DEPARTMENT 25 LAW AND MOTION RULINGS
*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner KARINE MKRTCHYAN *** Case Number: 23STLC02166 Hearing Date: March 6, 2025 Dept: 25
HEARING DATE: Thurs.,
March 6, 2025 JUDGE/DEPT: Mkrtchyan/25 CASE NAME: Del
Rosario, et al. v. Velasquez COMP. FILED: 04-03-23 CASE
NUMBER: 23STLC02166 TRIAL DATE: N/A NOTICE: OK PROCEEDINGS: EXPEDITED
PETITION FOR APPROVAL OF COMPROMISE OF CLAIM OR ACTION OR DISPOSITION OF
PROCEEDS OF JUDGMENT FOR MINOR CLAIMANT: AAYDEN DEL ROSARIO (AGE 15) MOVING PARTY: Petitioner
Andrew Del Rosario on behalf of minor Claimant
Aayden Del Rosario RESP. PARTY: None PETITION TO APPROVE COMPROMISE OF A DISPUTED CLAIM AS TO MINOR CLAIMANT
AAYDEN DEL ROSARIO (AGE 15) (Code Civ. Proc. § 372, Cal. Rules of Court, rules 7.950, 7.950.5; Prob.
Code § 3505.) TENTATIVE RULING: The
hearing on the Expedited Petition is CONTINUED TO April 21,
2025, at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Petitioner
is ordered to electronically file supplemental papers addressing the
deficiencies noted herein at least 16 court days before the next scheduled
hearing. Failure to do so may result in the Expedited Petition being placed off
calendar or denied. Moving
party ordered to give notice. _______________________________________________________________________ 45DSERVICE:
[X] Proof of Service Timely
Filed (CRC, rule 3.1300) OK [X] Correct Address (CCP §§
1013, 1013a) OK [X] 16/21 Court Days Lapsed
(CCP §§ 12c, 1005(b)) OK OPPOSITION: None filed as of March 3,
2025 [ ] Late [X]
None REPLY: None filed as
of March 3, 2025 [ ] Late [X] None ANALYSIS: I.
Background On
June 1, 2021, minor Aayden Del Rosario (“minor Plaintiff”) was in a vehicle
with his father, Petitioner Andrew Del Rosario (“Petitioner”), when their
vehicle and Defendant Samuel Velasquez’s (“Defendant”) vehicle collided. (Compl., ¶¶ 7-8.) Minor Plaintiff sustained
injuries as a result of the accident. (Compl., ¶ 9.) On
April 3, 2023, Petitioner and minor Plaintiff filed this action against
Defendant and Does 1-10, alleging a Negligence cause of action. (Compl., p. 1.)
On
May 3, 2023, Petitioner was appointed Guardian Ad Litem for Minor Plaintiff.
(5/3/23 Application and Order for Appointment of Guardian Ad Litem.) On
June 14, 2024, the Court denied Petitioner’s Expedited Petition for Minor’s
Compromise without prejudice, filed on June 10, 2024, due to several
deficiencies. (6/14/24 Order.) On
September 19, 2024, Plaintiff’s counsel filed a Notice of Settlement of Entire
Case. (9/29/24 Notice.) On
September 20, 2024, the Court set a hearing for the instant Expedited Petition
for Minor’s Compromise (“Expedited Petition”), filed on June 28, 2024, due to
several deficiencies in the Expedited Petition.
(9/20/24 Order.) On
October 29, 2024, the Court continued the hearing on the Expedited Petition due
to the Court’s unavailability. (10/29/24 Order & Certificate.) On
November 12 and 13, 2024, Petitioner filed an updated Expedited Petition,
Proposed Order, and Proposed Order to Deposit Funds in Blocked Account. On
December 9, 2024, the Court continued the hearing on the Expedited Petition due
to several deficiencies in the Expedited Petition. (12/9/24 Order.) On
January 2, 2025, Petitioner filed an updated Expedited Petition, Proposed
Order, and Proposed Order to Deposit Funds in Blocked Account. On
January 27, 2025, the Court continued the hearing on the Expedited Petition due
to several deficiencies. (1/27/25 Order.) The Court also continued the Order to
Show Cause Re: Dismissal (Settlement) Pursuant to Notice of Conditional
Settlement Filed 09/19/2024 to the continued Expedited Petition hearing date of
March 6, 2025. On
February 10, 2025, Petitioner filed and served an updated Expedited Petition,
Proposed Order, and Proposed Order to Deposit Funds in Blocked Account. Notably,
the Order to Show Cause Re: Dismissal (Settlement) Pursuant to Notice of
Conditional Settlement Filed 09/19/2024 is set for the instant hearing date,
March 6, 2025, as well. II.
Legal
Standard & Discussion Court approval is required for all settlements of a minor’s
claim. (Prob. Code, §§ 3500, 3600, et
seq.; Code Civ. Proc., § 372.) “ ‘[W]ithout trial court approval of the
proposed compromise of the ward’s claim, the settlement cannot be valid. [Citation.] [¶] Nor is the settlement binding
[on the minor] until it is endorsed by the trial court.’ ” (Pearson v. Superior Court (2012) 202
Cal.App.4th 1333, 1338.) A minor, like Claimant, “shall appear either by a
guardian or conservator of the estate or by a guardian ad litem appointed by
the court in which the action or proceeding is pending, or by a judge thereof,
in each case.” (Code Civ. Proc., § 372, subd. (a)(1).) Alternatively, the
petitioner may file a declaration demonstrating that he or she has a right to
compromise the minor’s claim under California Probate Code section 3500. Regarding the substance of the
Petition, to obtain court approval of the settlement of a minor’s claims, the
petitioner must file a “verified petition for approval of the settlement and
must disclose ‘all information that has any bearing upon the reasonableness of
the compromise.’ ” (Barnes v. Western
Heritage Ins. Co. (2013) 217 Cal.App.4th 249, 256, fn. 4, citing Cal. Rules
of Court, rule 7.950.) On September 20, 2024, the Court
ruled on the Expedited Petition and found it to be incomplete. (9/20/24 Order.)
On December
9, 2024, the Court again ruled on the Expedited Petition and found some of the
prior deficiencies to be resolved but held the following deficiencies remained: -
¶
11(c): There is no attachment describing the terms of the settlement. -
¶
13(a): It is unclear the basis for the total medical expenses amount of $1,712,
as attachments to ¶ 13(a)1 and ¶ 12(g) seem to indicate the total medical
expenses amount are $1,500. -
¶ 14(b): There are no items or amounts listed
in conjunction with each of the six presented payee lines. Further, the costs
in Attachment 14b only total $979.14, which differs from the $1,129.14 total
amount listed on ¶ 14(b). This discrepancy then also impacts the totals in ¶¶
16, 17 and 19(b)(2). (12/9/24 Order.) On January 27, 2025, the Court once again ruled on the
Expedited Petition and found some of the prior deficiencies to be resolved but
held the following deficiencies remained: -
¶
13: While Petitioner adjusted the amounts listed, the Court still finds multiple
discrepancies in this section. After reviewing Petitioner’s attachments and
evidence, ¶ 13(a)(1) and ¶ 13(a)(4) accurately correspond with the amounts
listed in attachment ¶ 13(a). However, the total in ¶ 13(a)(5) seems as if it
should be identical to ¶ 13(a)(4), as attachment 13(a) as well ¶ 13(d) and ¶
13(f) demonstrate the $76.83 amount and $700 amount refer to liens that need to
be paid or reimbursed from proceeds; it is unclear why ¶ 13(a)(2) has a
numerical amount as the evidence attached does not demonstrate that any of the
medical expenses have yet been paid, and ¶ 15(a) explicitly states none of the
fees or expenses listed in items 13 and 14 have been paid; and ¶ 13(a)(3)
should reflect the amount of negotiated reductions which, according to
attachment 13(a), total $882.25. -
¶
21: Petitioner states minor Plaintiff is a minor in ¶ 2 of the Expedited
Petition and in ¶ 3 of the Proposed Order (MC-351 Form); however, ¶ 21, which requires
a signature from an adult with a disability, is signed by minor Plaintiff. -
¶
19(b)(2): There is no Attachment 19(b)(2) specifying the name, branch, and
address of each depository. -
The
Order to Deposit Funds in Blocked Account (MC-355 Form) ¶ 1 is blank as to the
hearing date, time, and department. -
The
Proposed Order (MC-351 Form) states no hearing was held in ¶ 1(a); however, a
hearing was held on December 9, 2024. (1/27/25 Order.) Having
reviewed the Expedited Petition, the Court finds the past deficiencies have
been rectified and the Expedited Petition is nearly complete; however, the
Court notes a few deficiencies remain: -
¶
9: The Expedited Petition states minor Claimant has recovered completely from
the effects of the injuries sustained in item 7; however, Attachment 9 does not
provide a doctor’s report of minor Claimant’s current condition and/or whether
minor Claimant has recovered completely. Indeed, the most recent medical report
provides a diagnosis that minor Claimant suffers from cervical neck/strain and
spasms and recommends minor Claimant gets x-rays, chiropractic care, and
follow-up future appointment(s) and/or treatment. (Attach., ¶ 9.) -
Attachment
19b(2) states “Deposit $785.92” after the name, branch, and address of the Bank;
however, this amount does not conform with either the balance amount remaining
for minor Claimant or any other amount listed in the Expedited Petition. -
¶
3 of the Order to Deposit Funds in Blocked Account does not have “parent”
marked, which differs from ¶ 1 of the Order as well as ¶ 2 of MC-351 and ¶ 1 of
MC-350EX. Accordingly, the Expedited Petition is
CONTINUED. III.
Conclusion
& Order For
the foregoing reasons, the hearing on the Expedited Petition is CONTINUED TO April 21, 2025, at 10:00 a.m. in Department 25 at the
SPRING STREET COURTHOUSE. Petitioner
is ordered to electronically file supplemental papers addressing the
deficiencies noted herein at least 16 court days before the next scheduled
hearing. Failure to do so may result in the Expedited Petition being placed off
calendar or denied. Moving
party ordered to give notice. Case Number: 24STCP04195 Hearing Date: March 6, 2025 Dept: 25
HEARING DATE: Thurs., March 6, 2025 JUDGE /DEPT: Mkrtchyan/25 CASE NAME: World CASE NUMBER: 24STCP04195 TRIAL DATE: N/A NOTICE: NO PROCEEDINGS: MOTION
MOVING PARTY: Specially RESP. PARTY: Plaintiff World Credit Fund III, LLC VACATE SISTER STATE JUDGMENT (CCP §§ 1710.30, et seq.) TENTATIVE RULING:
For the foregoing reasons, Specially Moving party is ordered to give
SERVICE: [X] Proof of [X] Correct Address [ ] 16/21 Court Days Lapsed (CCP §§ 12c,
OPPOSITION: None REPLY: None ANALYSIS: I. On December 24, 2024, Plaintiff World On February 4, 2025, the case was On February 5, 2025, Plaintiff filed No Opposition was filed. However, on II. Defendant moves to vacate the sister Code of Civil Procedure section Code of Civil Procedure section “The party moving under section There is a general rule that “ ‘ “ ‘a “Accordingly, ‘[u]pon a claim that a “ ‘In elaborating on the defense As an initial matter, the Court notes there Turning to the merits of the Motion, Defendant Thus, Defendant’s Motion is DENIED. III. For the foregoing reasons, Specially Moving party is ordered to
Case Number: 24STLC02343 Hearing Date: March 6, 2025 Dept: 25
HEARING DATE: Thurs., March 6, 2025 JUDGE /DEPT: Mkrtchyan/25 CASE NAME: Wallach
v. Marton, et al. COMP.
FILED: 03-29-24 CASE NUMBER: 24STLC02343
DISC. C/O: 08-14-25 NOTICE: OK DISC. MOT. C/O: 09-05-25 TRIAL
DATE: 09-25-25 PROCEEDINGS: MOTION
FOR SANCTIONS MOVING PARTY: Plaintiff
Ian Wallach RESP. PARTY: Defendants Andrew John Marton and Child
& Marton, LLP (CCP § 128.7) TENTATIVE RULING: Plaintiff Ian Wallach’s
Motion for Sanctions is DENIED. Moving party is ordered to
give notice. ______________________________________________________________________ SERVICE: [X] Proof of
Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address
(CCP §§ 1013, 1013a) OK [X] 16/21 Court
Days Lapsed (CCP §§ 12c, 1005(b)) OK OPPOSITION: Filed
on February 21, 2025 [ ] Late [ ] None REPLY: Filed
on February 24, 2025 [ ]
Late [ ] None ANALYSIS: I.
Background
On March 29, 2024, Plaintiff Ian
Wallach (“Plaintiff”) filed a verified Complaint against Defendants Andrew John
Marton (“Marton”) and Child & Marton, LLP (“Child & Marton”)
(“Defendants”) alleging a single cause of action of Breach of Contract. (Comp.,
p. 1; ¶ 8.) On May 17, 2024, Defendants filed an
Answer.
On July 29, 2024, Plaintiff filed a Motion for Leave to File a Verified
First Amended Complaint and a Verified First Amended Complaint (“Verified
FAC”). (7/29/24 Motion; 7/29/24 Verified Complaint.) On September 26, 2024, the
Court granted Plaintiff’s motion. (9/26/24 Order.) On November 13, 2024, the Court took
Defendants’ Demurrer to Plaintiff’s Verified FAC under submission. (11/13/24
Order.) On November 21, 2024, the Court sustained the Demurrer with leave to
amend as to Defendant Marton and overruled the Demurrer as to Defendant Child
& Marton, LLP. (11/21/24 Order.) On December 2, 2024, Plaintiff filed a
Second Amended Complaint (“SAC”). On January 31, 2025, Plaintiff filed
the instant Motion for Sanctions against Defendants (the “Motion”). Plaintiff
also filed a Request for Judicial Notice in support of the Motion. On February 21, 2025, Defendants filed
an Opposition. On February 24, 2025, Plaintiff filed
a Reply and a Supplemental Request for Judicial Notice. On February 25, 2025, Defendants filed
an objection to Plaintiff’s Reply brief. On
February 28, 2025, the Court, after taking the matter under submission,
overruled in part, sustained with leave to amend in part, and sustained without
leave to amend in part Defendants’ Demurrer to the Second Amended Complaint.
(2/28/25 Order.) On March
3, 2025, Plaintiff filed a Third Amended Complaint (“TAC”). II.
Evidentiary
Objection Defendants object to Plaintiff’s Reply
on the grounds that the Reply impermissibly presents new arguments and issues
not raised in the original Motion as well as mischaracterizes the procedural
history and prior rulings in the case. Defendants request the Court to strike
portions of the Reply, sustain Defendants’ objections, and consider only the
arguments raised in the Motion and Opposition brief. Having
reviewed the moving papers, the Court declines to consider the additional evidence
submitted with Plaintiff’s Reply, especially as the additional evidence
presented does not appear “necessitated” by Defendants’ Opposition. (See Jay
v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [“The general rule of motion
practice, which applies here, is that new evidence is not permitted with reply
papers”]); RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56
Cal.App.5th 413, 432 [permitting reply declarations on the grounds they were
“necessitated by questionable argument in [the] opposition brief that was not
reasonably anticipated at the time” the moving papers were filed].) However, the remainder of Defendants’
request is DENIED. III.
Judicial
Notice Request In a separate request filed in
conjunction with the Motion, Plaintiff requests the Court take judicial notice
of the Court’s November 21, 2024 Order in the instant action. Having reviewed the moving papers, the Court GRANTS
Plaintiff’s request, pursuant to California Evidence Code section 452. Plaintiff also makes a
supplemental Request for Judicial Notice in conjunction with the Reply. Plaintiff
requests the Court to take judicial notice of (1) the February 5, 2025 Order of
this Court in the instant action; (2) the November 21, 2024 Order of this Court
in the instant action; and (3) the docket sheet for Ariell Kirylo v. City of
Los Angeles, et al., Case No. 22STCV16621. Having reviewed the moving papers and in accordance with
the above ruling on Defendants’ evidentiary objection, the Court DENIES
Plaintiff’s request. IV.
Legal
Standard & Discussion Plaintiff moves
for sanctions against Defendants on the grounds that Defendants misrepresented
the contents of the Court’s November 21, 2024 Order in their Demurrer to
Plaintiff’s Second Amended Complaint (Motion, pp. 3-4, 9, 10-11), and Defendants
repeated identical arguments made in their Demurrer to the First Amended
Complaint in their Demurrer to the Second Amended Complaint (Motion, pp. 4-12).
Code of Civil
Procedure section 128.7 states that: “(b) By
presenting to the court, whether by signing, filing, submitting, or later
advocating, a pleading, petition, written notice of motion, or other similar
paper, an attorney or unrepresented party is certifying that to the best of the
person’s knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances, all of the following conditions are met: (1) It is
not being presented primarily for an improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation. (2) The
claims, defenses, and other legal contentions therein are warranted by existing
law or by a nonfrivolous argument for the extension, modification, or reversal
of existing law or the establishment of new law. (3) The
allegations and other factual contentions have evidentiary support or, if
specifically so Identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery. (4) The
denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on a lack of information or
belief. (c) If,
after notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may, subject to the conditions
stated below, impose an appropriate sanction upon the attorneys, law firms, or
parties that have violated subdivision (b) or are responsible for the
violation. In determining what sanctions, if any, should be ordered, the court
shall consider whether a party seeking sanctions has exercised due diligence.” (Code Civ. Proc., § 128.7, subds. (b), (c).) In addition, section 128.7 contains a
“safe harbor” provision specifying the motion for sanctions may not be filed
“unless, within 21 days after service of the motion, ... the challenged paper,
claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected.” (Code Civ. Proc., § 128.7, subd.
(c)(1).) In Opposition, Defendants argue
sanctions are not warranted on the following grounds: (1) Plaintiff’s Motion is
procedurally defective for failing to specify a specific sanctions amount
(Opp., pp. 3-4); (2) the Motion is barred by the Safe Harbor Rule because
Defendants fixed their inadvertent misstatement in the Demurrer to the Second
Amended Complaint prior to Plaintiff’s formal filing of the Motion, and
Plaintiff failed to provide sufficient notice prior to filing and serving the
Motion (Opp., pp. 4-5; (3) the Demurrer to the Second Amended Complaint was
largely successful, demonstrating the Demurrer was brought on legally
sufficient grounds (Opp., pp. 5-6); and (4) Defendants properly used a Demurrer
to challenge the Second Amended Complaint as a motion for reconsideration would
have been the improper legal tool. (Opp., pp. 6-8.) In Reply, Plaintiff contends
Defendants’ representation that they are accused of only one act of misconduct
is false as Plaintiff identified “no less than seven acts of misconduct”
committed by Defendants in bringing the Demurrer to the Second Amended
Complaint (Reply, p. 1, emphasis in original); Plaintiff complied with the Safe
Harbor Provision by emailing a copy of the Motion to Defendants prior to
formally filing and serving the Motion, which was identical to the copy emailed
to Defendants (Reply, pp. 2-3); and Plaintiff was unable to request a
particular sanctions amount as Plaintiff could not “see into the future and
determine the amount of time it will take to respond to Defendants’ opposition”
(Motion, pp. 3-4). Further, Plaintiff suggests Defendants “may intentionally be
attempting to slow down this action for nefarious purposes,” and suggests
grounds exist for the Court to consider referring Defendants to the State Bar.
(Reply, pp. 4-8.) Finally, Plaintiff requests $12,179.87 in fees and costs
incurred in bringing the Motion for Sanctions. (Reply, p. 8.) Here, the Court finds sanctions
pursuant to Code of Civil Procedure section 128.7 are unwarranted. Defendants’
Demurrer to the Second Amended Complaint, filed on December 31, 2024, which is the
main basis for Plaintiff’s Motion, is a permissible pre-trial pleading filed in
response to Plaintiff’s amended version of the First Amended Complaint. (See Clausing
v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1232 [a
“second demurrer [is] an appropriate responsive pleading to a new complaint”].) While the Court acknowledges the Demurrer
to the Second Amended Complaint contained mischaracterizations as to aspects of
the instant matter, these mischaracterizations were either addressed by Defendants
in their Reply brief to the Demurrer or were already addressed by the Court in its
final ruling sustaining in part and overruling in part the Demurrer to the
Second Amended Complaint. (2/28/25 Order.) Defendants’ Demurrer to the Second
Amended Complaint, in isolation, does not justify sanctions under Code of Civil
Procedure section 128.7. Indeed, there is no evidence that the Demurrer to the
Second Amended Complaint was made for an improper purpose, as a frivolous
contention, without evidentiary support, or made based on a lack of information
or belief. (Gilman v. Dalby (2021) 61 Cal.App.5th 923, 943; Code
Civ. Proc., § 128.7, subd, (c).)
Additionally, the Court sustained the Demurrer in part, contrary to Plaintiff’s
statements otherwise, which further bolsters that the Demurrer was not made for
a frivolous or improper purpose. To the extent Plaintiff contends
Defendants’ identical arguments raised both in the Demurrer to the First
Amended Complaint and in the Demurrer to the Second Amended Complaint were
improper and warrant sanctions, the Court disagrees. The Court finds Defendants’
pleading course supported by legal authority (see Carlton v. Dr. Pepper
Snapple Group, Inc. (2014) 228 Cal.App.4th 1200, 1211 [“ ‘[A] party is
within its rights to successively demur to a cause of action in an amended
pleading notwithstanding a prior unsuccessful demurrer to that same cause of
action.’ (Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 389, 102
Cal.Rptr.2d 125.)”], citing Berg & Berg Enterprises, LLC v. Boyle (2009)
178 Cal.App.4th 1020, 1036) and, as such, the re-raised arguments are not
sanctionable conduct. Thus, the Court declines to award
sanctions for Defendants’ conduct as outlined in the Motion. Accordingly, Plaintiff’s Motion is
DENIED. IV.
Conclusion
& Order For the foregoing reasons,
Plaintiff Ian Wallach’s Motion for Sanctions is DENIED. Moving party is ordered to
give notice. Case Number: 24STLC03023 Hearing Date: March 6, 2025 Dept: 25
HEARING DATE: Thurs., March 6, 2025 JUDGE /DEPT: Mkrtchyan/25 CASE NAME: Nance
v. Roque COMP.
FILED: 04-25-24 CASE NUMBER: 24STLC03023
TRIAL DATE: 02-11-25 NOTICE: NO PROCEEDINGS: DEMURRERTO
PLAINITFF’S COMPLAINT MOVING PARTY: Defendant
Vance Roque RESP. PARTY: None DEMURRER TO PLAINTIFF’S COMPLAINT (CCP § 430.10, et seq.) TENTATIVE RULING: Defendant Vance Roque’s unopposed
Demurrer to Plaintiff’s Complaint is TAKEN OFF CALENDAR. Moving party is ordered to
give notice. ______________________________________________________________________ SERVICE:
[
] Proof of Service Timely Filed (CRC, rule 3.1300) NO [
] Correct Address (CCP §§ 1013, 1013a) NO [
] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO OPPOSITION: None filed as of March 3,
2025 [
] Late [X] None REPLY: None filed as
of March 3, 2025 [ ]
Late [X] None ANALYSIS: I.
Background
On April 25, 2024, Plaintiff Larry
Nance (“Plaintiff”), proceeding pro se, initiated this action against Defendant
Vance Roque (“Defendant”), alleging a single cause of action for Wrongful
Eviction. On July 5, 2024, Defendant filed a
Declaration of Demurring or Moving Party in Support of Automatic Extension. On November 27, 2024, Defendant filed
the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). No Opposition
has been filed. On January 7, 2025, the Court
continued the hearing on the Demurrer to allow Defendant to file proof of
service of the Demurrer on Plaintiff. (1/7/25 Order.) Additionally, the Court
moved the Non-Jury Trial to the same date as the continued hearing on the
Demurrer. (1/7/25 Order.) Defendant filed no additional papers
following the January 7, 2025 hearing. On February 11, 2025, the Court
continued the hearing on the Demurrer to allow Defendant to file proper proof
of service of the Demurrer on Plaintiff. (2/11/25 Order.) Additionally, the
Court noted the Non-Jury Trial was erroneously set for February 11, 2025,
placed trial off calendar, and rescheduled the Non-Jury Trial, on the Court’s
own motion, for October 23, 2025, at 8:30 a.m. (2/11/25 Order.) Finally, the
Court ordered moving party to give notice of ruling. On February 13, 2025, Defendant filed
Notice of Ruling, however, the moving papers again have not been served onto
Plaintiff. To date, no other papers have been
filed with the Court. II.
Procedural
Issues For the third time, Defendant has not
filed proof of service of the Demurrer on Plaintiff, despite the Court’s prior
rulings on January 7, 2025, and February 11, 2025. III.
Conclusion
& Order For the foregoing reasons, Defendant
Vance Roque’s unopposed Demurrer to Plaintiff’s Complaint is TAKEN OFF CALENDAR.
Moving party is ordered to
give notice. Case Number: 24STLC05770 Hearing Date: March 6, 2025 Dept: 25
HEARING DATE: Thurs., March 6, 2025 JUDGE /DEPT: Mkrtchyan/25 CASE NAME: Grant
v. Keyes Motors, Inc., et al. CASE NUMBER: 24STLC05770
COMP. FILED: 08-12-24 NOTICE: OK PROCEEDINGS: MOTION
TO COMPEL ARBITRATION, PICK ARBITRATION FORUM, AND REQUEST FOR STAY MOVING PARTY: Plaintiff
John Grant RESP. PARTY: None
MOTION TO COMPEL ARBITRATION AND STAY
PROCEEDINGS TENTATIVE RULING: Plaintiff John Grant’s second Motion to Compel Arbitration, For
Court to Pick Arbitration Forum, and Request for Stay is GRANTED. The matter is to
be arbitrated before the AAA or, in the alternative, another reputable
arbitration organization. Pursuant to Code of Civil Procedure section 1281.4, all
proceedings are STAYED pending the outcome of arbitration. POST ARBITRATION STATUS CONFERENCE is set for SEPTEMBER 9,
2025, at 9:30 a.m. in Department 25 of the Spring Street Courthouse. Counsel are ordered to electronically file a JOINT Report
Re: Status of Arbitration Proceedings
(5) court days prior to 09/09/2025. ________________________________________________________________________
SERVICE: [X] Proof of Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address (CCP §§ 1013, 1013a) OK [X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK OPPOSITION: None
filed as of March 3, 2025 [ ]
Late [X] None REPLY: None
filed as of March 3, 2025 [ ]
Late [X] None ANALYSIS: I.
Background
In June 2022, Plaintiff John Grant
(“Plaintiff”) purchased a vehicle from “Keyes Motors, Inc. dba Keyes Toyota” (“Keyes
Toyota”). (Compl., ¶ 14.) Plaintiff
and Keyes Toyota entered into a vehicle Retail Installment Sales Contract (the
“Contract”) at the time of the purchase. (Compl., ¶ 20; Grant Decl., Exh. 1.) Travelers
Casualty and Surety Company of America (“Travelers Casualty”) was the surety on
Keyes Toyota’s bond. (Compl. ¶
46.) Plaintiff contends that Keyes Toyota misrepresented the “true condition”
of the vehicle, and Plaintiff has been harmed as a result. (Compl., ¶¶ 15-20,
30-32.) On August 12, 2024, Plaintiff filed
this action against Keyes Toyota and Travelers Casualty (“Defendants”) and Does
1-40. (Compl., p. 1.) The Complaint alleged causes of action for Violation of
Consumers Remedies Act, Civil Code section 1750, et seq.; Violation of
California Business and Professions Code section 17200, et seq.; and Claim
Against Surety. (Compl., p. 1.) On September 9, 2024, Plaintiff filed a
“Motion to Compel Arbitration, Motion For Court to Pick Arbitration Forum, and
Request for Stay” (the “first Motion”) against Defendants. No Opposition was filed. On September 19, 2024, Plaintiff amended the
Complaint to add the true name of Doe 1/Keyes Toyota as “Van Nuys-T, Inc., dba
Keyes Toyota” (now, “Keyes Toyota”) and filed proof of service of the amendment
on Defendants the same day. Also on September 19, 2024, Plaintiff filed
proof of service of the Summons and Complaint, Motion and accompanying papers,
and other case documents on “Keyes Motors, Inc. dba Keyes Toyota” and
“Travelers Casualty and Surety Company of America.” On September 24, 2024, Plaintiff
dismissed “Keyes Motors, Inc. dba Keyes Toyota” without prejudice. On October 28, 2024, Keyes Toyota and
Travelers Casualty filed an Answer to the Complaint. On January 9, 2025, the Court denied the
first Motion as MOOT. (1/9/25 Order.)
On January 21, 2025, Plaintiff filed
Notice of Ruling regarding the Court’s January 9, 2025 order. II.
Legal
Standard California law incorporates
many of the basic policy objectives contained in the Federal Arbitration Act,
including a presumption in favor of arbitrability. (Engalla v.
Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-72.) The
petitioner bears the burden of proving the existence of a valid arbitration
agreement by the preponderance of the evidence, the party opposing the petition
then bears the burden of proving by a preponderance of the evidence any fact
necessary to demonstrate that there should be no enforcement of the agreement,
and the trial court sits as a trier of fact to reach a final determination on
the issue. (Rosenthal v. Great Western Financial Securities Corp. (1996)
14 Cal.4th 394, 413 (“Rosenthal”).) The Court is empowered by the Code
of Civil Procedure section 1281.2 to compel parties to arbitrate disputes
pursuant to an agreement to do so. Code
of Civil Procedure section 1281.2 states:
On petition of a party to an arbitration agreement
alleging the existence of a written agreement to arbitrate a controversy and
that a party thereto refuses to arbitrate such controversy, the court shall
order the petitioner and the respondent to arbitrate the controversy if it
determines that an agreement to arbitrate the controversy exists, unless it
determines that: (a)
The right to compel arbitration has been waived by the petitioner; or (b)
Grounds exist for the revocation of the agreement. (c) A party to the
arbitration agreement is also a party to a pending court action or special
proceeding with a third party, arising out of the same transaction or series of
related transactions and there is a possibility of conflicting rulings on a
common issue of law or fact. For purposes of this section, a pending court
action or special proceeding includes an action or proceeding initiated by the
party refusing to arbitrate after the petition to compel arbitration has been
filed, but on or before the date of the hearing on the petition. This
subdivision shall not be applicable to an agreement to arbitrate disputes as to
the professional negligence of a health care provider made pursuant to Section
1295. (Code Civ.
Proc., §§ 1281.2(a)-(c).) The
petition to compel arbitration functions as a motion and is to be heard in the
manner of a motion – namely, the facts are to be proven by affidavit or
declaration and documentary evidence with oral testimony taken only in the
court’s discretion. (Code Civ. Proc., §
1290; Rosenthal, supra, 14 Cal.4th at p. 402.) The
petition to compel must set forth the provisions of the written agreement and
the arbitration clause verbatim, or such provisions must be attached and
incorporated by reference. (Cal. Rules of Court, rule 3.1330.) If
the court orders arbitration, then the court shall stay the action until “an
arbitration is had in accordance with the order to arbitrate or until such
earlier time as the court specifies.”
(See Code Civ. Proc., § 1281.4.) III.
Discussion A. Arbitration Agreement Plaintiff brings the second Motion
seeking to compel Keyes Toyota
and Travelers Casualty to
submit to arbitration based on the Contract. “Under both the
[Federal Arbitration Act] and California law, arbitration agreements are valid,
irrevocable, and enforceable, except upon such grounds that exist at law or
equity for voiding a contract.” (Winter
v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The
party moving to compel arbitration must establish the existence of a written
arbitration agreement between the parties. (Code Civ. Proc., § 1281.2.) In
ruling on a motion to compel arbitration, “the court must first determine
whether the parties actually agreed to arbitrate the dispute,” and “[g]eneral
principles of California contract law help guide the court in making this
determination.” (Mendez v. Mid-Wilshire
Health Care Center (2013) 220 Cal.App.4th 534, 541.) Here, Plaintiff presents evidence of
the Contract, which includes a section called “Arbitration Provision.” (Heydari
Decl., ¶ 3, Exh. 1; Grant
Decl., ¶¶ 3-4, Exh. 1.)
The Contract was signed by Plaintiff and Keyes Toyota (Heydari Decl., Exh 1; Grant
Decl., Exh. 1). The Arbitration Provision provides in pertinent part: Any claim or dispute, whether in
contract, tort, statute, or otherwise (including the interpretation and scope of this
Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our
employees, agents, successors or assigns, which arises out of or relates to
your credit application, purchase or condition of this vehicle, this contract
or any other resulting transaction or relationship (including any such
relationship with third parties who do not sign this contract) shall, at you or
our election, be resolved by neutral binding arbitration and not by a court
action. If federal law provides that a claim or dispute is not subject to
binding arbitration, this Arbitration Provision shall not apply to such claim
or dispute. Any claim or dispute is to be arbitrated by a single arbitrator on
an individual basis and not as a class action. You expressly waive any right
you may have to arbitrate a class action. You may choose the American
Arbitration Association, 1633 Broadway, 10th Floor, New York, New York 10019 (www.adr.org), or any other organization to conduct the arbitration subject to our
approval. (Heydari Decl., Exh. 1; Grant Decl., Exh. 1.) No Opposition has been filed. The Court finds
that Plaintiff has met Plaintiff’s burden of proving the existence of a valid
arbitration agreement. Plaintiff submitted a copy of the Contract and
Arbitration Provision to the Court, and neither Keyes Toyota nor Travelers
Casualty dispute they are part of the agreement. The Arbitration Provision
states it applies to “Any claim
or dispute, whether in contract, tort, statute, or otherwise (including the
interpretation and scope of this Arbitration Provision, and the arbitrability
of the claim or dispute), between you and us or our employees, agents,
successors or assigns, which arises out of or relates to your credit
application, purchase or condition of this vehicle, this contract or any other
resulting transaction or relationship (including any such relationship with
third parties who do not sign this contract).” (Heydari Decl., Exh. 1; Grant Decl., Exh. 1.) The
Arbitration Provision specifically applies to Plaintiff’s claims against Keyes Toyota and Travelers Casualty, given that the causes of action
arise out of the Contract and the condition of the vehicle. (Compl.; Heydari
Decl., Exh. 1; Grant Decl., Exh. 1.) Plaintiff
alleges the parties have been unable to come to an agreement regarding
arbitration (Second Motion, p. 4; Heydari Decl., ¶¶ 4-7) and demonstrated the
parties agreed to arbitrate the dispute through the American Arbitration
Association (“AAA”) or another arbitration organization. Indeed, the
Arbitration Provision states: “Any
claim or dispute is to be arbitrated by a single arbitrator on an individual
basis and not as a class action. You expressly waive any right you may have to
arbitrate a class action. You may choose the American Arbitration Association,
1633 Broadway, 10th Floor, New York, New York 10019 (www.adr.org), or any other organization to conduct the arbitration subject to our
approval.” (Heydari Decl., Exh. 1; Grant Decl.,
Exh. 1.) Plaintiff elects AAA as the arbitration forum in this matter or, in
the alternative, JAMS (Second Motion, pp. 5-6), and Keyes Toyota and Travelers Casualty have not indicated they do not approve
of the AAA. In light of these circumstances, it is
necessary for the Court to intervene and compel Keyes Toyota and Travelers Casualty to arbitration before AAA or another reputable
arbitration organization. Thus, the Court
finds that an Arbitration Agreement exists between the parties, and there is
presently no defense to its enforcement. The matter is to be arbitrated
before the AAA or, in the alternative, another reputable arbitration
organization. B. Costs and Fees Plaintiff
does not request an award of costs and fees incurred in conjunction with
bringing this Motion, and thus the Court need not address costs and fees. IV.
Conclusion
& Order For the foregoing reasons, Plaintiff
John Grant’s second Motion
to Compel Arbitration, For Court to Pick Arbitration Forum, and Request for
Stay is GRANTED. The matter is to
be arbitrated before the AAA or, in the alternative, another reputable
arbitration organization. Pursuant to Code of Civil Procedure section 1281.4, all
proceedings are STAYED pending the outcome of arbitration. POST ARBITRATION STATUS CONFERENCE is set for SEPTEMBER 9,
2025, at 9:30 a.m. in Department 25 of the Spring Street Courthouse. Counsel are ordered to electronically file a JOINT Report
Re: Status of Arbitration Proceedings
(5) court days prior to 09/09/2025. The Non-Jury Trial currently scheduled for 02/09/2025 is
advanced to this date and hereby taken off calendar/vacated. Moving party is ordered to give
notice. |
DEPARTMENT 25 LAW AND MOTION RULINGS
*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner KARINE MKRTCHYAN *** Case Number: 23STLC02808 Hearing Date: March 11, 2025 Dept: 25
HEARING DATE: Tues., March 11, 2025 JUDGE /DEPT: Mkrtchyan/25 CASE NAME: Cruz,
et al. v. Samo Enterprises, Inc., et al. COMP. FILED: 04-27-23 CASE NUMBER: 23STLC02808 NOTICE: OK PROCEEDINGS: MOTION TO LIFT ARBITRATION STAY AND TO
REOPEN CASE MOVING PARTY:
Plaintiffs Moisa Cruz and Sandy
Toribio RESP. PARTY: None
MOTION TO LIFT ARBITRATION STAY AND TO REOPEN CASE (CCP § 1281.4) TENTATIVE RULING: For the foregoing reasons, Plaintiffs
Moisa Cruz and Sandy Toribio’s Motion to Lift Arbitration Stay is GRANTED. Discovery and
motion cut-off dates, as well all other trial related deadlines are to comport
with the new trial date. Parties must comply
with the trial requirements as set forth in the court's Third Amended Standing
Order for Limited Civil Cases (effective February 24, 2020). All JOINT trial
documents are to be electronically filed at least ten (10) days prior to the
trial date. Parties should be
prepared to submit a JOINT Trial Readiness Binder / Exhibit Binder, and to
personally appear on the date of trial. Moving party is ordered to give
notice. SERVICE: [X] Proof of
Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address
(CCP §§ 1013, 1013a) OK [X] 16/21 Court
Days Lapsed (CCP §§ 12c, 1005(b)) OK OPPOSITION: None
filed as of March 6, 2025 [ ] Late [X] None REPLY: None
filed as of March 6, 2025 [ ] Late [X] None ANALYSIS: I.
Background
On April 27, 2023, Plaintiffs Moises
Cruz and Sandy Toribio (“Plaintiffs”) filed an action against Defendants Samo
Enterprises, Inc. dba Western Motor Sport (“Samo Enterprises”), JB Financial, a
Partnership Consisting of Susan Demirci and Igya Demirci (“JB Financial”), and
Hudson Insurance Company (“Hudson”) (“Defendants”) and Does 1-40, alleging causes
of action for Violation of Consumers Legal Remedies Act, Civil Code section
1750 et seq., Violation of California Business and Professions Code section
17200, et seq., Claim Against Surety, and Violation of Code of Civil Procedure
sections 1281.97 and 1281.99. (Compl., p. 1.) On May 11, 2023, Plaintiffs filed a
Motion to Compel Arbitration and for the Court to Pick Arbitration Forum and
Request for Stay (the “Motion to Compel”) seeking an order compelling Samo
Enterprises and JB financial to arbitrate the controversy. On July 10, 2023, the Court found
Plaintiffs had filed a defective Notice of Motion to Compel, which did not list
the address of the Spring Street Courthouse, where the hearing on the Motion
would take place. (7/10/23 Order.) Plaintiffs also failed to file proof that
the moving papers were served on Samo Enterprises or Hudson. Thus, the Court
continued the hearing on the Motion to August 10, 2023, and ordered “Plaintiffs
to file and serve a corrected Notice of Motion and to serve all parties in the
case.” (7/10/23 Order.) On July 25, 2023, Hudson filed an
Answer to the Complaint. On August 10, 2023, the Court
continued the hearing on the Motion to Compel to allow Plaintiffs additional
time to serve Samo Enterprises with the Complaint and moving papers. (8/10/23
Order.) The Court continued the hearing on the Motion to November 8, 2023 and
ordered Plaintiffs “to file supplemental papers addressing the issues discussed
[in the Court’s order] at least 16 court days before the next scheduled
hearing.” (8/10/23 Order.) On November 8, 2023, the Court
continued the hearing on the Motion to Compel to allow Plaintiffs additional
time to serve Samo Enterprises with the Summons, Complaint, and Motion to
Compel. (11/08/23 Order.) The Court also ordered Plaintiffs to file
supplemental papers addressing any additional service efforts on Samo
Enterprises. (11/08/23 Order.) Additionally, the Court ordered Plaintiffs to
reserve a hearing date for their Application for Service. (11/08/23 Order.) On February 8, 2024, the Court, on its
own motion, continued the hearing on the Motion to Compel to April 4, 2024, and
ordered Plaintiffs to serve and electronically file supplemental papers
addressing the issue of service of the Motion to Compel on Samo Enterprises.
(2/08/24 Order.) On March 25, 2024, the Court, on its
own motion, continued the hearing on the Motion to Compel to June 6, 2024 so
that Plaintiffs could cure the defects in the Application. (3/25/24 Order.) On June 6, 2024, the Court continued
the hearing on the Motion to Compel to July 11, 2024 to afford Samo Enterprises
the opportunity to file an opposition brief as the Motion was served on Samo Enterprises
with less than 16 court days’ notice. (6/06/24 Order.) On July 11, 2024, the Court granted
Plaintiffs’ Motion to Compel and ordered arbitration of this matter to the
American Arbitration Association (“AAA”). (7/11/24 Order.) The Court stayed the
action pending the completion of arbitration pursuant to Code of Civil
Procedure section 1281.4. On October 17, 2024, the Court issued
a Nunc Pro Tunc Order, adding additional scheduling notes to the July 11, 2024
order. On November 5, 2024, Plaintiffs filed
the instant Notice of Motion and Motion to Lift Stay (the “Motion”). On January 9, 2025, Hudson filed a
Notice of Non-Opposition to Plaintiffs’ Motion to Lift Stay, stating Hudson
does not oppose the Motion and noting that “as a statutory surety is was not a
party to the court’s original arbitration order.” On January 23, 2025, the Court
continued the hearing on the Motion from January 23, 2025, to March 11, 2025,
due to procedural deficiencies in the Motion. (1/23/25 Order.) Namely, Plaintiffs
provided defective Notice of Hearing of the instant Motion. As such, the Court ordered
that, at least 16 court days before the next scheduled hearing, Plaintiffs must
file and serve a new Notice of Hearing. (1/23/25 Order.) On January 29, 2025, Plaintiffs filed Notice
of Continued Hearing on the Motion on Defendants as well as Notice of Ruling.
The Court finds Plaintiffs’ 1/29/25 Notice remedies the previously noted
procedural defects. To date, no Opposition has been filed. II.
Legal
Standard “On petition of a party to an arbitration
agreement alleging the existence of a written agreement to arbitrate a
controversy and that a party to the agreement refuses to arbitrate that
controversy, the court shall order the petitioner and the respondent to
arbitrate the controversy if it determines that an agreement to arbitrate the
controversy exists, unless it determines that: (a) The right to compel
arbitration has been waived by the petitioner; or (b) Grounds exist for
rescission of the agreement.” (Code Civ. Proc., §§ 1281.2(a)-(b).) As with
other types of agreements, “[t]he failure of the [party] to carefully read the
agreement and the amendment is not a reason to refuse to enforce the
arbitration provisions.” (Powers v. Dickson, Carlson & Campillo
(1997) 54 Cal.App.4th 1102, 1115.) “California law, ‘like [federal law],
reflects a strong policy favoring arbitration agreements and requires close
judicial scrutiny of waiver claims.’” (Wagner Const. Co. v. Pacific
Mechanical Corp. (2007) 41 Cal.4th 19, 31.) If the court
orders arbitration, then the court shall stay the action until “an arbitration
is had in accordance with the order to arbitrate or until such earlier time as
the court specifies.” (See Code of Civ.
Proc., § 1281.4.) Code of
Civil Procedure section 1281.4 provides, in pertinent part: “If a court
of competent jurisdiction, whether in this State or not, has ordered
arbitration of a controversy which is an issue involved in an action or
proceeding pending before a court of this State, the court in which such action
or proceeding is pending shall, upon motion of a party to such action or
proceeding, stay the action or proceeding until an arbitration is had in
accordance with the order to arbitrate or until such earlier time as the
court specifies.” (Emphasis added.) The trial
court’s “ ‘vestigial jurisdiction over the action at law consists solely of
making the determination, upon conclusion of the arbitration proceedings, of
whether there was an award on the merits (in which case the action at law
should be dismissed because of the res judicata effects of the arbitration
award) or not (at which point the action at law may resume to determine the
rights of the parties).’ ” (Cinel v. Christopher (2012) 203 Cal.App.4th
759, 769 (“Cinel”), citations omitted.) III.
Discussion Here,
Plaintiffs seek an order lifting the arbitration stay entered on July 11, 2024.
(Motion, p. 3.) Plaintiffs present evidence demonstrating that, after this
Court granted the Motion to Compel, Plaintiffs filed a Statement of Claims with
the AAA on July 24, 2024. (Motion, p. 3; Heydari Decl., ¶4.) On September 4,
2024, the AAA agreed to arbitrate the matter and “sent a letter to all parties
requesting [Samo Enterprises and JB Financial] pay all required arbitration
fees which were due by 30 days after receipt of invoice, which was received at
the same date as the letter.” (Heydari Decl., ¶ 5, Exh. 3.) Samo Enterprises
and JB Financial failed to pay the required fees before September 19, 2024.
(Heydari Decl., ¶ 6.) On September 19, 2024, the AAA sent the parties a second
letter advising that the arbitration fees had not yet been paid and again
requested that Samo Enterprises and JB Financial submit the payment no later
than October 4, 2024. (Heydari Decl., ¶ 6, Exh. 4.) The AAA warned that failure
to remit the requested payment by October 4, 2024 would result in the
arbitration file being closed. (Heydari Decl., ¶ 6, Exh. 4.) The arbitration
fees were not paid by October 7, 2024. (Heydari Decl., ¶ 7.) On October 7,
2024, the AAA sent the parties a final letter advising that the organization
administratively closed their file in the matter because of Samo Enterprises
and JB Financial’s failure to pay the requested fees. (Heydari Decl., ¶ 7, Exh.
5.) Given the
AAA closed the parties’ file and declined to administer the case, the
arbitration proceedings have concluded without a decision on the merits.
Accordingly, the Court may lift the stay and proceed with trial. (See
Code of Civ. Proc., § 1281.4; Cinel, supra, 203 Cal.App.4th at p.
279.) IV.
Conclusion
& Order For the foregoing reasons, Plaintiffs
Moisa Cruz and Sandy Toribio’s Motion to Lift Arbitration Stay is GRANTED. TRIAL IS RESET FOR SEPTEMBER 29, 2025,
at 8:30 a.m. in Department 25 of the Spring Street Courthouse. Discovery and motion cut-off dates, as well all other trial
related deadlines are to comport with the new trial date. Parties must comply with the trial requirements as set forth
in the court's Third Amended Standing Order for Limited Civil Cases (effective
February 24, 2020). All JOINT trial documents are to be electronically filed at
least ten (10) days prior to the trial date. Parties should be prepared to submit a JOINT Trial Readiness
Binder / Exhibit Binder, and to personally appear on the date of trial. Moving party is ordered to give
notice. Case Number: 23STLC06905 Hearing Date: March 11, 2025 Dept: 25
HEARING DATE: Tues., March 11, 2025 JUDGE /DEPT: Mkrtchyan/25 CASE NAME: Jones
v. Hong COMP.
FILED: 10-25-23 CASE NUMBER: 23STLC06905
TRIAL DATE: 04-23-25 NOTICE: OK PROCEEDINGS: AMENDED
MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MOVING PARTY: Defendant
Matthias Hong (erroneously sued as “Matthais Hong”) RESP. PARTY: None AMENDED MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT (CCP §§ 435; 436) TENTATIVE RULING: Defendant Matthias Hong’s Amended Motion
to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED. The
punitive damages and exemplary allegations in the FAC are ordered STRICKEN. Moving party is ordered to
give notice. _______________________________________________________________________ SERVICE: [X] Proof of
Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address
(CCP §§ 1013, 1013a) OK [X] 16/21 Court
Days Lapsed (CCP §§ 12c, 1005(b)) OK OPPOSITION: None
filed as of February 4, 2025 [ ] Late [X]
None REPLY: None
filed as of February 4, 2025 [ ]
Late [X] None ANALYSIS: I.
Background
On October 25, 2023, Plaintiff Lorie Jones
(“Plaintiff”), proceeding pro se, filed a Complaint against Defendant Matthias
Hong (erroneously sued as Matthais Hong) (“Defendant”) alleging causes of
action for Breach of Contract and Common Counts. (Compl., pp. 1, 2, ¶ 8.) On June 20, 2024, the Court overruled
in part and sustained in part Defendant’s demurrer to the Complaint, filed on
November 30, 2023. (6/20/24 Order.) The Court overruled the demurrer as to the
breach of contract cause of action and sustained the demurrer with 20 days
leave to amend as to the common counts cause of action. (6/20/24 Order.) The
Court denied as moot Defendant’s accompanying motion to strike. (6/20/24
Order.) On September 17, 2024, the Court denied
Defendant’s motion to strike, filed on June 28, 2024, as Plaintiff’s First
Amended Complaint (“FAC”) had not yet been filed, and thus there was no
operative pleading for the Court to rule upon. (9/17/24 Order.) The Court set
an Order to Show Cause Re: Why This Action Should Not Be Dismissed for Failure
of Plaintiff to File a First Amended Complaint After the Court’s 6/20/24 ruling
for October 24, 2024, and the Court ordered Plaintiff to file and serve a FAC
at least 10 days prior to October 24, 2024. (9/17/24 Order.) On October 8, 2024, Plaintiff filed a FAC
against Defendant, alleging a single cause of action for Common Counts. (FAC, ¶
8.) Plaintiff seeks damages of $10,893.59, interest on the damages at a rate of
10 percent per year from October 20, 2023, and punitive damages. (FAC, ¶¶ 8,
10.) Plaintiff also attached an “Exemplary Damages Attachment” to the
Complaint, alleging Defendant is guilty of oppression because Defendant
“knowingly and intentionally denied and disregarded what is righteous and
lawful by not returning the overpayment that was due to the Plaintiff. The
unjust such actions caused Defendant to become depressed and to suffer both
financially and mentality.” (FAC, Exemplary Damages Attachment, ¶¶ Ex-1, Ex-2.)
On October 31, 1024, Defendant filed
the instant Notice of Motion and Motion to Strike Portions of FAC (the
“Motion”). On February 6, 2025, the Court
continued the hearing on the Motion from February 6, 2025, to March 11, 2025
due to defective service of the Motion and defective Notice of Hearing. (2/6/25
Order.) The Court also ordered: “At least five (5) days prior to the next
scheduled hearing date, the parties will meet and confer in person or by
telephone. Thereafter, the moving party is ordered to file and serve a
declaration detailing the meet and confer efforts made, the discussions that
transpired during meet and confer, and the responses given for each argument
discussed. (Code Civ. Proc. § 435.5, subd. (a).)” (2/6/25 Order.) On February 7, 2025, Defendant filed
Notice of Ruling. On February 10, 2025, Defendant filed
an Amended Notice of Motion and Motion (the “Amended Motion”) that includes a
meet and confer declaration. Defendant also served proof of service demonstrating
the Amended Notice and Motion were served by mail on Plaintiff on February 8,
2025. Based on the foregoing, the Court finds the prior deficiencies noted in
the February 6, 2025 ruling have been remedied. Service of the Amended Motion
and Notice of Hearing are now proper. To date, no Opposition has been filed. II.
Legal
Standard California law authorizes a party’s
motion to strike matter from an opposing party’s pleading if it is irrelevant,
false, or improper. (Code Civ. Proc. §§ 435, 436.) Motions may also target
pleadings or parts of pleadings that are not filed or drawn in conformity with
applicable laws, rules, or orders. (Code Civ. Proc. § 436, subd. (b).) However, motions to strike in limited
jurisdiction courts may only challenge pleadings on the basis that “the damages
or relief sought are not supported by the allegations of the complaint.” (Code
Civ. Proc. § 92, subd. (d).) The Code
of Civil Procedure also authorizes the Court to act on its own initiative to
strike matters, empowering the Court to enter orders striking matter “at any
time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. §
436.) Finally, Code of Civil Procedure
section 435.5 requires that “[b]efore filing a motion to strike pursuant to
this chapter, the moving party shall meet and confer in person or by
telephone with the party who filed the pleading that is subject to the motion
to strike for the purpose of determining whether an agreement can be reached
that resolves the objections to be raised in the motion to strike.” (Code Civ.
Proc. § 435.5, subd. (a).) (Emphasis added.) Punitive damages are authorized by
Civil Code section 3294 in non-contract cases “where the defendant has been
guilty of oppression, fraud, or malice, express or implied . . . .” (Civ.
Code, § 3294, subd. (a).) Malice means 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).) Oppression means
despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).)
Fraud means an intentional misrepresentation, deceit, or concealment of a
material fact known to the defendant with the intention on the party of the
defendant of thereby depriving a person of property or legal rights or
otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).) III.
Discussion
Defendant moves to strike the punitive
damages and exemplary damages from the FAC. (Amended Motion, p. 3.) As an initial matter, the Court finds
Defendant has satisfied the meet and confer requirement of Code of Civil
Procedure section 435.5. Indeed, Defendant spoke with Plaintiff by
telephone on February 7, 2025 regarding the issues raised in the Amended Motion.
(Amended Motion, Long Decl., ¶ 3.) According to Defendant, Plaintiff “agreed to
strike the appropriate provisions outlined in [the] Motion.” (Amended Motion,
Long Decl., ¶ 3.) The parties also discussed settlement. (Amended Motion, Long
Decl., ¶ 3.) Accordingly, the Court finds the meet and confer requirement
satisfied. (Code Civ. Proc. § 435.5.) As to the merits of the Motion, the
Court finds that the FAC fails to allege facts sufficient to support a punitive
damages award as the FAC is devoid of any facts indicative of oppression,
fraud, or malice by Defendant. While Plaintiff states Defendant is guilty of
oppression by failing to return overdue payments owed to Plaintiff (FAC,
Exemplary Damages Attachment, ¶¶ Ex-1, Exh-2), failure to pay a debt does not
rise to the level of malice, oppression, or fraud as necessary under Civil Code
section 3294 to state a claim for punitive damages. (See Turman v. Turning
Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64; Civ.
Code, § 3294.) Accordingly, the Motion is GRANTED. IV.
Conclusion
& Order Defendant Matthias Hong’s Amended Motion
to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED. The
punitive damages and exemplary allegations in the FAC are ordered STRICKEN. Moving party is ordered to
give notice. |
DEPARTMENT 25 LAW AND MOTION RULINGS
*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner KARINE MKRTCHYAN *** Case Number: 24STCP02077 Hearing Date: March 10, 2025 Dept: 25
HEARING DATE: Mon., March 10, 2025 JUDGE /DEPT: Mkrtchyan/25 CASE NAME: Pomona
Islander, L.P. v. Gonzalez, et al. CASE NUMBER: 24STCP02077 NOTICE:
OK PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL FOR RESPONDENT MOVING PARTY: Counsel
Gary S. Saunders, for Respondent Soledad Gonzalez RESP. PARTY: None MOTION TO BE RELIEVED AS COUNSEL FOR RESPONDENT (CCP § 284, CRC, rule 3.1362) TENTATIVE RULING: At least 10 calendar days before the next scheduled hearing, Counsel
must file and serve a completed MC-053 form. Failure to do so will result in
the Motion being placed off calendar or denied. The Moving Party is ordered to give notice. ___________________________________________________________________________ SERVICE: [ ]
Proof of Service Timely Filed (CRC, rule 3.1300) NO [ ] Correct Address (CCP §§ 1013, 1013a) NO [ ] 16/21 Court Days Lapsed (CCP §§ 12c,
1005(b)) NO OPPOSITION: None
filed as of March 5, 2025 [ ] Late [X] None REPLY: None
filed as of March 5, 2025 [ ]
Late [X] None ANALYSIS: I.
Background On June 27,
2024, Petitioner Pomona Islander, L.P. dba Hilea Village Mobile Home Park
(“Petitioner”) filed the instant Petition for Permanent Injunction Pursuant to
Civil Code section 798.88 against Respondents Soledad Gonzalez (“Gonzalez”) and
Rogelio Vilasenor (“Vilasenor”) (collectively, “Respondents”) and Does 1-10.
Petitioner moved pursuant to Civil Code section 798.88 for an order enjoining
Respondents from continuing violations of the rules of Petitioner’s Mobile Home
Park, HiLea Village Mobile Home Park (“the Park”). On September 11,
2024, the Court ordered the Petition granted and found Petitioner was the
prevailing party in this action and thus was entitled to an award of attorney’s
fees and costs. (9/11/24 Order, p. 2.) On January 29,
2025, Gonzalez’s Counsel, Gary S. Saunders, (“Counsel”) filed the instant
Motion to Be Relieved as Counsel (the “Motion”) for Gonzalez. On February 4,
2025, the Court granted Petitioner’s Motion for Attorney’s Fees and Costs in
the total amount of $11,550.99. To date, no
Opposition to the instant Motion has been filed. II.
Legal
Standard Code of Civil
Procedure section 284 states that “the attorney in an action…may be changed at
any time before or after judgment or final determination, as follows: (1) Upon
the consent of both client and attorney…; (2) Upon the order of the court, upon
the application of either client or attorney, after notice from one to the
other.” (Code Civ. Proc., § 284; Cal.
Rules of Court, rule 3.1362.) “The
determination whether to grant or deny a motion to withdraw as counsel lies
within the sound discretion of the trial court.” (Manfredi & Levine v.
Superior Court (1998) 66 Cal.App.4th 1128, 1133); see Lempert v.
Superior Court (2003) 112 Cal.App.4th 1161, 1173.) An application
to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice
of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal.
Rules of Court, rule 3.1362, subds. (a), (c), (e).) In addition,
California Rules of Court, rule 3.1362 subsection (d) requires that the notice
of motion and motion, declaration, and proposed order be served on the client
and all other parties who have appeared in the case by personal service,
electronic service, or mail. If the notice is served by electronic service, it
must be accompanied by a declaration stating that the electronic service
address is the client’s current electronic service address. (Cal. Rules of
Court, rule 3.1362, subd. (d)(2).) As used in this rule, “current” means: “[T]he address
was confirmed within 30 days before the filing of the motion to be relieved. Merely
demonstrating that the notice was sent to the client’s last known address and
was not returned or no electronic delivery failure message was received is not,
by itself, sufficient to demonstrate that the address is current.” (Cal. Rules of
Court, rule 3.1362, subd. (d).) III.
Discussion On January 29,
2025, Counsel moved the Court to
be relieved as attorney of record for Gonzalez. (MC-051.) Counsel filed MC-051 and MC-052 Forms. (Cal.
Rules of Court, rule 3.1362, subds. (a), (c), (e).) Counsel seeks to be relieved due to a
breakdown of the attorney-client relationship that included the client’s
refusal to take Counsel’s advice (MC-052, ¶ 2.) The Court is satisfied with
Counsel’s reasons for seeking to be relieved. While Counsel filed MC-051 and MC-052
Forms, Counsel failed to serve a completed Proposed Order (MC-053 Form) as
required by California Rules of Court, rule 3.1362. Although the Court is satisfied with
Counsel’s reasons for seeking to be relieved, the Court cannot grant the Motion
without adequate service of completed MC-053 Form with all necessary
information. Accordingly, the Court CONTINUES the
Motion. IV.
Conclusion & Order Counsel Gary S. Saunders’ Motion to be
Relieved as Counsel for Respondent Soledad Gonzalez is CONTINUED to MARCH
27, 2025, at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 10 calendar days before the
next scheduled hearing, Counsel must file and serve a completed MC-053 form.
Failure to do so will result in the Motion being placed off calendar or
denied. The Moving Party is ordered to give
notice. Case Number: 24STLC01956 Hearing Date: March 10, 2025 Dept: 25
HEARING DATE: Monday, March 10, 2025 JUDGE/DEPT: Mkrtchyan/25 CASE NAME: State
Farm Mutual Auto. Ins. Co. v. COMP
FILED: 03-19-24 Rodriguez CASE NUMBER: 24STLC01956 TRIAL DATE: 09-16-25 NOTICE: OK PROCEEDINGS: MOTION
TO STAY PROCEEDINGS OR FOR PROTECTIVE ORDER MOVING PARTY: Defendant
Hugo Alberto Rodriguez RESP. PARTY: None MOTION TO STAY PROCEEDINGS TENTATIVE RULING: For the foregoing reasons,
Defendant Hugo Alberto Rodriguez’s Motion to Stay
Proceedings Pending the Outcome of Defendant’s Criminal Proceedings is GRANTED
for a period of 6 (six) months as it pertains to a stay of discovery. The Court sets an Order to Show Cause Re:
Status of Defendant’s Criminal Proceedings / Stay for APRIL 10, 2025, at 10:00
a.m. in Department 25 of the SPRING
STREET COURTHOUSE. Counsel for Defendant is
ordered to serve and to electronically file a Report Re: Status of Defendant’s Criminal Proceedings
(5) court days prior to 04/10/2025. Any party may move to end
the stay earlier if the criminal action against Defendant resolves prior to the
Order to Show Cause. Moving party is ordered to give
notice. _______________________________________________________________________ SERVICE: [X] Proof of Service Timely Filed (CRC, rule 3.1300) OK [X ] Correct Address (CCP §§ 1013, 1013a) OK [X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK OPPOSITION: None
filed as of January 21, 2025 [ ] Late [X] None REPLY: None
filed as of January 21, 2025 [ ] Late [X] None ANALYSIS: I.
Background
On March 19, 2024, Plaintiff State
Farm Mutual Automobile Insurance Company (“Plaintiff”) filed an action against
Defendant Hugo Alberto Rodriguez (“Defendant”) and Does 1-10 alleging a single
cause of action for Property Damages. (Compl., p. 1.) The action arises out of
a motor vehicle accident that occurred on or about October 2, 2022, “at or
about Monterey Road west of Fremont Avenue in South Pasadena, California
91030.” (Compl., ¶ 7.) On December 2, 2024, Defendant filed
an Answer. Also on December 2, 2024, Defendant
filed the instant Notice of Motion and Motion to Stay Proceedings or, in the
Alternative, for a Protective Order Pending the Outcome of Defendant’s Criminal
Proceedings (the “Motion”). On January 23, 2025, the Court
continued the hearing on the Motion due to deficiencies in service. (1/23/25
Order.) The Court also stated: “If the Parties believe the cases listed in the
motion are related, then Defendant is ordered to file a Notice of Related Case
in the instant action (24STLC01956) and in unlimited Case Number: 24NNCV04527
pending in Department V - Alhambra Superior Court, within 5 days of this
Court’s order.” (1/23/25 Order.) Finally, the Court, on its own motion,
scheduled an Order to Show Cause Re: Status of Related Cases (24STLC01956 and
Unlimited Case Number 24NWCV04527) for 02/18/2025 at 09:30 AM in Department 25
at Spring Street Courthouse. (1/23/25 Order.) On February 18, 2025, the Court
continued the Order to Show Cause Re: Status of Related Cases (24STLC01956 and
Unlimited Case Number 24NWCV04527) to the instant hearing date, March 10, 2025,
because “[t]he Court [found] that the notice of related case filed on
01/23/2025, ha[d] not yet been ruled on by the lead case, 24NNCV04527, in
Department V at the Alhambra Courthouse. The Court therefore continue[d] the
matter to allow for Department V to review and consider the notice of related
case.” (2/18/25 Order.) To date, no Opposition to the Motion
has been filed, and Defendant has filed no additional papers or proof of
service regarding the Motion. Notably, the Order to Show Cause Re:
Status of Related Cases (24STLC01956 and Unlimited Case Number 24NWCV04527) is
set for the instant hearing date as well. II.
Legal
Standard & Discussion Defendant alleges he is facing
criminal charges for violation of Vehicle Code section 23153(a) – driving under
the influence of alcohol. (Motion, p. 4; Ross Decl., Exh. B.) Defendant argues
he is unable to defend this case or participate in discovery without
implicating his Fifth Amendment rights or potentially prejudicing his criminal
case. (Motion, Ross Decl.) In deciding whether to stay
proceedings when a civil defendant faces parallel criminal charges, courts
engage in a two-step process. First, the decision should be made “ ‘in
light of the particular circumstances and competing interests involved in the
case’ . . . This means the decision maker should consider ‘the extent to which
the defendant’s fifth amendment rights are implicated.’ [Citation.]”
(Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322,
324.) Second, the court should consider:
“(1) the interest of the plaintiffs in proceeding expeditiously with this
litigation or any particular aspect of it, and the potential prejudice to
plaintiffs of a delay; (2) the burden which any particular aspect of the
proceedings may impose on defendants; (3) the convenience of the court in the
management of its cases, and the efficient use of judicial resources; (4) the
interests of persons not parties to the civil litigation; and (5) the interest
of the public in the pending civil and criminal litigation.” (Avant!
Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885; Keating, supra,
45 F.3d at p. 325.) “[I]t has been consistently held that
when both civil and criminal proceedings arise out of the same or related
transactions, an objecting party is generally entitled to a stay of discovery
in the civil action until disposition of the criminal matter.” (Pacers,
Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.) Defendant’s Fifth Amendment Rights Here, Defendant’s Fifth Amendment
rights would be implicated in responding to any discovery. Plaintiff alleges Defendant
negligently drove and caused property damages to Plaintiff’s insured’s vehicle
in the same motor vehicle accident at issue in the criminal proceedings.
(Compl., p. 2; People v. Cudjo (1993) 6 Cal.4th 585, 617 [“[T]he privilege
[against self-incrimination] is properly invoked whenever the witness’s answers
‘would furnish a link in the chain of evidence needed to prosecute’ the witness
for a criminal offense. [Citation.]”]; ibid. [“ ‘[I]t need only be
evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure could
result”].) Avant! Factors Defendant
argues the Avant! factors weigh in favor of a stay of proceedings
because “Plaintiff’s interests in proceeding expeditiously with the civil
litigation will not be overly infringed by a stay” as only Plaintiff and
Defendant are parties to the civil action and thus the impact of a delay is
minimal, and there is manifest infringement on Defendant’s Fifth Amendment
right through discovery. (Motion, pp. 6-7.) Indeed, Defendant argues that
Defendant sitting for deposition and providing verified responses to any
substantive issues related to the accident would “ ‘ allow the prosecutors to
monitor the civil proceedings hoping to obtain incriminating testimony from [Defendant]
through civil discovery [which] would not only undermine the Fifth Amendment
privilege but would also violate concepts of fundamental fairness.’ ” (Motion,
p. 7, citing Pacers, Inc., supra, 162 Cal.App.3d at p. 690.) Furthermore,
Defendant argues that an assertion of the Fifth Amendment privilege in civil
context can create a negative inference. (Motion, p. 7.) Defendant requests a
stay of all proceedings or, in the alternative, an issuance of a protective
order staying discovery as to Defendant pending final disposition of the
criminal action against him. (Motion, pp. 7, 8.) Further, Defendant “suggests
that the Court set status conferences every 90 days to monitor the stay and
resolution of the criminal case.” (Motion, Ross Decl., ¶ 4.) Finally, Defendant notes that defense
counsel and Plaintiff’s counsel have attempted to meet and confer regarding a
potential stay and/or protective order to no avail. (Motion, p. 8, Ross Decl., ¶ 5, Exh. D.) Here, the Court finds there is good
cause for a stay of discovery as to Defendant. Defendant’s Fifth Amendment
rights are implicated by discovery seeking Defendant’s factual account of the
accident or any responses that would show liability. Next, based on the Avant!
factors, the balance of equities weighs in favor of a stay of discovery. (Avant!
Corp., supra, 79 Cal.App.4th at p. 885.) Plaintiff files no
Opposition or any argument to the contrary, and the Court notes Plaintiff does
not allege in the Complaint extreme injury or other circumstances that would
require swift litigation and resolution. Further, there does not appear to be,
and neither party identifies, any particular burden on the parties, the
interests of nonparties, or the interests of the public in imposing a stay. A
stay of discovery as to Defendant would not impose an additional burden on
judicial resources. Accordingly, the Motion is GRANTED for
a period of 6 (six) months as it pertains to a stay of discovery. The Court
sets an OSC re: Status of Stay for April 10, 2025 at 10:00 a.m. in Department
25 of the SPRING STREET COURTHOUSE. Any party may move to end the stay earlier
if the criminal action against Defendant resolves prior to the OSC. III.
Conclusion
& Order For the foregoing reasons,
Defendant Hugo Alberto Rodriguez’s Motion to Stay Civil Proceedings Pending the
Outcome of Defendant’s Criminal Proceedings is GRANTED for a period of 6 (six)
months as it pertains to a stay of discovery. The Court sets an Order to
Show Cause Re: Status of Defendant’s Criminal Proceedings / Stay for APRIL 10, 2025
at 10:00 a.m. in Department 25 of the
SPRING STREET COURTHOUSE. Counsel for Defendant is
ordered to serve and to electronically file a Report Re: Status of Defendant’s Criminal Proceedings
(5) court days prior to 04/10/2025. Any party may move to end
the stay earlier if the criminal action against Defendant resolves prior to the
Order to Show Cause. Moving party is ordered to give
notice. |