Preview
FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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FUNDFI MERCHANT FUNDING, LLC, INDEX NO:
Plaintiff,
-against-
LONG BEACH DISTRIBUTORS INC and MD
SHAMSUL A LITON A/K/A SHAMSUL A LITON,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION
WITH TEMPORARY RESTRAINING ORDER
Respectfully submitted by:
DAVID FOGEL P.C.
David Fogel, Esq.
1225 Franklin Avenue
Suite 201
Garden City, New York 11530
Tel: 516-279-1420
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ...........................................................................................................1
STATEMENT OF FACTS ....................................................................................................................1
ARGUMENT .........................................................................................................................................1
POINT I
THE JURISDICTION AND VENUE OF THIS ACTION ARE PROPER ........................1
POINT II
A PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING
ORDER RESTRAINING DEFENDANTS’ BANK ACCOUNTS SHOULD BE
GRANTED BECAUSE THEY CONSENTED TO THE GRANTING OF THAT
RELIEF ................................................................................................................................2
POINT III
DEFENDANTS SHOULD BE PERMITTED TO BE SERVED BY CERTIFIED MAIL
BECAUSE THEY CONSENTED TO THIS METHOD OF
SERVICE .............................................................................................................................3
POINT IV
IN THE EVENT DEFENDANTS DEFAULT IN THE ACTION,
PLAINTIFF IS ENTITLED TO THE ENTRY OF A CLERK’S
DEFAULT JUDGMENT PURSUANT TO CPLR § 3215(a)
SINCE THIS ACTION IS FOR A SUM CERTAIN ...........................................................4
CONCLUSION ....................................................................................................................5
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PRELIMINARY STATEMENT
Plaintiff submits this memorandum of law in support of its motion for a preliminary injunction
restraining the accounts of Defendants pending the resolution of this action and until further Order of
the Court and a temporary restraining Order granting the same relief pending the hearing and
determination of this motion and until further Order of the Court. Without injunctive relief to preserve
the status quo, Plaintiff will have nothing left to recover.
The jurisdiction and venue of this Court are proper because they are provided for the in the
subject contract between the parties.
Plaintiff should be entitled to the equitable relief sought herein since Defendants contracted to
and thereby authorized Plaintiff to obtain emergency relief, including a temporary restraining order or
injunction, in the event of Defendants’ default under the subject contract (the “Contract”), annexed as
Exhibit 1.
Finally, Defendants should be permitted to be served with process and the accompanying Order
to Show Cause by email because they agreed to accept such alternative service of process and legal
notices.
STATEMENT OF FACTS
See the accompanying affidavit of Plaintiff’s representative, Eryn Black.
ARGUMENT
I. THE JURISDICTION AND VENUE OF THIS ACTION ARE PROPER
CPLR § 501 permits contractual venue selection provisions and this Court and the appellate
courts of this State have regularly enforced such forum selection clauses. See D.O.T. Tiedown & Lifting
Equip., Inc. v. Wright, 272 A.D. 2d 290, 290-291 (2nd Dept., May 1, 2000) (affirming denial of motion
to dismiss for lack of personal jurisdiction where the parties’ agreement provided that the defendant
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consented to the jurisdiction of the courts of the State of New York); see also Creative Resources v.
Rumbellow, 244 A.D. 2d 383, 383 (2nd Dept., November 10, 1997); Banco de Commercio e Industria
de Sao Paolo, S.A. v. Esusa Engenharia e Construcoes, S.A., 173 A.D. 2d 340, 341 (1st Dept., May 23,
1991). In the case at bar, Defendants are subject to this Court’s jurisdiction pursuant to the terms of the
Contract. See Paragraph 4.5 of the Contract.
Based upon the foregoing, jurisdiction and venue are proper in this action.
II. A PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
RESTRAINING DEFENDANTS’ BANK ACCOUNTS SHOULD BE GRANTED
BECAUSE THEY CONSENTED TO THE GRANTING OF THAT RELIEF
CPLR § 6301 authorizes the granting of a preliminary injunction, stating the following:
A preliminary injunction may be granted in any action where it appears
that the defendant threatens or is about to do, or is doing or procuring or
suffering to be done, an act in violation of the plaintiff's rights respecting
the subject of the action, and tending to render the judgment ineffectual,
or in any action where the plaintiff has demanded and would be entitled
to a judgment restraining the defendant from the commission or
continuance of an act, which, if committed or continued during the
pendency of the action, would produce injury to the plaintiff. A temporary
restraining order may be granted pending a hearing for a preliminary
injunction where it appears that immediate and irreparable injury, loss or
damage will result unless the defendant is restrained before the hearing
can be had.
“The purpose of CPLR 6301 is to preserve the status quo and to prevent dissipation of property which
may make a judgment ineffectual.” Ratner & Assocs. v. Sears, Roebuck & Co., 294 A.D. 2d 346, 346
(2nd Dept., 2002) (internal citations omitted). A preliminary injunction may be granted under CPLR
article 63 when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the
merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of
equities tipping in the moving party’s favor. Doe v. Axelrod, 73 N.Y. 2d 748, 750 (1988). A temporary
restraining order may be granted when the movant can demonstrate: (1) the likelihood of success on
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the merits (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the
equities. W. T. Grant Co. v. Srogi, 52 N.Y. 2d 496, 517 (1981).
“Where ... the denial of injunctive relief would render the final judgment ineffectual, the degree
of proof required to establish the element of likelihood of success on the merits should be reduced.”
State v. City of New York, 275 A.D. 2d 740, 741 (2nd Dept., 2000).
Here, a preliminary injunction should be granted. In the Contract, Defendants consented that if
they would default thereunder, then an application by Plaintiff for an injunction, restraining order, or
other equitable relief restraining Defendants’ bank accounts, would be granted, subject to Court
approval, without any prior notice to Defendants and without Plaintiff being required to furnish a bond
or other undertaking in connection with the application. See Contract Paragraph 3.2 (B). In the absence
of any fraud, duress, illegality, or countervailing public policy concerns, none of which are present
here, these provisions should be enforced according to their terms.
Plaintiff is likely to succeed in the action on the merits; the Contract is valid and enforceable
and Plaintiff seeks a sum certain due thereunder. Plaintiff will suffer irreparable harm if provisional
relief is withheld because Defendants will hide Plaintiff’s money, and any final judgment favoring
Plaintiff will be rendered virtually ineffectual. A balancing of the equities clearly tips in Plaintiff’s
favor. For the same reasons, a temporary restraining Order for the same relief should also be granted.
POINT III
DEFENDANTS SHOULD BE PERMITTED TO BE SERVED BY MAIL
BECAUSE THEY CONSENTED TO THIS METHOD OF SERVICE
It is well established that parties to a contract may waive service of process and are thus free to
provide for service of process by methods which differ from those prescribed by statutes. See LG
Funding LLC vs. Asare, et al., 612523/18 (Sup. Ct. Nassau Cnty. 2019); LG Funding, LLC vs. Aspen
Snowmass Properties LLC et al., 610280/2018 (Sup. Ct. Nassau Cnty. 2018); LG Funding LLC vs.
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Auto Glass To Go Inc., et al., 610624/18 (Sup. Ct. Nassau Cnty. 2018); Alfred E. Mann Living Trust
vs. ETIRC Aviation S.A.R.L., 78 A.D.3d 137, 140, 910 N.Y.S.2d 418 (1st Dept. 2010); see also Gilbert
vs. Burnstine, 255 NY 348, 174 NE 706 (N.Y. 1931); Pohlers vs. Exeter Mfg. Co., 293 N.Y. 274, 56
N.E.2d 582 (N.Y. 1944).
In this case, Defendants agreed to accept service of process and any legal notice by email to
the Defendants at the Email Address provided in the Addendum to the Contract Waiver of Personal
Service (the “Addendum”). See Page 13 of the Contract.
Accordingly, Defendants should be permitted to be served with the Order to Show Cause and
accompanying papers by email delivered to the Email Address listed on the Addendum because they
consented to such alternative method of service, there are no defenses relating to the circumstances
surrounding the formation of the agreements, and there is no countervailing public policy sufficiently
fundamental to outweigh the public policy favoring freedom of contract.
POINT IV
IN THE EVENT DEFENDANTS DEFAULT IN THE ACTION, PLAINTIFF IS ENTITLED
TO THE ENTRY OF A CLERK’S DEFAULT JUDGMENT PURSUANT TO CPLR § 3215(a)
SINCE THIS ACTION IS FOR A SUM CERTAIN
This action has been commenced by the filing of the instant Order to Show Cause along with a
summons and verified complaint. Accordingly, service of the Order to Show Cause and its supporting
papers will be made upon Defendants simultaneously with service of the summons and complaint and
in the manner set forth in the Order to Show Cause.
Irrespective of whether Defendants oppose or appear on the return date of the Order to Show
Cause, Defendants are obliged to answer the complaint within 30 days of service of process being
completed (CPLR § 320). In this case, service is deemed complete 30 days after process served in
accordance with the method set forth in the Order to Show Cause.
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Accordingly, if Defendants fail to answer the complaint within the prescribed time (regardless
of the decision on the Order to Show Cause), Plaintiff should be entitled to the entry of a default
judgment by the Clerk of the Court, pursuant to CPLR § 3215(a), since Plaintiff’s claim in the action
seeks a sum certain.
CONCLUSION
For all of the foregoing reasons, a preliminary injunction should be granted pending the
resolution of this action restraining the funds in all of Defendants’ accounts at TD BANK, N.A. by up to
the sum of $172,560.35 pending the resolution of this action and until further Order of the Court, and
a temporary restraining Order for the same relief should be granted pending the hearing and
determination of this application and until further Order of the Court. Furthermore, in the event
Defendants default in the action and fail to timely answer the summons and complaint, Plaintiff shall
be entitled to the entry of a Clerk’s judgment by default since this action is one for a sum certain.
DATED: Garden City, NY
November 22, 2023
DAVID FOGEL P.C.
s/ David Fogel
David Fogel, Esq.
1225 Franklin Avenue
Suite 201
Garden City, New York 11530
Tel: 516-279-1420
Attorney for Plaintiff
File No.: 15223
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Related Content
in Nassau County
Ruling
HANH HUY HA VS JAMES FRAKES, ET AL.
Jul 17, 2024 |
23TRCV03117
Case Number:
23TRCV03117
Hearing Date:
July 17, 2024
Dept:
P Demurrer The court considered the moving, opposition and reply papers. RULING The demurrer is OVERRULED as to the first cause of action and SUSTAINED without leave to amend as to the second cause of action. BACKGROUND On April 18, 2024, plaintiff Hanh Huy Ha (Plaintiff) filed a complaint against defendants California Home Liberty, LLC and James Frakes (collectively, Defendants), alleging the following causes of action: (1) Fraud and (2) cancellation of written instrument under Civil Code section 3412. The complaint alleges that Plaintiff was the owner of a parcel of land on Rose Hill Court (hereinafter Property). (Compl. ¶FR-2(a).) There were unpaid property taxes on the Property and it was due to be sold at auction so that the County could recoup those delinquent taxes. (Id. at FR-2(b).) Prior to the auction, Plaintiff sold the Property to Defendants for the sum of $500.00. (Id. at FR-2(e).) During the conversation that culminated in the agreement to sell the Property, Defendant Frakes told Plaintiff that: 1) allowing the tax sale to go through would have negative consequences to Plaintiffs credit score, 2) if the property was sold to Defendant California Home Liberty, no tax sale would take place, 3) if the tax sale went through, Plaintiff would lose any equity in the property, and 4) Defendants had helped people similarly situated to Plaintiff in the past. (Id.) Plaintiff sold the Property to Defendants and, thereafter, the property was sold at auction. (Id. at FR-6.) The sale generated proceeds in excess of the taxes due in the amount of $63,552.34. (Id.) LEGAL AUTHORITY A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. A demurrer tests the pleading alone, and not on the evidence or facts alleged. E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. Ibid. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538. A demurrer may be sustained only if the complaint fails to state a cause of action under any possible legal theory. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998. If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6. DISCUSSION A. Fraud The essential elements of fraud, generally, are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211.) A duty to disclose facts arises only when the parties are in a relationship that gives rise to the duty, such as seller and buyer. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal. App. 5th 276, 311.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184. The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. In this case, Plaintiff alleges he was induced to sell the Property to Defendants for $500.00 because Defendants informed him that, if he did not, there would be negative consequences to his credit score and he would lose any equity he had in the Property. He further alleges that Defendants were knowledgeable about tax sales and knew that these representations were false. Plaintiff alleges that he sold the Property in reliance on Frakes representations. Finally, Plaintiff asserts that he was damaged by the fraud because, but for his reliance on Frakes statement, he would have received the proceeds from the tax sale. Given the above, the court finds that Plaintiff has stated a cause of action for fraudulent inducement. Therefore, the demurrer is OVERRULED as to the first cause of action. B. Civil Code Section 3412 A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. (Civil Code section 3412.) To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position. (Thompson v. Ioane (2017) 11 Cal. App. 5th 1180, 119394.) In this case, the court has found that Plaintiff has stated a cause of action for fraud in the contract which resulted in the conveyance of the Property to Defendants. The remaining question is whether there is a reasonable apprehension of serious injury if the grant deed is not cancelled. The court finds that Plaintiff has plead no serious injury if the deed is not cancelled. Indeed, Plaintiff is merely seeking the recover the excess proceeds generated by the tax sale of the Property. (Compl. at p. 6.) This injury is both certain and fixed and may be remedied in law, not equity. As Plaintiff has not shown serious injury if the deed is not cancelled, the demurrer as to the second cause of action is SUSTAINED. As Plaintiff has plead only the desire to have the excess funds from the tax sale returned to him, the court finds that there is no possibility to amend the complaint to allege a serious injury. Therefore, leave to amend is DENIED.
Ruling
JAMJOUM vs AFC CAL, LLC, et al.
Jul 16, 2024 |
Civil Unlimited (Fraud (no contract)) |
22CV006750
22CV006750: JAMJOUM vs AFC CAL, LLC, et al.
07/16/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Vahid
Farahani (Defendant) in Department 20
Tentative Ruling - 07/15/2024 Karin Schwartz
The Motion to Set Aside/Vacate Default filed by Vahid Farahani on 05/30/2024 is Granted.
Defendant Farahani’s (Farahani) California Civil Code (CCP) § 473.5 Motion to Set
Aside Default and for Leave to Defend is GRANTED based on the evidence that he did not
receive actual notice in time to defend against the action. The Court does not reach the
alternative grounds set forth in Farahani’s motion.
FACTS
On February 9, 2022, Plaintiff Numan Saleh Jamjoum (Jamjoum) filed the present
lawsuit. The Proof of Service in the Court’s file, of which the Court takes judicial notice,
purports to reflect “substitute service” on a “Jane Doe” at Cherry Street address in Visalia on or
about March 17, 2022 by a registered process server. The Request for Entry of Default, filed on
or about July 14, 2023, of which the Court takes judicial notice, reflects service by first class
mail on Farahani at the Cherry Street address by Plaintiff himself.
Farahani submitted a declaration asserting, inter alia, that he has never lived at the Cherry
Street address, which is the address for his sister. (Farahani Decl., ¶¶ 4-5.) Farahani’s sister
forwarded the summons to Farahani, but he does not remember receiving the complaint, or
notice of the case management conference, among other documents. (Farahani Decl., ¶ 6.)
Farahani thought the dispute concerned his previous employer. (Farahani Decl., ¶ 7.) Farahani
made some efforts, including going to the Hayward courthouse, to learn more about the case, but
ultimately concluded that he did not need to take action to avoid jeopardy. (Farahani Decl., ¶¶ 8-
9.) He did not receive notice that default had been entered against him. (Farahani Decl., ¶ 11.)
However, when he continued to receive notices about the case, he consulted an attorney, leading
to the present motion. (Farahani Decl., ¶ 12).
ANALYSIS
Default must be set aside where when service of summons has not resulted in actual
notice to a party in time to defend the action. (CCP § 473.5.) Actual notice requires the “genuine
knowledge of the party litigant.” (Rosenthal v. Garner (1983) 142 Cal. App. 3d 891, 895.)
Farhani’s declaration establishes an entitlement to relief under CCP § 473.5.
Accordingly, the motion is GRANTED and the default shall be set aside.
Farhani shall file his response to the complaint within 10 days of this order. The Court
is setting a Case Management Conference at the date and time below. The prove-up hearing is
vacated.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV006750: JAMJOUM vs AFC CAL, LLC, et al.
07/16/2024 Hearing on Motion to Set Aside/Vacate Default (CCP 473.5) filed by Vahid
Farahani (Defendant) in Department 20
The Default Prove Up Hearing scheduled for 07/23/2024 is vacated .
Case Management Conference is scheduled for 09/12/2024 at 3:00 PM in Department 20 at Rene
C. Davidson Courthouse.
Updated Case Management Statements must be filed in compliance with Rule of Court 3.725 on
Judicial Council Form CM-110. Unless ordered otherwise, remote appearances by Zoom
(videoconference) are permitted for all law and motion, case management hearings, and pretrial
hearings in Dept. 20. Trials are held in person unless all parties agree to be remote.
Ruling
FARAMARZ MASSACHI, AN INDIVIDUAL, ET AL. VS HIPPO ANALYTICS INC, A DELAWARE CORPORATION, ET AL.
Jul 18, 2024 |
23STCV31057
Case Number:
23STCV31057
Hearing Date:
July 18, 2024
Dept:
68
Dept. 68
Date: 7-18-23
Case #23STCV31057
Trial Date: Not Set
SPECIAL MOTION TO STRIKE
MOVING PARTY: Defendants, Topa Insurance Company, et al.
RESPONDING PARTY: Plaintiffs, Faramarz Massachi
RELIEF REQUESTED
Special Motion to Strike the Complaint
SUMMARY OF ACTION
Plaintiffs Faramarz and Mojgan Massachi allege a burst pipe caused significant water damage in their home, thereby leading to the submission of a claim to Defendants Topa Insurance Company and Hippo Analytics, Inc. The parties subsequently disputed the claim adjustment process which led to an appraisal hearing. The appraisal panel found in favor of Plaintiffs.
On December 19, 2023, Plaintiffs file their complaint for 1. Breach of Contract; 2. Breach of the Implied Covenant of Good Faith and Fair Dealing; and 3. Violation of Bus. & Prof. Code, § 17200, et seq. Topa Insurance Company answered the complaint on January 22, 2024, and filed an amended answer on February 1, 2024.
RULING
: Denied
Defendants Topa Insurance Company(Topa) and Hippo Analytics, Inc. (Hippo) move to strike limited portions of the introductory paragraphs, as well as the first, second, and third causes of action.
[1]
Defendants move on grounds that the identified allegations and claims arise from privileged and protected conduct. Plaintiff in opposition challenges the motion as relying on allegations not integral to the claim, thereby barring application of the statute. Plaintiffs also maintain a likelihood of prevailing on the merits even if Defendants shift the burden. Defendants in reply emphasize the reliance on the undisputed privilege conduct as integral to the claims, and therefore barred. Defendants also maintain Plaintiffs lack evidence of a probability of prevailing on the claim.
Timing
A special motion to strike must be filed within 60 days from service of the complaint (with an additional five days under Code of Civil Procedure section 1013(a) for service by mail), or at any later time that the court deems proper. (Code Civ. Proc., § 425.16, subd. (f).) The complaint was filed December 19, 2023. The December 26, 2023 filed proofs of service indicate personal service on both defendants on December 21, 2023. The instant motion was filed on February 16, 202457 days after service. The motion is timely.
Application of the Anti-SLAPP Statute
Defendants contend the complaint specifically arises from the allegations in the underlying complaint regarding the appraisal process. The appraisal process itself constitutes a protected activity under the litigation privilege. Hippo Analytics, Inc. also specifically notes that any separate and distinct conduct under the wrongful withholding of insurance benefits claim against Topa Insurance Company comprises a course of conduct without any direct nexus to the insurance based claims, and therefore barred.
In addition to citation to the complaint, Defendant Topa Insurance Company also submits a declaration in support, which the court can rely upon in determining whether moving party meets the threshold for shifting the burden in a special motion to strike. (Code Civ. Proc., § 425.16, subd. (b)(2);
Stewart v. Rolling Stone LLC
(2010) 181 Cal.App.4th 664, 679 [The court interprets the activities of the parties through the allegations in order to determine free speech activity but need not adhere to the strict form of the operative pleading in order to make such determinations].)
Defendant offers the declaration in order to present the conclusions of the adjustment process, including the appraisal process. [Declaration of Kelly Yates.]
Plaintiffs in opposition contend the allegations regarding the appraisal conduct constitute incidental allegations, in order to establish a pattern of conduct intended to delay or withhold benefits due under the policy. Plaintiffs deny any reliance on litigation privilege protected activity as any way integral to the sought after relief.
Code of Civil Procedure section 425.16 provides that [a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc. § 425.16, subd. (b).) Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." (
Taus v. Loftus
(2007) 40 Cal.4th 683, 712, quoting
Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (
Taus v. Loftus
,
supra
, 40 Cal.4th at p. 712.)
An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc., § 425.16.)
The anti-SLAPP applies where the allegations of the defendants protected activity are the gravamen or principal thrust of the cause of action. (
Peregrine Funding, Inc. v. Sheppard Mulin Richter & Hampton LLP
(2005) 133 Cal.App.4th 658, 672 [where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct].) If the allegations of protected activity are only incidental to a claim based essentially on non-protected activity, the mere mention of the protected activity does not subject the claim to an anti-SLAPP motion. (
Martinez v. Metabolife International, Inc.
(2003) 113 Cal.App.4th 181, 188 [We conclude it is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies (Citation), and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute].) .) [W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons. (
Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 889.) [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. (
Navellier v. Sletten
(2002) 29 Cal.4th 82, 89.) Courts must draw a careful distinction between a cause of action based squarely on a privileged communication & and one based upon an underlying course of conduct evidenced by the communication. (
White v. Western Title Ins. Co.
(1985) 40 Cal.3d 870, 888.)
In determining the application of the special motion to strike statute, the court focuses not on the label of the cause of action, but on the underlying activities alleged in the challenged pleading. (
1100 Park Lane Assocs. v. Feldman
(2008) 160 Cal.App.4th 1467, 1484.) If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. (
Baral v. Schnitt
(2016) 1 Cal.5th 376, 396.) [A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one cause of action. (
Fox Searchlight Pictures, Inc v. Paladino
(2001) 89 Cal.App.4th 294, 308.) The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning. (
Navellier v. Sletten
,
supra
, 29 Cal.4th 82, 92.)
The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (
Flatley v. Mauro
(2006) 39 Cal.4th 299, 322-323.) The anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint. (
California Back Specialists Medical Group v. Rand
(2008) 160 Cal.App.4th 1032, 1037.) [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. (
Navellier v. Sletten
,
supra
, 29 Cal.4th at p. 89.)
[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Citation.) Moreover, that a cause of action arguably may have been triggered by protected activity does not entail it is one arising from such. (Citation.) In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity. (
Navellier v. Sletten
,
supra
, 29 Cal.4th at p. 89.) Courts must draw a careful distinction between a cause of action based squarely on a privileged communication & and one based upon an underlying course of conduct evidenced by the communication. (
White v. Western Title Ins. Co.
(1985) 40 Cal.3d 870, 888.)
The challenged allegations of the complaint begins with the dispute over the scope and quality of the damages, thereby leading to the appraisal process. Hippo was responsible for the claim adjustment process on behalf of Topa.
As the dispute progressed, Hippo subsequently hired its own counsel for representation in the appraisal process and settlement discussions. The communications were not productive, and Hippo instead demanded an Examination Under Oath (EUO) as a condition of participating in the appraisal process. According to Plaintiffs, the focus of the EUO regarded a prolonged disagreement over tile replacement. The appraisal process eventually occurred and the panel found in favor of Plaintiffs. Defendants also challenge the damages claim. [5:24-28; 6:1-9:18; 11:1-12:17.]
The parties agree that certain alleged underlying conduct, such as the appraisal process itself, constitutes litigation privileged activity. Plaintiffs contend a distinction exists between Plaintiffs efforts to recover damages for the wrongful withholding of insurance benefits due under the policy, which insulates the action from any privileged conduct bar.
Section 1152, subdivision (a), provides that offers of compromise are inadmissible to prove the liability of the offeror for the loss or damage. In insurance litigation, [t]he language of this section does not preclude the introduction of settlement negotiations if offered not to prove liability for the original loss but to prove failure to process the claim fairly and in good faith. (Citation.) (
Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.
(2000) 78 Cal.App.4th 847, 915.) Although Defendants challenge the cases as not directly addressing a special motion to strike or the insurers right to petition, the court finds the language instructive. The issue is not the content of the settlement offer itself, if any, but the course of conduct presented as alleged indifference towards meaningful negotiations.
In a second case involving alleged bad faith handling of an uninsured motorist claim, a court found the course and conduct of the insurer in no way related to furthering the course and conduct of its rights to petition. The conduct centers on the delay in responding to and resolving plaintiff's claim. None of this conduct involved [Insurers] right to petition. While communications preparatory to bringing (or responding to) an action or arbitration might, under the proper circumstances, be deemed to fall within the scope of section 425.16 (citations), the conduct complained of here does not cross this threshold. The outlined actions (or nonactions) occurred as part of a coverage dispute between an insurer and its insured, and occurred long before any arbitration or other proceeding commenced. (Citation.) ... While ... an insurer is entitled to defend itself against unmeritorious claims, the fact that a dispute exists that might ultimately lead to arbitration does not make every step in that dispute part of a right to petition. (
Beach v. Harco National Ins. Co.
(2003) 110 Cal.App.4th 82, 93-94;
Miller v. Zurich American Ins. Co.
(2019) 41 Cal.App.5th 247, 258-259.)
Again, contrary to the argument in reply, the court finds the cases on-point. While Plaintiffs rely on the appraisal valuation total as a demonstration of the large disparity between the parties positions thereby constituting supporting evidence of the wrongfully withheld benefits, the resulting sum in no way necessarily interlinked the entire adjustment process leading up to the privileged appraisal. The course of conduct specifically articulates a separate and distinct course of conduct leading up to the indisputably privileged appraisal. The law and public policy support a finding for a separate and distinct course of unprivileged conduct leading up to the appraisal process itself constituting unprivileged conduct. The cases specifically reject an insurers right to incorporate non-privileged conduct under the guise of the right to petition as a means of thwarting potential bad faith claims.
The extensive case law on both the general subject and specific case regarding insurance bad faith causes of action therefore categorically leads to the conclusion of a failure to shift the burden as to the first prong by Topa. The insurer, however, also raised a valid argument regarding the distinction in bad faith claims as to adjusters on which Plaintiffs present no apparent opposition.
An insurance adjuster in no way participates in the contractual relationship between the parties. (
Henry v. Associated Indemnity Corp.
(1990) 217 Cal.App.3d 1405, 1416.) Again, the conduct of Hippo itself leading up to the appraisal was by no means privileged conduct.
While Hippo is named in all causes of action, the scope of the motion requires a finding of privileged conduct barring all claims. Consideration of the validity of the claims based on the entitlement to seek damages against a non-contracting party requires a finding beyond the scope of the subject motion. The court motion is therefore denied as to this separate argument regarding the Hippo as a proper to any and all claims in its role as adjuster to Topa.
Finally, to the extent the second prong of the test depends on the litigation privilege barring all claims, the court finds the litigation privilege inapplicable to the subject cased based on the relied upon authority in the first section. [See Declaration of Alex Cohen.] The motion is therefore DENIED in its entirety as to both defendants.
Any counter motion for attorney fees by Plaintiffs must be filed in a separate noticed motion. [See Declaration of Sara McClain.]
Demurrer to the complaint scheduled for July 23, 2024.
Defendants to provide notice.
[1]
Page 5:24-28; 6:1-28; 7:1-28; 8:1-8; 8:9-28; 9:1-4; 9:5-28; 10:1-18; 11:1-15; 11:16-28;12:1-3; 12:4-17.
Ruling
SITTLER LAW GROUP, A PROFESSIONAL CORPORATION VS TED ROSENBLATT, ET AL.
Jul 18, 2024 |
21STCV08410
Case Number:
21STCV08410
Hearing Date:
July 18, 2024
Dept:
51
Tentative Ruling
Judge Upinder S. Kalra, Department 51
HEARING DATE:
July 18, 2024
CASE NAME:
Sittler Law Group v. Ted Rosenblatt, et al.
CASE NO
.:
21STCV08410
PETITION TO CONFIRM ARBITRATION AWARD
MOVING PARTY
:
Plaintiff Sittler Law Group
RESPONDING PARTY(S):
None as of July 15, 2024
REQUESTED RELIEF:
1.
An Order Confirming the April 29, 2024 Final Arbitration Award against Defendants Ted Rosenblatt and PFG Entertainment.
TENTATIVE RULING:
1.
Petition to Confirm Arbitration Award is GRANTED.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff Sittler Law Group (Plaintiff) brings this action against Defendants Ted Rosenblatt, Marisa Rosenblatt, and PFG Entertainment (collectively, Defendants) and Does 1 through 10 arising out of a failure to pay legal fees incurred through legal representation.
On September 07, 2021, Plaintiff filed the operative First Amended Complaint (FAC) against Defendants for the following causes of action:
(1) Breach of Contract;
(2) Quantum Meruit; and
(3) Open Book Account.
On August 19, 2021, Plaintiff filed a Motion to Compel Arbitration which the court GRANTED.
On May 22, 2024, Plaintiff filed the instant Petition to Confirm Arbitration Award.
On May 23, 2024, Plaintiff filed Notice of Hearing on Petition to Confirm Arbitration Award.
On July 12, 2024, each Defendant filed substitution of attorney.
[1]
LEGAL STANDARD:
Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.¿ The petition shall name as respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award. (Code Civ. Proc., (CCP) § 1285.) If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding. (CCP § 1286.)¿
ANALYSIS
:
Filing Requirements of a Petition to Confirm Arbitration Award (CCP § 1285.4)
¿
¿
¿¿
Code of Civil Procedure section 1285.4 states: A petition under this chapter
shall
:¿¿
a.
Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.¿¿
c.
Set forth the names of the arbitrators.¿¿
c.
Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.¿¿
¿¿
(
CCP
§ 1285.4 (emphasis added).)¿¿
Here, Plaintiff complied with CCP § 1285.4 First, Plaintiff set forth the arbitration clause in the Petition and also attached a copy of the arbitration agreement. (Petition, Exhibit 4-C.) Second, Plaintiff identified Hon. Gerald Rosenberg, Ret. as the arbitrator. (Petition, ¶6.) Third, Plaintiff attached a copy of the Arbitration Award. (Petition, Exhibit 8-C.)
Accordingly, the filing requirements are met.
Service of the Petition and Notice of Hearing (CCP § 1290.4)
¿
¿
¿¿¿
Code of Civil Procedure section 1290.4 states in pertinent part:¿¿¿
¿¿
(a) A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.¿¿
¿¿
(b) If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: ¶ (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.¿¿
¿¿
(CCP § 1290.4.)¿¿
Here, Plaintiff complied with CCP
§ 1290.4. Plaintiff served a copy of the Petition and Notice of Hearing via e-mail to counsel. (Proof of Service filed with Notice of Hearing and Petition.) While the Arbitration Agreement does not provide for the method of service, the court is inclined to accept e-mail service as sufficient. Notably, the arbitration administrator served the Final Arbitration Award via e-mail, U.S. Mail, and certified mail. (See Final Arbitration Award Proof of Service, Petition, Exhibit 8-C.) This indicates to the court that the parties agreed to accept service of documents via e-mail. Additionally, counsel previously served other documents via e-mail. (See, e.g., Defendants proof of service filed September 24, 2021, with Objection to Plaintiffs Evidence Filed with Reply In Support of Motion to Compel Arbitration.
[2]
)
Accordingly, the service requirement of the Petition and Notice of Hearing is met.
Service of the Arbitration Award (CCP § 1283.6)
¿
¿
¿¿¿¿¿¿¿¿¿¿¿
Code of Civil Procedure section 1283.6 provides that: The neutral arbitrator shall
serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.¿This requirement may be satisfied by service by the arbitrator or upon proper service of the Award with the Petition. (See
Murry v. Civil Service Employees Ins. Co.
(1967) 254 Cal.App.2d 796, 799-800.)¿¿
Here, the Arbitrator complied with CCP § 1283.6. As noted above,
the arbitration administrator served the Final Arbitration Award via e-mail, U.S. Mail, and certified mail. (See Final Arbitration Award Proof of Service, Petition, Exhibit 8-C.)
Accordingly, the service requirement of the Arbitration Award is met.
Timing of Service of
Petition (CCP §§ 1288, 1288.4)
¿
¿
¿¿¿¿¿¿¿¿¿¿¿¿¿¿
A party may seek a court judgment confirming an arbitration award by filing and serving a petition no more than four years, but not less than 10 days, after the award is served. (
CCP
§§ 1288, 1288.4.)¿¿
Here, Plaintiffs Petition is timely. The Final Award was issued on April 29, 2024. (Petition, Exhibit 8-C.) Plaintiff filed this Petition on May 22, 2024 which is more than 10 days after service of the Final Award and well within four years of its issuance.
Accordingly, the timing of service is met.
Merits of the Petition to Confirm Arbitration Award¿
¿
¿
¿¿
The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding.¿ (CCP § 1286;
Valsan Partners Limited Partnership v. Calcor Space Facility, Inc.
(1994) 25 Cal.App.4th 809, 818.)¿¿
Here, Plaintiff has demonstrated that on April 29, 2024, the arbitrator issued an Arbitration Award in favor of Plaintiff and against Defendants Ted Rosenblatt and PFG Entertainment for $136,339.08. (Petition, Exhibit 8-C.) Plaintiff presented no evidence that this Award applies to Defendant Marisa Rosenblatt and the Petition is for Defendants Ted Rosenblatt and PFG Entertainment only.
CONCLUSION:
For the foregoing reasons, the Court decides the pending motion as follows:
1.
Petition to Confirm Arbitration Award is GRANTED.
Moving party is to give notice.
IT IS SO ORDERED.
Dated:
July 18, 2024
__________________________________
Upinder S. Kalra
Judge of the Superior Court
[1]
The substitution of attorney for Defendant PFG Entertainment is invalid as it purports to substitute a non-attorney to represent a corporate entity.
[2]
The court can take judicial notice of its own record. (See
Starr v. Ashbrook
(2023) 87 Cal.App.5th 999, 1014.)
Ruling
BACKES, et al. vs GENERAL MOTORS, LLC.
Jul 18, 2024 |
Civil Unlimited (Other Breach of Contract/Warr...) |
22CV021148
22CV021148: BACKES, et al. vs GENERAL MOTORS, LLC.
07/18/2024 Hearing on Motion to Compel Further Request for Production; filed by Mary
Backes (Plaintiff) + in Department 24
Tentative Ruling - 07/11/2024 Rebekah Evenson
The Hearing on Motion to Compel Further Request for Production; filed by Mary Backes
(Plaintiff) + scheduled for 04/04/2024 is continued to 08/29/2024 at 09:00 AM in Department 24
at Rene C. Davidson Courthouse .
Plaintiffs' Motion to Compel Further Responses to Requests for Production of Documents, Set
One is CONTINUED to August 29, 2024 at 9:00 a.m. in Department 24.
This motion was previously scheduled for hearing on April 4, 2024, then continued to May 23,
and then continued again to July 18, each time because the parties had not delivered courtesy
copies of their papers to Department 24, as required by Alameda County Superior Court Local
Rules, Rule 3.30(c).
The Court has received courtesy copies of Defendant's opposition papers, and of Plaintiffs' reply
papers, but it still has not received courtesy copies of Plaintiffs' moving papers.
By no later than July 22, Plaintiffs shall deliver courtesy copies of their moving papers directly
to Department 24.
If Plaintiffs fail to do so, the Court will drop this motion from the calendar and vacate the
continued August 29, 2024 hearing date.
Ruling
HERRINGTON vs ROBINHOOD MARKETS INC.
Jul 18, 2024 |
CVRI2401128
HERRINGTON VS
MOTION TO COMPEL BY
CVRI2401128 ROBINHOOD MARKETS
ROBINHOOD FINANCIALS LLC
INC.
Tentative Ruling: Grant the unopposed motion compelling arbitration and staying this action.
Sustain Defendant RHM’s unopposed Demurrer with 20 days leave to amend.
Ruling
CARLOS FELIX VS JOSE SOMARRIBA
Jul 17, 2024 |
BC665850
Case Number:
BC665850
Hearing Date:
July 17, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
CARLOS FELIX
,
vs.
JOSE SOMARRIBA
.
Case No.:
BC665850
Hearing Date:
July 17, 2024
Plaintiffs Carlos Felixs
unopposed
motion to vacate the entry of dismissal entered by this Court on May 21, 2018, and enter the Stipulated Judgment executed by parties on April 16, 2018, is granted.
Plaintiff is entitled to an order entering Judgment against Defendant
Jose Somarriba in the amount of $90,00.000 with credit for any sums paid to Plaintiff pursuant to the Settlement Agreement dated April 16, 2018.
This Court retains jurisdiction over this matter pursuant to C.C.P. §664.6.
Plaintiff Carlos Felix (Felix) (Plaintiff) moves
unopposed
for this Court to vacate the dismissal entered on May 21, 2018, and enter judgment pursuant to the terms of the Stipulated Judgment executed between Plaintiff and Defendant
Jose Somarriba
(Somarriba) (Defendant) in April 2018.
(Notice of Motion, pg. 1.)
Background
On June 21, 2017, Plaintiff filed the instant action against Defendant seeking damages for breach of contract and common counts.
The parties settled pursuant to a Settlement Agreement and Stipulated Judgment executed on April 16, 2018, and a request for dismissal was filed on May 21, 2018, which provided for monthly payments of $500, with a balloon payment to conclude the matter.
(Decl. of Ciaccio ¶¶3-4, Exhs. A, B.)
The Settlement Agreement, Stipulated Judgment, and Request for Dismissal indicated this Court would retain jurisdiction pursuant to C.C.P. §664.6.
(Decl. of Ciaccio ¶4, Exh. B.)
Defendant made payments pursuant to the settlement agreement until June 2023, when he began making payments which were returned for insufficient funds and in July 2023 he stopped making payments altogether.
(Decl. of Felix ¶1.)
On February 23, 2024, a demand was made on Defendant to bring his account current or otherwise judgment would be entered in the amount of $90,000 pursuant to the Settlement Agreement and Stipulated Judgment without offset payments received.
(Decl. of Ciaccio ¶7, Exh. D.)
Pursuant to the Settlement Agreement, Defendant was given 10 days to cure the default, which he has failed to do.
(
See
Decl. of Ciaccio ¶¶3, 7, Exhs. A, D.)
Plaintiff filed the instant motion on May 16, 2024.
As of the date of this hearing no opposition has been filed.
Motion to Enforce Settlement
C.C.P. §664.6 provides, as follows: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
Plaintiff submitted evidence Plaintiff and Defendant entered into the Settlement
Agreement
, which was signed by both parties on April 16, 2018, and provided for this Court to retain jurisdiction pursuant to C.C.P. §664.6.
(Decl. of
Ciaccio ¶3
, Exh. A.)
Pursuant to the terms of the Settlement Agreement,
In the event that either (a) the past due Deferred Payment is not paid within the ten (10) business day Cure Period, or (b) FELIX has to resort to the Notice Procedure on three (3) or more occasions by virtue of three (3) or more Defaults, then an Uncured Default shall exist and FELIX shall be entitled to file the stipulation to entry of judgment in the form attached hereto as Exhibit A (the Stipulation to Entry of Judgment), and to enter judgment in the form attached as Exhibit B (the Judgment), in accordance with the terms of the Stipulation for Judgment set forth below in paragraph 4 of this Agreement.
(Decl. of
Ciaccio ¶3
, Exh. A at §3.)
Defendant failed to cure his default during the ten-day cure period; no payment has been received as of March 11, 2024.
(Decl. of
Ciaccio ¶7.)
Accordingly, the request for dismissal entered by this Court on May 21, 2018, is vacated. Plaintiff is entitled to an order entering the Stipulated Judgment in the amount of $90,000.00 against Defendant, with credit for any sums paid to Plaintiff pursuant to the Settlement Agreement dated April 16, 2018.
Based on the foregoing, Plaintiffs
unopposed
motion to vacate the entry of dismissal entered by this Court on May 21, 2018, and enter the Stipulated Judgment executed by parties on April 16, 2018, is granted.
Conclusion
Plaintiffs
unopposed
motion to vacate the entry of dismissal entered by this Court on May 21, 2018, and enter the Stipulated Judgment executed by parties on April 16, 2018, is granted.
Plaintiff is entitled to an order entering Judgment against Defendant in the amount of $90,00.000 with credit for any sums paid to Plaintiff pursuant to the Settlement Agreement dated April 16, 2018.
This Court retains jurisdiction over this matter pursuant to C.C.P. §664.6.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
BEAR VALLEY 2005, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS MECHANICS BANK, A CALIFORNIA BANKING CORPORATION
Jul 18, 2024 |
21STCV24843
Case Number:
21STCV24843
Hearing Date:
July 18, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
BEAR VALLEY 2005, LLC,
vs.
MECHANICS BANK.
Case No.:
21STCV24843
Hearing Date:
July 18, 2024
Plaintiff Bear Valley 2005, LLCs motion for leave to amend its First Amended Complaint is granted.
Plaintiff may file the proposed Second Amended Complaint with the Court.
Plaintiff Bear Valley 2005, LLC, (Bear Valley) (Plaintiff) moves for leave to amend its first amended complaint (FAC) and file a second amended complaint (SAC) to set forth a single additional affirmative defense based on failure of condition precedent.
(Notice of Motion Amend, pgs. 1-2.)
Background
Plaintiff filed its initial complaint (Complaint) in this action on July 6, 2021.
Plaintiff filed the operative FAC on February 23, 2023, against Defendant Mechanics Bank (Mechanics Bank) (Defendant) alleging three causes of action: (1) breach of contract; (2) fraud; and (3) negligent misrepresentation.
Plaintiff filed the instant motion on June 3, 2024.
Defendant filed its opposition on July 5, 2024.
Plaintiff filed its reply on July 11, 2024.
Legal Standard
Courts have a liberal policy in favor of permitting amendments.
(
Mabie v. Hyatt
(1998) 61 Cal.App.4th 581, 596.)
The policy favoring amendments is so strong that denial of a request for leave to amend is rarely justified.
(
Id.
)
Requests for leave to amend will normally only be denied where the moving party has been dilatory in seeking leave to amend and where the delay in bringing the motion has resulted in prejudice to the opposing party.
(
Hirsa v. Superior Court
(1981) 118
Cal.App.3d 486, 490.)
A mere showing of unreasonable delay by the moving party without any showing of resulting prejudice to the opposing party is an insufficient ground to justify denial of a motion.
(
Higgins v. Del Faro
(1981) 123 Cal.App.3d 558, 564-565.)
The form and content of a notice of motion for leave to amend are governed by the rules governing motions generally. (C.C.P. §1010.)
The motion must include a copy of the proposed amendment (CRC, Rule 3.1324(a)(1)), and identify by page, paragraph, and line number any additions to and deletions from the prior pleading (CRC, Rule 3.1324(a)(2), (3)).
Discussion
Plaintiffs motion for leave to amend its FAC and file the proposed SAC is granted.
Plaintiffs motion substantially complies with CRC Rule 3.1324(a). The motion includes a copy of the proposed SAC. (Decl. of Carvalho ¶2, Exh. 2.)
Plaintiffs motion sets forth the new allegation proposed to be added to the breach of contract cause of action, but does not state where, by page, paragraph, and line number, the proposed additions/deletions are located. (Motion, pg. 7; CRC Rule 3.1324(a)(3).) However, Plaintiff attached a redlined copy of the proposed SAC indicating where the proposed additions will be added to the pleading.
(
See
Decl. of Carvalho, Exh. 1.)
Plaintiffs motion substantially complies with CRC Rule 3.1324(b).
Plaintiffs counsel submitted a separate declaration that specifies the effect of the amendment and explains why the amendment is necessary and proper. (Decl. of Carvalho ¶¶3-4.) Plaintiff asserts the amendment is necessary because it will allow the claim to be properly stated and to address the affirmative defense of failure to satisfy condition precedent first alleged by Defendant in its amended answer filed March 21, 2024.
(Decl. of Carvalho ¶4.)
Plaintiffs counsel states when the facts giving rise to the amendment was discovered and why the request for amendment was not made earlier; Plaintiffs counsel declares, The facts are not new. Mechanics Bank is not surprised, nor will it be prejudiced[] by the proposed amendment. Plaintiff set forth the facts underlying the new allegation in its response to Mechanics Banks original motion for summary judgment. A portion of the argument with reference to the evidence was made at page 9 of Plaintiffs February 9, 2023 memorandum of points and authorities in opposition to Defendants first Motion for Summary Judgment.
(Decl. of Carvalho ¶5.) Plaintiffs counsel declares, Defendant has been aware since no later than May of 2022 of the facts supporting and the nature of the allegation that it prevented or excused Plaintiff from satisfying the contractual condition and thereby anticipatorily breach the agreement prior to the time Plaintiff was to have performed the condition. It will not suffer prejudice as a result of the proposed amendment.
(Decl. of Carvalho ¶7.)
Defendant has not demonstrated that it will suffer any prejudice from the proposed amendment; Defendants opposition does not submit a declaration from Defendant or its counsel identifying such prejudice (i.e. statement of hours spent that would now be wasted, surprise at the allegations, need the revamp its entire defense, conduct additional discovery, hire new experts, etc.).
Further, Defendants argument that Plaintiffs amendment is futile is unavailing.
Defendants opposition essentially asks this Court to consider the validity of the proposed SAC, which is inappropriate at this juncture.
After leave to amend is granted, Defendant will have the opportunity to attack the validity of the amended pleading.
(
See Kittredge Sports Co. v. Superior Court
(1989) 213 Cal.App.3d 1045, 1048;
Atkinson v. Elk Corp.
(2003) 109 Cal.App.4th 739, 760 [the better course of action would have been to allow [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings].)
Based on the foregoing, Plaintiffs motion for leave to amend its FAC and file the proposed SAC is granted.
Conclusion
Plaintiffs motion for leave to amend its FAC is granted.
Plaintiff may separately file the proposed SAC with the Court.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Preview
FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------------x FUNDFI MERCHANT FUNDING, LLC, INDEX NO: Plaintiff, -against- LONG BEACH DISTRIBUTORS INC and MD SHAMSUL A LITON A/K/A SHAMSUL A LITON, Defendants. -----------------------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION WITH TEMPORARY RESTRAINING ORDER Respectfully submitted by: DAVID FOGEL P.C. David Fogel, Esq. 1225 Franklin Avenue Suite 201 Garden City, New York 11530 Tel: 516-279-1420 1 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 TABLE OF CONTENTS PRELIMINARY STATEMENT ...........................................................................................................1 STATEMENT OF FACTS ....................................................................................................................1 ARGUMENT .........................................................................................................................................1 POINT I THE JURISDICTION AND VENUE OF THIS ACTION ARE PROPER ........................1 POINT II A PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER RESTRAINING DEFENDANTS’ BANK ACCOUNTS SHOULD BE GRANTED BECAUSE THEY CONSENTED TO THE GRANTING OF THAT RELIEF ................................................................................................................................2 POINT III DEFENDANTS SHOULD BE PERMITTED TO BE SERVED BY CERTIFIED MAIL BECAUSE THEY CONSENTED TO THIS METHOD OF SERVICE .............................................................................................................................3 POINT IV IN THE EVENT DEFENDANTS DEFAULT IN THE ACTION, PLAINTIFF IS ENTITLED TO THE ENTRY OF A CLERK’S DEFAULT JUDGMENT PURSUANT TO CPLR § 3215(a) SINCE THIS ACTION IS FOR A SUM CERTAIN ...........................................................4 CONCLUSION ....................................................................................................................5 2 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 PRELIMINARY STATEMENT Plaintiff submits this memorandum of law in support of its motion for a preliminary injunction restraining the accounts of Defendants pending the resolution of this action and until further Order of the Court and a temporary restraining Order granting the same relief pending the hearing and determination of this motion and until further Order of the Court. Without injunctive relief to preserve the status quo, Plaintiff will have nothing left to recover. The jurisdiction and venue of this Court are proper because they are provided for the in the subject contract between the parties. Plaintiff should be entitled to the equitable relief sought herein since Defendants contracted to and thereby authorized Plaintiff to obtain emergency relief, including a temporary restraining order or injunction, in the event of Defendants’ default under the subject contract (the “Contract”), annexed as Exhibit 1. Finally, Defendants should be permitted to be served with process and the accompanying Order to Show Cause by email because they agreed to accept such alternative service of process and legal notices. STATEMENT OF FACTS See the accompanying affidavit of Plaintiff’s representative, Eryn Black. ARGUMENT I. THE JURISDICTION AND VENUE OF THIS ACTION ARE PROPER CPLR § 501 permits contractual venue selection provisions and this Court and the appellate courts of this State have regularly enforced such forum selection clauses. See D.O.T. Tiedown & Lifting Equip., Inc. v. Wright, 272 A.D. 2d 290, 290-291 (2nd Dept., May 1, 2000) (affirming denial of motion to dismiss for lack of personal jurisdiction where the parties’ agreement provided that the defendant 1 3 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 consented to the jurisdiction of the courts of the State of New York); see also Creative Resources v. Rumbellow, 244 A.D. 2d 383, 383 (2nd Dept., November 10, 1997); Banco de Commercio e Industria de Sao Paolo, S.A. v. Esusa Engenharia e Construcoes, S.A., 173 A.D. 2d 340, 341 (1st Dept., May 23, 1991). In the case at bar, Defendants are subject to this Court’s jurisdiction pursuant to the terms of the Contract. See Paragraph 4.5 of the Contract. Based upon the foregoing, jurisdiction and venue are proper in this action. II. A PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER RESTRAINING DEFENDANTS’ BANK ACCOUNTS SHOULD BE GRANTED BECAUSE THEY CONSENTED TO THE GRANTING OF THAT RELIEF CPLR § 6301 authorizes the granting of a preliminary injunction, stating the following: A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. “The purpose of CPLR 6301 is to preserve the status quo and to prevent dissipation of property which may make a judgment ineffectual.” Ratner & Assocs. v. Sears, Roebuck & Co., 294 A.D. 2d 346, 346 (2nd Dept., 2002) (internal citations omitted). A preliminary injunction may be granted under CPLR article 63 when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor. Doe v. Axelrod, 73 N.Y. 2d 748, 750 (1988). A temporary restraining order may be granted when the movant can demonstrate: (1) the likelihood of success on 2 4 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 the merits (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities. W. T. Grant Co. v. Srogi, 52 N.Y. 2d 496, 517 (1981). “Where ... the denial of injunctive relief would render the final judgment ineffectual, the degree of proof required to establish the element of likelihood of success on the merits should be reduced.” State v. City of New York, 275 A.D. 2d 740, 741 (2nd Dept., 2000). Here, a preliminary injunction should be granted. In the Contract, Defendants consented that if they would default thereunder, then an application by Plaintiff for an injunction, restraining order, or other equitable relief restraining Defendants’ bank accounts, would be granted, subject to Court approval, without any prior notice to Defendants and without Plaintiff being required to furnish a bond or other undertaking in connection with the application. See Contract Paragraph 3.2 (B). In the absence of any fraud, duress, illegality, or countervailing public policy concerns, none of which are present here, these provisions should be enforced according to their terms. Plaintiff is likely to succeed in the action on the merits; the Contract is valid and enforceable and Plaintiff seeks a sum certain due thereunder. Plaintiff will suffer irreparable harm if provisional relief is withheld because Defendants will hide Plaintiff’s money, and any final judgment favoring Plaintiff will be rendered virtually ineffectual. A balancing of the equities clearly tips in Plaintiff’s favor. For the same reasons, a temporary restraining Order for the same relief should also be granted. POINT III DEFENDANTS SHOULD BE PERMITTED TO BE SERVED BY MAIL BECAUSE THEY CONSENTED TO THIS METHOD OF SERVICE It is well established that parties to a contract may waive service of process and are thus free to provide for service of process by methods which differ from those prescribed by statutes. See LG Funding LLC vs. Asare, et al., 612523/18 (Sup. Ct. Nassau Cnty. 2019); LG Funding, LLC vs. Aspen Snowmass Properties LLC et al., 610280/2018 (Sup. Ct. Nassau Cnty. 2018); LG Funding LLC vs. 3 5 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 Auto Glass To Go Inc., et al., 610624/18 (Sup. Ct. Nassau Cnty. 2018); Alfred E. Mann Living Trust vs. ETIRC Aviation S.A.R.L., 78 A.D.3d 137, 140, 910 N.Y.S.2d 418 (1st Dept. 2010); see also Gilbert vs. Burnstine, 255 NY 348, 174 NE 706 (N.Y. 1931); Pohlers vs. Exeter Mfg. Co., 293 N.Y. 274, 56 N.E.2d 582 (N.Y. 1944). In this case, Defendants agreed to accept service of process and any legal notice by email to the Defendants at the Email Address provided in the Addendum to the Contract Waiver of Personal Service (the “Addendum”). See Page 13 of the Contract. Accordingly, Defendants should be permitted to be served with the Order to Show Cause and accompanying papers by email delivered to the Email Address listed on the Addendum because they consented to such alternative method of service, there are no defenses relating to the circumstances surrounding the formation of the agreements, and there is no countervailing public policy sufficiently fundamental to outweigh the public policy favoring freedom of contract. POINT IV IN THE EVENT DEFENDANTS DEFAULT IN THE ACTION, PLAINTIFF IS ENTITLED TO THE ENTRY OF A CLERK’S DEFAULT JUDGMENT PURSUANT TO CPLR § 3215(a) SINCE THIS ACTION IS FOR A SUM CERTAIN This action has been commenced by the filing of the instant Order to Show Cause along with a summons and verified complaint. Accordingly, service of the Order to Show Cause and its supporting papers will be made upon Defendants simultaneously with service of the summons and complaint and in the manner set forth in the Order to Show Cause. Irrespective of whether Defendants oppose or appear on the return date of the Order to Show Cause, Defendants are obliged to answer the complaint within 30 days of service of process being completed (CPLR § 320). In this case, service is deemed complete 30 days after process served in accordance with the method set forth in the Order to Show Cause. 4 6 of 7 FILED: NASSAU COUNTY CLERK 11/22/2023 01:43 PM INDEX NO. 619082/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/22/2023 Accordingly, if Defendants fail to answer the complaint within the prescribed time (regardless of the decision on the Order to Show Cause), Plaintiff should be entitled to the entry of a default judgment by the Clerk of the Court, pursuant to CPLR § 3215(a), since Plaintiff’s claim in the action seeks a sum certain. CONCLUSION For all of the foregoing reasons, a preliminary injunction should be granted pending the resolution of this action restraining the funds in all of Defendants’ accounts at TD BANK, N.A. by up to the sum of $172,560.35 pending the resolution of this action and until further Order of the Court, and a temporary restraining Order for the same relief should be granted pending the hearing and determination of this application and until further Order of the Court. Furthermore, in the event Defendants default in the action and fail to timely answer the summons and complaint, Plaintiff shall be entitled to the entry of a Clerk’s judgment by default since this action is one for a sum certain. DATED: Garden City, NY November 22, 2023 DAVID FOGEL P.C. s/ David Fogel David Fogel, Esq. 1225 Franklin Avenue Suite 201 Garden City, New York 11530 Tel: 516-279-1420 Attorney for Plaintiff File No.: 15223 5 7 of 7