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MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, ...

Aug 13, 2024 |Unlimited Civil (Breach of Contract/Warranty) |23CV004934

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV004934: MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, et al. 08/14/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53Tentative RulingNOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendarmust comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law and Motion OralArgument Request Line at (916) 874-2615 by 4:00 p.m. the court day before the hearing and adviseopposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mailmessage: a) identifying themselves as the party requesting oral argument; b) indicating the specificmatter/motion for which they are requesting oral argument; and c) confirming that it has notified theopposing party of its intention to appear and that opposing party may appear via Zoom using the Zoomlink and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomesthe final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or byvideo conference via the Zoom video/audio conference platform with notice to the Court and all otherparties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required,the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. TheDepartment 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the ZoomMeeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the ZoomMeeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporter services attheir own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956.Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Temporeavailable on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore byutilizing the list of Court Approved Official Reporters Pro Tempore available athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed byeach party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from theCourt’s Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with theclerk.If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Requestfor Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Onceapproved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will beprovided.TENTATIVE RULING:Plaintiffs Michael and Kristin McKay’s motion to compel defendant Ford MotorCompany’s (“FMC”) further responses to plaintiffs’ Requests for Production, Set Two, isruled upon as follows.*** If oral argument is requested, the parties must at the time oral argument isrequested notify the clerk and opposing counsel of the specific discoveryrequests that will be addressed at the hearing. Counsel are also reminded thatpursuant to local rules, only limited oral argument is permitted on law and motionmatters. *** Page 1 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV004934: MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, et al. 08/14/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53The notice of motion does not provide notice of the Court’s tentative ruling system, asrequired by Local Rule 1.06, and does not provide the correct address for Dept. 53/54.Moving counsel is directed to contact opposing counsel and advise him/her of LocalRule 1.06 and the Court’s tentative ruling procedure and the manner to request ahearing, along with the correct address for Dept. 53/54. If moving counsel is unableto contact opposing counsel prior to the hearing, moving counsel is ordered toappear at the hearing in person, by Zoom or by telephone.Factual BackgroundThis is a “lemon law” action relating to a pre-owned 2017 Ford F-150 which plaintiffspurchased in 2019. This action, filed in 2023, has not yet been set for trial.In April 2024, plaintiffs propounded their second set of Requests for Production,consisting of Request Nos. 27-52, to defendant FMC. On 5/21/2024, FMC served itsinitial responses to the requests, asserting various objections but also agreeing toproduce at least some of the responsive documents. A few weeks later, plaintiffs senton 6/11/2024 a five-page letter which generally characterized FMC’s responses as“deficient and evasive” and which concluded with a unilateral demand that within oneweek FMC respond to the 6/11/2024 letter, provide availability for a telephoneconference, and agree to a 60-day extension on a motion to compel.Although curiously omitted from the moving papers, FMC responded with a letter dated6/20/2024 in which it expressed disagreement which plaintiffs’ characterizations ofFMC’s responses, highlighted some of the deficiencies in the subject requests, andfurther clarified at least some of the earlier objections and responses but notably, alsoagreed to provide “supplemental responses” to several of the requests. This 6/20/2024letter concluded with an invitation for plaintiffs to further meet-and-confer.Plaintiffs claim (in their reply declaration) that because “Defendant [FMC] continued tostonewall Plaintiffs [sic] efforts to resolve discovery disputes” and thus, the presentmotion was filed on 7/9/2024 apparently without any further attempt to meet-and-conferwith FMC.It appears that FMC did, as promised in the 6/20/2024 letter, provide “supplementalresponses” to several of plaintiffs’ requests (i.e., Request Nos. 29, 32, 39-41, 48) on7/31/2024, in which FMC agreed to produce at least some of the documents responsiveto these requests.Moving Papers. According to the Notice of Motion, plaintiffs now seeks to have this Page 2 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV004934: MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, et al. 08/14/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53Court “strike” defendant FMC’s objections and “compel responses to Plaintiffs’ Requestfor Production..., [Nos. 27-52]” on the ground that FMC’s “responses contain nothingbut boilerplate and inapplicable objections.” (Not. of Mot., p.2:4-11 [underline added foremphasis].) Curiously, the separate statement plaintiffs filed in support of this motionincludes only 11 requests (i.e., Request Nos. 29, 32, 39-41, 45-48, 51-52) and ratherthan providing reasons for compelling (further) responses to these requests, plaintiffsinstead offer “reasons why documents should be produced.” Additionally, the reasonswhich plaintiffs cite in connection with most of the 11 requests actually addressed in theseparate statement include an express reference to the reasons plaintiffs provided “inregard to Request for Production...No. 1, above” but the Court finds no “Request No. 1”in this separate statement (or even in the second set of requests for production).Opposition. Defendant FMC opposes, arguing this motion should be denied forvarious reasons. The opposition contends that FMC’s objections, responses and“supplemental responses” all comply with code requirements and that plaintiffs failed tomeet-and-confer in good faith prior to filing this motion, even when FMC not only agreedto provide “supplemental responses” to several requests but also invited further meet-and-confer discussions before a motion became necessary.DiscussionCode of Civil Procedure §2031.300(b) expressly requires that a motion to compelfurther responses to requests for production be accompanied by a meet-and-conferdeclaration pursuant to §2016.040. This latter provision states in its entirety: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Underline added for emphasis.)This meet-and-confer requirement is “designed to encourage the parties to work outtheir differences informally so as to avoid the necessity for a formal order... . [Citation.]This, in turn, will lessen the burden on the court and reduce the unnecessaryexpenditure of resources by litigants through promotion of informal, extrajudicialresolution of discovery disputes.” (Townsend v. Superior Court (1998) 61 Cal.App.4th1431, 1435.) To satisfy this requirement, the moving party’s declaration must show “thathe or she has made a serious attempt to obtain ‘an informal resolution of each issue.’”(Id. (underline added for emphasis.))In the present case, plaintiffs have not only failed to demonstrate that they actuallyengaged in a “reasonable and good faith” meet-and-confer process but also failed to Page 3 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV004934: MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, et al. 08/14/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53establish efforts were made to obtain an informal resolution of “each issue” presentedby this motion,” as explicitly required by the Code and related case law. First, whileFMC served its responses to the Requests for Production on 5/21/2024, plaintiffs waitedseveral weeks just to commence the meet-and-confer process and even then, plaintiff’s6/11/2024 letter did not intend to foster a productive dialogue relating to the discoveryrequests and responses. Instead, the 6/11/2024 letter essentially demanded thatdefendant FMC simply capitulate to plaintiffs demands and to do so by the seven-daydeadline unilaterally imposed by plaintiff.Additionally, plaintiff’s 6/11/2024 letter does not appear address “each issue” nowpresented by this motion” but rather substitutes generalized statements on broad issuesin place of meaningful discussion of specific concerns tied to the allegations in thiscase, effectively making a formal motion inevitable. Notably, the OppenheimDeclaration filed with the moving papers fails to acknowledge that FMC did on6/20/2024 respond in writing to plaintiffs’ 6/11/2024 letter and fails to include a copythereof. While plaintiffs’ reply papers do ultimately actually acknowledge and include acopy of FMC’s 6/20/2024 letter, the Oppenheim Declaration filed with the replyproceeds to mischaracterize FMC’s 6/20/2024 letter as FMC’s continued attempts “tostonewall Plaintiffs [sic] efforts to resolve discovery disputes.” To the contrary, FMC’s6/20/2024 letter actually pointed out a number of deficiencies in plaintiffs’ requestswhich, in turn, justified FMC’s objections and responses but perhaps more significantly,not only indicated FMC would provide “supplemental responses” to several of therequests but also concluded with an invitation for further meet-and-confer efforts. Tomake matters worse, even the Oppenheim Declaration filed with the reply fails toindicate that plaintiffs at any time after 6/20/2024 made any further attempt to meet-and-confer with FMC and fails to provide any rational justification for plaintiffs’ failure to doso before ultimately filing this motion several weeks later on 7/9/2024. Instead, forreasons not entirely clear, plaintiffs proceeded to prepare and file the present motionand filed in support a declaration which does not appear to be entirely forthright in itsrepresentations about the meet-and-confer process and also does not appear to satisfyCode of Civil Procedure §2031.310(b)’s requirement for completing a “reasonable andgood faith attempt at an informal resolution of each issue presented by the motion”before the motion is filed.In short, this Court concludes that plaintiff failed to engage in a reasonable and goodfaith attempt to resolve each issue prior to filing this motion to compel and on this basisalone, the present motion to compel shall be denied.In light of the foregoing, it is not necessary for the Court to consider each of theindividual discovery requests at issue here but a few comments are merited hereinasmuch as they serve to reinforce the conclusion that the present motion would be Page 4 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV004934: MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, et al. 08/14/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53denied on its merits as well. First, plaintiffs’ Notice of Motion asserts that defendantFMC’s “responses contain nothing but boilerplate and inapplicable objections.” (Not. ofMot., p.2:8-11 [underline added for emphasis].) This, however, is clearly not anaccurate representation of FMC’s initial responses to the subject, as even a cursoryreview of the initial responses reveals that FMC expressly agreed to comply with atleast some of the requests and to produce at least some of the responsive documents.(See, Resp. to Req. Nos. 27-28, 30-31, 33-38, 42-46, 49-50.)Likewise, plaintiffs’ separate statement filed in support of this motion fails to persuadethis Court that none of the objections asserted by FMC has merit and this is particularlytrue insofar as plaintiffs’ stated “reasons why documents should be produced” consistlargely of generic, broad arguments (which are thereafter explicitly incorporated inconnection with most of the requests actually addressed in the separate statement,often without additional comment) that each request “seeks information that is relevantand reasonably likely to lead to the discovery of admissible evidence” (Pl. Sep. Stm.,p.6:2-p.7:23) followed by a statement that FMC has failed to produce “even a singleresponsive document” (Id., at p.7:24-26; p.8:25-28). But these pages of repeatedarguments do not actually demonstrate that each of FMC’s objections is devoid ofmerit. Instead, the essence of plaintiffs’ claim is that FMC failed to provide a privilegelog to substantiate its privilege and other related objections, so FMC should be orderedto produce all responsive documents without regard to the assertion of any privilege orother protection from discovery. (Id., at p.9:20-p.10:4.) In the end, this Court is notpersuaded plaintiffs have established that all of FMC’s asserted objections are entirelymeritless and thus, plaintiffs’ request for an order “striking” all of FMC objections,including those based on privilege, would not be granted here.Next, as pointed out above, the Notice of Motion purports to seek responses to plaintiffs’Request Nos. 27-52 but the moving separate statement addresses only 11 of theserequests: Request Nos. 29, 32, 39-41, 45-48 and 51-52. As plaintiffs’ moving separatestatement fails not only to set forth the text of Request Nos. 27-28, 30-31, 33-38, 42-44and 49-50 but also to set forth FMC’s responses to same and the reasons why a furtherresponse to these requests should be compelled, this Court would deny outright thepresent motion as it pertains to Request Nos. 27-28, 30-31, 33-38, 42-44 and 49-50.To the extent that plaintiffs’ separate statement does specifically address Request Nos.29, 32, 39-41, 45-48 and 51-52, the Court notes that defendant FMC voluntarily servedon 7/31/2024 “supplemental responses” to Request Nos. 29, 32, 39-41 and 48.Coupled with the fact that each of these “supplemental responses” included anagreement to comply at least in part with these six requests, the Court would also denythis motion as to Request Nos. 29, 32, 39-41 and 48 especially since plaintiffs now havean (additional) opportunity to meet-and-confer on these “supplemental responses” and Page 5 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV004934: MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, et al. 08/14/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53if appropriate, file a motion to compel only after completing the requisite good faithmeet-and-confer process.Turning to the five (5) remaining requests actually addressed in the moving separatestatement (i.e., Request Nos. 45-47, 51-52), the first three each seek “all documents”relating to “the creation or drafting of” a particular Technical Service Bulletin (“TSB”): 20-2191; 20-2278; and 20-7092. This Court would not compel a further response toRequest No. 47 relating to TSB 20-7092 since FMC has indicated it “has no knowledgeof a...TSB-7092” and as such, compelling a further response to Request No. 47 wouldnot result in the production of any documents. With regard to Request Nos. 45-46 andthe other two TSBs, FMC has properly asserted a number of objections includingoverbreadth in time and scope as well as several privileges including the attorney-clientprivilege. Since, as explained above, plaintiffs’ separate statement fails not only toadequately address these objections but also to demonstrate that a further response toRequest Nos. 45-46 is appropriate here, the Court is not presently inclined to compel afurther response to either of these two requests which could have and should beencrafted with greater clarity and precision.With respect to Request Nos. 51-52, these seek documents “reflecting FMC’s dataretention systems as they relate to fault...or error code data obtained from Californiaconsumers’ vehicles” and “reflecting FMC’s data retention policies and procedures”relating to same, respectively. Aside from Request No. 51 being vague, unclear andbordering on unintelligible, this Court is not persuaded that a further response to eitherrequest is justified here given that each request appears unreasonably overbroad andencompasses information which does not appear “reasonably calculated” to lead toadmissible evidence and which may also be protected from disclosure on variousgrounds. Moreover, plaintiffs’ separate statement does not provide sufficient reasons tocompel a further response to either request insofar as it merely ‘incorporates byreference,’ without any additional comment (Pl. Sep. Stm., p.19:2-4, 11-13), the generic,broad arguments which were cited in connection with the first request addressed in theseparate statement (i.e., Request No. 29) and which offer little more than that theinformation sought “is relevant and reasonably likely to lead to the discovery ofadmissible evidence” (Pl. Sep. Stm., p.6:2-p.7:23) followed by a statement that FMChas failed to produce “even a single responsive document” (Id., at p.7:24-26; p.8:25-28). As explained above, these repeated arguments fall short of demonstrating thatFMC’s objections are devoid of merit or that plaintiffs are entitled to either a furtherresponse or the production of all responsive documents without regard to the assertionof any privilege or other protection from discovery. (Id., at p.9:20-p.10:4.)Finally, to the extent it also purports to seek an order compelling FMC’s production ofdocuments responsive to the subject requests, plaintiffs’ motion shall be denied Page 6 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV004934: MCKAY, et al. vs FORD MOTOR COMPANY, A DELAWARE CORPORATION, et al. 08/14/2024 Hearing on Motion to Compel Further Discovery Responses in Department 53because (1) plaintiff did not file a motion to compel compliance pursuant to Code of CivilProcedure §2031.320(a); (2) plaintiff did not pay the requisite (additional) $60 filing feefor a motion to compel compliance; and (3) in any event, such an order would not beappropriate here. A motion to compel compliance pursuant to §2031.320(a) isappropriate only where a responding party has agreed to produce documents but thenfails to permit inspection consistent with that response. Here, however, the Notice ofMotion expressly asserts that FMC’s “responses contain nothing but boilerplate andinapplicable objections” (Not. of Mot., p.2:4-11 [underline added for emphasis]), which ispatently inconsistent with any agreement to produce documents. Based on this record,there is no factual or legal justification for issuing an order compelling FMC to complywith a (non-existent) agreement to produce responsive documents.DispositionFor the reasons explained above, plaintiffs’ motion to compel is DENIED IN ITSENTIRETY.Neither party requested monetary sanctions and thus, none are awarded here.This minute order is effective immediately. No formal order or other notice is required.(Code Civ. Proc. §1019.5; CRC Rule 3.1312.) Page 7 of 7

Ruling

DAVACIA BLACKMON VS EXTRA SPACE STORAGE

Aug 16, 2024 |24TRCV00664

Case Number: 24TRCV00664 Hearing Date: August 16, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B DAVACIA BLACKMON, Plaintiff, Case No.: 24TRCV00664 vs. [Tentative RULING EXTRA SPACE STORAGE, Defendant. Hearing Date: August 16, 2024 Moving Parties: Defendant Extra Space Properties Forty LP Responding Party: None (1) Demurrer (2) Motion to Strike The Court considered the moving papers. No opposition was filed. RULING The demurrer is SUSTAINED WITH TWENTY DAYS LEAVE TO AMEND as to the complaint. The motion to strike is MOOT in light of the ruling on the demurrer. BACKGROUND On February 27, 2024, plaintiff Davacia Blackmon (self-represented) filed a complaint against defendant Extra Space Storage. LEGAL AUTHORITY Demurrer When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747. Strike The court may, upon a motion . . ., or at any time in its discretion, and upon terms it deems proper: (a) Strike any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP §436(b). CCP §431.10 states: (a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. (b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An immaterial allegation means irrelevant matter as that term is used in Section 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437. DISCUSSION Demurrer Defendant Extra Space Properties Forty LP (erroneously sued and served as Extra Space Storage) demurs to the complaint on the grounds that it fails to state sufficient facts to constitute a cause of action and is uncertain. The Court notes that plaintiff does not allege any causes of action. Cal. Rules of Court, Rule 2.112 requires that [e]ach separately stated cause of action . . . must specifically state: (1) Its number (e.g., first cause of action); (2) Its nature (e.g., for fraud) . . . . The complaint alleges that plaintiff purchased her storage unit in 2020 and that she has never been more than two months behind on payments. In July 2023, she went to make a payment and was told her unit was five months late. She asked to speak with a manager to see how the problem could be resolved. She left and returned the next day but [w]e never resolved how my unit was so many months behind. Plaintiff further alleges that she was told that she had less than twenty-four hours to get her property but that she did not have a moving truck or vehicle to get any items. When plaintiff returned the next day, she was told she was trespassing, which didnt make any sense at all and that the employee got loud and called plaintiff a horrible name and everything went wrong. She was told to leave the property. Plaintiff returned a week later and asked if anyone had heard from the purchaser of her personal items, which would not be any value to them, but did not receive a response. Defendant interprets Plaintiffs complaint to attempt to plead causes of action for contractual fraud and breach of contract and argues that the allegations are insufficient and ambiguous to support each purported cause of action. Defendant also contends that it cannot quite ascertain what plaintiff is claiming against defendant and that plaintiff does not plead any action or inaction of defendant in the complaint or any harm or damages caused by defendant. The Court rules as follows: The complaint is procedurally defective and uncertain. As stated above, plaintiff failed to comply with Cal. Rules of Court, Rule 2.112 as the complaint does not identify by number any cause of action. The Court declines to speculate as to what causes of action plaintiff intended to assert. The complaint that was filed is four pages long and does not include any mention or reference to any cause of action. The demurrer is SUSTAINED WITH LEAVE TO AMEND. Strike Defendant requests that the Court strike the entirety of the complaint because plaintiff has failed to plead a cognizant cause of action against defendant rendering the entirety of the complaint as improper and irrelevant. Defendant reiterates its arguments under the demurrer. There is no opposition. The Court agrees that the complaint fails to plead a cause of action against defendant. The Court, however, declines to strike the complaint in light of the ruling on the demurrer in allowing plaintiff to amend. The motion to strike is deemed MOOT. ORDER The demurrer is SUSTAINED WITH TWENTY DAYS LEAVE TO AMEND as to the complaint. The motion to strike is MOOT in light of the ruling on the demurrer. Defendant is ordered to give notice of ruling.

Ruling

JEFFREY ALBERT SJOBRING VS. FIRST AMERICAN TITLE CO ET AL

Aug 16, 2024 |BC329482

Case Number: BC329482 Hearing Date: August 16, 2024 Dept: 14 SJOBRING V. FIRST AMERICAN TITLE INSURANCE COMPANY FIRST AMERICAN TITLE INSURANCE COMPANY v. PATRICK AND GLORIA KIRK Case No.: BC329482 r/t BC370141 and BC382826 Hearing Date: 8/14/24 Department 14 DEFENDANTS MOTION IN LIMINE NO. 9 TO EXCLUDE REFERENCE TO PRIOR DISCOVERY ORDERS TENTATIVE RULING Grant Defendants MIL#9 DISCUSSION I. Background In their motion in limine #9, Defendants move for an order in limine excluding the introduction into evidence, or any reference, to selected discovery orders from the 2007-2010 time period. A. Relevance and probative value vs. prejudice [The Court incorporates by reference its discussion of the standards governing relevance and probative value vs. prejudice in its analysis of Defendants MIL #1.] Between 2007-2010, the prior discovery referee issued a series of discovery orders. Defendants argue that fifteen (15) of these discovery orders were referenced in the Plaintiffs opposition to Defendants motion for summary judgment. Defendants argue that these discovery orders are not relevant to any issue in the case; reference to such orders would be improper without complying with the governing Discovery Act procedures for the issuance of discovery sanctions and admonitions, (3) the Discovery Orders contain impermissible hearsay, and (4) even if the Discovery Orders were probative of any issue at trial, which they are not, references to the cherry-picked universe of orders would be unfairly prejudicial. According to Plaintiffs, though, these orders are relevant for two reasons: (1) They evidence First Americans consciousness of guilt; and (2) They irrefutably rebut First Americans insincere and unsupported claim that the Ratepayers engaged in discovery abuse and delayed the case.--------------------------------------------------------------------------------------------------------------------------------------------------------------------------1SJOBRING v. FIRST AMERICAN TITLE INSURANCE COMPANYFIRST AMERICAN TITLE INSURANCE COMPANY, ET AL. V. PATRICK AND GLORIA KIRK, ET AL.No.: BC329482 r/t BC370141 and BC382826Hearing Date: 8/16/24Department 14I.PLAINTIFFS MOTION IN LIMINE NO. 1 FOR A RULING THAT DOCUMENTS AUTHORED BY FIRST AMERICAN AND PRODUCED BY FIRST AMERICAN IN DISCOVERY ARE AUTHENTIC AND NON-HEARSAYTENTATIVE RULINGDefer order on MIL #1; require the parties to meet and confer as to those documents for which a stipulation can be reached regarding authenticity and hearsay; to the extent disputes exist over the authenticity of documents and whether said documents constitute hearsay, require Plaintiffs to make a proffer at the appropriate timeI. BackgroundIn anticipation of trial in this matter, Plaintiffs and Defendants have filed a series of motions in limine. In the instant motion in limine, Plaintiffs move for an order in limine finding that: (1) documents produced by Defendants First American Title Insurance Company and First American Title Company (collectively, First American) in discovery in this matter are authentic, and (2) such documents, to the extent they were authored by First American and are offered against First American at trial, are authorized admissions and thus excepted from the normal rule that hearsay evidence is inadmissible.A. Request for Judicial NoticeIn connection with MILs 1-8, Plaintiffs request for judicial notice is granted as to each exhibit pursuant to Evidence Code §452(d). Each of these exhibits is a record of a court of the State of California, and is subject to judicial notice under this section. The Court does not judicially notice the truth of the matters set forth within exhibits 4-8, and judicial notice of these exhibits is limited to the fact that they comprise part of the trial record in Kirk v. First American.B. Motion in Limine #11. General standards governing authenticationWritings must be authenticated before they are received into evidence or before secondary evidence of their contents may be received. Evidence Code §1401; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525-526; Osborne v. Todd Farm Service )2016) 247 Cal.App.4th 43, 53; People v. Goldsmith (2014) 59 Cal.4th 258, 266; Jacobson v. Gourley (2000)283 Cal.App.4th 1331, 1334; California Practice Guide, Civil Trials & Evidence, ¶8:315 (The Rutter Group 2023). Authentication means either: the introduction of evidence sufficient to sustain a finding that the writing is what the proponent claims it is; or the establishment of such facts by any other means provided by law (e.g., stipulation or admissions). California Practice Guide, Civil Trials & Evidence, ¶8:317 (The Rutter Group 2023); People v. Goldsmith (2014) 59 Cal.4th 258, 266-267; Jacobson v. Gourley, supra, 83 Cal.App.4th at 1334; People v. Smith (2009) 179 Cal.App.4th 986, 1001.Certain types of writing may be authenticated by judicial notice. Evidence Code §§451 and 452. Certain documents are presumed authentic (e.g., notarized deeds or certified copies of public records). California Practice Guide, Civil Trials & Evidence, ¶8:325 (The Rutter Group 2023). The party offering the writing has the burden of offering sufficient evidence of its authenticity to sustain a finding of fact to that effect. Evidence Code §403(a)(3). The judge alone determines whether there is sufficient evidence to sustain a finding of authenticity. Evidence Code §§403, 1400; Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 65. As long as the proponents evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to its weight as evidence, not its admissibility. California Practice Guide, Civil Trials & Evidence, ¶8:331 (The Rutter Group 2023); McAllister v. George (1977) 73 Cal.App.3d 258, 261-263.A writing may be authenticated by evidence that the party against whom it is being offered has acted upon the writing as authentic. Evidence Code §1414(b); People v. Lynn (1984) 159 Cal.App.3d 715, 735; Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 326; California Practice Guide, Civil Trials & Evidence, ¶8:356 (The Rutter Group 2023).The court has discretionary power to admit a writing into evidence even before its authenticity is established...subject to proof of authenticity being supplied later in the course of the trial. Evidence Code §403(b). If such proof fails, the opposing party must move to strike the writing from evidence; and may ask that the jury be admonished to disregard it. California Practice Guide, Civil Trials & Evidence, ¶8:334 (The Rutter Group 2023).Authentication of internet sources presents a special problem. Because (a)nyone can put anything on the Internet and hackers can adulterate the content on any web-site from any location at any time, evidence procured from the Internet must be properly authenticated. California Practice Guide, Civil Trials & Evidence, The Rutter Group, §8:359 (citing People v. Beckley (2010) 185 Cal.App.4th 509, 515-516; Wady v. Provident Life & Acc. Ins. Co. of America (CD CA 2002) 216 F.Supp.2d 1060, 1064-1065). Various factors may provide a basis for authenticating Internet-based material as evidence, including: 1) distinctive characteristics (unique characteristics of Internet material may be sufficient to establish authenticity see ACTONet, Ltd. v. Allou Health & Beauty Care (8th Cir. 2000) 219 F.3d 836, 848 and Florida Conference Assn. of Seventh Day Adventists v. Kyriakides (CD CA 2001) 151 F.Supp.2d 1223, 1225, fn.3); 2) the context in which the party obtained documents (courts may also consider the context in which a party obtained Internet-based material to determine its authenticity see Florida Conference Assn .v Seventh Day Adventists, supra, 151 F.Supp.2d at 1225, fn.3); 3) the content (the content of the Internet-based material may be a factor in establishing its authenticity Florida Conference Assn., supra, at 1225, fn.3); and 4) the preparers testimony (testimony3from the person who created the Internet-based document attesting to how the material was prepared and its accuracy may also establish authenticity see United States v. Tank (9th Cir. 2000) 200 F.3d 627, 630-631). California Practice Guide, Civil Trials & Evidence, ¶¶8:359.1-8:359.5 (The Rutter Group 2023).2. Standard governing relevanceUnder Evidence Code §350, [n]o evidence is admissible except relevant evidence. Relevant evidence is evidence that has a tendency in reason to prove or disprove any disputed fact or consequence to the determination of the action.3. AdmissionsAdmissions made, adopted or authorized by, or imputable to, a party to the action are admissible under several exceptions to the hearsay rule. California Practice Guide, Civil Trials and Evidence, ¶8:1136 (The Rutter Group 2023) (citing Evidence Code §§1220-1227). Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party&. Evidence Code §1220.However:[S]tatements assertedly made by a corporation are not usually analyzed as party admissions under Evidence Code section 1220, but rather as authorized admissions under Evidence Code section 1222.Under Evidence Code section 1222, Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement .... (Evid. Code, § 1222, subd. (a).) Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 611.In their MIL#1, Plaintiffs seek a blanket order in limine, permitting them to introduce at trial documents created by First American in discovery, with a finding that such documents are authentic and admissible (if Plaintiffs make a proffer that such documents are relevant). Additionally, Plaintiffs seek an order finding that the First American-produced documents are authorized admissions, and not inadmissible hearsay.According to Plaintiffs, they seek to obviate the need to authenticate each document produced by First American in discovery, arguing that such documents are authentic as authorized admissions (and not inadmissible hearsay).However, the instant motion is extremely broad. The Court cannot make a blanket order at this time with respect to whether all documents Plaintiffs seek to introduce constitute hearsay (and/or hearsay within hearsay) or are otherwise authentic, especially given the fact that Defendants have expressed their intent to dispute the admissibility of specific documents.4With that said, Defendants have agreed that there are many documents that have been produced and that are indisputably authentic and non-hearsay. [Defendants Opposition 2:5-6.] The parties are ordered to engage in further meet-and-confer efforts in an attempt to reach a stipulation as to the authenticity and non-hearsay status of such documents.To the extent documents remain for which the parties cannot reach a stipulation on authenticity and non-hearsay, the Court defers a ruling on said documents, and will require a proffer at the appropriate time Plaintiffs seek to introduce the document.II.PLAINTIFFS MOTION IN LIMINE NO. 2 TO PRECLUDE DEFENDANTS FROM DISPUTING STATEMENTS MADE BY DEFENDANTS THROUGH INDIVIDUALS DESIGNATED AS PERSONS MOST QUALIFIEDTentative RulingDeny Plaintiffs MIL #2DISCUSSIONI. BackgroundIn the instant motion in limine, Plaintiffs move for an order in limine precluding First American from disputing, contradicting, or contesting factual statements or admissions made by First American through individuals it designated and produced as persons most qualified to testify in response to depositions noticed by class representative Sjobring under CCP§ 2025.230A. CCP §2025.230Under CCP §2025.230, [i]f the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.In their MIL#2, Plaintiffs seek an order in limine, precluding Defendant from contradicting the deposition statements and admissions by its PMQs. As laid out in the motion, Plaintiffs reference numerous instances where various of Defendants PMQs (designated separately for various topics) understood that their testimony would be binding on Defendants. According to Plaintiffs, such testimony constitutes judicial admissions and binds Defendants.A partys deposition answers are admissible as party admissions or for impeachment purposes but are not conclusive of the matter and may be contradicted by other evidence. See California Practice Guide, Civil Trials and Evidence, ¶8:1245 (The Rutter Group 2023) (citing CCP §2025.620; Mayhood v. LaRosa (1962) 58 Cal.2d 498, 500-501).5As discussed by the Court of Appeal in Scalf v. D.B. Log Homes, Inc.:For summary judgment purposes, deposition answers are simply evidence. Subject to the self-impeachment limitations of D'Amico, they are considered and weighed in conjunction with other evidence. They do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading [citations], or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit. [Citation.] Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522 (emphasis added).As Defendants point out (and as this Court previously acknowledged in its prior rulings), the Plaintiffs theory of recovery in this case has changed from its inception. Thus, context is everything. Many of the PMQ depositions were taken years ago, before the evolution of Plaintiffs theory of recovery. It is precisely for that reason that the policy enunciated in Scalf above is so important.Plaintiffs, of course, will be free to attempt to highlight contradictions in the PMQ testimony at trial and Defendants subsequent explanations/clarifications of said testimony. The trier of fact will ultimately be given the opportunity to weigh such evidence. However, the Court will not enter a blanket order that all such PMQ deposition testimony is binding on the Defendants as a judicial admission.In doing so, the Court will also not permit references to a PMQ witness by Plaintiffs at trial; only references to lay witnesses and expert witnesses.In LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, the Court of Appeal stated:The Evidence Code recognizes only two types of witnesses: lay witnesses and expert witnesses. Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. (Evid. Code, § 702, subd. (a).) Evidence Code section 801 governs the testimony of an expert witness, who may provide an opinion based on hearsay which need not always be based on personal knowledge.There is no special category of corporate representative witness&.[¶] The Evidence Code also does not recognize a special category of person previously designated as most knowledgeable witness. Person most qualified is a term from the Code of Civil Procedure pertaining to depositions of entities which are not natural persons. LAOSD Asbestos Cases, 87 Cal.App.5th at 947-948.For these reasons, Plaintiffs MIL #2 is denied.6III.PLAINTIFFS MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCES TO ANY AND ALL MARKET CONDUCT EXAMSTENTATIVE RULINGDefer an order Plaintiffs MIL #3 subject to Defendant laying the foundation that the Market Conduct Exam satisfies the strictures of Evidence Code §1280s governmental records exception to the hearsay ruleDISCUSSIONI. BackgroundIn their motion in limine #3, Plaintiffs move for an order in limine precluding First American from submitting into evidence, discussing, or questioning any witness about Market Conduct Examinations by the California Department of Insurance.A. Relevance and probative value vs. prejudiceUnder Evidence Code §350, [n]o evidence is admissible except relevant evidence. Relevant evidence is evidence that has a tendency in reason to prove or disprove any disputed fact or consequence to the determination of the action.Evidence Code §352 provides:The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.The prejudice §352 is designed to avoid is directed at evidence that uniquely tends to evoke an emotional bias against (a party) as an individual and which has very little effect on the issues. California Practice Guide, Civil Trials and Evidence, ¶8:3208 (The Rutter Group 2023) (citing People v. Karis (1988) 46 Cal.3d 612, 638; Ajaxo, Inc. v. E*TRADE Group, Inc. (2005) 135 Cal.App.4th 21, 45; Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1369-1370). Further, [p]rejudice in the context of Ev. C. §352 means the evidence is of such nature as to inflame the emotions of the jury, motivating them to use the information&to reward or punish one side because of the jurors emotional reaction. California Practice Guide, Civil Trials and Evidence, ¶8:32010 (The Rutter Group 2023) (citing People v. Doolin (2009) 45 Cal.4th 390, 439; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008; Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1014; People v. Cowan (2010) 50 Cal.4th 401, 477; People v. Scott (2011) 52 Cal.4th 452, 491).B. HearsayHearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.7Evidence Code §1200(a). Except as provided by law, hearsay evidence is inadmissible. Evidence Code §1200(b).In their MIL#3, Plaintiffs seek an order in limine, precluding Defendant from submitting into evidence, discussing, or questioning any witness about Market Conduct Examinations by the California Department of Insurance (CDI). As explained in the motion, the CDI regulates insurers in California, including Defendant First American. The CDI issued a document entitled Report of Market Conduct Examination of the Rating and Underwriting Practices of the First American Title Insurance Company (the Market Conduct Exam). [Exh. 1 to Freedman Declaration in Support of MIL #3.]Among other things, the Market Conduct Exam discusses First Americans method of doing business, advertising materials, authorized classes of business, authorized counties for affiliated underwritten title companies, and a premium and loss experience study. The Market Conduct Exam reviewed First Americans Title business, including a review of 343 in-force title policies and escrow files. [Market Conduct Exam at 10.] The examiner, as provided in the report, identified 103 rating errors and 10 non-rating errors, and alleged violations of 13 provisions of California law. [Id.] A summary table of the policy review results appears at page 11 of the Market Conduct Exam. [Market Conduct Exam at 11.]According to Plaintiffs, Defendant First American will seek to introduce the Market Conduct Exam to show that CDIs failure to cite First American for overcharges means no such overcharges occurred. [Motion at 3:25-26.] Plaintiffs argue that the Market Conduct Exam constitutes hearsay, and that any probative value of the Market Conduct Exam is outweighed by undue prejudice.Subject to specified foundational requirements, evidence of a public employees writing made in the performance of official duties as a record of an act, condition or event is admissible in any civil or criminal proceeding to prove the act, condition or event. California Practice Guide, Civil Trials and Evidence, ¶8:1682 (The Rutter Group 2023) (citing Evidence Code §1280).Admissibility of the writing under §1280 turns on the following foundational requirements:"The writing must have been made by a public employee within the scope of the public employee's official duties (Ev.C. § 1280(a));"The record must have been made at or near the time of the act, condition or event recorded (Ev.C. § 1280(b)); and"The sources of information and method and time of the record preparation must have been such as to indicate its trustworthiness California Practice Guide, Civil Trials and Evidence, ¶8:1682 (The Rutter Group 2023) (citing Ev.C. § 1280(c)) (emphasis added by Rutter Guide)).Here, the Court will require a proffer from Defendant that the report, prepared by CDIs Senior Insurance Rate Analyst Jerome Tu, performed the exam within the scope of his official8duties, and that the other requirements under §1280 are satisfied. If that proffer is made, then the Market Conduct Exam will qualify under §1280s governmental record exception to the hearsay rule.The document is plainly relevant, as it tends to support Defendants argument that it charged lawful rates, and committed no misrepresentation with regard to the rates. Additionally, the probative value of the Market Conduct Exam is not outweighed by any undue prejudice, within the meaning of Evidence Code §352 above.Of course, Plaintiffs will be free to highlight the statement in the Market Conduct Exam that the [f]ailure to identify, comment on, or criticize non-compliant activities does not constitute acceptance of such activities. Additionally, Plaintiffs may attempt to attack the Market Conduct Exam on other grounds. The trier of fact will consider such evidence (to the extent it is admissible at trial), including the testimony of Douglas Barker and James Dufficy. The objections lodged by Plaintiffs to the Market Conduct Exam go to the weight the jury will place on this evidence, rather than to its admissibility.For these reasons, the Court will defer an order Plaintiffs MIL #3 subject to Defendant laying the foundation that the Market Conduct Exam satisfies the strictures of Evidence Code §1280s governmental records exception to the hearsay rule.IV.PLAINTIFFS MOTION IN LIMINE NO. 4 TO EXCLUDE DOCUMENTS PRODUCED BY THE CALIFORNIA DEPARTMENT OF INSURANCETENTATIVE RULINGDefer an order Plaintiffs MIL #4 subject to Defendant making a proffer that specific DOI documents are nonhearsay (or fall under an exception to the hearsay rule), relevant, and that the probative value of such document(s) outweighs any undue prejudiceDISCUSSIONI. BackgroundIn their motion in limine #4, Plaintiffs move for an order in limine precluding Defendant First American from submitting into evidence, discussing, or questioning any witness about any documents produced by the California Department of Insurance in this litigation.II. MotionA. Legal standards and Discussion[The Court incorporates by reference the standards for relevance, probative value vs. prejudice, and hearsay, discussed in its analysis of Plaintiffs MIL #3.]9In their MIL#4, Plaintiffs seek an order in limine, precluding Defendant from submitting into evidence, discussing, or questioning any witness about any documents produced by the California Department of Insurance.The motion, as crafted, is extremely broad. The Court cannot issue an order in limine in a vacuum. To the extent Defendant First American seeks to introduce specific documents prepared by the CDI for use at trial, First American will be required to make a proffer, demonstrating that a given CDI document is relevant, that the probative value of the document is not outweighed by any undue prejudice, and that the document itself is either not hearsay or falls within one or more exceptions to the hearsay rule. As the Court does not know which CDI document(s) it plans to rely on and introduce at trial, the Court defers any ruling on the motion, subject to Defendant making this proffer at trial.V.PLAINTIFFS MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE OR ARGUMENT THAT THE CDI APPROVES OR PASSES JUDGMENT ON RATES CHARGED BY TITLE COMPANIES AND TITLE INSURERSTENTATIVE RULINGDefer an order Plaintiffs MIL #5 subject to Defendant making a proffer at trial with respect to the alleged approval by the CDI of its rates in question.DISCUSSIONI. BackgroundIn their motion in limine #5, Plaintiffs move for an order in limine precluding Defendants from seeking to suggest to the jury in any way, whether through offering evidence, questioning witnesses, or argument, that the Department of Insurance (CDI) approves the rates filed by title insurance companies, or that the CDI approved the rates at issue in this case.II. MotionIn their MIL#5, Plaintiffs seek an order in limine, precluding Defendants from seeking to suggest to the jury in any way, whether through offering evidence, questioning witnesses, or argument, that the Department of Insurance (CDI) approves the rates filed by title insurance companies, or that the CDI approved the rates at issue in this case.According to Plaintiffs, there are no challenges in this case to the Schedule of Fees itself or the rates reflected therein. However, Plaintiffs argue, Defendants want to argue that the CDI approved the fees or rates in question. [Motion at 4:7-9.] Plaintiffs argue that it is now beyond dispute that CDI does not approve title insurance rates. Sjobring v. First Am. Title Ins. Co. (Aug. 24, 2022, No. B293732), 2022 Cal.App.Unpub. LEXIS 5252 at *14 (citing Villanueva v. Fidelity National Title Co. (2021) 11 Cal.5th 104, 113). Plaintiffs reference the deposition of CDIs PMQ Douglas Barker, where he testified that CDI applied a file and use system to title insurance (allowing title companies to file rates and then use them without approval of the CDI).10[Motion at 4:12-14.] He also declared that CDI did not and does not approve filings by title insurers. [Plaintiffs RJN, Exh. 7, Barker Decl., ¶6.]Plaintiffs argue that while First American could characterize its filings as having been accepted by the CDI, to imply that the CDI approved the rate filings at issue would be false as a matter of law and fact. [Motion at 8:10-12.]The remaining claims in this litigation are for fraudulent and negligent misrepresentation. As Defendant First American argues, First Americans state of mind will be relevant in assessing potential affirmative defenses at trial. Therefore, evidence relied on by First American in effectuating its rate filings (including correspondence with the CDI and terminology used by CDI) may be relevant to these defenses.As examples, Defendant First American highlights the CDI Rate Analyst Worksheet, File No. 97-910 (created by CDI in Response to Defendants January 10, 1997 Rate Filing for the First Generation Eagle Policy); the CDI Rate Analyst Worksheet, File No. 98-7825 (created by CDI in Response to Defendants June 12, 1998 Rate Filing for the Second Generation Eagle Policy); and the June 24, 1998 Letter from CDI (Mr. D. Lawrence Buggage) to Defendants (Ms. Caroline OKelley). It would be inappropriate to issue a blanket order barring Defendant First American from arguing the CDI approves insurance rate filings. Such a determination would be for the trier of fact at trial. The trier of fact, of course, will be tasked with determining whether, in fact, CDI approved the rates (pursuant to the Insurance Code provisions governing rate filings, including §§12401.1 and 12401.7) or whether, as Plaintiffs argue, the rates were merely accepted (but not necessarily approved by CDI).The motion (as with Plaintiffs MIL #4) is overly broad. The effect of the CDIs actions with respect to the filed rates is a hotly disputed issue, and the Court cannot issue an order in limine as to non-specific evidence. The Court therefore generally defers any order in limine with respect to this motion, subject to Defendant First American making a proffer at trial with respect to the alleged approval by the CDI of its rates in question.VI.PLAINTIFFS MOTION IN LIMINE NO. 6 TO EXCLUDE REFERENCE TO RATES CHARGED BY OTHER TITLE INSURANCE COMPANIESTENTATIVE RULINGDefer an order Plaintiffs MIL #6, subject to a limiting instruction, that evidence of out of market rates may only be considered: 1) in assessing the calculation of Plaintiffs damages in this case (if any); and 2) as a measure of the fair market value of the insurance Plaintiffs purchased.DISCUSSIONI. Background11In their motion in limine #6, Plaintiffs move for an order in limine precluding Defendants from introducing any evidence regarding rates charged by title insurance companies other than First American or from discussing or questioning any witnesses about other companies rates.A. Legal standards[The Court incorporates by reference the standards for relevance and probative value vs. prejudice, discussed in its analysis of Plaintiffs MIL #3.]In their MIL#6, Plaintiffs seek an order in limine, precluding Defendants from seeking to introduce any evidence of rates charged by other insurance companies. Under Plaintiffs theory, these rates charged by other insurers is irrelevant to whether Defendant First Americans own charged rates were higher than its filed rates.Generally, the motion is well-taken. There is a significant danger that the jury may be confused, and Plaintiffs unduly prejudiced, by allowing evidence of the rates charged by other competing insurers into evidence.Defendant First American, though, argues that such evidence is relevant to damages (measured in this case by the difference between the purchase price and market value of property purchased see Gulke v. Brock (1963) 222 Cal.App.2d 459, 460). Here, according to Defendant First American, the value in question refers to its fair market value (CACI No. 1923), defined as the highest price that a willing buyer would have paid on the date of the transaction to a willing seller&. See CACI 1923; Restatement (Second) of Torts §549, comment, Clause 1(a).With that said, the Court may consider allowing such evidence, subject to a limiting instruction, that evidence of out of market rates may only be considered: 1) in assessing the calculation of Plaintiffs damages in this case (if any); and 2) as a measure of the fair market value of the insurance Plaintiffs purchased. The danger the Court foresees is permitting evidence of the rates charged by a litany of title insurers, and the jury being confused by these outside rates as a measure of what Defendant First American actually may owe in damages. This is, after all, not a case about outside insurers filed rates and the rates they charged it is a case about First Americans filed rates and the rates they charged for title insurance.The Court therefore defers an order on Plaintiffs MIL #6, subject to an appropriate limiting instruction.VII.PLAINTIFFS MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OR ARGUMENT THAT THE PURCHASERS OF EAGLE OWNERS POLICIES WERE UNDERCHARGEDTENTATIVE RULINGDeny Plaintiffs MIL #7DISCUSSION12I. BackgroundIn their motion in limine #7, Plaintiffs move for an order in limine precluding Defendants from suggesting through evidence or argument that if the Ratepayers position is correct, the purchasers of Eagle Owners policies were undercharged.A. Legal standards[The Court incorporates by reference the standards for relevance and probative value vs. prejudice, discussed in its analysis of Plaintiffs MIL #3.]In their MIL#7, Plaintiffs seek an order in limine, precluding Defendants from suggesting through evidence or argument that if the Ratepayers position is correct, the purchasers of Eagle Owners policies were undercharged. Plaintiffs have alleged in this case that because Defendants Eagle Owners Policy was an extended coverage policy during the class period, the lawful price for a lenders policy issued concurrently with an Eagle Owners policy was $125, and First American charged class members more than this amount. [Motion at 3:3-6.] Conversely, according to Plaintiffs, First American contends that because its Eagle Owners policy was a standard coverage policy for pricing purposes during the class period, it charged class members the lawful price for a lenders policy issued concurrently with an Eagle Owners policy, even if the price exceeded $125. [Motion at 3:6-9.] According to Plaintiffs, whether those who paid for Eagle Owners policies were undercharged by First American has no bearing on the nature of that policy; nor is it relevant to what the lawful price would have been for a lenders policy issued concurrently with an Eagle Owners policy. [Motion at 3:13-16.]Plaintiffs anticipate that First American will attempt to insinuate and argue that if First American overcharged class members for concurrently-issued lenders policies, then it necessarily undercharged for Eagle Owners policies in the same transactions. [Motion at 3:21-24.] Such evidence, Plaintiffs argue, has no probative value, especially to the critical determination of the nature of Eagle Owners policies, and would create a substantial danger of confusing the issues and misleading the jury. [Motion at 3:24-26.] This, Plaintiffs argue, is because owners policies and lenders policies are separate insurance policies, protecting different people or entities; there is no requirement they be purchased from the same company, or even in the same transaction.At bottom, Plaintiffs argue that any undercharges in class transactions were of First Americans own making and were a risk that First American assumed when issuing the subject policies. [Motion at 4:14-16.] Plaintiffs point to the Courts ruling and order granting the Kirk Cross-Defendants motion for summary judgment, finding that underpaying was of First Americans own making and that policy considerations dictate that First American assumed the risk of any error when it issued the policy to the Kirk Cross-Defendants. [Courts Ruling and Order granting Kirk Cross-Defendants Motion for Summary Judgment at 18.] The Court ruled that the Kirk Cross-Defendants were not, and could not have been, unjustly enriched and that First American is not entitled to restitution from the Kirk Cross-Defendants. [Id. at 25.] This rationale, according to Plaintiffs, applies in full force to the First American policies at issue here.13As such, Plaintiffs seek to preclude First American from suggesting that those who paid for Eagle Owners policies during the class period were undercharged.Thus, Plaintiffs argue that if, during the class period, an Eagle Owners policy provided extended coverage, then First American was required to charge class members $125 for a concurrently issued lenders policy, regardless of how much it charged for an Eagle Owners policy. [Motion at 5:11-13.] It would not matter if the price for the Eagle Owners policy were $100, $1,000, or $10,000 if an Eagle Owners policy was an extended coverage policy, then charging anything more than $125 for a concurrently issued lenders policy would be an unlawful rate, Plaintiffs argue. [Motion at 5:13-17.]Here, however, Defendant First American has an active cross-complaint and affirmative defenses, centered on an offset for any damages to which Plaintiffs may be entitled. Defendant First Americans theory is that if the Eagle Owners Policy falls within the defined term Extended Coverage for pricing purposes, evidence of the premium actually paid for Eagle Owners Policies and the premium that should have been paid [it] is necessary for the jury to determine what, if any, damages Sjobring and class members suffered when they purchased a concurrent loan policy. [Opposition at 5:1-4.] Thus, as Defendants theory goes, if the class is awarded damages, a portion of those same class members underpaid First American for the Eagle Owners policies. [Opposition at 5:7-9.] The jury will ultimately be entrusted with making these damages determinations, and the offset is a component of that. While the jury may be free to disregard it, such evidence is relevant, and it would be improper to summarily prevent First American from making the offset argument based on the amounts charged and paid for the Eagle Owners Policy. The probative value of this evidence otherwise would not result in undue prejudice to Plaintiffs.The instant motion essentially seeks to summarily adjudicate one of First Americans affirmative defenses. This is procedurally improper. Per LASC Local Rule 3.57(b), A motion in limine may not be used for the purpose of seeking summary judgment or the summary adjudication of an issue or issues.Further, while the Court recognizes its ruling and order on the Kirk Cross-Defendants motion for summary judgment on the cross-complaint, the Court explicitly stated in that order that it was making no determination on the main issue in the instant Sjobring case whether the policies are properly characterized as standard versus extended coverage. Nor was the Court deciding whether First Americans conduct was wrongful, or whether Plaintiff Sjobring (or the class) were entitled to damages or any amount of offset due.For these reasons, the Court denies motion in limine #7.14VIII.PLAINTIFFS MOTION IN LIMINE NO. 8 TO EXCLUDE REFERENCE TO PRIOR ORDERS, JUDICIAL STATEMENTS, OR DISMISSED CLAIMSTENTATIVE RULINGDefer order on Plaintiffs MIL #8 as overly broad, subject to renewal of objection to specific evidence First American may seek to introduce at trialDISCUSSIONI. BackgroundIn their motion in limine #8, Plaintiffs move for an order in limine precluding Defendants from referring to or discussing prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit.A.Legal standards[The Court incorporates by reference the standards for relevance, probative value vs. prejudice, and hearsay, discussed in its analysis of Plaintiffs MIL #3.]B. DiscussionIn their MIL#8, Plaintiffs seek an order in limine, precluding Defendants from referring to or discussing prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit.Conceptually, the Court agrees that statements by the Court in this case (or by prior judges in this case) about the merits of the claims, attorneys, witnesses, or dismissed claims in the lawsuit are generally not relevant, may constitute undue prejudice, and may constitute hearsay. However, MIL #8 is very broad, and the Court cannot anticipate what (if any) specific evidence First American may introduce that invokes such statements, but which may otherwise be admissible under Evidence Code §§350 and 352 and may not constitute hearsay (or satisfy one or more exceptions to the rule).In light of this, it is appropriate for the Court to defer an order on Plaintiffs MIL #8, subject to renewal by Plaintiffs objecting to specific evidence Defendants may introduce which encompasses the category of prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit. At the outset, the discovery orders are not evidence in this case. Nor is the discovery conduct of Defendant (or, for that matter, Plaintiffs). These orders are not relevant to any issue in 2 the case, and admission of the order(s) would result in undue prejudice. The Court disagrees with Plaintiffs that such orders are admissible to support the inference that First American knew the discovery at issue would prove its liability and therefore stonewalled and attempted to suppress the evidence. [Opposition at 5:14-16.] Admission of any such orders as evidence would be inappropriate, and the motion is granted. Plaintiffs, in their MIL #8, move for an order in limine precluding Defendants from referring to or discussing prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit. The Court, as discussed in its analysis of that motion, has deferred any such order, pending a showing that specific evidence falling within this category is relevant, non-hearsay, and whose admission would not be unduly prejudicial. However, the Plaintiffs MIL #8 is broader than what Defendants seek to preclude here - the actual discovery referees discovery orders, which, the Court finds, are not admissible.

Ruling

IGNACIO CARMONA VS GUILLERMO MADRIGAL, ET AL.

Aug 15, 2024 |22STCV10525

Case Number: 22STCV10525 Hearing Date: August 15, 2024 Dept: 57 The Court is denying the motion of Defendant MAD Construction & Turnarounds ("MAD") for an order under Code of Civil Procedure Section 473(b) to set aside the clerk's default entered against it following the Court's decision to strike MAD's answer to the Plaintiff's complaint in this action . MAD is a corporation. Corporations cannot represent themselves in litigation. A corporate defendant that is self-represented in litigation is subject to having the court strike its answer and a default entered against it. MAD found itself self-represented in this case after the Court on February 26, 2024 granted the motion of its counsel to be relieved from representing MAD. The Court set an order to show cause hearing for March 22, 2024 as to the striking of MAD's answer if it did not have new counsel representing it as of that date. MAD failed to appear at the March 22, 2024 hearing. As a result, the Court entered an order striking MAD's answer. Subsequently, on May 1, 2024, the Clerk entered a default against MAD. As of June 10, 2024, MAD no longer was self-represented: on that day, MAD's current counsel filed a substitution of attorney stating that counsel was representing MAD. With its new counsel on board, MAD filed the motion to set aside the default on June 24, 2024.The provision of Section 473(b) on which MAD relies in its motion states, in pertinent part, as follows: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Granting relief under this provision is discretionary. MAD acknowledges that its previous counsel sought to be relieved from representing MAD because MAD had failed to pay counsel's bills, and that this led to MAD being in the impermissible position of a corporate defendant without an attorney. MAD contends that the predicament in which it found itself was the result of inadvertence, surprise, or excusable neglect within the meaning of Section 473(b). The Court disagrees. MAD's failure to pay its counsel's bills was not the result of neglect. It was intentional. To be sure, MAD says it did not pay its counsel's bills because it could not afford to do so at the time. The Court sympathizes with MAD's plight. The problem for MAD, however, is that a defendant's awareness of the fact that the defendant's financial condition will affect its ability to conduct litigation is not excusable neglect for purposes of Section 473(b). (Davis v. Thayer (1980) 113 Cal.App.3d 892, 905-906.) After its counsel was relieved, MAD was afforded an opportunity to find new counsel. MAD could have appeared pro per at the order to show cause hearing on March 22, 2024 through its principal Guillermo Madrigal (who also is a Defendant in this case) and asked the Court to hold off striking MAD's answer so as to give MAD more time to find new counsel. But neither MAD nor Madrigal bothered to appear at the March 22, 2024 hearing; as a result of their non-appearance, the Court entered an order striking MAD's answer. The record before the Court indicates that the decision of MAD and Madrigal not to appear at the March 22, 2024 was intentional, not the product of excusable neglect.At the hearing today, the Court will discuss with counsel for MAD, who also is representing Madrigal, whether the case can proceed to trial on Plaintiff's claims against Madrigal individually as scheduled on September 30, 2024.

Ruling

VETSNAP, INC. VS GREGORY SCHIMPFF

Aug 14, 2024 |24STCV00604

Case Number: 24STCV00604 Hearing Date: August 14, 2024 Dept: 37 HEARING DATE: Thursday, August 14, 2024 CASE NUMBER: 24STCV00604 CASE NAME: Vetsnap, Inc. v. Gregory Schimpff MOVING PARTY: Defendant Gregory Schimpff OPPOSING PARTY: Plaintiff Vetsnap, Inc. TRIAL DATE: Not set. PROOF OF SERVICE: OK PROCEEDING: Demurrer to Second Amended Complaint OPPOSITION: 1 August 2024 REPLY: 6 August 2024 TENTATIVE: Defendants demurrer is sustained as to the eighth cause of action with leave to amend and overruled as to the ninth cause of action. Plaintiff is granted 10 days leave to amend. The court sets a Non-Appearance OSC RE: Amended Complaint for September 23, 2024, at 8:30 a.m. Defendant to give notice. Background On January 9, 2024, Vetsnap, Inc. (Plaintiff) filed a Complaint against Gregory Schimpff (Defendant) and Does 1 to 10. On April 17, 2024, the operative Second Amended Complaint (SAC) was filed alleging nine causes of action: 1) Fraudulent Inducement; 2) Fraud by Intentional Misrepresentation, 3) Fraud by Concealment; 4) Breach of Fiduciary Duty; 5) Negligent Misrepresentation; 6) Promissory Estoppel; 7) Illegal Use of Domain (Pen. Code, § 502); 8) Intentional Interference with Contractual Relations; and 9) Negligent Interference with Prospective Economic Advantage. Defendant now demurs to the SAC. Plaintiff opposes the Motion. The matter is now before the court. Demurrer[1] I. Legal Standard Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainants properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) II. Discussion The SAC alleges in 2019 and 2020, Defendant along with his friend Yangyang Shi (Shi) and Steven Elliot (Elliot) launched Vetsnap Corporation (Plaintiff). (SAC, ¶ 2.) In the months leading up to the founding of Plaintiff corporation, Defendant misrepresented his skills, experience, willingness to work, and industry relationships. (Id., ¶¶ 22-23.) Based on Defendants representations, Shi and Elliot agreed to co-found Vetsnap with Defendant and provide him with a $100,000 per year salary and more than 3,000,000 shares of the new company. (Id., ¶¶ 33-39, Ex. 1 .) The SAC alleges that in the 27 months that Defendant worked for Plaintiff, he was willfully negligent in all areas he had boasted strength and underperformed and failed to advance sales and ruled valuable sales opportunities. (SAC, ¶¶ 37-70.) By the summer of 2022, Defendant admitted that he was unable to perform major marketing for Plaintiff. (Id, ¶¶ 59-61, 88.) Defendant initially agreed to a smooth transition out for Plaintiff but later refused to follow through on the agreement before quitting on October 27, 2022. (Id., ¶¶ 91-96.) After Defendant quit Plaintiffs employment, he logged into Plaintiffs Adobe Acrobat Sign account using his company email and a personal password and proceed to terminate Plaintiffs Adobe Acrobat Sign account, resulting in Adobe contacting all of Plaintiffs vendors to inform them that the contracts were being terminated. (SAC, ¶ 97.) Plaintiff owned the Adobe Acrobat Sign account and Defendant did not have permission to access the account after his departure. (Id., ¶ 98.) Vetsnap had to spend substantial time and resources to rectify the situation. (Id.) Defendant now demurs to the eighth and ninth causes of action for Intentional Interference with Contractual Relations (IICR) and Negligent Interference with Prospective Economic Advantage (NIPEA). A. Eighth Cause of Action - Intentional Interference with Contractual Relations (IICR) The elements of a cause of action for intentional interference with contractual relations are (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendants knowledge of that contract; (3) the defendants intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 997, citing Reeves v. Hanlon(2004) 33 Cal.4th 1140, 1148.)¿ Because interference with an existing contract receives greater solicitude than does interference with prospective economic advantage, it is not necessary that the defendants conduct be wrongful apart from the interference with the contract itself. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55 (Quelimane) [internal citations omitted]; see also CACI 2201.) For IICR, the SAC alleges that Plaintiff had a valid contract with Adobe and other doctors and/or medical organizations, Defendant was aware of these contracts, but prior to his departure he deliberately breached and/or disrupted Plaintiffs contractual relations through his willful neglect of his duties. (SAC, ¶¶ 160-164.) After his departure, Defendant deliberately disrupted Plaintiffs relationship with Adobe, Plaintiff relationship with Adobe and its vendors was terminated, and Plaintiff lost the goodwill of its customers as a result of Schimpffs neglect. (Id. at pp. 165-168.) Plaintiff was damaged because of Defendants conduct. (Id., at p. 169) In Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal.App.4th 945, the appellate court explained that even if a defendant could assert a privilege against liability for interference with a contract on the basis that the defendant had an ownership interest in the entitys contract such that he cannot interfere with his own contract, such an assertion was a defense and because the privilege is a defense, it was not amenable to determination on demurrer. (Id., at p. 963 referencing Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344, 351, fn. 7.) Recently, the California Supreme Court concluded that a defendant who is not a party to the contract or an agent of a party to the contract is not immune from liability for intentional interference with contract by virtue of having an economic or social interest in the contract. (Caliber Paving Company, Inc. v. Rexford Industrial Realty and Management, Inc. (2020) 54 Cal.App.5th 175, 187.) Therefore, the fact that Defendant had an ownership interest in Plaintiff does not mean that he cannot be held liable for interference with Plaintiffs contracts. However, the SAC alleges that Defendants interference was not intentional but due to Defendants neglect and willful neglect of his duties. (SAC, ¶¶ 164, 166.) Plaintiff fails to show that willful neglect amounts to intentional conduct sufficient to support a claim for IICR. While a plaintiff may satisfy the intent requirement by pleading specific intent, i.e., that the defendant desired to interfere with the plaintiffs prospective economic advantage, a plaintiff may alternately plead that the defendant knew that the interference was certain or substantially certain to occur as a result of its action. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1154 (Korea).) The SAC fails to allege that Defendant acted with the specific intent to interfere with Plaintiffs contract or that Defendant knew his interference with the contract was certain or substantially certain to occur due to his conduct. Lastly, while Quelimane held that independent wrongful conduct is not necessary, the California Supreme Court held in Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1148 that independent wrongful conduct is necessary for at-will contracts. Accordingly, Plaintiff must plead that the contracts Defendant interfered with were not at-will contracts and do not require independent wrongful conduct. Accordingly, the demurrer to the eighth cause of action is sustained with leave to amend. B. Ninth Cause of Action Negligent Interference with Prospective Economic Advantage (NIPEA) The tort of negligent interference with a prospective economic advantage (NIPEA) differs in that the defendant's act disrupting the economic relationship does not need to be intentional. (Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1078.)The tort of negligent interference with economic relationship arises only when the defendant owes the plaintiff a duty of care. (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1825 [italics original].) For a NIPEA claim, the interference must be wrongful by some legal measure other than the fact of the interference itself. (See Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 378.) [T]he same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts.¿ (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774.)¿ However, conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.¿ (Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [italics added]; see also Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515 [ An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty. [internal quotation marks and citations omitted].) [A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. (Korea, supra, 29 Cal.4th at p. 1159.) As to the NIPEA claim, the SAC alleges Plaintiff had several economic relationships with current and prospective customers and independent contracts that had the probability of future economic benefit for Plaintiff. (SAC, ¶ 172.) On one occasion, during Defendants employment, Defendant interfered with Plaintiffs prospective relationship with BetterVet by promising an inappropriately low price for Plaintiffs products and not validating a contract with a third-party vendor, resulting in the loss of the deal, loss of $60,000 in an accounts receivable, and loss to Plaintiffs valuation. (SAC, ¶ 173.) Furthermore, two contractors who were strong and experienced salespeople were terminated due to Defendant misrepresenting their performance and advocating their termination, depriving Plaintiff of the economic benefit of their labor. (SAC, ¶ 174.) As Plaintiffs officer and co-founder, Defendant owed a duty of care to Plaintiff. (SAC, ¶ 177.) Defendant demurs to the NIPEA claim on the basis that Plaintiff fails to allege independent wrongful conduct. Plaintiff points to the other causes of action for fraudulent inducement, fraudulent misrepresentation, and breach of fiduciary duty as wrongful independent conduct sufficient to sustain a NIPEA claim. (Opposition, at p. 14:1-6.) Defendant argues that the fraud-based causes of action and the breach of fiduciary duty, while wrongful, is not conduct related to the interference itself and is insufficient to show independent wrongful conduct. A plaintiff need not allege the interference and a second act independent of the interference. Instead, a plaintiff must plead and prove that the conduct alleged to constitute the interference was independently wrongful, i.e., unlawful for reasons other than that it interfered with a prospective economic advantage. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1224.) The SAC fails to allege that the misrepresentations Defendant made about his marketing and sales experience, or lack thereof, occurred at the same time Defendant interfered with the BetterVet contract or the contract with the two independent contractors. However, the fourth cause of action for breach of fiduciary duty, did occur while Defendant was an officer and Defendants deception about his competence and capability caused interference with the BetterVet contract and the contract with the two independent contractors. (SAC, ¶¶ 131-135.) Therefore, the SAC does allege a viable NIPEA claim. While a demurrer does not lie in part of a cause of action, the court notes that the SAC fails to allege what duty Defendant breached after he left Plaintiffs employment that is sufficient to sustain an NIPEA claim for conduct occurring after Defendants employment with Plaintiff. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119[A demurrer must dispose of an entire cause of action to be sustained].) Therefore, the demurrer to the ninth cause of action is overruled. Conclusion Defendants demurrer is sustained as to the eighth cause of action with leave to amend and overruled as to the ninth cause of action. Plaintiff is granted 10 days leave to amend. The court sets a Non-Appearance OSC RE: Amended Complaint for September 23, 2024, at 8:30 a.m. Defendant to give notice. [1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. (Hadek Decl., ¶ 2, Ex. 1.)

Ruling

Edwards, et al. vs. General Motors LLC

Aug 15, 2024 |22CV-0200334

EDWARDS, ET AL. VS. GENERAL MOTORS LLCCase Number: 22CV-0200334Tentative Ruling: This matter is on calendar regarding status of settlement. On April 19, 2024,the parties filed a Stipulation to Vacate MSC in Light of Settlement. This Court executed an Orderthereon on the same day. The Stipulation indicated that the parties had entered a global settlement,which was conditional and still in the process of being drafted. Attorney fees have since beenawarded pursuant to motion. No Notice of Settlement on Mandatory Judicial Council Form CM-200 has been filed. No dismissal has been filed. The parties are ordered to appear today toprovide a status of the settlement.

Ruling

4100 DEL REY, LLC, A LIMITED LIABILITY COMPANY, ET AL. VS RELIANT REAL ESTATE MANAGEMENT, INC. A CALIFORNIA CORPORATION, ET AL.

Aug 15, 2024 |24STCV11356

Case Number: 24STCV11356 Hearing Date: August 15, 2024 Dept: 58 Judge Bruce G. Iwasaki Department 58 Hearing Date: August 15, 2024 Case Name: 4100 Del Rey, LLC, et al. v. Reliant Real Estate Management, Inc., et al. Case No.: 24STCV11356 Motion: Demurrer and Motion to Strike Moving Party: Defendants Reliant Real Estate Management, Inc.; Sandra Dixon DElia; Frank Dietrich Thorp; Jeanette Christine Ruscitti; Leanna Wendy Tevis; and Yong Held Responding Party: Plaintiffs 4100 Del Rey, LLC; PJ Fig, LLC; WP Fig, LLC; and Neumann Fig, LLC Tentative Ruling: The Demurrer to the Complaint is sustained with leave to amend. The Motion to Strike is granted. Background This action arises from alleged wrongful actions in the management of two apartment complexes. On May 6, 2024, Plaintiffs 4100 Del Rey, LLC; PJ Fig, LLC; WP Fig, LLC; and Neumann Fig, LLC (collectively, Plaintiffs) filed a Complaint against Defendants Reliant Real Estate Management, Inc. (Reliant); Sara Dixon DElia (DElia); Frank Dietrich Thorp (Thorp); Jeanette Christine Ruscitti (Ruscitti); Leanna Wendy Tevis (Tevis); and Yong Held (Held) (collectively, Defendants) alleging causes of action for: (1) fraud; (2) breach of contract; (3) breach of fiduciary duty; and (4) declaratory relief. On July 15, 2024, Defendants filed a demurrer to the first and third causes of action in the complaint. On July 17, 2024, Defendants filed a motion to strike punitive damages allegations from the complaint. On August 2, 2024, Plaintiffs filed opposition briefs to the demurrer and motion to strike, to which Defendants replied on August 8, 2024. The Court finds that the meet and confer requirement has been met as to both the demurrer and motion to strike. (CCP §§ 430.41, 435.5.) Legal Standard for Demurrers A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.¿Code Civ. Proc. § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law.¿(Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)¿In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc. § 452.)¿The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . . ¿ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.¿(Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) Pertinent Allegations of the Complaint Plaintiffs allege that they are owners of rental properties in Los Angeles County. (Complaint, ¶ 14.) Tribeca Urban Apartments (Tribeca) is located at 4108 Del Rey Avenue in Marina Del Rey, California, and is owned by Plaintiff 4100 Del Rey, LLC. (Complaint, ¶ 15.) City Lights on Fig (City Lights) is located in Los Angles, California and is owned by Plaintiffs PJ Fig, LLC, WP Fig, LLC, and Neumann Fig, LLC. (Complaint, ¶ 16.) In June of 2021, Plaintiffs entered into separate contracts with Defendant Reliant for Defendant Reliant to serve as manager of Tribeca and City Lights (collectively, the Contracts). (Complaint, ¶ 17; Exs. 1-2.) Under the Contracts, Defendant Reliant agreed to perform all of the necessary property management functions related to Tribeca and City Lights. (Complaint, ¶ 18.) This included, without limitation, functions such as hiring, supervising, training all business managers, leasing agents, maintenance, and other administrative employees, and finding and vetting new applicants for tenancies at the properties. (Complaint, ¶ 18.) While serving as manager of the properties, Defendants acted as an agent and fiduciary for Plaintiffs. (Complaint, ¶ 19.) In or about November of 2023, the Contracts between Plaintiffs and Defendant Reliant were terminated. (Complaint, ¶ 20.) During the time that Defendant Reliant acted as Plaintiffs agent, all Defendants and Plaintiffs had a clear understanding of the minimum qualifications required for any new applicant to be accepted as a tenant at Tribeca and/or City Lights including, but not limited to, those stated in Defendant Reliants written Policies and Procedures dated December 1, 2020 (the Policies). (Complaint, ¶ 21.) Plaintiff aver that Defendants knowingly and intentionally accepted unqualified applicants as tenants for the properties and failed to follow various state and federal law requirements related to applicant screening. (Complaint, ¶ 22.) Plaintiffs allege that such tenants defaulted on their rental obligations in multiple cases. (Complaint, ¶ 22.) Plaintiffs also allege that Defendants would knowingly and intentionally allow employees of Defendant Reliant who failed to meet applicant criteria to occupy rental units in the properties. (Complaint, ¶ 23.) First Cause of ActionFraud The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The Court finds that the first cause of action for fraud is insufficiently alleged. (Complaint, ¶¶ 25-30.) Plaintiffs merely allege that Defendants made misrepresentations of fact including, but not limited to, that: (1) the Policies would be followed specifically with regard to applicant screening, communication, maintenance, rekeying locks, verification of renters insurance, and safety; and (2) Defendants were capable and prepared to use Plaintiffs preferred property management software known as RealPage. (Complaint, ¶ 26.) Plaintiffs allege that they relied on the purported misrepresentations and that Defendants intended to induce reliance. (Complaint, ¶¶ 27, 29.) The Court, however, finds that the first cause of action is much too conclusory. Plaintiffs only set forth the purported misrepresentations in a conclusory manner as Plaintiffs have failed to plead the names of the persons allegedly making the false representations on behalf of Defendant Reliant and the facts surrounding such misrepresentations. (Complaint, ¶ 6.) Additionally, Plaintiffs have failed to allege justifiable reliance or that Defendants knew that the alleged misrepresentations were false. (Complaint, ¶¶ 25-30.) Plaintiffs must assert their fraud cause of action with the required specificity. Thus, the first cause of action for fraud in the complaint does not state sufficient facts to constitute a cause of action. Third Cause of ActionBreach of Fiduciary Duty The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Whether a fiduciary duty exists is generally a question of law. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 441 [citation omitted].) Any agent is also a fiduciary, whose obligation of diligent and faithful service is the same as that of a trustee. (Duffy v. Cavalier (1989) 215 Cal.App.3d 1517, 1534.) California law is that parties to a contract, by that fact alone, have no fiduciary duties toward one another. (Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 654.) Initially, the Court finds that Plaintiffs reliance on Duffy, supra, 215 Cal.App.3d 1517 is inapposite as such case concerned the fiduciary duties of stockbrokers. Here, however, Plaintiffs are alleging that a residential property management company and its employees have a fiduciary duty. Thus, Duffy, supra, 215 Cal.App.3d 1517 is factually distinguishable from the instant action. Here, the Court finds that the third cause of action is insufficiently alleged. (Complaint, ¶¶ 39-46.) Plaintiffs make a conclusory allegation that Defendants were the agents of Plaintiffs; however, the Court does not accept conclusions of fact or law on demurrer. The third cause of action is premised on Defendants repeatedly approving applicants who did not meet Plaintiffs qualifications or the standards in the Policies. (Complaint, ¶ 41.) Plaintiffs have asserted a cause of action for breach of contract, which Defendants do not challenge on demurrer. (Complaint, ¶¶ 31-38.) The second cause of action for breach of contract is premised on Defendants failing to follow the Policies and breaching the Contracts. (Complaint, ¶¶ 31-38.) Although not raised as an argument by Defendants, the Court finds that the third cause of action for breach of fiduciary dutywhich incorporates the preceding allegations of the complaint thereinappears to be a slightly recast cause of action for breach of contract. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) The third cause of action does not add anything to the complaint by way of fact or theory of recovery. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) Therefore, the Court finds that the third cause of action for breach of fiduciary duty is insufficiently alleged. Legal Standard for Motions to Strike The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿(Code Civ. Proc. § 436.) Immaterial or irrelevant matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc. § 431.10, subds. (b)(1)-(3).) In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civ. Code § 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either conduct which is intended by the defendant to cause injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under Civ. Code § 3294(c)(3) means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. Civ. Code § 3294(c)(2) defines oppression as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. Specific facts must be alleged in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Facts must be pled to show that a defendant act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiffs rights. (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.) Plaintiffs Punitive Damages Allegations are Insufficient Defendants move to strike Plaintiffs request for exemplary damages. The Court references its recital of the allegations of the complaint from above and incorporates such recitation herein. The Court finds that the complaint does not set forth sufficient facts to show entitlement to punitive damages. Plaintiffs have not alleged specific facts showing fraud, oppression, or malice. The Court therefore grants Defendants motion to strike. Conclusion The demurrer to the first and third causes of action in the complaint is sustained with leave to amend. The motion to strike is granted with leave to amend. The amended complaint shall be filed and served on or before September 5, 2024.

Ruling

TRIUROL, INC. VS FARR LABORATORIES, LLC

Aug 16, 2024 |6/18/2022 |SC123657

Case Number: SC123657 Hearing Date: August 16, 2024 Dept: I The court originally scheduled this for an evidentiary hearing. However, in light of the courts ruling of August 13, 2024, the matter is now to determine when that evidentiary hearing will take place. Accordingly, todays hearing will be limited to that procedural issue.

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