Preview
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019
EXHIBIT 9
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019
RICHARD PETERSON APRIL 21, 2010
1 3
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY 2 APPEARANCES:
3
KAREN SMITH and WILLIAM )
SMITH, ) 4 HUMPHREY, FARRINGTON & MCCLAIN, P.C.
Plaintiffs, )
) Case No.
5 Attorneys for Plaintiffs
vs . ) 2-08-CV-130 6 221 West Lexington, Suite 400
)
BERJE, INC., et al., 7 Independence, Missouri 674051
)
) 8 BY: STEVEN E. CRICK, ESQ.
Defendants . >
) 9
10
VIDEOTAPED DEPOSITION OF
c
RICHARD PETERSON 11 WYATT, TARRANT & COMBS, LLP
New York, New York
12 Attorneys for Defendant Elan Chemical
Wednesday, April 21, 2010
13 Company
14 250 West Main Street, Suite 1600
15 Lexington, Kentucky 40507-1746
Reported by:
TAMI H. TAKAHASHI, RPR, CSR 16 BY: SHARON L. GOLD, ESQ.
JOB NO. 309516 17
18
19 REMINGER COMPANY, LPA
20 Attorneys for Defendant Citrus And Allied
21 Essences, Ltd.
22 525 Vine Street, Suite 1700
23 Cincinnati, Ohio 45202
24 BY: VINCENT P. ANTAKI, ESQ.
25
2 4
1 1
2 April 21,2010 2 REMINGER COMPANY, LPA
3 9:38 a.m. 3 Attorneys for Defendant Wild Flavors,
4 4 Inc.
Videotaped Deposition of RICHARD 5 250 Grandview Drive, Suite 550
PETERSON, held at the offices of Hinshaw & 6 Ft. Mitchell, Kentucky 41017
Culbertson, 780 Third Avenue, New York, New 7 BY: MARK R. BUSH, ESQ.
York, pursuant to Notice, before TAMI H. 8 - and -
JtAKAHASHI, a Registered Professional Reporter 9 LOUIS D. PROIETTI, ESQ.
1 and Notary Public of the State of New York. 10 Attorney for Wild Flavors, Inc.
11 11 1261 Pacific Avenue
12 12 Erlanger, Kentucky 41018
13 13
14 14
15 15 HINSHAW & CULBERTSON LLP
16 16 Attorneys for Defendant Polarome
17 17 International, Inc.
18 18 222 N. LaSalle Street, Suite 300
19 19 Chicago, Illinois 60601
20 20 BY: DANIEL W. McGRATH, ESQ.
21 21
22 22
23 23 ALSO PRESENT:
24 24 LISA LIVOTE, Videographer
25 25
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019
RICHARD PETERSON APRIL 21, 2010
51
1 Peterson
2 anybody? Okay. We'll reserve reading
3 and signing. Thank you.
4 THE VI DEOGRAPHER : This concludes
5 today's deposition of Richard Peterson.
6 One videotape was used. We're going off
7 the record . The time is 10:33 a.m.
8 ( Time noted : 10:33 a.m.)
9
10
11
12 RICHARD PETERSON
13
14 Subscribed and sworn to before me
15 this day of , 2010 .
16
17
18
19
20
21
22
23
24
25
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019
RICHARD PETERSON APRIL 21, 2010
52
1
2 CERTIFICATE
3 STATE OF NEW YORK )
4 : s s .
5 COUNTY OF NEW YORK )
6
7 I, TAMI H. TAKAHASHI, a Notary
8 Public within and for the State of New
9 York, do hereby certify:
10 That RICHARD PETERSON, the witness
11 whose deposition is hereinbefore set
12 forth, was duly sworn by me and that
13 such deposition is a true record of the
14 testimony given by the witness.
15 I further certify that I am not
16 related to any of the parties to this
17 action by blood or marriage, and that I
18 am in no way interested in the outcome
19 of this matter.
20 IN WITNESS WHEREOF, I have hereunto
21 set my hand this 26th day of April 2010.
22
23
24 TAMI H. TAKAHASHI
25
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FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS
Jul 27, 2024 |
FCS059237
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.,
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Ruling
FESSEHAYE vs SULLIVAN, et al.
Jul 25, 2024 |
Civil Unlimited (Contract/Warranty Breach - Se...) |
23CV040419
23CV040419: FESSEHAYE vs SULLIVAN, et al.
07/25/2024 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by
MICHAEL LAWRENCE MORRILL (Defendant) + in Department 24
Tentative Ruling - 07/22/2024 Rebekah Evenson
The Motion to Set Aside/Vacate Default and / or Default Judgment filed by Ross Michael
Sullivan, AHSLEY CORRINE CABLE, DANIEL INHO NAM, MICHAEL LAWRENCE
MORRILL on 05/22/2024 is Granted in Part.
The Court rules as follows on the "Motion by Defendants Ross Michael Sullivan, Michael
Lawrence Morrill, Daniel Inho Nam, and Ashley Corrine Cable to Set Aside Defaults and
Default Judgment, if Entered".
Preliminarily, no default judgment has been entered in this case.
The motion by Defendant Ross Michael Sullivan is DENIED. Sullivan’s attorney concedes that
he was properly served with the summons and First Amended Complaint, on October 12, 2023.
Sullivan’s default was entered on November 14, 2023. A motion for relief from default pursuant
to Code of Civil Procedure section 473(b), including under the providing requiring relief based
on an attorney affidavit of fault, must be filed within six months of entry of default. Sullivan’s
motion was filed on May 20, 2024, more than six months after entry of Sullivan’s default.
In Sullivan’s supplemental briefing, he seeks equitable relief based on extrinsic mistake.
(Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 981). However, Sullivan fails to demonstrate any
extrinsic mistake that led to entry of his default. Sullivan’s attorney states that when she
attempted to e-file Sullivan’s Answer on November 17, 2023, Plaintiff’s request for entry of
Sullivan’s default (filed on November 14, 2023) had not yet been processed by the clerk’s office.
As a result, the clerk’s office (mistakenly) filed Sullivan’s Answer on November 20, 2023.
The clerk’s office properly entered Sullivan’s default as of the day Plaintiff had requested entry
of the default. The filing of Sullivan’s Answer on November 20, 2023 was a mistake, but no
mistake by the clerk’s office caused Sullivan to first attempt to file his Answer three days after
Plaintiff had timely requested entry of his default. Moreover, Sullivan fails to identify any action
by the clerk’s office that caused his attorney to file an untimely motion to set aside his default.
Sullivan’s attorney states that she became aware of the entry of Sullivan’s default in December
2022 when she reviewed the register of actions. (See Nancy Conway’s declaration dated June 27,
2024, at paragraph 6.) The attorney then waited “six months from the date of discovery and
believed I had until late June to file with the six months for mandatory relief.” (Id. at paragraph
9.) The deadline to file a motion for relief from default pursuant to Code of Civil Procedure
section 473(b) is six months from the date of default, not six months from defendant’s discovery
of the default. (The application for relief “shall be made within a reasonable time, in no case
exceeding six months after the judgment, dismissal, order, or proceeding was taken.”) Sullivan
does not demonstrate that his attorney’s failure to file this motion until more than six months
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV040419: FESSEHAYE vs SULLIVAN, et al.
07/25/2024 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by
MICHAEL LAWRENCE MORRILL (Defendant) + in Department 24
after his default was entered was a result of any mistake or advice by the clerk’s office or
Plaintiff’s counsel, nor does Sullivan demonstrate that it was reasonable for his attorney to wait
five full months after the discovery of his default (and more than six months after entry of the
default) to file a motion seeking to vacate the default. Delays of three months or more in seeking
to set aside a default routinely result in denial of relief. (See Caldwell v. Methodist Hospital
(1994) 24 Cal.App.4th 1521, 1525.(
The Answer filed by Ross Michael Sullivan on November 20, 2023 is STRICKEN.
The Cross-Complaint filed by Ross Michael Sullivan on November 16, 2023 is not stricken.
The motion by Defendants Michael Lawrence Morrill, Daniel Inho Nam, and Ashley Corrine
Cable is GRANTED.
To the extent that the motion by Morrill, Nam, and Cable is based on Code of Civil Procedure
section 473(d), the motion is granted. As indicated above, Morrill, Nam, and Cable filed
declarations under penalty of perjury attesting that they had moved out of the premises at which
they were purportedly served (via substitute service) no later than October 1, 2023. If the address
at which they were purportedly served with the summons and complaint (via substitute service)
was not their dwelling or usual place of abode as of October 12, 2023, then any purported
substitute service was invalid (see Code of Civil Procedure section 415.20(b)), and any entry of
default based on that purported service is void (see Code of Civil Procedure section 473(d).)
The defaults entered against Michael Lawrence Morrill, Daniel Inho Nam, and Ashley Corrine
Cable on December 22, 2024 are VACATED.
Defendants Michael Lawrence Morrill, Daniel Inho Nam, and Ashley Corrine Cable shall file
and serve their Answers to Plaintiff’s First Amended Complaint by June 21, 2024.
PLEASE NOTE that the proposed Answers submitted with the moving papers are NOT deemed
filed or served on anyone.
Plaintiff’s request for an order that defense counsel pay a penalty to Plaintiff or the State Bar is
DENIED.
Ruling
HARRIS vs PREMIUM AUTO, INC.
Jul 27, 2024 |
CVRI2400962
HARRIS vs PREMIUM AUTO, Motion to Compel Arbitration by
CVRI2400962
INC. PREMIUM AUTO, INC.
Tentative Ruling: Grant.
Factual/Procedural Context
This action involves the sale and purchase of a used automobile. On 9/21/2023, Plaintiff and
Defendant entered into a Retail Installment Sale Contract (“RISC”) concerning Plaintiff’s purchase
of a used 2016 Range Rover Sport. The RISC contains an arbitration clause, in which Plaintiff
agreed to arbitrate “[a]ny claim or dispute, whether in contract, tort, statute or otherwise (including
the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or
dispute), between [Plaintiff] and [Defendant]” that arises out of Plaintiff’s purchase of the subject
vehicle. (See Hazrat Decl. ¶ 2, Ex. 1.)
On 2/21/2024, Plaintiff filed the operative Complaint against Defendant, alleging (1) intentional
misrepresentation, (2) negligent misrepresentation, (3) violation of Bus. & Prof. Code § 17200,
and (4) violation of the Consumer Legal Remedies Act (“CLRA”).
***
Defendant brings the instant motion to compel arbitration on the basis of the RISC. Defendant
argues that California Supreme Court’s decision in Sanchez v. Valencia Holding Co., LLC (2015)
61 Cal.4th 898 found that arbitration clauses in an automobile sales contract are not
unconscionable. Defendant thus asks the Court to compel Plaintiff to arbitrate this action before
the American Arbitration Association (“AAA”) and to stay this action pending completion of
arbitration.
In opposition, Plaintiff argues that the motion should be denied, because under McGill v. Citibank,
N.A. (2017) 2 Cal.5th 945, his claim for “public injunctive relief” under the CLRA to enjoin
Defendant’s illegal and deceptive practices is a matter of public policy not subject to arbitration.
In reply, Defendant argues that all of Plaintiff’s claims are subject to arbitration, and that Plaintiff
seeks “private” injunctive relief for the benefit of the public, not public injunctive relief. In the event
the Court finds that such claim is not arbitrable, Defendant asks the Court to sever and stay
Plaintiff’s claim for injunctive relief pending arbitration.
Analysis
Under the Federal Arbitration Act (“FAA”), the moving party on a motion to compel arbitration
must demonstrate the existence of an arbitration agreement between the parties that covers the
controversy or claims at issue. (Roes v. SFBSC Mgmt., LLC (9th Cir. 2016) 656 F. App’x. 828,
829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity
or “the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply
state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle
Museum Tower Assn. v. Pinnacle Market Development, LLC (2012) 55 Cal.4th 223, 236.) “The
party seeking arbitration bears the burden of proving the existence of an arbitration agreement,
and the party opposing arbitration bears the burden of proving any defense, such as
unconscionability.” (Id.)
Plaintiff does not dispute that the FAA applies in this case, or that he entered into a written
arbitration agreement that covers the instant dispute. (See Hazrat Decl. ¶ 2, Ex. 1.) Instead,
Plaintiff opposes the instant motion solely on the basis that the arbitration agreement is invalid
based on the California Supreme Court’s ruling in McGill v. Citibank, N.A. (2017) 2 Cal.5th 945
and Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691.
Plaintiff argues that he is seeking a public injunction under the CLRA to enjoin Defendant “from
continuing to make false and misleading statements to consumers regarding the sale of motor
vehicles.” (Compl. ¶ 71.) Plaintiff relies upon McGill and Mejia to argue that because California
law prohibits arbitration of claims for public injunctive relief, the arbitration provision in this case
is invalid and unenforceable. However, neither McGill nor Mejia stand for the proposition that an
arbitration provision is invalid simply because it requires arbitration of claims for which a public
injunction is a remedy or because it does not allow an arbitrator to issue a public injunction.
Rather, the arbitration provision is invalid only if it precludes the parties from seeking a public
injunction altogether, “in any forum.” (See McGill, supra, 2 Cal.5th at 961 [“Thus, insofar as the
arbitration provision here purports to waive McGill’s right to request in any forum such public
injunctive relief, it is invalid and unenforceable under California law.”] [emphasis added]; Mejia,
supra, 54 Cal.App.5th at 704 [“We concur with the trial court’s interpretation of the arbitration
clause as barring Mejia from seeking public injunctive relief ‘in any forum,’ thereby rendering the
arbitration clause unenforceable under McGill.”] [emphasis added].)
For instance, the McGill Court acknowledged that the parties had “elected in the Arbitration
Agreement to exclude public injunctive relief requests from arbitration” but noted that the case
could still go to arbitration on some of the claims asserted by the plaintiff. (McGill, supra, 2 Cal.5th
at 966.) “Moreover, case law establishes that a stay of proceedings as to any inarbitrable claims
is appropriate until arbitration of any arbitrable claims is concluded. [Citation]) Thus, arbitration of
claims the parties have agreed to arbitrate may proceed pursuant to whatever procedures the
arbitration agreement specifies, unaffected by any subsequent proceedings made necessary by
invalidation of the waiver regarding the public injunctive relief claims the parties did not agree to
arbitrate. According to the high court, “‘piecemeal’ litigation” of claims the parties have agreed to
arbitrate and claims they have not agreed to arbitrate is consistent with the FAA.” (Id.) Thus, some
of Plaintiff’s claims and requests for relief may be arbitrated and others may be tried in this Court
after arbitration is completed.
In Mejia, the trial court found that the arbitration agreement prevented plaintiff from seeking and
obtaining a public injunction in arbitration and made arbitration the only forum available to the
plaintiff. (Mejia, supra, 54 Cal.App.5th at 704.) The Court of Appeal noted that the trial court “might
have ‘saved’ the arbitration clause by ‘sever[ing] the prohibition on public injunctive relief from the
Arbitration Provision’” but could not do so due to a “poison pill” provision that restricted the right
to sever.” (Id.)
In this case, the arbitration agreement does not include any provision that prevents Plaintiff from
seeking public injunctive relief in arbitration. (See Hazrat Decl. ¶ 2, Ex. 1.) The arbitration
agreement simply states that “[a]ny award by the arbitrator shall be in writing and will be final and
binding on all parties, subject to any limited right to appeal under the Federal Arbitration act.” (Id.)
Moreover, the arbitration agreement prohibits claims, not brought on an individual basis, but as a
“consolidated, representative, class, collective, injunctive or private attorney general action.” (Id.)
It further states:
Neither you nor we waive the right to arbitrate any related or unrelated claims by filing
any action in small claims, court, or by using self-help remedies, such as repossession, or
by filing an action to recover the vehicle, to recover a deficiency balance, or for individual
or statutory public injunctive relief.
(Id. [emphasis added].) Based on the above language, the arbitration agreement only seeks to
limit the class action capacity in which an individual can bring a claim against Defendant. In other
words, the only limitation as to a public injunctive relief claim is in a class representative capacity.
This is important, because claims under the CLRA other consumer protection statutes may be
asserted as individual claims seeking public injunctive relief. (McGill, supra, 2 Cal.5th at 959;
Dicarlo v. Moneylion, Inc. (C.D. Cal. Dec. 20, 2019) 2019 U.S. Dist. LEXIS 228268, at *8 [provision
that preserved the plaintiff’s right to obtain in arbitration “all remedies available in an individual
lawsuit” did not bar public injunctive relief and was valid under McGill]; Gonzalez-Torres v.
Zumper, Inc. (N.D. Cal. Dec. 2, 2019) 2019 U.S. Dist. LEXIS 207390, at *24 [concluding that an
arbitration agreement that empowered the arbitrator to “issue any and all remedies authorized by
law” did not run afoul of McGill because “[a]lthough a plaintiff may not assert claims on behalf of
a class in arbitration, the Agreement does not prohibit plaintiff from being awarded public
injunctive relief as a remedy for his individually-asserted claims in arbitration”].) Thus, based on
the above, Plaintiff has failed to demonstrate that the arbitration agreement at issue is
unenforceable under McGill or Mejia.
In any event, the issue of which claims or disputes should be arbitrated must be decided by the
arbitrator and not this Court. In Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, the
arbitration agreement delegated “the determination of the scope or applicability of the arbitration
provision” to the arbitrator. (Id. at 891.) Under those circumstances, the Court of Appeal concluded
that “it is the arbitrator who will consider the conscionability of the agreement and the scope of
the arbitration clause, including whether the class arbitration is available under the arbitration
provision, and whether the provision purports to waive the Aanderuds’ right to seek public
injunctive relief in all forum and, if so, what impact this has on the enforceability of the arbitration
provision as a whole.” (Id. at 897; see also Henry Schein Inc. v. Archer & White Sales, Inc. (2019)
139 S.Ct. 524, 530.)
Here, the arbitration agreement delegates questions of arbitrability to the arbitrator. (Hazrat Decl.
¶ 2, Ex. 1 [“Any claim or dispute, whether in contract, tort, statute or otherwise (including the
interpretation and scope of this Arbitration Provision . . . and the arbitrability of the claim
or dispute) . . . shall, at your or our election, be resolved by neutral, binding arbitration and not
by court action.”] [emphasis added].) Thus, Plaintiff has agreed to submit to arbitration questions
of the interpretation and scope of the arbitration provision and the arbitrability of specific claims.
Accordingly, the Court grants Defendant’s motion to compel arbitration to allow the arbitrator to
determine the threshold question of which claims and disputes are to be arbitrated and then, to
arbitrate any claims or disputes the arbitrator finds to be arbitrable. All proceedings in this action
are stayed pending completion of the arbitration proceedings.
Ruling
FCS058678 - ALL BAY BUILDERS V WELTER, IAN, ET AL (DMS)
Jul 26, 2024 |
FCS058678
FCS058678
Defendants/cross-complainants’ motions to deem matters admitted and for sanctions
TENTATIVE RULING
Defendants/Cross-Complainants Ian Welter and Jennifer Welter bring 3 motions to
deem matters admitted as follows:
1) Motion to Deem Requests for Admission, Set One, Admitted as to Charles Littlefield
individually and dba All Bay Builder [sic];
2) Motion to Deem Requests for Admission, Set One, Admitted against Plaintiffs/Cross-
Defendants All Bay Builders, Inc. and
3) Motion to Deem Requests for Admission, Set Two, Admitted against Plaintiffs/Cross-
Defendants All Bay Builders, Inc.
The Complaint in this matter was filed on August 22, 2022. On February 3, 2023,
Defendants filed their Answer and Cross-Complaint. A Notice of Acknowledgment and
Receipt was executed by Plaintiff Charles Littlefield individually and dba All Bay Builder
counsel on March 27, 2023. No Proof of Service or Notice of Acknowledgment and
Receipt is contained in the court file as to Plaintiff All Bay Builders, Inc.
On May 8, 2023 a Substitution of Attorneys was filed as to plaintiff/cross-defendant “All
Bay Builders”. Plaintiff’s counsel Elizabeth Lawley substituted out of the case and All
Bay Builders was named the successor legal representative. No new attorney has
substituted into the case on behalf of any of the plaintiffs/cross-defendants. One of the
cross-defendants is a corporation and must be represented by an attorney.
On June 21, 2023, counsel for Defendants/Cross-Complainants requested the entry of
default as to All Bay Builders, Inc. and Charles Littlefield, individually and dba All Bay
Builder [sic]. The defaults were entered as to Plaintiffs/Cross-Defendants.
Page 2 of 3
On December 8, 2023 Defendants/Cross-Complainants served Requests for Admission,
Set One on All Bay Builders, Inc. On February 6, 2024 Defendants/Cross-
Complainants served Requests for Admission, Set Two on All Bay Builders, Inc. On
February 6, 2024 Defendants/Cross-Complainants served Requests for Admission, Set
One on Charles Littlefield individually and dba “All Bay Builder” on February 6, 2024.
No responses have been received to any of the requests for admission.
On June 12, 2024 the instant motions were filed.
Counsel for the moving parties has not provided any authority upon which she relies for
the principle that a defaulted party can be compelled to respond to discovery served
more than 5 months after his or their defaults were taken. Once the clerk enters a
default in the court record, that defendant is no longer able to file a response or
otherwise participate in the case. It is unclear why discovery was not served on
defendants while they were still represented or before their defaults were taken. It is
equally unclear why defendants, after losing their rights to file pleadings or defend their
position, should be forced to respond to discovery.
All three motions are denied. Sanctions are denied.
Page 3 of 3
Ruling
ARAUJO vs GENERAL MOTORS, LLC
Jul 24, 2024 |
CVPS2305503
Demurrer on 1st Amended Complaint for
ARAUJO vs GENERAL
CVPS2305503 Breach of Contract/Warranty by GENERAL
MOTORS, LLC
MOTORS, LLC
Tentative Ruling: Overruled
Defendant to file their answer within 20 days of this order becoming final.
Plaintiff to provide notice pursuant to CCP 1019.5.
This is a lemon law case. On 3/27/2024, Plaintiffs filed their operative First Amended Complaint (“FAC”)
against GM, alleging (1) violation of Civ. Code § 1793.2(d), (2) violation of Civ. Code § 1793.2(b), (3)
violation of Civ. Code § 1793.2(a)(3), (4) breach of the implied warranty of merchantability, and (5)
fraudulent inducement – concealment.
GM now demurs to the fifth cause of action for fraudulent inducement – concealment on the grounds
that it fails to state facts relevant to the elements of the claim and fails to allege a transactional
relationship giving rise to a duty to disclose. It concurrently moves to strike the demand for punitive
damages from the FAC.
In opposition, Plaintiffs argue that their FAC contains all essential elements of fraudulent inducement
– concealment cause of action, and that a “transactional relationship” is not required under California
law for the manufacturer to have a duty to disclose. With respect to punitive damages, Plaintiffs argue
that they have sufficiently alleged GM’s oppression, fraud, and malice to support punitive damages,
which are available under the Song-Beverly Act.
In reply, GM reemphasizes that it had no duty to disclose to Plaintiffs and that Plaintiffs’ allegations in
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
court must grant the plaintiff leave to amend if there is a reasonable possibility that the defects can be
cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
5th Cause of Action – Fraudulent Inducement
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
United Business Bank vs. Lynne Bui
Jul 22, 2024 |
C23-02049
C23-02049
CASE NAME: UNITED BUSINESS BANK VS. LYNNE BUI
*HEARING ON MOTION FOR DISCOVERY COMPELLING DEFTKHLORIS BIOSCIENCES TO PROVIDE
FURTHER RESPONSE, PRODUCE ALL RESPONSIVE DOCS, PROVIDE PRIVILEGE LOG FILED BY
PLAINTIFF
FILED BY:
*TENTATIVE RULING:*
Pursuant to a prior notice of stay of proceedings filed by plaintiff, a stay was filed in this lawsuit on
November 30, 2023. The court is aware of no further action concerning this stay. As a result,
plaintiff’s motion is off calendar.
Ruling
ENRIQUEZ, HECTOR vs SPRUELL, JAMIKA
Jul 28, 2024 |
CV-24-003735
CV-24-003735 – ENRIQUEZ, HECTOR vs SPRUELL, JAMIKA – Defendant’s Motion for leave to File-Cross-Complaint - GRANTED, and unopposed.
The Court GRANTS Defendant’s unopposed motion for leave to file her cross-complaint. Defendant is ordered to file a copy of the proposed cross-complaint (attached as Exhibit 1 to the 6/27/24 Declaration of Megan D. Johnson) within five court days. The cross-complaint shall be served by August 30, 2024. Defendant is further ordered to submit a proposed order that comports with this ruling within five court days.
Due to the interruption of telephone service as a result of an outage, any party requesting a hearing must make the request via email to the court clerk. If V-Court is not available and an in-person appearance is not possible, appearance must be via Zoom. Sign-up information for Zoom will be available on the court’s website.
Preview
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019 EXHIBIT 9 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019 RICHARD PETERSON APRIL 21, 2010 1 3 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY 2 APPEARANCES: 3 KAREN SMITH and WILLIAM ) SMITH, ) 4 HUMPHREY, FARRINGTON & MCCLAIN, P.C. Plaintiffs, ) ) Case No. 5 Attorneys for Plaintiffs vs . ) 2-08-CV-130 6 221 West Lexington, Suite 400 ) BERJE, INC., et al., 7 Independence, Missouri 674051 ) ) 8 BY: STEVEN E. CRICK, ESQ. Defendants . > ) 9 10 VIDEOTAPED DEPOSITION OF c RICHARD PETERSON 11 WYATT, TARRANT & COMBS, LLP New York, New York 12 Attorneys for Defendant Elan Chemical Wednesday, April 21, 2010 13 Company 14 250 West Main Street, Suite 1600 15 Lexington, Kentucky 40507-1746 Reported by: TAMI H. TAKAHASHI, RPR, CSR 16 BY: SHARON L. GOLD, ESQ. JOB NO. 309516 17 18 19 REMINGER COMPANY, LPA 20 Attorneys for Defendant Citrus And Allied 21 Essences, Ltd. 22 525 Vine Street, Suite 1700 23 Cincinnati, Ohio 45202 24 BY: VINCENT P. ANTAKI, ESQ. 25 2 4 1 1 2 April 21,2010 2 REMINGER COMPANY, LPA 3 9:38 a.m. 3 Attorneys for Defendant Wild Flavors, 4 4 Inc. Videotaped Deposition of RICHARD 5 250 Grandview Drive, Suite 550 PETERSON, held at the offices of Hinshaw & 6 Ft. Mitchell, Kentucky 41017 Culbertson, 780 Third Avenue, New York, New 7 BY: MARK R. BUSH, ESQ. York, pursuant to Notice, before TAMI H. 8 - and - JtAKAHASHI, a Registered Professional Reporter 9 LOUIS D. PROIETTI, ESQ. 1 and Notary Public of the State of New York. 10 Attorney for Wild Flavors, Inc. 11 11 1261 Pacific Avenue 12 12 Erlanger, Kentucky 41018 13 13 14 14 15 15 HINSHAW & CULBERTSON LLP 16 16 Attorneys for Defendant Polarome 17 17 International, Inc. 18 18 222 N. LaSalle Street, Suite 300 19 19 Chicago, Illinois 60601 20 20 BY: DANIEL W. McGRATH, ESQ. 21 21 22 22 23 23 ALSO PRESENT: 24 24 LISA LIVOTE, Videographer 25 25 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019 RICHARD PETERSON APRIL 21, 2010 51 1 Peterson 2 anybody? Okay. We'll reserve reading 3 and signing. Thank you. 4 THE VI DEOGRAPHER : This concludes 5 today's deposition of Richard Peterson. 6 One videotape was used. We're going off 7 the record . The time is 10:33 a.m. 8 ( Time noted : 10:33 a.m.) 9 10 11 12 RICHARD PETERSON 13 14 Subscribed and sworn to before me 15 this day of , 2010 . 16 17 18 19 20 21 22 23 24 25 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 12/16/2019 RICHARD PETERSON APRIL 21, 2010 52 1 2 CERTIFICATE 3 STATE OF NEW YORK ) 4 : s s . 5 COUNTY OF NEW YORK ) 6 7 I, TAMI H. TAKAHASHI, a Notary 8 Public within and for the State of New 9 York, do hereby certify: 10 That RICHARD PETERSON, the witness 11 whose deposition is hereinbefore set 12 forth, was duly sworn by me and that 13 such deposition is a true record of the 14 testimony given by the witness. 15 I further certify that I am not 16 related to any of the parties to this 17 action by blood or marriage, and that I 18 am in no way interested in the outcome 19 of this matter. 20 IN WITNESS WHEREOF, I have hereunto 21 set my hand this 26th day of April 2010. 22 23 24 TAMI H. TAKAHASHI 25