ORDER - PRELIMINARY CONFERENCE - 2nd Amended Preliminary Conference Stipulation and Order June 14, 2024 (2024)

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Ruling

Aug 29, 2024 |24STCV13168

Case Number: 24STCV13168 Hearing Date: August 29, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: August 29, 2024 Case Name: Perry & Alznauer, P.C. v. City National Bank, et al. Case No.: 24STCV13168 Motion: Motion to Quash Service of Summons Moving Party: Defendant Space Coast Credit Union Responding Party: Plaintiff Perry & Alznauer, P.C. Tentative Ruling: The Motion to Quash is granted. On May 24, 2024, Plaintiff Perry & Alznauer, P.C. (P&A) filed an action against Defendants City National Bank (City Bank), Space Coast Credit Union (Space Coast), Wells Fargo Bank, N.A. (Wells Fargo), PNC Bank (PNC), Raheem Vassall (Vassall), Dante Prescott (Prescott), Michael Carseli (Carseli), and Does 1 through 100. On July 17, 2024, Defendant Space Coast filed the instant Motion to Quash Service of Summons (Motion). On August 15, 2024, Plaintiff filed an Opposition to the Motion and on August 22, 2024, Defendant Space Coast filed a Reply. On August 6, 2024, Plaintiff filed a First Amended Complaint (FAC) for (1) violation of Commercial Code section 11204, (2) negligence, (3) common counts, (4) conversion, and (5) violation of Penal Code section 496 against Defendants. Legal Standard A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow may move to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code of Civ. Proc. § 418.10, subd. (a)(1). A defendant has 30 days after the service of the summons to file a responsive pleading. (Code Civ. Proc., § 412.20, subd. (a)(3).) The Due Process clause of the Fourteenth Amendment constrains a States authority to bind a nonresident defendant to a judgment of its courts. [Citation.] [A] nonresident generally must have certain minimum contacts . . . such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. (Walden v. Fiore (2014) 571 U.S. 277, 283.) Personal jurisdiction may be either general or specific. For general jurisdiction, a defendants forum contacts must be so continuous and systematic as to render [the defendant] essentially at home in the forum State. (Daimler AG v. Bauman (2014) 571 U.S. 117, 139.) The paradigm of general jurisdiction for a corporation is its state of incorporation or principal place of business. (Ibid. at p. 137.) Specific or case-linked jurisdiction focuses on the relationship among the defendant, the forum, and the litigation. (Walden, supra, 571 U.S. at 283-284.) In particular, the defendants suit-related conduct must create a substantial connection with the forum State. (Ibid. at 284.) There are three requirements for a court to exercise specific jurisdiction over a nonresident defendant: First, the defendant must have purposefully availed himself or herself of forum benefits or purposefully directed activities at forum residents. Second, the controversy must relate to or arise out of the defendants forum-related activities. Third, the exercise of jurisdiction must comport with traditional notions of fair play and substantial justice. (David L. v. Superior Court (2018) 29 Cal.App.5th 359, 366.) The plaintiff has the initial burden to establish the first two requirements. Only after doing so does the burden shift to the defendant to show that exercising jurisdiction would be unreasonable. (Ibid. at 367.) The plaintiff must do more than merely allege jurisdictional facts. It must present evidence sufficient to justify a finding that California may properly exercise jurisdiction over the defendant. (Zehia v. Superior Court (2020) 45 Cal.App.5th 543, 552.) [P]urposeful availment occurs where a nonresident defendant purposefully direct[s] [its] activities at residents of the forum [citation], purposefully derive[s] benefit from its activities in the forum [citation], create[s] a substantial connection with the forum [citation], deliberately has engaged in significant activities within the forum [citation], or has created continuing obligations between [itself] and residents of the forum [citation]. By limiting the scope of a forums jurisdiction in this manner, the purposeful availment requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts & . [Citation.] Instead, the defendant will be subject to personal jurisdiction only if it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the state. [Citations.] (HealthMarkets, Inc. v. Superior Court (2009) 171 Cal.App.4th 1160, 1168.) In Walden, the U.S. Supreme Court emphasized two important principles underlying the jurisdictional inquiry: First, the relationship must arise out of contacts that the defendant himself creates with the forum State. [Citation.] Due process limits on the States adjudicative authority principally protect the liberty of the nonresident defendant not the convenience of plaintiffs or third parties. (Walden, supra, 571 U.S. at p. 284.) Second, our minimum contacts analysis looks to the defendants contacts with the forum State itself, not the defendants contacts with persons who reside there. (Id. at p. 285.) [T]he plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendants conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him. (Ibid.) Therefore, mere injury to a forum resident is not a sufficient connection to the forum. (Id. at 290.) The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendants conduct connects him to the forum in a meaningful way. (Ibid.) Discussion A. Motion Defendant Space Coast specially appears to challenge the Courts personal jurisdiction. (Mot. p. 6.) Plaintiff alleges that it had personal and business bank accounts with Defendant City Bank. (FAC ¶ 10.) On November 27, 2023, an unauthorized person initiated payment orders from two of Plaintiffs accounts to various individuals, including certain Defendants. (Id. at ¶¶ 11, 27.) On November 28, 2023, Plaintiff discovered these unauthorized transactions, immediately notified City Bank, and filed a report with the Federal Bureau of Investigations. (Id. at ¶ 12.) While certain transactions were blocked, others were not, causing Plaintiff to incur damages. (Id. at ¶¶ 13-14.) One of these payment orders was allegedly made to an account owned by Defendant Raheem Vassall at Space Coast. (Id. at ¶¶ 11, 27.) Plaintiff filed this action against the individuals whose accounts received funds, City Bank, and the other financial institutions with the accounts where the funds were allegedly transferred, including Space Coast. Plaintiff asserts two causes of action against Space Coast for negligence and common counts, stating that Space Coast breached its duty to non-customer Plaintiff by failing to protect it from the illegal conduct committed by its own customer. (Id. at ¶¶ 26-34.) Defendant Space Coast presents the declaration of Shane Hoyle, Senior Vice President and Chief Operating Officer, in support of its Motion. According to Hoyle, Space Coast is a Florida state-chartered credit union, with headquarters and a principal place of business located at 8045 N. Wickham Road, Melbourne, Florida, 32940. (Hoyle Decl. ¶ 4.) Space Coast does not and did not, during the time alleged in the Complaint, have branches, offices, or employees in the State of California. (Id. at ¶ 5.) Space Coast does not and did not, during the time alleged in the Complaint, own or lease real or personal property in the State of California. (Id. at ¶ 6.) Moreover, it does not and has not solicited any business in the State of California. (Id. at ¶ 7.) Space Coast requires that a person either work or live in one of the 34 counties in the State of Florida to be a member. (Ibid.) All deposit accounts of Space Coast members are now and were, during the time alleged in the Complaint, maintained and serviced in the State of Florida. (Id. at ¶ 8). Moreover, all funds of Space Coast members deposited into Space Coast accounts are and were, at the time alleged in the Complaint, maintained outside the State of California. (Id. at ¶ 9.) Finally, all records and persons of knowledge of Space Coasts operations are located in the State of Florida and requiring Space Coast to participate in the instant lawsuit in Los Angeles would be extremely burdensome. (Id. at ¶ 10.) Based on this evidence, Space Coast argues that it is not subject to general or specific personal jurisdiction in California. (Mot. p. 9.) First, the State of California is not Space Coasts place of incorporation or principal place of business as it is a Florida-state chartered credit union headquartered in Florida. (Ibid.) Space Coast also does not have any operations in California. (Ibid.) Second, none of the requirements for the exercise of specific jurisdiction are met in this case. (Id. at p. 10.) Space Coast did not purposefully direct its activities at California: it has not conducted any business, leased any real or personal property, maintained any branches, offices, or employees, and or service any member accounts in California. (Id. at p. 11.) Since Space Coast does not have any California contacts, it is impossible for any of Plaintiffs claims to arise from those contacts. (Ibid.) Space Coast contests Plaintiffs claims that Space Coast owed duties to non-members in California. (Ibid.) Simply accepting a payment order from Plaintiffs bank account in California is insufficient to establish jurisdiction. (Id. at pp. 11-12.) Finally, the exercise of jurisdiction would be unreasonable because Space Coast has no presence in California, and it would be unreasonable to demand Space Coast to appear in this Court when it lacks any connection to the state and operates on the other side of the country. (Id. at p. 12.) B. Opposition Plaintiff opposes the Motion. It states that shortly after the unauthorized wire transfer from City Banks account to Space Coast, Space Coast was notified about the transaction. (Perry Decl. ¶ 3.) Space Coast disregarded the notice and gave the money to the third-party, without Plaintiffs authorization. (Ibid.). Plaintiff does not dispute that the Court cannot exercise general personal jurisdiction over Defendant Space Coast. (Oppos. p. 2.) However, Plaintiff requests leave to conduct jurisdictional discovery to develop the facts necessary to show that the Court may exercise specific personal jurisdiction over Space Coast. (Id. at p. 3.) Plaintiff argues that the evidence presented by Defendant does not rule out the possibility that Space Coast does extensive business in California. (Id. at pp. 3-4.) Like most financial institutions, Space Coast allows its customers to send and receive wire transfers and ACH payments to or from individuals in other states or internationally, including sending and receiving funds from California banks. (Id. at p. 4.) This constitutes an intentional activity in California. (Ibid.) Plaintiff also argues that the facts of the instant case are distinguishable from Resolution Trust Corp. v. First of America Bank and S.H. Silver Co. v. David Morris Int'l, cases cited by Defendant for the proposition that wire transfer activity in the forum jurisdiction is not sufficient to create personal jurisdiction. (Id. at pp. 4-5; Resolution Trust Corp. v. First of America Bank (C.D. Cal. 1992) 796 F.Supp.1333); S.H. Silver Co. v. David Morris Int'l (N.D.Cal. Aug. 28, 2008, No. C 08-03550 CRB) 2008 U.S.Dist.LEXIS 116989.) Here, unlike in Resolution, in which the transfer was from a California bank to a Michigan bank, it is not clear who initiated the transfer as it may have been Space Coast. (Id. at p. 5.) Moreover, unlike S.H. Silver, in which there was no personal jurisdiction because of a few phone calls and two wire transfers, here, as a large credit union, Space Coast may have established continuous activity with the forum state. (Ibid.) Plaintiff requests leave to conduct discovery to determine the following facts: 1) how the money got transmitted from Plaintiffs bank account in California to Space Coast in Florida; 2) how the money got transmitted from Space Coast to Vassall and what information Space Coast has about Vassall; 3) how many funds transfers, by wire or through the ACH system, were made from Space Coast to banks in California in 2023, and 4) how many funds transfers, by wire or through the ACH system, were made to Space Coast from banks in California. (Id. at pp. 5-6.) Plaintiff argues that its claims do arise from forum-related activities as they are based on the same wire transfer or ACH activity that forms the basis for finding minimum contacts. (Id. at p. 6.) Finally, there are other foreign banks involved in the lawsuit and Space Coast has not demonstrated any substantial burden in defending itself. (Ibid.) If City Bank were to blame Space Coast for the loss, it would not make sense to have two separate lawsuits, one in California and one in Florida. (Ibid.) C. Reply In its Reply, Space Coast reiterates that it is not subject to specific personal jurisdiction because it does not purposefully direct any activities at California and Plaintiffs claims do not arise from any such activities. (Reply pp. 4-5.) Space Coast did not purposefully direct any activities at California by offering wire services to its Florida-based members. (Id. at p. 5.). Like most financial institutions that do offer wire services, Space Coast is a member of wire transfer clearinghouses that allow its members to send and receive wires nationwide. (Ibid., Roberts Decl. ¶ 4.) These clearinghouses facilitate the transfer of funds from one financial institution to another by sending secure payment instructions, which the participating financial institutions settle by crediting and debiting funds from their Federal Reserve accounts. (Roberts Decl. ¶¶ 4-5, 7.) Membership in these clearinghouses does not automatically subject a financial institution like Space Coast to national jurisdiction. (Reply p. 5.) Space Coast also states that it does not have control over wire transfers sent to member accounts and when, from whom, or from where the wires are sent. (Roberts Decl. ¶ 8.) The sender of the wire controls where it is sent and Space Coasts acceptance of wires in Florida from California does not result from any action undertaken by Space Coast. (Reply pp. 5-6.) In this case, Space Coast received wire transfer instructions to credit $40,051.48 to the account of its Florida-based member Vassall from an account held by City Bank. (Roberts Decl. ¶¶ 6-7.) Space Coast did not initiate the wire transfer or have any control over where it came from. (Id. at ¶¶ 7-8.) This single activity does not establish specific personal jurisdiction over Space Coast. (Reply p. 6.) Space Coast also opposes Plaintiffs request to conduct jurisdictional discovery because Plaintiff has not made the required showing that any of the requested discovery will likely lead to evidence establishing specific jurisdiction. (Id. at p. 7.) Evidence shows that Space Coast did not send or initiate the wire transfer at issue and wire transfer activity to and from California by third parties is irrelevant to the jurisdictional analysis. (Id. at pp. 7-8.) D. Analysis There is no dispute that the Court does not have general jurisdiction over Space Coast. Moreover, based on the evidence presented, Space Coast has shown that it has not purposefully availed itself of forum benefits or purposefully directed activities at California residents. In response, Plaintiff does not offer any facts or arguments to sustain its burden of demonstrating that Space Coast is subject to specific personal jurisdiction of the Court. Instead, it requests additional time to conduct jurisdictional discovery to obtain facts in support of a finding of specific jurisdiction. A plaintiff seeking to assert jurisdiction over a nonresident defendant is generally entitled to an opportunity to conduct discovery of the facts necessary to sustain its burden of proof. (Magnecomp Corp. v. Athene Co., Ltd. (1989) 209 Cal.App.3d 526, 533.) In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction. (In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 127.) A trial court has discretion to rule on a motion to continue for additional jurisdictional discovery and will not be reversed absent a finding of abuse of discretion. (Ibid.) Plaintiff requests leave to conduct discovery to determine the following facts: 1) how the money got transmitted from Plaintiffs bank account in California to Space Coast in Florida; 2) how the money got transmitted from Space Coast to Vassall and what information Space Coast has about Vassall; 3) how many funds transfers, by wire or through the ACH system, were made from Space Coast to banks in California in 2023, and 4) how many funds transfers, by wire or through the ACH system, were made to Space Coast from banks in California. (Oppos. pp. 5-6.) The Roberts declaration, at paragraphs 6 and 7, answers question 1. The remaining questions are irrelevant to the jurisdictional issue. Plaintiff fails to demonstrate that discovery of such facts will likely lead to evidence establishing jurisdiction. In Resolution Trust Corp, the Court found that wire transfers and participation in a national clearinghouse service, which facilitates wire transfers, are not sufficient to demonstrate minimum contacts with a forum, and, thus, are generally insufficient to establish personal jurisdiction on their own. (Resolution Trust Corp., supra, 796 F.Supp.1333). The Court noted that participation in such a clearinghouse system is a technological necessity of modern banking, similar in some respects to having telephone service and finding that such participation subject to personal jurisdiction would suggest that every bank in the nation would be subject to jurisdiction in all states. (Id. at 1335.) Thus, additional affirmative actions aimed at the forum, such as evidence of advertising, employees or agents in California, or an intent or purpose to serve the California market, would be necessary to establish that the party had purposefully availed itself of the benefits of the forum or directed its activities at the forum. (Id. at 1336.) Similarly, in S.H. Silver, the Court found that wire transfers to a California bank were not sufficient to establish minimum contacts with the forum state. (S.H. Silver, supra, 2008 U.S.Dist.LEXIS 116989.) Plaintiff argues that these cases, cited by Defendant, are distinguishable from the facts of the instant case because it is not clear who initiated the wire transfer and whether it was Space Coast. In it Reply, Space Coasts Vice President of Payment Services and Loss Prevention explains that on November 27, 2023, Space Coast received wire transfer instructions to credit funds to Vassalls account from City Bank. (Roberts Decl. ¶ 3.) Like all other wire transfers sent to Space Coast member accounts, it did not initiate the wire transfer and had no control over when or from whom wires were sent to its members account. (Id. at ¶¶ 5, 7-8.) The only information Plaintiff seeks through jurisdictional discovery is regarding the transfers between Space Coast and California. First, Space Coast has presented evidence to show that it did not initiate the wire transfer at issue. Second, as in Resolution Trust Corp. and S.H. Silver, the Court finds that mere participation in national clearinghouse systems and transmission of funds through wire transfers or the ACH system, does not demonstrate that Space Coast purposefully availed itself of California benefits or purposefully directed activities at California residents. Thus, Plaintiff has not established any minimum contacts between Defendant Space Coast and the forum state or shown that its claims relate to or arise out of the Defendants forum-related activities. As Plaintiff failed to meet his burden of establishing the first two requirements for specific jurisdiction, the Court need not address whether exercise of jurisdiction would be fair and reasonable. Because Plaintiff has not demonstrated that the Court has personal jurisdiction over Defendant Space Coast or that jurisdictional discovery will lead to facts likely to sustain its burden in establishing personal jurisdiction, the Court grants Defendants Motion to Quash Service of Summons and dismisses it from this case. Conclusion The Court grants Defendant Space Coast Credit Unions Motion to Quash Service of Summons on the basis of lack of personal jurisdiction. Defendant Space Coast Credit Union is dismissed from this case.

Ruling

GRACE ASANTE VS UBER TECHNOLOGIES, INC., A DELAWARE CORPORATION, ET AL.

Aug 29, 2024 |23LBCV01169

Case Number: 23LBCV01169 Hearing Date: August 29, 2024 Dept: S25 Procedural Background On June 23, 2023, Plaintiff filed a complaint against Defendants Uber Technologies, Inc., Portier, LLC, Joseph Gallegos and Does 1 to 50. Plaintiff alleges that the action arises from an automobile collision that occurred on or about May 14, 2023, on Pacific Coast Highway, at or near Redondo Avenue, in the City of Long Beach (Incident). (Compl., ¶ 1.) On October 12, 2023, Defendants Uber Technologies, Inc. and Portier, LLC (Uber Defendants) filed an answer. On April 22, 2024, the Court granted the parties stipulation, continuing the final status conference to October 4, 2024, the trial date to October 14, 2024, and all discovery and other pre-trial deadlines to be based from the new trial date. (April 22, 2024 Order.) On May 23, 2024, Defendant Joseph Gallegos (Defendant Gallegos) filed an answer. On July 26, 2024, Plaintiff filed the instant motion for leave to file a first amended complaint (FAC). On August 15, 2024, Uber Defendants filed an opposition. On August 16, 2024, Defendant Gallegos filed a Joinder to Defendant Ubers opposition. On August 22, 2024, Plaintiff filed her Reply. Legal Standard Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code Civ. Proc. § 576.) As a condition of granting leave to amend, the trial court may require a plaintiff to bring a motion that is compliant with rule 3.1324 of the California Rules of Court (Rule 3.1324), including the evidentiary requirements, and doing so does not constitute an abuse of discretion. (Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1469.) A party requesting leave to amend must submit a motion which includes: (1) a copy of the proposed amendment or amended pleading, serially numbered to differentiate it from previous pleadings; (2) a statement of which allegations would be deleted by the amendment, and where they are located in the previous pleading; and (3) a statement of what allegations would be added by the amendment, and where they are located in the proposed pleading. (Cal. Rules of Court, Rule 3.1324(a).) The motion must be accompanied by a declaration stating: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) why the request was not made earlier. (Cal. Rules of Court, rule 3.1324(b).) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488; see P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649 [leave to amend properly denied where Plaintiff knew for over five months claims had not been properly pleaded and took no action to amend until after summary judgment granted against it]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 6:656.) Arguments Plaintiff seeks leave to file a FAC to include a claim for punitive damages. Plaintiff argues that Code Civ. Proc., § 425.13, which governs professional negligence of a healthcare provider, Plaintiff is permitted it to file an amended complaint including a prayer for punitive damages. (See Neubauer Decl., ¶ 5, Ex. 1 [FAC] Prayer for Damages ¶ 3.) Further, Plaintiff seeks to add a paragraph regarding Defendant Gallegos driving under the influence based on information obtained from the police report regarding the Incident. (See Neubauer Decl., ¶ 5, Ex. 1 [FAC] ¶ 43.) Plaintiff asserts that she received facts giving rise to the amendment when Plaintiffs counsel received a police report on the Incident on September 25, 2023. (See Neubauer Decl., ¶ 8, Ex. 2 [Police Report].) Plaintiff also states that the request was not made earlier because the facts were learned after the filing of the original complaint and Defendant Gallegos only recently answered the original complaint on May 23, 2024. (See Neubauer Decl., ¶ 9.) Plaintiff relies on Taylor v. Superior Court (1979) 24 Cal.3d 890 and Dawes v. Superior Court (1980) 111 Cal.App.3d 82 in arguing that an allegation that driving a car intoxicated while intoxicated sufficiently met the malice requirement for punitive damages under Civ. Code, § 3294. (Taylor, supra, 24 Cal.3d at pp. 893-895; Dawes, supra, 111 Cal.App.3d at pp. 88-89.) In opposition, Uber Defendants contend they will be prejudiced if the instant motion is granted. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [finding prejudice where amendments to the complaint proposed on the eve of trial, nearly two years after complaint originally filed, would require defendant to discover additional evidence and depose additional witnesses to prepare their defense on the newly proposed claims.]) Uber Defendants contend the request is untimely as: (1) the original complaint was filed on June 23, 2023; (2) Plaintiff received the police report containing information regarding a Defendant Gallegos alleged intoxication on September 25, 2023; (3) Defendant Gallegos filed an answer almost three months ago; (4) trial is currently set for January 28, 2025, and (5) Plaintiffs actions have already delayed resolution of this matter on several occasions (e.g. at the July 23, 2024 mediation, Plaintiff appeared but was not represented by an intern (not counsel) with no authority to negotiate, lack of noncompliance by Plaintiff forced Uber Defendants to file a motion to compel an Independent Medical Examination.) Uber Defendants argue that Code Civ. Proc., § 425.13 does not apply as it governs professional negligence of a healthcare provider. Uber Defendants also assert that Plaintiffs proposed amendments are merely conclusory and that if the instant motion is granted, Uber Defendants intends to file a demurrer arguing that the FAC does not sufficiently plead support claim of punitive damages. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [clear and convincing evidence standard needed to demonstrate punitive damages requirement], see also (Civ. Code § 3294, subd. (b)) [With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.]) Defendant Gallegos joins in Uber Defendants opposition. No additional arguments are brought by Defendant Gallegos. In reply, Plaintiff states the instant motion was timely filed, Defendants have not made any showing of prejudice and Defendants argument regarding the proposed pleading is misplaced. (See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [Even if the proposed legal theory is a novel one, the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.]) Tentative Ruling Plaintiff has complied with Cal. Rules of Court, rule 3.1324(b). While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. Morgan v. Superior Ct. of Cal. In & For Los Angeles County (1959)172 Cal. App. 2d 527, 530. And it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case. If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (Ibid.) Defendants have established the level of prejudice to warrant a denial of Plaintiffs request to file a FAC. In Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488, prejudice was found in the complaint amendments the plaintiff proposed on the eve of trial because the defendants would need additional time to depose witnesses and discover evidence to oppose the additional allegations. Here, although trial is set for January 2025, Uber Defendants have not identified that similar level of prejudice aside from the costs of filing a demurrer and/or motion to strike to challenge the proposed amendments and the need for significant, if any, additional discovery. trial is set in January 2025, there is likely no need for significant, additional discovery or further depositions, which could a result in the need for a delay in the trial date. The Court agrees with Uber Defendants that Code Civ. Proc., § 425.13 is improper basis for Plaintiffs request to add punitive damages, as it only applies to professional negligence actions against healthcare providers; this action does not involve a healthcare provider, nor does it assert a professional negligence claim. The Court also acknowledges Defendants arguments as to potential legal and factual deficiencies of the allegations surrounding Plaintiffs claim for punitive damages. In Taylor, in addition to the driver being under the influence, there were aggravating factors (prior DUI arrest, driver recently on probation for DUI, consuming alcohol while driving, and transporting alcohol as part of employment) relied upon by the Supreme Court in reversing the trial courts decision to sustain the demurrer. Yet, the legal and factual sufficiency of the claims in this present case do not render the amendments futile. [The preferable practice is to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings. Kittredge Sports Co. v. Superior Ct. (1989) 213 Cal. App. 3d 1045, 1048. Plaintiffs FAC is deemed filed as of the date of this ruling.

Ruling

34-2023-00337868-CU-PO-GDS

Aug 27, 2024 |Unlimited Civil (Other Personal Injury/Propert...) |34-2023-00337868-CU-PO-GDS

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 08/28/2024 Hearing on Motion for Judgment on the Pleadings in Department 54Tentative RulingDefendants Von Housen Management, Inc., and George Grinzewitsch, Jr., Inc. dba Mercedes-Benz of El Dorado Hills’ (collectively “Defendants”) demurrer to Plaintiffs Louis Accaria, Jr.,Emily Trowe, and Kali Mullock, a minor, by and through her Guardian ad Litem MichelleGregory’s (collectively “Plaintiffs”) nuisance and trespass causes of action is ruled upon asfollows.Factual AllegationsThis action arises out of a car fire, which spread to Plaintiffs’ home.On October 4, 2021, Plaintiffs took their 2017 Mercedes-Benz GLC43 SUV (the “Vehicle”) toMercedes-Benz of El Dorado Hills (“Mercedes Benz”) for routine service, including an oilchange. (Compl. ¶ 14.) After the service appointment was complete, Emily Trowe paid theservice invoice and took possession of the Vehicle shortly after 4:00 p.m. (Compl. ¶ 15.) EmilyTrowe and Kali Mullock then drove the Vehicle back to their home with Louise Accaria, Jr.following behind them in a separate vehicle. (Ibid.) Plaintiffs’ home was approximately fivemiles from Mercedes Benz.Unbeknownst to Plaintiffs at the time, a Mercedes Benz service mechanic failed to replace theVehicle’s oil cap after it was removed during the service. The oil cap was not on the Vehiclewhen Plaintiffs took possession and drove home. (Compl. ¶ 15.)Once home, Emily Trowe parked the Vehicle in the garage and she and Kali Mullock exited theVehicle. Louise Accaria, Jr. then pulled up to the family’s home and exited his vehicle. Shortlyafter arriving home, Emily Trowe began telling Louise Accaria, Jr. that she believed somethingwas wrong with the Vehicle. (Compl. ¶ 16.) Suddenly, and without warning, the Vehicle’sengine compartment caught fire, which quickly spread. (Ibid.) While speaking with the 911dispatcher, Plaintiffs received a text message from Mercedes Benz directing them to return theVehicle due to a possible oil cap missing following service. (Ibid.) Louis Accaria, Jr. notifiedMercedes Benz that the Vehicle’s engine compartment was on fire and sent them a photographvia text message. (Ibid.)As the fire in the garage grew, smoke filled Plaintiff’s home. The fire and smoke causedsignificant property damages as a result. (Compl. ¶ 16.) The El Dorado Hills Fire Departmentconcluded that the fire originated in the Vehicle’s engine compartment, the first fuel ignited wasengine oil, the ignition source was the engine, and the act that allowed the fuel and ignitionsource to come together was oil leaking from the engine. (Compl. ¶ 17.)Plaintiffs filed the Complaint on April 12, 2023. It alleges causes of action for (1) negligence, (2) Page 1 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 08/28/2024 Hearing on Motion for Judgment on the Pleadings in Department 54nuisance, and (3) trespass. All three causes of action are premised upon allegations thatDefendants negligently and carelessly performed automotive services by failing to replace theVehicle’s oil cap at the conclusion of service and failing to properly inspect the vehicle beforereturning it to Plaintiffs. (Compl. ¶¶ 20, 28, 32.)Defendants filed an Answer to the Complaint. They now move for judgment on the pleadings asto Plaintiffs’ nuisance and trespass causes of action.Legal StandardA defendant may move for judgment on the pleadings if the operative complaint doesnot state facts sufficient to constitute a cause of action against that defendant. (SeeCode Civ. Proc., § 438, subds.(b)(1), (c)(1)(B)(ii).) Except as provided by statute, amotion for judgment on the pleadings is analyzed like a general demurrer. (Cloud v.Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) Accordingly, the grounds fora motion for judgment on the pleadings must appear on the face of the challengedpleading or be based on facts which the court may judicially notice.DiscussionDefendants move for judgment on the pleadings as to Plaintiffs’ second cause of action fornuisance and third cause of action for trespass, arguing “the facts support [P]laintiffs’ first causeof action for negligence but cannot state a claim for nuisance or trespass.” (Mot. 3:3-8.)NuisanceDefendants contend that Plaintiffs’ “nuisance cause of action is a clone of the negligence causeof action[,]” and “where negligence and nuisance causes of action rely on the same facts aboutlack of due care, the nuisance claim is a negligence claim.” (Mot. 5:15-23 [footnote omitted].)Defendants continue: “[the] complaint thus alleges only one cause of action, and one breach ofduty by defendants.” (Id. at 6:7-8.)Plaintiffs oppose the motion, rejoining that “[t]he torts of nuisance and negligence frequentlycoexist[,]” but “it does not necessarily follow that a cause of action for nuisance is notactionable.” (Opp’n 5:22-6:1.)“Where negligence and nuisance claims rely on the same facts regarding lack of due care, thenuisance claim is a negligence claim." (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007)154 Cal.App.4th 1337, 1349.) In such a case, where the nuisance and negligence claims rely onthe same facts, a challenge to the pleadings is proper because the nuisance claim has “noindependent vitality” and simply restates the “negligence claim ‘using a different label.’ Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 08/28/2024 Hearing on Motion for Judgment on the Pleadings in Department 54[Citation.]” (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 543; see id. at p. 542 [“Given‘the broad definition of nuisance,’ the independent viability of a nuisance cause of action‘depends on the facts of each case.’ (Citation.)”].)Here, Defendants are correct that as currently pled, the second cause of action for nuisance relieson the same underlying facts as the first cause of action for negligence. Therefore, the motion iswell-taken.Plaintiffs do not dispute that their negligence and nuisance causes of action rely on the samefacts. Rather, they simply argue that they have alleged the requisite elements of a nuisanceclaim.For the stated reasons, Defendants’ motion is granted as to Plaintiffs’ second cause of action fornuisance.TrespassDefendants argue that Plaintiff’s third cause of action for trespass fails because trespass requiresan unauthorized entry onto their property, and the Vehicle “caught fire in plaintiff’s garage, afterplaintiff drove the vehicle there.” (Mot. 7:20-27.) Defendants contend “the disputed issue iswhether plaintiff has pled a ‘lack of permission for the entry or acts in excess of permission.’[Citation.]” (Reply 4:10-12.)Plaintiffs respond that they “properly plead their trespass cause of action[,]” as case law supportsthat “a fire caused by negligence can result in a trespass.” (Opp’n 9:1-3.) Plaintiffs further arguethat it is absurd to argue that they authorized the fire and subsequent damage by driving theVehicle in the garage. (Opp’n 8:5-10.) “Trespass is an unlawful interference with possession of property.” The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm.(Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–262.)///“ ‘[T]respass may be committed by consequential and indirect injury as well as by directand forcible injury.’ [Citation.]” (Elton v. Anheuser-Busch Beverage Group (1996) 50Cal.App.4th 1301, 1306.) “The interference need not take the form of a personal entryonto the property by the wrongdoer. Instead, it ‘may be accomplished by the casting of Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 08/28/2024 Hearing on Motion for Judgment on the Pleadings in Department 54substances or objects upon the plaintiff's property from without its boundaries.’[Citation.]” (Ibid.)“ ‘[A]n entry may [also] be accomplished by setting in motion an agency which, when put inoperation, extends its energy to the plaintiff’s premises to its material injury.’ [Citation.]” (Elton,supra, at p. 1036.) “Thus, intangible intrusions such as noise or vibrations may constitute atrespass if they cause actual physical damage [citations] as opposed to merely a diminution inmarket value [citation].” (Id. at p. 1307.) Accordingly the Court of Appeal in Elton followed outof state authority in holding that “a fire can constitute a trespassory invasion.” (Ibid.) “Whennegligently inflicted with resulting actual damage, [fire] may constitute a trespass.” (Ibid.)Plaintiffs allege in the Complaint, in pertinent part, as follows: 31. At all times herein mentioned, plaintiffs were the owners, tenants, and/or lawful occupants of property damaged by the fire herein mentioned. 32. Defendants, and each of them, by their acts and/or omissions set forth above, directly and legally caused the fire to ignite, spread, cause harm, damage and injury to plaintiffs, resulting in a trespass upon these plaintiffs’ property interests, 33. Plaintiffs did not grant permission for defendants to wrongfully act in a manner so as to cause the fire, and thereby produce a fire which spread and wrongfully entered upon the property, resulting in the harm, injury, and/or damage alleged above. 34. That as a direct and proximate result thereof, plaintiffs suffered and will continue to suffer damages as set forth above, in an amount according to proof at trial.(Compl. ¶¶ 31-34.)The Court finds that Plaintiffs’ allegations sufficiently state a cause of action for trespass basedupon the referenced authorities. The authorities cited by Defendants to support their argumentthat Plaintiffs cannot pursue a cause of action for trespass because they drove the Vehicle intotheir garage are inapposite. (See, e.g., County of Santa Clara v. Atlantic Richfield Co. (2006) 137Cal.App.4th 292, 315 [finding trespass cause of action could not be maintained against a leadmanufacturer when the plaintiffs consented to the placement of lead on their properties]; ibid.[“Their alleged lack of knowledge at that time of lead’s dangerous propensities does not vitiatetheir consent to the placement of the lead on their properties, though it may make that consent Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 08/28/2024 Hearing on Motion for Judgment on the Pleadings in Department 54uninformed.”].)Therefore, Defendants’ motion is denied as to Plaintiffs third cause of action for trespass.ConclusionFor the stated reasons, Defendants’ motion for judgment on the pleadings is granted as to thenuisance cause of action and denied as to the trespass cause of action.Where granted, the motion is granted with leave to amend as this is the first challenge to thepleadings. Plaintiffs may file a First Amended Complaint no later than September 9, 2024, toaddress the deficiencies raised in the demurrer.Although not required by statute or court rule, Plaintiffs are directed to present the clerk with acopy of this ruling at the time they file the First Amended Complaint to facilitate its filing.This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc., § 1019.5; CRC 3.1312.)NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely for Page 5 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2023-00337868-CU-PO-GDS: Louis Accaria vs. Von Housen Management Inc, a California corporation 08/28/2024 Hearing on Motion for Judgment on the Pleadings in Department 54non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://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 besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 6 of 6

Ruling

ROBERT MENDOZA VS KATHERINE MARIE VIELE

Aug 27, 2024 |23NWCV00382

Case Number: 23NWCV00382 Hearing Date: August 27, 2024 Dept: C Robert Mendoza vs Katherine Marie Viele Case No.: 23NWCV00382 Hearing Date: August 27, 2024 @ 10:30 a.m. #8 Tentative Ruling Defendant Katherine Marie Vieles Motion for Terminating Sanctions is DENIED. Monetary sanctions are imposed against Plaintiffs Counsel in the amount of $2,260.00, payable in 60 days. Defendant to give notice. Background On February 3, 2023, Plaintiff Robert Mendoza ("Plaintiff") filed a complaint against Defendant Katherine Marie Viele ("Defendant") alleging personal injuries and damages from an automobile accident that occurred on February 6, 2021. Defendant filed and served an answer on May 26, 2023. On February 15, 2024, the Court granted Defendants unopposed motion to compel responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents, Set One, by March 1, 2024. The Court also ordered Plaintiff to pay sanctions in the amount of $1,230.00 to Defendant and her attorneys of record. The instant motion was filed on April 25, 2024. As of that date, no discovery had been produced and no sanctions had been paid. Legal Standard Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process. Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (g).) A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment. (Code Civ. Proc., § 2023.030(d).) A violation of a discovery order is sufficient for the imposition of terminating sanctions. (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating sanctions are appropriate when a party persists in disobeying the court's orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.) The court should consider the totality of the circ*mstances, including conduct of the party to determine if the actions were willful, the detriment to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction. (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.) A terminating sanction is a "drastic measure which should be employed with caution." (Deyo, 84 Cal.App.3d at 793.) "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery." (Deyo, 84 Cal.App.3d at 793.) "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations." (Ibid.) Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information. (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].) Discussion In an untimely opposition filed on August 23, 2024, Plaintiffs counsel asserts that his office associated an outside attorney to handle approximately 10 different cases at the end of 2023 and early 2024. (Montgomery Decl., ¶2.) Plaintiffs counsel mistakenly thought this matter was one of those 10 cases, and he did not realize his error until Defendant applied ex parte to advance the hearing date for the instant motion. (Ibid.) On August 6, 2024, discovery responses and a check for monetary sanctions were provided to Defendants counsel. (Id., ¶¶2-3.) Based thereon, the Court determines that Plaintiffs failure to comply with the Courts February 15, 2024 discovery order and order imposing sanctions was due to the mistake and excusable neglect of Plaintiffs counsel, not Plaintiff himself. Plaintiffs counsel represents that discovery has been provided and monetary sanctions paid. Thus, terminating sanctions are no longer warranted. Monetary Sanctions Sanctions may be imposed for misuse of discovery process. (Code Civ. Proc., § 2023.030, subd. (a). ) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Here, Defendants counsel asserts that he has incurred attorney fees and costs in the amount of $760.00 for preparing the instant motion. Defendant requests an additional monetary sanction in the amount of $1,500.00 for violation of a lawful court order without good cause of substantial justification. Additional monetary sanctions are appropriate. Defendant applied ex parte to advance the hearing date for the instant motion on May 23, 2024. That Plaintiffs counsel did not realize his error until that date does not excuse the additional 2 1⁄2 month delay in providing the discovery at issue and paying sanctions. Nor does it excuse the untimely opposition filed on August 23, 2023. Accordingly, monetary sanctions are imposed against Plaintiffs Counsel in the amount of $2,260.00, payable in 60 days.

Ruling

MYNOR VILLEDA, AN INDIVIDUAL VS UNIVERSITY OF SOUTHERN CALIFORNIA, A CALIFORNIA NONPROFIT CORPORATION

Aug 27, 2024 |21STCV33802

Case Number: 21STCV33802 Hearing Date: August 27, 2024 Dept: B SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT MYNOR VILLEDA, Plaintiff, vs. UNIVERSITY OF SOUTHERN CALIFORNIA and DOES 1 through 10, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No.: 21STCV33802 [TENTATIVE] ORDER RE: MOTION TO BE RELIEVED AS COUNSEL Dept. B 1:30 p.m. August 27, 2024 1. Background On September 14, 2021, Plaintiff Mynor Villeda (Plaintiff) filed a Complaint against Defendant University of Southern California (Defendant) and DOES 1 through 10, alleging causes of action for: (1) Premises Liability and (2) General Negligence. John Jahrmarkt, Esq. (Counsel), at this time, moves to be relieved as counsel for Plaintiff Mynor Villeda. The motion is unopposed. 2. Motion to be Relieved as Counsel A. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284(2).) 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.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, Rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, Rule 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, Rule 3.1362(e)). The proposed order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. (Cal. Rules of Court, Rule 3.1362(e).) Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, Rule 3.1362(d).) The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, Rule 3.1362(e).) A motion to withdraw will not be granted where withdrawal would prejudice the client. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) B. Discussion Counsel contends there has been a complete and irreparable breakdown of the attorney-client relationship where it is no longer possible to continue with representation. Counsel further declares the moving papers have been served on Plaintiff via mail and email at her last known address confirmed by text message and email correspondence. Moreover, Plaintiff has filed a substitution of attorney. Additionally, the proposed order includes all the hearings scheduled in this action, i.e., the Order to Show Cause Re: Dismissal Following Settlement. (Cal. Rules of Court, rule 3.1362(e).) However, Counsel has not provided proof of service indicating all parties who have appeared in this action have been served with the moving papers. (Cal. Rules of Court, rule 3.1362(d).) As such, the motion is deficient at this time. Therefore, the motion is DENIED without prejudice. Counsel is ordered to give notice.

Ruling

Juan Treminio, et al. vs Kyle Guillory

Aug 29, 2024 |21CV-00689

21CV-00689 Juan Treminio, et al. v. Kyle GuilloryOrder to Show Cause re DismissalAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance. Appearto address the failure to appear for prior status hearing and to show cause why thismatter should not be dismissed without prejudice. Absent an appearance, this matterwill be Dismissed Without Prejudice.

Ruling

Chelsea Sexson vs. CFM Equipment Distributors, Inc.

Aug 26, 2024 |Unlimited Civil (Civil Rights/Discrimination) |34-2022-00331692-CU-CR-GDS

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00331692-CU-CR-GDS: Chelsea Sexson vs. CFM Equipment Distributors, Inc. 08/27/2024 Hearing on Motion to Compel Further Discovery Responses to Demand for Inspection-Set Three in Department 54Tentative RulingPlaintiff in pro per Chelsea Sexson’s (“Plaintiff”) motion to compel defendant CFMEquipment Distributors, Inc. (“Defendant”) to serve verified further responses toPlaintiff’s Demand for Inspection, Set Three, request number 4, is DENIED.Plaintiff filed this employment action on December 21, 2022. The operative SecondAmended Complaint (“2AC”) was filed on December 15, 2023, and alleges 41 counts.This action is primarily a wage and hour action, but Plaintiff also alleges numerous otherclaims, including, but not limited to, disability discrimination, defamation, breach ofcontract, a CFRA violation, and intentional infliction of emotional distress.Plaintiff served her Demand for Inspection, Set Three, on March 4, 2024.Request number 4 asks for “Profit and Loss statements of Defendant for each year ofPlaintiffs [sic] employment relationship with Defendant.”Defendant served responses on April 2, 2024, and supplemental responses on April 16,2024. Defendant’s supplemental response states: “Objection. This request seeks documents which are irrelevant to the subject matter of this action and are not reasonably calculated to lead to the discovery of admissible evidence. To the extent that the documents requested go to issues of potential punitive damages, this request is premature and barred pursuant to Civil Code § 3295(d).”Defendant notes in its opposition that it’s reference to subdivision (d) was atypographical error and the reference should be to subdivision (c).Plaintiff contends that Defendant’s response is incomplete and evasive. Plaintiff’sarguments for compelling a further response appear only in her separate statement.Plaintiff cites to the broad scope of relevance in discovery and the liberal policiesunderlying discovery procedures and argues the request seeks relevant informationbecause she was employed as a purchasing manager with Defendant and had thepower to “directly impact” Defendant’s gross profits. Thus, she concludes Defendant’sprofitability goes directly towards the issue of whether she was wrongfully terminated.Defendant opposes on the ground that Civil Code sections 3294 and 3295 governbecause Plaintiff’s 2AC seeks punitive damages.Civil Code section 3295(c) provides: “No pretrial discovery by the plaintiff shall be Page 1 of 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00331692-CU-CR-GDS: Chelsea Sexson vs. CFM Equipment Distributors, Inc. 08/27/2024 Hearing on Motion to Compel Further Discovery Responses to Demand for Inspection-Set Three in Department 54permitted with respect to the evidence [of (2) the financial condition of the defendant]unless the court enters an order permitting such discovery pursuant to this subdivision.... Upon motion by the plaintiff supported by appropriate affidavits and after ahearing, if the court deems a hearing to be necessary, the court may at any time enteran order permitting the discovery otherwise prohibited by this subdivision if the courtfinds, on the basis of the supporting and opposing affidavits presented, that theplaintiff has established that there is a substantial probability that the plaintiff willprevail on the claim pursuant to Section 3294.” (emphasis added.)Defendant contends the request seeks the exact kind of “financial condition” discoverybarred by section 3295(c) without a court order. In the alternative, Defendant alsoargues the information sought is irrelevant because Defendant’s profitability has nothingto do with whether Defendant is liable for any employment-related offense as alleged inthe 2AC.The Court agrees that the request seeks discovery regarding Defendant’s financialcondition, which is governed by section 3295(c), and therefore not permissible without acourt order. Indeed, “[s]ection 3295 was enacted ... to protect defendants from thepremature disclosure of their financial condition when punitive damages are sought.”(Medo v. Superior Court (1988) 205 Cal.App.3d 64, 67.) Even if section 3295(c) did notgovern, the Court is not persuaded the information sought is relevant to Plaintiff’sclaims. Plaintiff’s argument that she influenced Defendant’s profits as a PurchasingManager and, therefore, if Defendant was profitable, the information would tend to showshe was wrongfully terminated, is tenuous and not persuasive.Plaintiff’s request for monetary sanctions is DENIED given the outcome of this motion.Further, a plaintiff in pro per is not entitled to recover attorney’s fees for their own timespent on litigation. (See Witte v. Kaufman (2006) 141 Cal.App.4th 1201; Trope v. Katz(1995) 11 Cal.4th 274, 292.)Defendant’s request for monetary sanctions against Plaintiff is DENIED as Defendantfails to cite to any legal authority in support of the request.The minute order is effective immediately. No formal order pursuant to California Rulesof Court, Rule 3.1312, or further notice is required.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must complywith the following procedure: Page 2 of 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00331692-CU-CR-GDS: Chelsea Sexson vs. CFM Equipment Distributors, Inc. 08/27/2024 Hearing on Motion to Compel Further Discovery Responses to Demand for Inspection-Set Three in Department 54To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral ArgumentRequest Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At thetime of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves asthe party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oralargument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing partymay appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made,the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by videoconference via the Zoom video/audio conference platform with notice to the Court and all other parties inaccordance with Code of Civil Procedure 367.75. Although remote participation is not required, the Court willpresume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link ishttps://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALLAPPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporter services at their ownexpense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements forrequesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the SacramentoSuperior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Temporeavailable at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.PdfA Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party,the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s ApprovedOfficial Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests acourt reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and itmust be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than10 days away. Once approved, the clerk will be forward the form to the Court Reporter’s Office and an officialreporter will be provided. Page 3 of 3

Ruling

Seleena Bega vs Jose Corona, et al.

Aug 29, 2024 |23CV-02260

23CV-02260 Seleena Bega v. Jose Corona, et al.Order to Show Cause re DismissalAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance. Appearto address the failure to appear at the June 24, 2024, Case Management Conference andthe July 26, 2024, Order to Show Cause re Sanctions hearing. Absent an appearance,this matter will be Dismissed Without Prejudice.

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