Miscellaneous: Jpmorgan Chase Bank, N.A. vs Rojas, Marlon J

Motion for Leave to Amend Complaint on Complaint for Breach of Contract/Warranty SCHUTZER vs ENGSTROM CVPS2303027 (Over $25,000) of ELLIOT A SCHUTZER CONSTRUCTION, INC. by ELLIOT A SCHUTZER, AILEEN P SCHUTZER Tentative Ruling: Denied without prejudice. Defendants to provide notice pursuant to CCP § 1019.5. Plaintiffs Elliot A. Schutzer and Aileen P. Schutzer individually, and as trustees of the Schutzer Trust 2002 dated April 19, 2002 (“Plaintiffs”) are the owner a large residential property located in Rancho Mirage (“Subject Property”). On May 18, 2020, Plaintiffs entered into a written construction contract (“Contract”) with Defendant Engstrom Construction, Inc. (“ECI” or “Defendant”) for a major remodeling project for the Subject Property (“Project”). The Project was to be completed within 12 months and the expected budget was $2,500,000. Plaintiffs allege that ECI repeatedly increased the budget without prior approval and did not complete the Project on time. Plaintiffs assert that ECI submitted nine Applications for Payment without proper accounting or invoices. Plaintiffs allege that ECI paid subcontractors upfront for work that was not performed and ECI took commissions on these payments. According to Plaintiffs, when they demanded an accounting and sought legal advice, ECI’s president/CEO, Defendant Glen Hartley Engstrom (“Glen”) became hostile and threatened to walk off the job. In September 2022, ECI abandoned the Project, which was substantially uncompleted. On June 6, 2023, Plaintiffs filed their Complaint against ECI and Glen. They assert six causes of action for: (1) Breach of Written Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Negligent Construction; (4) Financial Elder Abuse; (5) Restitution for Overpayment; and (6) Breach of Fiduciary Relationship. On July 31, 2023, ECI filed a cross-complaint against subcontractors for indemnity and breach of warranty. Several of the subcontractor cross-defendants also filed cross-complaints. Plaintiffs now move for leave to file a first amended complaint (“FAC”) to add a cause of action for unfair business practices under Bus. & Prof. Code § 17200 et seq. based on newly discovered unsigned change orders and to clarify other portions of the Complaint. Plaintiffs argue that they did not discover the change orders earlier due to Defendants’ delay in producing the discovery. Plaintiffs argue that Defendants will not be prejudiced because the FAC is based on the same facts and does not seek to add new facts or parties. Plaintiffs argue that there is no statute of limitations issue because the new allegations are based on the same set of facts, and therefore relate back to the original Complaint. Defendants argue that the Plaintiffs delayed seeking leave to amend after the documents were produced. Defendants argue that Plaintiffs knew of the allegedly unapproved change orders prior to filing the original Complaint since the Complaint contains allegations of unapproved changes. Defendants argue that the FAC contradicts the original Complaint and is based on a different construction contract. Defendants argue that the new claims are time-barred by the four-year statute of limitations because the construction started in November 2019 and the claims based on the new contract do not relate back. Defendants argue that they will be prejudiced because they will have to conduct additional discovery. In their Reply, Plaintiffs argue that they knew that there were some unapproved changes at the time the Complaint was filed, but did not know the extent until the discovery of the change orders. Plaintiffs repeated the allegations relate back to the original Complaint and the statute of limitations did not begin to run until the unsigned change orders were issued beginning in September 2021. Plaintiffs argue that the FAC does not contradict the Complaint, but merely clarifies the contract at issue. Leave to Amend “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Cal. Code Civ. Pro. §473(a); §576.).) “If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally, granted.” (Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 596.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010)184 Cal. App. 4th 1422, 1428.) Where the proposed amendment would result in little or no prejudice to the opposing party, the “liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564.) However, leave to amend may be denied where inexcusable delay and probable prejudice to the opposing party is shown.” (Magpali v. Farmers Group (1996) 48 Cal. App. 4th 471, 487; Hirsa v. Superior Court (1981) 118 Cal. App. 3d 486.) Unwarranted delay alone may be a sufficient reason to deny leave to amend. (Huff v. Wilkins (2006) 138 Cal. App. 4th 732, 746.) A motion for leave to amend a pleading must state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (CRC, Rule 3.1324(a)(3).) Additionally, the motion must be accompanied by a separate declaration that specifies: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and, (4) the reasons why the request for amendment was not made earlier. (CRC, Rule 3.1324(b)(1)-(4).) Here, Plaintiffs seek leave to add a new cause of action for violations of the Unfair Competition Law (“UCL”), Bus. & Prof. § 17200 et seq. and Bus. & Prof. § 7159, which expressly prohibits unfair business practices in connection with residential construction projects. Plaintiffs allege that Defendant violated Section 7159 by failing to give Plaintiffs a signed copy of the construction contract before the work started, failing to provide change-orders before commencing work, requiring Plaintiffs to pay excessive deposits in advance of work, failing to provide a schedule of progress and requiring Plaintiffs to pay for work not yet completed and materials not yet delivered. (FAC, ¶ 65.) Plaintiffs’ counsel declares that the addition of the UCL cause of action is necessary and proper because the UCL provides for additional relief, including restitution of contractors’ fees. (Decl. of Edelstein, ¶ 5.) Counsel asserts that the basis for the new cause of action only became apparent after Defendants produced documents in response to discovery requests. (Id at ¶ 6.) The initial Declaration does not provide the date of this discovery. In their Opposition, Defendants argue without evidence that the discovery responses were provided on October 19, 2023. Thus, it is not clear when the change orders were discovered. Furthermore, counsel makes no effort to explain the effect, necessity or discovery of the other amended allegations, other than to assert that the amendments were merely clarification. It appears that the FAC is based on a different construction contract than the original Complaint. Unless the terms are identical apart from the removal of the arbitration clause, this is a substantive change. Plaintiffs do not explain the differences or the effects of the differences. Since Plaintiffs failed to comply with Rule 3.1324(b), the Motion must be denied. Denied without prejudice.

Case Number: 23STCV16750 Hearing Date: July 18, 2024 Dept: 26 4 Dept. 73 Rolf Treu, Judge presiding M.S.S.C., LLC v. Rosana Torres (23STCV16750) Counsel for Plaintiffs/moving parties: Michelle Daneshrad Counsel for Defendants/opposing parties: N/A REQUEST FOR ENTRY OF DEFAULT JUDGMENT ( filed 12/15/2023) TENTATIVE RULING The court grants entry of default judgment. Discussion This case stems from allegations that Defendant Rosana A. Torres entered in to two written agreements to borrow $100,000.00 from Plaintiff M.S.S.C., LLC and failed to pay back the loan once it became due. ANALYSIS I. CRC 3.1800 (1) Use of JC Form CIV-100 YES (2) Dismissal or judgment of non-parties to the judgment YES (3) Declaration of non-military status for each defendant YES (4) Summary of the case YES (5) 585(d) declarations/admissible evidence in support YES (6) Exhibits (as necessary) YES (7) Interest computation (as necessary) YES (8) Cost memorandum YES (9) Request for attorney fees (Local Rule 3.214) YES (10) Proposed Judgment YES DAMAGES REQUESTED: $399,473 (Consistent with complaint.) INTEREST: $72,000 ATTORNEY FEES: $0 COSTS: $435 TOTAL: $471,473 Plaintiff has complied with all CRC requirements. The court grants the request for entry of default judgment against Defendant Torres.

Case Number: 24SMCV01124 Hearing Date: July 18, 2024 Dept: P Tentative Ruling Rickfors, et al. v. Nassir, et al., Case No. 24SMCV01124 Hearing Date July 18, 2024 Defendants Mountainfield P01, LLC, Nassir, and Alfa Real Estate Group LLCs Demurrer Plaintiff investors partnered with defendants to purchase and develop a property in Beverly Hills. Plaintiffs allege defendant Nassir changed the equity structure of the venture, signed loan documents on plaintiff Toxboe's behalf without permission and undermined plaintiffs interests. Plaintiffs sue for breach of contract, quasi-contract, promissory estoppel, false promise fraud, dissolution of partnership, declaratory relief, cancellation of written instrument, judicial foreclosure and partition. Defendants demur to the fifth, eighth, and ninth causes of action. Request for Judicial Notice Defendants request for judicial notice of the property deed (RJN Exh. 1) and Redemption Agreement (RJN Exh. 2) is granted as to existence of the documents only. On demurrer, a courts function is limited to testing the legal sufficiency of the complaint. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. It is error to sustain a demurrer where plaintiff has stated a cause of action under any possible legal theory. In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true. Bush v. Cal. Conservation Corps (1982) 136 Cal.App.3d 194, 200. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883. On demurrer, the court must determine if the factual allegations are adequate to state a cause of action under any legal theory. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103. Dissolution of Partnership A cause of action for dissolution is proper when it is not reasonably practicable to carry on the activities of the limited partnership in conformity with the partnership agreement. Panakosta, Partners, LP v. Hammer Lane Mgmt., LLC (2011) 199 Cal.App.4th 612, 628. The complaint alleges defendant Nassir made representations to plaintiffs that he would be entitled to only an equal division of the profits of Mountainfield P01, LLCs share from the venture upon completion, that he would promptly finish construction on the real property, and that he was on board with the plan to sell the real property and split equity therefrom. Compl. ¶121. The complaint alleges Plaintiffs and Defendant Nassir thus all own a percentage of Defendant Mountainfield P01, LLC, for which they seek dissolution and unwinding. Compl. ¶122. The complaint asserts plaintiffs seek dissolution of Alfa. Compl. ¶¶123-124. Defendants argue the Redemption Agreement states the only members of Mountainfield at its inception were Nassir and Toxboe, who relinquished his interest, leaving Nassir as sole owner. Defendants argue plaintiffs have no interest in Mountainfield or Alfa and have no standing to seek dissolution. This argument rests on the consideration of the contract submitted for judicial notice. In light of the ruling on RJN Exh. 2, to the extent that arguments in the demurrer rely on outside evidence, these challenges are overruled. Code Civ. Proc. §430.10(e). Defendants arguments rest on a factual finding as to contract interpretation, outside the four corners of the complaint; this the court cannot do on demurrer. OVERRULED. Judicial Foreclosure A demurrer for uncertainty means the pleading is ambiguous or unintelligible. Code Civ. Proc., §430.10(f). [D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695. Defendant argues the cause of action is uncertain because the complaint is unclear as to whether it seeks nonjudicial or judicial foreclosure, as both are referenced. And if plaintiffs intended to state nonjudicial foreclosure, defendants assert a demurrer should be sustained because no such cause of action exists. The judicial foreclosure claim is based on allegations that plaintiffs invested with Nassir and recorded liens against the property in the form of Deeds of Trust to secure their notes. Compl. ¶147. However, Nassir anticipatorily repudiated his agreement to sell the property and pay investors their equity shares. Compl. ¶149. Plaintiffs issued Notices of Default to the Nassir for the sums due under the notes secured by the Deeds of Trust, but he failed to pay. Compl. ¶150. As a result, plaintiffs seek a judicial order of foreclosure on the real property, and a sale of the same pursuant to Cal. Code of Civ. Pro. 725a, et seq. Compl. ¶151. The complaints mention of nonjudicial foreclosure appears to be in error; the briefing and other allegations indicate the claim is for judicial foreclosure. OVERRULED. Partition of Real Property A partition action may be commenced and maintained by an owner of real property that is owned by several persons concurrently or in successive estates. Code Civ. Proc., § 872.210(a). The elements are: (a) description of the property; (b) all interests plaintiff has or claims in the property; (c) all interests of record or actually known to plaintiff that persons other than plaintiff have or claim; (d) the estate as to which partition is sought and a prayer for partition; and (e) where plaintiff seeks sale of the property, an allegation of the facts justifying such relief. Code Civ. Proc., § 872.230. Defendants argue plaintiffs fail to state a claim because they do not have any ownership in the property; Mountainfield holds title as demonstrated by the grant deed, RJN, Exh. 1. The court cannot consider defendants other argument which relies on evidence not judicially noticed. In opposition, plaintiffs agree Mountainfield holds title to the property, but argue plaintiff investors have an interest in Mountainfield. Compl. ¶151. Plaintiffs allegations, if true, would establish all elements of partition. Again, the court cannot make factual findings on demurrer. OVERRULED.

FCS059237 Motion to Compel Arbitration TENTATIVE RULING The Court (Department Seven) self recuses pursuant to CCP Section 170.1(b)(6)(iii). Pursuant to the direction of Judge Stephen Gizzi, Supervising Judge of the Civil Division, the matter is reassigned and continued to August 1, 2024 at 9:30 a.m., Department Three.

SIMMONS, ET AL. VS. LIBERTY MUTUAL INSURAN Case Number: CVCV21-0198289 This matter is on calendar for review for status of removal. On December 1, 2021, the Court received a “Notice of Removal of State Action.” Based on the Notice, the Court suspended its jurisdiction pursuant to 28 USC § 1446. No Status Report has been filed. An appearance is necessary on today’s calendar to provide the Court with a status of the federal action. THE PEOPLE OF THE STATE OF CALIFORNIA VS. $12,276.00

S-CV-0050755 Fields, Leslie Carol vs. Rich, Tom Robert ** NOTE: telephonic appearances are strongly encouraged Appearance required.

Case Number: 23GDCV01613 Hearing Date: July 18, 2024 Dept: E Hearing Date: 07/18/2024 8:30am Case No: 23GDCV01613 Trial Date: 04/07/2025 Case Name: PINK PLASTIC LLC, a Virginia limited liability company; v. 1725 VICTORY LLC, a California limited liability company; and DOES 1-50 [TENTATIVE RULING ON MOTION FOR LEAVE TO FILE CROSS-COMPLAINT] RELIEF REQUESTED Defendant 1725 Victory, LLC (Victory) will and hereby does move the above-referenced court, located at South Glendale Avenue in Glendale, California, for leave to file a cross-complaint for breach of contract, breach of the covenant of good faith and fair dealing, and breach of guaranty against Plaintiff Pink Plastic, LLC and its guarantor Maramawit G. Dorsey (the Proposed Cross-Complaint) on the following grounds: 1. Victorys Proposed Cross-Complaint arises from the same contract and events already at issue in this case. (See Defendant's Proposed Cross-Complaint attached as Exhibit A, and see Plaintiffs Verified Complaint on file with this Court.) 2. Leave is mandatory where the cross-claims are compulsory and there is no evidence of bad faith on the part of the moving party. (Code. Civ. Proc. § 426.50; Silver Orgs. v. Frank (1990) 217 Cal.App.3d 94, 98-99.) 3. Even if the cross-claims are considered permissive rather than compulsory, the interests of justice would nevertheless warrant an Order granting this Motion for Leave. (Code Civ. Proc. § 428.50.) 4. Granting this Motion for Leave would not cause any delay or prejudice any party. 5. Leave is necessary to advance justice, to facilitate judicial economy, and to accommodate the resolution of all outstanding issues within a single action. Absent leave, the parties would suffer prejudice as duplicative actions could result in potentially inconsistent rulings. 6. Victory has acted in good faith, diligently seeking leave to file its Proposed Cross-Complaint. This motion is brought pursuant to the provisions of Section 426.50 of the Code of Civil Procedure and is based upon this notice, the attached memorandum of points and authorities and exhibits thereto, the documents on file with the Court in this action, on any matters of which this Court may take judicial notice, and upon all argument, evidence and papers properly presented to the Court at the time of the hearing on this motion. (Mot. p. 1-2.) BACKGROUND On 07/28/2023, Plaintiff, Pink Plastic LLC, filed the instant action against Defendant, 1725 Victory LLC. The Complaint alleges three causes of action for: (1) Breach of Contract, (2) Breach of Covenant of Good Faith and Fair Dealing, and (3) Negligent Misrepresentation. Plaintiffs Complaint alleges that on or about August 25, 2022, Plaintiff and Defendant entered into a commercial lease. (Compl. ¶ 7.) The causes of action stem from allegations that there was a leak in the roof and that Defendant failed to uphold its obligations under the terms of the lease. Defendant filed its Answer on 10/13/2023. Defendant filed the instant motion on 6/20/2024. PROCEDURAL ANALYSIS Moving Party: Defendant, 1725 Victory, LLC Responding Party: Plaintiff, Pink Plastic Moving Papers: Notic/Motion; Witkin Declaration; Request for Judicial Notice; Emami Declaration; Proof of Service Opposition Papers: Opposition Reply Papers: Reply Proof of Service Timely Filed (CRC Rule 3.1300) : Ok 16/21 Court Days Lapsed (CCP § 1005(b)) : Ok Proper Address (CCP §1 013, § 1013a, § 1013b) : Ok ANALYSIS Compulsory vs. Permissive Cross-Claims Movant argues that leave to file a cross-complaint is warranted whether its claims are considered compulsory under CCP § 426.50 or permissive under 428.50. Opposition makes no argument as to whether the instant cross-complaint would be a compulsory or permissive cross-complaint. Because Opposition did not seem to make any argument as to whether the cross-complaint here would be compulsory or permissive, the Court will put both legal standards below. Legal Standard Compulsory Cross-Complaint Code of Civil Procedure section 426.10 et seq. sets forth Californias compulsory cross-complaint" statute. (Code Civ. Proc., § 426.10 et seq. [titled Compulsory Cross-Complaints"].) Therein, Code of Civil Procedure section 426.30 provides, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded. ( Ibid. ) Related cause of action means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint. (CCP §426.10(c). In the event a party fails to file a compulsory cross-complaint concurrently with his or her answer, CCP §426.50 provides the following available remedies: A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action. (CCP §426.50) A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith. ( Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.) Legal Standard Permissive Cross-Complaint Under CCP § 428.10: A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3. (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him. (CCP § 428.10(a)-(b).) Under CCP § 428.50: (a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. (CCP § 428.50(a)-(c).) Discussion Defendant seeks leave to file a cross-complaint against Plaintiff and its guarantor Maramawit G. Dorsey. A significant amount of both parties arguments in moving, opposition, and reply papers are irrelevant for purposes of this motion, as both parties waste time disputing the merits of this case. The proposed cross-complaint appears to assert causes of actions which arise out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the Plaintiff alleges in the Complaint. The proposed cross-complaint pertains to the same exact lease as the Complaint and allegations pertaining to the alleged source of the leak. The cross-complaint also seeks to add a new party, Dorsey, because of allegations that Defendant and Dorsey executed a Guaranty and that Dorsey breached the Guaranty. Further, Movant appears to have acted in good faith, Movant does not appear to have acted in bad faith, and it would be in the interest of justice to grant leave to file the proposed cross-complaint. The Oppositions arguments are unpersuasive and unavailing. The Court notes that Movants motion was centered around the allegation that there was a third-party roof inspection report that Pink Plastic commissioned which evidenced that the roof was not leaking but that instead the HVAC was leaking. Movant alleged that Pink Plastic concealed this report until April 2024. TENTATIVE RULING Defendants motion for leave to file a cross-complaint is GRANTED. Defendant is to file and serve its cross-complaint within 15 days of this order. The Court reminds Defendant of the service obligations set forth in CCP § 428.60: A cross-complaint shall be served on each of the parties in an action in the following manner: (1) If a party has not appeared in the action, a summons upon the cross-complaint shall be issued and served upon him in the same manner as upon commencement of an original action. (2) If a party has appeared in the action, the cross-complaint shall be served upon his attorney, or upon the party if he has appeared without an attorney, in the manner provided for service of summons or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of this code. (CCP § 428.60(1)-(2).) The Court GRANTS judicial notice of requests 2 and 3. The Court will likely deny request for judicial notice 1. Defendant seeks judicial notice of the entire record in the instant case for the limited purpose of establishing the fact that no one, including Pink Plastic ever attached a copy of the Report to any pleading or motion in the instant case, and not for the truth of the claims asserted. With RJN 1, Defendant seeks judicial notice of the pleadings and papers filed in the proceedings in the instant case. However, the Court will not be going through every document filed in this case to determine if Pink Plastic ever attached a copy of the Report. If this issue is ever leally relevant, then Movant can bring up this issue on whatever motion it is legally relevant on. For now, it does not appear to be legally relevant or dispositive for purposes of determining how to rule on the instant motion.

HAUGEN VS AMERICAN CVRI2305148 HONDA MOTOR CO., INC., A MOTION TO COMPEL CALIFORNIA CORPORATION Tentative Ruling: GRANT. Defendant to produce a qualified PMK for deposition within 60 days of the date of this order. No Sanctions.