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Central Mutual V Bevier

Case Last Refreshed: 3 years ago

Central Mutual Insurance Company, filed a(n) Automobile - Torts case represented by Schmidt Jason Andrew, against Bevier , Maria I, in the jurisdiction of Travis County, TX, . Travis County, TX Superior Courts .

Case Details for Central Mutual Insurance Company v. Bevier , Maria I

Category

Damages Vehicle (Gen Lit )

Last Refreshed

February 20, 2021

Practice Area

Torts

Filing Location

Travis County, TX

Matter Type

Automobile

Parties for Central Mutual Insurance Company v. Bevier , Maria I

Plaintiffs

Central Mutual Insurance Company

Attorneys for Plaintiffs

Schmidt Jason Andrew

Defendants

Bevier , Maria I

Other Parties

Harper , Hubert (Other)

Schmidt Jason Andrew (Attorney)

Case Events for Central Mutual Insurance Company v. Bevier , Maria I

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Ruling

ROBERT HULETT VS VONS, ET AL.
Jul 10, 2024 | 22STCV29766
Case Number: 22STCV29766 Hearing Date: July 10, 2024 Dept: 32 PLEASE NOTE : Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court . TENTATIVE RULING DEPT : 32 HEARING DATE : July 10, 2024 CASE NUMBER : 22STCV29766 MOTIONS : Motion for Leave to File First Amended Complaint MOVING PARTY: Plaintiff Robert Hulett OPPOSING PARTY: Defendant The Vons Companies, Inc. BACKGROUND On September 13, 2022, Plaintiff Robert Hulett (Plaintiff) filed a complaint against Defendants Vons, Vons Supermarket Company, Novolex Corporation, Hilex Corporation, and Does 1 to 100 for negligence, premises liability, and products liability. The products liability cause of action alleged the defective product was a reusable plastic bag, and was asserted against Novolex Corporation, Hilex Corporation, and Does 1 to 100 (and not against Vons). On June 4, 2024, Plaintiff filed the instant motion for leave to file a first amended complaint in order to assert the products liability cause of action against Hilex Poly Co., LLC, The Vons Companies, Inc., and Does 1 to 100. Defendant The Vons Companies, Inc. (Vons) opposes. No reply has been filed. LEGAL STANDARD Amendment to Pleadings: General Provisions Under Code of Civil Procedure section 576, [a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: [t]he court may, in furtherance of justice, and on any terms as may be proper, 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, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.¿ This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.¿( Kittredge Sports Co. v. Superior Court ¿(1989) 213 Cal.App.3d 1045, 1047.)¿ The Court of Appeal in Morgan v. Superior Court held If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. ( Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530, citations omitted.) Moreover, it is an abuse of discretion for the court to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. ( Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [opposing party did not establish harm by the delay in moving to amend the complaint].) California Rules of Court, rule 3.1324: Procedural Requirements Pursuant to California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleadings, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. In addition, under Rule 3.1324(b), a motion to amend a pleading before trial must be accompanied by a separate declaration that specifies the following: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. DISCUSSION As an initial matter, the procedural requirements are not met because the declaration in support does not state when the facts giving rise to the amended allegations were discovered, and the reasons why the request was not made earlier. The declaration only states that the omission was discovered recently. (Chambers Decl. ¶ 5.) Additionally, the motion does not state by page, paragraph, and line number, the deletions or additions. However, Plaintiff has attached the proposed amended complaint. (Chambers Decl., Exh. A.) Plaintiff argues this amendment will add Vons to the products liability cause of action, since Vons sold the product at issue: a reusable bag. In opposition, Vons notes this incident occurred on October 2, 2020, the complaint was filed on September 13, 2022, and argues Plaintiff has not sufficiently explained the reason for the delay in seeking this amendment . Vons also asserts that throughout discovery in this case, Plaintiff has only asserted that he tripped over a parking stop in front of the store. While the complaint alleges a reusable bag for products liability, Vons states Plaintiff has never alleged facts that he tripped because his reusable bag broke, until May 28, 2024. (Macksoud Decl. ¶ 5.) Vons provides Plaintiffs response to its Special Interrogatories number 5 which asked, Describe with as much factual specificity (including names, dates, times and location) as You can, how the Incident occurred. (Macksoud Decl., Exh. A, SROG # 5.) In the response served February 3, 2023, Plaintiff uses language similar to the complaint but only alleges the defective condition as a parking stop. Nowhere does he allege a defect with a reusable bag. (See id. , Exh. B, SROG #5.) Vons argues it will be prejudiced because it has not conducted discovery on this matter and trial is set for July 10, 2024. [1] If the Court is inclined to grant the amendment, Vons requests a continuance of trial to February-March 2025. Based on the above, the Court finds that Plaintiff has not provided sufficient reasons why this amendment was not sought earlier. Additionally, the delay in bringing this amendment will result in prejudice to Vons since trial is scheduled in less than two weeks and discovery is closed. Plaintiff has not filed a reply and fails to dispute Vons contentions or show why it did not present facts in discovery about the reusable bags role in the incident. Unexplained delays in seeking leave to amend is a valid reason to deny amendment. ( Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 689.) Therefore, the motion for leave to amend is denied. CONCLUSION AND ORDER Accordingly, Plaintiffs Motion for Leave to File First Amended Complaint is denied. Plaintiff to provide notice and file a proof of service of such. [1] Trial is now currently set for July 17, 2024. Discovery remains closed. (See Min. Order, 6/26/24.)

Ruling

JACQUELINE GARCIA VS MANUEL GUANA PRADO, ET AL.
Jul 09, 2024 | 23STCV01539
Case Number: 23STCV01539 Hearing Date: July 9, 2024 Dept: 32 PLEASE NOTE : Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court . TENTATIVE RULING DEPT : 32 HEARING DATE : July 9, 2024 CASE NUMBER : 23STCV01539 MOTIONS : Motion to Quash Service of Summons and Complaint MOVING PARTY: Defendant Ramon Gauna OPPOSING PARTY: Plaintiff Jacqueline Garcia BACKGROUND On January 24, 2023, Plaintiff Jacqueline Garcia (Plaintiff) filed a complaint against Defendants Manuel Guana Prado, Rosa Trujillo, Christopher Martinez, Ramon Guana, Richard Guana, Rosa Guana, Giovanny Martinez, Sara Trujillo, and Does 1 to 25 for injuries related to a dog bite. On March 13, 2023, Plaintiff filed a proof of service of the complaint and summons on Defendant Ramon Gauna (Defendant erroneously sued as Ramon Guana) by personal service on February 12, 2023. On July 5, 2023, Plaintiff filed another proof of service of the complaint and summons on Defendant, by substitute service, also on February 12, 2023. On October 31, 2023, Plaintiff filed a final proof of service of the complaint and summons on Defendant by substitute service on September 11, 2023. On October 31, 2023, default was entered against Defendant. The Court has not yet granted defaulted judgment. On April 30, 2024, Defendant filed the instant motion to quash service of the summons and complaint and set aside entry of default under Code of Civil Procedure section 418.10(a)(1), or alternatively to set aside the default under section 473.5. Plaintiff opposes and Defendant replies. ANALYSIS Quash Service of Summons A defendant . . . may serve and file a notice of motion for one or more of the following purposes:¿ (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .¿(Code Civ. Proc., § 418.10(a).)¿The motion must be filed on or before the last day on which the defendant must plead or within any further time that the court may for good cause allow. (Id.) A motion to set aside default under Code Civ. Proc., section 473.5 is not a general appearance when filed concurrently with a motion to quash service of summons under Code of Civil Procedure section 418.10. (Code Civ. Proc., section 418.10, subd. (d).) [C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]¿( Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)¿[T]he filing of a proof of service creates a rebuttable presumption that the service was proper but only if it complies with the statutory requirements regarding such proofs.¿( Id. at 1441-1442.) ¿On a motion to quash service of summons, the plaintiff has the burden of establishing by a preponderance of the evidence the prima facie facts entitling the court to assume jurisdiction, including whether service was in compliance with statutory requirements. ( Lebel v Mai (2012) 210 Cal.App.4th 1154, 1160.) A court may rely upon the verified declarations of the parties and other competent witnesses. ( Buchanan v. Soto (2015) 241 Cal.App.4th 1353, 1362.) A court lacks jurisdiction over a party if there has not been proper service of process.¿( Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. (Code Civ. Proc. § 415.20(b).) Here, Defendant first seeks to discredit Plaintiffs process server, showing that the proof of service filed March 13, 2023 attempted to show personal service at 9334 Coachman Ave., Whittier on Defendant and two other defendants who were deceased at the time. [1] (See Motion, 4; Gauna Decl. ¶ 6.) Therefore, Defendant questions the truthfulness of the process server. On July 5, 2023, Plaintiff later filed a new proof of service on July 5, 2023, showing this time, substitute service on Defendant on February 12, 2023the same date as the original proof of service. This proof of service contains a declaration by the process server Daniel Aragon, who declares that on February 12, 2023, there appeared to be a Super Bowl party at the address. (Proof of Service, 7/5/23, Aragon Decl. ¶ 4.) Aragon handed the papers to a man who answered the door who was about 30 to 40 years old, 5'9" to 6' tall and about 200 lbs. ( Id. , Aragon ¶ 5.) However, this declaration does not show that Aragon confirmed that the person accepting the papers was a member of the household and not merely a guest at the purported Super Bowl party. In the instant motion, Defendant contends there was no Super Bowl viewing party on the day of service. (Gauna Decl. ¶ 6.) Pertaining to the September 11, 2023 service, Defendant argues that substitute service never occurred. The proof of service shows that substitute service took place at 9334 Coachman Ave. Whittier, at 8:20 p.m. The papers were served on John Doe (Refused Name) co-occupant; Asian American Male, 70s, 170 lbs., 57, White Hair, Brown Eyes. The proof of service also includes a declaration of diligence and mailing. The declaration of diligence states: Substituted Service on John Doe he refused name, he was in the garage area with lights on when I called Ramon Guana. He started walking into the house and would not talk to me, Asian American Male, 70s 170 lbs., 57, White Hair, Brown Eyes. Defendant argues that he is Hispanic and no one in his household appears to be Asian; he further states no one would have opened the door for a stranger at 8:20 at night. (Gauna Decl. ¶ 4.) Defendant also argues that he never received the summons and complaint in the mail. Since Defendant is asserting that the Court lacks personal jurisdiction, Plaintiff has the burden to show by a preponderance of the evidence, that service was proper. In opposition, Plaintiff contends that Defendant was personally served on February 12, 2023 because when Aragon asked for Defendant and the two deceased Defendants, three men came to the door and accepted the packages. Plaintiff argues no one stated that two were deceased. Therefore, they led Aragon to believe they were the named defendants. Plaintiff argues that even if these were not the named defendants, by accepting them, substitute service was effectuated. Finally, Plaintiff argues that the substitute service on September 11, 2023 was proper. Plaintiff sets forth evidence that Plaintiffs counsel conducted a search of Defendant on Been.Verified.com. Counsel asserts the report confirmed Defendants address and that he is 77 years old. (Rosa Decl. ¶15.) In reply, Defendant does not dispute that he resides at 9334 Coachman Avenue. But further disputes that the purported service took place. Defendant files a second declaration in reply, addressing the opposition. In it, Defendant states under penalty of perjury that [t]here is no Asian person who lives at my residence or who has visited my residence in the last few years. There is no one living at my residence or even has visited my residence (especially who would have been in the garage in the last year with white hair. It would have been impossible for someone to hand papers to anyone (or even throw papers at anyone) in the garage of my residence because there is a locked, wrought iron and metal mesh gate about twenty-five feet in front of the area which prevents entry to the back of the driveway and garage area. (Gauna Decl. ¶ 45.) Plaintiff provides no support that service can be effectuated if the process server is led to believe that they served the proper person. Plaintiff also provides no evidence that on February 12, 2023, any person explicitly stated they were the named defendants. As for the September 11, 2023 substitute service, while Plaintiff provides evidence of Defendants address, and the fact that his age matches the description in the proof of service, Plaintiff provides no further evidence to show that the person served was a member of the household. There are no further descriptions of Defendants characteristics to determine whether service occurred. The declaration by Elias Elhayek, who purportedly effectuated service on September 11, 2023, does not contain specific facts of the service and only authenticates the declaration of diligence attached to the proof of service. (Elhayek Decl. ¶ 2, Exh. C.) Therefore, Plaintiff has not shown by a preponderance of the evidence, that service was proper. Therefore, the motion to quash is granted and the default entered on October 31, 2023 against Defendant is set aside. CONCLUSION AND ORDER Therefore, the Court GRANTS Defendants motion to quash service of summons and complaint. The matter is set for an Order to Show Cause Re: Dismissal or Monetary Sanctions for Failure to Serve for September 16, 2024 at 8:30 a.m. Defendant to provide notice and file a proof of service of such. [1] Defendant also appears to move to dismiss the two deceased Defendants: Manuel Gauna and Richard Gauna. However, it appears Plaintiff dismissed these two parties on June 18, 2024. Therefore, the Court will not address this argument as it appears moot.

Ruling

BINTI-MICHAL DECOHEN-MILLER, BY AND THROUGH HER GUARDIAN AD LITEM JEZREEL PATRICIA DECOHEN, ET AL. VS RC STREET SHOP, LLC, ET AL.
Jul 10, 2024 | 20STCV36314
Case Number: 20STCV36314 Hearing Date: July 10, 2024 Dept: 32 PLEASE NOTE : Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court . TENTATIVE RULING DEPT : 32 HEARING DATE : July 10, 2024 CASE NUMBER : 20STCV36314 MOTIONS : Petition for Minors Compromise MOVING PARTY: Petitioner Jezreel Patricia Decohen OPPOSING PARTY: Unopposed The Court has reviewed the petition filed on July 1, 2024 by Petitioner Jezreel Patricia Decohen (Petitioner) on behalf of Claimant Binti-Michal Decohen-Miller, age 6. The Court denies the petition without prejudice for the following reasons: Petitioner must use the most updated MC-350, 351, 355 forms (Rev. Jan. 1, 2021) in future petitions. Note: the item/attachment numbers in this order may vary from the numbers in the updated forms. Claimant was injured after a foldable security gate at a store fell on her hand. Petitioner contends Claimant has recovered completely and there are no permanent injuries. However, this is contradicted in item 6: As a result, Claimant suffered severe and permanent injuries. Item 6 also states that the gate landed on Claimants right hand and fingers, however item 7 only asserts injuries to the left-hand fingers. The medical records in attachment 8 show that Claimant suffered from injuries to her right hand. Petitioner must correct these inconsistencies. Petitioner must provide attachment 12b(6) describing reasons for the apportionment between Claimants and Marcus Millers settlements. Petitioner requests $48,333.33 in attorney fees which represents 33.33% of the gross settlement. The attorney declaration in attachment 14a must be signed. Petitioner must include in attachment 15, a declaration attesting to the medical expenses paid for and the amounts incurred. The declaration must also contain exhibits with proof of the medical expenses and payments made, totaling $4,084.82. Petitioner must include the medical expenses she seeks to get reimbursed in item 17b instead of 17d. It appears Petitioners attorney is representing another plaintiff in this matter. Item 18e and the applicable attachment must be provided. Petitioner must provide attachment 19b(2). In the proposed order (MC-351), item 7c(1)(b) appears to improperly include the medical liens. Also, the Medi-Cal lien is not reflected in the order. If Petitioner did not pay this, then the Medi-Cal lien must be reflected in 7c(1)(c). Accordingly, the Court denies the petition without prejudice. Petitioner shall give notice and file a proof of service of such.

Ruling

DALILAH VILLALOBOS, ET AL. VS FINAL TOUCH CONSTRUCTION & DESIGN, ET AL.
Jul 10, 2024 | 20STCV40002
Case Number: 20STCV40002 Hearing Date: July 10, 2024 Dept: 28 Having set an order to show cause re: dismissal (settlement), the Court rules as follows. BACKGROUND On October 19, 2020, Plaintiffs Dalilah Villalobos, by and through her guardian ad litem Laura Eggleston, and Catalina Villalobos, by and through her guardian ad litem Maria Dominguez, filed this action against Defendants Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, Chantra Sun, Lorraine Garcia, Gus Garcia, and Does 1-50 for wrongful death (motor vehicle negligence). On October 20, 2020, the Court appointed Laura Eggleston to serve as guardian ad litem for Plaintiff Dalilah Villalobos. On October 29, 2020, the Court appointed Maria Dominguez to serve as guardian ad litem for Catalina Villalobos. On May 6, 2022, Defendants and Cross-Complainants Final Touch Construction & Design, Luis Anthony Echeverria, and Luis M. Echeverria filed an answer and a cross-complaint against Cross-Defendants Roes 1-25 for equitable/implied indemnity, apportionment and contribution, and declaratory relief. On May 31, 2022, Defendant Chantra Sun filed an answer. In addition, Cross-Complainant Chantra Sun, individually and as successor-in-interest to the Estate of Katrina Ariana Wilkins-Sun, filed a cross-complaint against Cross-Defendants Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, and Roes 1-100 for negligence, wrongful death and survival action damages, equitable/implied indemnity, comparative contribution, apportionment, and tort of another. On November 29, 2022 and January 4, 2023, the Court dismissed Defendants Lorraine Garcia and Gus Garcia without prejudice at Plaintiffs request. On June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case on June 5, 2023. On August 28, 2023, Plaintiffs counsel asked the Court for additional time to submit petitions for approval of minors compromises. In response, the Court set an order to show cause re: dismissal (settlement) and a status conference re: filing of a petition to approve minors compromise for November 28, 2023. On November 28, 2023, Plaintiffs counsel asked the Court for a continuance to finish negotiations on the Medi-Cal lien and to file petitions to approve minors compromises. The Court continued the order to show cause re: dismissal (settlement) and the status conference re: filing of a petition to approve minor's compromise to March 8, 2024. On March 8, 2024, Plaintiffs counsel did not appear, contact the Court to explain the non-appearance, file a petition to approve minors compromise, or submit a declaration showing good cause. The Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to April 24, 2024 and ordered counsel to file a declaration at least two court days before April 24, 2024 regarding the status of the petitions and counsel's failure to appear. On April 22, 2024, Plaintiffs counsel filed a declaration stating his failure to appear at the March 8, 2024 hearing was due to mistake, inadvertence and/or excusable neglect. Counsel stated: (1) the matter had settled, (2) he was filing petitions to approve minors compromises, and (3) he had reserved hearings on the petitions for May 21, 2024. Counsel asked the Court to continue the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise for 90 days. On April 24, 2024, the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to May 28, 2024. The Court ordered that the hearings on petitions to confirm minors compromise reserved for May 28, 2024 were to go forward and moving papers were to be filed timely. On May 24, 2024, Plaintiffs counsel filed a declaration stating that he did not file the petitions to approve minors compromise timely because "the guardian ad litems were still selecting the annuity structure for the respective claimants" and counsel was still waiting for fully executed annuity documents. On May 28, 2024 , the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to July 10, 2024. Plaintiffs have not filed petitions to approve minors compromises and have not submitted a new declaration showing good cause why the Court should not dismiss the action. LEGAL STANDARD Code of Civil Procedure section 583.410 provides: (a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council. (Code Civ. Proc., § 583.410.) A discretionary dismissal under [Code of Civil Procedure section 583.410] (or for other delay in prosecution) is without prejudice to renewed litigation. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 11:190.2, p. 11-83.) California Rules of Court, rule 3.1385, provides in part: (b) Dismissal of case Except as provided in (c) or (d), each plaintiff or other party seeking affirmative relief must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed. * * * (d) Compromise of claims of a minor or disabled person If the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement, provided the parties have filed appropriate papers to seek court approval of the settlement. (e) Request for additional time to complete settlement If a party who has served and filed a notice of settlement under (a) determines that the case cannot be dismissed within the prescribed 45 days, that party must serve and file a notice and a supporting declaration advising the court of that party's inability to dismiss the case within the prescribed time, showing good cause for its inability to do so, and proposing an alternative date for dismissal. The notice and a supporting declaration must be served and filed at least 5 court days before the time for requesting dismissal has elapsed. If good cause is shown, the court must continue the matter to allow additional time to complete the settlement. The court may take such other actions as may be appropriate for the proper management and disposition of the case. (Cal. Rules of Court, rule 3.1385, subds. (b), (d), (e).) DISCUSSION As noted, on June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case. On August 28, 2023, Plaintiffs counsel confirmed the settlement by asking the Court for additional time to submit petitions to approve minors compromises. The Court granted the continuance request and granted counsels subsequent continuance requests on November 28, 2023, April 24, 2024, and May 28, 2024. It is now more than one year after the parties settled the case. Under California Rules of Court, rule 3.1385(b), except as provided in subdivisions (c) or (d), the Court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed. (Cal. Rules of Court, rule 3.1385(b).) Subdivision (c) of California Rules of Court, rule 3.1385, applies only to conditional settlements. The notice of settlement here states the settlement was unconditional. Therefore, subdivision (c) does not apply here. Subdivision (d) of California Rules of Court, rule 3.1385, states that [i]f the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement, provided the parties have filed appropriate papers to seek court approval of the settlement . (Cal. Rules of Court, rule 3.1385(d), emphasis added.) Here, Plaintiffs have not filed appropriate papers to seek Court approval of the settlement. Therefore, subdivision (d) does not prevent the Court from holding an order to show cause hearing. The Court set the July 10, 2024 order to show cause hearing on May 28, 2024. Plaintiffs have submitted no papers since May 28, 2024 demonstrating good cause why the case should not be dismissed. The Court dismisses the case under Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b). CONCLUSION Having issued an order to show cause re: dismissal (settlement) on May 28, 2024, and no good cause having been shown, the Court dismisses the case without prejudice under Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b). The Court will give notice of this ruling.

Ruling

RAFFI SEMERJIAN VS JHONATHAN DUENAS, ET AL.
Jul 09, 2024 | 23STCV05410
Case Number: 23STCV05410 Hearing Date: July 9, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND On March 10, 2023, Plaintiff Raffi Semerjian (Plaintiff) filed this action against Defendants Jhonathan Duenas, U-Haul, and Does 1-50 for motor vehicle tort. On April 28, 2023, Defendant U-Haul Co. of California , incorrectly sued as U-Haul (U-Haul), filed an answer. On June 14, 2023, Defendant Jonathan Duenas, incorrectly sued as Jhonathan Duenas (Duenas), filed an answer. On June 7, 2024, U-Haul and Duenas (Defendants) filed a motion to continue the trial and all trial-related dates, to be heard on July 9, 2024. On June 25, 2024, Plaintiff filed an opposition. On June 28, 2024, Defendants filed a reply. Trial is currently scheduled for September 9, 2024. PARTIES REQUESTS Defendants ask the Court to continue the trial to March 7, 2025, and to order that related dates will be based on the new trial date. Plaintiff asks the Court to deny the motion. LEGAL STANDARD A. Motion to continue trial California Rules of Court, rule 3.1332 provides: (a) Trial dates are firm To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (b) Motion or application A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (c) Grounds for continuance Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (d) Other factors to be considered In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332.) B. Motion to continue or reopen discovery Code of Civil Procedure section 2024.020 provides: (a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. (b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings. (Code Civ. Proc., § 2024.020.) Code of Civil Procedure section 2024.050 provides: (a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2024.050.) DISCUSSION Defendants ask the Court to continue the trial to March 7, 2025 and to continue related dates because Defendants have not yet taken Plaintiffs deposition or completed other discovery. The Court finds good cause for a continuance but Defendants have not shown that a six month continuance is needed. The Court continues the trial to December 18, 2024. All related dates will be based on the new trial date. CONCLUSION The Court GRANTS in part the motion of Defendants Jonathan Duenas and U-Haul Co. of California to continue the trial and related dates. The Court continues the trial to December 18, 2024, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Court continues the Final Status Conference to December 4, 2024, at 10:00 a.m. in Department 28 of the Spring Street Courthouse. All discovery and related dates will be based on the new trial date. In all other respects, the Court DENIES the motion. Moving parties are ordered to give notice of this ruling. Moving parties are ordered to file the proof of service of this ruling with the Court within five days.

Ruling

Darrin Hoover vs Christina Shepherd
Jul 11, 2024 | 23CV02997
23CV02997 HOOVER v. SHEPHERD (UNOPPOSED) PLAINTIFF HOOVER’S MOTION TO BE RELIEVED The unopposed motion to be relieved is granted. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 1 of 1

Ruling

FREDERICK HENRY HOWARD JR VS. UBER TECHNOLOGIES, INC. ET AL
Jul 10, 2024 | CGC18572443
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 4. PLAINTIFF FREDERICK HOWARD's Motion To Vacate Arbitration Award. Hearing required re lack of (1) proof of service and (2) exhibits to Howard declaration in register of actions. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

REZA SAFAIE VS LAW OFFICES OF RAFI MOGHADAM, APC, ET AL.
Jul 09, 2024 | 24SMCV00823
Case Number: 24SMCV00823 Hearing Date: July 9, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 20 5 REZA SAFAIE , Plaintiff, v. LAW OFFICES OF RAFI MOGHADAM APC, et al., Defendant s . Case No.: 2 4 S M CV 0 0823 Hearing Date: July 9 , 2024 [ TENTATIVE] ORDER RE: DEFENDANT S MOTION TO STRIKE COMPLAINT BACKGROUND This case arises from an attorney fee dispute . Plaintiff Reza Safaie entered into an agreement with Defendants Law Offices of Rafi Moghadam APC and Rafi Moghadam to serve as a third party payor of attorneys fees of Defendants client , Fair Ocean Management LLC . ( Compl . ¶ 9 .) Defendants submitted invoices which Plaintiff refused to pay as Plaintiff claims the services and expenses were unconscionable and unreasonable. ( Id. ¶ 10.) Plaintiff told Defendants he no longer desired to serve as the third party payor for Defendants client . ( Id. ¶ 11.) Defendants advised Plaintiff that he did not have the legal right to terminate or cancel the third party payor agreement , nor did he have the right to contest or dispute any of the billing . ( Id. ¶ ¶ 12 -13 .) Defendants also told Plaintiff that once the case was over , Defendants would seek attorneys fees and if the Court award ed Defendants fees, Defendants would be willing to negotiate Plaintiffs liability associated with the third party payor agreement . ( Id. ¶ 17.) Plaintiff contends this advice converted Defendants relationship with him into one of attorney and client . ( Id. ¶ 23.) Plaintiff also claims Defendants advice was both malpractice and fraud . ( Id. ¶ ¶ 33 , 5 1 .) Based on these allegations, Plaintiff alleges six claims for (1) legal malpractice, (2) breach of fiduciary duty, (3) constructive fraud, (4) intentional fraud, (5) breach of implied covenant of good faith and fair dealing, and (6) negligence . This hearing is on Defendant s motion to strike the complaint . Defendant moves to strike Plaintiffs prayer for damages because it fails to state the amount of damages, and prayer for attorneys fees because there is no legal basis for the award of such fees . LEGAL STANDARD T he court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading . (Code Civ. Proc. § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) 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. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) MEET AND CONFER Code Civ. Proc. § 435.5 requires that before the filing of a motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike. (C ode C iv. P roc. § 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (C ode C iv. P roc. § 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (C ode C iv. P roc. §435.5(a)(3) .) Defendant s submit the Declaration of Rafi Moghada m which attests defense counsel made several attempts to meet and confer by telephone with Plaintiffs counsel , but Plaintiffs counsel was either in trial or failed to respond . This satisfies the meet and confer requirements of § 435.5 . DISCUSSION Plaintiff argues that Defendants motion to strike is untimely . Defendant Rafi Moghadam was personally served with the summons and complaint on March 1, 2024 , and his law firm was personally served on March 6, 2024 . The 30 day deadline to respond expired on April 1, 2024 and April 5, 2024 respectively . However, Defendants filed a declaration for an automatic extension of 30 days . Accordingly , their response deadline was extended to May 1, 2024 and May 6, 2024 . Defendants filed their motion to strike on May 2, 2024 . While one of the Defendants motion is one day late, the other Defendants motion is timely . Given the limited delay, t he Court will consider both Defendants motion s on their merits . ( CPF Agency Corp. v. R&S Towing (2005) 132 Cal.App.4 th 1014, 1020-1021 (court has discretion to rule on late-filed motion to strike ).) Plaintiff also argues Defendants waived their right to move to strike because they filed an answer . Plaintiff cites no authority for this argument . Its authorities stand for the proposition that a defendant cannot move to strike after it has filed an answer . Here, Defendants filed their motion to strike at the same time as their answer . In any event, the court has the discretion to consider the merits of the motion under the courts inherent authority to strike improper matter from pleadings at any time . ( Code Civ. Proc. § 436(a) ;¿ CPF Agency Corp. , 132 Cal.App.4th at 1021 .)¿ The Court now turns to the merits of the motion . Defendants argue that Plaintiffs prayer for money damages does not specify the amount of damages and is therefore invalid . The Court agrees . In non-personal injury cases, such as this one, [ i ]f the recovery of money or damages is demanded, the amount demanded shall be stated. (Code Civ. Proc. § 425.10(a)(2).) Section 425.10 requires all complaints to state the amount of damages sought, except in personal injury or wrongful death cases. ( Electronic Funds Solutions v. Murphy (2005) 134 Cal.App.4th 1161, 1176.) The purpose of this rule is to place the defendants on notice of the maximum liability confronting them. ( Id. ) The rule aids a defendant in evaluating the validity of plaintiffs damage claims with regard to their provability. ( Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761.) Here, the Complaint alleges various monetary damages but specifies none. ( See Compl . at 6:6-8, 7:10-11, 8:2-3, 8:20-21, 9:15-16, 10:6-7, 10:18-19, 11:4, 11:5, 11:6, 11:7, 11:9.) The phrase in an amount to be proven at time of trial is not Code-compliant . Because this action is not a personal injury or wrongful death suit, Plaintiff is required to specify the amount of damages . ( See Code Civ. Proc. § 425.10(b).) Accordingly , Plaintiff s prayer for unspecified money damages is defective and must be stricken. Plaintiff argues he has alleged he suffered actual harm , and Defendants should simply resort to discovery to quantify that harm . The availability of discovery does not contravene the Codes specific command that Plaintiff state the amount of damages demanded by his Complaint . Were it otherwise, every plaintiff could simply point to discovery and refuse to state the amount demanded in his complaint, rendering the requirements of § 425.10 meaningless . Defendants also argue that Plaintiff has not stated a basis for his claim for attorneys fees . Again, the Court agrees . California generally follows what is commonly referred to as the American Rule which provides that each party to a lawsuit must ordinarily pay his or her own¿ attorneys fees . ( See, e.g., ¿ Trope v. Katz ¿(1995) 11 Cal.4th 274, 278 .) The¿ American Rule is codified in¿ Code Civ. Proc. § 1021 , which states in¿relevant part :¿ Except as attorney s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties & . ¿ Here, the Complaint does not specify a statutory or contractual basis for Plaintiffs prayer for attorneys fees . Without a statutory or contractual basis, Plaintiff cannot recover any attorneys fees in the present case. (Code Civ. Proc. §§ 1021, 1033.5(a)(10); Trope , 11 Cal.4th at 278279 ( Except as attorneys fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.) .) In Opposition, Plaintiff argues he is entitled to attorneys fees under Code Civ. Proc. § 1021.5 , the private attorney general statute . [A]n award under [ section 1021.5 ] ¿requires a showing that (1) the litigation enforced an important right affecting the public interest; (2) it conferred a significant benefit on the general public or a large class of persons; and (3) the necessity and financial burden of private enforcement (or enforcement by one public entity against another) were such as to make the award appropriate.¿ [Citation.] Since the statute states the criteria in the conjunctive, each element must be satisfied to justify a fee award. [Citation.] & [¶] The third element, the necessity and financial burden requirement, involves two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party s attorneys. [Citation.] ( Children & Families Com. of Fresno County v. Brown ¿(2014) 228 Cal.App.4th 45, 55.) The Complaint fails to allege any of these essential elements . More importantly, Plaintiff is seeking to vin di cate a personal right . When & the primary effect of a lawsuit [is] to advance or vindicate a plaintiffs personal economic interests &. fees under section 1021.5 is improper. ( Flannery v. Cal. Highway Patrol (1998) 61 Cal.App.4 th 629, 635 .) Section 1021.5 ¿ was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest. ( Beach Colony II v. California Coastal Com . (1985) 166 Cal. App. 3d 106, 114.) Instead, its purpose is to provide some incentive for the plaintiff who acts as a true private attorney general, prosecuting a lawsuit that enforces an important public right and confers a significant benefit, despite the fact that his or her own financial stake in the outcome would not by itself constitute an adequate incentive to litigate. ( Satrap v. Pacific Gas & Electric Co . (1996) 42 Cal. App. 4th 72, 80.) Here, Plaintiff s malpractice suit seek s recovery for Plaintiffs personal economic interests, and not to vindicate an important public right . Accordingly , the Court grants the motion to strike Plaintiffs prayer for attorneys fees. CONCLUSION Based on the foregoing, the Court GRANTS Defendants motion to strike Plaintiffs prayer for unspecified damages with 20 days leave to amend and Plaintiffs prayer for attorneys fees without leave to amend . IT IS SO ORDERED. DATED: July 9 , 202 4 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

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