Preview
I HOWIE k SMITH, L.L.P.
ATTORNEYS AT LAW
2 1777 BOREI. PLAOE, SUITE1000 10/28/2021
SAN MATEo, CA 94402-3509
3 TEER (650) 685-9300
FAx: (650) 685-3967
4
ROBERT (L HOWIE, sBN 057361
5 AUDREY SMITH, SBN 180836
ATTORNEYS FOR PLAINTIFF AND CROSS-DEFENDANT SANDRA TIDWELL
6
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
10
11 SANDRA TIDWELL, )
) Case No. CIV536345
12 Plaintiff, )
) NOTICE OF MOTION AND MOTION
13 v. ) FOR LEAVE TO FILE FOURTH
) AMENDED COMPLAINT
14 ) [CCP $ )473(a), 576]
JACKSON TIDWELL, DENA TIDWELL, )
15 and the testate and intestate successors of )
JACKIE WAYNE TIDWELL, deceased and )
16 all persons claiming by, through, or under )
such decedent, and all persons unknown, )
17 claiming any legal or equitable right, title, )
estate, lien or interest in the property )
18 described in the complaint adverse to )
plaintiff" s title, or any cloud on plaintiff's )
19 title thereto, and DOES 2 through 50, )
inclusive, )
20 )
Defendants )
21 )
)
22 JACKSON W. TIDWELL, ) Case No. CLJ212151
DENA TIDWELL, et al. )
23 )
Cross-Complainant, )
24 v. )
)
25 )
SANDRA TIDWELL, and DOES I TO 5 ) Date: October 28, 2021
26 ) Time: 9:00 a.m.
Defendants. ) Department: 10 - Judge Buchwald
27 )
) Complaint Filed: November 23, 2015
28 Trial Date: Not Assigned
I
NOTICF. OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT
I TO DEFENDANTS AND CROSS-COMPLAINANTS JACKSON TIDWELL and DENA TIDWELL,
2 and to Francois Sorba, their attorney of record:
NOTICE IS HEREBY GIVEN that, on October 28, 202, at 9:00 a.m., or as soon thereafter as
4
the matter may be heard, in the Department 10, the trial department of this case in this court, located at
5
400 County Center, Redwood City, Plaintiff and Cross-Defendant SANDRA TIDWELL will, and hereby
6
does, move under Code of Civil Procedure Sections 473(a) and 576 for leave to file a fourth amended
7
complaint on grounds that a separately stated cause of action for breach of fiduciary duty as to Defendant
8
and Cross-complainant will clarify issues previously pled and insure findings relating to that cause of
9
action.
10
The motion will be based on this notice of motion, on the declaration of Robert G. Howie, and
11
the memorandum served and filed herewith, on the records and file herein, and on such evidence as may
12
be presented at the hearing of the motion.
13
Dated Octoberg 2021 HOWIE & SMITH, L.L.P.
15
16
17
18
By:
19 Robert G. Howie, Esq., Attbrney for Plaintiff
and Cross-Defendant SANDRA TIDWELL
20
21
22
23
24
25
26
27
28
2
NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT
CASK NAME: Sandra Tidwell v. Jackson Tidwell, er al
COURT: Superior Court of California, County of San Mateo
2 CASK NO: Consolidated Lead Case: CIV536345; CLJ212151
PROOF OF SERVICE
4 I, the undersigned, declare as follows:
I am a citizen of the United States, over the
age of 18 years, and not a party to, or interested in the
within entitled action. 1 am an employee of HOWIE & SMITH, L.L.P.,
6 business address is Attorneys at Law, and my
1777 Borel Place, Suite 1000, San Mateo, CA 94402-3509.
On October 25, 2021, I served the following document(s):
8 1. NOT CE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH
COMPLAINT AMENDED
9 2. MK MORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
FOR LEAVE TO TO FILE FOURTH AMENDED COMPLAINT OF MOTION
D ECLARATION OF ROBERT C. HOWIE IN SUPPORT OF MOTION FOR LEAVE
10 T0 FILE FOURTH AMENDED COMPLAINT
4. PLAINTIFF'S REOUKST FOR JUDICIAL NOTICE IN SUPPORT OF
11 LEAVE TO AME MOTION FOR
Proposed] ORDER
12 on the following parties in this action in an envelope(s) addressed as follows:
13 Francois X. Sorba, Esq. Jackson Tidwell & Dena Tidwell's Attorney
Attorneys at Law
14 P. O. Box 2855
San Anselmo, CA 94979
15 Email: fsorha&fxs-law.corn
16— (BY MAIL) I caused each such envelope, with postage thereon fully prepaid, to be
mail at San Mateo, California. placed in the United States
I am readily familiar with the business practice for collection and
mail in this office. processing of
That in the ordinary course of business said document(s) would be deposited
17 Postal Service in San Mateo on that same day. with the U.S,
I understand that service shall be presumed invalid
of a party served if the postal cancellation date or postage meter date on the envelope is upon motion
18 more than one day atter
the date of deposit for mailing contained on this affidavit.
(BY PERSONAL SERVICE) I caused each such envelope to be delivered
by hand to each addressee as shown.
19 (BY FEDERAL EXPRESS OVERNIGHT DELIVERY) I caused each envelope,
with delivery fees provided
for, to be deposited in a box regularly maintained by Federal Express.
I am readily familiar with tbe practice in
20 this office for collection and processing of correspondence for overnight delivery
and know that in the ordinary
course of the business practice in this office the document(s) described above will
be deposited in a box or other
facility regularly maintained by Federal Express or delivered to an authorized cowier
21 or driver authorized by
Federal Express to receive documents on the same date that it is placed for collection.
(BY ELECTRONIC MAIL) I served a copy of the above-described document(s) on
22 the parties on the attached
service list by electronic transmission from the electronic address of
ssinghghowielaw.corn. to the electronic
notification addresses listed on the attached service list.
23 X (BY E-SERVICE) I served a copy of the above-described document(s) on the
parties on the attached service list
by electronic transmission through approved electronic service provider One Legal Inc.
to the electronic
notification addresses listed on the attached service list.
(BY FACSIMILE TRANSMISSION) By use of facsimile machine number
(650) 212-0842, I served a copy of
25 the within document(s) on the interested parties at the facsimile numbers listed.
The transmission was
complete and without error. The transmission report was properly issued by the transmitting facsimile reported as
machine
26 1declare under penalty of perjury under the laws of the State of California
that the foregoing is
27 true and correct. Executed on October 25, 2021, at San Ma
28
I
PROOF OF SFRVIi E
Related Content
in San Mateo County
Ruling
Darrell Wayne Brown, Sr vs. General Motors LLC
Jul 14, 2024 |
CU23-04724
CU23-04724
Demurrer to Second Amended Complaint; Motion to Strike
TENTATIVE RULING
Defendant GENERAL MOTORS, LLC demurs to the cause of action against it for
fraudulent inducement in Plaintiff DARRELL WAYNE BROWN, SR.’s first amended
complaint (“1AC”). Defendant additionally moves to strike the 1AC’s prayer for punitive
damages.
The core of the 1AC’s allegations is that Plaintiff purchased or leased a 2019 Chevrolet
Silverado 1500 vehicle (the “Vehicle”) from Defendant’s authorized dealership that he
alleges is defective due to a faulty transmission, among other things. Plaintiff alleges
that Defendant knew of the faulty transmission and fraudulently concealed it from him.
Plaintiff also presents causes of action against Defendant for violation of the Song-
Beverly Consumer Warranty Act (the “Act”) based on the faulty transmission and other
alleged defects in the Vehicle.
Notice of Tentative Ruling. Defendant’s notices of demurrer and motion do not advise
the recipient that the Solano County Superior Court uses a tentative ruling system, as is
required under Local Rule 3.9, subdivision (d). The court cautions Defendant to provide
proper notice of the tentative ruling system in future filings.
Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of
the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118
Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than
evidentiary facts, but the plaintiff must set forth the essential facts of his or her case
“with reasonable precision and with particularity sufficient to acquaint [the] defendant
with the nature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace
Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)
Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007)
42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The Court “assume[s] the truth of
the allegations in the complaint, but do[es] not assume the truth of contentions,
deductions, or conclusions of law.” (California Logistics, Inc. v. State of California
(2008) 161 Cal.App.4th 242, 247.)
Statute of Limitations. Fraud-based causes of action have a three-year statute of
limitations. (Code Civ. Proc., § 338, subd. (d).) However, a fraud cause of action only
accrues, and the matching statute of limitations thus only begins to run, upon the
discovery by the aggrieved party of the facts constituting the fraud. (Ibid.) Also, in order
for the bar of the statute of limitations to be raised on demurrer, the defect must clearly
and affirmatively appear on the face of the complaint; it is not enough if the complaint
suggests that an action merely may be barred. (E-Fab Inc. v. Accountants, Inc.
Services (2007) 153 Cal.App.4th 1308, 1315-1316.)
The 1AC states that “transmission defects” in the Vehicle, among other kinds,
manifested “within the applicable express warranty period.” (1AC at ¶ 11.) This
allegation does not establish a clear point at which Plaintiff became aware of
transmission defects in the Vehicle and so does not on the face of the complaint
establish a limitations bar. Plaintiff’s allegation that he took the Vehicle in for repairs on
January 17, 2020 only mentions brake and seat belt concerns, with no clear link to the
Vehicle’s transmission. (Id. at ¶ 21.) Plaintiff’s other allegations of taking the Vehicle in
for repairs state occurrence within the limitations period. (Id. at ¶¶ 22-23.) Additionally,
even if the allegations were read as establishing that Plaintiff experienced some form of
problem with the Vehicle’s transmission more than three years before filing his original
complaint, there is nothing to establish on the face of the complaint that Plaintiff was
aware at any of those times that the Vehicle had the allegedly fraudulently concealed
latent transmission defect causing unsteady vehicle motions and loss of control over
acceleration and deceleration as opposed to an unrelated, correctable transmission
issue. (Id. at ¶ 64 [effects of allegedly concealed transmission defect].)
The statute of limitations does not bar Plaintiff’s fraudulent inducement cause of action.
Fraudulent Inducement. Dhital v. Nissan North America Inc. (2022) 84 Cal.App.5th
828 (Dhital) offers instructive precedent here. In Dhital the plaintiff brought a lemon law
action over his Nissan vehicle’s faulty transmission and additionally alleged fraudulent
inducement. (Dhital, supra, 84 Cal.App.5th at p. 834.) The trial court sustained
Nissan’s demurrer on the fraudulent inducement cause of action, deciding that the
economic loss rule barred the claim. (Id. at p. 835-836.) The appellate court reversed,
finding both that the economic loss rule did not bar the claim and that the plaintiff’s
allegations sufficiently stated fraudulent inducement (insufficiency of pleading being an
alternative ground for affirming the trial court ruling that Nissan urged on appeal). (Id. at
p. 845.)
Fraudulent inducement is a subset of fraud and so Plaintiffs must plead the elements of
fraud: (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4)
justifiable reliance, and (5) damages. (Dhital, supra, 84 Cal.App.5th at p. 843; Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294-295.) Fraud must always
be pleaded with specificity. (Linear Technology Corp. v. Applied Materials, Inc. (2007)
152 Cal.App.4th 115, 132.)
The Dhital plaintiff’s allegations included that Nissan manufactured and distributed more
than 500,000 vehicles with faulty transmissions; that Nissan knew or should have
known of the faults from premarket testing and consumer complaints to both the
National Highway Traffic Safety Administration (“NHTSA”) and to Nissan itself; and that
Nissan issued Technical Service Bulletins (“TSBs”) regarding the transmission problem.
(Dhital, supra, 84 Cal.App.5th at pp. 833-834.) The Dhital court found all of this
sufficient to state fraudulent inducement: the allegations stated that Nissan made
vehicles with transmission defects, Nissan knew of the transmission defects and the
hazards they posed, Nissan had exclusive knowledge of the defects but did not disclose
them to consumers, Nissan intended to conceal the information, and the plaintiff would
not have bought the vehicle in question had the plaintiff known the information. (Id. at p.
844.) Allegations that the plaintiff bought the car from a Nissan dealership with a
Nissan-backed warranty and that dealerships are Nissan’s agents for purposes of sale
sufficed to state a buyer-seller relationship between the parties. (Ibid.) The court
rebuffed Nissan’s argument that the plaintiff was not specific enough about what it
should have disclosed where the plaintiff described the effects of the transmission
defect and alleged that Nissan knew of these effects from premarket testing and
consumer complaints. (Ibid.)
Plaintiff’s allegations in the 1AC align with those of the Dhital plaintiff. Plaintiff here
describes the transmission defect at issue as causing “hard or harsh shifts, jerking,
lurching, hesitation on acceleration, surging and/or inability to control the vehicle’s
speed, acceleration, or deceleration.” (1AC at ¶ 64.) Plaintiff alleges that Defendant
knew or should have known of the coolant system defect from pre- and post-production
market testing, consumer complaints, and warranty data. (Id. at ¶ 65.) Plaintiff alleges
that Defendant has issued at least eight transmission defect-related TSBs between
2014 and 2019, showing its knowledge of the problem, but never informed the
consumer market. (Id. at ¶ 69, fn. 6.) Plaintiff alleges that Defendant’s president
acknowledged the existence of the transmission defect in internal discussions in 2016
and that the defect was known internally as a “neck-snapper.” (Id. at ¶ 67.) Plaintiff
alleges that Defendant concealed information about the transmission defect that would
have changed Plaintiff’s purchase decision had it been known to Plaintiff. (Id. at ¶¶ 71-
72, 75.) Plaintiff alleges obtaining the Vehicle under a warranty Defendant backed,
through an authorized dealership of Defendant’s. (Id. at ¶¶ 6-7.)
Plaintiff’s cause of action for fraudulent inducement is adequately pled, per Dhital.
Motion to Strike. Code of Civil Procedure section 436, subdivision (a) permits a court
to strike out any irrelevant, false, or improper matter inserted in any pleading, upon a
motion or in its discretion. Irrelevant matters are those not essential to the statement of
a claim or defense or not pertinent to or supported by an otherwise sufficient claim or
defense and demands for relief not supported by the allegations. (Code Civ. Proc., §
431.10.) “The grounds for a motion to strike shall appear on the face of the challenged
pleading or from any matter of which the court is required to take judicial notice;”
therefore, a motion to strike may not be based upon extrinsic evidence such as a
declaration. (Code Civ. Proc., § 437, subd. (a).)
Plaintiff has sufficiently stated a cause of action sounding in fraud, which supports
imposition of punitive damages. (Civ. Code, § 3294, subd. (a) [fraud as basis for
punitive damages].) This is so even where he simultaneously alleges lemon law
violations. (Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946 [permitting punitive
damages on fraudulent inducement claim alongside civil penalties on Song-Beverly
claim].)
Conclusion. Defendant’s demurrer is overruled. Defendant’s motion to strike is
denied.
Join ZoomGov Meeting
https://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09
Meeting ID: 160 221 0102
Passcode: 650928
One tap mobile
+16692545252,,1602210102#,,,,*650928# US (San Jose)
+16692161590,,1602210102#,,,,*650928# US (San Jose)
Ruling
CITY NATIONAL BANK, A NATIONAL BANKING ASSOCIATION VS LAW OFFICES OF JEREMY TENSER LIMITED, A CALIFORNIA CORPORATION, ET AL.
Jul 10, 2024 |
19SMCV01709
Case Number:
19SMCV01709
Hearing Date:
July 10, 2024
Dept:
M
CASE NAME:
City National Bank v. Law Offices of Jeremy Tenser Ltd., et al.
CASE NO.:
19SMCV01709
MOTION:
Motion to Quash Service of Summons
HEARING DATE:
7/11/2024
Legal Standard
A defendant . . . may serve and file a notice of motion for one or more of the following purposes:
(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .
(CCP § 418.10(a).) A court lacks jurisdiction over a party if there has not been proper service of process. (
Ruttenberg v. Ruttenberg
(1997) 53 Cal.App.4th 801, 808.) When a motion to quash is properly brought, the burden of proof is placed upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. (
Aquila, Inc. v. Sup. Ct.
(2007) 148 Cal.App.4th 556, 568.)
[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] (
Dill v. Berquist Construction Co.
(1994) 24 Cal.App.4th 1426, 1444.) [T]he filing of a proof of service creates a rebuttable presumption that the service was proper but only if it complies with the statutory requirements regarding such proofs. (
Id
. at 1441-1442.)
Analysis
Specially Appearing Cross-Defendants Royal Bank of Canada (RBC), RBC Bank (Georgia) N.A. (RBC Bank), David McKay (McKay) and Maria Douvas (Douvas) (together, the RBC Parties) move to quash the service of summons for lack of personal jurisdiction and for failure to comply with the statutory procedures for service of process with international law.
Due process permits state courts to exercise personal jurisdiction over nonresidents who have minimum contacts with the forum state. Minimum contacts means the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice under the U.S. Constitution's Fourteenth Amendment Due Process Clause. (
International Shoe Co. v. Washington
(1945) 326 U.S. 310, 316.)
The extent to which a California court can exercise personal jurisdiction over a defendant depends on the nature and quality of defendant's contacts with the state.
Under a general jurisdiction analysis (also called all-purpose or unlimited jurisdiction), nonresident defendants may be sued on causes of action unrelated to their activities within the state. (
Perkins v. Benguet Consolidated Mining Co.
(1952) 342 U.S. 437, 446-447.)
General jurisdiction exists when a defendant is domiciled in the forum state or his activities there are substantial, continuous, and systematic. (
F. Hoffman-La Roche, Inc. v. Sup. Ct.
(2005) 130 Cal.App.4th 782, 796.) In such circumstances, it is not necessary that the specific cause of action alleged be connected with the defendants business relationship to the forum. (
Id
.) The standard for establishing general jurisdiction is fairly high, [citation] and requires that the defendants contacts be of the sort that approximate physical presence. (
Elkman, supra
, 173 Cal.App.4th at 1315.) Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the states markets, designates an agent for service of process, holds a license, or is incorporated there. (
Id
.)
Cross-Complainant Adam Jeremy Tenser has the burden to set forth facts required for general or specific jurisdiction. As Cross-Complainant fails to oppose the motion, he does not meet this burden. Conversely, the
RBC parties demonstrate that this Court lacks general jurisdiction.
According to the Second Amended Cross-Complaint (SACC), RBC is a multi-national public company, traded on the Toronto Stock Exchange and New York Stock Exchange; and, at all times relevant is a Schedule I bank under the Bank Act of Canada, with principal offices at 200 Bay Street, South Tower, Toronto, Ontario, Canada. (SAXC ¶ 10.) RBC does not have any branches in California and is not registered to do business in California. (Richardson Decl. ¶¶ 3-5.) Its head office is in Montreal, Quebec, Canada. (Id.) RBC does not have branches or a corporate registered agent for service of process in California. (Id. ¶ 6; Hosp Decl. ¶ 3.)
McKay is RBCs President and Chief Executive Officer and Douvas is its Chief Legal and Administrative Officer. (Douvas Decl. ¶ 1; Richardson Decl. ¶¶ 9-10.) They are not domiciled in California, are not employees or officers of CNB, and are not members of CNBs board of directors. (Id.) McKay and Douvas do not have an office in California. (Id.; SAXC ¶¶ 12, 14.)
RBC Bank is a separate National Banking Association organized under the laws of the United States with its principal business office in Raleigh, North Carolina. (Wren Decl., ¶ 3.) RBC Bank is also an indirect subsidiary of RBC, owned by RBC USA Holdco, which is owned by RBC Group Holdco. (Id.) RBC Bank does not have any branches in California. Day-to-day business of RBC, RBC Bank, and CNB is managed independently. (Id. ¶ 4.) Each bank also has a separate board of directors. (Wartburg Decl. ¶ 3.)
In 2015, CNBs former parent company, City National Corporation, merged with RBC USA Holdco. (Richardson Decl. ¶ 5.) Upon the merger, CNB became a wholly owned subsidiary of RBC USA Holdco. (Id.) RBC USA Holdco is in turn owned by RBC Group Holdings, an LLC formed under the laws of the State of Delaware and headquartered in Toronto, Ontario. (Id.) However, t
he fact that a foreign corporation has an in-state
subs
idiary or affiliate does not subject the corporate parent to general jurisdiction in that state. (
Daimler AG v. Bauman
(2014) 571 US 117, 136;¿see also
Young v. Daimler AG¿
(2014) 228 Cal.App.4th 855, 866-867 [no general jurisdiction over parent corporation even if plaintiffs reside in state, accident occurred there, the vehicle was purchased there, and vehicle was manufactured by defendant's
subs
idiary].)
CNB retained its name, has its own officers and board of directors, maintains its own corporate books and records, and has its own offices and employees. (Wartburg Decl. ¶ 3.)
Where general jurisdiction cannot be established, a court may assume specific jurisdiction over a nonresident, if the nonresident purposefully directed its activities at forum residents, or purposefully availed itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of local law. (
Hanson v. Denckla
(1958) 357 U.S. 235.)
Specific jurisdiction involves a three-part test: (1) the nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.¿¿(
Jewish Defense Organization, Inc. v. Sup. Ct. of Los Angeles County
(1999) 72 Cal.App.4th 1045, 1054 [purposeful¿availment¿exists where a defendant performed some type of affirmative conduct which allows or promotes the transaction of business within the forum state].)
The RBC Parties lack the minimum contacts with California necessary for this Court to exercise personal jurisdiction. Again, Cross-Complainant does not oppose and therefore fails to meet its burden. None of the allegations involve any affirmative acts by the RBC Parties that were directed or took place in California. Instead, The SACC relies on an apparent theory of vicarious liability, ratification of City National Banks conduct, which allegedly impacted all commercial banking clients. (SACC ¶ 96.) On June 19, 2015, the Law Firm applied for a business line of credit with CNB. (SAXC ¶¶ 26, 4752.) The Law Firm also applied for (and later entered into) a business overdraft line agreement with CNB on August 29, 2018. (Id. ¶¶ 3335.) CNB wrongfully cancelled the Law Firms line of credit on January 25, 2019 and its overdraft line on February 19, 2019. (Id. ¶¶ 3638, 72.) CNB deducted funds from the Law Firms account to satisfy an order from the California Franchise Tax Board (FTB), only to later return the funds, resulting in a state tax delinquency. (SACC ¶¶ 3641.) CNBs former outside counsel, also based in California, breached his privacy and threatened him. (Id. ¶¶ 1518, 4244.) Tenser pleads causes of action for fraud, extortion, violations of the federal Racketeer Influenced and Corrupt Organization Act (RICO), negligence, and violations of Californias Unfair Competition Law (UCL). (Id. ¶¶ 45113.) The RBC Parties allegedly authorized, fail[ed] to correct, indicate[d] a passive and indifferent attitude, and adopt[ed] CNBs fraudulent conduct as their own. (SAXC ¶¶ 69, 101, 103.)
CNB parties evidence shows that there is no pervasive and continuous control over CNBs day-to-day operations. CNB retained its name, has its own officers and board of directors, maintains its own corporate books and records, and has its own offices and employees. (Wartburg Decl. ¶¶ 23.) RBC Bank is headquartered in North Carolina, not California, and lacks any subsidiary relationship with CNB. The cross-complaint does not allege any California connected conduct by McKay or Douvas in their personal or professional capacities. Therefore, personal jurisdiction is not established.
As a separate basis to quash, cross-complainant fails to establish valid service on the foreign defendants. The proof of service shows that on March 8, 2024, the process server personally delivered the service documents to Raven Gero, Office of Jennifer Liu, Counsel, Royal Bank of Canada at 200 Bay Street, South Tower, 6th Floor, Toronto, Ontario, Canada M5J 2J5. However, Raven Gero is not an employee of RBC Bank, is not a designated agent for service of process for RBC Bank, or an officer, general manager, or a person authorized by RBC Bank to receive service of process. (Wren Decl., ¶6.) Raven Gero is a law clerk who works at RBCs headquarters in Toronto, Canada. (Richardson Decl., ¶ 11.) Gero also is not an agent for, or authorized to accept service of process on behalf of, McKay and Douvas.
Accordingly, the motion to quash is GRANTED.
Ruling
HICKS MEDIA, INC., A TEXAS CORPORATION, AS SUCCESSOR TO M&M MOMAR, INC. VS BIG TICKET PRODUCTIONS, INC., A DELAWARE CORPORATION, ET AL.
Jul 18, 2024 |
23STCV08063
Case Number:
23STCV08063
Hearing Date:
July 18, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
HICKS MEDIA, INC. a Texas Corporation, as successor to M&M MOMAR, INC.,
Plaintiff,
vs.
BIG TICKET PRODUCTIONS, INC.; PARAMOUNT PICTURES CORPORATION; CBS STUDIOS f/k/a CBS TELEVISION STUDIOS, a subsidiary of CBS ENTERTAINMENT GROUP, a division of VIACOMBCBS INC.; and DOES 1-50, inclusive,
Defendants.
CASE NO.: 23STCV08063
[PROPOSED] ORDER RE:
DEMURRER TO SECOND AMENDED COMPLAINT
Date: July 18, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY:
Defendants
RESPONDING PARTY: Plaintiff Hicks Media, Inc.
The Court has considered the moving, opposition and reply papers.
BACKGROUND
On January 4, 2024, Plaintiff Hicks Media, Inc., as successor to M&M Momar, Inc. (Plaintiff) filed its First Amended Complaint (the FAC) against Defendants Big Ticket Productions, Inc., Paramount Pictures Corporation, CBS Studios f/k/a CBS Television Studios, a subsidiary of CBS Entertainment Group, a division of ViacomCBS Inc., and DOES 1-50, inclusive for: (1) Breach of Written Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; (3) Intentional Interference With Contract; and (4) Accounting. On March 19, 2024, this Court ruled on Defendants demurer to the FAC and, among other things, sustained the demurrer to the cause of action for breach of the implied covenant of good faith and fair dealing on the ground that it failed to allege the elements of a separate claim for breach of the implied covenant.
Plaintiffs have now filed the operative Second Amended Complaint (the SAC).
Initially, the Court notes that very few changes were made from the pleading of the fraud cause of action in the FAC to its pleading in the SAC, which is the subject of the current demurrer (the Demurrer).
Those changes are as follows:
1)
Footnote 2 of the SAC (incorporated into the Fraud Cause of Action of the FAC as well as the SAC by paragraph 29), which now adds to the previous footnote 2 in the FAC: Upon information and belief, Defendants delayed production of books and records and did not provide full and accurate disclosure of documents and information to ensure a good faith audit process in a prompt, timely and thorough manner. (FAC and SAC)
2)
In paragraph 33 of the SAC, adds the words allocating specific costs and expenses that should not have been included to subparagraph a;
3)
In subparagraph 33 b of the SAC, adds the words and/or negotiate and an apostrophe after the word Series;
4)
Substitutes the words Variously underreporting or overinflating [sic] for the words Failing to substantiate the incurrence of costs and expenses before the words to Plaintiffs detriment in subparagraph 33 c; and
5)
Adds the words , for example the UPN Series license that was well below industry standard, among other transactions in subparagraph 33 d.
On May 10, 2024, Defendants filed the Demurrer. On July 5, 2024, Plaintiff filed its opposition and on July 10, 2024, Defendants filed their reply.
MEET AND CONFER
The Court finds that the parties sufficiently engaged in the meet and confer process.
DISCUSSION
The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (
Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 240.)¿¿
A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint. (
Ivanoff v. Bank of America, N.A.
¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (
Id.
) The Court does not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint as a whole and its parts in their context. [Citation.] (
West v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 780, 804.) The Court assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (
Harris
,
supra
, 56 Cal.4th p. 240.) The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (
Durell v. Sharp Healthcare
(2010) 183 Cal.App.4th 1350, 1358.)¿¿
A general demurrer may be brought under Code of Civil Procedure Section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)¿¿
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (
Goodman v. Kennedy
(1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (
Id.
)¿¿
Demurrer to FAC
Defendants demur to Plaintiffs SAC on the ground that the second cause of action does not state facts sufficient to constitute a cause of action for breach of the implied covenant of good faith and fair dealing.
The [implied] covenant of good faith and fair dealing [is] implied by law in every contract. The covenant is read into contracts and functions as a
supplement
to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract. (
Thrifty Payless, Inc. v. The Americana at Brand, LLC
(2013) 218 Cal.App.4th 1230, 1244.) As such, A breach of the implied covenant of good faith is a breach of the contract. (
Id.
)
Establishing that claim requires a showing of (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (
DArrigo Bros. of California v. United Farmworkers of America
(2014) 224 Cal.App.4th 790, 800.)
Defendants argue that this claim mirrors Plaintiffs first cause of action for breach of contract and does not state a viable independent duty that any of the Defendants allegedly violated.
Specifically, Defendants contend Plaintiffs breach of contract claim against Defendants BTP, Paramount and CBS is premised on the general allegation that Defendants have breached the agreements by failing to pay monies due to Plaintiff. (SAC, ¶ 27.)
Defendants contend that Plaintiff alleges that Defendants breached the implied covenant of good faith and fair dealing by unfairly interfering with the Plaintiffs right to receive the benefits of their respective agreements by failing to correctly credit/allocate and negotiate certain revenues, expenses and costs, underreporting or overinflating [something, presumably costs]; and failing to accurately calculate/substantiate costs and expenses. (
Id.
at ¶ 33.) As such, Defendants argue that both the breach of contract and implied covenant causes of action are based upon whether Defendants made all payments required under the terms of the M&M Agreement(s).
In opposition, Plaintiff argues that the ultimate facts which must be pled are set forth in jury instructions, so it is not required to plead every evidentiary fact it seeks to introduce at trial. Furthermore, Plaintiff also argues it has put Defendants on fair notice of its claims. Plaintiff also contends it has pled sufficient facts to allege Defendant breached the implied covenant of good faith and fair dealing because it pled (1) the parties entered into a contract; (2) Plaintiff performed all conditions, covenants, and promises required to be performed by the contract in accordance with the terms of its agreement; (3) Defendants prevented Plaintiff from receiving the benefits of the contract by committing significant financial malfeasance; and (4) Plaintiff was harmed by the conduct. In addition, Plaintiff contends the acts included in this claim are distinctly different than those that would be included under a simple breach of contract cause of action because (1) the allegation that the manipulation of the financials caused a decrease in the revenue Plaintiff was entitled to is not reflected within a simple breach of contract claim and (2) Plaintiff alleges Defendants improperly categorized costs, expenses, depreciation, etc., which negatively affected Plaintiffs revenue.
The Court agrees with Plaintiff only with regard to one aspect of its pleading on the Second Cause of Action of the SAC.
While Paragraphs 33 a, b and c all allege matters that come within the ambit of obligations relating to a standard breach of contract action, the allegation of Paragraph 33d, relating to Defendants alleged failure to engage in arms-length transactions or otherwise avoid self-dealing when contracting with related entities, giving a specific example of such a situation, raises an issue that would not ordinarily be part of a breach of written contract claim.
Such an obligation is not within the ambit of a standard breach of contract claim, but could arise from an implied covenant of good faith and fair dealing.
This allegation therefore raises an issue that gives rise to a valid cause of action for breach of the implied covenant of good faith and fair dealing under
Ladd v. Warner Bros.
(2010) 184 Cal.App.4
th
1298, 1301.
Therefore, the demurrer as to the second cause of action is OVERRULED.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 18th day of March 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
8551 VENICE, LLC VS DAVID MARVISI
Jul 10, 2024 |
22STCV02073
Case Number:
22STCV02073
Hearing Date:
July 10, 2024
Dept:
76
Plaintiffs alleged that Defendants, including her husband whom she is divorcing and his attorney, have conspired to defame, stalk, eavesdrop and threaten/harass Plaintiff.
The Court granted Defendants anti-SLAPP motion.
Defendants Seyed M. Khoddami and Sean Collinson move for relief from the deadline to file the motion for attorney fees incurred on appeal.
TENTATIVE RULING
Defendants Seyed M. Khoddami and Sean Collinsons motion for relief from the deadline to file the motion for attorney fees incurred on appeal is GRANTED. The attorneys fees motion filed on May 30, 2024 is deemed to have been timely filed.
ANALYSIS
Motion For Relief From Deadline
Defendants Seyed M. Khoddami and Sean Collinson move for relief from the deadline to file the motion for attorney fees incurred on appeal.
Specifically, in the event this Court deems Defendants request for attorneys fees accrued in Plaintiff Neda Heidaris (Plaintiff) second appeal, the Fee Appeal (B334160), as requested in the pending Appellate Fees Motion to be an untimely request, then Defendants (1) hereby move for relief under California Rules of Court, rule 3.1702(d) to extend their time to bring a motion to seek appellate fees accrued in the Fee Appeal, and (2) request this Court deem their pending Appellate Fees Motion timely to the extent it seeks those fees.
The grounds for this request is that there is good cause to grant Defendants an extension of time to seek fees on the Fee Appeal and good cause to deem their Appellate Fees Motion as timely filed to the extent it seeks those fees.
A court may extend the time for filing an attorneys fees motion for good cause, even after the 60-day period has expired.
(
Lewow v. Surfside III Condominium Owners Assn., Inc.
(2012) 203 Cal.App.4th 128, 134-135)
But the late filing of the motion for attorney fees does not mean that Association is precluded from recovering its reasonable attorney fees. Rule [*135] 3.1702(d) provides: For good cause, the trial judge may extend the time for filing a motion for attorney's fees & . Rule 3.1702(d) is remedial and is to be given a liberal, rather than strict interpretation. (E.g.,
Barragan v. County of Los Angeles
(2010) 184 Cal.App.4th 1373, 1382 [109 Cal. Rptr. 3d 501] [relief to be granted unless absolutely forbidden].)
We reject appellant's contention that a rule 3.1702(d) extension of time must be granted before the expiration of the 60-day period.
The ordinary principles of statutory construction govern our interpretation of the California Rules of Court. [Citations.] Our objective is to determine the drafter's intent. (
Alan v. American Honda Motor Co., Inc.
(2007) 40 Cal.4th 894, 902 [55 Cal. Rptr. 3d 534, 152 P.3d 1109].)
If the drafters of rule 3.1702(d) intended that the extension be granted before the expiration of the 60-day period, they would have said so as they did in rule 3.1702(b)(2), which provides: The parties may, by stipulation
filed before the expiration of the time allowed under (b)(1)
[(the 60-day period)], extend the time for filing a motion for attorney's fees & . (Italics added.) Rule 3.1702(d) contains no such limitation: For good cause, the trial judge may extend the time for filing a motion for attorney's fees in the absence of a stipulation or for a longer period than allowed by stipulation. [I]f a statute on a particular subject omits a particular provision, inclusion of that provision in another related statute indicates an intent the provision is not applicable to the statute from which it was omitted. [Citation.] (
In re Marquis D.
(1995) 38 Cal.App.4th 1813, 1827 [46 Cal. Rptr. 2d 198].)
Accordingly, for good cause the trial court had the power to extend the time for filing Association's motion for attorney fees. The good cause would have been counsel's mistake of law in believing that the bankruptcy stay tolled the statutory 60-day period. The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.]
Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief. [Citation.] [Citation.] Thus & a mistaken but reasonable decision by [Association's] counsel that [the 60-day period was tolled by the bankruptcy stay] constitutes good cause for the trial court to permit belated [filing of the motion]. Counsel are not expected to be omniscient, as the [drafters] plainly recognized by writing the good cause exception into [rule 3.1702(d)]. (
City of Ontario v. Superior Court
(1970) 2 Cal.3d 335, 346 [85 Cal. Rptr. 149, 466 P.2d 693].)
(
Lewow v. Surfside III Condominium Owners Assn., Inc.
(2012) 203 Cal.App.4th 128, 134-135)
Here, Defendants seek a
one-day
extension of the deadline on the ground that counsel miscalendared the due date by one day. (Motion, Page 9:10-14.) The Court finds that counsels calendaring error constitutes good cause for the requested one day extension. (See Declaration of Ryan Gordon, ¶¶ 29 34.)
Plaintiffs opposition is inapposite in focusing on the memorandum of costs, not the attorneys fees motion.
The motion for relief is GRANTED. The attorneys fees motion filed on May 30, 2024 is deemed to have been timely filed.
Ruling
De Lage Landen Financial Services Inc. vs. Infinity Energy Inc.
Jul 22, 2024 |
S-CV-0052440
S-CV-0052440 De Lage Landen Financial Services vs. Infinity Energy
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Infinity Energy Inc.
Ruling
Brian Folland vs. Denna Rogers
Jul 10, 2024 |
21CECG01468
Re: Folland v. Rogers
Superior Court Case No. 21CECG01468
Hearing Date: July 10, 2024 (Dept. 501)
Motion: Plaintiff/Petitioner’s Petition to Confirm Arbitration Award
Tentative Ruling:
To grant, confirming the arbitration award in favor of plaintiff/petitioner in the
amount of $76,265 plus $435 in costs, and $14,709.74 in prejudgment interest, for a total
of $91,409.74. Plaintiff/petitioner is directed to submit a proposed judgment consistent
with the court’s ruling within 7 days of the service of the minute order.
Explanation:
Any party to an arbitration in which an award has been made may petition the
court to confirm the award. The petition shall name as respondents all parties to the
arbitration and may name as respondents any other person bound by the arbitration
award. (Code Civ. Proc., §1285.)
A petition shall: (a) set forth the substance or have attached a copy of the
agreement to arbitrate unless the petitioner denies the existence of such an agreement;
(b) set forth the names of the arbitrators; and (c) set forth or have attached a copy of
the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.)
If a petition is duly served and filed, the court shall confirm the award as made,
whether rendered in this state or another state, unless it corrects the award and confirms
it as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., §1286.)
Here, the moving papers conform to the requirements set forth in the Code of Civil
Procedure sections 1285 and 1285.4. In accordance with Code of Civil Procedure,
section 1285, petitioner names Denna Rogers as the party to be bound by the arbitration
award.
A copy of the arbitration agreement is attached to the Complaint which
commenced this action. (Compl., Exh. A.) Also, a copy of the arbitrators’ award is
attached to the Petition. (Petn., Attachment 6C.) The Petition and Notice of Hearing were
properly served on June 6, 2024 by mail. The Petition also provides that the arbitration
award was served to respondent on July 7, 2022. (Petn., Item 7.) The Petition provides that
the arbitration award is binding because more than 30 days have passed since notice of
the award was mailed, and no party filed a rejection of the award or requested for trial.
(Petn., Item 8(b).) Further, the Petition is unopposed and no evidence indicating any
application has been made to correct or vacate the award, and the statutory period for
making such application has now passed. (Code Civ. Proc., § 1288. [“A petition to
vacate an award or to correct an award shall be served and filed not later than 100 days
after the date of the service of a signed copy of the award on the petitioner.”].)
Thus, the Petition to confirm the arbitration award is granted. However,
Plaintiff/Petitioner has calculated the prejudgment interest to the date of September 17,
2024. The court calculates the prejudgment interest to be $14,709.74.1
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 7/9/2024 .
(Judge’s initials) (Date)
1This figure is calculated using an interest rate of 10% per annum from the date the arbitration
award became binding, August 6, 2022 (30 days following the day the award was mailed) through
July 10, 2024 (the hearing date of this petition).
Ruling
J.B. HUNT TRANSPORT, INC. VS CONTRACTOR'S WARDROBE, INC.
Jul 09, 2024 |
24CHCV00391
Case Number:
24CHCV00391
Hearing Date:
July 9, 2024
Dept:
F43 Dept. F43
Date: 7-9-24
Case #24CHCV00391,
J.B. Hunt Transport, Inc. vs. Contractors Wardrobe, Inc.
Trial Date: N/A
DEMURRER WITH MOTION TO STRIKE
MOVING PARTY: Defendant Contractors Wardrobe, Inc.
RESPONDING PARTY: Plaintiff J.B. Hunt Transport, Inc.
RELIEF REQUESTED
Demurrer to the Complaint
·
2
nd
Cause of Action for Common Counts
·
3
rd
Cause of Action for Unjust Enrichment
Motion to Strike
·
Request for attorneys fees and costs of suit herein incurred and according to the Agreement in Plaintiff's Prayer [p. 6:17-18 of the Complaint]
·
Attorneys fees [pp. 4:16, 4:25, 5:6, 5:8, and 5:13]
·
Request for special and consequential damages in Plaintiffs Prayer [p. 6:15]
RULING
: Demurrer is sustained; motion to strike is granted.
SUMMARY OF ACTION
Plaintiff J.B. Hunt Transport, Inc. (Plaintiff) is alleging that it entered into a written agreement with Defendant Contractors Wardrobe, Inc. (Defendant). The written agreement, titled Dedicated Contract Services Transportation Agreement, was signed on March 12, 2020. The Agreement is attached as Exhibit A to Plaintiffs complaint. Pursuant to the terms of the Agreement, Plaintiff was to provide transportation of Defendants good throughout California for an initial term of five years, beginning on April 1, 2020.
Plaintiff alleges that Defendant terminated the Agreement on August 25, 2023, effective September 9, 2023. Plaintiff is alleging that Defendant has failed to pay Plaintiff for services provided by Plaintiff under the Agreement at the total costs of $1,448,158.87. Plaintiff also alleges that Defendant failed to pay Plaintiff $340,282.82 in unamortized start-up costs and permanent delete charges.
Plaintiffs complaint, filed on February 8, 2024, alleges three causes of action for (1) breach of contract, (2) common counts, and (3) unjust enrichment. Defendant filed its demurrer and motion to strike on May 13, 2024. Defendant demurs to Plaintiffs Second and Third Causes of Action.
Plaintiff filed an opposition to Defendants demurrer and motion to strike on June 25, 2024.
ANALYSIS
A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also
Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (
Postley v. Harvey
(1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (
Berkley v. Dowds
(2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (
Picton v. Anderson Union High School Dist.
(1996) 50 Cal.App.4th 726, 733.)
Second Cause of Action for Common Counts
Defendant demurs to Plaintiffs Second Cause of Action for Common Counts on the basis that it fails to state facts sufficient to state a cause of action and is uncertain.
Defendant argues that Plaintiffs cause of action for common counts pleads four different types of common counts that should have been listed as separate causes of action. Those four distinct common counts are (1) open book account; (2) account stated; (3) goods and services rendered; and (4) money had and received.
Each cause of action, count, or defense must be separate stated and given a separate number. (Cal. Rules of Court Rule 2.112.) Defendant argues that the four common counts listed by Plaintiff should be distinct causes of action because they each have separate jury instructions: Money Had and Received (CACI § 370); Goods and Services Rendered (CACI § 371); Open Book Account (CACI § 372); and Account Stated (CACI § 373).
Demurrers have long been sustained when separate causes of action are not listed separately. (
Haddad v. McDowell
(1931) 213 Cal. 690, 692;
Campbell v. Rayburn
(1954) 129 Cal.App.2d 232, 235 (the special demurrer was properly sustained because the complaint was defective in that two purported causes of action were not separately stated).)
Plaintiffs opposition does not address Defendants arguments that the common counts should be listed separately. Instead, Plaintiff only argues that common counts are not subject to fact pleading standards. However, as Defendant argues in its reply, the case that Plaintiff cites in support of this argument sustains a demurrer to common counts for failing to comply with facts pleadings standards. (
Farmers Ins. Exchange v. Zerin
(1997) 53 Cal.App.4th 445, 460 (demurring to common counts because plaintiff failed to comply with fact pleading standards by pleading them in a conclusional fashion).)
Defendants demurrer to this cause of action is sustained on the basis that the common costs listed under this cause of action should be pled as separate causes of action.
Defendant also demurs to this cause of action on the basis that it improperly pleads common counts seeking the same damages as the breach of contract cause of action.
Plaintiffs cannot simultaneously: (1) plead that an enforceable express contract exists; and (2) plead common counts seeking the same relief for the same alleged breach. (See
Leoni v. Delany
(1948) 83 Cal.App.2d 303, 307 (It is the unenforceability of an otherwise valid contract which gives rise to the right of relief through the medium of a common count.);
Moore v. Bartholomae Corp.
(1945) 69 Cal.App.2d 474, 477 (The law is established in California that a debt which is predicated upon the breach of the terms of an express contract cannot be the basis of an account stated.).)
Plaintiffs complaint alleges that the damages sought by the common counts cause of action are the same as those caused by Defendants breach of a valid and enforceable contract. (See Comp., ¶¶ 12, 13, 18, 22, 24, 29, 31, and 33.) Two of the common counts also expressly allege that they are based on an alleged breach of contract and seek breach of contract damages. (See Comp., ¶¶ 20-21; 24-25, 27.)
Plaintiffs cause of action for common counts is based on the same damages as Plaintiffs cause of action for breach of contract and is therefore improperly pled. Defendants demurrer to the second cause of action can also be sustained on this basis.
Defendant also argues that the second cause of action is uncertain because Plaintiff does not plead that it is an alternative to the breach of contract cause of action and instead pleads it as its own distinct cause of action. Plaintiffs opposition argues that the common counts are pled in the alternative, but as Defendant points out in its reply, there is no language in Plaintiffs complaint indicating that the common counts are being pled as an alternative to the breach of contract cause of action. The opposition also does not explain how the common counts could be pled in the alternative.
Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend for the reasons given above.
Third Cause of Action for Unjust Enrichment
Defendant demurs to Plaintiffs Third Cause of Action for Unjust Enrichment on the basis that it fails to state facts sufficient to state a cause of action against Defendant.
Defendant argues that demurrer to this cause of action is appropriate because there is no cause of action for unjust enrichment in California. (
Melchior v. New Line Productions, Inc.
(2003) 106 Cal.App.4th 779, 785, 793 (unjust enrichment is not a valid cause of action under California law).) Defendant further argues that unjust enrichment cannot stand as its own cause of action. (See
Everett v. Mountains Recreation & Conservation Authority
(2015) 239 Cal.App.4th 541, 553.)
Plaintiffs opposition does not address Defendants argument that unjust enrichment is not a cause of action in California. Plaintiff cites CACI § 375 in its opposition, but that section does not apply to the unjust enrichment that Plaintiff has pled because it involves third-party middlemen, and that section states that unjust enrichment is not a cause of action.
Defendant also argues that even if there were a cause of action for unjust enrichment in California, this cause of action would also be duplicative of Plaintiffs breach of contract cause of action because it requests the same damages. (See Comp., ¶ 37.)
Because there is no cause of action for unjust enrichment in California, Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend.
Motion to Strike
A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, [a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Under CCP § 436(a), [t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading. Under CCP § 436(b), the court may [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.
Attorney Fees
Defendant has requested that Plaintiffs request for attorney fees be stricken because attorney fees are available only when provided for by contract or statute. (CCP §1021.)
Plaintiffs complaint claims that it can recover attorney fees according to the Agreement, but the Agreement makes no provision for attorney fees. Plaintiff also makes this claim in its opposition, but its claim is not supported by reference to any section of the Agreement. Plaintiff does refer to Paragraph 3(a) on page 2 of the Contract, but that paragraph only mentions costs, not attorney fees.
Accordingly, Plaintiffs request for attorney fees is ordered stricken from the complaint.
Special and Consequential Damages
Plaintiff also requests special and consequential damages, but Defendant points out that the alleged relevant agreement expressly prohibits the parties from seeking such damages. (Wilson Decl., Ex. A, § 6(d) (in no event will either Party be liable for incidental, consequential (including lost profits and chargebacks), special, punitive or exemplary damages in connection with the goods or the services rendered hereunder even if notice was given of the possibility of such damages and even if such damages were reasonably foreseeable).)
Plaintiff argues in its opposition that it does not seek damages for the goods or services rendered; rather, Plaintiff seeks damages for Defendants unilateral cancellation of the contract. However, Plaintiff does not give a basis for seeking special and consequential damages for the cancellation of the contract. Furthermore, Defendant argues in its reply that terminating the services under a service contract arises in connection with&the services rendered hereunder. Therefore, the provision cited above could, in fact, apply to this situation.
Because the requested damages are based on a breach of the Agreement but the Agreement forbids recovery of such damages, Plaintiffs request for special and consequential damages is ordered stricken from the complaint.
CONCLUSION
Defendants demurrer to Plaintiffs Second Cause of Action is sustained with leave to amend. Defendants demurrer to Plaintiffs Third Cause of Action is sustained without leave to amend.
Defendants motion to strike is granted.
Plaintiff is given 30 days leave to amend.
Moving party to give notice to all parties.
Ruling
KF SUNRAY, LLC VS FRANCIS MEJIA
Jul 09, 2024 |
24STCV05465
Case Number:
24STCV05465
Hearing Date:
July 9, 2024
Dept:
52
Tentative Ruling
Order to Show Cause Re: Default Judgment
Plaintiff KF
Sunray, LLC dba Sunray Healthcare Center requests court judgment by default against defendant Francis Mejia aka Francis R. Mejia, Sr. aka Francis R. Mejia.
Plaintiffs application meets all requirements for default judgment.
Plaintiffs request for default judgment is
granted
.
The court will sign the proposed judgment plaintiff submitted on form JUD-100 and will enter judgment.
Preview
I HOWIE k SMITH, L.L.P. ATTORNEYS AT LAW 2 1777 BOREI. PLAOE, SUITE1000 10/28/2021 SAN MATEo, CA 94402-3509 3 TEER (650) 685-9300 FAx: (650) 685-3967 4 ROBERT (L HOWIE, sBN 057361 5 AUDREY SMITH, SBN 180836 ATTORNEYS FOR PLAINTIFF AND CROSS-DEFENDANT SANDRA TIDWELL 6 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 10 11 SANDRA TIDWELL, ) ) Case No. CIV536345 12 Plaintiff, ) ) NOTICE OF MOTION AND MOTION 13 v. ) FOR LEAVE TO FILE FOURTH ) AMENDED COMPLAINT 14 ) [CCP $ )473(a), 576] JACKSON TIDWELL, DENA TIDWELL, ) 15 and the testate and intestate successors of ) JACKIE WAYNE TIDWELL, deceased and ) 16 all persons claiming by, through, or under ) such decedent, and all persons unknown, ) 17 claiming any legal or equitable right, title, ) estate, lien or interest in the property ) 18 described in the complaint adverse to ) plaintiff" s title, or any cloud on plaintiff's ) 19 title thereto, and DOES 2 through 50, ) inclusive, ) 20 ) Defendants ) 21 ) ) 22 JACKSON W. TIDWELL, ) Case No. CLJ212151 DENA TIDWELL, et al. ) 23 ) Cross-Complainant, ) 24 v. ) ) 25 ) SANDRA TIDWELL, and DOES I TO 5 ) Date: October 28, 2021 26 ) Time: 9:00 a.m. Defendants. ) Department: 10 - Judge Buchwald 27 ) ) Complaint Filed: November 23, 2015 28 Trial Date: Not Assigned I NOTICF. OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT I TO DEFENDANTS AND CROSS-COMPLAINANTS JACKSON TIDWELL and DENA TIDWELL, 2 and to Francois Sorba, their attorney of record: NOTICE IS HEREBY GIVEN that, on October 28, 202, at 9:00 a.m., or as soon thereafter as 4 the matter may be heard, in the Department 10, the trial department of this case in this court, located at 5 400 County Center, Redwood City, Plaintiff and Cross-Defendant SANDRA TIDWELL will, and hereby 6 does, move under Code of Civil Procedure Sections 473(a) and 576 for leave to file a fourth amended 7 complaint on grounds that a separately stated cause of action for breach of fiduciary duty as to Defendant 8 and Cross-complainant will clarify issues previously pled and insure findings relating to that cause of 9 action. 10 The motion will be based on this notice of motion, on the declaration of Robert G. Howie, and 11 the memorandum served and filed herewith, on the records and file herein, and on such evidence as may 12 be presented at the hearing of the motion. 13 Dated Octoberg 2021 HOWIE & SMITH, L.L.P. 15 16 17 18 By: 19 Robert G. Howie, Esq., Attbrney for Plaintiff and Cross-Defendant SANDRA TIDWELL 20 21 22 23 24 25 26 27 28 2 NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT CASK NAME: Sandra Tidwell v. Jackson Tidwell, er al COURT: Superior Court of California, County of San Mateo 2 CASK NO: Consolidated Lead Case: CIV536345; CLJ212151 PROOF OF SERVICE 4 I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years, and not a party to, or interested in the within entitled action. 1 am an employee of HOWIE & SMITH, L.L.P., 6 business address is Attorneys at Law, and my 1777 Borel Place, Suite 1000, San Mateo, CA 94402-3509. On October 25, 2021, I served the following document(s): 8 1. NOT CE OF MOTION AND MOTION FOR LEAVE TO FILE FOURTH COMPLAINT AMENDED 9 2. MK MORANDUM OF POINTS AND AUTHORITIES IN SUPPORT FOR LEAVE TO TO FILE FOURTH AMENDED COMPLAINT OF MOTION D ECLARATION OF ROBERT C. HOWIE IN SUPPORT OF MOTION FOR LEAVE 10 T0 FILE FOURTH AMENDED COMPLAINT 4. PLAINTIFF'S REOUKST FOR JUDICIAL NOTICE IN SUPPORT OF 11 LEAVE TO AME MOTION FOR Proposed] ORDER 12 on the following parties in this action in an envelope(s) addressed as follows: 13 Francois X. Sorba, Esq. Jackson Tidwell & Dena Tidwell's Attorney Attorneys at Law 14 P. O. Box 2855 San Anselmo, CA 94979 15 Email: fsorha&fxs-law.corn 16— (BY MAIL) I caused each such envelope, with postage thereon fully prepaid, to be mail at San Mateo, California. placed in the United States I am readily familiar with the business practice for collection and mail in this office. processing of That in the ordinary course of business said document(s) would be deposited 17 Postal Service in San Mateo on that same day. with the U.S, I understand that service shall be presumed invalid of a party served if the postal cancellation date or postage meter date on the envelope is upon motion 18 more than one day atter the date of deposit for mailing contained on this affidavit. (BY PERSONAL SERVICE) I caused each such envelope to be delivered by hand to each addressee as shown. 19 (BY FEDERAL EXPRESS OVERNIGHT DELIVERY) I caused each envelope, with delivery fees provided for, to be deposited in a box regularly maintained by Federal Express. I am readily familiar with tbe practice in 20 this office for collection and processing of correspondence for overnight delivery and know that in the ordinary course of the business practice in this office the document(s) described above will be deposited in a box or other facility regularly maintained by Federal Express or delivered to an authorized cowier 21 or driver authorized by Federal Express to receive documents on the same date that it is placed for collection. (BY ELECTRONIC MAIL) I served a copy of the above-described document(s) on 22 the parties on the attached service list by electronic transmission from the electronic address of ssinghghowielaw.corn. to the electronic notification addresses listed on the attached service list. 23 X (BY E-SERVICE) I served a copy of the above-described document(s) on the parties on the attached service list by electronic transmission through approved electronic service provider One Legal Inc. to the electronic notification addresses listed on the attached service list. (BY FACSIMILE TRANSMISSION) By use of facsimile machine number (650) 212-0842, I served a copy of 25 the within document(s) on the interested parties at the facsimile numbers listed. The transmission was complete and without error. The transmission report was properly issued by the transmitting facsimile reported as machine 26 1declare under penalty of perjury under the laws of the State of California that the foregoing is 27 true and correct. Executed on October 25, 2021, at San Ma 28 I PROOF OF SFRVIi E