Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (2024)

Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (1)

Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (2)

  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (3)
  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (4)
  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (5)
  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (6)
  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (7)
  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (8)
  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (9)
  • Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (10)
 

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Filing # 110829210 E-Filed 07/27/2020 12:18:49 PM IN THE CIRCUIT COURT OF THE 177 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FAITH JACKSON-LEWIS and her CASE NO: CACE-19-024207 (08) husband, AUSTIN LEWIS, Plaintiffs, Vv. WINN-DIXIE STORES, INC., Defendant. WINN DIXIE STORES, INC., Third-Party Plaintiff, Vv RUG DOCTOR, LLC, Third-Party Defendant, / WINN DIXIE STORES, INC’S THIRD PARTY COMPLAINT AGAINST RUG DOCTOR, LLC WINN-DIXIE STORES, INC., (“WINN-DIXIE”) by and through the undersigned attorney, files this Third Party Complaint against RUG DOCTOR, LLC (“RUG DR’) and in support thereof sets forth as follows: JURISDICTION AND VENUE This is a cause of action for damages in excess of the minimal jurisdictional limits of this Court, $30,000.00. At all times material hereto the Plaintiff, WINN-DIXIE, was a Florida Corporation licensed to and conducting business in the State of Florida and specifically within #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/27/2020 12:18:46 PM.**#*Broward County, Florida. At all times material hereto, RUG DR was a foreign Corporation licensed to and conducting business in Broward County, Florida. At all times material hereto, WINN DIXIE owned, operated, maintained and/or managed a supermarket located at 1055 W. Hallandale Beach Bivd., Hallandale Beach, FL. On or about September 21, 2006 WINN DIXIE contracted with RUG DR for RUG DR to supply certain materials to WINN DIXIE. A copy of said contract and its amendments are attached as Composite Exhibit A. At all times material hereto said contract was in full force and effect. One of the materials RUG DR would supply to WINN DIXIE was RUG DR shampoo cleaners, which WINN DIXIE would rent out to its customers. Composite Exhibit A The subject store above was included in this agreement. Pursuant to the contract RUG DR represented that: (a) ALL PRODUCTS are free from defects, merchantable, fit for their intended use... (b) ALL PRODUCTS and EQUIPMENT are suitable for use... Section 12.1 of Composite Exhibit A.10. Further, pursuant to the contract:1. [RUG DR] agrees to defend, protect, indemnify and hold harmless [WINN DIXIE], and their respective officers, directors, employees and agents from any act, error or omission of [RUG DR], and its officers, directors, employees and agents which liability arises out of regarding: (a) Any alleged defect in the PRODUCTS or EQUIPMENT or the use or condition thereof, or (b) Any breach or violation of any warranty, representation, term or condition of this AGREEMENT by [RUG DR]. This indemnification includes all losses, costs (including reasonable attorney’s fees), claims, demands, suits and causes of action of whatever nature for any and all damages to properties of third parties and/or properties of the parties hereto and for any and all injury (including death) to any person... Section 12.2 of Composite Exhibit A.11. Lastly, RUG DR also agreed that it would: ...have and maintain at its sole cost and expense throughout the term of and for three (3) years thereafter, standard liability insurance from a recognized insurance company acceptable to [WINN DIXIE]. This insurance coverage must provide the amount specified in EXHIBIT B. 1 Such insurance coverage must name [WINN DIXIE] as an additional insured party against any and all claims, demands causes of action or damages, including reasonable attorney's fees, arising out of any use of or alleged defect(s) in the PRODUCTS or EQUIPMENT. Section 13.1 of Composite Exhibit A.12 On or about November 22, 2019 FAITH JACK-SON LEWIS (“JACKSON-LEWIS”) filed suit against WINN-DIXIE. A copy of the Complaint is attached as Exhibit B.13, JACKSON-LEWIS alleged that she was in the subject WINN-DIXIE store on September 23, 2018. Paragraph 4 of Exhibit B.14 JACKSON-LEWIS alleged that she slipped and fell due to liquid that was on the floor. Paragraph 4 of Exhibit B.15. Said alleged liquid on the floor that JACKSON-LEWIS slipped in came from a leaking RUG DR shampoo cleaning machine.16. Prior to the subject lawsuit, WINN-DIXIE sent correspondence to RUG DR requesting RUG DR defend and indemnify WINN DIXIE for the subject claim by JACKSON-LEWIS which RUG DR accepted. A copy of same is attached as Exhibit C.17, Subsequent thereto and after this lawsuit was filed, RUG DR now refuses to defend and indemnify WINN DIXIE for JACKSON-LEWIS’ claim.18 WINN-DIXIE has been required to hire an attorney to defend it in the action filed by JACKSON-LEWIS and may ultimately have to pay monies for the injuries allegedly received by JACKSON-LEWIS due to the sole fault of RUG DR. COUNT 1 - CONTRACTUAL INDEMNITY AS TO RUG DR Paragraphs 1-18 are readopted, realleged, and reincorporated, as if fully set forthherein.19. At all times material hereto, WINN DIXIE owned, operated, maintained and/or managed a supermarket located at 1055 W. Hallandale Beach Bivd., Hallandale Beach, FL.20. On or about September 21, 2006 WINN DIXIE contracted with RUG DR for RUG DR to supply certain materials to WINN DIXIE. A copy of said contract and its amendments are attached as Composite Exhibit A.21 At all times material hereto said contract was in full force and effect.22 One of the materials RUG DR would supply to WINN DIXIE was RUG DR shampoo cleaners, which WINN DIXIE would rent out to its customers, Composite Exhibit A23. The subject store above was included in this agreement.24 Pursuant to the contract RUG DR represented that: (c) ALL PRODUCTS are free from defects, merchantable, fit for their intended use... (d) ALL PRODUCTS and EQUIPMENT are suitable for use... Section 12.1 of Composite Exhibit A.25 Further, pursuant to the contract: 3. [RUG DR] agrees to defend, protect, indemnify and hold harmless [WINN DIXIE], and their respective officers, directors, employees and agents from any act, error or omission of [RUG DR], and its officers, directors, employees and agents which liability arises out of regarding:(c) Any alleged defect in the PRODUCTS or EQUIPMENT or the use or condition thereof, or (d) Any breach or violation of any warranty, representation, term or condition of this AGREEMENT by [RUG DR]. This indemnification includes all losses, costs (including reasonable attorney's fees), claims, demands, suits and causes of action of whatever nature for any and all damages to properties of third parties and/or properties of the parties hereto and for any and all injury (including death) to any person... Section 12.2 of Composite Exhibit A.26. Lastly, RUG DR also agreed that it would: ..have and maintain at its sole cost and expense throughout the term of and for three (3) years thereafter, standard liability insurance from a recognized insurance company acceptable to [WINN DIXIE]. This insurance coverage must provide the amount specified in EXHIBIT B. 2 Such insurance coverage must name [WINN DIXIE] as an additional insured party against any and all claims, demands causes of action or damages, including reasonable attorney's fees, arising out of any use of or alleged defect(s) in the PRODUCTS or EQUIPMENT. Section 13.1 of Composite Exhibit A.27. On or about November 22, 2019 FAITH JACK-SON LEWIS ("JACKSON-LEWIS”) filed suit against WINN-DIXIE. A copy of the Complaint is attached as Exhibit B.28. JACKSON-LEWIS alleged that she was in the subject WINN-DIXIE store onSeptember 23, 2018. Paragraph 4 of Exhibit B.29 JACKSON-LEWIS alleged that she slipped and fell due to liquid that was on the floor. Paragraph 4 of Exhibit B.30 Said alleged liquid on the floor that JACKSON-LEWIS slipped in came from a leaking RUG DR shampoo cleaning machine.31 Prior to the subject lawsuit, WINN-DIXIE sent correspondence to RUG DR requesting RUG DR defend and indemnify WINN DIXIE for the subject claim by JACKSON-LEWIS which RUG DR accepted. A copy of same is attached as Exhibit C.32, Subsequent thereto and after this lawsuit was filed, RUG DR now refuses to defend and indemnify WINN DIXIE for JACKSON-LEWIS’ claim.33. WINN-DIXIE has been required to hire an attorney to defend it in the action filed by JACKSON-LEWIS and may ultimately have to pay monies for the injuries allegedly received by JACKSON-LEWIS due to the sole fault of RUG DR.34 As a result of RUG DR’S failure to defend and indemnify WINN-DIXIE in the lawsuit filed against it by JACKSON-LEWIS, WINN-DIXIE has suffered damages, including but not limited to paying attorney fees and costs for the defense of the action as well as monies that may be paid in this claim.35 WINN-DIXIE has had to retain the services of counsel to defend it in the action brought by JACKSON-LEWIS and to prosecute this Complaint against RUG DR. WINN-DIXIE has agreed to pay said attorneys a reasonable fee for their services. WHEREFORE, .and based on the foregoing, WINN-DIXIE demand damagesagainst RUG DR, including any and all damages which it may have to pay in this lawsuitby JACKSON-LEWIS against WINN-DIXIE, the costs of defending that action, costs ofthis action, reasonable attorney's fees and trial by jury of all triable issues. COUNT Il - COMMON LAW INDEMNITY AGAINST RUG DR Paragraphs 1-18 are readopted, realleged, and reincorporated, as if fully set forthherein.36. At all times material hereto, WINN DIXIE owned, operated, maintained and/or managed a supermarket located at 1055 W. Hallandale Beach Blvd., Hallandale Beach, FL.37 On or about September 21, 2006 WINN DIXIE contracted with RUG DR for RUG DR to supply certain materials to WINN DIXIE. A copy of said contract and its amendments are attached as Composite Exhibit A.38 At all times material hereto said contract was in full force and effect.39 One of the materials RUG DR would supply to WINN DIXIE was RUG DR shampoo cleaners, which WINN DIXIE would rent out to its customers. Composite Exhibit A40 The subject store above was included in this agreement.41 On or about November 22, 2019 FAITH JACK-SON LEWIS (“JACKSON-LEWIS”) filed suit against WINN-DIXIE. A copy of the Complaint is attached as Exhibit B.42 JACKSON-LEWIS alleged that she was in the subject WINN-DIXIE store on September 23, 2018. Paragraph 4 of Exhibit B.43 JACKSON-LEWIS alleged that she slipped and fell due to liquid that was on the floor. Paragraph 4 of Exhibit B.44 Said alleged liquid on the floor that JACKSON-LEWIS slipped in came from a leaking RUG DR shampoo cleaning machine.45 Prior to the subject lawsuit, WINN-DIXIE sent correspondence to RUG DR requesting RUG DR defend and indemnify WINN DIXIE for the subject claim by JACKSON-LEWIS which RUG DR accepted. A copy of same is attached as Exhibit C.46 Subsequent thereto and after this lawsuit was filed, RUG DR now refuses to defend and indemnify WINN DIXIE for JACKSON-LEWIS' claim.47 WINN-DIXIE has been required to hire an attorney to defend it in the action filed by JACKSON-LEWIS and may ultimately have to pay monies for the injuries allegedly received by JACKSON-LEWIS due to the sole fault of RUG DR.48 Due to the contractual relationship between the parties WINN-DIXIE is technically, derivatively, constructively and/or vicariously responsible for the negligent actions and/or omissions of RUG DR.49 That WINN-DIXIE committed no negligent act and/or omission which caused or contributed to the subject accident, if any.50. That JACKSON-LEWIS’ injuries, if any, resulted solely from the negligent acts and/or omissions of RUG DR.51 Based upon these facts, WINN-DIXIE has been placed in a special relationship with RUG DR.52 This special relationship creates potential liability on behalf of WINN-DIXIE.53 This potential liability is wholly, vicarious, technical, constructive and/or derivative in nature.54 Asa result of RUG DR's negligence WINN-DIXIE has been damaged as it has had to defend itself in the lawsuit brought against it and may be required to pay monies as a result of the subject accident. WHEREFORE, and based on the foregoing, WINN-DIXIE demand damagesagainst RUG DR, including any and all damages which it may have to pay in this lawsuitby JACKSON-LEWIS against WINN-DIXIE the costs of defending that action, costs ofthis action, reasonable attorney's fees and trial by jury of all triable issues. COUNT III-BREACH OF CONTRACT AGAINST RUG DRParagraphs 1-18 are readopted, realleged, and reincorporated, as if fully set forth herein.55. At all times material hereto, WINN DIXIE owned, operated, maintained and/ormanaged a supermarket located at 1055 W. Hallandale Beach Blvd., Hallandale Beach, FL.56. On or about September 21, 2006 WINN DIXIE contracted with RUG DR for RUG DR to supply certain materials to WINN DIXIE. A copy of said contract and its amendments are attached as Composite Exhibit A.57 At all times material hereto said contract was in full force and effect.”58. One of the materials RUG DR would supply to WINN DIXIE was RUG DR shampoo cleaners, which WINN DIXIE would rent out to its customers. Composite Exhibit A59 The subject store above was included in this agreement.60. Pursuant to the contract RUG DR represented that: (e) ALL PRODUCTS are free from defects, merchantable, fit for their intended use... (f) ALL PRODUCTS and EQUIPMENT are suitable for use... Section 12.1 of Composite Exhibit A.61 Further, pursuant to the contract: 5. [RUG DR] agrees to defend, protect, indemnify and hold harmless [WINN DIXIE], and their respective officers, directors, employees and agents from any act, error or omission of [RUG DR], and its officers, directors, employees and agents which liability arises out of regarding: (e) Any alleged defect in the PRODUCTS or EQUIPMENT or theuse or condition thereof, or (f) Any breach or violation of any warranty, representation, term or condition of this AGREEMENT by [RUG DR]. 6 This indemnification includes all losses, costs (including teasonable attorney’s fees), claims, demands, suits and causes of action of whatever nature for any and all damages to properties of third parties and/or properties of the parties hereto and for any and all injury (including death) to any person... Section 12.2 of Composite Exhibit A.62. Lastly, RUG DR also agreed that it would: .. have and maintain at its sole cost and expense throughout the term of and for three (3) years thereafter, standard liability insurance from a recognized insurance company acceptable to [WINN DIXIE]. This insurance coverage must provide the amount specified in EXHIBIT B. 3 Such insurance coverage must name [WINN DIXIE] as an additional insured party against any and all claims, demands causes of action or damages, including reasonable attorney's fees, arising out of any use of or alleged defect(s) in the PRODUCTS or EQUIPMENT. Section 13.1 of Composite Exhibit A.63. On or about November 22, 2019 FAITH JACK-SON LEWIS (“JACKSON-LEWIS’) filed suit against WINN-DIXIE. A copy of the Complaint is attached as Exhibit B.64 JACKSON-LEWIS alleged that she was in the subject WINN-DIXIE store on September 23, 2018. Paragraph 4 of Exhibit B.65 JACKSON-LEWIS alleged that she slipped and fell due to liquid that was on the floor. Paragraph 4 of Exhibit B.66 Said alleged liquid on the floor that JACKSON-LEWIS slipped in came from a leaking RUG DR shampoo cleaning machine.67 Prior to the subject lawsuit, WINN-DIXIE sent correspondence to RUG DR requesting RUG DR defend and indemnify WINN DIXIE for the subject claim by JACKSON-LEWIS which RUG DR accepted. A copy of same is attached as Exhibit C.68 Subsequent thereto and after this lawsuit was filed, RUG DR now refuses to defend and indemnify WINN DIXIE for JACKSON-LEWIS’ claim.69 WINN-DIXIE has been required to hire an attorney to defend it in the action filed by JACKSON-LEWIS and may ultimately have to pay monies for the injuries allegedly received by JACKSON-LEWIS due to the sole fault of RUG DR.70. RUG DR breached the subject contract when it refused and/or failed to defend and indemnify WINN-DIXIE for the subject accident.71 RUG DR also breached the subject contract when it's equipment failed, causing a leak of water upon the floor which JACKSON-LEWIS fell and was injured in.72 WINN-DIXIE has been damaged by RUG DR’s breach, as it now must defend itself in the lawsuit and is exposed to liability to which it would have been covered if RUG DR had not breached the contract.73, WINN-DIXIE has had to retain the services of counsel to defend them in the action brought by the JACKSON-LEWIS and to prosecute this action against RUG DR.74. WINN-DIXIE has agreed to pay said attorneys a reasonable fee for their services. WHEREFORE, and based on the foregoing, WINN-DIXIE demands damagesagainst RUG DR, including any and all damages which it may have to pay in this lawsuitby JACKSON-LEWIS against WINN-DIXIE, the costs of defending that action, costs ofthis action, reasonable attorney's fees and trial by jury of all triable issues. COUNT IV-BREACH OF CONTRACT AGAINST RUG DRParagraphs 1-18 are readopted, realleged, and reincorporated, as if fully set forth herein.75. At all times material hereto, WINN DIXIE owned, operated, maintained and/or managed a supermarket located at 1055 W. Hallandale Beach Bivd., Hallandale Beach, FL.76 On or about September 21, 2006 WINN DIXIE contracted with RUG DR for RUG DR to supply certain materials to WINN DIXIE. A copy of said contract and its amendments are attached as Composite Exhibit A.77 At all times material hereto said contract was in full force and effect.78 One of the materials RUG DR would supply to WINN DIXIE was RUG DR shampoo cleaners, which WINN DIXIE would rent out to its customers. Composite Exhibit A79 The subject store above was included in this agreement.80. Pursuant to the contract RUG DR represented that: (g) ALL PRODUCTS are free from defects, merchantable, fit for their intended use... (h) ALL PRODUCTS and EQUIPMENT are suitable for use... Section 12.1 of Composite Exhibit A.81. Further, pursuant to the contract: 7, [RUG DR] agrees to defend, protect, indemnify and hold harmless [WINN DIXIE], and their respective officers, directors, employees and agents from any act, error or omission of [RUG DR], and its officers, directors, employees and agents which liability arises out of regarding: (g) Any alleged defect in the PRODUCTS or EQUIPMENT or the use or condition thereof, or (h) Any breach or violation of any warranty, representation, term or condition of this AGREEMENT by [RUG DR]. This indemnification includes all losses, costs (including reasonable attorney’s fees), claims, demands, suits and causes of action of whatever nature for any and all damages to properties of third parties and/or properties of the parties hereto and for any and all injury (including death) to any person... Section 12.2 of Composite Exhibit A.82. Lastly, RUG DR also agreed that it would: ... have and maintain at its sole cost and expense throughout the term of and for three (3) years thereafter, standard liability insurance from a recognized insurance company acceptable to [WINN DIXIE]. This insurance coverage must provide the amount specified inEXHIBIT B. 4. Such insurance coverage must name [WINN DIXIE] as an additional insured party against any and all claims, demands causes of action or damages, including reasonable attormey’'s fees, arising out of any use of or alleged defect(s) in the PRODUCTS or EQUIPMENT. Section 13.1 of Composite Exhibit A.83, On or about November 22, 2019 FAITH JACK-SON LEWIS (“JACKSON-LEWIS”) filed suit against WINN-DIXIE. A copy of the Complaint is attached as Exhibit B.84, JACKSON-LEWIS alleged that she was in the subject WINN-DIXIE store on September 23, 2018. Paragraph 4 of Exhibit B.85, JACKSON-LEWIS alleged that she slipped and fell due to liquid that was on the floor. Paragraph 4 of Exhibit B.86 Said alleged liquid on the floor that JACKSON-LEWIS slipped in came from a leaking RUG DR shampoo cleaning machine.87 Prior to the subject lawsuit, WINN-DIXIE sent correspondence to RUG DR requesting RUG DR defend and indemnify WINN DIXIE for the subject claim by JACKSON-LEWIS which RUG DR accepted. A copy of same is attached as Exhibit C.88 Subsequent thereto and after this lawsuit was filed, RUG DR now refuses to defend and indemnify WINN DIXIE for JACKSON-LEWIS'’ claim.89 WINN-DIXIE has been required to hire an attorney to defend it in the action filed by JACKSON-LEWIS and may ultimately have to pay monies for the injuries allegedly received by JACKSON-LEWIS due to the sole fault of RUG DR.90 RUG DR breached the pre-suit agreement to defend and indemnify WINN-DIXIE.91 WINN-DIXIE has been damaged by RUG DR’s breach, as it now must defend itself in the lawsuit and is exposed to liability to which it would have been covered if RUG DR had not breached the contract.92. WINN-DIXIE has had to retain the services of counsel to defend them in the action brought by the JACKSON-LEWIS and to prosecute this action against RUG DR.93. WINN-DIXIE has agreed to pay said attorneys a reasonable fee for their services. WHEREFORE, and based on the foregoing, WINN-DIXIE demands damagesagainst RUG DR, including any and all damages which it may have to pay in this lawsuitby JACKSON-LEWIS against WINN-DIXIE, the costs of defending that action, costs ofthis action, reasonable attorney's fees and trial by jury of all triable issues. DEMAND FOR JURY TRIAL WINN-DIXIE demands trial by jury of all issues so triable CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the above and foregoinghas been furnished by email through the Florida E-Filing Portal to: Vincent J. Rutigliano,Esquire, ROSENBERG & ROSENBERG, P.A., Attorneys for Plaintiff,litigation@rrpalaw.com, VRutigliano@rrpalaw.com, psanchez@rrpalaw.com this _24"day of July, 2020 and served upon the Third Party Defendant, Rug Doctor, together withthe Summons. TOPKIN & PARTLOW, P.L. Attomeys for Winn Dixie 1166 W. Newport Center Dr., Suite 309 Deerfield Beach, Florida 33442 (954) 422-8422 Telephone stopkin@topkinlaw.com chansen@topkinilaw.com By: Js} S R. Fophin SANFORD R. TOPKIN FBN: 948070ne COMPOSITE EXHIBIT “A” To Third Party ComplaintTHIRD AMENDME) ETO AG RE th Tf 4A f Le A Leththi mendment}4s-made-arof the: ESP day—oF january, 2019, but is effective as of October 14, 2009 (the fective Date"), and is entered into between WINN-BEXHE- STORES, INE. Florida-eorporation-{°Company")-and RUG BOEPOR, ANG orDelaware eee corporation (successor to RUG DOCTOR, LP and referred ro herein as “Suppliet”), ACKGROU! | Company and Rug Doets LP (*RDLP*) entered into certain Agreements dated May 62004 and February 18 1998 (the “Or inal Agreements") pursuant fo which RDP supplies carpetcleaning products to Company’s stores, ‘2 Company: fi led banker upley on or about i “obruar y 23, 2008 and jn connection herewith,Company and RDLP entered into that certain Agreement. for Assumption of Supply Agreement andAmendment to Agreement (the “First Amendment”) pursuant to. which (he Fobruary 18, 1998 agreementwas deleted in its entirety and a large portion of the May 6, 2004 was replaced with the Direct StoreDelivery Authorization Syeement terms and condifions (the “DSD Terms") Unt were attached to theFirst Amendment as Ext . On Decembor 18, 2006, Company and RDLP entered into that certain 2"Amendment to the Supply‘Aurooment between Winn-Dixie and Rug Doctor LP (the “2™ Amendment”) todelete the 12% quarterly rebate on products. The Original Agrovments, as amended by the FirstAmendment and as furthor amended by the 2" Amendment is referred to herein as the “Agreement”, 3 RDLP was succeeded hy Rug Doetor, Ine. Company and Rug Doctor, Ine. now desirelo amend the Agreement to & end the term, to revise the list of stores, and to clarify that Company wasand is to receive a 20% off invoice discount, and to make other changes as set forth herein. AGREEMENT Now, therefore, in consideration of the premises and the nutual agreements contained herein, theparties agree to amend the Agreement on the following terms and conditions: CTION DEFINITIONS. All terms used herein as defined terms that are not definedherein shall fave the meanings ascribed to them in the Agreement, unless tho context specifically requiresotherwise, 5 BCTION AMENDMENTS TO AG NT The following amendments are herebymade to the Agreement (A) As of the Effective Date. section 3.1 of Exhibit A of the First Amendment is herebydeleted and replaced with the following; ‘3.1 TERM. The initial term of this AGI MENT will be for three (3) years (from October 15, 2006 through October 14, 2009) (the nitial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for an additional term conimeneing on October 15, 2009 and (unless sooner terminated pursuant ta the terms of this Agreement) expiring on October J4, 2011 (the “Renewal Term . Upon expiration of the Renewal Term, this Agreement shall automatically renew for successive one (1) month periods (cach, a ‘Successive Term” unless and until either party provides fifleen (15) days notice of its ne ESSER RR TE TAinfent to te inate this Agreement, Each. of the Initial Tero, the Renew Term, and any Successive Term are sometimes referred to herein as ihe “Term” or the “term”.” B) E cf e as of November 3, 2006, the following is hereby added as section 53.3.1 of ICA OT ihe Fist Amieiainen “y SUPPLIER grees that daring the tern of this Agrecment COMPANY will receive a 20% alkswanee off the cost of PRODUCTS (MSRP less 40%, less 20%). Fhis allowance ingladés Equipment Rentals and cleaning products (bot excludes SUPPLTER’s vacua bags and belts.” C A new fist of stores is atfuched heroto and replaces Exhibit C of the Agreement, @y A Tist OF current PRODUCTS ahd prigtiip 18 alfiéhed ReFoto as hibit’ G, which Bahshall by incorporated as part of the Agreement, SECTION UL GOVERNING LAW ANI NUE. This Amendment and the Agreement shall inall respects be governed by and construed in accordance with the intemal lnws (but not the law of conflicts)of the State of Florida, and it is agreed that venue lor any action associated with and pertaining to theAgreement, tris Amondurent and/or the Products shall be in Duval-Coauty, Florida. SECTION TV. LANEOUS, Except as moiliffed and amended herein, the Agreomentshall remain in full force a eet, Noihing vontained herein invalidates or shall impair or release anycovenant, condition, or stipulation in the Agreement, IN WITNESS WELEREOF, the pailivs horeto have caused this Amendment to be duly execatedand delivered by their proper and daly authorized officers as of the date fest above written,SUPPLIER: COMPARY:ROG DOCTOR, INC. WINN-DIXIT: STORES, INC, a !a Det AWARE corparation Florida corparation Pee Ne Breach Conant NICE Ze HRT tile ue Sales Binatone Radian Kerio SVP - Chief Merchandising & marketing Olfiver ed et gm es y iS of renee SEIRS NTT st panda ae aEXHIBIT C Store List— (as of 1/12/2010) (STORE NAME DDRES: WINN DIXIE JAX# 466 j061 US 280 WEST ALEXANDER CITY, AL. 36010 WINN DIXIE JAX #474 3-NOTCH SHOPPING CENTER ANDALUSIA AL 36420 WINN DIXIE JAX # 447 1408 GOLDEN SPRINGS RD. ANNISTON AL 36207 WINN WINN DIXIE DIXIE JAX # 434 JAX# 429 2498 HIGHWAY 431 800 NOBLE ST ANNISTON AL 36206 ANNISTON AL 36201 WINN DIXIE N. ORL # oi2 600 E CHURCH ST ATMORE AL 36502 WINN DIXIE JAX # 579 1617 S COLLEGE ST AUBURN AL 36830 WINN DIXIE JAX #470 1695 E UNIVERSITY OR AUBURN AL 36830 WINN DIXIE N. ORL # 871 710 MCMEANS AVE BAY MINETTE AL 36507 WINN DIXIE JAX # 550 104 RIVER SQ PLAZA BESSEMER AL 36023 WINN DIXIE JAX i 596. 2970 MORGAN RO. BESSEMER AL 35023 | WINN DIXIE JAX # 405 2220 BESSEMER HWY BIRMINGHAM AL 36208 WINN DIXIE JAX # 874 2402 OLD SPRINGVILLE RD BIRMINGHAM AL 35215 WINN DIXIE JAX # $14 2683 VALLEYDALE RD BIRMINGHAM 35244 WINN DIXIE JAX # 435 4476 MONTEVALLO ROAD BIRMINGHAM Al. 35213 WINN DIXIE JAX # S17 3925 CROSSHAVEN DR CAHABA HEIGHTS AL 35243 WINN DIXIE JAX # 509 160 CHELSEA CORNERS CHELSEA Al. 35043 WINN DIXIE JAX # A0Q 33404 HWY 280 CHILDERSBURG AL 36044 WINN DIXIE JAX # Ait 640 OLIVE AVE CLANTON AL 38045 WINN DIXIE N. ORL # 596 3076 US HIGHWAY 98 DAPHNE Al, 36626 WINN DIXIE JAX# 467 1157 RALPH CLARK CIRCLE DOTHAN AL 36307 WINN DIXIE JAX #454 2131 ROSS CLARK CR. DOTHAN AL 36304 WINN DIXIE JAX #426 2510 HWY 231 NORTH DOTHAN AL 36303 WINN DIXIE JAX# 422 3850 W, MAIN STREET. DOTHAN Au 36301 WINN DIXIE JAX #_476 705 BOLL WEEVIL PLAZA ENTERPRISE AL 36330 WINN DIXIE JAX #478 4037 EURAULA AVE EUFAULA AL 36067 WINN DIXIE N. ORL# 699 187 BALDWIN SQUARE FAIRHOPE. AL 36632 WINN DIXIE N. ORL # 570 1238 S MCKENZIE FOLEY AL 36535 WINN DIXIE JAX # 458 4721 HWY, 31 NORTH FULTONDALE AL 35068 WINN DIXIE N. ORL # 586 E 16TH & HWY 59 GULF SHORES AL 36542 WINN DIXIE JAX3# 469 335 HELENA MARKET PLACE HELENA AL 35080 WINN DIXIE JAX# 625 815 PELHAM RD JACKSONVILLE AL 36265 WINN DIXIE JAX# 496 2405 HIGHWAY 78 E JASPER AL, 35501 WINN DIXIE JAX# 454 3625 HWY 14 MILLBROOK AL 36054 WINN DIXIE N, ORL # $874 2312 ST STEPHENS RD. MOBILE AL 36617 WINN DIXIE N.ORL # 564 2502 S, SHILLINGER MOBILE AL. 86695 WINN DIXIE N. ORL # 572 $440 HWY 90 WEST MOBILE AL 36619 WINN DIXIE N. ORL # 578 5568 MOFFATT ROAD MOBILE AL 36618 WINN DIXIE N. ORL # 690 6300 GRELOT ROAD MOBILE AL 36695 WINN DIXIE N. ORL # 549 740 N. SCHILLINGER RD. MOBILE AL. 36657 WINN DIXIE N. ORL # 691 9948 AIRPORT BLVD. MOBILE AL 36808VaanSTORE NAME PRE ST. WINN DIXIE N. ORL# 569 SWC 214 WHITESTONE 8T. MONROEVILLE AL. 36460WINN DIXIE JAX# 464 | 7740 NARROW LANE RD MONTGOMERY, Al 36106 WINN DIXIE JAX # 503 2050 COLISEUM BLVD MONTGOMERY, 36110 WINN DIXIE JAX # 463 2730 EASTERN BLVD MONTGOMERY. AL 36117 WINN DIXIE JAX # $21 3881 ATLANTA HIWAY. MONTGOMERY AL 36109 WINN DIXIE JAX # 534 4035 EASTERN BLVD MONTGOMERY, AL 36118 WINN DIXIE JAX # 446 4724 MIBILE HWY MONTGOMERY AL 36108, WINN DIXIE JAX # 460 $841 ATLANTA HWY MONTGOMERY AL 36117 WINN DIXIE JAX# 448 7946 VAUGHN RD MONTGOMERY AL 36116 WINN DIXIE JAX# 528 10 WATERMELON ROAO NORTHPORT AL 36476 WINN DIXIE JAX# 526 13620 HIGHWAY 43N NORTHPORT. AL 35475 WINN DIXIE JAX # 437 1441 FOXRUN PKY. OPELIKA AL 36801 WINN DIXIE.N. ORL # 490 25405 PERDIDO BLVD ORANGE BEACH Al. 36564WINN DIXIE JAX # 462 COLDWATER GREK S/C OXFORD 36203WINN DIXIE JAX # 410 1009 MARTIN ST PELL CITY. AL. 35126 aksWINN DIXIE JAX # 433 3952 US HIGHWAY 60 PHENIX CITY. AL 36867WINN DIXIE JAX# 500 4704 CENTER POINT ROAD PINSON. AL 35126WINN DIXIE JAX # $27 701 EAST MAIN ST PRATTVILLE AL 36067WINN DIXIE JAX i 442 4111 SUTTON SQUARE RAINBOW CITY: AL 35906WINN DIXIE LA # 1345 21951 HWY 69 SOUTH SUITE F ROBERTSDALE AL 36567WINN DIXIE JAX# 620 1370 HIGHLAND ee AVE SELMA AL, 36701WINN DIXIE JAX #543 1952 WEST DALLAS AVE. SELMA Al. 36704WINN DIXIE N. ORL # 473 9082 MOFFAT ROAD SEMMES AL 36575WINN DIXIE JAX # 553. 1310 GILMER AVE TALLASSEE AL 36078WINN DIXIE N. ORL # 580 8741 HWY 90 THEODORE AL 36682WINN DIXIE JAX# 461 465 MAIN STREET. TRUSSVILLE 35173WINN DIXIE JAX # 407 4201 UNIVERSITY BLVD TUSCALOOSA AL 35404WINN DIXIE JAX# 479 9750 HIGHWAY 69 SOUTH TUSCALOOSA Al, 35405WINN DIXIE JAX# 428 1019 MAIN ST, WETUMPKA, Al. 36092 ALTAMONTEWINN DIXIE ORL # 2388 340 SOUTH STATE ROAD 434 SPRINGS FL 32714WINN DIXIE ORL #673 6188 8, HWY, 44 APOLLO BEACH FL, 33572WINN DIXIE ORL# 2246 1665 US 441 N. APOPKA FL 32712WINN DIXIE MIA# 618 1330 E OAK ST sate ARCADIA. FL 33821WINN DIXIE ORL# 612 319A HAVELDALE BLVD AUBURNDALE FL 33823WINN DIXIE MIA #609 US 27 & CORNELL AVON PARK FL 33825WINN DIXIE MIA #384 900 S. MAIN STREET BELLE GLADE FL 33430WINN DIXIE ORL # 2205 10397 8 E HIGHWAY 444 BELLEVIEW. FL 34420WINN DIXIE ORL # 2220 3965 N. LECANTO HWY BEVERLY HILLS FL 32665,WINN DIXIE MIA# 358 ROUTE 3 BOX 704 BIG PINE KEY Fl. 33043WINN DIXIE MIA# 263 291 W. CAMINO REAL BOCA RATON FL 33432WINN DIXIE MIA# 355. 7024 BERACASA WAY, BOCA RATON FL, 33432WINN DIXIE MIA # 259 1620 S. FEDERAL HIGHWAY BOYNTON BEACH FL 33435WINN DIXIE MIA# 260 6600 HYPOLUXO RD. BOYNTON BEACH EL 33462WINN DIXIE MIA# 257 9840 MILITARY TRAIL. BOYNTON BEACH FL. 33436WINN DIXIE ORL # 630 4010 53 ROAD AVE. BRADENTON 34203WINN DIXLE ORL# 660 3600 83RD AVENUE BRADENTON Fu 34210= eR STORE NAM \DDRESS, is WINN DIXIE ORL #656 7400 44TH AVE WEST. BRADENTON FL 4240 WINN DIXIE ORL # 676 179 E BLOOMINGDALE AVE BRANDON EL 33514a ‘WINN DIXIE ORL #702 1230 § BROAD ST BROOKSVILLE FL 34604 WINN DIXIE ORL# 652. 31100 CORTEZ BLVD BROOKSVILLE EL 34601. WINN DIXIE ORL.# 750 6270 COMMERICAL WAY BROOKSVILLE EL 34613 WINN DIXIE ORL # 2320 41122 NORTH MAIN STREET BUSHNELL Fi. 33513 WINN DIXIE JAX #154 §266 SR 200 SUITE 14 CALLAHAN FL 32014 WINN DIXIE N. ORL # 498 155 SOUTH HIGHWAY 29 CANTONMENT. FL 32633 WINN DIXIE ORL #t 2273 1750 SUNSHADOW DR, CASSELBERRY FL 32707 WINN DIXIE ORL # 2266 7800 § HWY 17-92 UNIT 160 CASSELBERRY. FL 32730 WINN DIXIE ORL # 168 2200 W. YOUNG BLVD CHIEFLAND: FL 32626 WINN DIXIE ORL # 2334 11.00 U.S. HWY, 27 CLERMONT. FL 34711 WINN DIXIE ORL # 2225 684 WEST HIGHWAY 50 CLERMONT. FL 82711 WINN DIXIE ORL. # 2314 41066 CLEAR LAKE RD, COCOA FL 32922 WINN DIXIE ORL # 2329 [ 6251 US 1 COCOA FL. 32927 WINN DIXIE ORL # 2325 4100 CANAVERAL PLACE COCOA BEACH FL 32931 WINN DIXIE MIA #218 2581 N. HIATUS ROAD COOPER CITY FL 33026 WINN DIXIE JAX # 186 2629 CRAWFORDVILLE GRAWFORDVILLE Fl. 32327 WINN DIXIE JAX #196 1115 SUMMIT STREET. CRESCENT CITY, FL 32142 WINN DIXIE N. ORL# 558 1326 FERDOM BLVD. N CRESTVIEW FL 32536, WINN DIXIE ORL # 2217 6405 W, GULF TO LAKE CRYSTAL RIVER FL 32629 [WINN DIXIE ORL# 608 1710S HWY 3014 DADE CITY FL 33525 WINN DIXIE MIA # 354 308 E. DANIA- BEACH BLVD DANIA Fu 33004 WINN DIXIE MIA # 344 11290 STATE ROAD # 84 DAVIE FL 33325, i WINN DIXIE ORL # 2258 1541 NOVA RD, DAYTONA BEACH FL. 32117 : WINN DIXIE ORL # 2263 2200 S. ATLANTIG BLVD. DAYTONA BEACH Fi. 32118 i WINN DIXIE ORL # 2311 402§ S. NOVA RD. DAYTONA BEACH FL. 32427, WINN DIXIE N. ORL# 577, 1030 HWY 331 8 DE FUNIAK SPRINGS FL 32433, WINN DIXIE ORL # 2237. 2N, US 17-92 DEBARY. FL, 32713 WINN DIXIE MIA #345 1019 8. FEDERAL HWY, —_ DEERFIELD BEACH FL 33444 Proof WINN DIXIE MIA# 265 1101 SOUTH MILITARY __ DEERFIELD BEACH FL 33442 WINN DIXIE ORL ¥# 2343 1060 W, NEW YORK AVE. DELAND FL. 32720 WINN DIXIE ORL# 2344 2701 WOODLAND BLVD. DELAND Fu 32720 WINN DIXIE ORE # 2342 3120 N. WOODLAND BLVD. DELAND FL 32720 WINN DIXIE MIA # 255 14595 S MILITARY. DELRAY BEACH FL 33445 WINN DIXIE MIA #268 1565 S. CONGRESS AVENUE DELRAY BEACH Fl 33446 WINN DIXIE fA ORL # 2241 1200 DELTONA-PLAZA DELTONA FL 32728 WINN DIXIE ORL # 2249 1229-A PROVIDENCE BLVD. DELTON, FL 32725 WINN DIXIE ORL # 2313 2880 HOWLAND BLVD DELTONA FL 32726 WINN DIXIE N, ORL# 661 130 OLD-HIGHWAY 98 DESTIN FL. 32541, WINN DIXIE N. ORL # 560 | 981 US HIGHWAY 98 DESTIN FL 32541 WINN DIXIE ORL# 713. 243 US 27 S UNIT 2 BOX 18 DUNDEE FL 33838 WINN DIXIE ORL #640 1298 COUNTY RD 1 DUNEDIN Fl. 34698 i WINN DIXIE ORL# 2219 10051 SOUTH US 41 DUNNELLON Fi. 34434 5“STORE NAME ie IR: WINN DIXIE ORL # 2203 1838 RIDGEWOOD AVE, EDGEWATER FL 32144 WINN DIXIE MIA# 720 4400 MCCALL ROAD ENGLEWOOD EL. 34224 INN DIXIE ORI. # 2335, 1955 N. STATE RD. 19 EUSTIS EL 32726 WINN DIXIE JAX # 84 1722.8. 8TH STREET. FERNANDINA BEACH FL 32034 WINN DIXIE MIA# 204 1035 NW 9TH AVENUE FORT LAUDERDALE FL 33314 WINN DIXIE MIA# 226 1625 CORDOVA ROAD FORT LAUDERDALE FL. 33316 WINN DIXIE MIA # 230 2420 N. FEDERAL HWY FORT LAUDERDALE FL 33305, WINN DIXIE MIA # 330 3260 DAVIE BLVD. FORT LAUDERDA

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FCS058678 - ALL BAY BUILDERS V WELTER, IAN, ET AL (DMS)

Jul 29, 2024 |FCS058678

FCS058678Defendants/cross-complainants’ motions to deem matters admitted and for sanctionsTENTATIVE RULINGDefendants/Cross-Complainants Ian Welter and Jennifer Welter bring 3 motions todeem matters admitted as follows:1) Motion to Deem Requests for Admission, Set One, Admitted as to Charles Littlefieldindividually and dba All Bay Builder [sic];2) Motion to Deem Requests for Admission, Set One, Admitted against Plaintiffs/Cross-Defendants All Bay Builders, Inc. and3) Motion to Deem Requests for Admission, Set Two, Admitted against Plaintiffs/Cross-Defendants All Bay Builders, Inc.The Complaint in this matter was filed on August 22, 2022. On February 3, 2023,Defendants filed their Answer and Cross-Complaint. A Notice of Acknowledgment andReceipt was executed by Plaintiff Charles Littlefield individually and dba All Bay Buildercounsel on March 27, 2023. No Proof of Service or Notice of Acknowledgment andReceipt is contained in the court file as to Plaintiff All Bay Builders, Inc.On May 8, 2023 a Substitution of Attorneys was filed as to plaintiff/cross-defendant “AllBay Builders”. Plaintiff’s counsel Elizabeth Lawley substituted out of the case and AllBay Builders was named the successor legal representative. No new attorney hassubstituted into the case on behalf of any of the plaintiffs/cross-defendants. One of thecross-defendants is a corporation and must be represented by an attorney.On June 21, 2023, counsel for Defendants/Cross-Complainants requested the entry ofdefault as to All Bay Builders, Inc. and Charles Littlefield, individually and dba All BayBuilder [sic]. The defaults were entered as to Plaintiffs/Cross-Defendants. Page 2 of 3On December 8, 2023 Defendants/Cross-Complainants served Requests for Admission,Set One on All Bay Builders, Inc. On February 6, 2024 Defendants/Cross-Complainants served Requests for Admission, Set Two on All Bay Builders, Inc. OnFebruary 6, 2024 Defendants/Cross-Complainants served Requests for Admission, SetOne on Charles Littlefield individually and dba “All Bay Builder” on February 6, 2024.No responses have been received to any of the requests for admission.On June 12, 2024 the instant motions were filed.Counsel for the moving parties has not provided any authority upon which she relies forthe principle that a defaulted party can be compelled to respond to discovery servedmore than 5 months after his or their defaults were taken. Once the clerk enters adefault in the court record, that defendant is no longer able to file a response orotherwise participate in the case. It is unclear why discovery was not served ondefendants while they were still represented or before their defaults were taken. It isequally unclear why defendants, after losing their rights to file pleadings or defend theirposition, should be forced to respond to discovery.All three motions are denied. Sanctions are denied. Page 3 of 3

Ruling

Runisha Jackson vs. General Motors, LLC

Jul 31, 2024 |23CECG02290

Re: Jackson v. General Motors, LLC Case No. 23CECG02290Hearing Date: July 31, 2024 (Dept. 503)Motion: Defendant General Motors’ Motion to Strike Punitive Damages from Plaintiff’s First Amended ComplaintTentative Ruling: To deny defendant’s motion to strike the prayer for punitive damages from the firstamended complaint. Defendant shall serve and file its answer to the FAC within ten daysof the date of service of this order.Explanation: Meet and Confer: The court previously continued the motion to strike, as defensecounsel had not submitted a sufficient declaration showing that he engaged in goodfaith meet and confer efforts under Code of Civil Procedure section 435.5. Defensecounsel has now filed a new declaration, in which he states that the parties met andconferred by telephone on June 27, 2024, but were unable to resolve their dispute.(Updated Quezada decl., ¶ 2.) Therefore, defendant has now complied with the meetand confer requirement of section 435.5, and the court will hear the merits of the motionto strike. Motion to Strike: Defendant GM moves to strike the prayer for punitive damages,contending that, as a matter of law, plaintiff cannot recover punitive damages basedon violations of the Song-Beverly Act. The statute limits recovery to a refund of thepurchase price and a civil penalty not to exceed two times the actual damages. In addition, GM argues that plaintiff cannot recover punitive damages based onher fraud cause of action because she has failed to plead specific facts to support theelements of her fraud claim, including who made the misrepresentations, their authorityto speak, when the misrepresentations were made, by what means they were made,and how plaintiff relied on the representations and was damaged by them. (Tarmann v.State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.) In fact, defendantcontends that plaintiff cannot truthfully allege that GM made any misrepresentations toher, since she bought the car from a dealership rather than directly from GM. Likewise,defendant contends that it cannot be held liable for fraudulent concealment becauseit had no duty to disclose any facts about the vehicle to plaintiff, as it did not sell thevehicle directly to her and it had no “transactional relationship” with her. (Bigler-Englerv. Breg, Inc. (2017) 7 Cal.App.5th 276, 311.) However, to the extent that defendant argues that plaintiff has not allegedspecific facts about who made the representations about the vehicle to plaintiff, whenthey were made, etc., defendant is attempting to impose the standard for pleading afraudulent misrepresentation claim rather than the standard for pleading a fraudulentconcealment cause of action. Here, plaintiff has alleged a claim for fraudulentconcealment, not fraudulent misrepresentation. Fraudulent concealment claims do notrequire an affirmative misrepresentation, so it is not necessary for plaintiff to allegespecific facts about misrepresentations made by defendant or its agents or employees. “‘Not every fraud arises from an affirmative misstatement of material fact. “Theprinciple is fundamental that ‘[deceit] may be negative as well as affirmative; it mayconsist of suppression of that which it is one's duty to declare as well as of the declarationof that which is false.’ Thus section 1709 of the Civil Code provides: ‘One who wilfullydeceives another with intent to induce him to alter his position to his injury or risk, is liablefor any damage which he thereby suffers.’ Section 1710 of the Civil Code in relevant partprovides: ‘A deceit, within the meaning of the last section, is either: ... 3. The suppressionof a fact, by one who is bound to disclose it, or who gives information of other facts whichare likely to mislead for want of communication of that fact....’”’ (Jones v. ConocoPhillipsCo. (2011) 198 Cal.App.4th 1187, 1198, citations omitted.) As a result, the fact that plaintiffhas not alleged any specific misrepresentations by defendant or its agents does notrender the fraud cause of action defective. “‘[T]he elements of a cause of action for fraud based on concealment are: “ ‘(1)the defendant must have concealed or suppressed a material fact, (2) the defendantmust have been under a duty to disclose the fact to the plaintiff, (3) the defendant musthave intentionally concealed or suppressed the fact with the intent to defraud theplaintiff, (4) the plaintiff must have been unaware of the fact and would not have actedas he did if he had known of the concealed or suppressed fact, and (5) as a result of theconcealment or suppression of the fact, the plaintiff must have sustained damage.’ ”’”(Ibid, citation omitted.) Here, plaintiff has alleged that defendant concealed or suppressed material factsfrom her, namely that the vehicle she purchased had a defective transmission that waslikely to have problems with juddering, jerking, lurching, and hesitations. (FAC, ¶¶ 35-37,60-79.) Defendant intentionally concealed the design defect from plaintiff with the intentto induce her to purchase the vehicle. (Id. at ¶¶ 72-79.) Plaintiff was induced to purchasethe vehicle by relying on defendant’s marketing materials, which failed to disclose thedefect. (Id. at ¶¶ 73-79.) Plaintiff was damaged as a result of the defendant’sconcealment of the defective transmission, as she purchased the subject vehicle thatshe would not have purchased if she had known of the defect. (Id. at ¶¶ 73-79.) She hasalso been exposed to the risk of liability, injury, or death as a result of defendant’sconcealment of the defect. (Id. at ¶ 79.) Also, GM was the only party with knowledgeof the transmission defect, based on internal reports, testing data, customer complaints,and technical service bulletins. (Id. at ¶¶ 68-72.) None of this information was availableto the public, nor did defendant disclose the information to plaintiff. (Ibid.) Thus, plaintiffhas adequately alleged that defendant intentionally concealed or failed to disclosematerial facts to her regarding the defective transmission that were in defendant’sexclusive possession, and that its concealment caused plaintiff to lease the vehicle,causing her to suffer damages. Nevertheless, defendant argues that it had no duty to disclose the facts to plaintiffregarding the defective transmission because it did not sell the vehicle directly to plaintiff.Instead, plaintiff purchased the vehicle from a dealership. Therefore, defendantcontends that it had no transactional relationship with plaintiff, and no duty to discloseany information to him regarding the vehicle. However, in Dhital v. Nissan North America (2022) 84 Cal.App.5th 828 (reviewgranted) 1, the Court of Appeal rejected the same argument raised by the defendantcar manufacturer. Dhital also involved a lemon law case in which the plaintiffs suedNissan under the Song-Beverly Act and for fraudulent concealment of an allegedlydefective transmission in the automobile plaintiffs had purchased from an authorizedNissan dealership. (Id. at p. 832.) Nissan demurred to the fraud claim and moved to strikethe prayer for punitive damages from the second amended complaint. (Ibid.) The trialcourt sustained the demurrer to the fraud claim without leave to amend, holding theclaim was barred by the economic loss rule, and granted the motion to strike the prayerfor punitive damages. (Ibid.) On appeal, the First District Court of Appeal reversed. (Id. at p. 833.) The Court ofAppeal held that the economic loss rule did not bar the fraud claim, and also found thatplaintiffs had adequately pled the fraudulent inducement claim. (Ibid.) With regard tothe sufficiency of the fraudulent inducement/concealment claim, the court noted that,“[s]uppression of a material fact is actionable when there is a duty of disclosure, whichmay arise from a relationship between the parties, such as a buyer-seller relationship.”(Id. at p. 843, citation omitted.) “In its short argument on this point in its appellate brief,Nissan argues plaintiffs did not adequately plead the existence of a buyer-sellerrelationship between the parties, because plaintiffs bought the car from a Nissandealership (not from Nissan itself). At the pleading stage (and in the absence of a moredeveloped argument by Nissan on this point), we conclude plaintiffs’ allegations aresufficient. Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissanbacked the car with an express warranty, and that Nissan's authorized dealerships are itsagents for purposes of the sale of Nissan vehicles to consumers. In light of theseallegations, we decline to hold plaintiffs’ claim is barred on the ground there was norelationship requiring Nissan to disclose known defects.” (Id. at p. 844.) Likewise, here plaintiff has alleged that she purchased the vehicle from a GMdealership, that GM provided a full warranty for the vehicle, that GM’s dealerships are itsagents for the purpose of selling GM cars to consumers, and that GM had a duty todisclose facts about its vehicles such as defects that pose safety risks to buyers and thepublic. (FAC, ¶¶ 6, 34, 36, 41, 43, 47, 64, 68.) Thus, plaintiff has sufficiently alleged facts toshow that GM had a duty to disclose the defective transmission to her before shepurchased the vehicle. She has also alleged that GM failed to disclose the defectivetransmission to her, despite its having sole and exclusive knowledge of the defect throughcustomer complaints, and service bulletins. (Id. at ¶¶ 36-37, 62-80.) She was damagedas a result of the concealment, as she was induced to lease the vehicle despite itsdefective nature, and she would not have purchased the vehicle if she had known ofthe defect. (Id. at ¶ 73.) As a result, plaintiff has stated adequate facts to support herclaim for fraudulent concealment and inducement.1The California Supreme Court has accepted review of Dhital, so the Court of Appeal’s opinion isnot binding on this court. (See Dhital v. Nissan North America (2023) 523 P.3d 392.) However, theSupreme Court declined to depublish the Court of Appeal’s opinion pending its ruling on the meritsof the case. Therefore, the court may rely on the Dhital court’s reasoning if it finds that it ispersuasive. (Cal. Rules of Court, Rule 8.1115(e)(1).) Here, the court finds that Dhital is persuasiveand that its reasoning is directly on point with the issues raised in the present case. Therefore, thecourt will follow the Dhital court’s holding here. Since plaintiff has sufficiently alleged her claim for fraudulent concealment andinducement, she has also adequately alleged that defendant was guilty of fraud for thepurpose of seeking punitive damages. Consequently, the court intends to deny themotion to strike the prayer for punitive damages from the first amended complaint. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 7/29/24 . (Judge’s initials) (Date)

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China Tianjiu International Resources Group Limited vs Renee Kwan, et al

Jul 30, 2024 |20CV01351

20CV01351CHINA TIANJIU INT’L RESOURCES GRP LTD v. KWAN et al. (UNOPPOSED) DEFENDANT GAN’S MOTION TO FURTHER COMPEL RESPONSES TO FORM INTERROGATORIES (SET ONE), SPECIAL INTERROGATORIES (SET ONE), AND REQUESTS FOR ADMISSIONS (SET ONE), AND FOR MONETARY SANCTIONS The unopposed motion is granted in part. Defendant Zhenging Gan seeks responses to the following discovery from plaintiff: Page 1 of 2 • Form interrogatories, nos. 1.1, 17.1, and 50.1 through 50.6; • Special interrogatories, nos. 1-84, 86-99, 101-102, 104-105, 107-108, 110-111, 113-114, 116-120, 122-123, 125-129, 131-132, 134-135, 137-138, 140-141, 143-147, 149-156;1 • Request for admission (“RFA”), nos. 7, 8, 10, 12-15, 18, 19, 21, 22-25. The discovery was served on 3/6/24. (Korte Declaration, ¶ 3.) The parties agreed to anextension of time and responses were served on 4/17/24. (Korte Decl., ¶ 8.) The responses weredeficient and following meet and confer, the parties agreed that plaintiff would provide furtherresponses, with an extension to 6/10/24. No further responses were provided due to plaintiff’sfailure to communicate with its former attorney. (Korte Decl., ¶¶ 9-13.) The court orders plaintiff to provide verified code-compliant responses to the followingrequests no later than 8/23/24: • Form interrogatories, nos. 1.1, 17.1 (as to RFA nos. 7, 8, 10, 18, 19), and 50.1 through 50.6; • Special interrogatories, nos. 1-84, 86-99, 101-102, 104-105, 107-108, 110-111, 113-114, 116-120, 122-123, 125-129, 131-132, 134-135, 137-138, 140-141, 143-147, and 149-156; • Request for admission, nos. 7, 8, 10, 18, and 19. The court declines to impose monetary sanctions. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formalorder incorporating, verbatim, the language of any tentative ruling – or attaching andincorporating the tentative by reference - or an order consistent with the announced ruling of theCourt, in accordance with California Rule of Court 3.1312. Such proposed order is requiredeven if the prevailing party submitted a proposed order prior to the hearing (unless thetentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in theimposition of sanctions following an order to show cause hearing, if a proposed order is nottimely filed.1 Several special interrogatories are included in defendant’s Separate Statement that do not providereasons for further responses. Those interrogatories have not been included in this list since they are notsupported by the Separate Statement. Page 2 of 2

Ruling

LANGER JUICE COMPANY, INC. VS SILLY BRANDS, INC., ET AL.

Aug 05, 2024 |22PSCV00196

Case Number: 22PSCV00196 Hearing Date: August 5, 2024 Dept: 6 CASE NAME: Langer Juice Company, Inc. v. Silly Brands, Inc., et al. Motion of Elizabeth A. Dorsi and Yessenia Garcia-Vazquez to be Relieved as Counsel for Silly Brands, Inc. TENTATIVE RULING The Court GRANTS the motion to be relieved as counsel. Counsel is ordered to submit a corrected proposed order correcting the defects identified herein, within five days of the Courts order. The Court will also set an Order to Show Cause re Representation of Silly Brands. Counsel is ordered to give notice of this ruling and file proof of service of same within five calendar days of the Courts order. BACKGROUND This is a breach of contract case. On March 2, 2022, plaintiff Langer Juice Company, Inc. (Plaintiff) filed this action against defendants Silly Brands, Inc. (Silly Brands) and Keith Davis (Davis), alleging causes of action for breach of contract and common counts. On May 4, 2022, Silly Brands filed a cross-complaint against Plaintiff, Bruce Langer, and David Langer, alleging causes of action for breach of contract (Co-Packing Agreement), breach of implied duty to perform with reasonable care, breach of implied covenant of good faith and fair dealing, unjust enrichment, breach of contract (Operating Agreement), and breach of fiduciary duty. On June 10, 2022, Bruce Langer and David Langer (Langer Parties) filed a cross-complaint against Silly Brands and Davis, alleging causes of action for breach of Silly Brands Inc. operating agreement (against Davis only) and breach of fiduciary duty. On July 3, 2024, Elizabeth A. Dorsi and Yessenia Garcia-Vazquez of Farella Bruan & Martel LLP moved to be relieved as counsel for Silly Brands. The motion is unopposed. LEGAL STANDARD The Court has discretion to allow an attorney to withdraw, and such a motion should be granted, provided that there is no prejudice to the client, and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398, 403-407.) A motion to be relieved as counsel must be made on Judicial Council Form MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).) The requisite forms must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, Rule 3.1362, subd. (d).) DISCUSSION Elizabeth A. Dorsi and Yessenia Garcia-Vazquez of Farella Bruan & Martel LLP (collectively, Counsel), seek to be relieved as counsel for Silly Brands. Counsel contends there has been a breakdown in communications between Counsel and Silly Brands, and that Silly Brands did not consent to Counsels requests to withdraw. (Dorsi Decl., ¶ 2.) The Court finds this to be proper grounds for withdrawal. Grounds for permitting an attorney to withdraw from representation include the clients conduct that renders it unreasonably difficult for the lawyer to carry out the representation effectively[.] (Cal. Rules of Professional Conduct, rule 1.16, subd. (b)(4).) A breakdown in the attorney-client relationship is also grounds for allowing the attorney to withdraw. (Estate of Falco (1987) 188 Cal.App.3d 1004, 1014.) Counsel has provided the appropriate Judicial Council forms, namely forms MC-051, MC-052, and MC-053. (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).) Counsel has also provided proof of service of these documents. (Proofs of Service (7/3/24).) The Court notes, however, that item 6 of the proposed order is incomplete. (Proposed Order, ¶ 6.) Counsel must provide Silly Brands current or last known address and telephone number. Some of the hearing date information is also now outdated, namely the motion for summary judgment. (Proposed Order, ¶ 7.) The Court requests Counsel to provide a corrected proposed order containing Silly Brands current or last known address and telephone number and all currently pending hearing information, and to also complete item 2 regarding the persons present at the hearing on this motion. CONCLUSION The Court GRANTS the motion to be relieved as counsel. Counsel is ordered to submit a corrected proposed order correcting the defects identified herein, within five days of the Courts order. The Court will also set an Order to Show Cause re Representation of Silly Brands. Counsel is ordered to give notice of this ruling and file proof of service of same within five calendar days of the Courts order.

Ruling

RUIZ vs GENERAL MOTORS, LLC.

Jul 31, 2024 |CVRI2305994

Demurrer on 1st Amended Complaint forRUIZ vs GENERAL Breach of Contract/Warranty (OverCVRI2305994MOTORS, LLC. $25,000) of LUIS RUIZ by GENERALMOTORS, LLC.Tentative Ruling: Overrule the demurrer. Deny the motion to strike. Defendant to file an answerwithin 30 days.Factual / Procedural Context:Plaintiffs Luis Ruiz and Bridget Ruiz allege that on 3/26/20, they entered into a warranty contractwith Defendant GM regarding a 2020 Chevrolet Silverado that contains defects in thetransmission, engine, and electrical. Plaintiffs filed their action on 11/7/23. After Defendant fileda demurrer, Plaintiffs filed a First Amended Complaint on 4/16/24. The FAC asserts: (1) CivilCode §1793.2(d); (2) Civil Code §1793.2(b); (3) Civil Code §1793.2(a)(3); (4) breach of theimplied warranty of merchantability; and (5) fraudulent inducement—concealment.Defendant demurs to the 5th cause of action on the grounds it fails to state facts sufficient. Itargues it is barred by the statute of limitations based on the date the purchase date. It also assertsthat the claim is not pled with specificity. Finally, it argues that duty is not sufficiently pled. It alsomoves to strike punitive damages.Plaintiffs oppose the demurrer on the grounds that the statute of limitations did not begin to runon the date of purchase, but rather, discovery. They also assert fraudulent concealment andrepair attempts tolled the claim. They argue that concealment does not require specificity. Theycontend a transactional relationship is not required for a duty to disclose. They point out that thetransmission defect constitutes a safety hazard. Plaintiffs assert fraud and Song-Beverly supportspunitive damages.Defendant repeats the arguments from the moving papers.AnalysisA. Meet & ConferCCP §430.41 and §435.5 requires a meet and confer process via phone or in person beforefiling a demurrer or motion to strike five days before the responsive pleading is due. Themeet and confer process requires the moving party to identify the causes of action or allegationssubject to attack and the plaintiff must provide legal support for its position. (CCP §430.41(a)(1),435.5(a)(1).) The demurring party must file a declaration stating the means by which the partiesmet and conferred, or the responding party failed to respond or meet and confer in good faith.(CCP §430.41(a)(3).) Counsel Xyylon Quezada submits a declaration indicating a telephonicmeet and confer. (Quezada Decl. ¶2.) Defendant complied.B. Demurrer1. Statute of LimitationsA demurrer based on a statute of limitations defense must clearly and affirmatively show that theclaim is barred. (Lockley v. Law Office of Cantrell, Green, Kekich, Cruz & McCort (2001) 91Cal.App.4th 875, 881.) “It is not sufficient that the complaint might be barred.” (Roman v. Countyof Los Angeles (2000) 85 Cal.App.4th 316, 324.)Fraud is subject to a 3 year statute of limitations from the date of discovery. (CCP §338(d).) “Thediscovery rule provides that the accrual date of a cause of action is delayed until the plaintiff isaware of her injury and its negligent cause.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.)“A plaintiff is held to her actual knowledge as well as knowledge that could reasonably bediscovered through investigation of sources open to her.” (Ibid.) Defendant conflates purchasewith date of discovery. However, Plaintiff did not plead the first awareness of the defect untilshortly before filing the complaint. (FAC ¶29.) That is sufficient for pleading purposes and notenough for the statute of limitations to apply. The fact that the defect may have existed at thetime of the sale does not mean that Plaintiff was aware of such fact. There is no indication thaton demurrer, the statute of limitations applies.2. SpecificityConcealment requires: “(1) the defendant must have concealed or suppressed a material fact,(2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) thedefendant must have intentionally concealed or suppressed the fact with the intent to defraud theplaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he didif he had known of the concealed or suppressed fact, and (5) as a result of the concealment orsuppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. SanyoFisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) As concealment is a species of fraud, itmust also be pled with specificity. (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008)162 Cal.App.4th 858, 878.) Less specificity is required where the defendant necessarilypossesses the information. (Committee, supra, 35 Cal.3d at 216.) Furthermore, as noted by onecourt, it is not practical to allege facts showing how, when and by what means something did nothappen. (Alfaro v. Community Housing Improvement System Planning Assn. (2009) 171Cal.App.4th 1356, 1384.) However, if the concealment is based on providing false or incompletestatements, the pleading must at least set forth the substance of the statements at issue. (Ibid.)The case of Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (review granted2/1/23, S277568) 1 addressed the sufficiency for concealment for pleading purposes in fraud in alemon law case. The Dhital court found that it was sufficient that plaintiffs alleged a transmissiondefect in numerous vehicles, including the plaintiff’s, the defendant knew of the defect and thehazards they posed, defendant had exclusive knowledge of the defect and failed to disclose thatinformation, defendant intended to deceive plaintiffs by concealing known defects, the plaintiffswould not have purchased the car if they had known of the defects, and they suffered damageson the sums paid to purchase the vehicle. (Id. at 843-844.)Here, Plaintiff does plead the same facts with Dhital. Here, Plaintiff pleads that Defendant knewthat the vehicle had a transmission defect that is a safety hazard (FAC ¶61); Defendant knewabout the issue but consumers did not as it was provided by testing data, consumer complaints,aggregate warranty data, testing and other internal information (¶62, 64-67); had Plaintiff knownabout the defect, he would not have purchased it based on marketing of the transmission (¶63);Defendant issued multiple service bulletins about the transmission (¶66); and Defendantcontinued to conceal the defect (¶67-68). Here, this is sufficient for pleading purposes.3. Duty1The California Supreme Court deferred the matter pending consideration of the related issue in Rattagan v. UberTechs., Inc. (Dec. 1, 2021, S272113) regarding the economic loss rule in concealment cases.As explained in Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311: “ ‘There are “fourcircumstances in which nondisclosure or concealment may constitute actionable fraud: (1) whenthe defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusiveknowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals amaterial fact from the plaintiff; and (4) when the defendant makes partial representations but alsosuppresses some material facts.” ’ ” The last three require an evidence of some transaction, i.e.direct dealings between the plaintiff and the defendant. (Id. at 311-312.) The plaintiff had suedher doctor, the manufacturer and a supplier regarding the malfunction of a medical device(providing cold therapy). (Id. at 286.) The plaintiff had rented the device from a supplier. (Id. at287.) The court found that there was no duty to disclose because there was no relationshipbetween the plaintiff and the manufacturer, no evidence that the manufacturer knew that theplaintiff even had the device (since she obtained it from a supplier), and that there was noevidence that the manufacturer advertised to the public. (Id. at 314.)Here, Plaintiffs are relying on exclusive knowledge (FAC ¶70), which is sufficient for pleadingpurposes. The demurrer is OVERULED.C. Motion to StrikeIn order to plead punitive damages, a plaintiff must plead allegations of fraud, malice, oroppression with sufficient particularity. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374,392.) Generally, claims for punitive damages must be pleaded with particularity as to the factsconstituting the alleged egregious conduct. (G.D. Searle & Co. v. Superior Court (1975) 49Cal.App.3d 22, 29.) However, the court may read the complaint as a whole so that conclusoryallegations may be sufficient when read in context with the facts alleged as to the defendant’swrongful conduct. (Perkins v. Superior Court (General Tel. Directory Co.) (1981) 117 Cal.App.3d1, 6-7.)Malice is currently defined in the statute as “conduct which is intended by the defendant to causeinjury to the plaintiff or despicable conduct which is carried on by the defendant with a willful andconscious disregard of the rights or safety of others.” (Civil Code §3294(c)(1).) Oppression isdefined as “despicable conduct that subjects to a cruel and unjust hardship in conscious disregardof that person’s rights. (Civil Code §3294(c)(2).) Fraud is “an intentional misrepresentation,deceit, or concealment of a material fact known to the defendant with the intention on the part ofthe defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”(Civil Code §3294(c)(3).)The complaint does not identify which cause of action punitive damages are sought—it is onlyreferenced in the prayer. Punitive damages are not available for Song-Beverly. (Covert v. FCAUSA, LLC (2022) 73 Cal.App.5th 821, 828 n.3.) Plaintiffs’ citation to Clauson v. Superior Court(1998) 67 Cal.App.4th 1253 is meritless as that did not involve Song-Beverly. However, punitivedamages are available for fraud claims despite the fact that there is a Song-Beverly claim.(Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946, 971-972.) Here, only fraud wouldsupport punitive damages. As fraud is sufficiently pled, the motion is DENIED.

Ruling

MARINER vs FORD MOTOR COMPANY

Aug 01, 2024 |CVPS2401873

MARINER vs FORD MOTOR Motion for Leave to Amend on Complaint ofCVPS2401873COMPANY JAMES MARINERTentative Ruling: Grant. Plaintiff is granted 5 days’ leave to file with the Court its First AmendedComplaint, which FAC must be identical to that attached in support of the motion.Code of Civil Procedure section 472 permits the amendment of any pleading once as a matter ofcourse before the answer or demurrer is filed, or after demurrer and before trial. (Gross v. Departmentof Transportation (1986) 180 Cal.App.3d 1102, 1105.) Otherwise, amendment of any pleadingrequires prior order of court. Code of Civil Procedure sections 473 and 576, along with a long line ofcase authority, establish a “policy of great liberality in permitting amendments at any stage of theproceeding.” (Rocky Mountain Export Co. v. Colquitt (1960) 179 Cal.App.2d 204, 207.) This policy isso strong that denial of a motion for leave to amend is rarely justified. (Morgan v. Superior Court(1959) 172 Cal.App.2d 527, 530.) The court has discretion to allow any kind of amendment, includingentirely different claims, addition of new parties, or a request for a different or greater remedy. (Ibid.)The amendment must be based on the same general set of facts as the original pleading. (RockyMountain, supra, 179 Cal.App.2d at p. 207; City of Stanton v. Cox (1989) 207 Cal.App.3d 1557,1563.)Where the amended pleading would open an entirely new area of inquiry, the delay is unexplained,and the motion is made on the eve of trial, the court may properly deny a motion to amend. (Magpaliv. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487.) If the party seeking the amendment hasbeen dilatory, and the delay is prejudicial to the opposing party, the court has discretion to deny leaveto amend. (See Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice may exist wherethe amendment would require delaying trial, loss of critical evidence, or an increased discoveryburden. (Magpali, supra, 48 Cal.App.4th at pp. 486-488.) Delay alone, without prejudice, is notsufficient for denial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)A motion to amend must comply with Rules of Court, rule 3.1324(b), which requires a supportingdeclaration be submitted, specifying: (1) the purpose and effect of the proposed amendments; (2) whythe proposed amendments are necessary and proper; (3) when the facts giving rise to the proposedamendment were discovered; and (4) the reasons why the request for amendment was not madeearlier.Here, Plaintiffs have submitted a declaration of counsel declaring that they seek to amend theirComplaint to add a cause of action for fraudulent concealment and a prayer for punitive damagesalong with supporting factual allegations. (Dec.Lopez ¶ 4.) Attorney Lopez declares that theamendments are necessary and proper because the initial Complaint did not address the entire harmFord committed, and permitting leave to amend would allow Plaintiffs to seek all remedy in a singlelawsuit. (Id. ¶ 5.) Lopez declares that he has been investigating Ford’s potential liability for fraud sincebefore this action was filed. (Supp.Dec.Lopez ¶ 6.) He declares that he filed complaints related tofraud in a few cases (see Ford’s RJN) that were challenged by Ford. (Ibid.) When those claims werefound to be sufficient in the other cases, he sought to allege the same in this case. (Ibid.) Lopezasserts that he was waiting to see if the new facts were adjudged to be sufficient to support these newcauses of action and claims for damages in other cases before asserting them here. (Id. ¶ 7.) Hesought leave to amend just over a month after the Complaint was filed. (Ibid.)Although the Lopez declaration is a bit thin, it now addresses the specific requirements of rule3.1324(b). The Court rejects Ford’s argument that the delay here is significant, as the motion was filedfewer than 60 days after the Complaint. There is also no showing that allowing the amendment isunduly prejudicial. Fords arguments as to the merits of the new allegations are more properly addressin a demurrer or other motion.

Ruling

FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS

Aug 01, 2024 |FCS059237

FCS059237SUNDT’s Motion to Compel ArbitrationTENTATIVE RULINGPlaintiff SUNDT CONSTRUCTION, INC. (“SUNDT”) moves to compel arbitration of theclaims within its complaint against Defendant NORTHERN CALIFORNIA OFFICERSCOMMUNITY dba PARADISE VALLEY ESTATES (“PVE”) as well as the claims againstSUNDT within PVE’s cross-complaint. SUNDT requests that the remaining claims ofPVE’s cross-complaint continue to be stayed pending the outcome of arbitration.Legal Standard. A party to an arbitration agreement may petition the court to compelarbitration if it alleges the existence of a written agreement to arbitrate a controversyand that a party to the agreement refuses to arbitrate. (Code Civ. Proc., § 1281.2.) Inruling on a petition to compel arbitration, the trial court shall order parties to arbitrate if itdetermines that a valid agreement to arbitrate the controversy exists and the disputebetween the parties falls within the scope of the agreement. (Luxor Cabs, Inc. v.Applied Underwriters Captive Risk Assurance Co. (2018) 30 Cal.App.5th 970, 977.)However, arbitration is not mandated if the court determines that a party to thearbitration agreement is also a party to another action arising out of the same facts andthere is a possibility of conflicting rulings on a common issue of law or fact. (Code Civ.Proc., § 1281.2, subd. (c).)Contractual Prerequisites to Arbitration. In prior orders the court found that theclaims between SUNDT and PVE were contractually required to be submitted first toCross-Defendant PERKINS EASTMAN for “initial decision” and second to mediationbefore binding arbitration could occur. It appears that these contractual prerequisiteshave been fulfilled. (Declaration of Venessa Drake dated 5/8/24 at ¶¶ 3-4.)Risk of Conflicting Rulings. PVE contends that there is an unacceptable risk ofconflicting rulings if the disputes between SUNDT and PVE are sent to arbitration butthe disputes between PVE and PERKINS EASTMAN are stayed pending arbitration andthen resolved in litigation.PVE’s cross-complaint makes fairly distinct allegations against SUNDT and againstPERKINS EASTMAN. PVE alleges that SUNDT was not actually a licensed contractorin good standing and failed to complete work on the construction project underlying thiscase (the “Project”) according to specifications and on time due to negligence inprocuring materials and performing labor and supervision tasks. (Cross-Complaint at ¶16.) PVE alleges that PERKINS EASTMAN negligently designed the Project, notablythe grading and drainage. (Id. at ¶ 38.) PVE also alleges that PERKINS EASTMANmust indemnify it against SUNDT’s claims related to extra costs incurred. (Id. at ¶¶ 47-48.) Whether PERKINS EASTMAN negligently designed the Project and whetherSUNDT negligently put the Project together are separate issues; both or neither mightbe the case. There is no significant risk of conflicting rulings in resolving these issues.Conclusion. SUNDT’s motion is granted. This case is stayed pending resolution ofarbitration of claims between SUNDT and PVE.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)

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Third Party Complaint - Winn Dixie Stores Inc's/Against Rug DoctorParty: Defendant Winn-Dixie Stores, Inc. July 27, 2020 (2024)

FAQs

What is Winn-Dixie return policy? ›

For incorrect or missing items, damaged or spoiled products, you can bring your items to the store with your order receipt for refund or exchange. Alternatively, you may call our Customer Care Center at 1-844-745-0463 where a refund can be processed.

Where is Winn-Dixie grocery store headquarters? ›

Winn-Dixie's main headquarters is located at 8928 Prominence Parkway, Bldg 200 Jacksonville, FL 32256 US. The company has employees across 6 continents, including North AmericaEuropeAsia.

How can I contact Winn-Dixie for complaints? ›

What stores are telling you to keep your returns? ›

Major retailers occasionally offer a surprising option to customers for some returns: just keep it. In some cases, it doesn't make financial sense to process the return, especially for small purchases. Walmart, Target, and Amazon are some of the major brands that offer so-called returnless refunds.

Is Kroger buying out Winn-Dixie? ›

Is Kroger buying Winn-Dixie? No, Aldi is buying Winn-Dixie. Kroger, the country's largest supermarket chain by revenue, is not involved in the deal.

Who bought out Winn-Dixie? ›

Aldi has completed its acquisition of Jacksonville-based Southeastern Grocers Inc., the parent company of the Winn-Dixie and Harveys. Aldi said March 7 it completed the acquisition of Jacksonville-based Southeastern Grocers Inc., the parent company of the Winn-Dixie and Harveys supermarket chains.

What is Aldi doing with Winn-Dixie? ›

Aldi has agreed to purchase the parent company of Florida-based grocery store Winn-Dixie and plans to convert some locations into the Aldi format, Southeastern Grocers Inc. announced Wednesday. Your local Winn-Dixie is now officially owned by ALDI.

What is the return policy and refund policy? ›

A refund policy, also known as a return policy, is a document that informs your customers about how your company deals with refunds or returns of the products you're selling. A company's policy on refunds or returns is completely discretional, meaning there is no legal obligation to offer refunds or returns.

How long do you have to return goods for a refund? ›

For most items, you have up to 14 days to notify them of a return, then up to 14 days after that to send it back. There are some exceptions. See full info on shopping online. If items are faulty, it doesn't matter where you bought them.

How long do you have to return something to store? ›

Most items are eligible for returns for up to 90 days after purchase. They must be new and unopened, and as long as you have proof of purchase, you can get a refund by the original payment method, in cash, or as store credit.

Can you return food to the grocery store if you don t like it? ›

You can return food to the grocery store if it's gone bad or you tried it and you don't like it. Don't be shy about returning items that have expired or you don't care for. You can return food to the grocery store if it's gone bad or it's expired or you tried it and don't like it.

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