United States Liability Insurance Company Vs Brackenhoff Man

Case Number: 21STCV33926 Hearing Date: July 10, 2024 Dept: 45 Superior Court of California County of Los Angeles LGP EQUIPMENT RENTALS, INC., a California Corporation, Plaintiff, vs. LAGD PROPERTIES LLC, a California limited liability company; 1st DESIGN AND DEVELOPMENT, a California Corporation; RAMON ROMERO, an individual dba SOUTHERN CALI CONSTRUCITON; L.A. GREEN DESIGNS, an unknown form of entity; and DOES 1 through 100, inclusive, Defendants. Case No.: 21STCV33926 DEPARTMENT 45 [TENTATIVE] RULING Action Filed: 09/14/21 1 ST Amended Complaint Filed: 07/17/23 Trial Date: None set. Hearing date: 07/10/2024 Moving Party: Plaintiff LGP Equipment Rentals, Inc. Responding Party: Defendant 1ST Choice Design and Development Motion to Compel Initial Responses to Request for Production of Documents, Set One and Request for Sanctions in the Amount of $3,000.00 The Court considered the moving, opposition, and reply papers. The motion is GRANTED. Recommendation : Grant, Defendant is ordered to serve responses to Requests for Production, Set One without objections within 20 days of this order. Defendant and Defense Counsel are also ordered to pay monetary sanctions jointly and severally in the amount of $750.00 to Plaintiff through its counsel of record. Reason : Plaintiff served Requests for Production, Set One, on December 18, 2023. To date, the Defendant has not served any responses. However, Defendant argues that after a diligent search, it was unable to locate the documents it initially believed it had. Defendants counsel states [w]hen I was corresponding with Plaintiffs counsel, I was unaware that the documents did not exist and based on discussions with my Client we both believed the documents did exist but eventually Defendant was unable to locate them after a diligent search. (Diefenbach Decl. ¶ 8; See also Innabi Decl. ¶ 5, Ex. C.) Moreover, Tony Holder, the principal and owner of Defendant 1 st Choice Design & Development states Defendant is ultimately unable to produce the documents because the project file was taken from a former employee who worked as the project manager for both projects, Mr. Alberto Dominguez. (Holder Decl. ¶ 2.) Mr. Holder further states [t]he records that 1st Choice did have that were not lost at the project site were lost when 1st Choice changed office locations in approximately June of 2021 . . . 1st Choice does not have any responsive documents in its custody and control that it can make available for production. I initially believed the project documents existed but was unable to locate them after a diligent search and realized that Mr. Dominguez was in charge of the documents and then other documents were lost during a move. ( Id . at ¶¶ 4-6.) Nevertheless, the Court notes Defendant fails to provide any evidence for its speculations of the former employee taking the records. Therefore, the Court should grant the motion under CCP section 2031.300 and impose the reasonable amount of $750.00 (1.5 hours at $500 per hour) in monetary sanctions on the Defendant and Defense Counsel, jointly and severally. Other Notes : There is a discrepancy as to the sanction amount requested. In the moving papers, Plaintiff seeks $3,000.00 in sanctions. However, in the reply papers, Plaintiff seeks $2,000.00 in sanctions. It is so ordered. Dated: July 10, 2024 _______________________ MEL RED RECANA Judge of the Superior Court

Case Number: 23SMCV03537 Hearing Date: July 10, 2024 Dept: N TENTATIVE RULING Plaintiff Goldrich Kest, LLCs Motion to Compel Further Responses from Certain Underwriters at Lloyds of London, Ategrity Specialty Insurance Company and Axis Surplus Lines Insurance Company to Requests for Production (Set One) and Special Interrogatories (Set One) is GRANTED in part. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59 within thirty (30) days of entry of this order. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16, insofar as Defendants have possession of, access to, or control of responsive documents, within thirty (30) days of entry of this order. Plaintiff Goldrich Kest, LLC to give notice. REASONING If a party that has propounded interrogatories or requests for production of documents believes that the responses received are evasive or incomplete, or that an objection to the interrogatories or requests for production of documents is without merit or too general, the propounding party may bring a motion to compel further responses to the interrogatories. (Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a); see also Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189-1190 [motion to compel proper to challenge boilerplate responses].) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories or requests for production of documents. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c).) This timeliness requirement is mandatory, and in some sense may even be considered a matter of jurisdiction, and the Court therefore [has] no power to make an order compelling further answers where the propounding party failed to serve this motion within the statutory time. (Profl Career Colls., Magna Inst., Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 493; see also Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681 [same].) A motion to compel further responses must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (See Code Civ. Proc., §§ 2030.300, subd. (b)(1), 2031.310, subd. (b)(2).) A meet and confer declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.) California Rules of Court, rule 3.1345(a) requires that any motion to compel further responses to discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further. Plaintiff Goldrich Kest, LLC (Plaintiff) moves for further responses to its Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16 and Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59 propounded on Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company (Defendants); for an order requiring Defendants to search for, collect, and produce all documents and electronically-stored information responsive to Requests for Production Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16; and for an order requiring Defendants to provide privilege logs identifying all responsive documents that have been withheld or redacted. Insofar as Plaintiff asks for further responses to its Special Interrogatories (Set One) Nos. 66, 67, 68, 69, 70, 71, 80, 81, 82, 83, 84, and 85, the Court will not order any such responses because those requests were not identified in the notice of motion. The Court also will not consider a request for sanctions that is not stated in the notice of motion. (See Code Civ. Proc., § 2023.040.) The Court has reviewed the requests at issue, as well as Defendants responses to the same, and hereby rules as follows: Defendants shall provide supplemental responses to Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59. Each of the interrogatories seeks discoverable information, specifically, information relevant to Defendants basic business operations, Defendants identification of certain employees involved with the claim at issue, and Defendants process as to the claim at issue. As to Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16, Defendants must provide all documents responsive to these requests, as they, too, seek discoverable information. The Court cannot order Defendants to produce documents which do not exist. However, as to documents possessed by Defendants claims administrator, sub-consultants, and counsel, the Court will not order production of documents possessed by a third party which is not in Defendants possession and for which Defendants do not have access and control. The Court has not considered any supplemental responses here. Accordingly, Plaintiff Goldrich Kest, LLCs Motion to Compel Further Responses from Certain Underwriters at Lloyds of London, Ategrity Specialty Insurance Company and Axis Surplus Lines Insurance Company to Requests for Production (Set One) and Special Interrogatories (Set One) is GRANTED in part. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59 within thirty (30) days of entry of this order. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16, insofar as Defendants have possession of, access to, or control of responsive documents, within thirty (30) days of entry of this order.

Case Number: 24CHCV00588 Hearing Date: July 10, 2024 Dept: F43 Dept. F43 Date: 7-10-24 Case #24CHCV00588 , Chinyere Valerie Ibe vs. Bamboo Insurance Services, Inc., et al. Trial Date: N/A DEMURRER TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE MOVING PARTY: Defendant 818 Restoration and Construction, LLC RESPONDING PARTY: Plaintiff Chinyere Valerie Ibe RELIEF REQUESTED Demurrer to the Complaint · 4 th Cause of Action for Intentional Misrepresentation · 5 th Cause of Action for Violation of California Business & Professional Code · 6 th Cause of Action for Unjust Enrichment · 7 th Cause of Action for Defamation Motion to Strike · Page 24, Paragraph 111 entitled Prayer for Relief, Lines 23-25 [claim for punitive damages] RULING : Defendants demurrer is sustained. Defendants motion to strike is granted. SUMMARY OF ACTION Plaintiff Chinyere Valerie Ibe (Plaintiff) filed her First Amended Complaint (FAC), in pro per, on March 25, 2024. Plaintiffs complaint alleges seven causes of action for (1) Breach of the Duty of Good Faith and Fair Dealing; (2) Bad Faith Denial of Insurance Claim; (3) Breach of the Contractual Duty to Pay a Covered Insurance Claim; (4) Intentional Misrepresentation; (5) Violations of Cal. Bus. & Prof. Code §§ 17200, et. seq.; (6) Unjust Enrichment; and (7) Defamation. The First through Third Causes of Action are only against Defendant Bamboo Insurance Services, Inc. The Fourth through Seventh Causes of Action are against all Defendants. Defendant 818 Restoration and Construction, LLC (818 Restoration) is the demurring Defendant in this instance. 818 Restoration demurs to the Fourth through Seventh Causes of Action. Plaintiffs FAC alleges that the water heater in the garage of her home burst. This caused the garage to flood, damaging the drywall and items that were stored in the garage. Plaintiffs FAC alleges that on Marh 24, 2023, Defendant Bamboo Insurance sent out a leak detector from 818 Restoration to take pictures of the damaged drywall in the garage. (FAC, ¶ 21.) She also alleges that water was still trickling out of the water heater when the leak detector from 818 Restoration came out. (FAC, ¶ 25.) She also alleges that 818 Restoration was working with Bamboo to create a story that Plaintiff falsely reported that the water heater flooded the garage. (FAC, ¶ 34.) Plaintiff also alleges that Bamboo, using its contractors, including 818 Restoration, found ways to deny her claim. (FAC, ¶ 61.) The last allegations in Plaintiffs FAC related to 818 Restoration is that it made one or more defamatory statements about Plaintiff to a person other than Plaintiff. (FAC, ¶¶ 100, 103.) There are no other specific allegations related to 818 Restoration. 818 Restoration filed its demurrer on May 28, 2024. Plaintiff filed an opposition on June 26, 2024, with proof of service by mail. On July 1, 2024, 818 Restoration filed a notice of non-opposition to its demurrer, as it apparently had no knowledge of the opposition that was filed by Plaintiff with the Court and had not yet received the opposition in the mail. Plaintiffs opposition only argues that she was not validly served with the demurrer because she had not consented to service of the demurrer via email, which is how she claimed she received the demurrer. However, the proof of service filed with Defendants demurrer indicates that Plaintiff was served via U.S. Mail, so it is unknown why she did not receive the demurrer in the mail. Plaintiff also argues that Defendant did not meet and confer, but Defendants demurrer indicates that it attempted to meet and confer with Plaintiff, but Plaintiff did not respond to attempts to meet and confer with her. Plaintiffs opposition contains no arguments regarding the merits of the demurrer and motion to strike. The Court will address the merits of the demurrer and the motion to strike. ANALYSIS A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. ( Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& ( Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. ( Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Fourth Cause of Action for Intentional Misrepresentation Defendant 818 Restoration demurs to Plaintiffs cause of action for intentional misrepresentation on the basis that it fails to plead any specific allegations against 818 Restoration. The elements of intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. ( Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245.) Notably, in California, fraud must be pled specifically; general and conclusory allegations do not suffice. ( Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. ( Id .) There are no specific allegations against 818 Restoration under this cause of action. Instead, Plaintiff just alleges that Defendants made misrepresentations regarding what would be covered by Plaintiffs insurance policy. (FAC, ¶ 78.) 818 Restoration was not Plaintiffs insurance provider. It was simply an inspector hired by Plaintiffs provider, Bamboo Insurance. There are no allegations under this cause of action for any misrepresentations made specifically by 818 Restoration. Defendants demurrer to Plaintiffs Fourth Cause of Action is sustained with leave to amend. Fifth Cause of Action for Violation of Cal. Bus. & Prof. Code §§ 17200 et. seq. 818 Restoration demurs to this cause of action on the basis that there are insufficient facts against 818 Restoration to support this cause of action. Cal. Business & Professions Code § 17200 et seq. includes the California Unfair Competition Law and provides consumers with remedies when businesses engage in unfair or fraudulent practices. Plaintiffs FAC does not contain any allegations indicating that 818 Restoration violated the Business and Professions Code. The only specific allegation against 818 Restoration under this cause of action is that Bamboo used it to find ways to deny Plaintiffs claims. This is not sufficient to indicate that 818 Restoration itself engaged any acts that would constitute a violation of the Business and Professions Code. Defendants demurrer to Plaintiffs Fifth Cause of Action is sustained with leave to amend. Sixth Cause of Action for Unjust Enrichment 818 Restoration demurs to this cause of action on the basis that it does not allege sufficient facts to constitute a cause of action against 818 Restoration. The theory of unjust enrichment requires one who acquires a benefit at the expense of another to either return the thing or its equivalent to the aggrieved party so as not to be unjustly enriched. ( Lyles v. Sangadeo-Patel (2014) 255 Cal.App. 4th 759.) Though Defendant does not raise this argument, the Court will note that there is no cause of action for unjust enrichment in California. ( Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 785, 793 (unjust enrichment is not a valid cause of action under California law).) Unjust enrichment is not a valid cause of action. Furthermore, Plaintiffs FAC contains no allegations indicating how 818 Restoration was unjustly enriched. Because unjust enrichment is not a valid cause of action, Defendants demurrer to Plaintiffs Sixth Cause of Action is sustained without leave to amend. Seventh Cause of Action for Defamation 818 Restoration demurs to this cause of action on the basis that it does not allege facts sufficient to constitute a cause of action for defamation. Defamation is an intentional tort that requires proof that the defendant intended to publish the defamatory statement. ( Stellar v. State Farm General Ins. Co. (2007) 157 Cal.App 4th 1498.) California law requires that any words constituting an alleged defamation must be specifically identified, if not pleaded verbatim, in the complaint. ( ZL Technologies, Inc. v Does 1 17 (2017) 13 Cal.App. 5th 603.) The only allegations that Plaintiff has against 818 Restoration under this cause of action is that it noted that a potential slab leak had occurred in the garage as the water did not reflect a failed water heater in the April 14, 2023, denial of benefits letter to Plaintiff, and that 818 Restoration made one or more of the states to a person other than Ms. Ibe. (FAC, ¶¶ 100, 103.) There is nothing in Plaintiffs FAC to indicate how 818 Restoration defamed Plaintiff, as the letter would have been issued by Plaintiffs insurance provider, nor does Plaintiff specifically identify the alleged defamation. Defendants demurrer to Plaintiffs Seventh Cause of Action is sustained with leave to amend. Motion to Strike Defendant had moved to strike Plaintiffs request for punitive damages. This Court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, [a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Under CCP § 436(a), [t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading. Punitive damages are governed by Civ. Code § 3294: In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code § 3294(a).) To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in Civ. Code § 3294. ( Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. ( Id . at 725.) Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. (Civ. Code § 3294(c)(2).) Fraud is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code § 3294(c)(3).)¿ ¿ Plaintiff has requested punitive damages as part of her prayer for relief, but nowhere in her FAC does she allege that 818 Restoration acted with malice, fraud, or oppression. Because she has not alleged that it acted with malice, fraud, or oppression, she cannot maintain a claim for punitive damages against 818 Restoration. Defendants motion to strike Plaintiffs request for punitive damages is granted for 818 Restoration only. It could still apply to other Defendants. CONCLUSION Defendants demurrer to Plaintiffs Fourth, Fifth, and Seventh Causes of Action is sustained with leave to amend. Defendants demurrer to Plaintiffs Sixth Cause of Action is sustained without leave to amend. Defendants motion to strike is granted. Moving party to give notice to all parties.

Case Number: 23VECV02505 Hearing Date: July 10, 2024 Dept: T Levi v Keyes 23VECV02505 Tentative rulings Defendants motion to strike First Amended Complaint-GRANT . The opposition was not considered because plaintiffs counsel was to provide a declaration from Saniel Sanft attaching a copy of the overnight mail receipt, and proof of delivery or status of delivery (he stated in his 5/10/2024 proof of service that it was served by overnight delivery.). He failed to do so, and defense denies receiving the opposition. By court order of 2/7/2024, the first amended complaint was to be served and filed no later than 20 days. Because notice was given by the court by mail, an additional 5 days were added, which would make the due date 3/4/2024. It was not served until 3/13/2024 and not filed until 3/14/2024 after the answer had been filed. Therefore, the First Amended Complaint was late, and it is disregarded. The ruling on the demurrer as to the original complaint stands: Defendants Hyundai Motor America and Van Nuys-H, Inc. dba Keyes Hyundai of Van Nuyss Demurrer to the Complaint is OVERRULED as to the eighth cause of action; SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the second cause of action; and SUSTAINED WITHOUT LEAVE TO AMEND as to the fourth, fifth, seventh, tenth, twelfth, and thirteenth causes of action. The Answer to the Complaint filed on 3/13/2024 stands. Plaintiffs Demurrer to Answer: SUSTAINED WITH 20 DAYS LEAVE TO AMEND THE ANSWER. Plaintiff may demur to an answer, particularly as to affirmative defenses. (Timberidge Enterps., Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879; see Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 535 [proper vehicle to test the sufficiency of an answer].) The affirmative defenses must do more than set forth bare legal conclusion. Affirmative defenses must specify supporting facts. (FPI Devel., Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) Allegations stating a legal conclusion (rather than pleading facts) are inadequate. (Berger v. California Ins. Guar. Assn. (2005) 128 Cal.App.4th 989, 1006; Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.) Here, the court finds that the demurrer is justified because there are no factual allegations supporting the bare legal conclusions. The demurrer is sustained with 20 days leave to amend. The Second Affirmative Defense at page 19, lines 3-6, is uncertain in that it cannot be ascertained what was the improper conduct of Plaintiff, and what applicable statutes required notice: Sustained as to lack of facts which is alleged to have been improper conduct. The Sixth Affirmative Defense is uncertain in that on page 19, line 26, it cannot be ascertained who are the persons or entities other than Defendants, nor can it be ascertained how, when, or in what manner such persons or entitles were reckless, careless and/or negligent: Sustained. No facts identified. The Twelfth Affirmative Defense fails to allege facts sufficient to state a defense; Sustained. No facts alleged. The Twelfth Affirmative Defense is uncertain in that on page 21, line 18, it cannot be ascertained what the statutory requirements were: Sustained. No facts alleged. The Fourteenth Affirmative Defense fails to allege facts sufficient to state a cause of action; Sustained. No facts alleged. The Fourteenth Affirmative Defense is uncertain in that on page 21, lines 26-28, it cannot be ascertained how, when, or in what manner there was either a release or a settlement; Sustained. No facts alleged. The Twentieth Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-First Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-Second Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-Fifth Affirmative defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Second Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Third Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Fourth Affirmative Defense is uncertain in that on page 25 lines 24- 25, it cannot be ascertained in what action or proceeding was there a prior class action settlement, nor can it be ascertained how, when or in what manner, Plaintiff was given notice so as to prevent his being opted out: Sustained. No facts alleged. 14. The Thirty Sixth Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged.

Case Number: 23STCV05225 Hearing Date: July 9, 2024 Dept: 45 Superior Court of California County of Los Angeles ARMANI MARSALIS GATES I, Plaintiff, vs. LEMONADE INSURANCE AGENCY, LLC, Defendants. Case No.: 23STCV05225 DEPARTMENT 45 [TENTATIVE] RULING Action Filed: 03/09/2023 [1st Amended Complaint Filed: N/A] Trial Date: 05/27/2025 Hearing date: 07/09/2024 Moving Party: Defendant Lemonade Insurance Agency, LLC Responding Party: N/A - Unopposed Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1) The Court considered the moving papers. Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1), is GRANTED . T he Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Responses and the monetary sanctions are due to Defendant within 20 days of this order. Background Armani Marsalis Gates I filed a Complaint on March 9, 2023 alleging breach of contract and intentional infliction of emotional distress. The motion before the Court now is Lemonade Insurance Agency, LLCs (Defendant) Motion to Compel Plaintiffs Responses to Request for Production of Documents, Set 1 (the Motion). No opposition has been filed, and Defendant files a Notice of Non-Opposition. Discussion Legal Standard If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4&(b) The party making the demand may move for an order compelling response to the demand. (c) Except as provided in subdivision (d), 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 compel a response to a demand for inspection, copying, testing, or sampling, 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. (CCP § 2031.300) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (CCP § 2023.030(a).) Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery. (CCP § 2023.010) Analysis Attached to the moving papers, Defendant provides the Declaration of William A. Hadikusumo (Hadikusumo Decl.) which states that on July 5, 2023, Plaintiff was served by Defendant with Requests for Production of Documents, Set 1. (Hadikusumo Decl., ¶3.) The deadline to provide responses was August 8, 2023 but no responses were provided. On August 9, 2023, Defendant reach out and provided an extension until September 6, 2023, however, no responses were ever received. (Hadikusumo Decl., ¶¶5-9.) Therefore, the Motion is granted, and sanctions are warranted. Sanctions Defense counsel provides the following calculations: · Counsels hourly rate is $240.00 · Counsel spent 5 hours preparing the instant Motion · Counsel anticipates the hearing taking 1 hour · Counsel incurred a filing fee of $60.00 · Counsel requests a total of $1,500.00 Accordingly, the Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Conclusion Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1), is GRANTED . T he Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Responses and the monetary sanctions are due to Defendant within 20 days of this order. It is so ordered. Dated: July 9, 2024 _______________________ MEL RED RECANA Judge of the Superior Court

Case Number: 24VECV00152 Hearing Date: July 9, 2024 Dept: T ROSEN V MALKA 24VECV00152 [TENTATIVE] ORDER: Defendant David Malkas Demurrer to the Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the First Cause of Action for Breach of Oral Contract and OVERRULED as to the Second, Third, Fourth, and Fifth causes of action. Leave to amend is limited to curing the pleading defects identified and not to add new causes of action. The Motion to Strike is DENIED. Introduction The Demurrer and Motion to Strike were filed by Defendant David Malka (Defendant) against the Complaint filed by Plaintiff Aaron Rosen dba RA Construction (Plaintiff). Defendant demurs the entire Complaint and each cause of action (i.e., the first cause of action for breach of oral contract, second cause of action for common counts, third cause of action for common count, fourth cause of action for unjust enrichment, and fifth cause of action for promissory fraud). Defendant also moves to strike exemplary damages allegations in the Complaint. Demurrer Discussion Res Judicata The Court takes judicial notice of the documents attached to the Demurrer: Complaint (Exhibit A), Notice of Settlement of Entire Case (Exhibit B), and Request for Dismissal (Exhibit C) from Los Angeles Superior Court case Aaron Rosen dba RA Construction v. Van Nuys Lofts, LLC, et al., Case Number 22VECV00735 (the Prior Lawsuit). (Evid. Code, 452, subd. (d) [stating that a court may take judicial notice of court records].) Those documents show that Plaintiff settled and then dismissed the Prior Lawsuit without prejudice. (Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714, 718, fn. 3 [stating that a court may take judicial notice of the existence, facial contents, and legal effect of & court records [citations] &].) A dismissal with prejudice following a settlement constitutes a final judgment on the merits. A dismissal with prejudice is the modern name for a common law retraxit. [Citation.] ... Dismissal with prejudice is determinative of the issues in the action and precludes the dismissing party from litigating those issues again. [Citations.] (Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533.) On the other hand, [i]t is established in California that a voluntary dismissal without prejudice is not a judgment on the merits, and, as such, has no claim-preclusive effect upon a later suit. (Gray v. La Salle Bank, N.A. (2023) 95 Cal.App.5th 932, 950.) Since Plaintiffs voluntary dismissal of the Prior Lawsuit without prejudice has no preclusive effect, Defendants Demurrer to the entire Complaint based on res judicata is OVERRULED. First Cause of Action Breach of Oral Contract The Court agrees with Defendant that the first cause of action for breach of oral contract fails to state facts sufficient to constitute a cause of action. Specifically, the Complaint does not allege consideration. Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him. [Citation.] (Speirs v. BlueFire Ethanol Fuels, Inc. (2015) 243 Cal.App.4th 969, 987.) Here, Plaintiff alleges the following. After Plaintiff provided general contractor services pursuant to a written agreement with nonparty Van Nuys Lofts, LLC, and the nonparty refused to pay Plaintiff in breach of the written agreement, Defendant assume[d] [the] responsibility to pay Plaintiff [$100,000] & in a written text message. (Compl., ¶ 10.) Defendants agreement to pay Plaintiff was based on Defendants interest in the property where the construction project took place and the benefit the Defendant received from Plaintiffs work. (Compl., ¶ 10.) Defendant never paid Plaintiff the amount he had promised to pay. (Compl., ¶ 11.) However, those facts do not show what consideration was provided in exchange for Defendants alleged promise to pay Plaintiff $100,000. Plaintiff cannot rely on its past performance to show consideration because [p]ast consideration cannot support a contract. (Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1247.) Accordingly, the demurrer to the first cause of action for breach of oral contract is SUSTAINED WITH LEAVE TO AMEND. Second, Third, and Fourth Causes of Action Common Counts, Account Stated, and Unjust Enrichment Defendant demurs the second, third, and fourth causes of action, arguing that they are barred by the doctrine of res judicata. The Court has found that res judicata argument unpersuasive. Accordingly, the demurrer to the second, third, and fourth causes of action is OVERRULED. Fifth Cause of Action Promissory Fraud Defendant demurs the fifth cause of action, arguing that the Complaint has not alleged intent to defraud. [I]n a promissory fraud action, to sufficiently alleges defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) [F]or the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance. (Ibid.) In other words, the only necessary averment is the general statement that the promise was made without the intention to perform it, or that the defendant did not intend to perform it. [Citation.] (Ibid.) Here, the Complaint alleges that Defendant made a promise to Plaintiff to pay $100,000 for Plaintiffs work, but did not intend to perform the promise when he made it to Plaintiff. (Compl., ¶¶ 22, 23.) That allegation is sufficient to allege intent to defraud. Accordingly, the demurrer to the fifth cause of action for promissory fraud is OVERRULED. Demurrer Conclusion Defendants Demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the First cause of action, and OVERRULED as to the Second, Third, Fourth, and Fifth causes of action. Motion to Strike Discussion Defendant moves to strike the exemplary damages allegations, arguing that Plaintiffs entire Complaint relies on alleged breach of contract. As such, Plaintiffs prayer for exemplary damages is not supported by law. (Motion, p. 5:3-5.) However, [t]he words oppression, fraud, or malice in Civil Code section 3294 being in the disjunctive, fraud alone is an adequate basis for awarding punitive damages. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 135.) Here, the Court has found that Plaintiff has alleged facts sufficient to constitute the fifth cause of action for promissory fraud. Accordingly, the Motion to Strike is DENIED. IT IS SO ORDERED, CLERK TO GIVE NOTICE.

Case Number: 23STCV10128 Hearing Date: July 12, 2024 Dept: 32 BOGHOS TOVMASSIAN, et al., Plaintiffs, v. HIPPO INSURANCE SERVICES, et al., Defendants. Case No.: 23STCV10128 Hearing Date: July 12, 2024 [ TENTATIVE] order RE: defendants motion for summary judgment BACKGROUND On May 5, 2023, Plaintiffs Boghos Tovmassian and Marguerite Tovmassian filed this action against Defendants Hippo Insurance Services (Hippo), Spinnaker Insurance Company (Spinnaker), and Patrick Hix, alleging (1) breach of insurance contract, (2) breach of the covenant of good faith and fair dealing, and (3) elder abuse. According to the complaint, Plaintiffs own a home located in Tujunga, California (the Property). (Compl. ¶ 1.) The Property was insured by a homeowners insurance policy issued by Hippo, which is owned and underwritten by Spinnaker. ( Ibid. ) In December 2021, the Property suffered wind and water intrusion, leading Plaintiffs to make a claim. ( Ibid. ) Plaintiffs allege that Defendants failed to conduct a full and fair investigation, which resulted in an insufficient payout. ( Id. , ¶ 3.) On April 25, 2024, Hippo and Spinnaker filed the instant motion for summary judgment. Plaintiffs have not filed an opposition. LEGAL STANDARD The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. ( Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. ( Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. ( Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) DISCUSSION I. Hippos Liability a. Plaintiffs Had No Contract with Hippo To establish breach of contract, a plaintiff must show: (1) the contract existed, (2) the plaintiffs performance of the contract or excuse for nonperformance, (3) the defendants breach, and (4) the resulting damage to the plaintiff. ( Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A plaintiff cannot assert a claim for breach of contract against one who is not a party to the contract. ( Tri-Continent Internat. Corp. v. Paris Savings & Loan Assn. (1993) 12 Cal.App.4th 1354, 1359.) It is undisputed that the policy was issued by Spinnaker, with Hippo as the program administrator. (Def.s Undisputed Facts (UF) 1; Carden Decl., Ex. A.) The policy was signed by Spinnakers CEO. ( Ibid. ) Therefore, Hippo has satisfied its initial burden by showing that it was not a party to the policy with Plaintiffs. This is sufficient to shift the burden to Plaintiffs, who do not oppose the motion or present any contrary evidence. Accordingly, Hippo is not liable for breach of contract as a matter of law. b. Hippo Cannot be Liable for the Implied Covenant The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other partys right to receive the benefits of the agreement actually made. ( Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-50.) In the absence of a contractual relationship, no implied covenant claims may be stated. ( Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 430.) As discussed above, Hippo has established that it had no contractual relationship with Plaintiffs. Accordingly, Plaintiffs cannot maintain an implied covenant claim against Hippo. c. Hippo Cannot be Liable for Elder Abuse Financial abuse of an elder or dependent adult occurs when a person or entity does any of the following: takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (Welf. & Inst. Code, § 15610.30.) Hippo could not have wrongfully retained Plaintiffs property ( i.e. , the insurance proceeds) if it was not a party to the policy and did not have any obligation to pay Plaintiffs. Therefore, the elder abuse claim fails as a matter of law. II. Spinnakers Liability a. The Claims are Time-Barred Under California law parties may agree to a provision shortening the statute of limitations, qualified, however, by the requirement that the period fixed is not in itself unreasonable or is not so unreasonable as to show imposition or undue advantage. ( William L. Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1307, quoting Capehart v. Heady (1962) 206 Cal.App.2d 386, 388.) [A] covenant shortening the period of limitations is a valid provision of an insurance contract and cannot be ignored with impunity as long as the limitation is not so unreasonable as to show imposition or undue advantage. ( Prudential-LMI Com. Ins. v. Superior Court (1990) 51 Cal.3d 674, 683.) One year was not an unfair period of limitation. ( Ibid. ; see also Ins. Code, § 2071(a) [imposing one-year limitations period for fire insurance claims].) The statute of limitations for actions on insurance claims is equitably tolled from the time the insured notifies the insurer of the claim until coverage is denied. ( Marselis v. Allstate Ins. Co. (2004) 121 Cal.App.4th 122, 124.) The reason for the tolling rule is to avoid penalizing the insured for the time consumed by the insurer investigating the claim. ( Id. at p. 125.) The running of the limitations period resumes upon the insurers denial of a claim, and no further tolling occurs, even if the insurer reconsiders its denial. ( Singh v. Allstate Ins. Co. (1998) 63 Cal.App.4th 135, 142.) Here, the insurance policy provides that [n]o action can be brought against us unless . . . the action is started within one year after the date of loss. (Carden Decl., Ex. A.) The loss occurred on December 30, 2021. (Compl. ¶ 1.) Plaintiffs reported the loss to Spinnaker on January 8, 2022. (Carden Decl. ¶ 4, Ex. B.) Spinnaker issued notice of its coverage position on January 27, 2022, granting coverage on certain items and denying the rest. ( Id. , ¶ 5, Ex. C.) Plaintiffs did not file this action until May 5, 2023, well past the one-year limitations period, even accounting for the tolling period between January 8, 2022 and January 27, 2022. Spinnakers reopening of the claim on May 17, 2022 based on Plaintiffs request for reconsideration (Carden Decl. ¶13) did not further toll the limitations period. Therefore, Spinnaker has met its initial burden by establishing that the claims are time-barred. [1] This is sufficient to shift the burden to Plaintiffs, who do not oppose the motion or present any contrary evidence. Accordingly, Spinnaker is not liable as a matter of law. b. Spinnaker Did Not Breach the Policy There can be no breach of the insurance policy . . . [where] the undisputed evidence established that [the insurer] paid all amounts due under the policy. ( Janney v. CSAA Ins. Exchange (2021) 70 Cal.App.5th 374, 390.) Here, the policy covered direct physical loss to property. (Carden Decl., Ex. A.) Spinnaker covered damage to the first-floor flooring, the only part of the Property directly damaged by the water intrusion. (Carden Decl. ¶ 14, Ex. F.) Spinnaker declined to cover the undamaged stairs and second-floor flooring. ( Ibid. ) Spinnaker issued payment for the covered portions. ( Id. , ¶¶ 5-6, Ex. C, D.) Spinnaker has met its initial burden by showing that it satisfied its obligations under the policy. This is sufficient to shift the burden to Plaintiffs, who do not oppose the motion or present any contrary evidence. Accordingly, Spinnaker is not liable for breach of contract as a matter of law for this independent reason. c. Spinnaker Could Not Have Breached the Implied Covenant [A] bad faith claim cannot be maintained unless policy benefits are due. ( Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.) Spinnaker could not have acted in bad faith if it correctly denied policy coverage. Furthermore, as discussed above, the claim is time-barred. Therefore, the implied covenant claim fails as a matter of law. d. Spinnaker Could Not Have Committed Elder Abuse Likewise, Spinnaker could not have wrongfully retained insurance benefits if it correctly denied them, and the claim is time-barred in any case. Therefore, the elder abuse claim fails as a matter of law. CONCLUSION The motion for summary judgment filed by Hippo and Spinnaker is GRANTED. [1] This applies to all three causes of action, not just breach of contract, because the policy states that no action may be brought outside one year. The policy does not restrict the limitations period to claims on the policy itself. Furthermore, where the essence of [a] claim[] is an attempt to recover [d]amages for failure to provide benefits under subject contract of insurance, the claim is fundamentally a claim on the policy and is thus time barred under the limitations period stated in the policy. ( Magnolia Square Homeowners Ass'n v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1063, quoting Lawrence v. Western Mutual Ins. Co. (1988) 204 Cal.App.3d 565, 575.)

Case Number: 23STCV12837 Hearing Date: July 9, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 JACK MARTIN, Plaintiff, v. HEALTH NET LIFE INSURANCE COMPANY and DOES 1-10 , inclusive, Defendants. Case No.: 23STCV12837 Hearing Date: 7/9/24 Trial Date: 11/5/24 [TENTATIVE] RULING RE: Defendant Health Net Life Insurance Companys Motion to Seal I. Background On June 6, 2023, Plaintiff Jack Martin (Plaintiff) commenced this action by filing his Complaint against Defendant Health Net Life Insurance Company (Defendant) for (1) Breach of the Implied Duty of Good Faith and Fair Dealing; (2) Violation of Civil Code Section 3428; and (3) Violation of Business and Professions Code Section 17200 et seq. Plaintiff is a former insured of Defendant, a health care insurer. On May 28, 2024, Defendant filed the instant motion to seal confidential and protected information in connection with its motion for summary judgment. Plaintiff filed his opposition brief on June 25, 2024, and Defendant filed its reply brief on August 1, 2024. II. Motion to Seal : DENIED, other than as to redactions. A. Legal Standard Unless confidentiality is required by law, court records are presumed to be open to public review. (Cal. Rules of Court, rule 2.550(c); see also Cal. Const., art. I, § 3(b)(1) [The people have the right of access to information concerning the conduct of the peoples business].) The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.550(d); see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218.) The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (Cal. Rules of Court, rule 2.551(b)(1).) B. Courts Determination The Court DENIES the motion, other than as indicated below. Defendant seeks to seal documents containing (1) Plaintiffs protected health information and (2) Defendants confidential proprietary information, lodged conditionally under seal by Defendant on May 28, 2024 in connection with Defendants motion for summary judgment. Specifically, Defendant seeks to seal Exhibits 1-3,7-18, and 21-22 of Defendants Appendix of Evidence in support of motion for summary judgment which include: (i) medical records, including treatment records, for procedures Plaintiff received; (ii) an authorization request and customer service notes for the disputed procedures at issue in this case; (iii) letters from Defendant and/or its authorized representatives requesting additional medical records and information; (iv) secondary opinions issued by third-party organizations specializing in spinal surgeries related to the disputed procedures at issue in this case; and (v) letters from Defendant and TurningPoint Healthcare Solutions LLC denying Plaintiffs request for authorization for the medical procedures at issue in this case. Further, Defendant seeks to seal Exhibits 4-5 and 24-25 which includes confidential and proprietary clinical policies for the two procedures at issue in this case. Plaintiff contends that Defndants motion is a pretext to seal more than what is permitted and, therefore, only Plaintiffs protected information should be redacted, not entire exhibits. Also, as to Defendants proprietary information, Plaintiff contends there is no overriding interest that would require sealing the subject records because the clinical policies are not confidential since they are available to the public upon request. In reply, Defendant contends that Plaintiffs arguments are misplaced because Defendant filed the exhibits under seal pursuant to its statutory obligation and because the clinical policies are provided to a medical provider and an insured upon request, which does not make them publicly available. Nevertheless, Defendant provides that it is amendable to publicly re-filing its May 28, 2024 Appendix of Evidence in support of its motion for summary judgment once Plaintiff confirms the specific protected health information he believes should be redacted from those exhibits. Also, as to the clinical policies, for the limited purpose of this case, Defendant does not oppose Plaintiffs request to unseal Exhibits 4-5 and 24-25. Because Defendant does not oppose Plaintiffs request to unseal Exhibits 4-5 and 24-25, the motion to seal as to these exhibits is denied as moot. The motion to seal is also denied as to exhibits 1-3, 7-18 and 21-22 provided that Plaintiff instructs Defendant as to the specific information within those exhibits that Plaintiff deems should be redacted. III. Conclusion The motion to seal as to these Exhibits 4-5 and 24-25 is denied as moot. The motion to seal is denied as to exhibits 1-3, 7-18 and 21-22 provided that Plaintiff instructs Defendant as to the specific information within those exhibits that Plaintiff deems should be redacted. Only the Plaintiffs identifying information as so indicated by Plaintiff should be redacted in the new filings.

Case Number: 23STCV01605 Hearing Date: July 9, 2024 Dept: 17 Superior Court of California County of Los Angeles DEPARTMENT 17 TENATIVE RULING SKETCHERS USA, INC. vs. CONTINENTAL CASUALTY COMPANY, et al. Case No.: 23STCV01605 Hearing Date: July 9, 2024 Defendants Continental Casualty Company and Columbia Casualty Companys motion for summary adjudication is DENIED. On 1/25/2023, Plaintiff Sketchers USA, Inc. (Plaintiff) filed suit against Continental Casualty Company, Scottsdale Insurance Company (Continental), Columbia Casualty Company (Columbia), Lexington Insurance Company, Great American Assurance company, and National Fire & Marine Insurance Company, alleging: (1) breach of contract; (2) tortious breach of contract; and (3) unfair competition. Now, on 1/10/2024, Defendants Continental Casualty Company and Columbia Casualty Company (collectively, CNA Insurers) move for summary adjudication as to the issue of duty. Discussion CNA Insurers argue that with respect to Plaintiffs first cause of action for breach of contract, they are entitled to a finding that they had no duty to defend Skechers in the proceeding filed by Converse Inc. (Converse) before the International Trade Commission (ITC), styled as In re Certain Footwear Products , Investigation No. 337-TA-936 (the ITC Proceeding). A. The Continental Policies In support, CNA Insurers submitted evidence that Continental issued to Skechers Commercial Umbrella Policy No. L 2084424221 for annual consecutive policy periods from September 1, 2005 to September 1, 2009 (collectively, the Continental Policies). (UMF No. 1) The Continental Policies each contain a $25 million limit of liability. (UMF No. 2.) The Continental Policies provide coverage for those sums in excess of scheduled underlying insurance, unscheduled underlying insurance or the retained limit that [Skechers] becomes legally obligated to pay as ultimate net loss because of covered personal and advertising injury that is caused by an incident committed during the policy period. (UMF No. 3.) Section VI.2. of the Continental Policies provides that Continental will investigate and defend an insured or reimburse an insured for suits brought against an insured for a claim or suit that alleges damages because of [personal and advertising injury] not covered under: a. Scheduled underlying insurance; and b. Unscheduled underlying insurance; but which seeks damages because of [personal and advertising injury] otherwise covered under this policy. (UMF No. 4.) Thus, if the scheduled underlying insurance is not triggered but the Continental Policies are, Continental is obligated to drop down to defend Skechers. The Continental Policies define a suit as a civil proceeding in which damages because of [personal injury and advertising injury] to which this insurance applies are alleged. (UMF No. 5.) It includes [a]n arbitration proceeding alleging such damages to which [the insured] must submit with [Continentals] consent or [a]ny other alternative dispute resolution proceeding in which such damages are claimed and to which [the insured] submits with [Continentals] consent. ( Id .) The Continental Policies define personal and advertising injury as injury arising out of one or more enumerated offensesnamely, [i]nfringing upon anothers copyright, trade dress or slogan in [the insureds] advertisement. (UMF No. 6.) Personal and advertising injury is only covered if caused by an incident committed during the policy period. (UMF No. 7.) An advertisement is a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters including material published on the internet and portions of websites. (UMF No. 8.) The 2007-2008 and 2008-2009 Continental Policies exclude coverage for personal and advertising injury [a]rising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights but not including infringement, in [the insureds] advertisement, of copyright, trade dress or slogan (the IP Exclusion). (UMF No. 9.) B. The Columbia Casualty Company Policies In support, CNA Insurers submitted evidence that Columbia issued to Skechers General Liability Policy No. 5086742083 for two consecutive policy periods, September 1, 2012 through September 1, 2013, and September 1, 2013 through September 1, 2014 (collectively, the Columbia Policies). (UMF No. 10.) Coverage Bthe Personal & Advertising Injury Insuring Agreementprovides that Columbia will pay those sums that [Skechers] becomes legally obligated to pay as damages because of personal and advertising injury to which this insurance applies. (UMF No. 11.) The Columbia Policies each include a $1,000,000 limit of liability for Personal & Advertising Injury, exclusive of defense costs. (UMF No. 12.) Coverage B also provides that Columbia will have the right and duty to defend Skechers against any suit seeking damages because of personal and advertising injury. (UMF No. 13.) But Columbia will have no duty to defend [Skechers] against any suit seeking damages for personal and advertising injury to which the Columbia Policies do not otherwise apply. (UMF No. 14.) The Columbia Policies impose upon Skechers a duty to cooperate with Columbia in the investigation or settlement of the claim or defense against the suit. (UMF No. 15.) The Columbia Policies define a suit as a civil proceeding in which damages because of bodily injury, property damage or personal and advertising injury to which this insurance applies are alleged. (UMF No. 16.) It includes [a]n arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with [Columbias] consent or [a]ny other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with [Columbias] consent. ( Id .) The Columbia Policies appl[y] to personal and advertising injury caused by an offense arising out of [the insureds] business but only if the offense was committed in the coverage territory during the policy period. (UMF No. 17.) They define personal and advertising injury as injury arising out of one or more enumerated offensesnamely, [i]nfringing upon anothers copyright, trade dress or slogan in [the insureds] advertisement. (UMF No. 18.) An advertisement is a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters including material published on the internet and portions of websites. (UMF No. 19.) The Columbia Policies exclude coverage for personal and advertising injury arising out of (1) oral or written publication of material whose first publication took place before the beginning of the policy period (the Prior Publication Exclusion), UMF No. 20, and (2) the infringement of copyright, patent, trademark, trade secret or other intellectual property rights but not including the use of anothers advertising idea in [the insureds] advertisement or infringement, in [the insureds] advertisement, of copyright, trade dress or slogan (the IP Exclusion), UMF No. 21. Based on both these policies terms, CNA Insurers argue they did not owe a duty to Plaintiff. Under California law, the interpretation of an insurance policy is a question of law. ( Palmer v. Truck Ins. Exch . (1999) 21 Cal.4th 1109, 1115.) The duty to defend is assessed at the very outset of a case. ( Hartford Cas. Ins. Co. v. Swift Distrib. Inc. (2014) 59 Cal.4th 277, 287.) The insurer must consider the allegations asserted and other extrinsic facts known to the insurer that reveal a possibility that a claim is potentially covered. ( Gunderson v. Fire Ins. Exch. (1995) 37 Cal.App.4th 1106, 1114 (1995) (duty to defend inquiry is based on those facts the insurer knew at the time [the insured] tendered the claim and whether these known facts created a potential for coverage under the terms of the Policy. Safeco Ins. Co. of Am. v. Parks , 122 Cal.App.4th 779, 791 (2004) (emphasis in original). Here, CNA Insurers argue they did not owe a duty to defend because: (1) the CNA Policies do not afford coverage for the ITC Proceeding because it is not a suit seeking covered damages; (2) the ITC Proceeding does not allege an offense that occurred in any Continental Policy Period; (3) the Columbia Policies Prior Publication Exclusion bars coverage for any offenses that allegedly occurred during the Columbia Policy Period; (4) the ITC Proceeding did not allege personal and advertising injury but rather only causes of action for which the IP Exclusion bars coverage; and (5) there is no duty to defend the ITC Proceeding even if the EDNY Lawsuit is a related suit seeking damages. As for the first contention, the CNA Policies define suit to include civil proceedings in which potentially covered damages are sought. (UMF Nos. 5, 16.) Here, the proceeding brought by Converse sought: [A]n investigation, hearing, and a general exclusion order forbidding entry into the United States of footwear products that violate Converses rights in one or more of the Asserted Trademarks or a limited exclusion order forbidding entry into the United States of footwear products imported, sold for importation, or sold after importation by Respondents that violate Converses rights in one or more of the Asserted Trademarks and a permanent cease and desist order . . . directing Respondents to cease and desist from the importation, marketing, advertising, demonstrating, warehousing of inventory for distribution, sale, and use in the United States of imported footwear articles that violate Converses rights in one or more of the Asserted Trademarks. (UMF No. 37; MSA, 10:1-6.) As such, CNA Insurers contend the ITC was an administrative, rather than civil, proceeding. In support, CNA Insurers cite caselaw wherein courts have concluded that similar proceedings do not trigger coverage under similar policies. For example, the insured in Australian Unlimited, Inc. v. Hartford Casualty Ins. Co. (2008) 147 Wash.App. 758 (2008), was sued in federal court and simultaneously named in an ITC proceeding. ( Id . at p. 778.) The court concluded that the ITC proceeding did not trigger coverage because it did not seek monetary relief and because the ITC is without authority to grant that relief in any event. ( Id . at pp. 779-80.) Similarly, in Broughton v. Ohio Casualty Ins. Co . (N.D. Cal. 2021), 533 F.Supp.3d 838, the court held that a TTAB proceeding was not a suitbased on the same definition included in the CNA Policiesseeking damages because the plaintiff did not seek damages and the Ninth Circuit has consistently held that the TTAB has no power to award damages. ( Id . at p. 845.) CNA Insurers also note that the ITC has no authority to grant monetary damages. (19 U.S.C. § 1337; see also Albert H. Kritzer, et al., International Contract Manual § 41:24) ([S]ection 337 [i.e., 19 U.S.C. § 1337] does not permit a plaintiff to seek money damages to compensate for a defendants unfair practices. This remedy scheme relates to the ITCs purpose of preventing unfair importations without regard for quantifying damages suffered as a result of an unfair practice.). Because Converse did not and could not seek damages in the ITC Proceeding, the ITC Proceeding does not trigger the CNA Policies insuring agreements. As to the second contention, the ITC Proceeding alleges that the first instance of Skechers trademark infringement occurred in 2010. (UMF Nos. 28-29.) It alleges that the remainder of the offenses occurred in 2012 and later. ( See UMF No. 33.) However, the last Continental Policy expired in 2009. (UMF No. 1.) By their express terms, the Continental Policies only afford coverage for damages that are caused by incidents committed during the policy period. (UMF No. 7.). [I]n an action wherein none of the claims is even potentially covered because it does not even possibly embrace any triggering harm of the specified sort within the policy period caused by an included occurrence, the insurer does not have a duty to defend. ( Aerojet-General Corp. v. Transport Indem. Co. (1997) 17 Cal.4th 38, 59) (citation omitted.) As to the third contention, the Columbia Policies contain a Prior Publication Exclusion that states that the Columbia Policies do not apply to: Personal and advertising injury arising out of oral or written publication of material whose first publication took place before the beginning of the policy period. (UMF No. 20.) Thus, the exclusion bars coverage for personal and advertising injury arising out of material first published prior to September 1, 2012the inception date of the first Columbia Policy. Under California law, publications need not be literally identical to come within the terms of the exclusion. ( Ringler Assocs. Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1182.) Rather, the Prior Publication Exclusion bars coverage for offenses arising out of material published during the policy period if it is the same or substantially the same as material published prior to the inception of the policy period. ( Id . at p. 1183.) The purpose of the Prior Publication Exclusion (PPE) is to bar coverage when the wrongful behavior had begun prior to the effective date of the insurance policy. ( Street Surfing, LLC v. Great Am. E&S Ins. Co. (9th Cir. 2014) 776 F.3d 603, 613 (quoting Taco Bell Corp. v. Continental Cas. Co . (7th Cir. 2004) 388 F.3d 1069, 1072).) In other words, it precludes coverage for risks that have already materialized. ( Kim Seng Co. v. Great Am. Ins. Co. of New York (2009) 179 Cal.App.4 th 1030, 1044. For that reason, the touchstone is whether the later publication involves fresh wrongs. ( Id . at p. 1043.) That inquiry focuses on the alleged wrongful act, not all the differences between the alleged publications. ( Street Surfing , supra , 776 F.3d at pp. 612-613.) Here, CNA Insurers submitted evidence that: - Converse alleged that Skechers various products each infringed the Converse Midsole Trademark. ( See UMF No. 28, 34.) - The ITC Proceeding explicitly alleges that the wrong is the use of the Converse Midsole Trademark in various Skechers shoes over a multi-year period, starting in or around 2010. ( Ibid .) - As illustrated in Table 1 of the ITC Proceeding complaint (as it pertains to the Skechers accused products), every alleged trademark infringement from 2010 forward is based on the same conduct: Skechers alleged misuse of the Converse Midsole Trademark. (UMF No. 67.) CNA Insurers also contend that the ITC Proceedings make clear that Sketchers advertised the infringing products in 2010. As to the fourth contention, the Continental and Columbia Policies afford coverage for alleged infringement of anothers copyright, trade dress or slogan in Skechers advertisements. (UMF No. 6, 18.) The IP Exclusion expressly excludes coverage, however, for [p]ersonal and advertising injury arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights. (UMF No. 9, 21.) In its ruling on Plaintiffs motion for summary adjudication, the Court concluded there were triable of fact as to what information was available to CNA Insurers to assess their duty to defend. (Minute Order 9/5/2023.) However, CNA Insurers argue that the only question here is whether the ITC Proceeding itself seeks potentially covered damages for personal and advertising injury, and Skechers conceded at oral argument of its MSA and in its petition for a writ of mandate, that Converses Declaration in support of the 753 Registration is unnecessary to the duty to defend analysis. As such, CNA Insurers argue there is no evidence that the ITC Proceeding alleged a covered proceeding: The ITC Proceeding alleged only that Skechers infringed the narrow Converse Midsole Trademark. It never used the term trade dress or alleged any issues with Skechers packaging or overall design. UMF No. 27. By contrast, Converse asserted that other respondents in the ITC Proceeding violated both the Converse Midsole Trademark and the Converse Outsole Trademark, which Converse defined as the diamond pattern outsole design, reinforcing that Skechers alleged infringement did not pertain to the overall visual impression of the shoes but was focused on the singular Converse Midsole Trademark. UMF No. 26. (MSA, 18: 10-16.) Finally, as to the fifth contention, there is a separate, related EDNY Lawsuit that does seek damages. CNA Insurers argue that irrespective of whether the EDNY Lawsuit triggers potential coverage, there is no coverage for the costs Skechers incurred defending itself in the ITC Proceeding. (MSA, 18: 27- 19:2.) Where there are two separate but related proceedings, courts have not found a duty to defend the related but uncovered proceeding. See, e.g., Stein v. International Ins. Co. (1990) 217 Cal.App.3d 609, 614615 (professional liability insurer not required to pay for criminal defense of attorney in criminal case, even where related civil lawsuit threatened); United Pac. Ins. Co. v. Hall (1988) 199 Cal.App.3d 551, 556 (homeowners insurer not required to pay for representation of minor in administrative juvenile proceeding regarding arson of a school, even though same witnesses also appeared in civil suit for damages that triggered duty to defend). In opposition, Plaintiff argues that the issue for which CNA Insurers seek summary adjudication (i.e., it had no duty to defend Skechers in the ITC Proceeding) cannot be granted because it is black letter law and beyond dispute that a party cannot seek summary adjudication of an issue which is not raised in the complaint. (Opp., 1: 3-4.) Indeed, as even CNA itself concedes, Skechers did not reference the ITC Proceeding in its Complaint (Motion at 1), and even a cursory review of Skechers complaint herein shows that Skechers only seeks coverage for the Converse Action and not the ITC Proceeding. (Opp., 6: 13-15.) Given that Plaintiff does not actually allege a duty to defend in the ITC Proceeding, the Court agrees that summary adjudication is not appropriate of that issue. While CNA Insurers motion must be denied on that basis, the Court briefly addresses the remaining issues raised by CNA Insurers. First, as also noted by Plaintiff, the Court already determined that there was a triable issue of material fact as to whether or not the Converse alleged trade dress infringement in Plaintiffs own motion for summary adjudication. That analysis applies with equal force here. Second, the Prior Publication Exception applies to personal and advertising injury arising out of oral or written publication of material whose first publication took place before the beginning of the policy period. CNA Insurers argue that PPE bars coverage because the the first alleged offense occurred in 2010 and all later offenses are mere continuations of that earlier offense. (MSA, 7.) In order to prevail on a motion for the summary adjudication of the duty to defend, the insured need only show that the underlying claim may fall within coverage; the insurer must prove it cannot. (Atl. Mut. Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal. App. 4th 1017, 1032.) As applied here, in order to evade its duty to defend, CNA must produce competent evidencewith no triable issues of factthat conclusively eliminates any and all possibility of coverage. ( Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295.) In opposition, Plaintiff notes that: CNA relies upon a mere allegationon information and belieffrom the ITC proceeding that around 2010, Skechers intentionally copied the Converse Midsole Trademark, applying it to Skechers Twinkle Toes Shoes to conclusively establish the applicability of the PPE. The Court agrees that this isolated extrinsic allegation fails to clearly establish the date of the critical first publication such that the Court can conclusively ascertain the date of first publication. Moreover, even assuming Plaintiff did commence using the mark in 2010, CNA Insurers has not conclusively established that the advertisement of the allegedly infringing products commenced in 2010. Third, and finally, CNA Insurers contends that the ITC Proceeding is not a suit seeking covered damages and is thus not covered under the CNA policies, and even if the Converse Action were covered, the ITC Proceeding would still not be covered because California courts have rejected any duty by insurers to defend related but uncovered proceedings. However, as noted above, Plaintiff has never alleged that the ITC Proceeding was a suit or sought coverage for the ITC Proceeding in this lawsuit. Moreover, CNA Insurers only cited non-binding out of state cases for the proposition that defense costs incurred in connection with ITC proceedings are not covered under commercial general liability policies. Just like Plaintiff, the Court was unable to locate any reported California cases addressing this issue. Moreover, there is at least competing legal support for the proposition that defense costs that Skechers incurred during the pendency of both the ITC Proceeding and the Converse Action should have been covered, given that the ITCs findings and determinations on the validity and scope of Converses trade dress, and Skechers infringement of the same, were binding in the Converse Action. (Opp., 20: 16-18; See, e.g., Mahindra & Mahindra Ltd. v. FCA US LLC (E.D. Mich. 2020) 503 F. Supp. 3d 542, 548-55.) As such, Skechers defense costs benefitted Skechers defense of the ITC Proceedings but were also necessary to avoid or minimize liability and defend the Converse Action. (Opp., 20: 18-19.) Based on the foregoing, Defendants motion for summary adjudication is denied. It is so ordered. Dated: July , 2024 Hon. Jon R. Takasugi Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org . If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar . For more information, please contact the court clerk at (213) 633-0517.