third parties is a protected activity under the NLRA and that any determination that the labor dispute was false is left to NLRB to determine. (See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades Council (1988) 485 U.S. 568, 584 [publicity of labor dispute permitted under the NLRA].) Defendant AFM further maintains that the fifth cause of action is prohibited by section 301 of the Labor-Management Relations Act (LMRA), 29 U.S.C. § 185, because to resolve the dispute it would require the court to determine the truth or falsity of the statements made to Weekends with Adele production team, which would require analyzing the CBA. Section 301 is on its face a jurisdictional statute, under which [s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties. 29 U.S.C. § 185(a). Soon after passage of the LMRA, the Supreme Court ruled that § 301 authorized the federal courts to develop a federal common law of CBA interpretation. [Citation.] The Court subsequently held that this federal common law preempts the use of state contract law in CBA interpretation and enforcement. [Citation.] ( Cramer v. Consolidated Freightways Inc. (9th Cir. 2001) 255 F.3d 683, 689.) A claim for intentional interference with prospective economic advantage (IIPEA) requires that the interference be wrongful by some legal measure other than the interference itself. ( Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 378.) [A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. ( Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1159.) The court finds that the determination of whether Defendants conduct was wrongful by some legal measure requires that this court interpret the CBA, and such action is preempted by the LMRA. Alternatively, the determination of a legal wrong by Defendants would require that the court determine that Defendants failed to act in good faith while negotiating the CBA, but such a finding is preempted by the NLRA. ( See Lumber Production Indus. Workers Local No. 1054 v. West Coast Indus. Relations Ass'n, Inc. (9th Cir. 1985) 775 F.2d 1042, 1048 [[I]f a crucial element of a state court action is identical to an element of an unfair labor practice that is arguably covered by the NLRA, then the state action is preempted.]; see also Wal-Mart Stores, Inc. v. United Food & Commercial Workers Internat. Union (2016) 4 Cal.App.5th 194, 213 [Walmarts trespass claim was deeply rooted in local law, thus warranting a departure from Garmon preemption.].) To the extent that the Plaintiffs assert that the LMRA does not apply to expired CBA agreements, the FAC asserts that the labor grievances were submitted after the Plaintiffs signed the 2023 CBA and that the false and defamatory statements about Plaintiffs were made in a March 2023 newsletter, meaning that the 2023 CBA governed the parties labor relationship at the time the statements were made. (FAC, ¶¶ 19, 68.) Accordingly, the court is not persuaded that Plaintiffs claims are not subject to the LMRA because the claims are based on an expired CBA. The demurrer to the fifth cause of action is sustained without leave to amend. C. Fourth Cause of Action Declaratory Relief To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the partys rights or obligations. (See CCP § 1060; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) Plaintiff requests leave to amend the fourth cause of action to request a judicial determination that the current disciplinary proceedings commenced by Defendant AFM violated Plaintiff Mathews' due process rights. The demurrer to the fourth cause of action for declaratory relief is also sustained because it is derivative of the first and fifth causes of action. (See Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800.) The FAC is devoid of facts challenging the disciplinary process of Defendant AFM and the Plaintiffs fail to show that AFMs disciplinary policies exist separate and apart from the 2023 CBA and that a present controversy exists between the parties that can be adjudicated under state law without the need to interpret the 2023 CBA or determine that AFM violated the NLRA. Therefore, the demurrer to the fourth cause of action is sustained. However, as the declaratory relief cause of action is capable of amendment and as this is Plaintiffs first demurrer, leave to amend the fourth cause of action is granted. Conclusion D efendant AFMs demurrer to the first, second, third, fifth, and sixth causes of action is sustained without leave to amend. The demurrer to the fourth cause of action for declaratory relief is sustained with leave to amend. Plaintiff is granted 10 days leave to amend. The court sets the OSC RE: Amended Complaint for August 5, 2024, at 8:30 a.m. Defendant AFM to give notice. [1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. (Rappleye Decl. ¶ 2; Martinez Decl. ¶¶ 2, 3.)

Case Number: 24STCV05755 Hearing Date: July 16, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: July 16, 2024 Case Name: Emir Phillips v. Gary Fidler, et al. Case No.: 24STCV05755 Motion: (1) Special Motion to Strike (anti-SLAPP) (2) Special Motion to Strike under CCP (anti-SLAPP) Moving Party: (1) Defendants Gary D. Fidler and Gary D. Fidler, APLC (2) Defendants Amanda Robertson and Barham 22 nd Street LLC Responding Party: (1) and (2) Plaintiff Emir Phillips, in pro per Tentative Ruling: Defendants Gary D. Fidler and Gary D. Fidler, APLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract, GRANTED as to protected conduct incorporated into the sixth cause of action for breach of privacy (Complaint, 7:21-22) and DENIED as to the unprotected conduct in the sixth cause of action for breach of privacy (Complaint, 7:23-25-8:1-3.) Defendants are awarded fees in the amount $9,500. Defendants Amanda Robertson and Barham 22 nd Street LLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract. Defendants are awarded fees in the amount $6,412.50. I. Background Plaintiff alleges Defendants defamed Plaintiff and painted him in a false light when they attached his LinkdIn page as an exhibit to a pending unlawful detainer complaint and made false allegations regarding his employment. Plaintiff alleges Defendants falsely stated or conveyed the meaning that he was engaging in the unauthorized practice of law. Plaintiff alleges Defendants have also breached the lease agreement by filing the pending unlawful detainer action. Plaintiff alleges Defendants have also violated his privacy by setting up security cameras on the rental premises. On March 7, 2024, Plaintiff filed a complaint against Defendants Gary Fidler, esq., Gary D. Fidler APLC, Barham 22 nd Street, LLC and Amanda Robertson. Plaintiff alleges (1) defamation; (2) false light; (3) negligent infliction of emotional distress; (4) intentional infliction of emotional distress; (5) breach of lease agreement; and (6) breach of the right of privacy. II. Discussion Defendants Gary D. Fidler and Gary D. Fidler, APLC (collectively, Fidler) and Defendants Barham 22 nd Street, LLC (Barham) and Amanda Robertson (collectively, Landlord Defendants) move to strike each cause of action alleged in Plaintiffs complaint pursuant to Code of Civil Procedure section 425.16. Barham is the corporate landlord of the premises leased by Plaintiff that is the subject of a pending unlawful detainer (UD) action. Robertson is Barhams principal. Fidler is the attorney of record for Barham in the UD action. Fidlers anti-SLAPP Motion is directed to all causes of action. Landlord Defendants anti-SLAPP Motion is only directed to the first through fifth causes of action and excludes the sixth cause of action for breach of privacy. Fidler and Landlord Defendants anti-SLAPP Motions substantially overlap. For this reason, both anti-SLAPP Motions will be analyzed together. Where their arguments deviate from one another, they will be discussed separately. A. Request for Judicial Notice Fidlers request for judicial notice (RJN) of the Unlawful Detainer Complaint filed by Defendants against Plaintiff is GRANTED as to its filing but not the truth of the underlying allegations. B. Objections Fidler objects to Plaintiffs surreply filed on July 8, 2024. Plaintiff was not entitled to file a surreply. However, the improper surreply does not prejudice the Defendants and no further briefing is required. C. Legal Standard A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc., §425.16, subd. (b)(1).) As used in this section, act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., §425.16, subd. (e).) Litigation of an anti-SLAPP motion involves a two-step process. First, the moving defendant bears the burden of establishing that the challenged allegations or claims arise from protected activity in which the defendant has engaged. Second, for each claim that does arise from protected activity, the plaintiff must show the claim has at least minimal merit. If the plaintiff cannot make this showing, the court will strike the claim. ( Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 [where moving party seeks to strike an entire cause of action alleging multiple factual bases, court does not determine whether first prong is met based on gravamen test but must determine whether each factual bases supplies the element of claim or merely provides context].) Bonni expressly rejected the gravamen test, which had been applied in the past. ( Bonni, supra , 11 Cal.5th at 1009.) On the first step, courts are to consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The defendant's burden is to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity. ( Bonni, supra , 11 Cal.5th at 1009.) Once defendant demonstrates that a cause of action arises from protected conduct, the burden shifts to plaintiff on the second step to demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) The second prong of the statute deals with whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the superior court, in making these determinations, considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. For purposes of an anti-SLAPP motion, the court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff. A plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as an anti-SLAPP. With these descriptions in mind, we will not strike a cause of action under the anti-SLAPP statute unless it lacks even minimal merit. ( Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.) The probability of prevailing is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict. Thus, in opposing a anti-SLAPP motion, it is plaintiff's burden to make a prima facie showing of facts that would support a judgment in plaintiff's favor. ( Taus v. Loftus (2007) 40 Cal.4th 683, 714 (a summary-judgment-like procedure).) Precisely because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law. Only a cause of action that lacks even minimal merit' constitutes anti-SLAPP. ( Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) In order to establish a probability of prevailing on a cause of action in the context of an anti-SLAPP motion, a plaintiff must state and substantiate a legally sufficient claim. ( La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 470.) D. Fidler and Landlord Defendants satisfy their burden on the first prong of anti-SLAPP as to the first through fifth causes of action; Fidler satisfies the first prong of anti-SLAPP as to the sixth cause of action The filing of a lawsuit is an exercise of the First Amendment right to petition the government. Consequently, claims that arise out of the filing of a suit arise from protected activity for purposes of the anti-SLAPP statute. ( Bonni , supra , 11 Cal.5th at 1024.) Plaintiffs causes of action are based on Defendants filing of the pending UD action against him, their attachment of his LinkdIn profile to the UD complaint and their allegations regarding his employment status in the UD complaint. (Complaint, 3:3-19 (allegations regarding statements made in UD complaint and action); 3:26-27 (allegations that UD action itself breached the lease agreement).) These statements qualify as protected statements under Code of Civil Procedure section 425.16, subdivisions (e)(1) and (2) as any written or oral statement or writing made before a&judicial proceeding& and any written or oral statement or writing made in connection with an issue under consideration by a&judicial body (hereinafter referred to as the Protected Conduct). The Protected Conduct necessarily supplies an essential element of Plaintiffs defamation, false light, NIED, IIED and breach of lease claims, as required to satisfy the first prong under Bonni . Plaintiff explicitly alleges that the Protected Conduct is the conduct upon which these causes of action are based. (Complaint, 5:24-25 (defamation); 6:9-10 (false light); 6:20-21 (NIED); 7:3-4 (IIED); 7:14-15.) As such, Fidler and Landlord Defendants satisfy the first prong as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of lease. Fidler also moves to strike the sixth cause of action for breach of privacy. Plaintiffs sixth cause of action is based explicitly on Defendants installation of security cameras. (Complaint, 7:23-25.) Installation of security cameras does not qualify as protected conduct (the Unprotected Conduct). However, Plaintiff incorporates all preceding allegations of protected conduct, raising doubt as to whether he bases his breach of privacy claim in part on the Protected Conduct . In his surreply, Plaintiff removes any doubt as to whether the Protected Conduct supplies an element of the breach of privacy claim. (Plaintiffs Reply filed on July 8, 2024, 4:20-25-5:1-5.) Plaintiff argues Defendants invaded his right to privacy by attaching his LinkdIn page to the UD complaint. ( Id. ) As such, Plaintiffs sixth cause of action is based in part on Protected Conduct and in part on Unprotected Conduct. Defendant Fidlers anti-SLAPP motion therefore proceeds to the second prong as to the Protected Conduct alleged in the sixth cause of action. The Unprotected Conduct is outside the scope of section 425.16 and is unaffected by the outcome of Fidlers anti-SLAPP motion. Even if Fidler prevails on his motion as to the Protected Conduct alleged in the sixth cause of action, the sixth cause of action would still be pending based on the Unprotected Conduct. The allegations of protected conduct would merely be excised from the sixth cause of action. ( Baral v. Schnitt (2016) 1 Cal.5th 376, 393-394, 398 (anti-SLAPP statute should be used like a scalpel, just as an ordinary motion to strike is, excising the protected activity from the mixed cause of action but leaving the cause of action intact as to the unprotected activity).) Plaintiffs response to Defendants first prong arguments misunderstands the basis for Defendants claim of protected conduct. Plaintiff argues that section 425.16 does not apply, because the parties dispute is a private dispute in which the public has no interest. However, public interest or a public issue is only required under Code of Civil Procedure §425.16(e)(3) and (4). Defendants are not arguing protected conduct based on subsections (e)(3) or (e)(4). Defendants argue protected conduct based on subsections (e)(1) and (e)(2), statements before a judicial body or statements in connection with an issue under review by a judicial body. Defendant Fidler and Landlord Defendants therefore satisfy the first prong of anti-SLAPP as to the first through fifth causes of action. Based on Plaintiffs surreply, the first prong of anti-SLAPP is satisfied as to the Protected Conduct alleged in the sixth cause of action for breach of privacy. E. Plaintiff fails to satisfy his burden on the second prong On the second prong, the Court accept[s] as true all evidence favorable to the plaintiff and assess[es] the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of law. Only a cause of action that lacks even minimal merit' constitutes anti-SLAPP. ( Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.) Because Defendants have satisfied their burden on the first prong of the anti-SLAPP statute as to the first through fifth causes of action, the burden shifts to the Plaintiff to establish the probability of prevailing on those claims. ( Ralphs Grocery Co. , supra , 17 Cal.App.5th at 261.) Plaintiff must establish each element of these causes of action with admissible evidence. ( Id. ) However, a defendant moving to strike under CCP §425.16 may assert an affirmative defense on the second prong of anti-SLAPP. ( Peregrine Funding Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676 (defendant established that plaintiff investors claims were time barred as a matter of law and plaintiff failed to establish likelihood of prevailing in face of that showing).) [A]lthough section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears the burden of proof on the defense. ( Id. ) Once the defendant demonstrates that a plaintiffs claim is barred by an affirmative defense, the plaintiff must demonstrate that a probability of prevailing despite that affirmative defense. ( Id. ) i. Plaintiff fails to submit prima facie evidence establishing the probability that he will prevail Plaintiff fails to demonstrate the probability of prevailing on the first through fifth causes of action, because (1) Plaintiff fails to submit prima facie evidence establishing the elements of the first through fifth causes of action and (2) Fidler and Landlord Defendants establish an absolute affirmative defense based on Civil Code section 47(b), the litigation privileged. Plaintiffs evidence consists of (1) emails regarding the security camera (Opposition, Ex. 1); (2) Plaintiffs resume or curriculum vitae (Opposition, Ex. 2); (3) a copy of Plaintiffs drivers license and a copy of an Enrollment to Practice Before the Internal Revenue Service (Opposition, Ex. 3); and (4) various news articles submitted to establish Plaintiffs Internet presence (Opposition, Ex. 4). Plaintiff also submits an unauthenticated document allegedly evidencing his Doctorate of Business Administration. (Surreply, Ex. 1.) Plaintiffs evidence is inadmissible, because it is not authenticated. Even if it were considered, it fails to establish that the statements made in the UD proceeding were false or misleading, or that Plaintiff suffered any damages, including the severe emotional distress required to recover for NIED and IIED. The emails pertain to the Unprotected Conduct, which is outside the scope of the anti-SLAPP. None of these documents are authenticated, nor are they relevant to Plaintiffs first through fifth causes of action or the sixth cause of action to the extent based on the Protected Conduct. Plaintiffs evidence does not demonstrate how the LinkedIn page was false, how the UD Complaint painted him in a false light or how any of the allegations in the UD Complaint were false. With regard to the UD Complaints allegation that Plaintiff referred to himself on LinkedIn as DBA JD, the complaint does not allege that Plaintiff represents himself to be lawyer admitted to practice law. (RJN, Ex. 1, Unlawful Detainer Complaint, p. 2 of 3.) Defendants alleged, If DBA is a statement by Defendant Emir Phillips that he is doing business as JD, this too, is a false representation, since unless he is licensed to practice law in Arkansas, he has been disbarred by the California State Bar. ( Id. ) Defendants allegation is not a statement of fact, e.g. Phillips is representing himself to be a barred lawyer. Defendants allegation is an if, then statement, i.e. if Plaintiff intended DBA JD to mean he was doing business as a licensed lawyer, then such a statement would be false. Defamation must be based on a statement of fact. ( Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Plaintiff fails to establish that this conditional statement is an actionable assertion of fact or that it cast him in a false light. Plaintiffs evidence also fails to establish that the information on his LinkedIn page was private information or how attaching it to the Unlawful Detainer complaint was a serious invasion of privacy. Plaintiff fails to submit any evidence regarding LinkdIn, the nature of the information placed on LinkdIn, e.g. how it got there, how private that information is, whether there is a legally protected interest over information placed on LinkdIn, and why attaching it to a UD complaint would be a serious invasion of privacy. A plaintiff alleging an invasion of privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. ( Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 3940.) Plaintiff therefore fails to satisfy his burden on the second prong of anti-SLAPP. Plaintiff fails to submit prima facie evidence of each element of his first through sixth causes of action. ii. Defendants establish that Plaintiffs first through fifth causes of action, as well as the sixth cause of action to the extent based on Protected Conduct, are barred by the litigation privilege Civil Code section 47, subdivision (b) is an absolute affirmative defense to all tort causes of action, except the tort of malicious prosecution. ( Flatley v. Mauro (2006) 39 Cal.4th 299, 322 (noting that there is not a complete overlap between statements protected under the anti-SLAPP statute and the litigation privilege.) [S]ection 47(b) operates to bar civil liability for any tort claim based upon a privileged communication, with the exception of malicious prosecution, whose requirements include malice, lack of probable cause, and termination in the plaintiff's favor. ( Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) Generally, the litigation privilege precludes liability in tort, not liability for breach of contract. If one expressly contracts not to engage in certain speech or petition activity and then does so, applying the privilege would frustrate the very purpose of the contract if there was a privilege to breach it. Thus, the privilege will apply to contract claims only if the agreement does not clearly prohibit the challenged conduct, and if applying the privilege furthers the policies underlying the privilege. ( Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 787 (on anti-SLAPP motion, litigation privilege did not apply to contract claims based on defendants breach of contractual obligation to conduct nonjudicial foreclosure in accordance with California law; application of privilege would undermine, not further, policy goals of litigation privilege).) Fidler and Landlord Defendants assert the litigation privilege as an affirmative defense. Based on Plaintiffs allegations, the Protected Conduct that supplies an essential element of the first through fifth causes of action is also protected by the litigation privilege under Civil Code section 47, subdivision (b). Plaintiffs first through fifth causes of action are based entirely on statements made by Fidler and Landlord Defendants in the pending unlawful detainer action. Such statements are a privileged publication under section 47, subdivision (b) as a publication made&in any&(2) judicial proceeding. Plaintiffs breach of contract action is based on Defendants filing of the unlawful detainer action. Plaintiff fails to demonstrate that the Lease Agreement clearly prohibits the filing of an unlawful detainer action. Moreover, the underlying policy goals of Civil Code section 47, subdivision (b) would be furthered if applied to Plaintiffs breach of contract claim. In opposition, Plaintiff fails to identify any applicable exception to the litigation privilege or any grounds to find that the litigation privilege does not apply. In his surreply, Plaintiff argues the litigation privilege does not apply, because (1) Defendants allegedly acted with malice and (2) Defendants acts were illegal. Plaintiff is incorrect that the litigation privilege does not apply to publications made with malice. The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation. To effectuate these purposes, the litigation privilege is absolute and applies regardless of malice. ( Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.) The intention of the party making the privileged communication is irrelevant because the privilege is absolute in nature, applying to all publications, irrespective of their maliciousness. ( Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 288.) While the litigation privilege does not apply to an action for malicious prosecution, Plaintiff does not allege such a claim. ( Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.) Plaintiff also fails to establish that the litigation privilege does not apply to illegal conduct. Plaintiff cites Flatley v. Mauro (2006) 39 Cal.4th 299 for the proposition that the litigation privilege does not apply to acts that are illegal as a matter of law. Flatley does not stand for that proposition. Flatley found that, while the litigation privilege and section 425.16 overlap, illegal conduct that may be protected by the litigation privilege may not necessarily be protected under CCP §425.16. ( Flatley, supra , 39 Cal.4 th at 323-325.) Applying the litigation privilege to some forms of unlawful litigation-related activity may advance those broad goals notwithstanding the occasional unfair result in an individual case. ( Id. at 324.) Flatley found that acts illegal as a matter of law are not protected conduct under Code of Civil Procedure section 425.16. ( Id. at 330-331 [defendants letter to plaintiff was extortion as a matter of law and therefore undeserving of protection by the anti-SLAPP statute].). Flatley made no such finding as to the litigation privilege. Plaintiff fails to establish that he can prevail in the face of Defendants showing that Plaintiffs claims based on Protected Conduct are barred by the litigation privilege. For this additional reason, Plaintiff fails to satisfy his burden on the second prong. D. Request for Attorneys Fees A prevailing defendant on an anti-SLAPP motion is entitled to seek fees and costs incurred in connection with the anti-SLAPP motion itself, but is not entitled to an award of attorney fees and costs incurred for the entire action. An award of attorney fees to a prevailing defendant on an anti-SLAPP motion properly includes attorney fees incurred to litigate the special motion to strike (the merits fees) plus the fees incurred in connection with litigating the fee award itself (the fees on fees). However, a fee award under the anti-SLAPP statute may not include matters unrelated to the anti-SLAPP motion, such as attacking service of process, preparing and revising an answer to the complaint, or summary judgment research. Similarly, the fee award should not include fees for obtaining the docket at the inception of the case or attending the trial court's mandatory case management conference because such fees would have been incurred whether or not the defendant filed the motion to strike. In short, the award of fees is designed to reimburse the prevailing defendant for expenses incurred in extracting herself from a baseless lawsuit rather than to reimburse the defendant for all expenses incurred in the baseless lawsuit. ( 596 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 433 (affirming trial court reduction of requested fees under CCP §425.16(c) from $152,529.15 to $28,290 based on finding that (1) hourly rate of $750 was excessive for San Diego and finding reasonable rate to be $275; (2) defendants improperly included work spent on tasks other than the anti-SLAPP motion and that were duplicative; and (3) the anti-SLAPP motion was only to one cause of action that was not especially novel or complex).) While a prevailing defendant on a anti-SLAPP is entitled to mandatory fees, he or she is entitled only to reasonable attorney fees, and not necessarily the entire amount requested. ( Id. ) A defendant who partially succeeds on an anti-SLAPP motion generally is considered a prevailing party and therefore entitled to fees and costs, unless the results of the motion were so insignificant that defendant did not achieve any practical benefit from bringing the motion. This determination lies within the broad discretion of the trial court. ( Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Only those fees and costs incurred in connection with the successful portion of the anti-SLAPP motion that is granted in part may be recovered. ( Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 82.) The fee award is against the losing plaintiff, not the losing plaintiff's attorney. Plaintiff's counsel is not a party to the action and thus not subject to a fee award under CCP § 425.16. ( Moore v. Kaufman (2010) 189 Cal.App.4th 604, 614.) i. Fidler Request for Attorneys Fees Fidler moved to strike all six causes of action from the complaint. Fidler successfully struck the first through fifth and a portion of the sixth. As such, Fidler is entitled to mandatory fees as prevailing party on the anti-SLAPP motion. Although Fidler did not obtain dismissal of the entire sixth cause of action, he significantly reduced the conduct at issue therein. Fidler requests attorneys fees in the amount of $19,060 based on 15 hours of motion prep, 4 hours of opposition review and reply prep and an additional 1 hour for hearing attendance. Fidler therefore asks for a total of 20 hours @ $950/hr. To determine the reasonable hourly rate, courts consider the rate prevailing in the community for similar work. This market rate approach has been applied in cases involving in-house counsel, contingency fees, and pro bono work. In each of these cases, courts have refused to limit the market rate to the attorney's fee arrangement with the prevailing party. Although the terms of a fee contract may be considered, they do not compel any particular award. ( Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055-1056.) The court should consider the market rate for similar work or comparable legal service. ( Id. at 1057.) In doing so, the court might determine the relevant market to be that of insurance defense litigation and litigators, rather than civil litigation in general. The market rate for such services might be limited accordingly. ( Id . at 1057.) The amount of time Fidler spent on this motion is reasonable. However, Fidlers hourly rate is excessive. Fidler fails to establish that $950/hr is reasonable based on the market rate for similar work or comparable legal services. Fidlers request for attorneys fees is granted in the amount of $9,500 (20 hours @ $475/hr) ii. Landlord Defendants Request for Attorneys fees Landlord Defendants completely prevailed on its anti-SLAPP Motion, successfully striking the first through fifth causes of action. Landlord Defendants request for attorneys fees in the amount of $7,375 based on 13.5 hours. Of the 13.5 hours, 10 hours were @ $475/hr and 3.5 hours were @ $750/hr. The amount of time spent on the anti-SLAPP is extremely reasonable. The hourly rate of $750 is excessive for the reasons discussed in connection with Fidlers request for attorneys fees. Landlord Defendants are awarded $6,412.50 based on 13.5 hours @ $475/hr. Conclusion Defendants Gary D. Fidler and Gary D. Fidler, APLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract, GRANTED as to protected conduct incorporated into the sixth cause of action for breach of privacy (Complaint, 7:21-22) and DENIED as to the unprotected conduct in the sixth cause of action for breach of privacy (Complaint, 7:23-25-8:1-3.) Fidler Defendants are awarded attorneys fees in the amount $9,500. Defendants Amanda Robertson and Barham 22 nd Street LLCs Special Motion to Strike is GRANTED as to the first through fifth causes of action for defamation, false light, NIED, IIED and breach of contract. Landlord Defendants are awarded attorneys fees in the amount $6,412.50.

HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 Tentative Ruling - 07/16/2024 Elizabeth Riles The Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion filed by Autonation Honda Fremont on 03/20/2024 is Granted in Part. This Tentative Ruling addresses defendant Edgren Motor Company, Inc. dba Autonation Honda Fremont’s (“Autonation”) two unopposed Motions to Compel plaintiffs Deborah Carter (“Carter”) and Russell Daniels (“Daniels”) (Carter and Daniels are collectively “Plaintiffs”) to Appear for their respective Depositions (the “Motions to Compel.”) The Motions to Compel are GRANTED IN PART, as set forth below. The Court ORDERS each of Carter and Daniels to appear for their respective deposition on dates mutually agreeable to the parties within forty-five days of the date on which the final Order on these Motions to Compel is entered. The Court ORDERS Plaintiffs to meet and confer with Autonation in good faith regarding dates for Plaintiffs’ respective depositions as ordered above. The Court ORDERS plaintiff Carter to pay a monetary sanction in the amount of $2,500.00 to Autonation within forty-five (45) days of the date on which Autonation serves Notice of the Court’s final Order on the Motions to Compel on Ms. Carter. The Court ORDERS plaintiff Daniels to pay a monetary sanction in the amount of $2,000.00 to Autonation within forty-five (45) days of the date on which Autonation serves Notice of the Court’s final Order on the Motions to Compel on Mr. Daniels. The Court notes possible defects in the relevant Notices of Deposition, which seek to conduct remote depositions of each of Plaintiffs by zoom videoconference but do not contain the location of the deposition officer. (See CCP §§ 2025.230, 2025.250, 2025.260 and CRC Rule 3.1010. Rule 3.1010 allows parties to conduct remote depositions, but the noticing party is required to make all arrangements to allow the deponent to participate remotely and expressly states that the deponent must appear “as required by statute.”) However, by failing to timely serve written objections to the Deposition Notices or to respond in any way to the Deposition Notices, the Court finds that Plaintiffs have waived any defects in the Notices of Deposition. Similarly, Plaintiffs have waived any objections to the present Motions to Compel by failure to timely respond. The Court has reviewed the evidence in support of Autonation’s monetary sanctions requests and finds that in the totality of the circumstances, including Plaintiffs’ in pro per status, Autonation’s out-of-pocket costs for court reporters, and the prior monetary sanctions awards against Plaintiffs in this action, the sanctions awards ordered above are appropriate. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 The Court reminds Plaintiffs that, although they may elect to represent themselves in pro per, they must comply with the same rules of civil procedure as litigants represented by professional legal counsel. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.) The Court advises Autonation that Plaintiffs’ correct mailing address appears to be: 1705 E. 23rd STREET [not Avenue] Merced, CA 95340 Although Plaintiffs’ Complaint lists the wrong address, Plaintiffs’ Summons appears to contain the correct address. CONTESTING TENTATIVE RULINGS PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur remotely via the court’s own video-conferencing system. Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing date. To contest a tentative ruling, a party should do the following: First, the party must notify Department 512, by email at Dept512@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion. Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed." Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Join the meeting using the following link: https://www.zoomgov.com/j/16057661931 Join the meeting by Phone: Meeting ID: 160 5766 1931 1 669 254 5252, 16057661931# US (San Jose) 1 669 216 1590, 16057661931# US (San Jose) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA HG21114959: Carter VS Autonation Honda Fremont 07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Autonation Honda Fremont (Defendant) in Department 512 833 568 8864 US Toll-free

VERDIN VS. NISSAN NORTH AMERICA, INC. Case Number: 23CV-0202892 This matter is on calendar for review regarding status of mediation. No status report has been filed. An appearance is necessary on today’s calendar.

Case Number: 22PSCV01241 Hearing Date: July 18, 2024 Dept: K Plaintiff American Contractors Indemnity Companys Motion to Amend Judgment Due to Typographical Error is GRANTED. Background Plaintiff American Contractors Indemnity Company (ACIC) alleges as follows: ACIC is a surety company. On or about December 11, 2014, E L Engineering Corp aka E L Plumbing & Rooter aka E L Plumbing aka E.L. Engineering Plumbing and Rooter aka E L PlumbingRooter (E L Engineering), Enrique Lopez aka Enrique A. Lopez (Lopez), Maria Rodriguez aka Maria C. Rodriguez aka Marie Rodriguez aka Maria Del Carmen aka Maria Del Carmen Rodriguez (Rodriguez) and Elias Castro aka Elias D. Castro (Castro) (collectively, Indemnitors) executed a general indemnity agreement (the GIA) in favor of ACIC. ACIC then issued Public Works Payment and Performance Surety Bond No. 1001096845 in the amount of $191,510.00 (the Bond), which named E L engineering as principal and the Ontario International Airport Administration Offices as obligee. Claims were made on the Bond which ACIC paid out on in an amount totaling $84,463.55. ACIC also incurred attorneys and consultants fees, costs and expenses as a consequence of its issuance of the Bond. ACIC has demanded reimbursement from the Indemnitors, but have only received payments totaling $12,600.00. On October 12, 2022, ACIC filed a complaint, asserting causes of action against Indemnitors and Does 1-50 for: 1. Breach of Contract 2. Statutory Indemnity 3. Declaratory Relief On December 13, 2022, E L Enginerings and Lopezs defaults were entered. On September 11, 2023, Rodriguez filed a Notice of Stay of Proceedings, advising therein of her Chapter 7 bankruptcy filing. On November 20, 2023, ACIC dismissed Rodriguez, without prejudice. On April 29, 2024, Judgment Pursuant to Stipulation in Favor of Plaintiff American Contractors Indemnity Company and Against Defendant Elias Castro was entered. On June 13, 2024, an Amended Judgment Pursuant to Stipulation and Default Proceedings was entered. Legal Standard The court may . . . allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party . . . (Code Civ. Pro., § 473, subd. (a)(1).) The 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 . . . (Code Civ. Pro., § 473, subd. (d).) Discussion ACIC moves the court for an order to amend the judgment entered on June 13, 2024 due to a typographical error. ACICs counsel Amber N. Kim (Kim) represents as follows: Rodriguez was dismissed on November 20, 2023. (Kim Decl., ¶ 5). On April 29, 2024, ACIC and Castro executed and entered into a Stipulation for Entry of Judgment and subsequently a Judgment Pursuant to Stipulation was filed and entered the same day. ( Id. , ¶ 6). On May 29, 2024, ACIC submitted its request for entry of default judgment against E L Engineering and Lopez and at the June 6, 2024 hearing, the court issued an order granting default judgment in favor of ACIC and against said defendants. ( Id. , ¶ 7, Exhs. 1 and 2). On the proposed amended judgment submitted by ACIC to the court on June 10, 2024, only Castro and Lopez were named in the judgment and E L Engineering was inadvertently omitted. ( Id. , ¶ 8). On June 13, 2024, in reliance on the wording of the proposed amended judgment as drafted by ACIC, the court entered judgment against Castro and Lopez only. ( Id. , ¶ 8, Exh. 3.) The motion is granted.

Case Number: 24STCV08590 Hearing Date: July 18, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING PAOLA MELGAR , vs. EAST LA AUTO SALES, INC . Case No.: 24STCV08590 Hearing Date: July 18, 2024 Cross-Defendant Paola Melgars demurrer to Cross-Complainant East LA Auto Sales, Inc.s cross-complaint is sustained. Cross-Defendant Paola Melgar (Melgar) (Cross-Defendant) demurs to Cross-Complainant East LA Auto Sales, Inc.s (East LA) (Cross-Complainant) cross-complaint (CC) on the following grounds: (1) the 1st cause of action for breach of contract does not state facts sufficient to constitute a cause of action ; and (2) the 2nd cause of action for negligence does not state facts sufficient to constitute a cause of action. (Notice of Demurrer, pg. 1.) Meet and Confer Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41, emphasis added.) Cross-Defendants counsel declares that at least five days before the date the responsive pleading date was due to be filed, he met and conferred with the party who filed the pleading, and they did not reach an agreement resolving the matters raised in the demurrer. ( See Decl. of Rose ¶2a.) Cross-Defendants counsels declaration is insufficient under C.C.P. §430.41 because his declaration does not state that the parties met and conferred in person, by telephone, or by video conference. However, the failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Accordingly, the Court will consider Cross-Defendants demurrer. Background Cross-Complainant filed the operative CC on May 8, 2024, against Cross-Defendant alleging two causes of action: (1) breach of contract; and (2) negligence. Cross-Complainants causes of action arise from its entry into a Retail Installment Sale Contract (Contract) with Cross-Defendant on August 16, 2022, in which Cross-Complainant agreed to purchase a used 2009 BMW (Subject Vehicle). ( See CC ¶5.) Cross-Defendant filed the instant demurrer on June 10, 2024. Cross-Complainant filed its opposition on July 3, 2024, and filed a second opposition on July 5, 2024. Cross-Defendant filed her reply on July 8, 2024. Summary of Demurrer Cross-Defendant demurs to the 1st and 2nd causes of action on the basis the claims fail to state facts sufficient to constitute causes of action. (Demurrer, pg. 3.) Legal Standard [A] demurrer tests the legal sufficiency of the allegations in a complaint. ( Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ( See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. ( Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.) Failure to State a Claim Breach of Contract (1st COA) To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) plaintiffs performance of the contract or excuse for nonperformance, (3) defendants breach, and (4) resulting damage to the plaintiff. ( Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Cross-Complainant alleges on August 16, 2022, Cross-Defendant entered into the Contract with Cross-Complainant in which Cross-Defendant agreed to purchase the Subject Vehicle from Cross-Defendant. (CC ¶5, Exh. A.) Cross-Complainant alleges it performed all of its obligations under the Contract. (CC ¶6.) Cross-Complainant alleges in ¶2, §2 of the Contract, Cross-Defendant agreed not to expose the Subject Vehicle to misuse. (CC ¶7.) Cross-Complainant alleges on or about October 2022, Cross-Defendant poured coolant into the Subject Vehicles engine, causing damage to the Subject Vehicle. (CC ¶8.) Cross-Complainant alleges it suffered harm and damages as a result of Cross-Defendants conduct. (CC ¶9.) Nonetheless, Cross-Complainant does not sufficiently how Cross-Defendants pouring coolant into the Subject Vehicle constitutes a breach of the Contract, nor how Cross-Complainant suffered any affirmative damages thereby. Accordingly, Cross-Defendants demurrer to Cross-Complainants 1st cause of action is sustained with 20 days leave to amend. Negligence (2nd COA) The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury. ( Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. ( Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1128 [214 Cal.Rptr.3d 552].) [T]he existence of a duty is a question of law for the court. ( Kentucky Fried Chicken of California v. Superior Court (1997) 14 Cal.4th 814, 819.) Cross-Complainant alleges Cross-Defendant owed Cross-Complainant a duty of care not to subject the Subject Vehicle to misuse . (CC ¶15.) Cross-Complainant alleges in October 2022, Cross-Defendant breached the duty of care owed to Cross-Complainant by pouring coolant into the Subject Vehicles engine, causing damage to the Subject Vehicle, causing harm to Cross-Complainant. (CC ¶16.) Cross-Complainant alleges Cross-Defendants conduct was the proximate cause and cause in fact in causing harm and damages to Cross-Complainant. (CC ¶17.) Cross-Complainant alleges as a result of Cross-Defendants breach, Cross-Complainant sustained general and specific damages in an amount to be determined at trial. (CC ¶18.) Cross-Complainant fails to allege a legal duty owed by Cross-Defendant to Cross-Complainant. Specifically, Cross-Complainant fails to allege a legally cognizable duty a buyer owes to a seller to not subject the Subject Vehicle to misuse. Accordingly, Cross-Defendants demurrer to Cross-Complainants 2nd cause of action is sustained with 20 days leave to amend. Conclusion The Court observes that absent allegations of affirmative damages, the causes of action pled in the Cross-Complaint appear more appropriately pled as affirmative defenses. Cross-Defendants demurrer to Cross-Complainant is sustained with 20 days leave to amend. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

23CV046088: TORDSEN vs BAYFAIR EAST APARTMENT FUND VI, LLC 07/18/2024 Hearing on Motion to be Relieved as Counsel filed by DOMINIQUE TORDSEN (Plaintiff) in Department 15 Tentative Ruling - 07/16/2024 Peter Borkon The Motion to Be Relieved as Counsel filed by DOMINIQUE TORDSEN on 05/29/2024 is Granted. The unopposed Motion by Andrew Wolff and the Law Offices of Andrew Wolffto be Relieved as Counsel for Plaintiff is GRANTED. The Court will sign the proposed order submitted with the moving papers.