Preview
FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024
EXHIBIT B
FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024
AGREEMENT
STOCKPURCHASE
AGREEMENT
made this 20"'
day of January, 2023, the effective date of which
will be January 1, 2023 cancellable by either until that date by and between PAVE
YOURWAYBLACKTOPBYMAZZOLI, INC. in the person of ROBERTMAZZOLI,
sole shareholder, whose place of business is located at 9 Landings Lane, East Patchogue,
NewYork11772 ("MAZZOLI") hereinafter referred to as "Seller", and ALFRED
SIRICA and ANDREW
SCHIRO, whose place of business is located at #5 Marian Street,
Wading River, NewYork 11792, hereinafter referred to as the "Buyers".
WITNESSETH:
MAZZOLIis,
WHEREAS, as of this date, the owner of one hundred (100%)
percent of all of the right, title, and interest in a certain business incorporated under the
name of Pave Your Way Blacktop by Mazzoli, Inc. located at 9 Landings Lane, East
Patchogue, NewYork 11772, and that said ownership includes all right, title and interest
to the leasehold, accounts receivable, good will and
stock, equipment, other assets thereof
and are therefore a one hundred (100%) percent owner of said corporation; and
NOW,THEREFORE,in consideration of their mutual covenants, promises and
agreements, together with the sum of Ten and 00/100 ($10.00) Dollars and other good
and valuable consideration, each to the other in hand paid, the receipt of which is hereby
acknowledged, it is agreed by and between the parties as follows:
1. Seller agrees to sell and Buyers agree to purchase 100% of the Seller's right,
title, interest and stock in the corporation known as Pave Your Way Blacktop by
Mazzoli, Inc. as follows:
(a) Thirty-Five Thousand Dollars & 00/100 ($35,000.00) in hand paid to
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Robert Mazzoli under the following terms:
(b) $35,000.00 in cash or certified or Teller's bank check, payable to
the person of Robert Mazzoli on the date of of the transactions
closing contemplated.
© Promissory Note for One Hundred Twenty- Five Thousand Dollars
($125,000.00) over five (5) years at seven and a half per cent (7I/2 %). Total Purchase
Price is One Hundred Sixty Thousand Dollars & 00/100 ($160,000.00).
2. The current outstanding debt and obligations as stated in Schedule "A", if any,
including whatever interest would be collectible on said debt are obligations of the Seller
until they are retired. Schedule A also includes the list of all equipment and tools being
purchased with this stock purchase agreement.
(a) Buyers are purchasing the stock, trade name, telephone number and
client list of Seller.
(b) Any monies due for any projects in progress will belong to the Seller.
If Buyers complete those projects in progress, Buyers will be paid its costs to complete
said projects. Buyers will not be responsible for Seller's warranty work done prior to
date of closing. Seller will be entitled to accounts receivable prior to date of closing.
© In consideration for the above, included in the sale are three (3)
parking spaces behind the building and an area measuring 30' by 15'. Buyers agree to
pay a monthly rent of $900.00 for the yard in which the business is located.
(d) All equipment presently owned by Pave Your Way
Blacktop by
Mazzoli, Inc. is being purchased by the Buyers.
(e) The above terms are personally guaranteed by the buyers, Alfred
Sirica and Andrew Schiro.
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(f) The buyers Alfred Sirica and Andrew Schiro may assign without
penalty all the rights, title and interest they are purchasing to a corporate to be
entity
formed. In said instance the new corporation shall also guaranty the terms of the
Agreement.
3. The Seller represents and warrants:
(a) At the closing of the transactions contemplated hereby, that the interest
in the corporation
being sold has not been encumbered by the Seller and the
stock in said
corporation has not been sold or transferred to any other person or and
entity is free of all
chargeable liens except as otherwise provided herein.
(b) Confidentiality Agreement: Robert Mazzoli will not disclose the terms
of the stock purchase agreement and the
change in ownership to anyone without prior
written consent of Alfred Sirica and Andrew Schiro or a corporation to be formed.
© Robert Mazzoli will co-operate and be available as needed to answer
questions with respect to any
on-going business engaged in by Pave Your WayBlacktop
by Mazzoli, Inc.
4. The Buyers represent and warrant:
(a) That it has inspected the books and records of the
corporation and
agrees to accept the seller's interest in the corporation as it
presently exists and
acknowledges that no other representations or warranties, express or implied, have been
made to him with respect to the seller's interests in the corporation.
(b) That except for the representations
contained in this has
Agreement, it
not relied upon any other representation made by the Seller or anyone on its behalf in
entering into this Agreement.
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5. At the closing, the Seller will execute the following:
(a) A Bill of Sale which will convey and transfer to the Buyers all of the
assets and interests owned by the Seller free and clear of all liens, debts and
encumbrances, other than those described in this Agreement in Schedule "A" (the Bill of
Sale shall contain the usual affidavit of title.)
6. The parties represent and agree that no broker was used to bring about this
sale.
7. All notices required to be given by either party to the other pursuant to the
terms of this agreement shall be by regular mail to the last known address used at the
time of closing by each party or to their respective attorneys.
8. This sale is conditioned upon Seller assigning all of his right, title and interest
in any leaseholds, inventory, chattels and fixtures to the Buyers and those items
being
free and clear of all chargeable liens and encumbrances. Buyers are responsible for the
following debts of the corporation that will be listed on Schedule "A".
9. The seller shall remain liable for any line of credit that exists on the
presently
books and records of the corporation.
10. The closing shall take place at the offices of Robert Giusti, Esq., 42-40 Bell
Blvd., Suite 601, Bayside, NewYork 11361 three days after the approval from the New
York State Sales Tax Authority if approval is required.
11. This Agreement, the rights and obligations therein contained, shall inure to the
benefit of and be binding upon the respective personal representatives, successors and
assigned of the parties hereto.
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12. This Agreement contains and sets forth the entire agreement of the parties
hereto; no change, modification or amendment shall be effectively unless in
binding
writing, subscribed to by the parties hereto.
13. This Agreement shall be governed by and construed in accordance with the
laws of the State of NewYork, without regard to conflict of law principles.
14. All open permits will be taken over by Alfred Sirica and Andrew Schiro or a
corporation to be formed.
15. Pave Your Way Blacktop by Mazzoli, Inc. to receive its current collectibles
that are on its books and records as of the date of this agreement.
16. Pave Your Way Blacktop by Mazzoli, Inc. remain active
checking account to
for the purpose of paying bills and invoices.
outstanding
17. Current employees of Pave Your Way Blacktop by Mazzoli, Inc. will be
invited to join the new Buyers in their present capacity.
18. The Buyers shall assume as of the date of this agreement all liability, auto,
umbrella and disability insurance but said insurance will remain in force and effect..
IN WITNESSWHEREOF,
the parties hereto have hereunto set their hands and
seals first above written.
PAVEYOURWAY
BLACKTOPBYMAZZOLI, INC. by
ROBERTM OLI
BUYERS,ALF1 CAand ANDREW
SCHIROby:
ALFRE RICA
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024
ANDREW
SCHIRO
FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024
A
SCHEDULE
Equipment:
1. Two (2) Wet Saws for bricks fourteen
requiring (14) inch blades;
2. Handsaw7/12 inch;
3. Handsaw14 inch;
4. Walk-behind Saw;
5. Hand Tamper;
6. Two (2) ACHot Boxes;
7. ACGlue valued at approximately $1,500.00
8. Six - Eight (6-8) Propane Tanks;
9. Two (2) Torches;
10. Two (2) Stow Cement Mixers with nine (9) cubic feet drums;
11. Two (2) Bobcats;
12. Two (2) one-ton rollers (one is not in and
working order);
13. One (1) Dyna Pak Roller.
Vehicles:
1. 1970 Trailer General
#CD70008
2. 2005 GMC
#J8DESB16757902647
3. 1999 Dodge
#3B6MC3667XM554587
4. 2003 Ford Dump
#1FDAF56P93EC65345
5. 1998 Mack
#1M3AA15KXWW001235
6. 1988 Delta
#BL88531 (VIN)
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024
BILL OFSALE
KNOW
THAT, for valuable consideration, Pave Your WayBlacktop by
Mazzoli,
Inc. having an address at 9 Landings Lane, East Patehogue, NY 11772
does hereby grant, sell transfer and assign unto ("Seller"),
Alfred Sirica & Andrew Schiro
whose addresses are 75-24 175* Street, Fresh
Meadows, NY 11366 and 110
Overlook Drive, Mastic, NY 11950
("Purchasers"), all right, title and interest and
corporate stock of Seller and to the assets of the
business known as Pave Your Way
Blacktop by Mazzoli, Inc.
TO HAVEANDTOHOLDthe same unto Purchasers and their heirs, executors,
administrators, successors and assigns of Purchasers forever.
Seller represents and warrants to Purchasers that all of the
personal property
granted, bargained, sold and transferred to Purchasers
hereby is free and clear of
all liens, claims and encumbrances to the best of Seller's
knowledge.
Seller covenants and agrees not to
establish, open, be engaged in, nor in any
manner whatsoever become interested, or indirectly,
directly either as employee,
owner, partner, agent, shareholder, director, or otherwise, in any
officer, business,
trade or occupation similar to the business
engaged in by Pave Your Way
by Mazzoli, Inc. other than as an employee of Blacktop
Purchasers, for a period of five (5)
years from the date hereof.
IN WITNESSWHEREOF,
Seller has duly executed this Bill of Sale on January
20, 2023.
Pave Your WafBlacktop by Mazzoli, Inc.
By: üOBERTMAZZOLI
Appearing before methis 20th day of January, 2023
is a person known to be to Robert
Mazzoli who
has acknowledged to methat he has signed
the
Bill of Sale.
Notary Public
flobert F. Giusti
Notary Public, State of NewYork
No. 02G16035222
Qualified in Queens Co at
Commission Empires 09/2
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BILL OFSALE
Dated: January 1, 2023
Between
PAVEYOURWAYBLACKTOPBY MAZZOLI, INC.
Seller
And
ALFREDSIRICA & ANDREW
SCHIRO
Purchasers
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Ruling
BRANDON BROOKS VS GOL 5 PROPERTIES, LLC., A LIMITED LIABILITY COMPANY, ET AL.
Jul 26, 2024 |
23BBCV02845
Case Number:
23BBCV02845
Hearing Date:
July 26, 2024
Dept:
A LOS ANGELES SUPERIOR COURT
NORTH CENTRAL DISTRICT - BURBANK
DEPARTMENT A
TENTATIVE RULING
JULY 26, 2024
DEMURRER & MOTION TO STRIKE
Los Angeles Superior Court Case # 23BBCV02845
MP:
Hami Golbar, Fred Golbar, and Gol 5 Properties, LLC (Defendants)
RP:
Brandon Brooks
(Plaintiff)
NOTICE:
The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received.
Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.
ALLEGATIONS:
Brandon Brooks (Plaintiff) brings this action against Hami Golbar, Fred Golbar, and Gol 5 Properties, LLC (collectively Defendants)
associated with an apartment Plaintiff rented from Defendants (the Subject Property).
Plaintiff alleges Defendants failed to remedy a number of deficient conditions at the Subject Property.
The Court previously sustained Defendants demurrer to various causes of action and Plaintiff has subsequently filed a First Amended Complaint (FAC).
Plaintiffs FAC contains 12 causes of action for: (1) Breach of Contract, (2) Statutory Breach of the Warranty of Habitability (Civil Code §§1941, 1941.1, And 1942.4), (3) Violation of Civil Code §1942.4, (4) Violation of Civil Code §1942.5, (5) Tortious Breach of the Warranty of Habitability, (6) Violation of Business & Professions Code §17200, et seq., (7) Private Nuisance, (8) Negligence, (9) Intentional Infliction of Emotional Distress (IIED), (10) Breach of the Covenant of Good Faith & Fair Dealing, (11) Violation of LAMC 45.33, and (12) Violation of Civil Code § 789.3(a)
As before, Defendants now generally demur to the causes of action for Private Nuisance and IIED on grounds that Plaintiff fails to allege sufficient facts. Defendants also move to strike Plaintiffs request for punitive damages. Plaintiff opposes and Defendants reply.
ANALYSIS:
I.
LEGAL STANDARD
The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a);
Blank v. Kirwan
(1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (
Hahn v. Mirda
(2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (
Id.
)
A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (
Blank v. Kirwan, supra,
39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiffs allegations must be accepted as true for the purpose of ruling on the demurrer. (
Del E. Webb Corp. v. Structural Materials Co.
(1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (
Blank
,
supra
, 39 Cal. 3d at 318.)
Pursuant to Code of Civil Procedure (C.C.P.) §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (
Schifando v. City of Los Angeles
(2003) 31 Cal. 4th 1074, 1082.)
Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, [t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)
The court may also [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. § 436 (b).)
II.
MERITS
Meet and Confer
C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Mantovani Decl. ¶ 4.)
Facts
Plaintiffs FAC contains an overarching facts section, which is incorporated by reference into each of his 12 causes of action.
Plaintiff alleges that shortly after commencing tenancy, someone stole his parking spot (FAC. ¶ 30.) Plaintiff also alleges that his vehicle was vandalized after his parking spot was reassigned. (FAC ¶ 31.) Plaintiff alleges that the Subject Property had its gas service interrupted for a prolonged period of time for repairs. (FAC ¶ 34.) Plaintiff states that this interruption caused him to experience severe health symptoms because he could not use his fireplace and other gas appliances. (FAC ¶ 36.) Plaintiff alleges that the gas remains turned off for the building. (FAC ¶ 37.)
Plaintiff also alleges that Defendants did not provide the necessary accommodations after he was furloughed during the Covid-19 pandemic. (FAC ¶ 40.) Instead, Plaintiff alleges he was served with a 3-day notice to quit which was followed by two unlawful detainer suits. (FAC ¶ 39.)
Plaintiffs FAC also contains a list of alleged defective conditions of the Subject Property which include infestations, extensive water damage, and unsafe/unsanitary common areas. (FAC ¶ 28.) Plaintiff does not provide any further allegations as to the nature of these defects or when they occurred. (
Id
.) Plaintiff alleges that he has contacted Defendants with respect to these defects several times, but the problems persist. (FAC ¶ 43.) Plaintiff alleges he was forced to hire his own pest and mold inspection companies. (FAC ¶ 52.)
Seventh COA Private Nuisance Sustained without Leave to Amend
To establish an action for private nuisance, (1) the plaintiff must prove an interference with his use and enjoyment of his property; (2) the invasion of the plaintiffs interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage; (3) the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. (
Mendez v. Rancho Valencia Resort Partners, LLC
(2016) 3 Cal.App.5th 248, 262-263, [citations, italics, brackets, and quotation marks omitted].)
The Court previously sustained the demurrer to this cause of action with leave to amend. The Court relied on the reasoning in
El Escorial Owners Assn. v. DLC Plastering, Inc.
which held Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. (
El Escorial Owners Assn. v. DLC Plastering, Inc.
(2007) 154 Cal.App.4th 1337, 1349.) The Court also cited
Melton v. Boustred
,
which
found that a demurrer is properly sustained where a nuisance claim is merely a clone of the negligence claim. (
Melton v. Boustred
(2010) 183 Cal.App.4th 521, 542.)
The Court found Plaintiffs arguments that his cause of action was not duplicative to be unpersuasive. Plaintiff argued that his nuisance cause of action differed from his negligence cause of action because it alleged both intentional and negligent behavior of Defendants. This argument is virtually unchanged in Plaintiffs current opposition. Likewise, the Court remains unpersuaded. The Courts previous ruling made clear that Plaintiff must allege facts specific to his nuisance claim if he wished it to survive demurrer. A review of the FAC shows that no such allegations are present.
Plaintiff has added allegations that he had a possessory interest in the Subject Property. (FAC ¶ 125.) While this is an element of a private nuisance action, it does not speak to any specific behavior of Defendants in creating a nuisance.
Plaintiff also has added a list of alleged actions by the Defendant to this cause of action. (FAC ¶ 128.) They are as follows:
a.
Failing to address hazardous gas leaks and exposure risks;
b.
Allowing infestations of vermin and pests to persist;
c.
Neglecting to remedy mold, mildew, and extensive water damage;
d.
Failing to replace essential safety features, such as the fireplace pilot exchanger;
e.
Providing inadequate heating and improper ventilation;
f.
Ignoring ongoing plumbing issues and unsafe or unsanitary common areas;
g.
Failing to maintain the safety and security of the Plaintiff's designated parking space, resulting in vandalism of Plaintiff's vehicle.
(FAC ¶ 128.)
The Court does not find these allegations are specific to Plaintiffs nuisance claim, particularly in light of the allegations in the cause of action for Negligence. In that cause of action Plaintiff alleges the Defendant negligently allow the following conditions:
(1) mold and/or mildew; (2) water damage; (3) lack of effective waterproofing and weather protection; (4) lack of or decrease in unit services; (5) failure to timely replace the fireplace pilot exchanger; (6) inadequate heating devices; (7) gas exposure; (8) improper ventilation; (9) outgrown vegetation and unkept landscaping; and (10) inoperable central air condition, rendering the Subject Property substandard and untenantable as alleged herein.
(FAC ¶ 143.)
The Court notes that the vast majority of the conditions resulting from Defendants alleged negligence overlap with those resulting from Defendants alleged intentional behavior. All of the allegations in FAC paragraph 128 are attributable to either intentional acts or negligence and none of the allegations are accompanied by specific facts indicating intentional behavior. Further, to the extent that Plaintiffs negligence action does not explicitly mention the parking situation, the Court notes the FAC contains no allegations that this situation arose from Defendants intentional actions. Plaintiff merely alleges that he complained of the parking situation and Defendants response was markedly deficient. (FAC ¶ 31.)
The Court finds the additional allegations upon amendment are insufficient to set Plaintiffs claim of Private Nuisance apart from his claim of Negligence. As Plaintiff has had previous opportunity to allege additional facts speaking specifically to nuisance and has failed to do so, the Court finds it improbable that further amendment would cure this deficiency.
Accordingly, the demurrer to the cause of action for Private Nuisance is SUSTAINED without leave to amend.
Ninth COA IIED Sustained with Leave to Amend
The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (
Wilson v. Hynek
(2012) 207 Cal.App.4th 999, 1009, [citation and ellipses omitted].)
The Court previously sustained the demurrer to this cause of action, finding Plaintiff had not sufficiently pled intentional conduct. Specifically, the Court focused on the Defendants alleged refusal to remediate, given that courts have preciously found IIED claims proper in situations where a landlord has outright refused to remediate habitability issues. (
Burnett v. Chimney Sweep
(2004) 123 Cal.App.4th 1057.) The Court found that the facts alleged in the Complaint did not indicate a complete refusal to remediate. Plaintiff alleged he emailed about various conditions on October 20, 2021, July 14, 2022, August 26, 2022, April 12, 2023, and April 13, 2023. (Compl. ¶ 41.) At the same time, Plaintiff alleged that Defendants responses have been inconsistent and inadequate, allowing the infestation and unsanitary conditions to persist. (Compl. ¶ 52.) The Court found this latter allegation indicated that some remediation had taken place but that it was insufficient to remedy Plaintiffs concerns. The Court notes that such insufficient response was not akin to an intentional refusal to remediate.
Upon amendment Plaintiff has removed the above referenced allegation that Defendants response was inconsistent and inadequate. Instead, Plaintiff now pleads that,
&[d]espite Plaintiffs continual appeals regarding the aforementioned infestations and substandard conditions within the subject property, Defendants have completely ignored each of these requests&
(FAC ¶ 54.)
First the Court notes that there are no specific allegations as to which requests have been responded to and which have been ignored. From Plaintiffs FAC it is clear that he has complained on multiple occasions to Defendants about various conditions at the Subject Property. (See FAC ¶ 24, 45, 188.) Regardless, Plaintiff only alleges that Defendants were not responsive to an email in early April (FAC ¶ 45) and an email on April 27, 2023 (FAC ¶ 47.) This leaves the prior year and half of complaints, including emails specifically identified in paragraph 24, unaccounted for.
Further, there is a complete lack of particularity in identifying the subject of these complaints. It appears from Plaintiffs FAC that his complaints regarding the parking situation received some sort of response, as he alleges that Defendants response was markedly deficient. (FAC ¶ 29.) This indicates that Defendants were responding at least in some capacity to some of Plaintiffs complaints. Further, Plaintiffs allegations that Defendants were unresponsive to the April emails is equally indicative of negligence as it is intentional behavior. If Plaintiff wishes to state a claim for IIED based on Defendants intentional refusal to remediate, it is incumbent upon him to allege facts showing such refusal occurred.
Lastly, Plaintiffs substituting of inconsistent and inadequate for the allegation that he was completely ignored does little to assuage concerns regarding the sham pleading doctrine. The sham pleading doctrine generally prohibits a plaintiff from amending a complaint to omit harmful allegations from prior pleadings, without explanation. (
Deveny v. Entropin, Inc.
(2006) 139 Cal.App.4th 408, 425.) Under the sham pleading doctrine, [a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false. (
Cantu v. Resolution Trust Corporation
(1992) 4 Cal.App.4th 857, 877-878.) Here, Plaintiff has added no allegations which explain his previous contention that Defendants response was inadequate rather than an outright refusal to remediate. Plaintiffs amendment is not so much an addition of facts as a substituting of language.
Despite the above, the Court finds the FAC contains sufficient information such that the Court believes sufficient facts can be pled to support the claim if they exist. Although Plaintiff has failed to sufficiently articulate these as of yet, it remains possible he could do so. Accordingly, the demurrer to this cause of action is SUSTAINED with 20 days leave to amend.
Motion to Strike
Defendants seek to strike Plaintiffs request for punitive damages and all references to Defendants conduct as malicious oppressive despicable or outrageous. (See FAC ¶¶ 93, 99, 100, 101, 115, 167, 1280 182.) The Court notes that Plaintiffs punitive damages claims are, at least in part, derived from the IIED cause of action. Given the Court has sustained the demurrer to that cause of action with leave to amend, Defendants motion strike punitive damages is MOOT.
---
RULING
:
In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the courts records.
ORDER
Hami Golbar, Fred Golbar, and Gol 5 Properties, LLC
s Demurrer and Motion to Strike
came on regularly for hearing on July 26, 2024 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE DEMURRER TO THE SEVENTH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.
THE DEMURRER TO THE NINTH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND.
THE MOTION TO STRIKE IS MOOT.
CASE MANAGEMENT CONFERENCE SET FOR AUGUST 27, 2024 IS ADVANCED AND CONTINUED ON THE COURTS MOTION TO NOVEMBER 12, 2024 AT 9:00 AM
UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT GOL 5 TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: July 26, 2024 _______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
Ruling
The Golden 1 Credit Union vs. Carter, Jermaine et al
Aug 05, 2024 |
S-CV-0052507
S-CV-0052507 The Golden 1 Credit Union vs. Carter, Jermaine et al
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): Carter, Jermaine; The State of California
Ruling
TAJIRIAN vs AVIV CONSTRUCTION, INC, et al.
Jul 25, 2024 |
Civil Unlimited (Other Breach of Contract/Warr...) |
23CV055586
23CV055586: TAJIRIAN vs AVIV CONSTRUCTION, INC, et al.
07/25/2024 Hearing on Motion for Stay of Proceedings filed by Aviv Construction, Inc
(Defendant) in Department 17
Tentative Ruling - 07/24/2024 Frank Roesch
The Hearing on Motion for Stay of Proceedings filed by Aviv Construction, Inc (Defendant)
scheduled for 07/25/2024 is continued to 08/22/2024 at 03:30 PM in Department 17 at Rene C.
Davidson Courthouse .
Defendant Aviv Construction, Inc.’s (“Defendant”) Motion to Compel Arbitration and Stay
Proceedings is CONTINUED to Thursday August 22, 2024 at 3:30 p.m. in Department 17.
Defendant’s motion to compel arbitration and stay proceedings was served on Plaintiff Armen
Tajirian (“Plaintiff”) on July 18, 2024, which would have deprived Plaintiff of proper notice.
Moving and supporting papers are to be served on the opposing party sixteen (16) court days
prior to the date set for hearing. (Code Civ. Proc., § 1005, subd. (b).)
Defendant’s motion filed on July 18, 2024 for a hearing set for July 25, 2024 only provides
Plaintiff with four court days notice prior to the hearing and insufficient time to file a timely
opposition, which is to be filed nine (9) court days before the hearing date. (Code Civ. Proc., §
1005, subd. (b).)
Defendant is ordered to file and serve an amended notice of motion reflecting the new August
22, 2024 date that will provide Plaintiff with the proper statutorily required time to respond.
(Code Civ. Proc., § 1005, subd. (b).)
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV055586: TAJIRIAN vs AVIV CONSTRUCTION, INC, et al.
07/25/2024 Hearing on Motion for Stay of Proceedings filed by Aviv Construction, Inc
(Defendant) in Department 17
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
BOTH ECOURT AND EMAIL notices are required.
Ruling
LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
Jul 25, 2024 |
Civil Unlimited (Negligent Breach of Contract/...) |
24CV063297
24CV063297: LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
07/25/2024 Hearing on Demurrer to Plaintiffs’ First Amended Complaint; filed by Greg
Norris Insurance Agency, Inc. (Defendant) in Department 17
Tentative Ruling - 07/22/2024 Frank Roesch
The Demurrer filed by Greg Norris Insurance Agency, Inc. on 06/27/2024 is Overruled.
Defendant Greg Norris Insurance Agency, Inc. (“Norris”) Demurrer to Plaintiffs’ First Amended
Complaint (“FAC”), which raises only the issue of the statute of limitations, is OVERRULED.
(Code Civ. Proc., § 430.10, subd. (e).)
Here, factual allegations in the FAC, not in the original Complaint, state material facts to show
that Aguinaga did not suffer actual injury at the time that Truck, Insurance Exchange (“Truck”)
denied coverage of the incident on October 18, 2021, because no lawsuit had been filed against
her, she had not incurred any defense costs, and no judgment had been entered against her at that
time. (FAC ¶¶ 21-22.) Therefore, unlike the cited cases in which the denial of coverage triggers
accrual of a bad faith cause of action because the denial results in a discrete halt in payments or
an immediate change in the insured’s benefits, the denial in this case affected only prospective
events (as opposed to past or existing events), and therefore did not result in quantifiable
damages (which at the time of denial would have been uncertain at best) at the time of Truck’s
denials, before Aguinaga was sued.
The court previously sustained demurrers filed by various defendants on the basis of the statute
of limitations because the original Complaint did not allege material facts that clearly established
when Aguinaga suffered her injury. Likewise, the basis of Plaintiffs’ argument was not as clearly
articulated in their Opposition to demurrers to the original Complaint.
Here, by contrast, the FAC affirmatively states facts alleging Aguinaga suffered her injury as a
result of Truck’s denial and additionally alleges facts to demonstrate that no injury was sustained
prior to Plaintiffs’ lawsuit.
On demurrer, because the court must “accept as true even the most improbable alleged facts,
[and does] not concern [itself] with the plaintiff’s ability to prove its factual allegations” (Gray v.
Dignity Health (2021) 70 Cal.App.5th 225, 236, fn. 10), where the FAC alleges material facts to
indicate that Aguinaga did not suffer any injury at the time of Truck’s pre-suit denials of
coverage (FAC ¶¶ 21-22), and those facts, though omitted from the original Complaint do not
contradict with any prior allegations, Norris’ demurrer, which was brought solely on statute of
limitations grounds, must be overruled. (Code Civ. Proc., § 430.10, subd. (e).)
Demurrer – Legal Standard
A demurrer tests whether the complaint, unconnected with extraneous matters, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) On demurrer, the court accepts
properly pleaded facts as true, but not contentions or conclusions of law or fact. (Czajkowski v.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
24CV063297: LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
07/25/2024 Hearing on Demurrer to Plaintiffs’ First Amended Complaint; filed by Greg
Norris Insurance Agency, Inc. (Defendant) in Department 17
Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173.) “Because a demurrer tests only the
legal sufficiency of the pleading, we accept as true even the most improbable alleged facts, and
we do not concern ourselves with the plaintiff's ability to prove its factual allegations.” (Gray,
supra, 70 Cal.App.5th at p. 236, fn. 10.)
“[I]t is difficult for demurrers based on the statute of limitations to succeed because (1) trial and
appellate courts treat the demurrer as admitting all material facts properly pleaded and (2)
resolution of the statute of limitations issue can involve questions of fact. Furthermore, when the
relevant facts are not clear such that the cause of action might be, but is not necessarily, time-
barred, the demurrer will be overruled. [Citation.] Thus, for a demurrer based on the statute of
limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear
on the face of the complaint and matters judicially noticed.” (Schmier v. City of Berkeley (2022)
76 Cal.App.5th 549, 554 (internal citations omitted).)
“A demurrer based on a statute of limitations will not lie where the action may be, but is not
necessarily, barred.” (Raja Development Company v. Napa Sanitary District (2022) 85
Cal.App.5th 85, 92.) In order for the statute of limitations to be raised by demurrer, the defect
must clearly and affirmatively appear on the face of the complaint; it is not enough that the
complaint shows that the action may be barred. (Ibid.)
DISCUSSION
Norris demurrers to the FAC’s third cause of action for negligence on the sole basis that it is time
barred. (Code Civ. Proc., § 335.1.) Norris’ demurrer limits its argument on demurrer to the
statute of limitations. (Demurrer p. 2: 8-14.)
Here, the FAC (unlike the original Complaint) makes clear its allegation that no injury or
damage was suffered by Aguinaga prior to Plaintiffs’ filing of their Complaint. (FAC ¶ 21.) As
the FAC alleges that damages were first sustained by Aguinaga when Plaintiffs filed their lawsuit
against her on October 4, 2022 (FAC ¶ 22), the court must accept this fact as true. (Gray, supra,
70 Cal.App.5th at p. 236, fn. 10 [the court must accept as true even the most improbable alleged
facts, and does not concern itself with the plaintiff’s ability to prove its factual allegations]),
Norris’ demurrer, which raises only the statute of limitations and does not discuss the issues of
duty or breach, is overruled. (Code Civ. Proc., § 430.10, subd. (e); Demurrer p.2:8-14.)
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
24CV063297: LIANG, et al. vs TRUCK INSURANCE EXCHANGE, et al.
07/25/2024 Hearing on Demurrer to Plaintiffs’ First Amended Complaint; filed by Greg
Norris Insurance Agency, Inc. (Defendant) in Department 17
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
BOTH ECOURT AND EMAIL notices are required.
Ruling
ELIAS CHAHWAN VS. JOHN COMPAGNO ET AL
Jul 26, 2024 |
CGC23608344
Matter on the Law & Motion calendar for Friday, July 26, 2024, Line 9. DEFENDANT JOHN COMPAGNO's MOTION FOR SUMMARY JUDGMENT. Transferred to be heard in Department 501 at 9:30 a.m. on August 7, 2024. That department handles all real property cases per SF Local Rule 8.10A1. =(302/RCE)
Ruling
FIRST UTAH BANK VS JOHN RENZULLI, III, ET AL.
Jul 25, 2024 |
23TRCV02840
Case Number:
23TRCV02840
Hearing Date:
July 25, 2024
Dept:
8
Tentative Ruling¿
HEARING DATE: July 25, 2024
CASE NUMBER: 23TRCV02840
CASE NAME: First Utah Bank vs. Chicken Bone Effects, Inc., et al.
MOVING PARTY: Plaintiff, First Utah Bank
RESPONDING PARTY: Defendants, Chicken Bone Effects, Inc. and John Renzulli III
TRIAL DATE: Not Set.
MOTION: (1) Motion for Summary Judgment, or in the alternative, Summary Adjudication
Tentative Rulings: (1) GRANTED.
I. BACKGROUND
A. Factual On August 29, 2024, Plaintiff, First Utah Bank (Plaintiff) filed a complaint against Defendant, Chicken Bone Effects, Inc. (CBE) and John Renzulli III (Renzulli), and DOES 1 through 20. The complaint alleges causes of action for: (1) Breach of Contract; (2) Breach of Guaranty; (3) Common Count (Money Lent); and (4) Recovery of Personal Property. The complaint alleges that prior to the filing of this current action, SLIM Capital, LLC entered into written Equipment Finance Agreement (the Agreement) with CBE whereby SLIM Capital, LLC agreed to finance CBEs purchase of certain equipment from a vendor selected by CBE. (Complaint, ¶ 8.) In consideration therefore, Plaintiff contends that CBE obligated itself to make certain specified monthly payments to SLIM Capital, LLC, which obligation was absolute and unconditional. (Complaint, ¶ 8.) Plaintiff asserts that SLIM Capital, LLC subsequently assigned the Agreement to Plaintiff. (Complaint, ¶ 8.) Plaintiff notes that it remains the holder of the agreement and has performed all of the obligations which it was required to perform under the Agreement. (Complaint, ¶ 9.) Plaintiff alleges that CBE defaulted on the agreement when it failed to make the payments pursuant to the Agreement. (Complaint, ¶ 10.) As a result of CBEs default, Plaintiff alleges it accelerated the balance due under the Agreement and made demand on CBE for immediate payment of the accelerated balance. (Complaint, ¶ 11.) Plaintiff contends the accelerated balance due under the agreement at the time it filed its complaint was $73,972.77, plus interest thereon at the contract rate of 10% per annum from May 2, 2023. (Complaint, ¶ 12.) Plaintiff further asserts that the accelerated balance has not been paid. (Complaint, ¶ 12.) Plaintiff alleges that the agreement provides that CBE shall pay the attorneys fees and costs incurred by Plaintiff in enforcing its rights thereunder. (Complaint, ¶ 13.) Plaintiff now files a Motion for Summary Judgment or in the alternative, Motion for Summary Adjudication.
B. Procedural On April 18, 2024, Plaintiff filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. To date, no opposition has been filed. II. REQUEST FOR JUDICIAL NOTICE With Plaintiffs moving papers, Plaintiff also requested this Court take judicial notice of the following documents: 1. Complaint filed in this action by Plaintiff FIRST UTAH BANK on August 29, 2023. (Exhibit F to the Table of Exhibits.) 2. Answers to the Complaint filed in this action on January 10, 2024 by Defendants CHICKEN BONE EFFECTS, INC. and JOHN RENZULLI III. (Exhibit G to the Table of Exhibits.) This Court GRANTS this request and takes judicial notice of the above documents. III. ANALYSIS A. Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc.(2006) 39 Cal.4th 384, 389.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) B. Discussion Plaintiff moves for summary judgment on the grounds that it argues the first and second causes of action: (1) have been established by undisputed facts; (2) that there are no material issues of fact with respect to Defendants liability on Plaintiffs first and second causes of action tat remain to be determined; (3) that Defendants have not established any defense to Plaintiffs first and second causes of action; and (4) that Plaintiff is entitled to judgment against Defendants on the first and second causes of action in the principal amount of $52,240.41, pre-judgment interest in the amount of $6,544.56, attorneys fees to be determined by noticed motion, and court costs. Further, Plaintiff moves for summary judgment as to the third cause of action on the grounds that: (1) Plaintiffs third cause of action for common count of money lent against Defendants have been established by undisputed facts; (2) that no material issue of fact with respect to Defendants liability on Plaintiffs third cause of action remains to be determined; (3) that Defendants have not established any defense to Plaintiffs third cause of action; and (4) that Plaintiff is entitled to judgment against Defendants on the third cause of action in the principal amount of $52,240.41, pre-judgment interest in the amount of $6,544.56, attorneys fees to be determined by noticed motion, and court costs. First and Second Causes of Action for Breach of Contract and Breach of Guaranty Plaintiff first argues that undisputed facts establish Plaintiffs first and second causes of action. To state a cause of action for breach of contract, Plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Here, Plaintiff argues that each element of its first and second cause of action against Defendants CBE and Renzulli for breach of the Agreement and Guaranty are established by undisputed facts. First, Plaintiff argues that the Agreement and Guaranty were executed by Plaintiffs assignor and Defendants, which were later assigned to Plaintiff. (Plaintiffs SSUMF 1, 3.) In support of this, Plaintiff refers to the declaration of Don Rudy (Rudy Decl.), who is the VP, Asset Management Group and custodian of records for the finance agreement for First Utah Bank. (Rudy Decl., ¶¶ 1-2.) Rudy notes that on August 1, 2019, SLIM Capital, LLC entered into a written Equipment Finance Agreement No. 2586 (the Agreement) with Defendant, CBE whereby SLIM Capital, LLC agreed to finance CBEs purchase of certain equipment from a vendor selected by CBE. (Rudy Decl., ¶ 3.) Rudy contends Plaintiff subsequently changed the account number to 8313011606. (Rudy Decl., ¶ 3.) As consideration therefore, Rudy contends that CBE obligated itself to make certain specified monthly payments to SLIM Capital, LLC, which obligation was absolute and unconditional. (Rudy Decl., ¶ 3.) Rudy asserts that Plaintiff entered into an agreement to purchase the Agreement from SLIM Capital, LLC and the account number for that transaction is 8313011606. Rudy attached the copy of the Agreement as Exhibit A, and attached the assignment as Exhibit B. (Rudy Decl., ¶ 3, Exhibits A, B.) Based on the evidence presented by Plaintiff, the Court finds that Plaintiff has carried its initial burden in showing that a contract and assignment between the parties existed. Next, Plaintiff argues that it remains the holder of the Agreement and Guaranty and has performed all other obligations required of it. (Plaintiffs SSUMF 4, 5.) Rudys declaration asserts that Plaintiff has performed all things it was required to perform under the Agreement and Guaranty, and still remains the holder of the Agreement and Guaranty. (Rudy Decl., ¶¶ 6-7.) Plaintiffs Exhibit D contains the Continuing Guaranty of Indebtedness that appears to have the signature of Renzulli. The Court notes that the continuing guaranty of indebtedness appears to have been sent from Renzulli to SLIM Capital, LLC, not directly to Plaintiff. Third, Plaintiff contends that Defendants breached the Agreement and Guaranty by failing to make the payments that were required thereunder. (Plaintiffs SSUMF 6.) Rudys declaration states that CBE and Renzulli defaulted on the Agreement and Guaranty by failing to make the payment that was due on June 1, 2023, and all subsequent payments thereafter. (Rudy Decl., ¶ 8.) Plaintiff has included, in its Table of Exhibits, Exhibit E Statement of Account, which evidences the past due amounts in the account linked to Defendants. As such, this Court finds that Plaintiff has carried its initial burden that Defendants have breached the contract and guaranty. Lastly, this Court finds that Plaintiff has also carried its initial burden in showing that it has suffered damages as a result of the alleged breach. Based on the above, this Court tentatively holds that Plaintiff has carried its initial burden in showing that undisputed facts establish Plaintiffs first and second causes of action. This Court notes that after a moving party has carried its initial burden, the burden then shifts to the opposing party to show that disputed issues of material fact exist. However, Defendants here have failed to file an opposition brief. Thus, they have failed to carry their shifted burden. On these grounds, the Court tentatively GRANTS Plaintiffs motion for summary judgment. Defendants may present oral argument as to why they have failed to respond to the motion. Third Cause of Action for Money Lent Plaintiff also argues that the undisputed facts establish Plaintiffs Third Cause of Action for Money Lent. The required elements of a claim for money lent are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff. (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted.) Here, Plaintiff argues that each element of Plaintiffs third cause of action against Defendant, for money lent, is established by the undisputed facts. First, Plaintiff argues that Defendants became indebted after Plaintiff paid the vendor for the equipment that Defendants purchased. (Plaintiffs SSUMF 13.) Rudy contends that CBE and Renzulli became indebted to Plaintiff after Plaintiff paid the vendor for the equipment that CBE leased. (Rudy Decl., ¶¶ 3-4.) Plaintiff also attached the UCC-1 filing with the California Secretary of State, showing that Plaintiff perfected its security interest in the Equipment. (Exhibit C.) Next, Plaintiff argues that Defendants failed to pay Plaintiff for all amounts due as agreed for leasing the Equipment. (Plaintiffs SSUMF 14-16.) Rudy notes that as a result of Defendants default under the Agreement and Guaranty, the outstanding balance due is $52,240.41. (Rudy Decl., ¶ 9, Exhibit E.) Rudy further asserts that despite demand, no part of the outstanding balance has been paid and Defendants have failed to deliver the Equipment to Plaintiff. (Rudy Decl., ¶ 10.) Further, Rudy notes that interest on the balance from and after May 1, 2023, the date of the last payment, through July 25, 2024, the hearing date for the current motion, pursuant to the statutory rate of 10% totals $6,544.56. (Rudy Decl., ¶ 11, Exhibit E.) As such, Plaintiff contends that as of the motion hearing date, the total amount due, including interest, is $58,784.97. (Rudy Decl., ¶ 12, Exhibit E.) Based on the above, this Court tentatively holds that Plaintiff has carried its initial burden in showing that undisputed facts establish Plaintiffs third cause of action. Again, because this Court found that Plaintiff carried its burden, the burden would then shift to Defendants. However, because Defendants here have failed to file an opposition brief, they have failed to carry their shifted burden. On these grounds, the Court tentatively GRANTS Plaintiffs motion for summary judgment, subject to any oral argument by Defendants at the hearing as to why they have failed to respond to the motion. IV. CONCLUSION
For the foregoing reasons, this Courts tentative ruling is to GRANT Plaintiffs Motion for Summary Judgment. Plaintiff is ordered to give notice.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 22, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Preview
FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 EXHIBIT B FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 AGREEMENT STOCKPURCHASE AGREEMENT made this 20"' day of January, 2023, the effective date of which will be January 1, 2023 cancellable by either until that date by and between PAVE YOURWAYBLACKTOPBYMAZZOLI, INC. in the person of ROBERTMAZZOLI, sole shareholder, whose place of business is located at 9 Landings Lane, East Patchogue, NewYork11772 ("MAZZOLI") hereinafter referred to as "Seller", and ALFRED SIRICA and ANDREW SCHIRO, whose place of business is located at #5 Marian Street, Wading River, NewYork 11792, hereinafter referred to as the "Buyers". WITNESSETH: MAZZOLIis, WHEREAS, as of this date, the owner of one hundred (100%) percent of all of the right, title, and interest in a certain business incorporated under the name of Pave Your Way Blacktop by Mazzoli, Inc. located at 9 Landings Lane, East Patchogue, NewYork 11772, and that said ownership includes all right, title and interest to the leasehold, accounts receivable, good will and stock, equipment, other assets thereof and are therefore a one hundred (100%) percent owner of said corporation; and NOW,THEREFORE,in consideration of their mutual covenants, promises and agreements, together with the sum of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration, each to the other in hand paid, the receipt of which is hereby acknowledged, it is agreed by and between the parties as follows: 1. Seller agrees to sell and Buyers agree to purchase 100% of the Seller's right, title, interest and stock in the corporation known as Pave Your Way Blacktop by Mazzoli, Inc. as follows: (a) Thirty-Five Thousand Dollars & 00/100 ($35,000.00) in hand paid to FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 Robert Mazzoli under the following terms: (b) $35,000.00 in cash or certified or Teller's bank check, payable to the person of Robert Mazzoli on the date of of the transactions closing contemplated. © Promissory Note for One Hundred Twenty- Five Thousand Dollars ($125,000.00) over five (5) years at seven and a half per cent (7I/2 %). Total Purchase Price is One Hundred Sixty Thousand Dollars & 00/100 ($160,000.00). 2. The current outstanding debt and obligations as stated in Schedule "A", if any, including whatever interest would be collectible on said debt are obligations of the Seller until they are retired. Schedule A also includes the list of all equipment and tools being purchased with this stock purchase agreement. (a) Buyers are purchasing the stock, trade name, telephone number and client list of Seller. (b) Any monies due for any projects in progress will belong to the Seller. If Buyers complete those projects in progress, Buyers will be paid its costs to complete said projects. Buyers will not be responsible for Seller's warranty work done prior to date of closing. Seller will be entitled to accounts receivable prior to date of closing. © In consideration for the above, included in the sale are three (3) parking spaces behind the building and an area measuring 30' by 15'. Buyers agree to pay a monthly rent of $900.00 for the yard in which the business is located. (d) All equipment presently owned by Pave Your Way Blacktop by Mazzoli, Inc. is being purchased by the Buyers. (e) The above terms are personally guaranteed by the buyers, Alfred Sirica and Andrew Schiro. FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 (f) The buyers Alfred Sirica and Andrew Schiro may assign without penalty all the rights, title and interest they are purchasing to a corporate to be entity formed. In said instance the new corporation shall also guaranty the terms of the Agreement. 3. The Seller represents and warrants: (a) At the closing of the transactions contemplated hereby, that the interest in the corporation being sold has not been encumbered by the Seller and the stock in said corporation has not been sold or transferred to any other person or and entity is free of all chargeable liens except as otherwise provided herein. (b) Confidentiality Agreement: Robert Mazzoli will not disclose the terms of the stock purchase agreement and the change in ownership to anyone without prior written consent of Alfred Sirica and Andrew Schiro or a corporation to be formed. © Robert Mazzoli will co-operate and be available as needed to answer questions with respect to any on-going business engaged in by Pave Your WayBlacktop by Mazzoli, Inc. 4. The Buyers represent and warrant: (a) That it has inspected the books and records of the corporation and agrees to accept the seller's interest in the corporation as it presently exists and acknowledges that no other representations or warranties, express or implied, have been made to him with respect to the seller's interests in the corporation. (b) That except for the representations contained in this has Agreement, it not relied upon any other representation made by the Seller or anyone on its behalf in entering into this Agreement. FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 5. At the closing, the Seller will execute the following: (a) A Bill of Sale which will convey and transfer to the Buyers all of the assets and interests owned by the Seller free and clear of all liens, debts and encumbrances, other than those described in this Agreement in Schedule "A" (the Bill of Sale shall contain the usual affidavit of title.) 6. The parties represent and agree that no broker was used to bring about this sale. 7. All notices required to be given by either party to the other pursuant to the terms of this agreement shall be by regular mail to the last known address used at the time of closing by each party or to their respective attorneys. 8. This sale is conditioned upon Seller assigning all of his right, title and interest in any leaseholds, inventory, chattels and fixtures to the Buyers and those items being free and clear of all chargeable liens and encumbrances. Buyers are responsible for the following debts of the corporation that will be listed on Schedule "A". 9. The seller shall remain liable for any line of credit that exists on the presently books and records of the corporation. 10. The closing shall take place at the offices of Robert Giusti, Esq., 42-40 Bell Blvd., Suite 601, Bayside, NewYork 11361 three days after the approval from the New York State Sales Tax Authority if approval is required. 11. This Agreement, the rights and obligations therein contained, shall inure to the benefit of and be binding upon the respective personal representatives, successors and assigned of the parties hereto. FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 12. This Agreement contains and sets forth the entire agreement of the parties hereto; no change, modification or amendment shall be effectively unless in binding writing, subscribed to by the parties hereto. 13. This Agreement shall be governed by and construed in accordance with the laws of the State of NewYork, without regard to conflict of law principles. 14. All open permits will be taken over by Alfred Sirica and Andrew Schiro or a corporation to be formed. 15. Pave Your Way Blacktop by Mazzoli, Inc. to receive its current collectibles that are on its books and records as of the date of this agreement. 16. Pave Your Way Blacktop by Mazzoli, Inc. remain active checking account to for the purpose of paying bills and invoices. outstanding 17. Current employees of Pave Your Way Blacktop by Mazzoli, Inc. will be invited to join the new Buyers in their present capacity. 18. The Buyers shall assume as of the date of this agreement all liability, auto, umbrella and disability insurance but said insurance will remain in force and effect.. IN WITNESSWHEREOF, the parties hereto have hereunto set their hands and seals first above written. PAVEYOURWAY BLACKTOPBYMAZZOLI, INC. by ROBERTM OLI BUYERS,ALF1 CAand ANDREW SCHIROby: ALFRE RICA FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 ANDREW SCHIRO FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 A SCHEDULE Equipment: 1. Two (2) Wet Saws for bricks fourteen requiring (14) inch blades; 2. Handsaw7/12 inch; 3. Handsaw14 inch; 4. Walk-behind Saw; 5. Hand Tamper; 6. Two (2) ACHot Boxes; 7. ACGlue valued at approximately $1,500.00 8. Six - Eight (6-8) Propane Tanks; 9. Two (2) Torches; 10. Two (2) Stow Cement Mixers with nine (9) cubic feet drums; 11. Two (2) Bobcats; 12. Two (2) one-ton rollers (one is not in and working order); 13. One (1) Dyna Pak Roller. Vehicles: 1. 1970 Trailer General #CD70008 2. 2005 GMC #J8DESB16757902647 3. 1999 Dodge #3B6MC3667XM554587 4. 2003 Ford Dump #1FDAF56P93EC65345 5. 1998 Mack #1M3AA15KXWW001235 6. 1988 Delta #BL88531 (VIN) FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 BILL OFSALE KNOW THAT, for valuable consideration, Pave Your WayBlacktop by Mazzoli, Inc. having an address at 9 Landings Lane, East Patehogue, NY 11772 does hereby grant, sell transfer and assign unto ("Seller"), Alfred Sirica & Andrew Schiro whose addresses are 75-24 175* Street, Fresh Meadows, NY 11366 and 110 Overlook Drive, Mastic, NY 11950 ("Purchasers"), all right, title and interest and corporate stock of Seller and to the assets of the business known as Pave Your Way Blacktop by Mazzoli, Inc. TO HAVEANDTOHOLDthe same unto Purchasers and their heirs, executors, administrators, successors and assigns of Purchasers forever. Seller represents and warrants to Purchasers that all of the personal property granted, bargained, sold and transferred to Purchasers hereby is free and clear of all liens, claims and encumbrances to the best of Seller's knowledge. Seller covenants and agrees not to establish, open, be engaged in, nor in any manner whatsoever become interested, or indirectly, directly either as employee, owner, partner, agent, shareholder, director, or otherwise, in any officer, business, trade or occupation similar to the business engaged in by Pave Your Way by Mazzoli, Inc. other than as an employee of Blacktop Purchasers, for a period of five (5) years from the date hereof. IN WITNESSWHEREOF, Seller has duly executed this Bill of Sale on January 20, 2023. Pave Your WafBlacktop by Mazzoli, Inc. By: üOBERTMAZZOLI Appearing before methis 20th day of January, 2023 is a person known to be to Robert Mazzoli who has acknowledged to methat he has signed the Bill of Sale. Notary Public flobert F. Giusti Notary Public, State of NewYork No. 02G16035222 Qualified in Queens Co at Commission Empires 09/2 FILED: SUFFOLK COUNTY CLERK 07/08/2024 05:16 PM INDEX NO. 616473/2024 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/08/2024 BILL OFSALE Dated: January 1, 2023 Between PAVEYOURWAYBLACKTOPBY MAZZOLI, INC. Seller And ALFREDSIRICA & ANDREW SCHIRO Purchasers