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Filing # 194959704 E-Filed 03/27/2024 04:17:50 PM
IN THE CIRCUIT COURT, OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2024 CA 000047 CI
DIVISION: E (Judge Tom Young)
MILAGROS SERRANO
Plaintiff,
v.
KIN INTERINSURANCE NETWORK,
Defendant.
/
DEFENDANT’S RESPONSE TO PLAINTIFF’S FIRST REQUEST FOR ADMISSIONS
COMES NOW the Defendant, KIN INTERINSURANCE NETWORK (“KIN” or
“Defendant”), by and through its undersigned counsel and pursuant to Rule 1.370 of the Florida
Rules of Civil Procedure, serves its responses to Plaintiff’s First Request for Admissions as
follows:
1. Admit that prior to July 9, 2022 you issued a policy of homeowners’ insurance which
provided insurance coverage to a property at 132 Jalapa Drive, Kissimmee, Florida 34743.
RESPONSE:
KIN admits only that it issued policy number KIN-HO-FL-153758298 Milagros
Serrano for the property at 132 Jalapa Dr., Kissimmee, FL 34743-7531 with effective
dates of January 1, 2022 to January 1, 2023. KIN’s liability to Plaintiff, if any, is
limited to the terms and conditions of the subject policy together with the limits of
liability contained therein.
2. Admit that the policy of homeowners’ insurance which Defendant provided to Plaintiff
covered the property at 132 Jalapa Drive, Kissimmee, Florida 34743 as of the date of the
loss described in the Complaint, which was on or about July 9, 2022.
RESPONSE:
KIN admits only that it issued policy number KIN-HO-FL-153758298 Milagros
Serrano for the property at 132 Jalapa Dr., Kissimmee, FL 34743-7531 with effective
dates of January 1, 2022 to January 1, 2023. KIN’s liability to Plaintiff, if any, is
limited to the terms and conditions of the subject policy together with the limits of
liability contained therein. KIN further states that the policy speaks for itself and is
subject to all the terms and conditions therein.
3. Admit that the insurance policy Defendant issued which is described in the Complaint
provided coverage to Plaintiff for damage caused to the property at 132 Jalapa Drive,
Kissimmee, Florida 34743 as a result of loss described in the Complaint.
RESPONSE:
Denied.
4. Admit that the policy of homeowners’ insurance which Defendant provided to Plaintiff for
the property at 132 Jalapa Drive, Kissimmee, Florida 34743 was in full force and effect as
of July 9, 2022.
RESPONSE:
KIN admits only that it issued policy number KIN-HO-FL-153758298 Milagros
Serrano for the property at 132 Jalapa Dr., Kissimmee, FL 34743-7531 with effective
dates of January 1, 2022 to January 1, 2023. KIN’s liability to Plaintiff, if any, is
limited to the terms and conditions of the subject policy together with the limits of
liability contained therein.
5. Admit that pursuant to the terms of Defendant’s homeowners’ insurance policy issued to
Plaintiff for the property at 132 Jalapa Drive, Kissimmee, Florida 34743, Defendant was
timely notified of the loss in question which occurred on or about July 9, 2022.
RESPONSE:
Denied.
6. Admit that the loss described in the Complaint which occurred on or about July 9, 2022
was a covered event pursuant to the terms of the policy of homeowners’ insurance which
Defendant issued to the Plaintiff for the property at 132 Jalapa Drive, Kissimmee, Florida
34743.
RESPONSE:
Denied.
7. Admit that Defendant received notice of the loss described in the Complaint at least 90
days prior to the filing of this lawsuit or before the claim was denied or underpayment
issued.
RESPONSE:
2
KIN admits only that Plaintiff reported the alleged loss to KIN on September 7, 2023,
and that the Complaint was filed by Plaintiff on January 8, 2024.
8. Admit that Plaintiff is the recipient of the benefits related to the subject claim under the
insurance policy which Defendant issued to Plaintiff for the property at 132 Jalapa Drive,
Kissimmee, Florida 34743 as it pertains to the loss which occurred on or about July 9,
2022.
RESPONSE:
KIN objects to this request as vague and ambiguous in the use of the term “recipient
of the benefits related to the subject claim.” Subject to and without waiver of the
objection, KIN admits only that it issued policy number KIN-HO-FL-153758298
Milagros Serrano for the property at 132 Jalapa Dr., Kissimmee, FL 34743-7531 with
effective dates of January 1, 2022 to January 1, 2023. KIN’s liability to Plaintiff, if
any, is limited to the terms and conditions of the subject policy together with the limits
of liability contained therein.
9. Admit that any payment Defendant issued on this claim was in accordance with the terms
of the insurance policy at issue in this lawsuit.
RESPONSE:
KIN did not issue payment to Plaintiff as it found no covered damage under the terms
and conditions of the policy.
10. Admit that above-named Defendant is properly named in this action.
RESPONSE:
KIN admits only that it issued policy number KIN-HO-FL-153758298 Milagros
Serrano for the property at 132 Jalapa Dr., Kissimmee, FL 34743-7531 with effective
dates of January 1, 2022 to January 1, 2023. KIN’s liability to Plaintiff, if any, is
limited to the terms and conditions of the subject policy together with the limits of
liability contained therein.
[CERTIFICATE OF SERVICE ON FOLLOWING PAGE.]
3
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via electronic
delivery to Clayton T. Kuhn, Esquire, 2110 West Platt Street, Tampa, Florida 33606 via the
following designated e-mail address: clay@theKRfirm.com & Service1@thekrfirm.com on this
27th day of March 2024.
MARJORIE M. SALAZAR, ESQUIRE
Florida Bar Number 0939021
Southeast Law Group, P.A.
1825 Business Park Blvd., Suite A
Daytona Beach, FL 32114
(386) 274-1700
Attorneys for Defendant
msalazar@southeastlaw.com
eservice@southeastlaw.com
4
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MAYER v. HSBC BANK, N.A.
PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT AGREEMENT
PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 664.6
Plaintiff’s motion is denied, in part.
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On January 13, 2017, Mayer filed a complaint against the lender defendants alleging
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1
The court notes that though this agreement is marked as “confidential”, the parties have raised
the terms of the agreement in both the moving papers and the opposition and have not requested
the pleadings be filed under seal.
Page 2 of 16
II. DISCUSSION
“Where the statutory requirements are met, the court may, upon motion, enter judgment
pursuant to the terms of a settlement agreement.” (Weil & Brown, Civil Procedure Before Trial
(TRG 2023) § 12:950.) Such judgment can be entered “where parties to pending litigation
stipulate to a settlement either orally before the court or in writing, signed by the parties or their
counsel outside court.” (Id. at § 12.952.)
Cal Code Civ Proc § 664.6 Judgment pursuant to terms of settlement provides:
(a) If parties to pending litigation stipulate, in a writing signed by the parties outside
of the presence of the court or orally before the court, for settlement of the case, or part
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(1) The party.
(2) An attorney who represents the party.
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obligated PHH, within 30 days of receipt of the reinstatement amount to submit Universal Data
Forms to all three major credit reporting agencies, reporting the loan as paid as agreed from the
time Ocwen began servicing the loan through the effective date. The agreement contained a
Page 3 of 16
release limitation in paragraph 12 which included any future disputes between Mayer and PHH
and Defendants, arising out of the parties’ continuing relationship as mortgagor and mortgagee.
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1. Order that PHH clear all unpaid escrow fees from his account as they
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due to PHH as he tendered the funds and PHH, through its attorney, wrongfully
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reporting.
Page 4 of 16
5. Mayer to pay PHH 38 months of mortgage payments (which represents the
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consequences (par. 15), compromise of disputed claims (par. 16), severability (par 17), binding
effect (par. 18), governing law (par. 19), further assurances (par. 20), counterparts (par. 21)
integration clause (par. 22), time is of the essence clause (par. 23), headings and captions (par.
24), and effective date (par. 25.).
Paragraph 12 states the agreement does not release (1) claims arising out of the failure of
either Party to perform in conformity with the terms of this Agreement; (2) any future disputes
between the Borrower and PHH and Defendants, including their successors and assigns,
which arise out of or relate to the Parties’ continuing relationship as mortgagor and
mortgagee; and (3) PHH and Defendants’ (including their successors’ and assigns’) right to
foreclose. (Emphasis added.)
Page 5 of 16
Defendants’ Evidentiary Objections
Declaration of Mayer
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15-16. Overruled.
Declaration of Simmons
1 – 9. The court declines to rule on evidentiary objections which were not dispositive to
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Demurrer on 1st Amended Complaint for
ARAUJO vs GENERAL
CVPS2305503 Breach of Contract/Warranty by GENERAL
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Defendant to file their answer within 20 days of this order becoming final.
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– concealment cause of action, and that a “transactional relationship” is not required under California
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which are available under the Song-Beverly Act.
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the FAC fail to establish a fraud cause of action. With respect to punitive damages. GM argues that
Plaintiffs have failed to state a viable cause of action for fraud because their fraud cause of action fails.
Demurrer
A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action.
(CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation
by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. (1990) 51
Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded
and of facts which may be inferred from those expressly pleaded. (Crowley v. Katleman (1994) 8 Cal.4th
666, 672.) A demurrer, however, does not admit contentions, deductions, or conclusions of fact or law.
(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the
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cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
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The elements of fraudulent concealment are: “(1) the defendant must have concealed or suppressed a
material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the
defendant must have intentionally concealed or suppressed the fact with the intent to defraud the
plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he
had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression
of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA)
Corp. (1992) 6 Cal.App.4th 603, 612–13.)
As concealment is a species of fraud, it must also be pled with specificity. (Blickman Turkus, LP v. MF
Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.) Less specificity is required where the
defendant necessarily possesses the information. (Committee on Children’s Television, Inc. v. General
Foods Corp. (1983) 35 Cal.3d 197, 216.) As noted by one court, it is not practical to allege facts showing
how, when and by what means something did not happen. (Alfaro v. Community Housing Improvement
Sys. Planning Assn. (2009) 171 Cal.App.4th 1356, 1384.) However, if the concealment is based on
providing false or incomplete statements, the pleading must at least set forth the substance of the
statements at issue. (Id.)
In this case, Plaintiffs have sufficiently alleged all the elements of a fraudulent inducement –
concealment cause of action in the FAC. The FAC alleges that Plaintiffs entered into a warranty contract
with GM on 6/4/2021 (¶¶ 6–7); that GM knew of the defects posed by the subject vehicle prior to
Plaintiffs’ purchase and withheld from Plaintiffs (¶¶ 63–64, 67–70, 72); that GM had exclusive/superior
knowledge of the defects (¶¶ 65–70, 73a–73b); that the defects presented a safety hazard (¶¶ 25, 64);
that Plaintiffs would not have purchased the subject vehicle had they known about the defects (¶¶ 66,
70, 75, 78); and that Plaintiffs suffered damages (¶ 78). These allegations are sufficient, at the pleading
stage, to assert a cause of action for fraudulent inducement – concealment.
GM nonetheless argues that Plaintiffs failed to allege a duty to disclose. This argument is not
persuasive. A duty to disclose arises under four circumstances in which nondisclosure or concealment
may constitute actionable fraud: “(1) when the defendant is in a fiduciary relationship with the plaintiff;
(2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when
the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes
partial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 311 [citation & internal quotation marks omitted].) The last three require an evidence
of some transaction, i.e. direct dealings between the plaintiff and the defendant. (Id. at 311–12.)
Here, the allegations in the FAC are sufficient for pleading purposes to demonstrate that GM and its
agents owed a duty to disclose known defects but that they purposely withheld such disclosures from
consumers, including Plaintiffs. (See FAC ¶¶ 63–74.) Plaintiffs are not required at the pleading stage to
prove the agency relationship between GM and its dealership, and there is no question that GM
communicates to consumers, at least in part, through its authorized dealers. (See, e.g., Daniel v. Ford
Motor Co. (9th Cir. 2015) 806 F.3d 1217, 1226–27.)
Moreover, in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (review granted 2/1/2023,
S277568), the court addressed the sufficiency for concealment for pleading purposes in fraud in a lemon
law case. The Dhital court found that plaintiffs alleged a transmission defect in numerous vehicles,
including the plaintiff’s, the defendant knew of the defect and the hazard they posed, defendant had
exclusive knowledge of the defect and failed to disclose that information, defendant intended to deceive
plaintiffs by concealing known defects, the plaintiffs would not have purchased the vehicle if they had
known of the defects, and they suffered damages on the sum paid to purchase the vehicle.
Here, Plaintiffs’ allegations largely mirror the allegations as discussed above. (See FAC ¶¶ 25, 63–70,
72, 75, 78.) Accordingly, the Court must overrule the demurrer on this ground.
Ruling
SARGON RESTORATION, INC., A CALIFORNIA CORPORATION, ET AL. VS MORRISON STUDIOS, LTD. L.P.
Jul 26, 2024 |
23BBCV01735
Case Number:
23BBCV01735
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
sargon restoration, inc.
,
et al.
,
Plaintiffs,
v.
morrison studios, ltd. lp
,
Defendant.
Case No.:
23BBCV01735
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
Motion for attorneys fees pursuant to CCP § 8488 in the amount of $4,550.00
BACKGROUND
A.
Allegations
Plaintiffs Sargon Restoration, Inc. (Restoration), Environmental Abatement, Inc. (Abatement), and L.Y. Environmental, Inc. (L.Y.) allege that they each entered into an agreement with Defendant Morrison Studios, Ltd. L.P. (Defendant) by which Plaintiffs each agreed to furnish certain labor, services, equipment, and materials for a work of improvement at the property located at 5001 Lankershim Boulevard, North Hollywood, CA 91601.
Plaintiffs allege that they performed all conditions and obligations required, but Defendants breached their contractual obligations by failing and refusing to compensate each of the Plaintiffs.
Plaintiffs allege that the reasonable value and market price of said labor, services, equipment, and materials when provided and at all relevant times herein mentioned and now is as follows: (1) the sum of $378,950.05 to Restoration for fire and water restoration &; (2) the sum of $16,000.00 to Abatement for construction and fire/water restoration &; and (3) the sum of $6,375.00 to L.Y. for environmental testing&.
(FAC, ¶13, Exs. B-D.)
The first amended complaint (FAC), filed July 2, 2024, alleges causes of action for: (1) breach of written contract (Restoration); (2) breach of oral contract (Abatement); (3) breach of oral contract (L.Y.); (4) Quantum Meruit (Restoration); (5) Quantum Meruit (Abatement); and (6) Quantum Meruit (L.Y.).
B.
Relevant Background and Motion on Calendar
On April 30, 2024, Defendant filed a petition for removal of the mechanics lien on the property located at 5001 Lankershim Blvd., North Hollywood, CA 91601.
On May 13, 2024, Plaintiffs filed an opposition brief.
On May 16, 2024, Defendant filed a reply brief.
On May 31, 2024, the Court granted Defendants petition to release the property from the mechanics lien.
On May 31, 2024, the Court signed the Order on the Petition to Remove Mechanics Lien from Property Pursuant to Civil Code, § 8480.
LEGAL STANDARD
Civil Code, § 8488 states:
(a) At the hearing both (1) the petition [for an order to release the property from the claim of lien] and (2) the issue of compliance with the service and date for hearing requirements of this article are deemed controverted by the claimant. The
petitioner has the initial burden of producing evidence on those matters.
The petitioner has the burden of proof as to the issue of compliance with the service and date for hearing requirements of this article. The
claimant
has the burden of proof as to the validity of the lien.
(b) If judgment is in favor of the petitioner, the court shall order the property released from the claim of lien.
(c)
The prevailing party is entitled to reasonable attorney's fees
.
(Civ. Code, § 8488 [emphasis added].)
DISCUSSION
Defendant moves for attorneys fees in the amount of $4,550.00 pursuant to Civil Code, § 8488(c).
[1]
In opposition, Plaintiffs acknowledge that Defendant succeeded on the merits of its petition but argue that the attorneys fees claimed are excessive.
(Opp. at p.2.)
Plaintiff does not take issue with defense counsels hourly rate of $350, but argues that the 13 hours she spent on a simple petition in light of her accomplished experience is unreasonable when Defendants motion to remove the lien and the motion for attorneys fees appear to be forms that were reproduced with dates and information to fill in.
(
Id.
)
As stated above, the parties do not dispute that Defendant prevailed on the petition for removal of the mechanics lien.
As such, Defendant is entitled to recover reasonable attorneys fees from Plaintiffs.
The only issue is whether the $4,550.00 requested by Defendant is reasonable in amount.
Defense counsel, Araksya Boyadzhyan, provides her declaration in support of the motion for attorneys fees.
Ms. Boyadzhyan states that her hourly rate is currently $350/hour.
(Boyadzhyan Decl., ¶5.) She details her legal experience; she was admitted into practice in Claifornia in December 2014 and spearheaded Mgdesyan Law Firms civil litigation department.
(
Id.
, ¶¶6-7.)
She states that she spent 13 hours on this action, which included: 0
.5 hour expended drafting correspondence and meeting and conferring with Plaintiffs counsel regarding the removal of the mechanics lien; .4 hours researching in preparing the Petition; 3 hours expending in drafting the Petition to Remove the Mechanics Lien, the Request for Judicial Notice, and my declaration in support of the Petition; 2 hours expended on researching and drafting the Reply to Plaintiffs Opposition to the Petition; 1 hour to attend the hearing on the Petition; 0.5 hour expended drafting the Proposed Order on Removal of the Mechanics Lien; and 2 hours expended in researching and drafting the instant motion for attorneys fees.
(
Id.
, ¶8.)
Ms.
Boyadzhyan anticipates spending additional time if the motion for attorneys fees is opposed.
(
Id.
, ¶9.)
Plaintiffs argue that Ms.
Boyadzhyans 4 hours spent in researching to prepare the petition and 3 hours to draft the petition are unreasonable in light of Plaintiffs belief that the petition was clearly a form documents with dates and names filled in.
(Opp. at p.2.)
They also argue that spending 2 hours on this motion for attorneys fees is also unreasonable when it is a form motion with stock declarations with blanks filled in.
(
Id.
)
The Court finds that the time spent by Ms. Boyadzhyan to research and prepare the Petition is not unreasonable.
The Court will not make a determination regarding whether the Petition or this attorneys fees motion were forms as claimed by Plaintiffs.
Regardless of whether they were form documents, Ms. Boyadzhyan would still have had to have expended time to research the law and the facts of the particular case before her, prepare the Petition and attorneys fees motion, and draft the requisite accompanying papers (declarations, requests for judicial notice, etc.).
The expenditure of 13 hours for two law and motion matters is not unreasonably high.
Ms. Boyadzhyan has adequately explained the time she has spent and the Court sees no grounds to reduce the fees.
The requested sum is reasonable for the work done on the Petition and the attorneys fees motion and is not excessive in amount.
The motion for attorneys fees is granted in the amount of $4,550.00.
CONCLUSION AND ORDER
Defendant Morrison Studios, Ltd. L.P.s motion for attorneys fees is granted in the amount of $4,550.00.
Defendant shall provide notice of this order.
DATED: July 26, 2024
___________________________
John J. Kralik
Judge of the Superior Court
[1]
(The Court notes that Defendants make reference to the Code of Civil Procedure, § 8488, but the correct section is
Civil Code
, § 8488(c).)
Ruling
North Mill Equipment Finance LLC vs. Berzin, Bella
Aug 05, 2024 |
S-CV-0052536
S-CV-0052536 North Mill Equipment Finance LLC vs. Berzin, Bella
No appearance required. CMC is continued to 10/28/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Berzin, Bella
Ruling
CENTRAL VALLEY FAST FOODS, INC., A CALIFORNIA CORPORATION, et...
Jul 26, 2024 |
Civil Unlimited (Other Breach of Contract/Warr...) |
22CV021552
22CV021552: CENTRAL VALLEY FAST FOODS, INC., A CALIFORNIA
CORPORATION, et al. vs PRILA FOOD, INC., A CALIFORNIA CORPORATION, et al.
07/26/2024 Compliance Hearing in Department 17
Tentative Ruling - 07/25/2024 Frank Roesch
CMC/Compliance hearing 07/26/24 @9:00 am in Dept 17
Join ZoomGov Meeting
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Meeting ID: 161 4621 6257