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Ruling

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)

Ruling

Blount, et al. vs. Blount, et al.

Jul 31, 2024 |23CV-0202391

BLOUNT, ET AL. VS. BLOUNT, ET AL.Case Number: 23CV-0202391This matter is on calendar for review regarding trial setting, the previous trial date having beenvacated by the Court’s order dated February 1, 2024. Prior to the April 29, 2024 review hearing,Attorneys for Plaintiff Susan Blount submitted a status statement indicating additional time isneeded to seek appointment of a guardian ad litem for Susan Blount. No application forappointment of a guardian ad litem has been filed. No new status statement has been filed. Anappearance is necessary on today’s calendar to discuss status and trial setting.

Ruling

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 “fourcirc*mstances 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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