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ESX-L -004791-22 04/17/2023 10:54:55 PM Pglof2 Trans ID: LCV20231299683NEW JERSEY TRANSIT CORPORATIONOFFICE OF GENERAL COUNSELOne Penn Plaza East, 11" FloorNewark, NJ 07105Attorneys for Defendant,New Jersey Transit CorporationBy: Diane L. Scott, Esq. (009372000) Telephone: (973) 491-7035 E-Mail: discott(@njtransit.com SUPERIOR COURT OF NEW JERSEY DOMINIC PAPAIANNI, LAW DIVISION - ESSEX COUNTY DOCKET NO. ESX-L-004791-22 Plaintiff, vs. NOTICE OF MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO NEW JERSEY TRANSIT CORPORATION, R. 4:6-2(e) Defendant.TO. James P. Gianakis, Esq. Gianakis Law LLC 51 JFK Parkway, 1“ Floor Short Hills, New Jersey 07078 PLEASE TAKE NOTICE that on Friday, May 12, 2023, at 9:00a.m., or at such time asfixed by the Court, the undersigned counsel for New Jersey Transit Corporation (“NJ Transit”)shall move before the Hon. Judge Annette Scoca, J.S.C. in the Superior Court of New Jersey, EssexCounty for an Order dismissing Counts 1 and II of the Complaint with prejudice. The moving party shall rely upon the annexed legal brief, exhibits and certification ofDiane L. Scott, Assistant General Counsel. A proposed form of order is annexed. The moving party request oral argument unless no opposition is filed at which time a rulingESX-L -004791-22 04/17/2023 10:54:55 PM Pg2of2 Trans ID: LCV20231299683on the papers will be accepted. Trial date: None. New Jersey Transit Corporation General Counsel Office Assistant General CounselDated: April 17, 2023ESX-L -004791-22 04/17/2023 10:54:55 PM Pglof2 Trans ID: LCV20231299683NEW JERSEY TRANSIT CORPORATIONOFFICE OF GENERAL COUNSELOne Penn Plaza East, 11" FloorNewark, NJ 07105Attorneys for Defendant,New Jersey Transit CorporationBy: Diane L. Scott, Esq. (009372000) Telephone: (973) 491-7035 E-Mail: discott@nitransit.com SUPERIOR COURT OF NEW JERSEY DOMINIC PAPAIANNI, LAW DIVISION - ESSEX COUNTY DOCKET NO. ESX-L-004791-22 Plaintiff, vs. CERTIFICATION OF COUNSEL NEW JERSEY TRANSIT CORPORATION, Defendant. I, Diane L. Scott, of full age, hereby certifies as follows: 1 J am an attorney licensed to practice law in the State of New Jersey and J am employedas an Assistant General Counsel for New Jersey Transit Corporation. In the latter capacity, I actas attorney for Defendant NJ Transit Corporation (“Defendant”) in the above-captioned action. Iam therefore fully familiar with the facts which | certify herein. 2. 1 submit this Certification in support of Defendant’s Motion to Dismiss Plaintiff'sComplaint. 3. On April 6, 2023, it was hereby agreed by and between the attorneys for Plaintiff,Dominic Papaianni (Gianakis Law LLC, with James P. Gianakis, Esq. appearing) and the attorneysfor Defendant NJ Transit Corporation, General Counsel Office with Diane L. Scott appearing, thatESX-L -004791-22 04/17/2023 10:54:55 PM Pg2of2 Trans ID: LCV20231299683the time within which the Defendant may serve and file a responsive pleading to the Complaintwas hereby extended until April 17, 2023. I certify that the foregoing statements by me are true. I understand that if any of theforegoing statements are willfully false, I am subject to punishment. Dare Diane L. Scott (#009372000) Assistant General CounselDated: April 17, 2023ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 1 of 33 Trans ID: LCV20231299683DOMINIC PAPIANNI SUPERIOR COURT OF NEW JERSEY ESSEX COUNTY: LAW DIVISION Plaintiff,vs Docket No.: ESX-L-04791-22 Civil ActionNJ TRANSIT CORPORATION, Defendant. BRIEF IN SUPPORT OF NJ TRANSIT’S NOTICE OF MOTION IN LIEU OF AN ANSWER Attorney for Defendant New Jersey Transit Corporation Office of General Counsel One Penn Plaza East - 4th Fl. Newark, New Jersey 07105 (973) 491-7035Diane L. Scott (Attorney ID #009372000)Assistant General CounselOn the BriefESX-L -004791-22 04/17/2023 10:54:55 PM Pg 2 of33 Trans ID: LCV20231299683 TABLE OF CONTENTSPRELIMINARY STATEMENT ......PROCEDURAL HISTORY.STATEMENT OF FACTSSTANDARD OF REVIEW..LEGAL ARGUMENT.........0000 POINT I NJ TRANSIT IS ENTITLED TO DISMISSAL PURSUANT TO R. 4:6-2(e) BECAUSE PLAINTIFF DID NOT COMPLY WITH THE NOTICE PROVISIONS OF THE NEW JERSEY CONTRACTUAL LIABILITY ACT (CLA). a. He fails to notify the appropriate contracting agency within 90 days of accrual of his claim except as otherwise provided in section 6 hereof. 10 POINT II 13 PLAINTIFF'S "AT WILL" EMPLOYMENT STATUS PREVENTS HIM FROM ESTABLISHING THAT NJ TRANSIT BREACHED ANY CONTRACTUAL DUTY OWED TO HIM. POINT II 16 PLAINTIFF’S COMPLAINT MUST BE DISMISSED BECAUSE THERE IS NO EVIDENCE IN THE FACTS OF THIS CASE AS SET FORTH BY PLAINTIFF THAT SUPPORT HIS CLAIM OF PROMISSORY ESTOPPEL POINT IV. 19 THE PLAINTIFF HAD A FAIR AND REASONABLE OPPORTUNITY TO LITIGATE THESE CLAIMS IN THE PREVIOUS ACTION, AND IT WOULD BE UNFAIR TO NJ TRANSIT TO SUBJECT IT TO ANOTHER ACTION ARISING FROM THESE SAME FACTS. a. Dominique Papaianni failed to fulfill his obligation to assert all related claims against NJ Transit in the prior 2017 discrimination lawsuit action. 23 b. The policy considerations underlying the entire controversy doctrine favored joinder of the previous and current claims. 25 c. Considerations of judicial economy clearly mandates the dismissal o: complaint. 28CONCLUSION... 29ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 3 of33 Trans ID: LCV20231299683 TABLE OF AUTHORITIES PageCasesAllen v. Fauver, 327 N.J. Super. 14 (App. Div. 1999)D.D. v. Univ. of Med. & Dentistry of New Jersey 213 N.J. 130 (2013)Ajamian v. Schlanger, 14 N.J. 483 (1954) 16Allen v. Fauver, 327 N.J. Super. 14 (App. Div. 1999)Bernard v. IMI Systems, Inc., 131 N.J. 91 (1993) 10Brown v. Brown, 208 N.J. Super. 372 (App. Div. 1986.) .....seeceessesesesseseecsesessestsecaeeeseenneneeneeeae 18Busch v. Biggs, 264 N.J. Super. 385 (App. Div. 1993) 17Cafferata v. Peyser, , 251 N.J. Super 261 (1991). 19Camden Cnty. Energy Recovery Assocs. v. N.J. Dep’t of Envtl. Prot., 320 N.J. Super. 59 1,5Chevrolet v. Giordano, Halleran & Ciesla, 142 N.J. 280 (1995) 1,15Cogdell v. Hospital Center, 116 N.J. 7 (1989). 1, 16County of Hudson v. New Jersey Dep’t Corr, 208 N.J. 1, 4 (2011) 1,5, 6,9County of Morris v. Fauver, 153 N.J. 80, 106-107 (1998) 1,10County of Warren v. State, 409 N.J. Super. 495 (App. Div. 2009) 1,6DiTrolio v. Antiles, 142 N.J. 253 (1995) 1, 15,17Jasontown Apartments v. Lynch, 155 N.J. Super. 254 (App. Div. 1978) 1,14Kane v. Milikowski, 224 N.J. Super. 613 (App. Div. 1988) 1,12Maietta v. United Parcel Service. Inc., 749 F. Supp. 1344, F.2d 960(3rd Cir. 1991) 1,11Malaker Corp. v. First Jersey Nat’] Bank. 163 N.J. Super. 463 (App. Div. 1978) 1,13Metromedia Co. v. Hartz Mountain Assocs., 139 N.J. 532 (1995)ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 4of33 Trans ID: LCV20231299683Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 315 (1995) 1,15P.T & L Constr. Co. v. Comm’r. Dep’t of Transp., 55 N.J. 341 (1970)Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980) 12Printing-Mart Morristown v. Sharp Elecs. Corp., 116 N.J. 739Recovery Assocs. v. N.J. Dep’t of Envtl. Prot., 320 N.J. Super. 4 (App. Div. 1999)Royal Assoc. v. Concannon, 200 N.J. Super. 74 (App. Div. 1985). 13See Kelly v. Borough of Sayerville, 107 F.3d 1073 (1996) 16See Saint Barnabas Med. Ctr. v. Essex County, 111 N.J. 67 (1988)See Travelers Ins. Co. v. Transport of N.J., 204 N.J. Super. 63, 66 (Ch. Div. 1985).Ware v. Prudential Ins. Co., 220 N.J. Super. 135 (App. Div. 1987) 12Witkowski v. Thomas J. Lipton. Inc., 136 N.J. 385 (1994) 11Wm. Blanchard Co. V. Beach Concrete Co., 150 N.J. Super. 277, 294 (App. Div.), woes 16Wooley v. Hoffmann-LaRoche, Inc., 99 N.J. 284 11StatutesN.JL.S.A. 27:25-19. 1,8N.JS.A. 59:13-2. 1,10N.J.S.A. 59:13-6, 1,9RulesN.L.R.E. 201(b)(4)ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 5 of 33 Trans ID: LCV20231299683 PRELIMINARY STATEMENT Defendant, New Jersey Transit Corporation (“NJ Transit”) isa state agency imbued with the privileges and immunities of thesovereign that attach to all state agencies. In the Complaint,Plaintiff Dominic Papaianni (“Plaintiff”) characterizes NJTransit as a “corporate entity” and not a state agency. 1(Complaint 44). Nevertheless, Plaintiff filed a contract actionagainst NJ Transit without complying with the mandates of the NewJersey Contractual Liability Act (“CLA”) The CLA effects a limitedwaiver of sovereign immunity. It permits contract suits againstthe state, but only in strict compliance with its statutory termsas a prerequisite for commencing any litigation. A notice of claimwithin ninety (90) days of accrual of the cause of action, orapplication to the court to file a late notice of claim within ayear of accrual, is required. Plaintiff failed in this regard andas a matter of law cannot bring this lawsuit against NJ Transit.Therefore, as a matter of statutory procedural mandates under theCLA, the lawsuit against NJ Transit must be dismissed on thepleadings and the Plaintiff must be forever barred from anyrecovery from NJ Transit. Defendant’s other reasons to pring the present Motion toDismiss is simply that Plaintiff provides no evidence and relies1 Citations are to Plaintiff’s Complaint by paragraph number. 1ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 6 of 33 Trans ID: LCV20231299683on nothing more than naked speculation in support of his unfoundedclaims in Count I, Breach of Contract and Count II, PromissoryEstoppel. (Complaint 41). Accordingly, since Plaintiff has failedto plead sufficient facts to support these claims, Plaintiffsclaims must fail and Defendant’s Motion to Dismiss granted. For these reasons, NJ Transit respectfully requests that thisCourt grant its Motion to Dismiss Plaintiff's Complaint withPrejudice. PROCEDURAL HISTORY Dominic Papaianni (“Plaintiff”) filed a Complaint and JuryDemand on August 15, 2022, 2 in the Superior Court of New Jersey,Law Division: Essex County, Civil Part, naming NJ Transit as theDefendant. The Civil Case Information Statement describes the casetype as contract/commercial transaction. (Exhibit A). TheComplaint and Summons were served upon NJ Transit on August 24,2022. (Exhibit B) . For the purposes of a Motion to Dismiss pursuant to R. 4:6-2 (e) the Court accepts the allegations of the pleading as true.32The parties entered into an agreement extending Defendant’s timeto answer or otherwise respond until April 17, 2023. DLSCERTIFICATION)3 For the purpose of this Motion to Dismiss only, Defendant NJTransit will assume without conceding, the truth of the allegationsin the complaint. In the event that the Motion to Dismiss is not 2ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 7 of33 Trans ID: LCV20231299683Here, the allegations set forth in paragraphs 1 through 47 purportto involve conduct involving NJ Transit, the last of which is tohave occurred at a meeting in June 2016, more than six (6) yearsago. STATEMENT OF FACTSPlaintiff began his employment with NJ Transit in or about July2002, as a Foreman II in the Vehicle Maintenance Department of NJTransit Bus Operations. (Complaint 95). At the time of Plaintiff'shiring, he was provided documents by the NJ Transit’s HumanResources Department. Specifically, he was sent an offer letter ofemployment dated June 27, 2002 (Exhibit C) and given a copy ofNJ Transit’s Corporate Wide Core Policy Book which included Policy3.02, as well as copies of other pertinent policies. (Exhibit D;Da). In the fall of 2003, Plaintiff was promoted to the positionof Technical Specialist also in the Bus Vehicle MaintenanceDepartment (Complaint §5) and maintained that position until histermination on June 6, 2016, when he admitted to operating a NJTransit vehicle, while his license was suspended, which was inviolation of NJ Transit Corporate Policy 2.02. (Exhibit E).granted, Defendant withdraws the assumption and will rely on factsconsistent with its answer and discovery. 3ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 8 of 33 Trans ID: LCV20231299683 The pertinent facts that led to Plaintiff’s termination areas follows: On or about April 26, 2016, Plaintiff was called intoa meeting with NJ Transit staff, wherein the status of Plaintiff'sdriver's license was questioned. (Complaint 421). During thatmeeting, Plaintiff in fact acknowledged that his driver’s licensehad been suspended in March 2016 because he refused to take abreathalyzer test. (Complaint 422; Exhibit F). Plaintiff wasquestioned regarding whether he had driven a NJ Transit vehicle inthe time since his license had been suspended. Plaintiff admittedthat he had. (Complaint 922). On or about April 27, 2016, Plaintiff was again called intoa meeting with NJ Transit staff and a representative from NoTransit's Human Resources Department wherein he was notified thathe was being suspended without pay pending the completion of aninvestigation into the alleged violations of NJ Transit CorporatePolicy 2.02 - Assignment and Use of Non-Revenue Vehicles.(Complaint §23; Exhibit E). On June 6, 2016, Plaintiff attended a subsequent meeting atNJ Transit’s Corporate Headquarters at One Penn Plaza, Newark atwhich time he was notified that he had been terminated. (Complaint(26). Plaintiff received a memorandum from NJ Transit’s SeniorDirector and Human Resources Business Partner Kathleen Rosemethat explained the termination. Exhibit G). It is important tomention that prior to his termination Plaintiff had been advisedESX-L -004791-22 04/17/2023 10:54:55 PM Pg 9of33 Trans ID: LCV20231299683in writing that his poor attendance was a reoccurring issue andhaving a detrimental impact on operations within the Bus VehicleMaintenance Department. (Exhibit H). This information was alsoincluded in his supervisor’s Recommendation letter for AppropriateDiscipline of Employment. (Exhibit I)Pursuant to NJ Transit Policy 3.16 = Non-Agreement EmployeeDiscipline, Plaintiff requested a review of NJ Transit’s decisionto terminate his employment. (Complaint 29; Exhibit J). On or about August 3, 2016, Plaintiff met with NJ Transit’sTermination review committee. (Complaint 430). During the meetinghe expressed concerns regarding collecting unemployment benefits.1a. On or about August 15, 2016, the Termination Committeeconfirmed No Transit’s decision to terminate Plaintiff’semployment. (Complaint 431; Exhibit K). Plaintiff initiated action against NJ Transit on or aboutApril 26, 2017, alleging discrimination in violation of the NewJersey Conscientious Employee Act (“CEPA”) and the New Jersey LawAgainst Discrimination (“LAD”) as well as for other claims(defamation, tortious interference, unjust enrichment, intentionalinfliction of emotional distress, and negligent infliction ofemotional distress). (Exhibit L). Plaintiff's complaint wasultimately dismissed, and the file closed by the Honorable ThomasESX-L -004791-22 04/17/2023 10:54:55 PM Pg 10 of 33 Trans ID: LCV20231299683M. Moore for Lack of Prosecution on November 30, 2018. (ExhibitM). STANDARD OF REVIEW Motions to dismiss pursuant to R. 4:6-2 (e) for failure tostate a claim require the complaint be searched in depth and withliberality to determine if there is any “cause of action‘suggested’ by the facts.” Printing-Mart Morristown v. SharpElecs. Corp., 116 N.J. 739, 746 (1989). The inquiry is limited to“examining the legal sufficiency of the facts alleged on the faceof the complaint.” Ibid. While Plaintiff is entitled to everyreasonable inference of fact, the complaint will nonetheless bedismissed if, after applying these principles, no cause of actionemerges. Ibid. As in this case, due to a mandatory procedural bar,dismissal is appropriate because the pleading does not establisha colorable claim and discovery will not develop one. Camden Cnty.Energy Recovery Assocs. ve N.J. Dep’t of Envtl. Prot., 320 N.J.Super. 59, 64 (App. Div. 1999), aff'd o.b., 170 N.J. 246 (2001).In other words, a Motion to Dismiss is in order when the factsalleged have no legal consequences. Sickles v. Cabot Corp., 379N.J. Super. 100, 106 (App. Div.), certify. denied. 185 N.J. 297 (2005). While dismissals under R. 4:62(e) are normally withoutprejudice, dismissals with prejudice are appropriate whenamendment of the complaint or further discovery would not provideESX-L -004791-22 04/17/2023 10:54:55 PM Pg 11of33 Trans ID: LCV20231299683a basis for relief. Energy Rec. v. Dept. of Env. Prot., 320 N.J.Super. 59, 64-65 (App. Div. 1999,) aff’d, 170 N.J. 246 (2001). Seealso; County of Warren v. State, 409 N.J. Super. 495, 503 (App.Div. 2009, certify. Denied, 201 N.J. 153 (2010). LEGAL ARGUMENT POINT I NJ TRANSIT IS ENTITLED TO DISMISSAL PURSUANT TO R: 4:6-2(e) BECAUSE PLAINTIFF DID NOT COMPLY WITH THE NOTICE PROVISIONS OF THE NEW JERSEY CONTRACTUAL LIABILITY ACT (CLA). Pursuant to N.J.S.A. 27:25-19, liability of NJ Transit forcontract claims, is controlled by the CLA. N.J.S.A. 59:13-1.Generally, the CLA mirrors its sister statute the Tort Claims Actby providing immunity for public entities from contract claimsunless liability is expressly permitted by the Act. See P, T&LConstr. Co. v. Comm’ r, Dep’t of Transp., 55 N.d. 341, 346 (1970.The Legislature, in enacting the CLA, carved out limitedcircumstances upon which the State and its agencies can be sued.The CLA permits “suits based on contracts to be filed against theState of New Jersey [and its agencies] but requires compliancewith its statutory terms as a prerequisite for commencing any suchlitigation.” County of Hudson v. State, Dept. of Corrections, 208N.J. 1, 13 (2011) ; N.J.S.A. 59:13-5.. N.J.S.A. 59:13-3 states inpertinent part that “there shall be no recovery against theESX-L -004791-22 04/17/2023 10:54:55 PM Pg 12 of 33 Trans ID: LCV20231299683State...for claims based upon implied warranties or upon contractsimplied in law.” Claims for contracts implied in law are “quasi-contract” claims and are “specifically excluded from the scope ofstate liability” under the CLA. Allen v. Fauver, 327 N.J. Super.14 (App. Div. 1999. Thus, under the CLA, NJ Transit may only befound liable for contract claims based upon an express contract ora contract implied in fact and even then, when interpreting whethera contract implied in fact exists, the statute should be strictlyconstrued in favor of immunity for the public entity. Id. at 75,76.Where there is no express contract, contracts implied in factfollow traditional contract interpretation principles, turning onmutual agreement and intent to promise manifested by the parties’actions. See Saint Barnabas Med. Ctr. v. Essex County, 111 N.J. 67(1988). However, before a contract implied in fact can be consideredby a court in assessing a complaint alleging contract claimsagainst a public entity, the court must first be satisfied it hasjurisdiction over the contract claim and that the plaintiff candemonstrate compliance with the CLA notice requirements. SeeN.J.S.A. 59:13-4; see also County of Hudson, 208 N.J. at 22 to 23. Under N.J.S.A. 59:13-5 of the CLA, a Plaintiff is required tonotify a public entity in writing of any possible contract claimswithin ninety (90) days of each such claim accruing. Specifically,N.J.S.A. 59:13-5 states in pertinent part that “all contract claimsESX-L -004791-22 04/17/2023 10:54:55 PM Pg 13 of 33 Trans ID: LCV20231299683against the State shall be forever barred if [the claimant]fails to notify the appropriate contracting agency within 90 daysof accrual of his claim” {emphasis added]. The New Jersey SupremeCourt ruled that the notice must be in writing, it must containall the information required by N.J.S.A. 59:13-5 and it must bewithin the ninety (90) day window. See D.D. v. Univ. of Med. &Dentistry of New Jersey 213 N.J. 130 (2013); see also County ofHudson, 208 N.J. at 14. A claim accrues against a public entityunder the CLA on each date that a payment or obligation is missedor due. Id. at 14. Even where a single agreement calls for multipleinstallment payments, each missed payment is a separate cause ofaction requiring a separate notice of claim (NOC) . Id. at 14[citing Metromedia Co. Vv Hartz Mountain Assocs., 139 N.J. 532(1995)]. For a plaintiff to benefit from the limited waiver ofimmunity afforded by the CLA the plaintiff must strictly observethe notice requirements of the CLA. Id. at 10, 11 and 20 to 21. As previously mentioned, Plaintiff fails to acknowledge in theComplaint NJ Transit’s status as a state agency. However, thisslight does not relive Plaintiff of his responsibility to adhereto the requirements of the CLA. Moreover, contrary to thoserequirements, Plaintiff has never presented statutory notice ofany potential claims, he did not - and could not = make suchallegations of compliance in the Complaint. Therefore, he cannotESX-L -004791-22 04/17/2023 10:54:55 PM Pg 14 of 33 Trans ID: LCV20231299683bring NJ Transit into this lawsuit for any reason, “nominal” orotherwise. The CLA, expressly provides in clear and unambiguous languagethat: It shall be the responsibility of parties contracting with the State4 to promptly notify the State in writing of any situation or occurrence which may potentially result in the submission of a claim against the State. Except as otherwise provided in section 6, no notice of claim for breach of contract, either express or implied in fact, shall be filed with the contracting agency later than 90 days after the accrual of such claim. {Ibid.] The legislature also directed the form of the contents ofthe notice as follows: A notice of claim shall include the following information: the name of the claimant, the nature of the claim, specific reasons for making the claim, and the total dollar amount of the claim if known. KRKKKE In all contract claims against the State, the claimant shall be forever barred from recovering against the State if:a. He fails to notify the appropriate contracting agency within 90days of accrual of his claim except as otherwise provided insection 6 hereof.4see Travelers Ins. Co. v. Transp. of N.J., 204 N.J. Super. 63, 66(Ch. Div. 1985 (contract disputes with NJ Transit governed by theCLA where it was held that contract claims against NJ Transit aregoverned by the Act pursuant to N.J.S.A. 27:25-19 even though NJTransit has the power to sue and be sued pursuant to N.J.S.A.27:25-S(a)). 10ESX-L -004791-22 04/17/2023 10:54:55 PM Pg 15 of 33 Trans ID: LCV20231299683[Ibid.] In the instant matter, Plaintiff did not comply. Plaintiffwas terminated from employment with NJ Transit, on June 6, 2016,more than six (6) years ago. Plaintiff pursuant to the noticerequirement of the CLA failed to present NJ Transit, withnotification of his contract claims, thus these claims should bedismissed. Yet, after Plaintiff failed to comply, he still could havepetitioned the court for permission to file the required notice.The CLA grants the Superior Court discretion to extend the ninety(90) day notice requirement. It provides, in part, that: A claimant who fails to file notice of his claim within 90 days may, in the discretion of a judge of the Superior Court of the State of New Jersey, be permitted to file such notice at any time within a year after accrual of his claim provided that the State has not been substantially prejudiced thereby. Application to a judge of the superior court for permission to file a late notice of claim shall be made upon motion based upon affidavits setting forth sufficient reasons for the failure to file his notice of claim within the period of time prescribed.[N.J.S.A.59:13-6 At the time, Plaintiff did not make application to file
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Maxwell Szabo et al vs. SUNRUN INC. et al
Jan 07, 2025 | CV0003360
DATE: 01/03/25 TIME: 1:30 P.M. DEPT: E CASE NO: CV0003360 PRESIDING: HON. ANDREW SWEET REPORTER: CLERK: G. STRATFORD PLAINTIFF: MAXWELL SZABO, ET AL vs. DEFENDANT: SUNRUN INC., ET AL NATURE OF PROCEEDINGS: MOTION - COMPEL RULING The Motion to Compel Arbitration by defendant Sunrun Inc., (Defendant) is granted. (Code Civ. Proc., $ 1281.2.) The action is stayed pending the resolution of the arbitration between the parties. SUMMARY OF ALLEGATIONS This case arises out of an agreement for the purchase and installation of solar electric energy as between plaintiffs Maxwell Szabo and Belen Szabo (Plaintiffs) and Defendant. On or about March 27, 2023, the parties entered into an agreement whereby Defendant agreed to install a- solar power electrical system on the roof of Plaintiffs residence. (Complaint, { 14; see also, Exh. A to the Declaration of Kelley Molton, Agreement.") Plaintiffs allege that on July 20, 2023, Defendant and defendant Lobo Services, Ltd. (collectively Defendants), negligently struck a fire sprinkler line causing severe water damage requiring relocation of Plaintiffs to temporary housing. (Complaint, {3 & 7.) Plaintiffs further allege that while Defendants attempted to repair the initial damage, more damage was caused to Plaintiffs residence. (Complaint, {J 16- 18.) On July 7, 2024, Plaintiffs filed their complaint against Defendants alleging eight causes of action: 1) Breach of Contract as against Defendant; and 2) Violation of Business and Professions Code $ 7151 et seq.; 3) Violation of Business and Professions Code $ 17200 et seq.; 4) Negligence; 5) Negligent Infliction of Emotional Distress; 6) Fraud; 7) Promissory Estoppel; and 8) Intentional Infliction of Emotional Distress as against all Defendants. The Agreement between Plaintiffs and Defendant provides an arbitration clause that states in pertinent part:CV0003360 ARBITRATION OF DISPUTES AND CLASS WAIVER: Unless legally prohibited, you and we mutually agree to settle any Dispute related to this contract in good faith via mediation, which will be administered by the American Arbitration Association (*AAA") with a mediator selected from the AAA National Roster of Mediators. If we cannot settle within 60 days of the initial mediation session, either party may elect to require to resolve our Dispute via binding arbitration. Our binding arbitration will be administered by the AAA before a sole arbitrator in accordance with AAAs Consumer Arbitration Rules. Judgment on the arbitrators decision may be entered in any court that has jurisdiction on the dispute. You and we mutually agree to keep the arbitration proceedings and submissions confidential as well your customer account information confidential. You also agree to bring claims against us only in your individual capacity. YOU ARE WAIVING THE RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING, INCLUDING IN A PRIVATE ATTORNEY GENERAL CAPACITY. We will pay the cost of initiating any arbitration proceedings, regardless of who prevails. If the arbitrator finds in your favor, well pay your attorneys fees and expenses of travel to the arbitration. Who does this cover? You, us, and certain Related Parties (defined above). Either you or we may, after the required mediation and without the others consent, elect to resolve disputes by binding arbitration. What does this cover? All Disputes (except certain Disputes about this clause). This governs all disputes that would usually be decided in court and are between us (or any Related Party) and you, including without limitation all claims related to or arising out of this Agreement, the System or our relationship with you (Disputes). Disputes include claims related to amendments, Disclosures, Change Orders, collections, privacy and Customer Information, claims related to the validity of this Agreement, AND THE ARBITRABILITY OF ANY DISPUTE(S). In short, Disputes has the broadest reasonable meaning. Are you giving up any rights? Yes. For Disputes subject to this clause, you give up your right to:Page 2 of 7CV0003360 + have juries decide Disputes. + have courts, other than small-claims courts, decide Disputes. * serve as a private attorney general or in a representative capacity. + join a Dispute you have with a dispute by other consumers. + bring or be a class member in a class action or class arbitration; + and have a jury trial. What law applies? The Federal Arbitration Act ((FAA).This Agreement involves interstate commerce. THUS, the FAA governs this clause. The TPA must apply substantive law consistent with the FAA. The TPA must honor statutes of limitation and privilege rights. Punitive damages are governed by the constitutional standards that apply in judicial proceedings.(Molton Decl., Exh. A, Agreement, pp. 10-12.)Plaintiff Maxwell Szabos initials follow the arbitration clause, acknowledging the noticeprovided. (Id., Agreement, p. 12.)Accordingly, Defendant filed this Motion to Compel Arbitration. LEGAL STANDARDCalifornia has a long established and well settled policy favoring arbitration as a speedy andinexpensive means of settling disputes. (Ericksen, Arbutnot, McCarhty, Kearney & Walsh, Inc. v.100 Oak Street (1983) 35 Cal.3d 312, 322.) A party to an arbitration agreement may seek a courtorder compelling the parties to arbitrate a dispute covered by the agreement. (Code Civ. Proc., $1281.) A written agreement to submit future controversies to arbitration is valid, enforceable, andirrevocable, save upon such grounds as exist for the revocation of any contract. (Jbid.) Onpetition of a party to an arbitration agreement alleging the existence of a written agreement toarbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, thecourt shall order the petitioner and the respondent to arbitrate the controversy if it determinesthat an agreement to arbitrate the controversy exists, unless it determines that one of certainspecified exceptions applies. (Code Civ. Proc., 1281.2.)As explained in Laymon v. J. Rockcliff, Inc. (2017) 12 Cal.App.5th 812, 820 * * California has astrong public policy in favor of arbitration and any doubts regarding the arbitrability of a disputeare resolved in favor of arbitration... . The party seeking to compel arbitration bears theburden of proving that an arbitration agreement exists. The opposing party must prove anydefense to the enforcement of the arbitration agreement. (Engalla vy. Permanent Medical Group,Inc. (1997) 15 Cal.4th 951, 972.) In ruling on a petition to compel arbitration, the Court, guidedby general principles of California contract law, must first determine whether the parties agreedto arbitrate the dispute. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 890.) To makethis determination, the Court may examine only the agreement itself and the complaint filed byPage 3 of 7CV0003360the party objecting to arbitration. (Laymon, supra, 12 Cal.App.Sth at p. 819; Rice v. Downs(2016) 248 Cal.App.4th 175, 185.)If the Federal Arbitration Act (FAA), as opposed to state law, governs an arbitrationagreement, the Court is required to compel arbitration upon being satisfied that the making ofthe agreement for arbitration or the failure to comply therewith is not in issue and to order a staypending the outcome of the arbitration. (9 U.S.C. $$ 3, 4.) DISCUSSIONThe parties concede that they are bound by the Agreement. Plaintiffs allege Defendant hasbreached the Agreement and attaches the same to the complaint. (Complaint, Exh. A.) Thedispute is as to whether Plaintiffs should be required to arbitrate the issues alleged in thecomplaint. Plaintiffs are not asserting that the allegations in their complaint fail to arise out of theAgreement subject to the arbitration clause or that the arbitration clause is both substantively andprocedurally unconscionable. Rather, Plaintiffs argue Defendants right to compel mediation![sic] should be denied on the grounds that: 1) The arbitration clause is intentionally vague and ambiguous to Defendants advantage and defendant Lobo Services Ltd. is not a party to the arbitration agreement; 2) The action involves a defendant who is not a signatory to the arbitration agreement, namely defendant Lobo Services Ltd.; 3) Defendant acted in bad faith and willful misconduct through its intentional delaying of mediation and refusing to reimburse Plaintiffs after expressly agreeing to do so; and 4) Defendant waived its right to demand arbitration by not timely seeking the same.(Oppo., p. 4:20-28.)Additionally, Plaintiffs argue that the Federal Arbitration Act (SFAA) does not apply.None of Plaintiffs arguments are persuasive. The FAA AppliesWhile Plaintiffs argue that the California Arbitration Act ("CAA) applies because theAgreement sets forth that California law governs the contract (see page 13 of the Agreement),page 10 of the Agreement sets forth the section regarding arbitration and disputes arising out ofthe Agreement. With respect to arbitration, the Agreement specifically provides: What law applies? The Federal Arbitration Act (FAA).This Agreement involves interstate commerce. THUS, the FAA governs this clause. The TPA must apply substantive law consistent with the FAA. The TPA must honor statutes of limitation and privilege rights. Punitive1 Plaintiffs concede they have already participated in mediation pursuant to the Agreementa prerequisite to theelection of arbitration, (Oppo. p. 3:1-6 and 23-26; see also, Molton Decl., Exh. A, Agreement, p. 10.)Page 4 of 7CV0003360 damages are governed by the constitutional standards that apply in judicial proceedings.(Molton Decl., Exh. A, Agreement, p. 12.)Even applying the CCA, Code of Civil Procedure section 1281.2 mandates the Court to order thepetitioner and the respondent to arbitrate the controversy if it determines that an agreement toarbitrate the controversy exists, which the Court has found here. (Code Civ. Proc., $ 1281.2.) Allegations Arise Out of the Agreement Subject to the Arbitration ClauseThe allegations in Plaintiffs complaint fall within the scope of the arbitration clause, includingthe allegations related to defendant Lobo Services, Ltd., explained more fully below. (See Rice,supra, 248 Cal.App.4th at p. 186 [. . . arising from or Sarising out of an agreement, i.e.,excluding language such as relating to this agreement or in connection with this agreement,are generally considered to be more limited in scope than would be, for example, a clauseagreeing to arbitrate any controversy ... arising out of or relating to this agreement. .. ],emphasis in original.) Even if the language of the arbitration clause were narrow, the allegationsappear to fall within that which was contemplated by the parties when they entered theAgreement, especially in light of the language that states, all claims related to or arising out ofthis Agreement," in the arbitration clause. (See Rice, supra, 248 Cal.App.4th at p. 186 [courtshave held contracts that provide for any controversy arising out of the contract as sufficientlybroad to include tort claimsthe dispute must arise out of the contract].)The complaint alleges conduct arising out of the agreement to install a solar system whichnecessarily encompasses the work performed on Plaintiffs house by Defendant and anycontractor hired by Defendant to perform such work. This work allegedly resulted in waterdamage, inter alia. The arbitration clause is not vague and ambiguous as to those parties subjectto the same. It states that it covers You, us and certain Related Parties." The Agreementexplains that to install the system, Defendant will use [their] qualified and licensed employeesor subcontractors... . (Complaint, Exh. A, Agreement, p. 4.) It further defines RelatedParties as Defendants AFFILIATES, OWNERS, DIRECTORS, EMPLOYEES, AGENTS,CONTRACTORS, OR SUCCESSORS AND ASSIGNS. . . . (Complaint, Exh. A, Agreement,p. 10, emphasis added.) As Defendants contractor, Lobo Services Ltd. is necessarily a relatedparty to the Agreement, and thus subject to the arbitration clause. Accordingly, Code of CivilProcedure section 1281.2, subdivision (c) does not apply. Lobo Services, Ltd. is Bound by the Arbitration Agreement Under Equitable EstoppelIn addition to the Courts conclusion that Lobo Services Ltd. is subject to the arbitration clauseby virtue of the Agreement and status as a related party and contractor, Lobo Services, Ltd. isbound to arbitration by equitable estoppel. First, a plaintiff who is a signatory to an arbitrationagreement with a defendant cannot avoid arbitration of its claims simply by adding other, non-signatory, defendants. (See Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 714;Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 112.) Rather,subdivision (c) of Code of Civil Procedure section 1281.2 applies only where the other partiesnamed as defendants are third parties. A party that is entitled to enforce the arbitrationPage 5 of 7CV0003360agreement is not a third party. (Rowe vy. Exline (2007) 153 Cal.App.4th 1276, 1290 [BecauseTrahan and Exline may enforce arbitration of claims against them, they are not third part[ies]within the meaning of section 1281.2, subdivision (c)"]; Molecular Analytical Systems v.Ciphergen Biosystems, Inc, (2010) 186 Cal.App.4th 696, 706; RN Solutions, Inc. v. CatholicHealthcare West (2008) 165 Cal.App.4th 1511, 1520.)Here, defendant Lobo Services, Ltd. could compel Plaintiffs to arbitrate claims against thembased on the doctrine of equitable estoppel, if it chose to do so. (See JSM Tuscany, LLC vy.Superior Court (2011) 193 Cal.App.4th 1222, 1238; see also Rowe, supra, 153 Cal.App.4th at p.1290.) This is because the claims asserted by Plaintiffs against non-signatory defendant LoboServices, Ltd. are inextricably intertwined with, the underlying contractual obligations of theagreement containing the arbitration clause." (JSM Tuscany, LLC, supra, 193 Cal.App.4th atp.1238, internal quotations and citation omitted.)Plaintiffs causes of action involve questions specifically contemplated in the Agreement. Theallegations address the contract to install the solar system and the conduct and eventssurrounding the installation, inter alia. (See complaint; see also Agreement, attached as Exh. Ato the complaint and to the Molton Decl.) Accordingly, the causes of action are subject to thearbitration clause and should be arbitrated. WaiverAn exception to the enforcement of an arbitration agreement exists where the Court determinesthat .. . [t]he right to compel arbitration has been waived by the petitioner. (Code Civ. Proc., $1281.2, subd. (a).) The heavy burden of proving waiver rests on the party seeking to establishwaiver. (Chase v. Blue Cross of California (1996) 42 Cal.App.4th 1142, 1151 [quotingChristensen v. Dewor Developments (1983) 33 Cal.3d 778, 782 (superseded by statute inunrelated part as stated in Russell v. Trans Pacific Group (1993) 19 Cal.App.4th 1717, 1726-1727)].) The court should Sindulge every intendment to give effect to an arbitrationagreement." (Jbid.; see also Keating v. Superior Court (1982) 31 Cal.3d 584, 604 [Arbitration isstrongly favored. Courts will closely scrutinize any claims of waiver[.]"] [overruled/abrogated on.other grounds in Southland Corp. v. Keating (1984) 465 U.S. 1, 10 and Sandquist v. LeboAutomotive, Inc, (2016) 1 Cal.5th 233, 250, fn. 2].)In Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, the SupremeCourt identified a host of relevant factors, including: (1) whether the partys actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party.(Wagner Construction Co., supra, 41 Cal.4th 19, 31, citing St. Agnes, infra.)Page 6 of 7CV0003360More recently, however, the Supreme Court found that to establish waiver, the Court shouldapply general contract law and abrogated the arbitration-specific rule in St. Agnes MedicalCenter v. PacifiCare of California (2003) 31 Cal.4th 1187 (St. Agnes). (Quach v. CaliforniaCommerce Club, Inc. (2024) 16 Cal.Sth 562, 583-584.) To establish waiver under generallyapplicable contract law, the party opposing enforcement of a contractual agreement must proveby clear and convincing evidence that the waiving party knew of the contractual right andintentionally relinquished or abandoned it. (/d., at p. 584.)Applying Quach and the generally applicable law of waiver to the evidence presented here, theCourt concludes that Plaintiffs have failed to meet their burden to prove Defendant has waivedits right to arbitrate. Defendant participated in mediation and once the action was filed against itin July 2024, Defendant maintained its right to arbitrate in both its answer to the complaint andby filing this motion to compel arbitration at the beginning of October 2024. No discovery hasbeen propounded by Defendant which would evidence conduct avoiding arbitration, nor does theCourt find an intentional delay by Defendant which would mislead Plaintiffs into believingDefendant did not intend to enforce the arbitration clause. None of the evidence presentedsupports Defendants waiver to arbitrate.For all of the foregoing reasons, the Court grants Defendants motion to compel arbitration andstays the action pending the arbitration. All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B)to contest the tentative decision. Parties who request oral argument are required to appear inperson or remotely by ZOOM. Regardless of whether a party requests oral argument inaccordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with theannounced ruling as required by Marin County Superior Court Local Rules, Rule 2.11. The Zoom appearance information for January, 2025 is as follows: https://www.zoomgov.com/j/1605 153328?pwd=eUU1 OE9BTGStWHgrOFNKMmVvd2tFOT09 Meeting ID: 160 515 3328 Passcode: 360075 If you are unable to join by video, you may join by telephone by calling 1-669-254-5252and using the above-provided passcode. Zoom appearance information may also be found onthe Courts website: marin.courts.ca.govPage 7 of 7
Ruling
GEVORK VOSKANIAN, ET AL. VS YUSHENG SHEW, ET AL.
Jan 09, 2025 | 23CHCV03185
Case Number: 23CHCV03185 Hearing Date: January 9, 2025 Dept: F47 Dept. F47 Date: 1/9/25 Case #23CHCV03185 MOTION TO COMPEL FURTHER RESPONSES (Form Interrogatories, Set 1) Motion filed on 5/30/24. MOVING PARTY: Defendants/Cross-Complainants Yusheng Shew and Jill J. Van RESPONDING PARTY: Plaintiff/Cross-Defendant Mary Keryan NOTICE: ok RELIEF REQUESTED: An order compelling Plaintiff Mary Keryan to provide further responses to Defendants Form Interrogatories, Set 1. Additionally, Defendants request an order imposing sanctions in the amount of $1,320.00 against Keryan and Keryans counsel. RULING: The motion is granted as set forth below. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of Plaintiffs Gevork Voskanian (Voskanian) and Mary Keryans (Keryan) purchase of all outstanding shares of stock in Plaintiff KSJV3, Inc. (the Corporation) from Defendants Yusheng Shew and Jill Van (collectively, Defendants). The Corporation is in the business of manufacturing and selling fences for residential, commercial and industrial uses. Plaintiffs allege, among other things, that Defendants misrepresented the financial condition of the Corporation. Defendants have cross-complained alleging that Plaintiffs have failed to make any payment on the $110,000 Secured Promissory Note. On 12/19/23, Defendants/Cross-Complainants propounded written discovery on Plaintiffs/Cross-Defendants, including Form Interrogatories, Set 1, on Keryan. (Chien Decl., Ex.A). After being granted several extensions of time to respond, on 2/11/24, Keryan served objection only responses to the Form Interrogatories. (Id., Ex.B-E). Despite meet and confer efforts, promises to serve further responses and the granting of an extension to file a motion to compel further responses until 5/31/24, Keryan failed to serve further responses. (Id., Ex.F-H). Therefore, on 5/30/24, Defendants filed and served the instant motion seeking an order compelling Plaintiff Mary Keryan to provide further responses to Defendants Form Interrogatories, Set 1. Additionally, Defendants request an order imposing sanctions in the amount of $1,320.00 against Keryan and Keryans counsel. Keryan has not opposed or otherwise responded to the motion. ANALYSIS Generally, a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the action, if the matter either is itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence. See CCP 2017.010. A party may move to compel further responses to interrogatories if it deems that an: (1) an answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under CCP 2030.230 is unwarranted or the required specification of those documents is inadequate and/or (3) an objection to an interrogatory is without merit or too general. CCP 2030.300(a). If a timely motion to compel further responses is filed, the responding party has the burden of justifying any objection. Fairmont Insurance Co. (2000) 22 C4th 245, 255; Coy (1962) 58 C2d 210, 220-221; Williams (2017) 3 C5th 531, 541-542. Here, the subject Form Interrogatories, which were approved by the Judicial Council, seek information which is relevant to the issues in the action. Keryan has responded to the Form Interrogatories with only baseless objections. (Chien Decl., Ex.E). In response to this motion, which was timely filed pursuant to the agreement of the parties, Keryan has failed to offer any opposition. See CCP 2030.300(c); (Chien Decl., Ex.H). As such, Keryan has failed to meet her burden of justifying the objections. See Fairmont Insurance Co., supra; Coy, supra; Williams, supra. Defendants are entitled to an award of sanctions against Keryan and her counsel of record, Scott A. Sheikh, in the amount of $1,020.00 (2.4 hours to communicate with Plaintiffs counsel, meet and confer and prepare motion + 1 hour to prepare and attend hearing multiplied by $300/hour) for their failure to comply with their discovery obligations. See CCP 2030.300(d); CCP 2023.030; CCP 2023.010(e). CONCLUSION The motion is granted. Plaintiff/Cross-Defendant Mary Keryan is ordered to provide further responses to Form Interrogatories, Set 1, within 30 days. Additionally, sanctions in the amount of $1,020.00 are imposed on Keryan and her attorney of record, Scott A. Sheikh. Sanctions are payable within 30 days.
Ruling
QUIET WING AEROSPACE, LLC vs COULSON AVIATION (USA), INC.
Jan 10, 2025 | CVPS2406011
QUIET WING AEROSPACE, LLC Application for Writ of Possession - ClaimCVPS2406011 vs COULSON AVIATION (USA), and Delivery by QUIET WINGINC. AEROSPACE, LLCTentative Ruling: No tentative. Hearing will be conducted on Friday, January 10, 2025 at 8:30 a.m.
Ruling
NICHOLE STONE VS CARROLANDIA #1 AUTO SALES INC
Jan 08, 2025 | BC650512
Case Number: BC650512 Hearing Date: January 8, 2025 Dept: 51 Tentative Ruling Judge Upinder S. Kalra, Department 51 HEARING DATE: January 8, 2025 CASE NAME: Jason Harley Bobson v. Keith Bae, et al. CASE NO.: BC650512 MOTION TO REMOVE, REPLACE, OR SURCHARGE COURT APPOINTED RECEIVER DUE TO EXPRESSED PREJUDICE, BIAS AND NEGLIGENT CONDUCT MOVING PARTY: Defendant Keith Bae RESPONDING PARTY(S): Court Appointed Receiver Stephen J. Conell REQUESTED RELIEF: 1. An Order to remove, replace, or surcharge court appointed receiver, Stephen J. Donell and his counsel Michael E. Bubman and the MBN Law Firm, due to expressed prejudice, bias and negligent conduct. TENTATIVE RULING: 1. Motion to Remove, Replace, or Surcharge Court Appointed Receiver is DENIED. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: On February 15, 2017, Plaintiff Jason Harley Bobson (Plaintiff) filed a Complaint against Defendant Keith Bae (Defendant.) The complaint involves operations of a small restaurant business based on a partnership agreement between the parties. On May 3, 2017, Defendant filed a Petition to Compel Arbitration. On September 27, 2019, the Arbitration was dismissed due to the parties default, and on September 30, this court vacated the arbitration order and scheduled a Jury Trial on September 22, 2020. On October 31, 2019, Birdies, Inc. (Birdies) filed a Cross-Complaint against Bobson and Does in his individual and derivative capacity. On November 15, 2019, Defendant Keith Bae filed an Answer. On December 30, 2019, Plaintiff filed a Motion to Strike the Cross-Complaint which the court GRANTED. On February 14, 2020, Cross-Complainant Birdies, Inc. filed a motion for leave to file a cross-complaint which the court GRANTED. Cross-Complainant subsequently filed a cross-complaint on July 9, 2020. Plaintiff Bobson filed an Answer to the Cross-Complaint on September 3, 2020. Jury Trial commenced on November 8, 2021 and concluded on November 15, 2021. Judgment on General Verdict was entered on November 29, 2021 in favor of Defendants. On January 11, 2022, the court ORDERED the partnership dissolved. On August 17, 2022, the court ORDERED the appointment of a receiver to wind up the partnership. On August 27, 2024, Defendant filed the instant Motion for Order to Remove, Replace, or Surcharge Court Appointed Receiver. On December 24, 2024, the receiver filed an opposition. Replies were due on or before December 31, 2024. As of January 3, 2025, the court has not received a reply. LEGAL STANDARD: Pursuant to Code of Civil Procedure section 584, a court may appoint a receiver pendente lite if the evidence shows that property jointly owned by partners or others is in danger of being materially injured, where a corporation is insolvent, in imminent danger thereof, or has forfeited corporate rights, or in all other cases where the Court finds as necessary to preserve the property or rights of any party. (Code Civ. Proc. § 564, subds. (b)(1), (b)(6), (b)(9).) A receivership naturally terminates upon completion of the duties for which the receiver was appointed or at any other time upon court order. (See Carpenson v. Najarian (1967) 254 Cal.App.2d 856, 862 [noting that receivers appointed to preserve the status quo pending trial terminates upon judgment after trial.) ANALYSIS: Request for Judicial Notice The court DENIES Defendants request for judicial notice. Motion Defendant contends that the receiver and Plaintiffs counsel acted unlawfully, there are defects in the receivers management, a new receiver is necessary to prevent prejudice to Defendant, a receiver is no longer necessary, and reevaluation of the need for a receiver is warranted. The receiver argues this is another belated motion for reconsideration consisting of conclusory allegations. Defendant moves under Code Civ. Proc. (CCP) § 128(a)(5) which provides that the court has authority: To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.[1] Here, it is not necessary to terminate or modify the receivership at this time because there is insufficient evidence that the Receiver is biased or intentionally mismanaging Birdiesand despite evidence showing Defendants interference with the Receivers duties to wrap up the partnership. The relationship between Defendant and the Receiver admittedly appears to be rocky. But the evidence is thin to prove that the Receiver is a partisan for Plaintiff. Accordingly, the court DENIES the Motion for Order to Remove, Replace, or Surcharge Court Appointed Receiver. CONCLUSION: For the foregoing reasons, the court decides the pending motion as follows: 1. Motion to Remove, Replace, or Surcharge Court Appointed Receiver is DENIED. Moving party is to give notice. IT IS SO ORDERED. Dated: January 8, 2025 __________________________________ Upinder S. Kalra Judge of the Superior Court [1] Defendant also cites to Security Pacific National Bank v. Geernaert (1988) 199 Cal.App.3d 1425. It is unclear why.
Ruling
TAO LIU VS CHUN FANG CHEN
Jan 07, 2025 | Shannon M Gerhart | 23PSCV01939
Case Number: 23PSCV01939 Hearing Date: January 7, 2025 Dept: H Liu v. Chen, et al., Case No. 23PSCV01939 ORDER ON MOTION FOR PRELIMINARY INJUNCTION Plaintiff Tao Lius Motion for Preliminary Injunction is GRANTED. I. Background Plaintiff Tao Liu (Plaintiff) alleges as follows: In or around April 2017, Plaintiff founded a restaurant called Liu Roast Fish and Skewers (Liu Roast Fish) located at 18207 Gale Ave., City of Industry, CA 91748 (the City of Industry branch). Liu Roast Fish serves authentic Chinese-style food using recipes developed by Plaintiff. In or around October 31, 2018, Plaintiff incorporated Liu Roast Fish Inc. in San Gabriel and opened a San Gabriel branch of Liu Roast Fish located at 227 Valley Blvd., Unit 128, San Gabriel, CA 91776 (the San Gabriel branch). Plaintiff has devoted a significant amount of time, energy, and resources toward protecting the value of his brand, products, name, and reputation. Plaintiff also regularly exercised quality control over the food served at the restaurant branches. On or about October 21, 2020, Plaintiff and Defendant Chun Fang Chen (Defendant) and a third-party, Chun Jin Li (Li), entered a restaurant share purchase agreement (the Agreement). Under the Agreement, Plaintiff would sell 90% of the shares of the City of Industry branch and the San Gabriel branch to Li and Defendant. The Agreement also provided that Defendant and Li would continue to use the restaurants logo for the San Gabriel branch and the City of Industry branch. If any party decided to use Plaintiffs recipes to open a new restaurant, the other two parties to the contract would have to be notified and would be given priority to purchase shares of the new restaurant. To protect his brand and recipes, Plaintiff filed and registered a patent and trademark with the United States Patent and Trademark Office on or about November 17, 2020. In or around September 2022, Plaintiff learned that Defendant had opened an unauthorized branch of Liu Roast Fish in Tustin, California, located at 1046 Walnut Ave., Tustin, CA 92780 (the Tustin restaurant). On or about October 3, 2022, Plaintiffs then-counsel sent a cease-and-desist letter to Defendant, explaining that Defendants continued operation of the Tustin branch constituted trademark infringement. Defendant denied the allegation of trademark infringement and continued to sell products at the Tustin branch. On June 28, 2023, Plaintiff filed a complaint, asserting causes of action against Defendant and Does 1-50 for: (1) breach of contract, (2) trademark infringement in violation of the Lanham Act, (3) trademark dilution, and (4) unfair competition under Cal. Bus. & Prof. Code §§ 17200. The Final Status Conference is set for February 18, 2025. Trial is set for March 4, 2025. Pending before the Court is Plaintiffs application for a preliminary injunction. II. Legal Standard An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. (Code Civ. Proc., § 525.) In determining whether to issue a preliminary injunction, the trial court considers two related factors: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. (14859 Moorpark Homeowners Assn v. VRT Corp. (1998) 63 Cal.App.4th 1396, 1402.) The trial courts determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiffs showing on one, the less must be shown on the other to support an injunction. (Butt v. State of California (1992) 4 Cal.4th 668, 678 (Butt).) Generally, weighing these factors lies within the broad discretion of the superior court. (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 315.) III. Discussion Plaintiff moves for a preliminary injunction pending trial that would enjoin Defendant and any agents or other persons acting with Defendant or on her behalf from misusing Plaintiffs trade name, trademark, and cooking recipes. A. Evidentiary Objections The Court rules on Defendants evidentiary objections to the Liu Declaration as follows: (1) Objection 1 (i.e., as to paragraph 14) is sustained; (2) Objection 2 (i.e., as to paragraph 15) is overruled; (3) Objection 3 (i.e., as to paragraph 16) is overruled; (4) Objection 4 (i.e., as to paragraph 17) is sustained, (5) Objection 5 (i.e., as to paragraph 18) is overruled, and (6) Objection 6 (i.e., as to paragraph 11) is overruled. B. Merits 1. Likelihood of Prevailing on the Merits In this lawsuit, Plaintiff alleges that Defendant has opened a restaurant, without Plaintiffs authorization, that uses Plaintiffs trade name, trademark, and cooking recipes. Based on these allegations, Plaintiff asserts the following causes of action against Defendant: (1) breach of contract, (2) trademark infringement, (3) trademark dilution, and (4) unfair competition. Plaintiff seeks, among other things, injunctive relief prohibiting Defendant from any further interference with Plaintiffs trademark, trade name, and cooking recipes. To state a cause of action for breach of contract, Plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) To state a cause of action for trademark/trade-name infringement under the Lanham Act (15 U.S.C. § 1125), the Plaintiff must establish: (1) the defendants use of a mark, (2) that is similar to plaintiffs mark, (3) such that it is likely to deceive or confuse the public, based on the following: (a) strength of the plaintiffs mark; (b) similarity between the two marks; (c) proximity of the goods; (d) evidence of actual confusion; (e) marketing channels used; (f) type of goods and the degree of care likely to be exercised by the purchasers; (g) Defendants intent in selecting the mark; and (h) the likelihood of expansion of product lines. (Mallard Creek Industries, Inc. v. Morgan (1997) 56 Cal.App.4th 426, 435 [holding that the federal likelihood of confusion standard applies equally under California law].) As to trademark dilution, a trademark dilution claim does not merely require the plaintiff to prove ownership of a trademark[i]nstead, the plaintiff must establish that the trademark is both distinctive (the requirement to prove ownership) and famous. (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 344.) Under federal and California law, trademarks eligible for dilution protection are extremely limited. (Id.) Therefore, to meet the famousness element of protection under the dilution statutes, a mark must be truly prominent and renowned. (Id. [cleaned up].) Finally, the elements of an unfair competition claim are (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) an authorized remedy. (Bus. & Prof. Code, § 17200.) It is a tool with which to enjoin deceptive or sharp practices. (Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal.App.4th 1284, 1299, fn. 6.) Unfair competition borrows violations of other laws and authorizes a separate action pursuant to unfair competition. (See Famers Ins. Exch. V. Superior Court (1992) 2 Cal.4th 377, 383.) Unfair conduct in unfair competition actions must be violative of public policy and tethered to specific constitutional, statutory, or regulatory provisions. (Scripps Clinic v. Superior Court (2003) 104 Cal.App.4th 917, 940.) As a statutory cause of action, allegations of unfair business practices must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Malys of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The statutory violations must be specifically delineated and said violations must relate to a business activity. (Id.) Plaintiff has proffered the following evidence in support of the requested preliminary injunction: Plaintiff has a registered trademark in the logo and trade name for his restaurant business, Liu Roast Fish and Skewers. (Liu Decl., ¶¶ 1-3; Exh. 1.) Under Plaintiffs agreement with Defendant, if Defendant used Plaintiffs trademark, trade name, and recipes to open a new restaurant, she had to notify Plaintiff and give him the right of first refusal to purchase an interest in the new restaurant. (Id., ¶¶ 4-6; Exh. 2.) Defendant admitted that she knew there was a protected trademark and trade name, and that, even so, she used the protected logo, trademark and trade-name when she opened her Tustin restaurant, including by putting the logo, trademark, and trade name on or above the door of the Tustin restaurant, on numerous table mats, and internet advertising. (Id., ¶¶ 7-9, 11, 14, 18; Exhs. 3-4.) Further, in September 2024, when Plaintiff and another person went to the Tustin restaurant to investigate, Plaintiff discovered that Defendant was still using Plaintiffs trademark, logo, and recipes. (Id. ¶¶ 12-15; Exhs. 3-5.) In opposition, Defendant contends that Plaintiff cannot establish a likelihood of success on the merits because Plaintiff fails to demonstrate that his recipes are a trade secret as defined by the California Civil Code, section 3426.1. Defendant emphasizes that Plaintiff does not present any objective measurement of the value of his recipes, and instead relies on Plaintiffs own self-serving declaration, which is insufficient to establish the existence of a protectable trade secret. Even putting aside whether Plaintiff can prove the existence of a trade secret, the Court finds that Plaintiff has established a likelihood of success on the merits on at least some causes of action. As to the breach of contract action, under the express terms of the Agreement, Defendant voluntarily contracted not to use Plaintiffs recipes to setup a new restaurant without notifying the other parties, and that any change to the cuisine offered at the restaurants required negotiation between the parties. (Liu Decl., ¶¶ 4-5; Exh. 2, at p. 3.) Moreover, Plaintiff has presented evidence that Defendant used, and continued using (even after receiving a cease-and-desist request), Plaintiffs registered trademark in Defendants restaurant businesss logo and trade name. (Liu Decl., ¶¶ 7-8, 11-16; Exhs. 1, 3-5.) Even if Plaintiffs evidence does not conclusively establish that Defendant used Plaintiffs recipes,[FN] Plaintiff has presented evidence demonstrating that Defendant used the same photos of the food made with Plaintiffs recipes to advertise the Tustin restaurant, resulting in consumer confusion. (Id., ¶¶ 7, 11, 14, 15; Exh. 3.) Accordingly, the Court finds that Plaintiff has shown a likelihood of prevailing on the merits against Defendant on his breach of contract, trademark infringement, and unfair competition claims. 2. Interim Harm Plaintiff has also shown that the balance of relative hardships favors him. As described above, Plaintiffs evidence demonstrates the existence of actual consumer confusion regarding Defendants use of Plaintiffs registered mark, and that, despite Plaintiffs request to cease and desist, Defendant has continued to use Plaintiffs registered mark. (Liu Decl., ¶¶ 3, 7-9, 11-15; Exhs. 1, 3-5.) Further, it appears Defendant testified untruthfully at her deposition by claiming she did not know where the table mats using Plaintiffs registered mark came from or who acquired them, even though they were delivered to the Tustin restaurant and had the addresses and phone numbers of Defendants two restaurants printed on them. (Id., ¶16; Exh. 6; Transcript of Chen Deposition, Exh. A, p. 55-59.) In opposition, Defendant claims that Plaintiff cannot establish irreparable harm. She first contends that the alleged harm is too speculative, as Plaintiff has not provided evidence of any lost sales or other tangible damages. She also argues that the fact that Plaintiff waited nearly two years to seek injunctive relief cuts against Plaintiffs claim of irreparable harm. (See OConnell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) While the Court agrees that Plaintiffs evidence of the first factor (the likelihood of success on the merits) is stronger than the evidence of the second factor (interim harm), the Court finds the evidence of interim harm is sufficient based on the sliding scale of proof required at the preliminary injunction stage. (Butt, supra, 4 Cal.4th at p. 678.) In particular, the Court is persuaded that the continued use of Plaintiffs registered mark has resulted in actual consumer confusion such that an injunction is warranted to prevent further confusion before the case can be brought to trial. IV. Conclusion For the foregoing reasons, Plaintiffs Motion for Preliminary Injunction is granted. [FN] The Court has overruled Defendants objection to paragraph 15 of the Liu Declaration, where Liu attests that he instantly knew that the food was cooked by using my secret recipes because I personally created the recipes. (Liu Decl. ¶ 15.) As the creator of the recipes, Liu has sufficient personal knowledge to offer this testimony.
Ruling
HTL AUTOMOTIVE INC VS 1351 ORIZABA AVENUE LLC
Jan 07, 2025 | BC651307
Case Number: BC651307 Hearing Date: January 7, 2025 Dept: 40 BC651307 HTL Automotive, Inc. v. 1351 Orizaba Avenue, LLC Tuesday, January 7, 2025 [TENTATIVE] ORDER GRANTING RECEIVERS MOTION FOR INSTRUCTIONS AND AN ORDER REGARDING THE APPEAL FILED BY JUDGMENT DEBTORS I. BACKGROUND This action, filed on February 22, 2017, arises from the Defendants alleged failure to comply with its lease obligations that denied Plaintiff lessee, the sole and exclusive possession of the premises for the duration of the lease, among other things. Plaintiff alleges claims for breach of contract and breach of the implied covenant of good faith and fair dealing. On April 10, 2017, Defendant filed a cross-complaint against Plaintiff alleging breach of contract and for committing waste upon the premises. On March 6, 2020, the Hon. David Sotelo rendered a judgment after trial against Plaintiff (Judgment Debtors) and in favor of Defendant Orizaba (Judgment Creditor). On the cross-complaint, the court found in favor of cross-complainant, Judgment Creditor in the amount of $746,803.34. (Jgmt. 3/6/20.) On March 11, 2024, the Hon. Ann Richardson issued an order granting Judgment Creditors motion to appoint Invenz, Inc., through its Executive Officer, Richard Munro, to act as a receiver over the Judgment Debtors interests in nine limited liability companies (LLCs), including seizing the LLCs property; gaining control of the property; and to demand, collect, and receive all moneys owed to the LLCs. The Receiver filed a bond of $5,000. (Order 3/11/24.) On August 5, 2024, the parties settled this action pursuant to a confidential settlement agreement and stipulated to winding down the receivership. (M.O. 8/5/24.) On November 8, 2024, over four years after judgment was entered, Judge Richardson granted the Receivers motion for approval of the final report and account, for discharge of the receiver, and for exoneration of the Receivers bond and related relief. (M.O. 11/8/24, November 8th Order.) In relevant part, the order required Receiver to send a written demand for payment of $300,000 to Judgment Creditors counsel, who held the funds in its client trust account. (Id.) The court ordered Judgment Creditors counsel to wire the funds to the Receiver within one business day of the demand. (Id.) On November 14, 2024, Judgment Debtor filed a notice of stay of execution of the November 8th order pending its appeal of that order approving the Receivers final account. (Notc. 11/14/24.) As the stay was purportedly automatic Judgment Debtor asserted that it was not required to post a bond or undertaking. (Id.) II. ARGUMENTS The Receiver requests an order for instructions confirming that the November 8th order is not stayed, or alternatively, instructions as to the amount of the undertaking required to be posted by Judgment Debtor, and an order authorizing the Receiver to collect the $300,000 currently held by Judgment Creditors counsel. Receiver contends the November 8th order is not automatically stayed because it is not a costs only judgment. Rather, Judgment Debtor must seek an order staying the November 8th order and post an undertaking. The Receiver argues that Judgment Debtor lacks standing to dispute the part of the November 8th order requiring Judgment Creditor to pay $300,000 to the Receiver. In opposition, Judgment Debtor argues that execution of the November 8th order is stayed automatically upon Judgment Debtors filing of the notice of appeal. The court should not exercise its discretion to require Judgment Debtor to file an undertaking since neither the Receiver nor its counsel will suffer any harm or prejudice. The propriety of turning over the funds held in Judgment Creditors trust account is at issue in Judgment Debtors appeal. In reply, the Receiver argues Judgment Debtors are attempting to delay payment for the Receivers fees. Given the Judgment Debtors conduct attempting to delay the Receivers fees and its denied application to surcharge the Receiver, the court should exercise its discretion and require Judgment Debtor to post an undertaking. III. DISCUSSION As a preliminary matter, the court does not issue instructions or guidance; the court can decide whether Judgment Debtor is entitled to an automatic stay without the posting of an undertaking which is an issue presented by Judgment Debtors Notice of Automatic Stay. The court construes the Receivers motion as a motion for determination that Judgment Debtor is not entitled to an automatic stay by fiat as it declares in its notice. In that respect, the court GRANTS the motion pursuant to its inherent powers to provide for the orderly conduct of proceedings before it, or its officers; to compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein." (Code Civ. Proc., § 128 subd (a)(3), (4); Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377 [Courts have inherent equity, supervisory and administrative & as well as inherent power to control litigation before them which are derived from the state Constitution and are not confined by or dependent on statute."].) Except for certain statutory exceptions, the perfecting of an appeal "stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order." (Code Civ. Proc., § 916.) As Judgment Debtor concedes, if the judgment or order is for money, or the payment of money, the perfecting of an appeal does not stay enforcement, unless the appellant posts an undertaking. (Opp. 11:9-14; Code Civ. Proc., § 917.1 ["(a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following: (1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action."].) However, Judgment Debtor argues there is a recognized rule to that exception, namely that a judgment consisting only of costs is not a money judgment for purposes of Code Civ. Proc., § 917.1 requiring an undertaking. Judgment Debtors case authority is not persuasive since costs are defined by Code Civ. Proc., § 1032, et seq, which permits an award of costs and fees to the prevailing party unless otherwise provided for by statute. (Quiles v. Parent (2017) 10 Cal.App.5th 130, 139.) Here, the parties settled their disputes, and there is no prevailing party as defined by the Code of Civil Procedure. (Code Civ. Proc., § 1032.) Costs of suit are awarded to the prevailing party in nearly every civil action or proceeding. (Quiles v. Parent (2017) 10 Cal.App.5th 130, 139; Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 800 [This reality arises from section 1032, subdivision (b), which states, Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.].) As Judgment Debtor acknowledges, in Quiles, the appellant had fully satisfied in full all of the damages portion of the judgment, and only appealed a component of the judgment that awarded fees and costs. (Opp. 11:22-24.) Judgment Debtor is not appealing a judgment as the parties settled their disputes. A receivership is a provisional remedy that is ancillary and does not affect the outcome of an action, rather,[i]t preserves the status quo of property while litigation is pending. (Southern California Sunbelt Developers, Inc. v. Banyan Limited Partnership (2017) 8 Cal.App.5th 910, 925.) Judgment Debtor cites Sunbelt Developers for the proposition that a mediators and receivers fees may be considered a cost under Code Civ. Proc., § 1032. The opinion underscored that the court had the discretion to consider costs incurred for court-appointed assistants as a recoverable cost under section 1033.5 by the prevailing party. (Southern California Sunbelt Developers, at 932.) The Receivers motion is not a motion for costs to be awarded to a prevailing party, and therefore, there are no facts upon which the court can exercise its broad discretion to award such costs to a prevailing party where there is none. Accordingly, Judge Richardsons order requiring Judgment Creditors counsel to pay $300,000 held in its trust account one day after the Receivers demand for payment is not a costs-only judgment, and the perfecting of Judgment Debtors appeal of that order does not trigger an automatic stay as expressly stated in Code Civ. Proc., § 917.1. Judge Richardson did not require the turnover of funds by the Judgment Debtor to the Judgment Creditor as the prevailing party. (11/8/24 order 4:13-21.) Moreover, a post-judgment proceeding such as the Receivers underlying motion here, is ancillary or collateral to the appeal despite its potential effect on the appeal and is not stayed by the appeal. (Gridley v. Gridley (2008) 166 Cal.App.4th 1562, 1587.) Finally, as Judgment Debtor is not making a motion for a stay, none is granted. IV. CONCLUSION Accordingly, the Receivers motion as construed above is GRANTED. An automatic stay is not affected by the Judgment Debtors perfecting of an appeal. Judgment Creditor is ordered to abide by Judge Richardsons order to pay the amount of $300,000 to the Receiver one day after demand.
Ruling
Jan 09, 2025 | 23STCV19389
Case Number: 23STCV19389 Hearing Date: January 9, 2025 Dept: 31 Tentative Order Judge Kerry Bensinger, Department 31 HEARING DATE: January 9, 2025 TRIAL DATE: Not set CASE: G&G Transport LLC v. General Motors LLC CASE NO.: 23STCV19389 MOTION TO BE RELIEVED AS COUNSEL MOVING PARTY: Peter Maissian, Prestige Legal Solutions, P.C. RESPONDING PARTY: No opposition I. INTRODUCTION On December 13, 2024, Peter Maissian, counsel for Plaintiff, G&G Transport LLC, filed this Motion to be Relieved as Counsel. The motion is unopposed. II. LEGAL STANDARD California Rules of Court, rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as CounselCivil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as CounselCivil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as CounselCivil form (MC-053)). 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.) III. DISCUSSION Peter Maissian seeks to be relieved as counsel of record for Plaintiff for the following reason: Plaintiffs counsel made numerous attempts at telephonic communications, and text message transmissions, with Plaintiff at his last known phone number. Plaintiffs counsel made contact with Plaintiff, and he was being unreasonable. [¶] Additionally, Plaintiffs counsel has made numerous attempts at telephonic communications, and text message transmissions, with Plaintiff at his last known phone number which have since been, and remain, unacknowledged. [¶] Up to date of filing of Attorneys Motion to be Relieved as Counsel, Plaintiffs counsel has received no acknowledgement to any and all attempts to communicate with Plaintiff in excess of eighty (80) days. (Maissan Decl., ¶¶ 16-18.) Absent a showing of resulting prejudice, an attorneys request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) Upon review, the court finds that the Motion complies with California Rules of Court, rule 3.1362. IV. CONCLUSION The unopposed Motion is granted and effective upon the filing of the proof of service of this signed order upon Plaintiff. The court sets a Status Conference re: Counsel for Plaintiff for February 10, 2025 at 9:00 a.m. Counsel to give notice. Dated: January 9, 2025 Kerry Bensinger Judge of the Superior Court
Ruling
SLUSHER, vs FORD MOTOR COMPANY PALM SPRINGS MOTORS INC
Jan 08, 2025 | CVPS2405852
SLUSHER, VS FORDCVPS2405852 DEMURRER ON COMPLAINTMOTOR COMPANYTentative Ruling: Defendants’ Demurrer as to the 5th Cause of Action is overruled; as to the 6thCause of Action, it is sustained with leave to amend within 20 days.5TH CAUSE OF ACTION - FRAUD1. 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 addressed thesufficiency for concealment for pleading purposes in fraud in a lemon law case. The Dhital courtfound that it was sufficient that plaintiffs alleged a transmission defect in numerous vehicles,including the plaintiff’s, the defendant knew of the defect and the hazards they posed, defendanthad exclusive knowledge of the defect and failed to disclose that information, defendant intendedto deceive plaintiffs by concealing known defects, the plaintiffs would not have purchased the carif they had known of the defects, and they suffered damages on the sums paid to purchase thevehicle. (Id. at 843-844.)Here, Plaintiff does plead the same facts with Dhital. Here, Plaintiff pleads that there is atransmission defect that can result in the hesitation, delayed acceleration, harsh/hard shifting,jerking, shuddering and/or juddering. (Complaint ¶33.) Defendant Ford knew about the issue butconsumers did not as it was provided by testing data, consumer complaints, aggregate warrantydata, testing and other internal information (¶23-24); Defendant issued TSBs regarding the defect(¶26-31); had Plaintiff known about the defect, he would not have purchased it (¶33); andDefendant concealed the defect (¶34). This is sufficient for pleading purposes.2. DutyAs 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, Plaintiff alleges that she entered into a warranty contract with Defendant. (Complaint ¶7.)Defendant Ford Motor Company and its representatives have been unable to repair the vehicle.(Complaint ¶32.) That demonstrates a transactional relationship for pleading purposes. Asdiscussed above, Plaintiff pled exclusive knowledge.3. Economic Loss RuleIn the recent case Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 20-21 the CaliforniaSupreme Court explained:[U]nder the economic loss rule, tort recovery for breach of a contract duty isgenerally barred [citations] unless two conditions are satisfied. A plaintiff must firstdemonstrate the defendant's injury-causing conduct violated a duty that isindependent of the duties and rights assumed by the parties when they enteredthe contract. Second, the defendant's conduct must have caused injury to personsor property that was not reasonably contemplated by the parties when the contractwas formed.The Court further stated:The guiding and distinguishing principle is this. If the alleged breach is based on afailure to perform as the contract provides, and the parties reasonably anticipatedand allocated the risks associated with the breach, the cause of action willgenerally sound only in contract because a breach deprives an injured party of abenefit it bargained for. However, if the contract reveals the consequences werenot reasonably contemplated when the contract was entered and the duty to avoidcausing such a harm has an independent statutory or public policy basis, exclusiveof the contract, tort liability may lie.(Id. at 27.) The Court repeated the public policy reason stated in Robinson supports holding frauda deviation from usual business practice, and a plaintiff advances the public interest in punishingintentional misrepresentations. (Id. at 30-34.) Therefore, a plaintiff may recover out-of pocketdamages in addition to benefit-of-the bargain damages. (Id. at 33-34.) Robinson clarified thatfraud was not an exception to the economic loss rule, but rather, the doctrine did not apply at all.(Id.) The Court reiterated that “Broader tort liability only arises if a defendant violates anindependent legal duty and the type of harm that ensues was not reasonably contemplated oraccounted for by the contractual parties.” (Id. at 37.)Ultimately, the Court found that a plaintiff can assert an independent claim of fraudulentconcealment in the performance of the contract. (Id. at 38.) However, the Court noted thatRattagan’s claims were based on fraud committed during the contractual relationship but allegedlyoutside the parties’ contractual rights and obligations. (Id. at 41, n. 12.) The Court stated as ithad granted review of Dhital regarding fraudulent inducement by concealment claims under Song-Beverly, and declined to address the issues in Rattagan. (Ibid.)In Dhital, supra, 84 Cal.App.5th 828, the court expressly found that the economic loss rule did notapply to the fraudulent inducement by concealment claim for purposes of pleading. Here, thecourt continues to follow Dhital, until the issue is resolved on remand.6TH CAUSE OF ACTION – NEGLIGENT REPAIRNegligent repair is a form of negligence. “In order to state a cause of action for negligence, thecomplaint must allege facts sufficient to show a legal duty on the part of the defendant to use duecare, a breach of such legal duty, and the breach as the proximate or legal cause of the resultinginjury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.) “Ordinarily, negligence may bealleged in general terms, without specific facts showing how the injury occurred, but there are‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... theplaintiff must indicate the acts or omissions which are said to have been negligently performed.He may not recover upon the bare statement that the defendant's negligence has caused himinjury.’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)Here, no facts are alleged other than Defendant breached its duty, failed to exercise due care,and caused damages. (Complaint ¶74-77.) However, Plaintiffs do not identify how they weredamaged. There are no other allegations to support a negligence claim.Furthermore, the economic loss rule requires a purchaser whose product is not working properlybe limited to a contract remedy; to avoid the economic loss rule, the purchaser must “demonstrateharm above and beyond a broken contractual promise.” (Robinson Helicopter Co., Inc. v. DanaCorp. (2004) 34 Cal.4th 979, 988.) This is to avoid contract and tort law from “dissolving one intothe other.” (Ibid.)In Robinson, the plaintiff was a helicopter manufacturer which used sprag clutches manufacturedby the defendant. (Id. at 985.) Under federal law, aircraft manufactures must obtain a “typecertificate” such that every aircraft must be produced in accordance with the certificate. (Id.) Thedefendant changed its sprag clutches without notifying the FAA or the plaintiff. (Id. at 985-986.)The plaintiff later had problems with the sprag clutches cracking, and as a result, was required torecall and replace all of the sprag clutches. (Id. at 986.) The plaintiff’s fraud claim was based onthe false certificates of conformance that were mandatorily required. (Id. at 990.) The court foundthat the economic loss rule did not bar the fraud claims because they were independent of thebreach of contract claim. (Id. at 991.) Here, Plaintiff pleads no facts demonstrating anindependent breach.In North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 770, amanufacturer entered into an oral contract with a packaging/shipping company; the companycontaminated the chemicals. The manufacturer’s customer discovered the contamination andwas forced to stop production; the customer made a claim on the manufacturer which themanufacturer paid. (Id. at 770-771.) The manufacturer filed an action against the company andincluded a negligence claim because the company held itself out as qualified to properly bag,package and transport the chemicals. (Id. at 771-772.) The trial court sustained the company’sdemurrer without leave to amend, and the manufacturer filed a writ petition. (Id. at 772.) Thecompany argued that it could not be held liable for negligence because the claim sounded incontract. (Id. at 773-774.) The court recognized that where the negligent performance of acontract is nothing more than failure to perform the express terms of the contract, the claim is forbreach of contract. (Id. at 774.) The court, however, explicitly stated that “accompanying everycontract is a common-law duty to perform with care, skill, reasonable expedience, and faithfulnessthe thing agreed to be done, and a negligent failure to observe any of these conditions is a tort,as well as a breach of contract.” (Ibid.)The court discussed the application of the rule in cases involving the sale of goods or products.(Id. at 778-781.) However, in cases involving the performance of services, the court relied heavilyon J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799. (Id. at 781-783.) The court focused on the factthat J’Aire allowed recovery of expected economic losses where a special relationship existedbetween the parties despite the lack of a contractual privity. (Id. at 782.) The issue depended onthe six Biakanja factors: (1) the extent the transaction was intended to affect the plaintiff, (2) theforeseeability of harm, (3) the degree of certainty of injury, (4) the closeness of the connectionbetween the defendant’s conduct and the injury, (5) the moral blame, and (6) the policy ofpreventing future harm. (Id.) The court then recognized that the reasoning of J’Aire applied tocases where the parties are in contractual privity, where the contracts were for services. (Id. at783.)Economic loss includes “damages for inadequate value, costs of repair and replacement of thedefective product or consequent loss of profits - without any claim of personal injury or damagesto other property.” (Jimenez v. Superior Court (2002) 29 Cal.4th 473, 482.) Although the plaintiffmust show damage to property other than the subject product itself, the economic loss rule doesnot necessarily bar recovery in tort for damage that a defective product causes to other portionsof a larger product. (Id. at 483.)Here, Plaintiff have not pled any facts demonstrating a special relationship with Defendants.Plaintiffs have not pled this outside of performing the warranty claim—rather than negligence inrepairing the vehicle. There are no facts showing personal injury or damage to property otherthan the subject vehicle. Nor are there any facts showing that any component part installed orrepaired by Palm Springs Motors, Inc. caused damage to the vehicle as whole beyond the existingdefects. Furthermore, Plaintiff has not alleged that the negligent repairs interfered with or injuredtheir prospective economic interests. (See J'Aire Corp. v. Gregory (1979) 24 Cal. 3d 799; Ott v.Alfa-Laval Agri, Inc. (1995) 31 Cal.App.4th 1439, 1448.)
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