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ELECTRONICALLY FILED Faulkner County Circuit Court Nancy Eastham, Circuit Clerk 2024-Jul-12 14:56:59 23CV-24-1338 C20D03 : 25 Pages UNIFORM COVER PAGE [To be used when required by Administrative Order No. 2 (g)*]COURT: CIRCUIT COURT OF FAULKNER COUNTY Docket/Case Number:CASE NAME:PLAINTIFF/PETITIONER: AMERICAN EXPRESS NATIONAL BANKDEFENDANT/RESPONDENT: LEANNA GRADYTITLE OF PLEADING ORDOCUMENT BEING FILED(Ifa multi-part file,the designation “part _ of ” (example, part 1 of 2)): AFFIDAVIT*Administrative Order No 2. (g) File Mark. (1) There shall be a two inch (2") top margin on the first page of each document submitted forfiling to accommodate the court’s file mark. If the pleading or document must be filed in multi-parts because of size orfor other reasons, the first page of each part must include the file name and file mark and shall clearly indicate the partnumber and number of parts (example, part 1 of 2). (2) Ifa document is such that the first page cannot be drafted to provide sufficient space to satisfy the file-mark requirement, the document must include the uniform cover page developed by the Administrative Office of theCourts and found under Forms and Publications at www.arcourts.gov.LEANNA GRADY AKA LEANNA M GRADY Account ending in: 1000 AFFIDAVIT OF PLAINTIFF I, Mario D. Morales-Arias, declare and state as follows: 1 Iam an Assistant Custodian of Records for AMERICAN EXPRESS NATIONAL BANK!("Plaintiff"), a national bank organized under the laws of the United States, ("American Express" hereinafter),with its headquarters located at 115 W. Towne Ridge Parkway, Sandy, UT 84070. 2 In my capacity as Assistant Custodian of Records for American Express, J am familiar with theongoing credit card business operations and practices of American Express, particularly with respect to itsrecordkeeping computer systems, credit card agreements and billing for various types of accounts issued byAmerican Express. J have access to the business records relating to credit card accounts issued by AmericanExpress, including, in particular, the records of cardmember accounts and the applicable card agreements. Ihave personal knowledge of American Express’ regular practices and procedures with respect to: (a) thetransmittal of credit card account agreements, notices, billing statements, and other documents; and (b) qualityassurance controls utilized to ensure that such transmittals are properly made. I also have access to and amgenerally familiar with the cardmember account records created and maintained by American Express.Except where based on my review of records and documents regularly maintained in the ordinary course ofbusiness, all of the matters set forth herein are within my personal knowledge and, if called as a witness, Icould competently testify thereto. 3 The billing statements and other documents referred to herein were created at or near either thetime of the transactions or the time the original statements were made and have been kept by AmericanExpress in the ordinary course of business. In my experience, the systems used by American Express tocreate and maintain data for and to produce billing statements and other documents are reliable and kept in agood state of repair, and American Express’ procedures for inserting transaction and other data into thesystems have built-in safeguards to ensure accuracy and identify errors. Duplicate statements can be obtainedonly by authorized American Express personnel or authorized agents pursuant to proper procedures, whichmust be followed in order to obtain the statements. The other records referred to herein were created and keptin the ordinary course of business by American Express and were created at or near the time of the occurrenceof the matters set forth by those records and/or were created based upon information transmitted by a personwith knowledge of the matters set forth in those records. It is the regular business practice of AmericanExpress to make and keep said records. The statements contained in this affidavit are made based on mypersonal knowledge of the business records practices of American Express. 4. All American Express credit card accounts are governed by a written agreement (the“Cardmember Agreement”) setting forth the terms and conditions of the account. When an American Expressaccount is opened, the Cardmember Agreement is provided to the cardmember. The Cardmember Agreementprovides that use of the card constitutes acceptance of the agreement. 5. All American Express Cardmember Agreements expressly provide that American Express maychange the terms of the Cardmember Agreement from time to time. American Express advises currentcardholders of changes through change-in-terms notices, which are either mailed to American Express1 On April 1, 2018 American Express Centurion Bank changed its name to American Express National Bank andAmerican Express Bank FSB, merged with American Express National Bank with American Express National Bank asthe surviving entity after the merger. See, https://www.occ.treas.gov/topics/licensing/interpretations-and-actions/201 8/interpretations-and-actions-jan-2018.html. See also, 12 U.S.C. § 35; 12 CFR 5.24 and 12 U.S.C. § 1828 etseq.LEANNA GRADY AKA LEANNA M GRADY Account ending in: 1000cardmembers in separate mailings or included with or printed on the cardmembers’ monthly billingstatements. 6 American Express maintains computerized records of the amounts due and owing to AmericanExpress for any transactions that occur when an individual uses an American Express credit card. Thecomputerized records reflect all debits and credits in connection with the use of an American Express creditcard. American Express sends or otherwise makes available monthly billing statements to cardmembers whocarry a balance or are otherwise required to receive a monthly statement. 7 T have personally reviewed American Express’ records concerning defendant LEANNAGRADY AKA LEANNA M GRADY (“Defendant”). Those records reflect that Defendant opened anAmerican Express credit card account, the current account number ending in 1000 (the “Account”) in08/2016. Consistent with American Express’ standard business practices, American Express’ records reflectthat it mailed Defendant’s credit card, together with a copy of Defendant’s Cardmember Agreement, toDefendant when American Express opened Defendant’s Account. Copies of each of these CardmemberAgreements were transmitted to Defendant as they were periodically revised or updated. A true and correctcopy of the Cardmember Agreement in effect at the time of cancellation of the Account is annexed hereto asExhibit "A". 8 American Express’ records further reflect that Defendant used the Account to pay for variousgoods and services and/or obtain cash advances. Consistent with American Express’ standard businesspractices, American Express’ records reflect that it transmitted monthly billing statements to Defendant.There is no record of Defendant ever asserting a valid unresolved objection to the balance shown as due andowing on the monthly statements provided to Defendant. 9 Pursuant to American Express’ records, under the terms of the Cardmember Agreement,Defendant defaulted in making the payments due on the Account. American Express’ records reflect thatAmerican Express closed Defendant’s Account. After giving Defendant credit for all payments made, if any,the amount justly due and owing as of 06/07/24 is $3,509.75, exclusive of court costs and attorneys’ fees.True and correct copies of the monthly Account Statements for the defendant’s Account for the period(s)01/16/24 to 02/16/24 are annexed hereto as Exhibit B. 10. Defendant’s Account has not been sold or assigned by American Express, the original creditorof the account. 11. The information set forth herein is true and correct to the best of the undersigned’s knowledge,information and belief and, if called as a witness, I could competently testify thereto. ZAAR GN_AENB_001 Page 2LEANNA GRADY AKA LEANNA M GRADY Account ending in: 1000 12. Upon information and belief, the Defendant is not now, nor has been within 30 days hereof, inthe military service of the United States as defined in the Servicemembers Civil Relief Act as amended nor aninfant, incompetent, under mental defect or infirm. I declare under the penalty of perjury under the laws of the forum state that the foregoing is true andcorrect to the best of my knowledge, information and belief. Dated: ol [4 By: Name: Mario D. Morales-Arias Title: Assistant Custodian of Records, STATE OF ARIZONA COUNTY OF MARICOPA Subscribed and sworn (or affirmed) before me this \ a day of ( )\ )" Q 2024 (Seal) V © Notary U STEPHANIE RONDBERG Notary Public - Arizona Maricopa County Cortmission # 661792 My Comm. Expires Feb 16, 2028 ZAAR GN_AENB_001 Page 3EXHIBIT A ICRCardmember Agreement: Part 1 of 2 As of: 08/21/2016Blue Cash Everyday®Issuer: American ExpressCenturion Bank Cardmember Name: LEANNA GRADYCredit Limit: $1,000 (Cash Advance Limit: $200) Accoun{EE000Rates and Fees Tableneg) aedAnnual PercentageRate 0.00% introductory APR through your billing periodthat ends in August, 2017.(APR) for Purchases After that, your APR will be 23.24%. This APRwill vary with the market based on the Prime Rate.APR for Balance Transfers |0.00% introductory APR through your billing periodthat ends in September, 2017 for transactions requested by September20, 2016. After that, your APR for those transactions and any other balance transfer requests that we may acceptwill be 23.24%,| This APR will vary with the market based on the Prime Rate.APR for Cash Advances 25.49% This APR will vary with the market based on the Prime Rate.Penalty APR and When it [29.49%Applies This APR will vary with the market based on the Prime Rate. This APR may be appliedto your account if: 1) you make one or more late payments;or 2) your paymentis returned by your bank. We may also consider your creditworthiness in determining whether or not to applythe penalty APR to your Account. How Long Will the Penalty APR Apply? If the penalty APR is ap plied,it will ap plyfor at least 6 months. We will review your Account every 6 months after the p enaltyAPR is applied. The penalty APR will continue to ap plyuntil you have made timely paymentswith| no returned payments during the 6 months being reviewed.Paying Interest Your due date is at least 25 days after the close of each billing period.We will not charge you interest on purchasesif you pay your entire balance by the due date each month. We will begin charging intereston cash advances and balance transfers on the transaction date]For Credit Card Tips from To learn more about factors to consider when applying for or using a creditcard, visitthe Consumer Financial the website of the Consumer Financial Protection Bureau atProtection Bureau http:/h merfinance. v/learnmorAnnual Membership Fee NoneTransaction Fees* Balance Transfer Either $5 or 3% of the amount of each transfer, whichever is greater. For transactions requested by September20, 2016 the fee will be $5 or 3% whichever is greater (maximum fee: $750).* Cash Advance Either $5 or 3% of the amount of each cash advance, whichever is greater.* Foreign Transaction 2.7% of each transaction after conversionto US dollars.Penalty Fees* Late Payment Up to $37.* ReturnedPayment Up to $37.° Overlimit None How we calculateinterest: We use the Average Daily Balance method (including new transactions). See the How we calculate interest section in Part 2. Loss of Introductory APR: We may end your Introductory APR and applythe penalty APR if you do not pay the Minimum Payment Due within 60 days after its Payment Due Date. Your Billing Rights: See Part2 for information on how to exercise your rights to disp ute transactions.MEE €M1A£UA0T0000004997071 997110 Page 1 of 4How Rates and Fees WorkCalculating The Annual Percentage Rate (APR) for variable rates is determined by adding an amount (margin) toAPRs and DPRs the Prime Rate (see Determining the Prime Ratein Part 2). The Daily Periodic Rate (DPR) is 1/365th off the APR, rounded to one ten-thousandth of a percentagep oint. Rate Description Prime + Margin APR DPR Introductory Purchase nla 0.00% 0.0000% Purchase Prime + 19.74% 23.24% 0.0637% Introductory Balance Transfer nla 0.00% 0.0000% Balance Transfer Prime + 19.74% 23.24% 0.0637% Cash Advance Prime + 21.99% 25.49% 0.0698% Penalty Prime + 25.99% 29.49% 0.0808%Penalty APR for new The penalty APR may ap plyto new transactions if: If the penaltyAPR appliesto a balance, it willtransactions * you do not payat least the Minimum Payment ap plyto charges added to that balance 15 or Due by the Payment Due Date on one or more days after we send you notice. more occasions; or We will review your Account every 6 months after| * your paymentis returned by your bank. the penaltyAPRis applied. The penaltyAPR will continue to ap plyuntil you have made timely paymentswith no returnedp aymentsduring the 6 We may also consider your creditworthiness in months being reviewed. determining whether or not to applythe penalty APR to your Account.We add fees to a purchasebalance, unless we tell you otherwise.Annual Membership This fee is on the Rates and Fees Table on page 1 of Part1.Late Payment Up to $37. If we do not receive the Minimum Payment Due by its Payment Due Date, the fee is $27. If the fee is $37. However, the late fee will not exceed this hap p ensagain within the next 6 billing periods, the Minimum Payment Due. Paying late may also result in a penalty APR. See Penalty APR for new transactions and Penalty APR for existing balances above.Returned Payment. Up to $37. If you make a paymentthat is returned unp aid the first time we presentit to your bank, the fee is $27. If you do this again within the same billing periodor the next6 billing periods, the fee is $37. However, the returned p aymentfee will not exceed the ap plicableMinimum Payment Due. A returned paymentmay also resultin a penalty APR. See Penalty APR for new transactions above.Returned Check $38 if you use your card to cash a check at one of our approvedocations and the check is returned unpaid. We will also charge you the unpaid amount.Overlimit None. See Credit limit and cash advance limitin Part2.AccountRe-opening $25 if your Accountis cancelled, you ask us to re-openit, and we do so.Balance Transfer 3% of the transaction, with a minimum of $5. A different fee may ap plyif stated in a promotionaloffer or at the time of a transaction. This fee is a finance charge. We will add it to the same balance as the balance transfer.Cash Advance 3% of the withdrawal and other services you obtain (including any fee charged by the ATM operator), with a minimum of $5. We will add this fee to the cash advance balance.Foreign Transaction 2.7% of the converted U.S. dollar amount. This fee is a finance charge. See Part 2 for Converting charges made ina foreign currency. Part1, Part 2 and any supplements or amendments make up your Cardmember Agreement.(WEEE C14 £UA0T0000004 997071 997110 Page 2 of 4Supplement to the Cardmember AgreementHow Your RewardProgramWorksBlue Cash Everyday”How you earn reward Youwill earn Blue Cash RewardDollars™ (reward Purchases made through a third-party paymentdollars dollars) for eligible purchaseson your Blue Cash account or on an online marketplace (with Everyday from American Express Card Account. multiple retailers) will not earn a higher The number of rewarddollars you earnis based percentage reward. on a percentage of the dollar amount of your Merchants are typically assigned codes and eligible purchases during the billing period. Eligible categorized based on what they primarily sell. purchases are purchases made on your Card for A purchase will not earn a higher percentage goods and services minus returns and other credits. rewardif the merchant,or a particular merchant Eligible purchases do NOT include: location, uses a code that is not eligible fora fees or interest charges, higher percentage reward. For questions about a balance transfers, higher percentage rewardon a purchase, call the cash advances, number on the back of your Card. purchasesof traveler's checks, A purchase may not earna higher percentage purchasesor reloading of prepaid cards, or rewardif the merchant submits the purchase purchases of any cash equivalents. using a mobile or wireless card reader or if you Youwill earn a rewardof: use a mobile or digital wallet. . 3% on the first $6,000 of eligible purchases in an Please visit americanexpress.com/rewards- annual reward year at supermarkets located in the info for more information about rewards. U.S. (superstores and warehouse clubs are not considered supermarkets). An annual reward year is 12 billing periods in a row beginning with the one that includes January ‘st. If your billing cycle changes, the length of your annual rewardyear will also change ; 2% on eligible purchasesof gasoline at gas stations located in the U.S. (superstores, supermarkets and warehouse clubs that sell gasoline are not considered gas stations); 2% on eligible purchasesat select major department stores located in the U.S. (The current list of select major department stores at which you can earna 2% rewardis available at americanexpress.com/rewards-info); and . 1% on all other eligible purchases.When you will not earn Youwill not earn rewarddollars for eligible Credits for eligible purchases will reduce therewarddollars purchases posted to your Card Account during a number of rewarddollars you earn. billing period if the Minimum Payment Due shown on the statement for that billing period is not paid by the Closing Date of the next billing period.How you can redeem Youcan redeem rewarddollars for statement credits From time to time we may at our option offerrewarddollars in increments of 25 whenever your total available you other ways to redeem rewarddollars, such rewarddollar balance is 25 or more. Reward Dollars as for gift cards or merchandise. The minimum redeemed for a statement credit cannot be used to redemption is 25 rewarddollars. pay your Minimum Payment Due. Youcannot redeem reward dollars if your Card Redemption will be in the form of a statement credit Accountis past due or you have a returned of $1 for every rewarddollar redeemed. The credit payment outstanding. cannot be more than the amount of the outstanding balance on your Card Account.When you will forfeit Youwill forfeit your entire rewarddollar balance if your Card Accountis cancelled for any reason.rewarddollarsEEE CMA EUPSP0000223 Page 3 of 4The Reward Dollars The reward dollars shown on your billing statement If a credit to your Card Account places yourSummary under the heading Reward Dollars Summary is only eligible purchasesin a negative status, the for informational purposes. It does not show the Reward Dollars Summary on your billing actual reward dollars that you may be entitled to statement will show a negative balance. It will receive. For example, a credit for eligible purchases continue to show a negative balance until you posted to your Card Account can lower the reward accumulate eligible purchases exceeding the dollars shown. negative eligible purchases.Other things you should Youwill only receive rewards for eligible purchases We may change the terms of this programat ourknow about this program for personal, family or household use. discretion. If you violate or abuse this program, you may forfeit some or all of your accrued Rewarddollars are redeemable for rewardsas reward dollars. described above, they are not cash.(EE CAEUPSP0000223 Page 4 of 427807Detail of Changes to Your Cardmember AgreementThis notice amends the CardmemberAgreement (the "Agreement") as describedbelow. We have the right to amend the Agreement.Any terms in the Agreement conflicting with this change are replaced fully and completely. Terms not changed by this notice remain infull force and effect. We encourage you to read this notice, share it with AdditionalCardmemberson your account, and file it for futurereference. If you have any questions about this change, please call the number on the back of your Card.Using the Card ffective August 15, 2016, in Part 2 of the CardmemberAgreement, we are amending the Using the card sub-section of the Aboutusing your card section by deletingthe second paragraph (including the bullet points) and the third paragraph in their entirety andreplacing them with the following: and third parties to store your card number and expiration date, so that, for example: You may arrange for certainmerchants © the merchant may charge your account at regular intervals; or * you may make charges using that stored card information. We may (but are not required to) tell these merchants and third parties if your expiration date or card number changes or if your account status is updated including if your account is cancelled. You must notify the merchants and third parties directlyif you want them to stop charging your Account.Converting charges made in a foreigncurrency fective August 15, 2016, in Part 2 of the CardmemberAgreement, we are amending the Converting charges made ina foreign the text in its entirety and replacing it with:currency sub-section in the Other important information section by deleting If you make a charge in a foreign currency, AE Exposure Management Ltd. ("AEEML") will convert it into U.S. dollarson the date we or our agents processit, so that we bill you for the charge in U.S. dollars based upon this conversion. Unless a particular rate is required by law, AEEML will choose a conversion rate that is acceptable to us for that date. The rate AEEML uses is no more than the highest official rate published by a government agency or the highest interbank rate AEEML identifies from customary banking sources on the conversion date or the prior business day. This rate may differ fromrates that are in effect on the date of your charge. We will bill charges converted by establishments (such as airlines) at the rates they use.Closing your AccountEffective September 1, 2016, in Part 2 of the CardmemberAgreement, we are amending the Closing your Account sub-section in theOther important information section by inserting a new paragraph after the first sentence: If an Annual Membership fee applies, we will refund this fee if you notify us that you are voluntarily closing your Account within 30 days of the Closing Date of the billing statement on which that fee appears. For cancellations after this 30 day period, the Annual Membership fee is non-refundable.If an Annual Membership fee applies to your Account, it is shown on page 1 and page 2 of Part 1 of the CardmemberAgreement. If your billing addressis in the Commonwealth of Massachusetts at the time you close your account, this policy will not apply to you.CMAEUDFYI000109 Page 1 of 2This page intentionally left blank.CMAEUDFYI000109 Page 2 of 2Doc 27304FDR 997071 Cardmember Agreement: Part 2 of 2How Your American Express Account WorksIntroductionAbout y ourCardmember This document together withPart 1 make up the When you use the Account (or you sign or keep theAgreement Cardmember Agreement (Agreement) for the Account card), you agree to the terms of the Agreement. identified on page 1 of Part 1. Any supplements or amendments are also part of the Agreement.Changing the Agreement We may change this Agreement, subject to applicable Changes to some terms may require45 days advance law.We may do this in response to the business, legal or notice, and wewilltell you in the notice if you have competitive environment. This writtenAgreementis a final the right to reject a change. We cannot change certain expression of the agreement governing the Account.The terms during the first year of your Cardmembership. written Agreement may not be contradicted by any alleged oral agreement. We cannot increase the interest rate on existing balances exceptin limited circ*mstances.Words we use in We, us, and our mean the issuer shownon page 1 of your Account, such as purchases, cash advances,the Agreement Part 1. You and your mean the person whoapplied for balance transfers, fees and interest charges. A this Account and for whomw eopened the Account. You purchase is a charge for goods or services. A cash and your also mean anyone whoagrees to pay for this advance is a charge to get cash or cash equivalents. Account. Youare the Basic Cardmember. Youmay A balance transfer is a charge to pay an amount you request a card for an Additional Cardmember (see oweon another credit card account. About Additional Cardmembers in Part 2). Topay by a certain date means to send your payment Card means any card or other device that weissue to so that wereceiveit and credit it to your Account by access your Account. A charge is any amount added to that date (see About your payments in Part 2).About using your cardUsing the card You may use the card to make purchases. At our We may (but are not required to) tell these merchants discretion, w emay permit you to make cash advances or if your expiration date or card number changes or balance transfers. You cannot transfer balances fromany if your account is cancelled. You must notify the other account issued by us or our affiliates. merchants directly if you wantthem to stop charging your Account. You may arrange for certain merchantsto store your card numberand expiration date, so that, for example: Keep your card safe and don't let anyone else use it. the merchant may charge your account at regular If your cardis lost or stolen or your Accounts being intervals; or used withoutyour permission, contact us right away. © you may make charges using that stored card You may not use your Account for illegal activities. information.Promise to pay You promise to pay all charges, including: charges you make, even if you do not present your card or sign for the transaction, charges that other people make if you let them use your Account, and ¢ charges that Additional Cardmembers make or permit others to make.Credit limit and cash We assign a Credit Limit to your Account. We may make ‘© your Account balance (including fees and interest) part of your Credit Limit available for cash advances is not more than your Credit Limit, andadvance limit * your cash advance balance (including fees and (CashAdvance Limit). There may also be a limit on the amount you can withdrawfrom ATMs in a given period. interest) is not more than your Cash Advance The Credit Limit and Cash Advance Limit are shownon. Limit. page 1 of Part 1 and on each billing statement. We may approve charges that cause your Account balance to go over your Credit Limit. If wedo this, We may increase or reduce your Credit Limit and Cash wewillnot charge an overlimit fee. If weask you to Advance Limit. We may do so even if you pay on time and promptly pay the amount of your Account balance your Account is not in default. above your Credit Limit, you agree to do so. You agree to manage your Account so that:Declined transactions We may decline to authorizea charge. Reasons wemay and your Accountis not in default. We are not do this include suspected fraud and our assessment of responsiblefor any losses you incur if wedo not your creditworthiness. This may occur even if the charge authorize a charge. And weare not responsibleif any wouldnot cause you to go over your Credit Limit merchant refuses to accept the card.Version 997071 Page 1 of 8About y our pay mentsWhen youmust pay You must pay at least the Minimum Payment Due by at least the Minimum Payment Due in such time and the Payment Due Date. The Minimum Payment Due manner by the Payment Due Date shownon your and Payment Due Date are shownon each billing billing statement statement. Each statement also showsa Closing Date. The Each statement also states the time and manner Closing Date is the last day of the billing period by whichyou must make your payment for it to be covered by the statement. Each Closing Date is about creditedas of the same day it is received. For your 30 days after the previous statements Closing Date. payment to be considered on time, wemust receive Each statement also showsa Next Closing Date.How to make pay ments Make paymentsto us in U.S. dollars with: If wereceiveit after that time, wewillcredit the @ asingle check drawnon a U.S. bank, or payment on the day after wereceiveit. @ a single negotiable instrument clearable through If your payment does not meet the above the U.S. banking system, for example a money requirements, there may be a delay in crediting your order, or Account. This may result in late fees and additional an electronic payment that can be cleared through interest charges (see How Rates and Fees Work on the U.S. banking system. page 2 of Part 1) When making a payment by mal: make a separate payment for each account, If wedecide to accepta payment made in a foreign . mail your payment to the address shownon the currency, wewillchoose a rate to convert your payment coupon on your billing statement, and payment into U.S. dollars, unless the law requires us . writeyour Account number on your check or to use a particular rate. negotiable instrument and include the payment coupon. If weprocessa late payment, a partial payment, or a If your payment meets the above requirements, we payment marked withany restrictive language, that willcredit it to your Account as of the day wereceive willhave no effect on our rights and willnot change it, as long as wereceiveit by the time disclosed in this Agreement. your billing statement.How we apply pay mentsand Your Account may have balances withdifferent ‘After the Minimum Payment Due has been paid,credits interest rates. For example, purchases may have weapply your payments to the balance withthe a lowerinterest rate than cash advances. If your highest interest rate, and then to balances with Account has balances w ithdifferent interest rates, low erinterest rates. here is how we generally apply payments in a billing In most cases, w eapply a credit to the same balance period as the related charge. For example, weapply a credit © We apply your payments, up to the Minimum fora purchase to the purchase balance. We may Payment Due, first to the balance withthe lowest apply payments and credits withinbalances, and interest rate, and then to balances withhigher among balances withthe same interest rate, in any interest rates. order w echoose,About y our Minimum Pay ment DueHow we calculate y our Tocalculate the Minimum Payment Due for eachMinimum Pay mentDue statement, we start withthe higher of: MPE wi it your A ven (1) interest charged on the statement plus 1% of the nd. New Balance (excluding any overlimit amount, int penalty fees and interest on the statement); or (2) $35. Then weadd any penalty fees shownon the statement and 1/24th of any overlimit amount, round to the nearest dollar, and add any amount past due. @)(1) 0 ( is. to Your Minimum Payment Due may also include any additional amount specified in a promotional offer. Your Minimum Payment Due willnot exceed your New Balance. You may pay more than the Minimum Payment Due, up to your New Balance, at any time.Version 997071 Page 2 of 8About interest chargesWhen we charge interest We charge.interest beginning on the date of each transaction. You can avoid paying interest on purchases as described below .However, you cannot avoid paying interest on cash advances and balance transfers. Ifyou pay the New Balance on everystatement by © you pay the New Balance on the next statement by the Payment Due Date, wewillnot charge interest the Payment Due Date, wewillnot charge intereston on purchases fromthe date of your payment to purchases. the Closing Date of the billing period in whichyou If you pay the New Balance on a statement by the made that payment. But wewill charge interest on purchases fromthe beginning of that billing period Payment Due Date and then you pay less than the until the date of your payment. New Balance on the follow ingstatement by the . you pay the New Balance on each of the next two Payment Due Date, wewillnot charge interest on the portion of the purchase balance that w eapply that statements by their Payment Due Dates, wewill payment to. But w ew illcharge interest on unpaid not charge interest on purchaseson the following statement. purchases. Also, w ew illnot charge interest on purchases on a If you do not pay the New Balance on a statement by statement if the Previous Balance on that statement is the Payment Due Date and then: Zero or a credit balance,How we calculate interest We calculate interest for a billing period by first figuring the interest on each balance. Different categories of transactions--such as purchases and cash advances--may have different interest rates. Balances withineach category may also have different interest rates. We use the Average Daily Balance method Daily Balance (including new transactions) to figure interest For each day a DPRis in effect, wefigure the daily charges for each balance. The total interest charged balance by: fora billing period is the sum of the interest charged © taking the beginning balance for the day, adding any new charges, ‘on each balance. subtracting any payments or credits; and Interest making any appropriate adjustments. We add a new charge to a daily balance as of its The interest charged for a balance in a billing period, transaction date. except for variations caused by rounding, equals: * Average Daily Balance (ADB) multiplied by Beginning balance © Daily Periodic Rate (DPR) multiplied by For the first day of a billing period, the beginning number of days the DPR wasin effect. balance is the ending balance for the prior billing period, including unpaid interest. For the rest of the ADB billing period, the beginning balance is the previous Toget the ADB for a balance, weadd up its daily day's daily balance plus an amount of interest equal balances. Then w edivide the result by the number to the previous day's daily balance multiplied by the of days the DPR for that balance wasin effect. If the DPR for that balance. This method of figuring the daily balance is negative, wetreatit as zero. beginning balance results in daily compounding of DPR interest. A DPRis 1/365th of an APR, rounded to one When an interest rate changes, the new DPR may tenthousandth of a percentage point. Your DPRs are come into effect during-not just at the beginning of show nin How Rates and Fees Work on page 2 of the billing period. When this happens, wewillcreate Part 1. anew balance and apply the new DPR to it. Toget the beginning balance on the first day for this new balance, we multiply the previous day's daily balance iP by the old DPR and add the
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BABAK ZARABIAN VS GLENN WILLWERTH, ET AL.
Jul 16, 2024 |20STCV29052
Case Number: 20STCV29052 Hearing Date: July 16, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 16, 2024 Case Name: Zarabian v. Willwerth, et al. Case No.: 20STCV29052 Matter: Demurrers (13x) Moving Party: Defendants (1) Zanna USA, LLC, (2) Zanna USA 5 Holdings, LLC, (3) Zanna USA, Inc., (4) Zanna USA Holdings, LLC, (5) Zanna USA 2SB Holdings, LLC, (6) Zanna USA 3 Holdings, LLC, (7) DKNK Holdings, LLC, (8) Zanna USA 4 Holdings, LLC, (9) SSZS Holdings, LLC, (10) Adelanto Warehousing, LLC, (11) Dan Kohanarieh, (12) Glenn Willwerth, and (13) Saeed Steve Aminpour Responding Party: Plaintiff Babak Zarabian Notice: OK Ruling: The Demurrers of Dan and Saeed are sustained as to the fifth, sixth, seventh, and ninth causes of action, but are otherwise overruled. Leave to amend is denied. The Demurrers of all other Defendants are sustained, without leave to amend. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. This is an action in which Plaintiff Babak Zarabian alleges that the Defendants cut him out of a partnership deal relating to the Zanna family of corporate entities. On December 28, 2023, Plaintiff filed the Fifth Amended Complaint (5AC) for (1) breach of contract, (2) breach of fiduciary duty, (3) accounting, (4) money had and received, (5) negligence, (6) intentional misrepresentation, (7) negligent misrepresentation, (8) unjust enrichment, and (9) promissory estoppel. Defendants (1) Zanna USA, LLC, (2) Zanna USA 5 Holdings, LLC, (3) Zanna USA, Inc., (4) Zanna USA Holdings, LLC, (5) Zanna USA 2SB Holdings, LLC, (6) Zanna USA 3 Holdings, LLC, (7) DKNK Holdings, LLC, (8) Zanna USA 4 Holdings, LLC, (9) SSZS Holdings, LLC, (10) Adelanto Warehousing, LLC, (11) Dan Kohanarieh, (12) Glenn Willwerth, and (13) Saeed Steve Aminpour now each separately demur to the entirety of the 5AC for failure to state sufficient facts. There are thirteen Demurrers at issue. When considering demurrers, courts read the allegations liberally and in context, and treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) It is error to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.) Breach of Contract The essential elements of a breach of contract cause of action are: (1) a contract between the parties; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff from the breach. (Wall Street Network, Ltd. v. New York Times Co.¿(2008) 164 Cal.App.4th 1171, 1178.)¿ Previously the Court ruled: While basic facts have been pleaded, the material terms of the contract have not been sufficiently indicated. What was the ownership stake that Plaintiff was supposedly entitled to or how was it supposed to be calculated? How did the parties share profits and losses? What were Defendants obligations? Nothing is clear other than that Plaintiff invested money and got nothing in return. There is now an allegation of what appears to be a general partnership or joint venture, with a 40/30/30 split in ownership amongst Dan, Saeed, and Babak, respectively; and sharing of control and profits and losses according to ownership, but changing with subsequent capital contributions, with Babak making a $13,000 investment. On the other hand, to the extent there is no allegation of partnership interest by Glenn or any of the entity Defendants, they cannot be liable for breach of any partnership or joint venture agreement, as they were never partners. Simply stating these parties entered into a contract is insufficient. The 5AC and the Opposition do not provide a coherent theory of liability. Thus, the Demurrers of Saeed and Dan are overruled as to the first cause of action. The Demurrers of all other Defendants are sustained as to the first cause of action. Given that there have already been six iterations of the complaint, the Court will not allow any further amendment. Breach of Fiduciary Duty The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.] (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044.) Defendants argue that a fiduciary relationship has not been alleged. This lacks merit with respect to Dan and Saeed because partners or joint venturers have a fiduciary duty to act with the highest good faith towards each other regarding affairs of the partnership or joint venture. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) On the other hand, a sufficient relationship has not been alleged to demonstrate a fiduciary duty for any of the other Defendants. Thus, the ruling on the second cause of action is the same as the ruling on the first cause of action. Accounting An account stated is an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing. [Citation.] To be an account stated, it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing. [Citation.] (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752.) The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due. [Citations.] (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.) Here, the derivative accounting claim is sufficient against alleged partners Dan and Saeed. (See, e.g., Corp. Code § 16405.) A sufficient relationship has not been pleaded for the other Defendants. Thus, again, the ruling is the same here as it is for the first cause of action. Money Had & Received The elements of a cause of action on a common count for money had and received are: 1. That [name of defendant] received money that was intended to be used for the benefit of [name of plaintiff]; [¶] 2. That the money was not used for the benefit of [name of plaintiff]; and [¶] 3. That [name of defendant] has not given the money to [name of plaintiff]. (CACI No. 370, italics added.) A cause of action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff. [¶] This common count is available in a great variety of situations [citations] and lies wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 937.) The Court will allow the subject claim as an alternative theory upon which Plaintiff could recover his $13,000 investment form Dan and Saeed, who are alleged not to have provided an ownership interest or other payout to Plaintiff despite his investment. This claim, however, fails against the other Defendants, who are not properly alleged to have any relationship in procuring a partnership interest for Plaintiff. Thus, again, the ruling here is the same as the ruling for the first cause of action. Negligence Negligence requires duty, breach of duty, proximate causation, and damages. (N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1402.) The negligence claim relates to the allegations that Defendants agreed to manage finances but did an inadequate job by misappropriating funds. This claim inappropriately recasts Plaintiffs contract claim as a tort claim and is, therefore, subject to the economic loss rule. (See, e.g., Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal. 4th 979, 989-90.) Thus, the Demurrer is sustained as to the negligence claim, without leave to amend. Intentional/Negligent Misrepresentation The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638, internal quotation marks omitted.) [F]raud must be pled specifically; general and conclusory allegations do not suffice. [Citations] Thus the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect. This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, internal quotation marks omitted.) Negligent misrepresentation requires misrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage. (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 175.) A negligent misrepresentation claim should also be pleaded with specificity. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14.) These claims lack specificity because there is no indication as to where or how (telephone, in-person, etc.) the subject representations were made. Further, the negligent misrepresentation claim relates to a negligent false promise, which is not an actionable form of deceit. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) The Demurrer is sustained as to the subject claims, without leave to amend. Unjust Enrichment Unjust enrichment is not a cause of action, however, or even a remedy, but rather a general principle, underlying various legal doctrines and remedies .... [Citation.] It is synonymous with restitution. [Citation.] (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793, 131 Cal.Rptr.2d 347.) Unjust enrichment has also been characterized as describing the result of a failure to make restitution.... (Dunkin, supra, 82 Cal.App.4th at p. 198, fn. 15, 98 Cal.Rptr.2d 44, quoting Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448, 9 Cal.Rptr.2d 774 (Lauriedale ).) [¶] There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. (See generally 3 Witkin, Cal. Procedure (4th ed. 1996) Actions, §§ 148150, pp. 218220; 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, §§ 112, 118, pp. 137138, 142144.) Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory (an election referred to at common law as waiving the tort and suing in assumpsit). (McBride v. Boughton (2004) 123 Cal.App.4th 379, 38789 (internal quotes omitted).) There may be a basis to allow unjust enrichment to the extent the parties alleged contract is ineffective and Plaintiff tendered $13,000 to Dan and Saeed, but received nothing in return. Thus, the ruling here is again the same as the ruling for the first cause of action. Promissory Estoppel The Demurrer is sustained without leave to amend as to the promissory estoppel claim because Plaintiff pleads consideration in the form of having tendered $13,000. Indeed, a promissory estoppel claim is aimed solely at allowing recovery in equity where a contractual claim fails for lack of consideration . . . . (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 904.) Summary The Demurrers of Dan and Saeed are sustained as to the fifth, sixth, seventh, and ninth causes of action, but are otherwise overruled. Leave to amend is denied. The Demurrers of all other Defendants are sustained, without leave to amend. Moving parties to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
Jorrin, Christopher D. vs. Volkswagen Group of America, Inc.
Jul 22, 2024 |S-CV-0052455
S-CV-0052455 Jorrin, Christopher D. vs. Volkswagen Group ofAmerica, Inc.** NOTE: telephonic appearances are strongly encouragedNOTE: No party has paid advance jury fees pursuant to CCP § 631.Trial Date & Length: 12/08/25 5 day Jury Trial(Please contact Master Calendar (916) 408-6061 on the business dayprior to the scheduled trial date to find courtroom availability.)Civil Trial Conference: 11/21/25(heard at 8:30 am in Dept. 3)Mandatory Settlement Conference: 11/14/25(heard at 8:30am; report to Jury Services)NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ONTHE THURSDAY PRIOR TO HEARING DATE. REQUESTS FORAPPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMCCLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS ANDPARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TOTHE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.Per Local Rule 20.1.7 D. If a party or attorney has a conflict with future hearingdates set in the Case Management Conference calendar notes, or opposes thefuture dates set in the Case Management Conference calendar notes, the party orattorney must appear at the Case Management Conference. That attorney or partymust provide at least 7 days’ notice to all other parties in the case of their intentto appear at the Case Management Conference. [Effective 1/1/19]07/15/2024 CMCin Dept. 6 at 3 PMCalendar Notes
Ruling
Subway Real Estate, LLC vs. Rosario Sabet, et al.
Jul 10, 2024 |23CV-0202926
SUBWAY REAL ESTATE, LLC VS. ROSARIO SABET, ET AL.Case Number: 23CV-0202926This matter is on calendar for review regarding status of default judgment. At the last hearing, Plaintiff’s counselstated that the matter may settle. No default judgment packet has been submitted and no Notice of Settlement hasbeen filed. The matter is continued to Tuesday, September 3, 2024 at 9:00 a.m. in Department 63 for status ofdefault judgment or settlement. The Court expects that if the matter has not settled that Plaintiff will take thenecessary steps to obtain a default judgment prior to the next hearing. No appearance is necessary on today’scalendar.
Ruling
Graves vs. General Motors, LLC
Jul 10, 2024 |24CV-0203994
GRAVES VS. GENERAL MOTORS, LLCCase Number: 24CV-0203994Tentative Ruling on Motion to Compel Deposition of General Motors, LLC’s Person(s) Most Qualifiedwith Production of Documents: Plaintiff Jessica Graves (“Plaintiff”) moves to compel Defendant GeneralMotors, LLC (“Defendant” or “GM”) to produce a Person Most Qualified (“PMQ”) in various categories alongwith document production at a deposition.Meet and Confer. A motion brought under this section must include a declaration describing efforts to meet andconfer in good faith. Plaintiff has provided evidence that Plaintiff attempted multiple times to meet and confer toresolve the issues. GM was largely nonresponsive. The Court finds that Plaintiff has made sufficient efforts tomeet and confer.Plaintiff’s Evidentiary Objections. Plaintiff makes four objections to the Declaration of Cameron Major filed insupport of GM’s Opposition. Each of these objections is overruled.Merits. The scope of discovery is broad. Any matter that is admissible evidence or appears reasonably calculatedto lead to the discovery of admissible evidence is relevant and subject to discovery. CCP § 2017.010. Any doubtsas to the relevance should generally be resolved in favor of permitting discovery. Colonial Life & Acc. Ins. Co.v. Sup. Ct. (1982) 31 Cal. 3d 785, 790. Boilerplate objections are not proper objections and cannot be usedindiscriminately to evade discovery obligations. Korea Data Sys. Co. v. Sup. Ct. (1997) 51 Cal. App. 4th 1513,1516.This is an action brought under the Song-Beverly Act. Civil Code § 1790 et seq. To succeed on a claim, aplaintiff bears the burden of proving nonconformity of a vehicle that substantially impaired its use, value or safety,the presentation of the vehicle for repair and the failure to repair the nonconformity after a reasonable number ofattempts. Ibrahim v. Ford Motor Co. (1989) 214 Cal. App. 3d 878, 886-87. The Act also provides a right ofaction for a buyer to recover damages and other relief for a breach of the implied warranty of merchantability ifthe vehicle was sold with a known defect. Civil Code § 1794(a). Further, a buyer may be entitled to a civilpenalty of up to two times the actual damages upon a showing that the manufacturer willfully failed to abide byits obligations under Civil Code § 1794(c). Willfulness has been alleged by Plaintiff. If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.CCP § 2025.450(a). Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.CCP § 2025.410(a).Article 2 consists of CCP §§ 2025.210-2025.290. These sections cover procedural issues within the notice anddeposition process such as where, when, how, and under what manner a deposition can be conducted. None referto objections regarding the substance of the information sought. None of the objections made by GM relate tothe procedural aspects of the deposition notice. While GM objects that the deposition was set unilaterally, it doesnot actually state that GM or its counsel was unavailable and GM did not suggest any other date for the deposition.In order to address the substance of the deposition notice, GM should have moved for a protective order insteadof serving objections and not appearing at the deposition. The objections made by GM do not constitute validobjections under CCP § 2025.410(a). Therefore, GM failed to appear for examination and failed to produce forinspection a document. Plaintiffs are thus able to bring this motion pursuant to CCP § 2025.450. A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.CCP § 2025.450(b).Categories 1-4 and 6. Each of these relate specifically to the Subject Vehicle. Categories 1 and 2 seek a PMQ totestify regarding why GM did not repurchase or replace the Subject Vehicle and why the subject vehicle has yetto be repaired or replaced. GM’s reasoning for not repairing or repurchasing the subject vehicle is clearly relevantand discoverable. In Categories 3 and 4, Plaintiff is also seeking a PMQ to testify regarding the nature and extentof all the service history, warranty history, and repairs relating to the Subject Vehicle and communications GMhas with anyone other than counsel regarding the Subject Vehicle. Again, this information is clearly relevant andsubject to discovery. Category 6 seeks a PMQ for any investigation conducted by GM to determine if the SubjectVehicle qualified for repurchase or replacement prior to the date Plaintiffs filed the lawsuit. This is again clearlyrelevant. Plaintiff has alleged a willful violation, thereby making relevant GM’s investigation and reason fordenying a repair or replacement. None of the objections raised by GM are meritorious. All objections to thesecategories are overruled and GM shall produce a PMQ for Categories 1-4 and 6.Category 5. This category seeks a PMQ to answer questions regarding GM’s policies and procedures forcomplying with the lemon law. This category does not seek confidential, proprietary or trade secret information.The steps that GM takes to comply with the Song-Beverly Consumer Warranty Act are discoverable, especiallyin a case such as this, where Plaintiff has alleged that GM was willful in its violation. All objections are overruledand GM shall produce a PMQ for Category 5.Category 7. This category seeks a PMQ to answer questions relating to warranty nonconformities complained ofby Plaintiff or made on behalf by Plaintiff. Warranty nonconformities complained of by Plaintiff are thenonconformities specifically relating to the Subject Vehicle. With this understanding, all objections are overruledand GM shall produce a PMQ for questions relating to warranty nonconformities alleged as to the subject vehicle.Requests 1-2, 4, 7-8, and 10. These requests relate specifically to the Subject Vehicle including the specificrepairs made or attempted and who was involved in these repairs or repair attempts. Good cause exists for eachof these requests and GM shall produce records responsive to these requests.Requests 3, 5, and 9. These requests seek GM’s California lemon law policy and procedure manual(s) used byGM dealers or authorized customer service representatives, GM’s lemon law policy and procedure manual, andwritings provided to GM customer service representatives which refer, reflect or relate to rules, policies orprocedures concerning the issuance of vehicle purchase refunds or replacements pursuant to Song-Beverly. Thisis all relevant information. No showing has been made that this production would be unduly burdensome. Thisis not trade secret information. GM stated that they would be filing a motion for a protective order. No suchmotion has been filed. Good cause exists for each of these requests and GM shall produce records responsive tothese requests.Request 6. This request seeks records of GM’s TSB Index and any TSBs that relate to the warranty conformityalleges in this case. Good cause exists for each of these requests and GM shall produce records responsive tothese requests.Sanctions. Plaintiffs move for monetary sanctions in the amount of $2,625. If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust.CCP § 2025.450(g)(1).The Court does not find that GM acted with substantial justification or that other circ*mstances make theimposition of a sanction unjust. Plaintiffs have presented evidence that seven hours of attorney time wereincurred, and that Plaintiff’s counsel bills at $375.00 per hour. The Court finds monetary sanctions in the amountof $2,625.00 to be reasonable.The motion is GRANTED as outline above. Monetary sanctions are awarded to Plaintiff in the amount of$2,625.00. The parties are ordered to meet and confer regarding a mutually agreeable date for deposition(s). Thedeposition(s) shall take place within thirty (30) days of service of the Notice of Entry of Order. Sanctions shallbe paid within (30) days of service of the Notice of Entry of Order. Plaintiff provided a proposed Order that willbe modified to reflect the Court’s ruling.
Ruling
CALASIA CONSTRUCTION, A CALIFORNIA CORPORATION VS GOOD TIMES GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Jul 11, 2024 |21STCV27420
Case Number: 21STCV27420 Hearing Date: July 11, 2024 Dept: 76 Plaintiff alleges that Defendant failed to make payments for construction work pursuant to a written agreement. Several cross-complaints for indemnity have been filed. Cross-Defendant Keough Electric Corporation moves to compel further responses to form and special interrogatories and requests for production of documents from Cross-Complainant Good Times Group, LLC, and requests sanctions. TENTATIVE RULING Per the Oppositions, on March 15, 2024, Good Times Group provided supplemental written discovery responses. The parties are ordered to meet and confer regarding these supplemental response and to file a joint supplemental separate statement. The hearing on the motion to compel is CONTINUED to August 30, 2024 at 8:30 a.m. Joint supplemental separate statement to be filed by August 20, 2024.
Ruling
CHELSEA SPAGNOLA, ET AL. VS FORD MOTOR COMPANY, ET AL.
Jul 12, 2024 |24STCV07572
Case Number: 24STCV07572 Hearing Date: July 12, 2024 Dept: 73 07/12/2024 Dept. 73 Hon. Rolf Treu, Judge presiding SPAGNOLA, et al. v. FORD MOTOR COMPANY, et al. (24STCV07572) Counsel for Plaintiffs/opposing party: Tionna Carvalho (Strategic Legal Practices) Counsel for Defendants/moving party: Judd Gilefsky (Lewis Brisbois Bisgaard & Smith LLP) Demurrer AND MOTION TO STRIKE PORTIONS OF tHE complaint (filed 04/26/2024) TENTATIVE RULING The Demurrer to the sixth cause of action is OVERRULED. The Motion to Strike is GRANTED, with 20 days leave to amend. BACKGROUND On March 26, 2024, Plaintiffs Chelsea Spagnola and Michael Spagnola filed this action against Defendants Ford Motor Company (Ford) and Autonation Ford Valencia (Autonation). This consumer warranty case arises in connection with a 2002 Ford Explorer (the Subject Vehicle) that Plaintiff allegedly purchased from Defendant in July 2022. (Compl., ¶ 7.) Plaintiff alleges that Defendant concealed a known engine and transmission defects that caused various problems, including delayed acceleration, harsh shifting, and jerking. (Compl., ¶ 24.) Plaintiff presented the Subject Vehicle to Defendants for a reasonable number of repair attempts to no avail. (Compl., ¶ 86.) Under the Song-Beverly Act, Defendants had an affirmative duty to promptly offer to repurchase or replace the Subject Vehicle at the time it failed to conform the Subject Vehicle to the terms of the express warranty after a reasonable number of repair attempts. (Compl., ¶ 15.) Defendants have failed to either promptly replace the Subject Vehicle or to promptly make restitution in accordance with the Song-Beverly Act. (Compl., ¶ 16.) The Complaint alleges six causes of action for: (1) Violation of Civil Code Section 1793.2(D); (2) Violation of Civil Code Section 1793.2(B); (3) Violation of Civil Code Section 1793.2(A)(3); (4) Breach of the Implied Warranty of Merchantability; (5) Negligent Repair; and (6) Fraudulent Inducement Concealment. On 4/26/2024, Defendants filed the instant demurrer to the sixth cause of action for fraudulent inducement concealment and motion to strike the prayer for punitive damages. · Defendants argue the Sixth Cause of Action for Fraud fails to state sufficient facts to constitute a valid cause of action, fails to meet the heightened requisite standard of specificity for a fraud cause of action, and therefore, is uncertain. · Here, Plaintiffs allege Ford was well aware and knew that the transmission installed in the Vehicle was defective but failed to disclose this fact to the Plaintiffs at the time of the sale and thereafter. (Complaint, ¶ 77). Yet, the Complaint alleges no direct communication between Plaintiff and Ford whatsoever, much less relative to the purchase of the Subject Vehicle. o Plaintiff failed to allege any specific statements by Ford upon which Plaintiff relied and fails to identify any specific person identified. · Plaintiffs fail to allege sufficient facts demonstrating Ford had a duty to disclose. o Plaintiffs contend Ford was under a duty to Plaintiffs to disclose the defective nature of the Subject Vehicle and its transmission, its safety consequences and/or the associated repair costs. (Complaint, ¶ 82.) o A duty to disclose material safety concerns can be actionable in four situations (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant has exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; or (4) when the defendant makes partial representations but also suppresses some material fact. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 336. o Plaintiffs fail to allege a fiduciary relationship with Ford o Plaintiffs Failed to Allege Facts Demonstrating Ford Possessed Exclusive Knowledge of Material Facts o Plaintiffs Failed to Allege Facts Demonstrating Ford Actively Concealed Material Facts or Made Partial Representations · Defendants move to strike punitive damages On 5/31/2024, Plaintiffs filed oppositions to the demurrer and motion to strike. · Plaintiffs argue the Complaint contains all the allegations required to show a prima facie fraud case in accordance with Dhital v. Nissan N. Am., Inc. (2022) 84 Cal.App.5th 828, 843-44, Dhital, review granted Feb. 1, 2023, 523 P.3d 392. o Here, Plaintiffs alleged they entered into a warranty contract with Ford around July 9, 2022 (Complaint, ¶¶ 7-8); Plaintiffs identified the material facts Ford knew prior to their acquisition of the Subject Vehicle that Ford withheld from Plaintiffs (Id. ¶¶ 24); Plaintiffs alleged that Defendant had superior knowledge of the facts (Id., ¶¶ 25, 79, 82a-c); the safety risks posed by the Transmission Defect (Id., ¶¶ 24, 78); the materiality of that information (Id. ¶¶ 84-85); Plaintiffs reliance on the non-disclosure (Ibid.); and damages. (Id., ¶¶ 14, 22, 87-88.) · Here the alleged fraud was committed through intentional concealment, as in Dhital, where the corporate entity had been aware of the alleged defect yet continued to market and sell vehicles without disclosing the defect to prospective purchasers. (Dhital, supra, 84 Cal.App.5th at 833.) · A Direct Transactional Relationship Is Not Required Under California Law for the Manufacturer to Have a Duty to Disclose o The Transmission Defect Is a Material Fact o The Transmission Defect Poses Safety Risks o The Transmission Defect Arose During the Warranty Period · Ford Had Exclusive Knowledge of the Transmission Defect, and TSBs Issued by Ford to Its Dealerships with Varying Explanations Also Show Its Active Concealment of the Transmission Defect · Because there is a viable fraud claim, punitive damages are available through Civil Code section 3294. On 06/14/2024, Defendants filed replies to Plaintiffs oppositions. · Plaintiffs claim they adequately plead specificity relying primarily on generic allegations similar to those in Dhital o However, in Dhital, the plaintiffs vehicle was a 2013 Nissan Sentra, and the vehicles with the purported CVT defect included 2013-2017 Sentra vehicles. (Dhital v. Nissan North America, Inc. (2022) 84 Cal. App. 5th 828, 833-834.) In contrast, here Plaintiffs vehicle is a 2022 Ford Explorer, and Plaintiffs Complaint includes non-specific, conclusory statements regarding Ford vehicles that are not Explorers. None of the NHTSA references are to 2022 Ford Explorer vehicles · Plaintiffs Failed to Demonstrate Ford Had a Duty to Disclose o Plaintiff fails to cite to a single technical service bulletin, recall, or document that applies to a 2022 Ford Explorer o Plaintiffs fail to allege that they bought the vehicle from a Ford dealership or that Fords authorized dealerships were its agents for purposes of the sale of Ford vehicles to consumers as was stated in Dhital. · Defendants maintain that the Court should strike Plaintiffs request for punitive damages. ANALYSIS A. Legal Standard for Demurrer A demurrer tests the sufficiency of whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in contextany defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) B. Meet and Confer Requirement Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Here, counsel for Defendants sent an email to Plaintiffs on April 18, 2024, discussing the basis of Defendants demurrer and motion to strike, and requesting a telephonic conference. (Elias Decl., Ex. 1.) It does not appear that any discussions took place between the parties and no further meet and confer efforts were made before Defendants filed the instant motions on April 26, 2024. The Court finds Defendants efforts fall short of the good-faith effort requirements set forth in Code of Civil Procedure section 430.41(a). However, failure to meet and confer is not a proper ground for overruling a demurrer. (CCP § 430.41(a)(4).) Thus, the Court continues on the merits of the motion. C. Demurrer to the Sixth Cause of Action for Fraudulent Inducement Concealment a. Sufficient Specificity Defendants argue that the Complaint fails to plead a cause of action for fraud with sufficient specificity. [T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact; (2) the defendant must have been under a duty to disclose the fact to the plaintiff; (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)¿ Ordinarily, fraud must be pleaded specifically; general and conclusory allegations do not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.). This particularity requirement necessitates pleading facts which show how, where, to whom, and by what means the alleged fraud occurred. (Id.) The purpose of the particularity requirement is to separate meritorious and nonmeritorious cases, if possible in advance of trial. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)¿¿¿¿ Some cases, however, conclude that this standard is less stringent when the defendant already has full information concerning the facts of the controversy. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217, superseded by statute on other grounds as stated in Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 227.) Relaxation of the specificity requirement is particularly appropriate in a¿concealment¿case.¿ Unlike intentional misrepresentation, which requires some affirmative representation or promise, a fraudulent¿concealment¿is the absence of something, the suppression of a fact. (Civ. Code, section 1710.)¿¿ The courts have ruled that less specificity as to fraud claims is required if it appears from the nature of allegations that defendant must necessarily possess full information, or if the facts lie more in the knowledge of opposing parties. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385 [it does not appear necessary to require each of the 38 plaintiffs to allege each occasion on which an agent of either defendant could have disclosed &. Surely defendants have records of their dealings with the plaintiffs] accord Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 931 [plaintiffs did not have to specify the & personnel who prepared these documents because that information is uniquely within & [defendants] knowledge].) [T]he courts should not ... seek to absolve the defendant from liability on highly technical requirements of form in pleading. Pleading facts in ordinary and concise language is as permissible in fraud cases as in any others, and liberal construction of the pleading is as much a duty of the court in these as in other cases. (Appollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 242.)¿ Here, the Complaint alleges that Plaintiffs entered into a warranty contract with Ford around July 9, 2022 (Complaint, ¶¶ 7-8); Plaintiffs identified the material facts Ford knew prior to their acquisition of the Subject Vehicle that Ford withheld from Plaintiffs, specifically the Transmission Defects (Id. ¶¶ 24); Plaintiffs alleged that Defendant had superior knowledge of the facts (Id., ¶¶ 25, 79, 82a-c); the safety risks posed by the Transmission Defect (Id., ¶¶ 24, 78); the materiality of that information (Id. ¶¶ 84-85); Plaintiffs reliance on the non-disclosure (Ibid.); and damages. (Id., ¶¶ 14, 22, 87-88.) Courts have found the above to be sufficiently pleaded for a fraud cause of action. (Dhital v. Nissan N. Am., Inc. (2022) 84 Cal.App.5th 828, 843-44, review granted Feb. 1, 2023.) In Dhital, the plaintiffs alleged the following. [O]n November 4, 2012, they purchased a new 2013 Nissan Sentra from a Nissan dealership in San Leandro. (Dhital, supra, 84 Cal.App.5th at p. 833.) On three occasions in 2015, plaintiffs took the car to an authorized Nissan repair facility because of transmission problems, including stalling, jerking, and lack of power. They eventually decided to stop using the car due to their concern it posed a risk to their safety and the safety of others &. (Ibid.) The Plaintiffs [further] alleged [that] Nissan manufactured or distributed more than 500,000 vehicles in the United States that were equipped with defective continuously variable transmissions (CVTs), including plaintiffs Sentra and other Sentras for model years 2013 through 2017. (Ibid. (emphasis added).) As to Nissans knowledge that the transmissions were defective, [the] plaintiffs [in Dhital] alleged in part that Nissan knew or should have known about the safety hazard posed by the defective transmissions before the sale of CVT-equipped vehicles from premarket testing, consumer complaints to the National Highway Traffic Safety Administration (NHTSA), consumer complaints made directly to Nissan and its dealers, and other sources which drove Nissan to issue Technical Service Bulletins acknowledging the transmissions defect. (Id. at p. 834 (emphasis added).) Further, Nissan should not have sold, leased, or marketed the CVT-equipped vehicles without a full and complete disclosure of the transmission defect, and should have voluntarily recalled all CVT-equipped vehicles long ago. (Ibid.) According to the Court of Appeal, the Dhital plaintiffs sufficiently pleaded fraudulent concealment to overcome a demurrer by alleging that [1] the CVT transmissions installed in numerous Nissan vehicles (including the one plaintiffs purchased) were defective; [2] Nissan knew of the defects and the hazards they posed; [3] Nissan had exclusive knowledge of the defects but intentionally concealed and failed to disclose that information; [4] Nissan intended to deceive plaintiffs by concealing known transmission problems; [5] plaintiffs would not have purchased the car if they had known of the defects; and [6] plaintiffs suffered damages in the form of money paid to purchase the car. (Dhital, supra, 84 Cal.App.5th at p. 844.) In Defendants Reply, Defendants attempt to differentiate the facts in Dhital from this case by arguing that in Dhital, the plaintiffs vehicle was a 2013 Nissan Sentra, and the vehicles with the purported CVT defect included 2013-2017 Sentra vehicles. (Dhital v. Nissan North America, Inc. (2022) 84 Cal. App. 5th 828, 833-834.) Defendants argue that on the other hand in this case, Plaintiffs vehicle is a 2022 Ford Explorer, and Plaintiffs Complaint includes non-specific statements regarding Ford vehicles that are not Explorers. None of the technical service bulletins (TSBs) referenced in the Complaint are specifically regarding 2022 Ford Explorer vehicles. However, the Court does not find Defendants argument persuasive as the Complaint alleges that Defendants knew that vehicles equipped with the same 10-speed transmission as the Vehicle suffered from one or more defects that can cause the vehicles and their 10-speed transmissions to experience hesitation and/or delayed acceleration; harsh and/or hard shifting; jerking, shuddering, and/or juddering. (Complaint, ¶ 24 (emphasis added).) Thus, although the vehicles referenced in the Complaint that Defendants issued TSBs for were not 2022 Ford Explorers, they were equipped with the same 10-speed transmission that suffered from the same Transmission Defect. Therefore, similar to the allegations pled in Dhital, the Court finds Plaintiffs have pled a cause of action for fraud with sufficient specificity. b. Duty to Disclose Defendants also argue that the Complaint fails to allege a transactional relationship giving rise to a duty to disclose. There are four circ*mstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.] [Citation.] (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) A duty to disclose may also arise when a defendant possesses or exerts control over material facts not readily available to the plaintiff. (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1198, 1199; Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1256, 1384 [Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party].) The California Supreme Court has described the necessary relationship giving rise to a duty to disclose as a transaction between the plaintiff and defendant &. (Bigler-Engler, supra, 7 Cal.App.5th at p. 311; Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 [In transactions which do not involve fiduciary or confidential relations]; Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 118789 [rejecting concealment claim where plaintiffs were not involved in a transaction with the parties they claim defrauded them]; LiMandri, supra, 52 Cal.App.4th at p. 337 [such a relationship can only come into being as a result of some sort of transaction between the parties]; Kovich v. Paseo Del Mar Homeowners Ass'n (1996) 41 Cal.App.4th 863, 866-867 [no duty to disclose where complaint alleged no facts that defendant acted as a seller, was a party to [a]contract, or assumed a special relationship with plaintiff.])¿ Here, the Complaint alleges Ford had alleged exclusive knowledge of the alleged transmission defect. The Complaint alleges: [P]rior to Plaintiffs acquiring the Vehicle, [Ford] was well aware and knew that the transmission installed in the Vehicle was defective but failed to disclose this fact to the Plaintiffs at the time of the sale and thereafter. (Complaint, ¶ 77.) [Ford] acquired its knowledge of the Transmission Defect prior to Plaintiffs acquiring the Subject Vehicle, through sources not available to consumers such as Plaintiffs, including but not limited to pre-production and post-production testing data, early consumer complaints about the transmission defect made directly to [Ford] and its network of dealers, aggregate warranty data compiled from [Ford's] network of dealers, testing conducted by [Ford] in response to these complaints, as well warranty repair and part replacements data received by [Ford] from [Ford's] network of dealers, amongst other sources of internal information. (Id., ¶ 79.) Defendant [Ford] was in a superior position from various internal sources to know (or should have known) the true state of facts about the material defects contained in vehicle equipped with the defective transmission. (Ibid.) In failing to disclose the defects in the Vehicle's transmission, Defendant [Ford] has knowingly and intentionally concealed material facts and breached its duty not to do so. (Id., ¶ 83.) The facts concealed or not disclosed by Defendant [Ford] to Plaintiffs are material in that a reasonable person would have considered them to be important in deciding whether or not to purchase the Subject Vehicle. (Id., ¶ 84.) The Court finds that these allegations sufficiently plead that Ford had a duty to disclose to Plaintiff because the facts show Ford had exclusive knowledge of material facts unknown to Plaintiff. Accordingly, the Court OVERRULES the demurrer to the sixth cause of action. D. Motion to Strike a. Legal Standard The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Code Civ. Proc., § 436. b. Punitive Damages Defendants move to strike the following allegation in the Complaint: Plaintiffs prayer [f]or punitive damages as set forth on page 17, subpart g of the Prayer for Relief in the Complaint. Civil Code section 3294, subdivision (a) states: In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.) 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 persons 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 part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).) Defendants argue that Plaintiffs failed to satisfy Civil Code §3294(a) as they alleged no facts which specifically constitute oppression, fraud, or malice. Moreover, the Complaint fails to allege facts to support that an officer, director, or managing agent of Ford was actually involved in any alleged wrongful conduct that would constitute oppression or malice. As discussed above, the Court found Plaintiffs alleged sufficient facts to allege fraudulent inducement. However, the Complaint does not allege sufficient facts for corporate punitive damages liability. As Defendants argue, [f]or corporate punitive damages liability, [Civil Code] section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary damages be committed by an officer, director, or managing agent. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572.) The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, by selecting the term managing agent, and placing it in the same category as officer and director, the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employers liability for punitive damages. (Id. at p. 573.) Plaintiffs do not address this argument in their opposition. Thus, Plaintiffs have not cited (and the Court is unaware of) any law holding that plaintiffs asserting a claim for fraudulent concealment against a corporation are exempted from the requirement that, to recover punitive damages, they must allege and prove that the wrongful act was committed by an officer, director, or managing agent. In Dhital, the Court of Appeal declined to address Nissans argument (contained in the defendants motion to strike filed at the trial court) that the plaintiffs allegations were not sufficient to support corporate liability for punitive damages because: The trial court did not reach that question in striking the & punitive damages allegations, and Nissan [did] not develop on appeal an argument that [the appellate] court should affirm the striking of the punitive damages allegations on that alternative ground &. (Dhital, supra, 84 Cal.App.5th at p. 845, fn. 8.) Therefore, the Court finds that Plaintiffs were required to allege facts showing that the suppression of the Transmission Defect was committed by Defendants officer, director, or managing agent. The Complaint is missing those allegations. Accordingly, the motion to strike the prayer for punitive damages is GRANTED, with leave to amend. DISPOSITION The Demurrer is OVERRULED. The Motion to Strike is GRANTED, with 20 days leave to amend.
Ruling
Brian Folland vs. Denna Rogers
Jul 10, 2024 |21CECG01468
Re: Folland v. Rogers Superior Court Case No. 21CECG01468Hearing Date: July 10, 2024 (Dept. 501)Motion: Plaintiff/Petitioner’s Petition to Confirm Arbitration AwardTentative Ruling: To grant, confirming the arbitration award in favor of plaintiff/petitioner in theamount of $76,265 plus $435 in costs, and $14,709.74 in prejudgment interest, for a totalof $91,409.74. Plaintiff/petitioner is directed to submit a proposed judgment consistentwith the court’s ruling within 7 days of the service of the minute order.Explanation: Any party to an arbitration in which an award has been made may petition thecourt to confirm the award. The petition shall name as respondents all parties to thearbitration and may name as respondents any other person bound by the arbitrationaward. (Code Civ. Proc., §1285.) A petition shall: (a) set forth the substance or have attached a copy of theagreement to arbitrate unless the petitioner denies the existence of such an agreement;(b) set forth the names of the arbitrators; and (c) set forth or have attached a copy ofthe award and the written opinion of the arbitrators, if any. (Code Civ. Proc., §1285.4.) If a petition is duly served and filed, the court shall confirm the award as made,whether rendered in this state or another state, unless it corrects the award and confirmsit as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., §1286.) Here, the moving papers conform to the requirements set forth in the Code of CivilProcedure sections 1285 and 1285.4. In accordance with Code of Civil Procedure,section 1285, petitioner names Denna Rogers as the party to be bound by the arbitrationaward. A copy of the arbitration agreement is attached to the Complaint whichcommenced this action. (Compl., Exh. A.) Also, a copy of the arbitrators’ award isattached to the Petition. (Petn., Attachment 6C.) The Petition and Notice of Hearing wereproperly served on June 6, 2024 by mail. The Petition also provides that the arbitrationaward was served to respondent on July 7, 2022. (Petn., Item 7.) The Petition provides thatthe arbitration award is binding because more than 30 days have passed since notice ofthe award was mailed, and no party filed a rejection of the award or requested for trial.(Petn., Item 8(b).) Further, the Petition is unopposed and no evidence indicating anyapplication has been made to correct or vacate the award, and the statutory period formaking such application has now passed. (Code Civ. Proc., § 1288. [“A petition tovacate an award or to correct an award shall be served and filed not later than 100 daysafter the date of the service of a signed copy of the award on the petitioner.”].) Thus, the Petition to confirm the arbitration award is granted. However,Plaintiff/Petitioner has calculated the prejudgment interest to the date of September 17,2024. The court calculates the prejudgment interest to be $14,709.74.1 Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 7/9/2024 . (Judge’s initials) (Date)1This figure is calculated using an interest rate of 10% per annum from the date the arbitrationaward became binding, August 6, 2022 (30 days following the day the award was mailed) throughJuly 10, 2024 (the hearing date of this petition).
Ruling
CREDITORS ADJUSTMENT BUREAU, INC VS BRIAN SCHOFIELD, ET AL.
Jul 11, 2024 |23VECV05661
Case Number: 23VECV05661 Hearing Date: July 11, 2024 Dept: T CREDITORS ADJUSTMENT BUREAU V SCHOFIELD 23VECV05661 [TENTATIVE] ORDER: Defendants Brian Schofield and Aecon Global Security, Inc.s Motion to Set Aside Default Judgment and Clerks Entry of Default is GRANTED. The default and default judgment are vacated. The answer filed 5/17/2024 will stand. The case is set for a Trial Setting Conference on ___________, 2025 at 8:30 a.m. in Dept. T. Introduction Defendants Brian Schofield (Schofield) and Aecon Global Security, Inc. (Aecon) (collectively Defendants) moved to set aside the clerks entry of default against Schofield on March 18, 2024, the clerks entry of default against Aecon on May 15, 2024, and the default judgment entered against both Defendants on May 24, 2024 in favor of Plaintiff Creditors Adjustment Bureau (Plaintiff), Discussion Defendants move to set aside default judgment on the grounds that the judgment is void and invalid on its face. (Code Civ. Proc., sec. 473(d); see also Braugh v. Dow (2023) 93 Cal.App.5th 76 [evidence is not required to determine if a judgment is void, only that the invalidity of the judgment is apparent on the face of the record]; Berman v. Klassman (1971)17 Cal.App.3d 900 [a motion made under section 473 is a remedial measure which is liberally construed by the Court].) Plaintiff filed this action on December 21, 2023. The clerk entered default against Defendants on March 18 and May 15, 2024. On May 17, 2024, Defendants filed an Answer to the Complaint. On May 21, Plaintiffs and Defendants counsel appeared for a Case Management Conference. During the CMC, the Court noted that the [c]ase is at issue, set a Trial Setting Conference for November 19, 2024, and ordered the parties to meet and confer regarding CRC 3.724. (5/21/24 Minute Order.) Defendants contend that they were unaware of any request for or entry of default against them when they attended the CMC, and that Plaintiffs counsel declined to serve its default application package on Defendants. (Motion, 5:11-17; Shaneyfelt Decl., para. 7.) Defendants counsel declares, and the proof of service on file confirms, that Defendants were only served with a notice of entry of default judgment on May 30, 2024, more than a week after the CMC. (Shaneyfelt Decl., para. 10.) Even though plaintiff knew there was counsel representing the defendants, and that all counsel had appeared as if the defendants were not in default, no notice was given to counsel for defendants about the impending request for entry of default judgment. Where a default has been entered against a party, he or she has no right to appear in court until either the default is set aside or the default judgment is entered. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.) However, Plaintiff did not object to Defendants appearance at the CMC, nor did Plaintiff inform the Court that prior the CMC, Plaintiff received Defendants Answer and CMC Statement. Plaintiffs failure to object to Defendants appearance in court on May 21, 2024, constitutes a waiver. Based on these facts, together with the public policy favoring allowing a party to be heard on the merits, the filing of the answer and appearance at court which shows the defendants' intent to defend itself on the merits, and the lack of prejudice to plaintiff, the Court GRANTS Defendants motion to set aside entry of default and default judgment against them. IT IS SO ORDERED, DEFENDANTS TO GIVE VERBATIM NOTICE.
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