Preview
FILED: KINGS COUNTY CLERK 11/06/2018 02:04 PM INDEX NO. 522349/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/06/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
KINGS CASH GROUP Index No.
)
)
Plaintiff, ) AFFIDAVIT OF
-against-
) CONFESSION OF JUDGMENT
JAMDSL ENTERPRISES, INC. dba BREATHE )
KLEEN AIR and COASTLINE HANDYMAN )
SERVICES
)
)
and )
JAMES EDWARD PUMPHREY )
)
Defendants. )
)
STATE OF _ ) ss:
)
COUNTY OF )
JAMES EDWARD PUMPHREY, being duly sworn upon my oath, deposes and says:
1. I am the above-captioned Defendant. I reside at 735 COMMERCE CENTER DR SUITE D
SEBASTIAN, FL 32958, and I have personal knowledge of all facts set forth herein.
2. I am also the president and member of JAMDSL ENTERPRISES, INC. dba
BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES located at 735 COMMERCE
CENTER DR SUITE D SEBASTIAN, FL 32958, and have fullauthority to enter into binding
agreements on behalf of this entity.
3. I acknowledge that this Confession of Judgment has been executed with the intent to
waive any and allrights that I may have to appear in any action and defend same, to notice of entry or
intended entry of Judgment, to the domestication of such Judgment in any other jurisdiction or county.
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4. I have had the to consult with an this Confession of
opportunity attorney regarding
Judgment and have either done so to satisfaction or and declined to do so.
my voluntarily knowingly
5. This Affidavit of Confession is for a debt due to Plaintiff from the
justly arising
Plaintiff's purchase of receivables of JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR
and COASTLINE HANDYMAN SERVICES. Additionally, JAMES EDWARD PUMPHREY agreed
to personally guarantee the debt in the event JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN
AIR and COASTLINE HANDYMAN SERVICES defaults.
6. JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE
HANDYMAN SERVICES agreed to pay Plaintiff the principal sum of $58,220.00 pursuant to the
merchant agreement as follows: 15% of daily deposits estimated at $486.00 a day until fully paid.
7. JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE
HANDYMAN SERVICES agreed that in the event itwas in default under the terms of the Merchant
Agreement as described above, itwould confess judgement in the Supreme Court of the State of New
York, County of New York, the Supreme Court of the State of New York, County of Orange, the
Supreme Court of the State of New York, County of Erie, Supreme Court of the State of New York,
County of Kings, the Supreme Court of the State of New York, County of Ontario or in any County in
the State where I reside in the amount of $58,220.00 less any payments made hereunder.
8. The Confession of Judgment isfor a debtjustly due toPlaintiff arising from the Plaintiff's
purchase of JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE
HANDYMAN SERVICES's receivables wherein JAMDSL ENTERPRISES, INC. dba BREATHE
KLEEN AIR and COASTLINE HANDYMAN SERVICES agreed to repay certain sums to the
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Plaintiff in the event of default. Additionally, JAMES EDWARD PUMPHREY agreed to personally
guarantee the debt in the event of default.
9. JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE
HANDYMAN SERVICES and JAMES EDWARD PUMPHREY hereby confess judgment and
authorize entry of Judgment in the Supreme Court of the State of New York, County of New York, the
Supreme Court of the State of New York, County of Orange, the Supreme Court of the State of New
York, County of Erie, Supreme Court of the State of New York, County of Kings, the Supreme Court of
the State ofNew York, County of Kings, the Supreme Court ofthe State of New York, County of Ontario
or in any County in the State where I reside, and in favor of Plaintiff in the sum of $58,220.00 less any
payments made hereunder, plus simple interest thereon at the annual rate of nine (9%) per annum from
the date of default until full repayment, plus all costs incurred in connection with the enforcement of the
Agreement, including attorney's fees in the amount of 33 1/3% plus costs of disbursements.
JAMES EDWARD MP
mdividually and on l>ehalf o AMDSL
ENTERPRISES, INC. dba BREATHE
KLEEN AIR and COASTLINE
HANDYMAN SER'/ICES
STATE OF )
COUNTY OF )
On th o 2018 before me, the undersigned, personally appeared
day
JAMES EDWARD PUMPHREY, p rsonally known to me or proved to me on the basis of
evi ence to be the individual whose name is subscribed to the within instrument and
satisfactory
acknowledged to me that he executed the same in his capacity and that by his signature on the
the or the person on behalf of whom the individual acted, executed the
instrument, individual,
instrument.
KEU.YM BECKERT
MYCOiviMi55iGN
#GG159975
EXPIRES:
NOV14,2021
Bondedthrough1stStateInsurance N TAR PUBLIC
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Index No. Year RJI No. Hon.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
KINGS CASH GROUP
Plaintiff,
-against-
JAMDSL ENTERPRISES, INC. DBA BREATHE KLEEN AIR AND COASTLINE HANYDMAN SERVICES and
JAMES EDWARD PUMPHREY
Defendants
AFFIDAVIT OF CONFESSION OF JUDGMENT
Ariel Bouskila, Esq.
Berkovitch & Bouskila, PLLC
Attorney for Plaintiff
Office and Post Office Address, Telephone
5 Hanover Sq. Suite 2102
New York, New York 10004
United States
Phone:(212) 433-2298
Fax:(347)331-0552
Service of a copy of the within is hereby admitted.
Dated,
Attorney(s) for
Please take notice
Notice of Entry
that the within is a (certified) true copy of a
duly entered in the office of the clerk of the within name court on
Notice of settlement
that an order of which the within is a true copy will be presented for
settlement to the HON. one of the
judges of the within named court, at
on at
Dated, Yours, etc.
Attorney(s) for
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Ruling
FISCUS vs. PATTERSON, et al.
Jul 10, 2024 |
CVCV22-0199210
FISCUS VS. PATTERSON, ET AL.
Case Number: CVCV22-0199210
Tentative Ruling on Motion to Continue Trial Date: This matter involves multiple parties and Cross-
Complaints. Plaintiff is Paula Fiscus. Defendant/Cross-Defendants/Cross-Complainants Gregory G. Gonzales
and Marcia J. Gonzales, Trustees of the Greg and Marcia Gonzales Family 2014 Revocable Trust will be referred
to as the Gonzales Defendants. James Patterson and Patterson Landscape/Yard Manicurist Agency will be
referred to as the Patterson Defendants. The Gonzales Defendants have filed a Motion to Continue the presently
set August 20, 2024, trial date. The Patterson Defendants have joined the motion. Plaintiff has opposed the
motion. Defendant American Contractors Indemnity Company has not filed anything related to the motion and
did not attend the ex parte hearing on June 27, 2024, at which time was shortened to hear the motion today instead
of July 22, 2024, as originally noticed. There is no evidence that the Gonzales Defendants provided notice of
today’s hearing to Defendant American Contractors Indemnity Company. Cross-Defendant Mark Behnke
Construction has also not filed anything related to the motion but did attend the ex parte hearing and is therefore
aware of today’s hearing.
Merits. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and
their counsel must regard the date set for trial as certain.” CRC 3.1332(a). “Although continuances of trials are
disfavored, each request for a continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the continuance.” CRC 3.1332(c).
Circumstances that may indicate good cause are:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other
excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the
substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial;
or
(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for
trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not
ready for trial.
CRC 3.1332(c).
When considering whether to grant a motion to continue, there are several factors that the Court must consider
including:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any
party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or
application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the
need for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or
by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.
CRC 3.1332(d).
The reasons presented by the Gonzales Defendants to continue the trial are that trial counsel has a conflicting trial
schedule and because Marcia Gonzales’s son is getting married the week of trial. In the moving papers, the
Gonzales Defendants note that the wedding date was set prior to the Court setting the Augst 20, 2024 trial date.
The reasons for the Patterson Defendants joining the motion are because counsel has a conflicting trial schedule,
counsel is moving homes in late August, and because the Pattersons have a prepaid vacation from August 26-
September 6, 2024. It is not clear whether the Pattersons’ vacation was set and prepaid when the Court set the
trial date of if the Pattersons planned it after the trial date was set. Plaintiff opposes the continuance on the grounds
that Defendants have failed to show good cause for the continuance, and because Plaintiff will be prejudiced by
a continuance. The prejudice alleged is that a later trial would not allow time for necessary remediation of the
landscaping issues before the next rainy reason. These issues have resulted in significant erosion and flooding.
Plaintiff also argues that the parties stipulated to the August 20, 2024, trial date and all agreed that no further
continuances would be granted absent stipulation. While this agreement did not make it into the Court’s Order
dated April 10, 2024 (which was submitted by the Patterson Defendants), it is clear from the Stipulation that the
parties did reach such a stipulation.
Conflicting trial schedules do not automatically create good cause to continue a trial. Trial counsel regularly have
multiple trials set for the same week. Any attorney who practices in civil law is well aware that not every trial set
actually goes forward as scheduled. No good cause has been presented in that regard. As to the wedding, it
appears the counsel for the Gonzales Defendants did not check with their client prior to agreeing to a trial date.
Had they checked, surely Ms. Gonzales would have pointed out that her son was getting married that week. The
unavailability of Ms. Gonzales due to her son’s wedding may constitute an excusable circumstance under CRC
3.1332(c)(2). Similarly, the Patterson’s vacation could also be such a circumstance, depending on when it was
scheduled.
Regarding the CRC 3.1332(d) factors, the trial date is one month and twelve days away. Trial has been continued
twice before. The first was by stipulation on October 13, 2022. The second was by stipulation on April 9, 2024,
as discussed above. The Gonzales Defendants have requested a continuance to November of 2024 while the
Patterson Defendants have requested 45-60 days. The only alternative means to address the problem that gave
rise to the motion or application for a continuance would be potentially taking witnesses out of order at trial.
Plaintiff may be prejudiced by the continuance. The matter is not entitled to preferential trial setting. Regarding
the Court’s calendar, one of the two civil trial courts will be dark on the currently set date of August 20, 2024,
which reduces the chance that this matter will be assigned to a courtroom for trial. Counsel is not currently
engaged in another trial that causes a conflict and only provides evidence that there are other trials that might
affect counsel’s availability. There is no stipulation for a continuance. The parties previously agreed that no
further continuances would occur absent a stipulation.
Regarding the interests of justice, the Court is in a position of having to weigh how much counsel’s failure to
consult with their clients regarding their schedules should be permitted to affect their client on a personal level.
It is clear that counsel should have done a better job to make sure that the agreed upon trial date worked for all
parties, and not just counsel. This is particularly so when the parties explicitly stipulated that no further
continuances would take place. However, the Court does not feel that it is in the interest of justice to punish Ms.
Gonzales by potentially preventing her from participating in her son’s wedding based on counsel’s failure to
communicate properly. As to the Patterson vacation, it is unclear whether this vacation was set at the time the
trial was set or if the Pattersons scheduled their vacation later. However, the Court does understand the need for
the Pattersons to be present for the trial to present their testimony.
On balance, the Court finds that granting of a short continuance would be in the interest of justice. The Pattersons’
vacation lasts until September 6, 2024. Therefore, the Court intends to continue the trial to Tuesday, September
10, 2024. If this trial date does not work for Plaintiff, the Court will entertain the first available date for Plaintiff.
Should the trial be continued, all discovery deadlines will flow from the new trial date.
However, the Court notes that Defendant American Contractors Indemnity Company was not provided with
notice of today’s hearing. Absent an appearance by Defendant American Contractors Indemnity Company, the
Court will continue today’s hearing to July 22, 2024, at 8:30 a.m. in Department 63 as that is the date that was
originally noticed.
Ruling
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC. VS AIR BOY EXPRESS, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
22STCV17241
Case Number:
22STCV17241
Hearing Date:
July 9, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
TOYOTA INDUSTRIES COMMERCIAL FINANCE INC.,
vs.
AIR BOY EXPRESS, INC., et al.
Case No.:
22STCV17241
Hearing Date:
July 9, 2024
Plaintiff Toyota Industries Commercial Finance, Inc.s
unopposed
motion to amend the judgment entered on August 25, 2023, is granted.
Plaintiff Toyota Industries Commercial Finance, Inc. (Toyota) (Plaintiff) moves
unopposed
for this Court to amend the judgment in this matter entered on August 25, 2023, against Defendants
Kil H Choi aka Kil Han Choi
and
Air Boy Express, Inc.
(collectively Defendants) to remove the name of Air Boy Express, Inc., erroneously included in the Judgment as a Plaintiff on line 5.
(Notice of Motion, pg. 1; C.C.P. §473(d).)
Background
On August 25, 2023, the court granted Plaintiffs default judgment against Defendants.
Plaintiff filed multiple default judgment packets to the Court, which necessitated this Courts line edit to include
the name of Air Boy Express, Inc.
on the judgment listing Kil H Choi aka Kil Han Choi according to the one judgment rule.
However, this Court erroneously entered the name of Air Boy Express, Inc. as a Plaintiff instead of as a Defendant.
Plaintiff filed the instant motion on March 13, 2024.
As of the date of this hearing no opposition has been filed.
Motion to Amend Judgment
Legal Standard
Once a judgment is entered, trial courts lose jurisdiction to set aside or amend the judgment except in accordance with statutory procedures.
(
APRI
Insurance Co. v. Superior Court
(1999) 76 Cal.App.4th 176, 182;
Rochin v. Pat
Johnson Manufacturing Co.
(1998) 67 Cal.App.4th 1228, 1238).
However, [t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (C.C.P. §473(d).)
Discussion
Plaintiffs motion to amend the clerical error in the judgment to remove the name of
Air Boy Express, Inc.
from line 5 as a Plaintiff and include the name of
Air Boy Express, Inc.
as a Defendant is granted.
Here, the Court made an error by placing the name of
Air Boy Express, Inc.
on the Judgment in the wrong location.
Accordingly, Plaintiffs
unopposed
motion is granted.
Conclusion
Plaintiffs
unopposed
motion to amend the judgment to remove the clerical error listing Defendant
Air Boy Express, Inc. as a Plaintiff and add the name Air Boy Express, Inc. as a Defendant
is granted.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
DONALD L. CRAWFORD SR. VS VERIZON COMMUNICATIONS, INC., ET AL.
Jul 10, 2024 |
24TRCV01439
Case Number:
24TRCV01439
Hearing Date:
July 10, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
DONALD L. CRAWFORD SR.,
Plaintiff,
Case No.:
24TRCV01439
vs.
RULING
VERIZON COMMUNICATIONS, INC., et al.,
Defendant.
Hearing Date:
July 10, 2024
Moving Parties:
Defendant Cellco Partnership dba Verizon Wireless (joinder by Walmart Inc.)
Responding Party:
Plaintiff Donald L. Crawford Sr.
Motion to Compel Arbitration
The Court considered the moving papers and joinder, late-filed opposition, and reply papers that was filed before the late-filed opposition.
RULING
The motion is GRANTED and the case is STAYED.
Request for judicial notice by Defendant Cellco Partnership is DENIED.
BACKGROUND
On August 30, 2024, plaintiff Donald L. Crawford Sr. (self-represented) filed a complaint against defendants Verizon Communications, Inc., Walmart, Inc., and Samsung Electronics of America, Inc. for breach of contract, products liability, and intentional tort.
LEGAL AUTHORITY
Under CCP § 1281, a written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract.
Under CCP § 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: . . .
(b) Grounds exist for rescission of the agreement. . . .
[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.
Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.
If the party opposing the petition raises a defense to enforcementeither fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see §1281.2(a), (b))that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.
Rosenthal v. Great Western Fin. Securities Corp.
(1996) 14 Cal. 4th 394, 413.
Petitions to compel arbitration are summary proceedings in which the court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence.
Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal. 4th 951, 972.
Unlike a ruling on a motion for summary judgment, the Court is charged with resolving any factually disputed issues unless there is no evidentiary support for the claims of the party opposing the petition.
Id.
at 973.
DISCUSSION
Defendant Cellco Parnership dba Verizon Wireless (erroneously sued as Verizon Communications, Inc.) requests an order compelling plaintiff to binding arbitration and to stay the proceeding.
Defendant Walmart Inc. filed a joinder.
In the complaint, plaintiff alleges that on March 15, 2024, plaintiff and defendant Verizon entered into a written contract.
Plaintiff transferred his cell phone from Consumer Cellular to Verizon and received a supposedly new Samsung A-15 phone for signing up for the service.
The monthly service charge was $65 to be deducted from plaintiffs checking account.
Verizon billed plaintiff $287 the first month.
The phone was not brand new.
It was refurbished from a prior defect.
The service was to come with complete customer service.
The phone began to malfunction almost immediately.
Voicemail could not be set up; the phone jumped to mute or airplane mode without plaintiffs knowledge; and it would shut down for hours citing overheating.
It took hours and sometimes days before the phone would come back online.
Verizon techs could not fix it and recommended a replacement device.
Plaintiff has stilnot received the replacement phone.
Plaintiff suffered damages because he had no working phone and was forced to purchase a Tracphone with a different phone number.
Plaintiffs business line is disabled as well.
Plaintiff was forced to go to a third carrier, Metro PCS by T Mobile.
Plaintiff paid for service beginning April 20, 2024, but cannot use the service because Verizon locked the network despite warning from the FCC to release the line to Metro.
Existence of an agreement to arbitrate
As stated in
Cione v. Foresters Equity Services, Inc.
(1997) 58 Cal. App. 4th 625, 634 The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract.
There is no public policy favoring arbitration of disputes that the parties have not agreed to arbitrate.
Lopez v. Charles Schwab & Co., Inc.
(2004) 118 Cal. App. 4th 1224, 1229.
Defendant Verizon Wireless argues that plaintiff agreed to resolve this dispute with Verizon Wireless through binding arbitration.
Defendant explains that on March 15, 2024, plaintiff opened a Verizon Wireless cellular service account for a mobile phone number ending in -8792.
In connection with opening the account, plaintiff executed a Service Summary.
Joseph Ninete decl., Exh. A.
The Service Summary, which references the Verizon Wireless Customer Agreement, states, in part in bold:
I agree to the VZW Customer Agreement (CA), including settlement of disputes by arbitration instead of jury trial, as well as the terms of the plan and optional services I have chosen.
I am aware that I can view the CA anytime at verizonwireless.com.
It also states on another page:
I have read and agree to the Verizon Customer agreement (CA) including settlement of dispute by arbitration instead of a jury trial . . . .
Defendant further contends that plaintiff executed an Installment Loan Agreement/Security Agreement (Payment Agreement) with Verizon Wireless for the purchase of a Galaxy A15.
Ninete decl., Exh. B.
The Payment Agreement incorporates the Customer Agreement by reference, including its arbitration provision.
The Payment Agreement also states:
Additionally, any disputes under this device payment agreement (including, without limitation, any disputes against the Seller and/or Verizon Wireless) shall be resolved in accordance with the dispute resolution provisions in your Customer Service Agreement . . . which terms are incorporated by reference.
Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .
The Customer Agreement states in part, in bold capitalized letters, You and Verizon both agree to resolve disputes only by arbitration. . . .
Ninete decl., Exh. C.
In the joinder, defendant Walmart argues that as discussed in length in the moving papers, plaintiffs signed contractual agreement with Verizon Wireless mandates that this claim be resolved in arbitration, and that the agreement clearly states that the seller (in this case Walmart) is equally entitled to arbitration of the agreement and for the state court action to be stayed while arbitration proceeds.
See Ninete decl., Exh. B at page 2 (Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .).
In a late-filed opposition, plaintiff contends that no contract exists between plaintiff and defendants because the documents are false, inaccurate, fraudulent in that said documents have [been] altered and/or photoshopped to appear that plaintiff executed the attached false and fraudulent contract.
He does acknowledge finger signing at the store.
The Court finds that defendants have met their burden of proving the existence of an arbitration agreement and that there is no evidence that the above agreements are false, inaccurate, fraudulent.
Scope
Defendants contend that the arbitration provision in the Customer Agreement is broadly worded (Any dispute that in any way relates to or arises out of this Agreement . . . .) and covers plaintiffs claims.
The Court agrees.
Enforceability
Defendant argues that the validity and enforceability of the arbitration provision in the Customer Agreement must be decided by the arbitrator, not the Court, because the arbitration provision contains an express delegation clause.
To be enforceable, the delegation clause itself must be clear and unmistakable, and not revocable under state contract defenses such as fraud, duress, or unconscionability.
Tiri v. Luck Chances, Inc.
(2014) 226 Cal. App. 4
th
231, 242.
See also
B.D. v. Blizzard Ent., Inc.
(2022) 76 Cal. App. 5
th
931, 957 (arbitration agreement clearly and unmistakably delegates question of arbitration to arbitrator by statement that the arbitration has authority to decide all issues of arbitrability).
The Court finds that the delegation clause is clear and unmistakable.
Plaintiff does not address the delegation clause or dispute it in the opposition.
The motion is GRANTED as to the claims against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc.
.
ORDER
The motion is GRANTED.
The claims asserted against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc are ordered to arbitration.
The case is STAYED.
Moving defendant is ordered to give notice of this ruling.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 10, 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.
Ruling
Omar Arroyo et al. vs American Honda Motor Co., Inc., a California Corporation
Jul 09, 2024 |
STK-CV-UBC-2022-0007718
2022-7718 Mercado/Arroyo MTC Deposition of PMQ 7/10/2024 Plaintiffs Rocio Mercado and Omar Arroyo bring a Motion to Compel Deposition Attendance of Defendant’s Person Most Knowledgeable (“PMK”) and Request for Sanctions. Having read the moving papers, the opposition papers, and reply papers the court issues the following tentative ruling: On February 8, 2024, Plaintiffs properly noticed the deposition of Defendants PMK and Custodians of Records. On February 15, 2024, Plaintiffs followed up with Defendant regarding Plaintiffs’ Notice of Depositions and requested that deposition dates be provided in case Defendant’s PMK was not available on the date the deposition was scheduled. On March 2, 2024, Defendant served objections to Plaintiffs’ Notice of Deposition. On March 8, 2024, Plaintiffs’ counsel sent a meet and confer letter to defense counsel regarding defendant’s objections. In the transmittal email plaintiffs’ counsel states “WE are in receipt of your objections to the notice of deposition for AHMAC’s PMQ set for Monday, March 11, 2024 at 11:30 A.M.; however, no alternative dates were provided for the deponent. [¶] Please advise as to an alternative, mutually convenient date so we may be able to re-notice this PMQ depo accordingly. IN addition, please see the attached M&C Letter regarding categories of examination.” On March 11, 2024, at 10:47 A.M., plaintiffs’ counsel sent another email to Defense counsel. This email provided the ZOOM link for the scheduled 11:30 A.M. deposition and also the following language, “Again, if the notice date does not work for Honda or the deponent, please advise on alternate dates. [¶] In the event that your office does not provide alternative dates for t his deposition, to protect our clients’ rights we will proceed with the deposition to memorialize your failure to appear.” Neither Defense counsel nor the party deponent appeared at the properly notice deposition and a non-appearance was taken by plaintiffs’ counsel. At 5:51 P.M. on March 11, 2024, plaintiffs’ counsel sent defense counsel an email attempting to get deposition dates to obtain the deposition without court intervention. On March 15, 2024, Plaintiffs’ counsel again sought dates to obtain the deposition. On March 27, 2024, Plaintiffs’ counsel again sent an email in an attempt to get dates to take the deposition. Finally on March 27, 2024 Defense counsel responded to plaintiffs’ counsel’s inquiry. However, defense counsel did not provide dates for the deposition. Rather defense counsel stated, “We have requested availability for a PMQ to be provided as soon as possible, and will notify you as soon as a date is received.” On April 2, 2024, plaintiffs’ counsel again inquired about deposition dates. As of the time the motion was filed, Defense counsel has failed to provide available deposition dates. Trial of this matter is set for August 19, 2024, 1:30 P.M., Dept. 11B. Oral depositions are an authorized method of discovery. (See CCP §2025.010 et seq.) Serving a deposition notice on a party is the method to obtain the party’s attendance at the oral deposition. (CCP §§2025.210-2025.240 / 2025.280.) If a party fails to attend the deposition as noticed the noticing party may bring a motion to compel attendance. If the party fails to attend or proceed with the noticed deposition the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against that party, or the attorney for that party, or both, and in favor any party attending in person or by attorney, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2025.430.) In addition, failure to submit to authorized method of discovery is a misuse of the discovery process for which monetary sanctions shall be imposed. (CCP §2023.2023.010(d) /§ 2023.030.) The Motion is GRANTED. Defendant’s PMK is ordered to sit for an oral deposition within 15 days of service of the order on Defense counsel. Defendant is to produce responsive documents at the deposition. The parties are to meet and confer to find an agreeable date, time and location for the deposition within the 15 day window. The request for monetary sanctions is granted. The court finds the hourly rate requested for associate work of $295.00, is reasonable. The court finds the hourly rate requested for Mr. Kirnos of $495.00 is reasonable. The court finds it would take approximately 3 hours of associate time and 2 hours of Mr. Kirnos time write the motion, analyze the opposition, draft a reply and attend the hearing remotely. The court finds that the monetary sanction should include the $60.00 filing fee. Therefore, the court awards $1,935.00 as discovery sanctions against Defendant and Defense counsel. Discovery sanctions payable within 30 days of service of the order. The Mandatory Settlement Conference date of July 22, 2024, 1:30 P.M., Dept. 11B, and Trial Date of August 19, 2024, 1:30 P.M., Dept. 11B, are confirmed and remain as set. WATERS 7/9/2024 Directions for Contesting or Arguing the Tentative Ruling: Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To conduct a remote appearance, follow the instructions below. There is a dedicated conference bridge lines for Dept. 11B. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept. 11B: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6941 and Pin # 5564. The courtroom clerk will make announcements and the Judge will call the calendar. Please mute your phones when you are not speaking, and remember to unmute your phone when you are speaking. At this time, we are not able to provide information over the phone. To communicate with the Courtroom Clerk of Dept. 11B, please email questions to civilcourtclerks@sjcourts.org, indicating in the title of the email the Department, Case number, Case Name, and party’s name. A Courtroom Clerk will return your email. To ensure the Court has your most recent contact information, if you have not already done so, please register your email address and mobile number on the Court’s website under Online Services, Attorney Registration. (You do not have to be an attorney to register.) We thank you for your cooperation, assistance, patience and flexibility.
Ruling
MAYS vs ENNIS
Jul 11, 2024 |
CVRI2306229
MOTION TO FILE A CROSS-
CVRI2306229 MAYS VS ENNIS
COMPLAINT
Tentative Ruling:
GRANT
Cross-Complaint to be filed and served within 5 days.
Ruling
JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL
Jul 10, 2024 |
CGC23608339
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
JOHN P. MIDDLETON, ET AL. VS ROY LEE, ET AL.
Jul 12, 2024 |
19STCV30580
Case Number:
19STCV30580
Hearing Date:
July 12, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 12, 2024
Case Name:
Middleton, et al. v. Lee, et al.
Case No.:
19STCV30580
Matter:
Motion to be Relieved as Counsel
Moving Party:
Marc Rohatiner, counsel for Plaintiffs John P. Middleton and The John
Powers Middleton Companies, LLC
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Motion is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Marc Rohatiner seeks to be relieved as counsel for Plaintiffs John P. Middleton and The John Powers Middleton Companies, LLC.
The Motion is granted because it meets all requirements of Cal. Rules of Court, Rule 3.1362.
Moving party to give notice.
Attorney is relieved as counsel of record for client effective upon the filing of the proof of service for the Court order (form MC-053) upon the client.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Document
Eulogia Septimo v. Vivid Mortgages Inc.,, Tikva Hope Sekezi,, My Home Advisors, Llc.,, Orin Kraiem,, 525 Chester Street, Llc., Yossi Yaacov, A/K/A Joseph Jacobs,, First Capital Homes Corp.,, Kobi Rannan,, Rock E. Small Plumbing And Heating, Inc.,, Erroll Small,, Akeeb B. Shekoni,, Ravi Construction, and, Askon Architects, P.C.,, Expediting Services, Inc., and, Terreance E. Dougherty, Esq.
Jun 11, 2019 |
Heela Capell
|
Commercial - Contract |
Commercial - Contract |
517987/2022
Preview
FILED: KINGS COUNTY CLERK 11/06/2018 02:04 PM INDEX NO. 522349/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS KINGS CASH GROUP Index No. ) ) Plaintiff, ) AFFIDAVIT OF -against- ) CONFESSION OF JUDGMENT JAMDSL ENTERPRISES, INC. dba BREATHE ) KLEEN AIR and COASTLINE HANDYMAN ) SERVICES ) ) and ) JAMES EDWARD PUMPHREY ) ) Defendants. ) ) STATE OF _ ) ss: ) COUNTY OF ) JAMES EDWARD PUMPHREY, being duly sworn upon my oath, deposes and says: 1. I am the above-captioned Defendant. I reside at 735 COMMERCE CENTER DR SUITE D SEBASTIAN, FL 32958, and I have personal knowledge of all facts set forth herein. 2. I am also the president and member of JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES located at 735 COMMERCE CENTER DR SUITE D SEBASTIAN, FL 32958, and have fullauthority to enter into binding agreements on behalf of this entity. 3. I acknowledge that this Confession of Judgment has been executed with the intent to waive any and allrights that I may have to appear in any action and defend same, to notice of entry or intended entry of Judgment, to the domestication of such Judgment in any other jurisdiction or county. 1 of 4 FILED: KINGS COUNTY CLERK 11/06/2018 02:04 PM INDEX NO. 522349/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/06/2018 4. I have had the to consult with an this Confession of opportunity attorney regarding Judgment and have either done so to satisfaction or and declined to do so. my voluntarily knowingly 5. This Affidavit of Confession is for a debt due to Plaintiff from the justly arising Plaintiff's purchase of receivables of JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES. Additionally, JAMES EDWARD PUMPHREY agreed to personally guarantee the debt in the event JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES defaults. 6. JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES agreed to pay Plaintiff the principal sum of $58,220.00 pursuant to the merchant agreement as follows: 15% of daily deposits estimated at $486.00 a day until fully paid. 7. JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES agreed that in the event itwas in default under the terms of the Merchant Agreement as described above, itwould confess judgement in the Supreme Court of the State of New York, County of New York, the Supreme Court of the State of New York, County of Orange, the Supreme Court of the State of New York, County of Erie, Supreme Court of the State of New York, County of Kings, the Supreme Court of the State of New York, County of Ontario or in any County in the State where I reside in the amount of $58,220.00 less any payments made hereunder. 8. The Confession of Judgment isfor a debtjustly due toPlaintiff arising from the Plaintiff's purchase of JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES's receivables wherein JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES agreed to repay certain sums to the 2 of 4 FILED: KINGS COUNTY CLERK 11/06/2018 02:04 PM INDEX NO. 522349/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/06/2018 Plaintiff in the event of default. Additionally, JAMES EDWARD PUMPHREY agreed to personally guarantee the debt in the event of default. 9. JAMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SERVICES and JAMES EDWARD PUMPHREY hereby confess judgment and authorize entry of Judgment in the Supreme Court of the State of New York, County of New York, the Supreme Court of the State of New York, County of Orange, the Supreme Court of the State of New York, County of Erie, Supreme Court of the State of New York, County of Kings, the Supreme Court of the State ofNew York, County of Kings, the Supreme Court ofthe State of New York, County of Ontario or in any County in the State where I reside, and in favor of Plaintiff in the sum of $58,220.00 less any payments made hereunder, plus simple interest thereon at the annual rate of nine (9%) per annum from the date of default until full repayment, plus all costs incurred in connection with the enforcement of the Agreement, including attorney's fees in the amount of 33 1/3% plus costs of disbursements. JAMES EDWARD MP mdividually and on l>ehalf o AMDSL ENTERPRISES, INC. dba BREATHE KLEEN AIR and COASTLINE HANDYMAN SER'/ICES STATE OF ) COUNTY OF ) On th o 2018 before me, the undersigned, personally appeared day JAMES EDWARD PUMPHREY, p rsonally known to me or proved to me on the basis of evi ence to be the individual whose name is subscribed to the within instrument and satisfactory acknowledged to me that he executed the same in his capacity and that by his signature on the the or the person on behalf of whom the individual acted, executed the instrument, individual, instrument. KEU.YM BECKERT MYCOiviMi55iGN #GG159975 EXPIRES: NOV14,2021 Bondedthrough1stStateInsurance N TAR PUBLIC 3 of 4 FILED: KINGS COUNTY CLERK 11/06/2018 02:04 PM INDEX NO. 522349/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/06/2018 Index No. Year RJI No. Hon. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS KINGS CASH GROUP Plaintiff, -against- JAMDSL ENTERPRISES, INC. DBA BREATHE KLEEN AIR AND COASTLINE HANYDMAN SERVICES and JAMES EDWARD PUMPHREY Defendants AFFIDAVIT OF CONFESSION OF JUDGMENT Ariel Bouskila, Esq. Berkovitch & Bouskila, PLLC Attorney for Plaintiff Office and Post Office Address, Telephone 5 Hanover Sq. Suite 2102 New York, New York 10004 United States Phone:(212) 433-2298 Fax:(347)331-0552 Service of a copy of the within is hereby admitted. Dated, Attorney(s) for Please take notice Notice of Entry that the within is a (certified) true copy of a duly entered in the office of the clerk of the within name court on Notice of settlement that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named court, at on at Dated, Yours, etc. Attorney(s) for 4 of 4