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**** CASE NUMBER: 502024CA006387XXXAMB Div: AK ****
Filing # 202143892 E-Filed 07/09/2024 01:50:43 PM
FORM 1.997. CIVIL COVER SHEET
The civil cover sheet and the information contained in it neither replace nor supplement the filing
and service of pleadings or other documents as required by law. This form must be filed by the
plaintiff or petitioner with the Clerk of Court for the purpose of reporting uniform data pursuant
to section 25.075, Florida Statutes. (See instructions for completion.)
I. CASE STYLE
IN THE CIRCUIT/COUNTY COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH COUNTY, FLORIDA
The Centre of Boca Barwood Homeowners Assoc Inc
Plaintiff Case #
Judge
vs.
Global Crossing Contractor Corp, Yosvanys Landscaping Inc
Defendant
II. AMOUNT OF CLAIM
Please indicate the estimated amount of the claim, rounded to the nearest dollar. The estimated amount of
the claim is requested for data collection and clerical processing purposes only. The amount of the claim
shall not be used for any other purpose.
☐ $8,000 or less
☐ $8,001 - $30,000
☐ $30,001- $50,000
☐ $50,001- $75,000
☐ $75,001 - $100,000
☒ over $100,000.00
III. TYPE OF CASE (If the case fits more than one type of case, select the most
definitive category.) If the most descriptive label is a subcategory (is indented under a broader
category), place an x on both the main category and subcategory lines.
-1-
FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 07/09/2024 01:50:43 PM
CIRCUIT CIVIL
☐ Condominium
☒ Contracts and indebtedness
☐ Eminent domain
☐ Auto negligence
☐ Negligence—other
☐ Business governance
☐ Business torts
☐ Environmental/Toxic tort
☐ Third party indemnification
☐ Construction defect
☐ Mass tort
☐ Negligent security
☐ Nursing home negligence
☐ Premises liability—commercial
☐ Premises liability—residential
☐ Products liability
☐ Real Property/Mortgage foreclosure
☐ Commercial foreclosure
☐ Homestead residential foreclosure
☐ Non-homestead residential foreclosure
☐ Other real property actions
☐Professional malpractice
☐ Malpractice—business
☐ Malpractice—medical
☐ Malpractice—other professional
☐ Other
☐ Antitrust/Trade regulation
☐ Business transactions
☐ Constitutional challenge—statute or ordinance
☐ Constitutional challenge—proposed amendment
☐ Corporate trusts
☐ Discrimination—employment or other
☐ Insurance claims
☐ Intellectual property
☐ Libel/Slander
☐ Shareholder derivative action
☐ Securities litigation
☐ Trade secrets
☐ Trust litigation
COUNTY CIVIL
☐ Small Claims up to $8,000
☐ Civil
☐ Real property/Mortgage foreclosure
-2-
☐ Replevins
☐ Evictions
☐ Residential Evictions
☐ Non-residential Evictions
☐ Other civil (non-monetary)
COMPLEX BUSINESS COURT
This action is appropriate for assignment to Complex Business Court as delineated and mandated by the
Administrative Order. Yes ☐ No ☒
IV. REMEDIES SOUGHT (check all that apply):
☒ Monetary;
☐ Nonmonetary declaratory or injunctive relief;
☐ Punitive
V. NUMBER OF CAUSES OF ACTION: [ ]
(Specify)
4
VI. IS THIS CASE A CLASS ACTION LAWSUIT?
☐ yes
☒ no
VII. HAS NOTICE OF ANY KNOWN RELATED CASE BEEN FILED?
☒ no
☐ yes If “yes,” list all related cases by name, case number, and court.
VIII. IS JURY TRIAL DEMANDED IN COMPLAINT?
☐ yes
☒ no
IX. DOES THIS CASE INVOLVE ALLEGATIONS OF SEXUAL ABUSE?
☐ yes
☒ no
I CERTIFY that the information I have provided in this cover sheet is accurate to the best of
my knowledge and belief, and that I have read and will comply with the requirements of
Florida Rule of Judicial Administration 2.425.
Signature: s/ Kevin M Kennedy Fla. Bar # 59115
Attorney or party (Bar # if attorney)
Kevin M Kennedy 07/09/2024
(type or print name) Date
-3-
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in Palm Beach County
Ruling
MARTIN vs TENNYSON ELECTRIC, INC.
Jul 26, 2024 |
Civil Unlimited (Contract/Warranty Breach - Se...) |
22CV013333
22CV013333: MARTIN vs TENNYSON ELECTRIC, INC.
07/26/2024 Hearing on Motion for Order Motion for Order re: Settlement Award and
Dismissal in Department 1B
Tentative Ruling - 07/24/2024 Sandra Bean
The Motion for Order PLAINTIFFS NOTICE OF MOTION AND MOTION FOR ORDER
REGARDING SETTLEMENT AWARD AND DISMISSAL [CODE CIV. PROC., 998] filed by
Tyler Martin on 04/19/2024 is Denied.
Plaintiff Tyler Martin’s Motion for Order Regarding Settlement and Dismissal is as follows: the
Court finds the current 998 offer is invalid, and thus dismissal is DENIED.
On March 19, 2024, Plaintiff Tyler Martin accepted the following Offer under CCP § 998 as
made by Defendant Tennyson Electric, Inc.:
Pursuant to Section 998 of the California Code of Civil Procedure, Defendant
TENNYSON ELECTRIC, INC. (“Defendant”) hereby offers Plaintiff TYLER MARTIN
(“Plaintiff Martin”) $50,000, inclusive of attorney fees and costs, in exchange for a
dismissal with prejudice of this lawsuit as full and final settlement of all of his claims in
the above captioned action (the “Action”), expressly inclusive of any and all claims for
costs and attorneys’ fees, in exchange for the following upon the receipt of such funds:
(1) the execution of a release by Plaintiff Martin of all of his claims against Defendant in
the Action; and (2) the entry of a Request for Dismissal with prejudice of all of Plaintiff
Martin’s claims asserted in the operative Complaint as against Defendant in the Action in
their entirety.
This offer does not contemplate entry of a judgment of any kind against Defendant
TENNYSON ELECTRIC, INC. (Hartline v. Kaiser Foundation Hosp. (2005) 132
Cal.App.4th 458, 470 [“Although section 998 refers to entry of a judgment or award, an
offer that provides for the plaintiff’s dismissal of the action with prejudice is a valid form
of offer within section 998.”]. If this offer is not accepted within thirty (30) days of the
date of its service, as extended by operation of California Code of Civil Procedure section
1013 by virtue of its manner of service, it shall be deemed withdrawn, and may not be
given in evidence upon the trial of this matter.
Plaintiff Martin shall indicate an acceptance of the offer through his attorney’s signature
below, or through his attorney’s signature on a separate document indicating that the
offer is accepted.
(Escobedo Decl. ex. 4)
Further, on April 4, 2024, Counsel for Defendant sent a check for $50,000 to the Plaintiff.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV013333: MARTIN vs TENNYSON ELECTRIC, INC.
07/26/2024 Hearing on Motion for Order Motion for Order re: Settlement Award and
Dismissal in Department 1B
Plaintiff argues that the offer is clear, and the release must be limited to the terms of the offer
that which encompasses only “all of his claims against Defendant in the Action” but Defendant
seeks to add additional terms specifically Defendant seeks to include all claims that could have
been asserted and a waiver of Civil Code § 1542.
The Court finds that the terms of the 998 offer are ambiguous. Does the release of all Plaintiff’s
claims in this action include those asserted and those that could have been asserted but were
not? There was no proposed release attached to the offer and the parties do not mutually assent
to the meaning of the terms of the 998 offer. (See Valentino v. Elliott Sav-On Gas, Inc. (1988)
201 Cal.App.3d 692, 700-701 reh'g denied and opinion modified (June 23, 1988) [$15,000 offer
was conditioned on release of claims other than those being litigated: value of those claims was
uncertain, rendering $15,000 offer uncertain].)
The Court finds the terms of the 998 offer are too ambiguous to be enforced since there is no
mutual assent to a release and the signing of a release is a condition of this compromise. Thus,
the offer is uncertain and invalidated.
------
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? Find
your case in eCourt at https://eportal.alameda.courts.ca.gov/
using “Case Search” or “Calendar Search” (after you log in)
Select the Tentative Rulings Tab
Select "Click to Contest this Ruling"
Enter your name and briefly identify the issues you wish to argue.
Select "Proceed"
You must also notify the department via email (Dept1b@alameda.courts.ca.gov) and opposing
parties by no later than 4:00 PM, one court day before the scheduled hearing.
Please provide this information to any opposing parties.
PLEASE TAKE NOTICE THAT THE HEARING/CONFERENCE WILL BE IN-
PERSON WITH THE OPTION TO APPEAR REMOTELY.
COUNSEL AND PARTIES MAY APPEAR EITHER IN-PERSON IN DEPARTMENT 1B
AT RENE C. DAVIDSON COURTHOUSE OR BY REMOTELY THROUGH THE
ZOOM PLATFORM.
COUNSEL AND PARTIES WHO CHOOSE TO APPEAR REMOTELY MUST HAVE
AN APPROPRIATE INTERNET CONNECTION, A WORKING MICROPHONE, AND
FUNCTIONING CAMERA, OTHERWISE THE PARTY OR ATTORNEY MUST
APPEAR IN PERSON.
Department 1B
Meeting ID 16057295607
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV013333: MARTIN vs TENNYSON ELECTRIC, INC.
07/26/2024 Hearing on Motion for Order Motion for Order re: Settlement Award and
Dismissal in Department 1B
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Ruling
King, et al. vs. Tyner, et al.
Jul 25, 2024 |
23CV-0202922
KING, ET AL. VS. TYNER, ET AL.
Case Number: 23CV-0202922
This matter is on calendar for review regarding status of arbitration or dismissal. The Court is in receipt of a
status report in which Plaintiff reports that the arbitration scheduled for July has been rescheduled to August 6 th
and 8th. The case will be continued to Tuesday, September 3, 2024, at 9:00 am for review regarding status of
arbitration or dismissal. No appearance is necessary on today’s calendar.
Ruling
MORA vs FORD MOTOR COMPANY
Jul 22, 2024 |
CVRI2305266
Motion to Compel Defendant Fritts Ford
MORA vs FORD MOTOR to Respond to Plaintiff's Special
CVRI2305266
COMPANY Interrogatories, Set One by OCTAVIO
MORA, BARBARA MORA
Tentative Ruling: This matter was stayed as to Fritt’s Ford on 4/22/2024. As such, this motion is
off calendar.
Ruling
202100555658CUOE Christiane Lange Applegate vs. Seed Beauty LLC
Jul 22, 2024 |
Benjamin F. Coats
|
Motion to Approve Settlement Agreement Pursuant to the Private Attorneys General Act |
202100555658CUOE
SUPERIOR COURT OF CALIFORNIA
COUNTY OF VENTURA
Tentative Ruling
202100555658CUOE: Christiane Lange Applegate vs. Seed Beauty LLC
07/22/2024 in Department 43
Motion to Approve Settlement Agreement Pursuant to the Private Attorneys General Act
The morning calendar in courtroom 43 will normally begin at 8:45. Please arrive for your hearing
no later than 8:30 a.m. The door will be opened before the calendar is called.
The Court allows appearances by CourtCall and Zoom, but parties must both use the same platform
if appearing remotely. The court’s equipment is not capable of handling mixed remote
appearances. Counsel are expected to cooperate in this regard. Refer to the Courtroom 43 webpage
for more information about remote appearances.
If appearing by CourtCall, call in no later than 8:30 a.m. If you wish to appear by CourtCall, you
must make arrangements with CourtCall by 4:00 p.m. the court day before your scheduled hearing.
Requests for approval of a CourtCall appearance made on the morning of the hearing will not be
granted. No exceptions will be made.
For Zoom appearances, you must email the court at Courtroom43@ventura.courts.ca.gov with a
simultaneous copy to all other counsel/self-represented parties no later than 3:00 p.m. the court
day before the appearance. INCLUDE THE PHRASE "ZOOM APPEARANCE ON (DATE OF
HEARING)" IN THE SUBJECT LINE OF YOUR EMAIL. You will receive the login information
for your appearance in reply to your email. If appearing by Zoom, log into the hearing no later
than 8:30 a.m. The Court will transfer you to the meeting room when your matter is called. Do not
attempt to appear by Zoom without following these instructions.
With respect to the tentative ruling below, no notice of intent to appear is required. If you wish to
submit on the tentative ruling you can fax notice to Judge Coats's secretary, Ms. McIntyre at 805-
477-5894, stating that you submit on the tentative. Or, you may email
Courtroom43@ventura.courts.ca.gov with all counsel copied on the email. Do not call in lieu of
sending a fax or email. If you submit on the tentative without appearing and the opposing party
appears, the hearing will be conducted in your absence. If you are the moving party and do not
communicate to the Court that you submit on the tentative or you do not appear at the hearing, the
Court may deny your motion irrespective of the tentative.
Unless stated otherwise at the hearing, if a formal order is required but not signed at the hearing,
the prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a),
(b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with the
court. A "notice of ruling" in lieu of this procedure is not authorized.
Motion: Plaintiff’s Motion For Approval of Settlement Under Private Attorney General Act
(“PAGA”)
202100555658CUOE: Christiane Lange Applegate vs. Seed Beauty LLC
Tentative Ruling: At 9:43 a.m. on Thursday July 18, 20024, Plaintiff’s counsel filed a Joint Status
Report regarding the Monday July 22, 2024, hearing, stating:
“The Parties intend to proceed with the settlement approval hearing as scheduled. The
Parties are working on finalizing and obtaining signatures to the settlement agreement and
intend on filing the settlement agreement shortly.”
At 4:13pm on the same day, the Court received the declaration of Kawnporn “Mai” Tulyathan,
attaching, among other things, an unsigned “Joint Stipulation of Settlement and Release of PAGA
Claims.”
Neither submission (the Joint Status Report or the Tulyathan declaration) was timely filed or
served on the required parties. The Court intends to continue the hearing to August 12, 2024, so
that all parties, including the LWDA, are provided proper notice and all moving papers. It does
not appear that the LWDA was provided with any of the declarations accompanying the Motion.
Moreover, the Court cannot move forward with this Motion absent a fully-executed settlement
agreement. Absent a fully-executed agreement there is no enforceable agreement for the Court to
consider. Notably, as of June 6, 2024, the parties stated that they were “still continuing to negotiate
one remaining provision in the PAGA settlement agreement that remains unsettled,” and on July
18, 2024, the parties indicated that they were in the process of both finalizing and obtaining
signatures. The nature of the one provision is not articulated and there is no explanation for the
failure to obtain all signatures to the agreement. In short, there is no agreed upon settlement before
the Court and reaching the merits now would be premature.
Moving party is ordered to serve notice of the continuance.
Ruling
MARQUISES vs AMERICAN HONDA MOTOR COMPANY, INC.
Jul 26, 2024 |
Civil Unlimited (Contract/Warranty Breach - Se...) |
23CV040651
23CV040651: MARQUISES vs AMERICAN HONDA MOTOR COMPANY, INC.
07/26/2024 Hearing on Motion to Compel .; filed by ELEANOR A MARQUISES
(Plaintiff) in Department 520
Tentative Ruling - 07/23/2024 Julia Spain
The Motion to Compel PLAINTIFFS NOTICE OF MOTION AND MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL
DEFENDANTS COMPLIANCE WITH DEFENDANTS OWN RESPONSE TO PLAINTIFFS
REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AND DEMAND FOR
MANDATORY MONE filed by ELEANOR A MARQUISES on 06/12/2024 is Withdrawn.
Ruling
CLEMENTS, BOBBY vs ODAY, JEFF
Jul 22, 2024 |
CV-21-002417
CV-21-002417 – CLEMENTS, BOBBY vs ODAY, JEFF – Defendants’ Motion for Terminating and Monetary Sanctions and in the Alternative Evidentiary Sanctions – GRANTED, in part, Denied in part, unopposed.
The Court finds that Plaintiff’s failure to comply with the Court’s order of February 16, 2023, compelling Plaintiff’s responses to Defendant’s properly propounded discovery within fourteen (14) days, as well as Plaintiff’s failure to comply with the Court’s verbal admonishment in that regard at the Case Management Conference of October 30, 2023, constitutes a willful failure to comply with the Court’s orders that warrant the imposition of terminating sanctions against Plaintiff. (Code of Civil Procedure §§2023.010 and 2023.030; Department of Forestry & Fire Protection v. Howell (2017) 226 Cal.Rptr.3d 727, rehearing denied, review denied; Parker v. Wolters Kluwer United States, Inc. (2007), 149 Cal.App.4th 285; Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 6050.
Monetary Sanctions of attorney’s fees and costs in the sum of $1560.00 are hereby awarded against Plaintiff payable to Defendant’s Counsel, Aleshia M. White within thirty (30) days of service of this order on Plaintiff.
Ruling
GUERRA vs REYNA, et al.
Jul 23, 2024 |
Civil Unlimited (Fraud (no contract)) |
22CV021036
22CV021036: GUERRA vs REYNA, et al.
07/23/2024 Hearing on Motion for Judgment on the Pleadings in Department 22
Tentative Ruling - 07/17/2024 Brad Seligman
The Motion for Judgment on the Pleadings filed by Nancy Cole, Yolanda Reyna on 06/17/2024
is Granted.
Defendants Yolanda Reyna (“Reyna”) and Nancy Cole’s (“Cole”) (collectively “Defendants”)
Unopposed Motion for Judgment on the Pleadings is GRANTED in its entirety with leave to
amend because Plaintiff Gloria Guerra’s form complaint that checks boxes corresponding to
general negligence and fraud fails to allege material facts sufficient to support its conclusory
allegations that negligence and fraud took place. (Code Civ. Proc. §, 438, subd. (d).)
MOTION FOR JUDGMENT ON THE PLEADINGS – LEGAL STANDARD
A motion for judgment on the pleadings performs the same function as a general demurrer but is
made after the time for demurrer has expired. (Cloud v. Northrop Grumman Corp. (1998) 67
Cal.App.4th 995, 999.) Like a demurrer, in a motion for judgment on the pleadings, any defect
upon which a motion for judgment on the pleadings is based must appear on the face of the
pleadings or from a matter which may be judicially noticed. (Code Civ. Proc. §, 438, subd. (d).)
Where the complaint is defective, it ordinarily constitutes an abuse of discretion to sustain a
demurrer without leave to amend if there is a reasonable possibility that the defect can be cured
by amendment. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 970–971.)
ANALYSIS
Defendants’ unopposed motion for judgment on the pleadings is granted with leave to amend
because Plaintiff’s form complaint fails to provide a coherent narrative of facts to indicate what
each defendant did to support Plaintiff’s claims against them.
The form complaint attaches seven separate pages of attachments (all titled “Cause of Action -
General Negligence”) which each make various conclusory allegations regarding the distribution
of an inheritance and a property located at 1737 Ustick Road, Modesto, California. While it
remain unclear what actually happened due to the dearth of material facts alleged, it appears that
Reyna was the executor of the trust and Cole persuaded Reyna not to distribute some portion of
the inheritance to Plaintiff. Several conclusory statements regarding embezzlement, grand theft,
criminal fraud, greed, persuasion of the Rena (the executor) to sell her own home to hand over
her life savings and breach of fiduciary duties are alleged without much context. It therefore
remains unclear what actions were taken by each defendant that supports Plaintiff’s claims
against them and what those claims actually are. As Plaintiff’s Complaint fails to state facts
sufficient to state a cause of action for negligence or fraud, Defendants’ unopposed motion for
judgment on the pleadings with granted with leave to amend. (Code Civ. Proc. §, 438, subd. (d).)
In amending her Complaint, Plaintiff should identify the trust at issue (by date, name or
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV021036: GUERRA vs REYNA, et al.
07/23/2024 Hearing on Motion for Judgment on the Pleadings in Department 22
otherwise). In addition, although Plaintiff appears to have filed various declarations over the
course of this litigation, those declarations are not part of her Complaint. The Complaint itself
must state all material facts that Plaintiff claims are relevant to this case.
NEGLIGENCE
To state a cause of action for negligence, a plaintiff must allege material facts to show that:
1) Defendant owed plaintiff a legal duty,
2) Defendant breached that duty, and
3) Defendant’s breach proximately caused Plaintiff’s damages or injuries.
(Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)
FRAUD
To state a cause of action for fraud, a plaintiff must allege material facts to show that:
1) Defendant made a misrepresentation
2) Defendant knew that their representation was false
3) Defendant intended to defraud the plaintiff
4) Defendant induced the plaintiff’s reliance
5) Plaintiff’s reliance was justified, and
6) As a result of Plaintiff’s reliance, Plaintiff was damaged.
(Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
Additionally, the cause of action for fraud must state facts that “show how, when, where, to
whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at p.
645.)
With these guidelines in mind, Plaintiff is granted leave to amend. Plaintiff shall file her
amended pleading within ten (10) days of the date of this Order.
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”
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV021036: GUERRA vs REYNA, et al.
07/23/2024 Hearing on Motion for Judgment on the Pleadings in Department 22
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 (dept22@alameda.courts.ca.gov) 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.
Notice via BOTH eCourt AND email is required. The tentative ruling will become the ruling of
the court if no party contests the tentative ruling.
Ruling
SOUTHERN CALIFORNIA INJURED WORKERS, LLC, ET AL. VS AMIGO MANAGEMENT LLC, ET AL.
Jul 26, 2024 |
23SMCV03493
Case Number:
23SMCV03493
Hearing Date:
July 26, 2024
Dept:
M
CASE NAME: Southern
California Injured Workers LLC, v. Amigo Management
CASE NO.: 23SMCV03493
MOTION:
OSC
Re: Preliminary Injunction
HEARING DATE: 7/26/2024
Legal
Standard
Under Code of Civil Procedure
section 526(a), a preliminary injunction may be issued in the following cases:
1)
When it appears by the complaint that the plaintiff is entitled to the relief
demanded, and the relief, or any part thereof, consists in restraining the
commission or continuance of the act complained of, either for a limited period
or perpetually.
2)
When it appears by the complaint or affidavits that the commission or
continuance of some act during the litigation would produce waste, or great or
irreparable injury, to a party to the action.
3)
When it appears, during the litigation, that a party to the action is doing, or
threatens, or is about to do, or is procuring or suffering to be done, some act
in violation of the rights of another party to the action respecting the
subject of the action, and tending to render the judgment ineffectual.
4) When pecuniary compensation would
not afford adequate relief.
5)
Where it would be extremely difficult to ascertain the amount of compensation
which would afford adequate relief.
6)
Where the restraint is necessary to prevent a multiplicity of judicial
proceedings.
7) Where the obligation arises from
a trust.
In determining whether to issue a
preliminary injunction, the trial court considers two factors: 1) the
reasonable probability that the plaintiff will prevail on the merits at trial
(CCP §526(a)(1)); and 2) a balancing of the irreparable harm that the moving
party is likely to sustain if the injunction is denied compared to the harm
that the non-moving party is likely to suffer if the court grants a preliminary
injunction. (CCP §526(a)(2);
14859 Moorpark Homeowners Assn. v. VRT Corp.
(1998) 63 Cal.App.4th 1396, 1402.)
A preliminary injunction is an interim
remedy designed to maintain the status quo pending a decision on the
merits. (
MaJor
v.
Miraverde
Homeowners
Assn.
(1992) 7
Cal.App.4th 618, 623.) [A] cause of action must exist before injunctive
relief may be granted. (
Id
.
(citing
Shell Oil
Co. v. Richter
(1942) 52 Cal.App.2d 164, 168).)
The courts ruling on a preliminary
injunction is not an adjudication of the merits, is not a trial, and does not
require a statement of decision. (
Cohen v. Board of Supervisors
,
(1985) 40 Cal.3d 277, 286.) The judge is not required to state her reasons for
granting or denying a preliminary injunction; a cursory statement is
sufficient. (
City of Los Altos v. Barnes
, (1992) 3 Cal.App.4th
1193, 1198.) A proposed order must be presented to the judge for signature,
with any required undertaking, within one day after the preliminary injunction
is granted, or other time ordered by the judge. (CRC 3.1150(f).)
EVIDENTIARY ISSUES
Cross-Defendants objections to the
Marchant declaration are GRANTED as to nos. 17-24 (foundation, personal
knowledge and legal conclusion). The remainder of objections are OVERRULED.
Cross-Complainants objections to
the Tantuwaya declaration are ruled on as follows:
Sustained as to objections nos.
1 and 43.
Sustained in part as to no. 3,
as to the portion starting with who I later . . ..
Sustained in part as to no. 12,
as to the portion starting with In February of 2022 and in without my knowledge
and/or authority.
Sustained in part as to no. 44,
as to the portion starting with Also, a total of . . . and ending in December
31, 2022.
All other objections are
OVERRULED.
Cross-Complainants objections to
the supplemental Winthrop declaration are OVERRULED. The Court agrees that the attached documents
should have been part of a supplemental request for judicial notice. The Court also agrees that while the Court
may take judicial notice of the documents existence, it cannot take judicial
notice of any factual assertions therein.
Cross-Complainants objections to
the supplemental Marchant declaration are OVERRULED.
Cross-Complainants request for
judicial notice is granted. (Evid. Code § 452(d).)
Cross-Defendants request for
judicial notice is granted. (Evid. Code § 452(d).)
Analysis
Cross-Complainant Funding4Doctors LLC
("Funding") moves for a preliminary injunction, enjoining
Cross-Defendants Injured Worker Medical Group, LLC ("IWMG") and Dr. Vrijesh
S. Tantuwaya from disbursing and/or otherwise dissipating funds collected and
being collected on behalf of Funding pursuant to 30 Masters Receivables Advance
Agreements ("Agreements 1-30"). Specifically, they request the
following order:
(1) Cross-Defendants are ENJOINED
from taking any action whatsoever that will dissipate the funds collected on
account of the thirty (30) Masters Receivables Advance Agreements (Agreements
1-30) as set for in the Verified Cross-Complaint filed by Funding, as well as
the Cross-Complaint filed by IWMG, including, but not limited to, paying,
disbursing, distributing, or otherwise dissipating funds collected and being
collected by IWMG;
(2) Cross-Defendants are ORDERED to
provide Funding with an accounting of all funds collected on account of
Agreements 1-30 within fourteen (14) days of this Order, and to identify all
banks and/or financial institutions at which such funds are being held; and
(3) Cross-Defendants are ORDERED to
provide a copy of this Order by Certified Mail to any and all banks and
financial institutions at which such funds are being held.
Funding reasons that it will succeed
on the merits of their contract claims because the Agreements are admitted by
IWMG and personally guaranteed by Dr. Tantuwaya. Further, Funding will suffer great
and irreparable injury because Cross-Defendants may use and/or distribute the
amounts that are due under the Agreements, and by the time the case is over,
there may be no money left. (See
Dodge, Warren & Peters Ins. Svcs., Inc.
v. Riley
(2003) 105 Cal.App.4th 1414 [an injunction may be granted when a
party to the action is doing or threatens an act in violation of another
party's rights and tending to render the judgment ineffectual].)
Funding does not meet its burden to
show its irreparable harm, such that the balance of equities favors an
injunction. Funding cites no substantive evidence that IWMG or Dr. Tantuwaya are
dissipating the disputed funds rendering ineffectual any resulting judgment. Funding
merely asserts in conclusory terms that the funds are at risk of dissipation
by Cross-Defendants IWMG and Dr. Tantuwaya as they are attempting to use the
funds due to Funding for their own benefit to pay restitution to IWMG and Dr.
Tantuwaya's victims in the open and ongoing criminal investigation against Dr.
Tantuwaya. (Marchant Decl., ¶ 18.) Cross-Defendants deny this assertion.
(Krieger Decl., ¶¶ 4-6.) Indeed, restitution could not be owed in an open and
ongoing criminal investigation. IWMG and Dr. Tantuwaya also present evidence
that they continue to generate funds and receivables through their ongoing
medical practices. (Tantuwaya Decl., ¶ 122.) Any judgment against them would therefore
not be ineffectual. Funding therefore fails to demonstrate irreparable harm.
Accordingly, the motion is DENIED.