Disclosure of Expert Witness - Party: Plaintiff Bello, Ileana November 17, 2014 (2025)

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Ruling

MOHAMMAD TALAIE VS AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, A NON-PROFIT CORPORATION, ET AL.

Aug 26, 2024 |23STCV30357

Case Number: 23STCV30357 Hearing Date: August 26, 2024 Dept: 61 MOHAMMAD TALAIE vs AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA, A NON-PROFIT CORPORATION, et al. TENTATIVEDefendants Automobile Club of Southern California and Interinsurance Exchange of the Automobile Clubs Demurrer and Motion to Strike Portions of the Complaint is SUSTAINED with leave to amend as to the second cause of action alleged against Defendant Automobile Club of Southern California, and is otherwise OVERRULED. The motion to strike is GRANTED with leave to amend as to the prayer for attorney fees, except as to an item of damages sought with respect to the third cause of action for breach of the covenant of fair dealing, and DENIED as to the prayer for punitive damages.Plaintiff is granted 20 days leave to amend from the date of this Order. Moving party to give notice.

Ruling

GARRY TINDELL VS JAY NIETO, AN INDIVIDUAL DOING BUSINESS AS GENESIS 1 AUTO CONCEPTS, AN UNKNOWN BUSINESS ENTITY

Aug 23, 2024 |23BBCV00284

Case Number: 23BBCV00284 Hearing Date: August 23, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B garry tindell, Plaintiff, v. jay nieto, an individual dba GENESIS 1 AUTO CONCEPTS, Defendant. Case No.: 23BBCV00284 Hearing Date: August 23, 2024 [TENTATIVE] order RE: motion to set aside default and default judgment BACKGROUND A. Allegations Plaintiff Garry Tindell (in propria persona, Plaintiff) alleges that he expected a reasonable repair fee for his 1966 Mustang, which only had a few problems. Plaintiff alleges that Defendant Jay Nieto, an individual dba Genesis 1 Auto Concepts (Defendant) presented him with a Work Order for $19,901.50 that allegedly reflected the repairs made to Plaintiffs car. Plaintiff alleges that Defendant guaranteed that Genesis had performed a full makeover of the vehicle, which included replacing the starter, the fuel pumps, the engine mount, the brakes, the master brake cylinder, a rebuilt carburetor, a fully rebuilt Ford 289 engine, a rebuilt Ford C4 transmission, and 36 additional parts. Plaintiff alleges that Defendant warranted to Plaintiff that all of the replacement parts would be new, rebuilt, or reconditioned, but Defendant intentionally suppressed the fact that many of the parts Genesis used to repair the vehicle were old, defective, and unsafe. The complaint, filed February 3, 2023, alleges causes of action for: (1) fraud and deceit; (2) intentional misrepresentation; (3) violation of statute; (4) breach of oral contract and breach of implied covenant of good faith and fair dealing; (5) unjust enrichment; (6) unfair business practices; and (7) breach of implied warranty. On April 14, 2023, Plaintiff dismissed with prejudice DOE Defendants only. B. Relevant Background and Motion on Calendar On April 14, 2023, the default of Defendant was entered. On January 11, 2024, the default judgment of Defendant was entered. On July 9, 2024, Defendant filed a motion to set aside the default and default judgment. On August 9, 2024, Plaintiff filed an opposition brief. The Court notes that Defendant filed a second motion to set aside the default and default judgment on July 10, 2024. The later-filed motion is set for hearing on September 13, 2024. DISCUSSION Defendant moves to set aside the default and default judgment pursuant to counsels mistake, surprise, or excusable neglect under CCP § 473(b). As noted above, Defendant filed two motions to set aside the default. The motion filed on July 9, 2024 (Reservation ID #038659920023) is 8 pages in length. The motion filed on July 10, 2024 (Reservation ID #309016394085) is 16 pages in length and includes a copy of the proposed answer. Otherwise, the motions appear to have identical memorandums of points and authorities and declarations in support of the motion. The motion filed on July 9, 2024 that is set for hearing on August 23, 2024 shall be continued to September 13, 2024 so that the two motions to set aside may be heard and considered together. CONCLUSION AND ORDER Defendant Jay Nieto, an individual dba Genesis 1 Auto Concepts motion to vacate the default and default judgment is continued to September 13, 2024 at 8:30 a.m. so that it may be heard concurrently with the second motion to vacate the default and default judgment. Defendant shall provide notice of this order. DATED: August 23, 2024 ___________________________ John J. Kralik Judge of the Superior Court

Ruling

SALVATORE'S PLUMBING, INC., A CALIFORNIA CORPORATION VS RAIME LORIGA GONZALEZ

Aug 20, 2024 |24LBCV00258

Case Number: 24LBCV00258 Hearing Date: August 20, 2024 Dept: S25 Plaintiff Salvatore's Plumbing, Inc.s Motion to Compel Defendant Raime Loriga Gonzalezs Further Responses to Plaintiffs Employment Form Interrogatories (Set One)Procedural Background On February 7, 2024, Plaintiff filed a complaint against Defendant and Does 1 to 20, alleging breach of duty of loyalty, conversion, fraud-concealment, and interference with prospective economic relationship causes of action. Plaintiff alleges that on or about November 21, 2023, one of Plaintiffs employees saw Defendant, also Plaintiffs employee, working at a residence located on Cricketwood Street that Defendant had not been dispatched for on a regular workday. (Compl., ¶ 10.) Plaintiff further alleges that Defendant was working with several of Plaintiffs former employees at the Cricketwood address despite the absence of a contract for work approved by Plaintiffs management. (Ibid.) Plaintiff informed Defendant that continued solicitation of direct payments from Plaintiffs customers and other acts would result in termination if repeated; Defendant represented that the Cricketwood work was an isolated incident. (Compl., ¶ 11.) Subsequently, Plaintiff was contacted by a homeowner, Dede Fontenot, who claimed one of Plaintiffs employees performed work at her home on November 5, 2023 and wanted Plaintiff to warrant the work. At that time, it was revealed that Defendant had prepared an estimate and performed work on Fontenots home in exchange for money via the Zelle payment application. (Compl., ¶ 12.) On December 11, 2023, Plaintiff terminated Defendants employment on grounds that he solicited work using Plaintiffs reputation, violated Plaintiffs policies and pocketed customers payments for the work. (Compl., ¶ 13.) Plaintiff further states that the company has now learned that Defendants solicitations were not isolated but were part of a pattern and scheme by Defendant in association with former employees of Plaintiff to divert opportunities, revenues and profits at Plaintiffs expense. (Compl., ¶ 14.) On March 25, 2024, Defendant filed an answer. That same day, Defendant filed a cross-complaint against Cross-Defendants/Plaintiff Salvatores Plumbing, Inc. and Does 1 to 20, alleging seven causes of action: (1) failure to pay overtime wages, (2) failure to provide meal and rest period, (3) waiting time penalties, (4) failure to provide accurate wage statements, (5) violation of unfair competition law, (6) wrongful termination in violation of public policy, and (7) negligence. On April 29, 2024, Plaintiff/Cross-Defendant Salvatores Plumbing Inc. filed an answer. On July 24, 2024, Plaintiff filed this Motion to Compel Further Responses to Plaintiffs Request for Employment Form Interrogatories (Set One). Legal Standard Under Code of Civil Procedure section 2030.300, subdivision (a), a court may order a party to serve a further response to an interrogatory when the court finds that: (1) An answer to a particular interrogatory is evasive or incomplete[;] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate[; or] (3) An objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) The burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Next, the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.300, subd. (d).) A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.) Meet and Confer and Timeliness of Motion The Court finds the meet and confer requirement satisfied and finds that the motion timely. Tentative Ruling Plaintiff moves to compel further responses to Form Interrogatory Nos. 212.3 and 217.1. (Plaintiffs Separate Statement at pp. 2-6.) In its moving papers, Plaintiff discusses Interrogatory No. 6.3; however, Interrogatory No. 6.3 is not listed in the separate statement and will be considered. (See Cal. Rules of Court, rule 3.1345(c).) Form Interrogatory No. 212.3 seeks information concerning any complaints of physical, mental or emotional injuries Defendant attributes to the adverse employment action, seeking a description of the injury, whether the injury is subsiding, the same, or worsening, as well as the frequency and duration. On June 25, 2024, Defendant provided a further supplemental response by way of a meet and confer letter, however, this letter is unverified. Accordingly, the June 5th verified supplemental response stands. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [Unsworn responses are tantamount to no responses at all].) Further, the Court agrees with Plaintiff that Defendants June 25 supplemental response fails to answer both subsection (b) relating to whether Defendants injury of emotional distress is subsiding, remaining the same, or becoming worse, and subsection (c) relating to the frequency and duration of the injury. Plaintiffs request is GRANTED. Defendant is ordered to provide further verified supplemental responses within 20 days of this order. Form Interrogatory No. 217.1 asks for facts upon which Defendant bases his denial to each Request for Admission that is not an unqualified admission. These form interrogatories are standard. Defendants objections are unsupported and the initial response incomplete. Plaintiffs request is GRANTED. Defendant is ordered to provide further substantive responses within 20 days of this order to any Request for Admission that is not an unqualified admission and include the required information: (a) number of the request; (b) all facts upon which you base your response, (c) state the names, addresses, and telephone numbers of all persons who have knowledge of those facts; and (d) identify all documents and other tangible things that support your response and (e) state the name, address, and telephone number of the person who has each document or thing. (See Form Interrogatory No, 217.) Plaintiff requests sanctions is denied.Plaintiff Salvatore's Plumbing, Inc.s Motion to Compel Defendant Raime Loriga Gonzalezs Further Responses to Plaintiffs Request for Production (Set One) Procedural Background On February 7, 2024, Plaintiff filed a complaint against Defendant and Does 1 to 20, alleging breach of duty of loyalty, conversion, fraud-concealment, and interference with prospective economic relationship causes of action. Plaintiff alleges that on or about November 21, 2023, one of Plaintiffs employees saw Defendant, also Plaintiffs employee, working at a residence located on Cricketwood Street that Defendant had not been dispatched for on a regular workday. (Compl., ¶ 10.) Plaintiff further alleges that Defendant was working with several of Plaintiffs former employees at the Cricketwood address despite the absence of a contract for work approved by Plaintiffs management. (Ibid.) Plaintiff informed Defendant that continued solicitation of direct payments from Plaintiffs customers and other acts would result in termination if repeated; Defendant represented that the Cricketwood work was an isolated incident. (Compl., ¶ 11.) Subsequently, Plaintiff was contacted by a homeowner, Dede Fontenot, who claimed one of Plaintiffs employees performed work at her home on November 5, 2023 and wanted Plaintiff to warrant the work. At that time, it was revealed that Defendant had prepared an estimate and performed work on Fontenots home in exchange for money via the Zelle payment application. (Compl., ¶ 12.) On December 11, 2023, Plaintiff terminated Defendants employment on grounds that he solicited work using Plaintiffs reputation, violated Plaintiffs policies and pocketed customers payments for the work. (Compl., ¶ 13.) Plaintiff further states that the company has now learned that Defendants solicitations were not isolated but were part of a pattern and scheme by Defendant in association with former employees of Plaintiff to divert opportunities, revenues and profits at Plaintiffs expense. (Compl., ¶ 14.) On March 25, 2024, Defendant filed an answer. That same day, Defendant filed a cross-complaint against Cross-Defendants/Plaintiff Salvatores Plumbing, Inc. and Does 1 to 20, alleging seven causes of action: (1) failure to pay overtime wages, (2) failure to provide meal and rest period, (3) waiting time penalties, (4) failure to provide accurate wage statements, (5) violation of unfair competition law, (6) wrongful termination in violation of public policy, and (7) negligence. On April 29, 2024, Plaintiff/Cross-Defendant Salvatores Plumbing Inc. filed an answer. On July 24, 2024, Plaintiff filed this Motion to Compel Further Responses to Plaintiffs Request for Production of Documents (Set One). Legal Standard On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. (Code Civ. Proc., 2031.310, subd. (a).) The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.) Meet and Confer and Timeliness of Motion The Court finds the meet and confer requirement satisfied and finds that the motion timely. Tentative Ruling Plaintiff moves to compel further responses to Request Nos. 32-38. (Plaintiffs Separate Statement) on the grounds that Defendants initial responses are deficient. Although supplemental responses were served by Defendant on June 5, 2024, Plaintiff contends these further responses remain inadequate. Plaintiff has not complied with the contents of separate statement requirements set forth in Cal. Rules of Court, rule 3.1345(c). Instead, Plaintiffs separate statement identifies Request 32 with specificity but then groups Request 33-38 in one paragraph requiring the court to shift through the exhibits attached to the moving papers to determine the nature of each of those five requests. Request No. 32 seeks any and all devices, including, but not limited to, cell phones, tablets, laptops, or desktop computers that Defendant used within the course and scope of Defendants employment during Defendants employment at Plaintiff. Plaintiffs request for ALL devices Defendant used while employed by Plaintiff for document inspection without narrowing the scope and/or topic of the documents is overly broad and unduly burdensome. To provide unfettered access to Defendants personal transactional information on Zelle is unreasonable. Plaintiff should more narrowly tailor the request. The request is DENIED. Request No. 33 seeks any and all devices, including, but not limited to, cell phones, tablets, laptops, or desktop computers that Defendant used for Exhibit A and Exhibit B of the Cross-Complaint. This request is also DENIED as it is unduly burdensome and overly broad. It does not limit the scope as to the type of documents, the topic of such documents that can be obtained from the requested devices. Request No. 34 seeks and and all devices, including, but not limited to, cell phones, tablets, laptops, or desktop computers that Defendant used to solicit clients for plumbing services between June 2022 to December 11, 2023. This request is, GRANTED, IN PART. Defendant to provide communications between any of Plaintiffs former or current customers and Defendant from June 2022 to December 11. 2023. The information should remain confidential between the two parties. Request No. 35 seeks any and all devices, including, but not limited to, cell phones, tablets, laptops, or desktop computers that Defendant used to receive compensation directly from clients for plumbing services Defendant provided between June 2022 to December 11, 2023. This request is GRANTED, IN PART. Defendant to provide communications (e.g. Zelle transactional history) between any of Plaintiffs former or current customers and Defendant from June 2022 to December 11. 2023. The information should remain confidential between the two parties. Requests No. 36, 37 and 38 seeks geolocation data of any and all devices, including, but not limited to, cell phones, tablets, laptops, or desktop computers essentially used by Defendant between June 2022 to December 11, 2023 during scope and course of employment, when allegedly soliciting Plaintiffs clients and when allegedly receiving payment from Plaintiffs clients. To provide the geolocation history of Defendant from June 2022 to December 11,2023 is unreasonable, overly board and an invasion of Defendants privacy. The Court declines to award monetary sanctions.

Ruling

LATOYA S REDD VS MARC S FELDMAN, ET AL.

Aug 28, 2024 |23STCV31118

Case Number: 23STCV31118 Hearing Date: August 28, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 28, 2024 Case Name: Redd v. Feldman, et al. Case No.: 23STCV31118 Matter: Motion to Compel Moving Party: Plaintiff Latoya S. Redd Responding Party: Unopposed Notice: OK Ruling: The Motion is granted. 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. Plaintiff Latoya Redd seeks to compel initial responses to her form interrogatories propounded on Defendant Koletsky, Mancini, Feldman & Morrow. Because responses have apparently not been provided, the Motion is granted. Responses, without objections, are to be served within 30 days. The Court awards reduced sanctions in the amount of $75. 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.

Ruling

PETER J. ZOMBER, ET AL. VS JOHN PATRICK JOHNSON

Aug 23, 2024 |22STCV28183

Case Number: 22STCV28183 Hearing Date: August 23, 2024 Dept: 32 PETER J. ZOMBER, et al., Plaintiffs, v. JOHN PATRICK JOHNSON, Defendant. Case No.: 22STCV28183 Hearing Date: August 23, 2024 [TENTATIVE] order RE: (1) plaintiffs motion to seal portions of defendants filings; (2) defendants motion to seal his response to plaintiffs motion to seal BACKGROUND On August 29, 2022, Plaintiff Peter J. Zomber and Law Offices of Peter J. Zomber, PC initiated this action against Defendant John Patrick Johnson. Plaintiffs filed the operative First Amended Complaint on January 23, 2023, asserting (1) breach of contract and (2) quantum meruit. The complaint concerned unpaid legal fees that Defendant allegedly owed to Plaintiffs. Defendant filed an answer to the complaint on May 24, 2023, and an amended answer on June 16, 2023. Among other things, the amended answer alleged that Plaintiff Zomber provided incompetent representation in the underlying litigation and suffered from certain medical conditions and health issues that rendered him incapable of properly representing Defendant. The answer also detailed medical services that Defendant allegedly provided to Zomber for which Zomber did not fully compensate Defendant. The answer alleged that the parties agreed not to bill each other for their respective unpaid services. On July 10, 2023, Plaintiffs filed a demurrer and motion to strike against the amended answer. Defendant filed his oppositions on July 25, 2023. On August 7, 2023, the Court overruled the demurrer and granted the motion to strike in part. The case has since settled. On July 31, 2024, Plaintiffs filed the instant motion to seal portions of Defendants amended answer and portions of Defendants oppositions to Plaintiffs demurrer and motion to strike. On August 12, 2024, Defendant filed a response indicating that he does not oppose the motion and also filed a motion to seal portions of that response. On August 19, 2024, the Court granted Plaintiffs ex parte application to advance the hearing date on Defendants motion to seal. The Court set the hearing for August 23, 2024, the same date as the hearing on Plaintiffs motion to seal. The Court addresses both motions herein. LEGAL STANDARD Unless confidentiality is required by law, court records are presumed to be open. (Cal. Rules of Ct., Rule 2.550(c).) The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. (Id., Rule 2.550(d).) A record must not be filed under seal without a court order. (Id., Rule 2.551(a).) DISCUSSION I. Plaintiffs Motion to Seal The Court finds that there is an overriding interest in preserving the confidentiality of Plaintiffs medical information. Medical information falls within a zone of privacy and is subject to sealing. (See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1068-70.) The Court finds that Plaintiff would be prejudiced if his medical information is publicly disclosed. The proposed sealing is narrowly tailored because Plaintiff only seeks to seal portions of the filings which discuss his medical information. Neither party has identified, nor is the Court aware of, any less restrictive means to preserve Plaintiffs privacy. However, the Court does not find an overriding interest as to the other portions of the filings containing purportedly false allegations. Plaintiff cites no authority supporting an overriding interest in maintaining the truth and accuracy of allegations pertaining to his representation of Defendant. Records cannot be sealed merely because their veracity is contested. Allegations are regularly denied and proven false throughout litigation. This alone cannot justify sealing the record. Otherwise, the exception would swallow the rule. Parties in every case would move the court to seal those portions of the record that are contested or disproven. As stated above, [u]nless confidentiality is required by law, court records are presumed to be open. (Cal. Rules of Ct., Rule 2.550(c).) Information does not become confidential merely because it is false or inaccurate. II. Defendants Motion to Seal Defendants response to Plaintiffs motion to seal contains redacted information pertaining to the subject matter discussed herein. As established above, there is an overriding interest in preserving the confidentiality of Plaintiffs medical information. Correspondingly, Defendants response which implicates this information should also be sealed. CONCLUSION Plaintiffs motion to seal portions of Defendants filings is GRANTED as to Plaintiffs medical information. Within 10 days of this order, Defendant shall file redacted versions of his answer to Plaintiffs complaint and his oppositions to Plaintiffs demurrer and motion to strike in accordance with this order. Defendants motion to seal portions of his response is GRANTED. Defendant has already filed a redacted version of his response.

Ruling

SHUO WANG, M.D. VS VICTOR LE, ET AL.

Aug 23, 2024 |20STCV42130

Case Number: 20STCV42130 Hearing Date: August 23, 2024 Dept: 39 TENTATIVE RULING DEPARTMENT 39 HEARING DATE August 23, 2024 CASE NUMBER 20STCV42130 MOTION Motion to Disqualify Counsel MOVING PARTY Plaintiff Shuo Wang, M.D. OPPOSING PARTY Defendants Water Dragon Investment LLC and Westminster Villa Inc. MOTION In a second amended complaint,[1] Plaintiff Shuo Wang, M.D. (Plaintiff) sued Defendants Westminster Villa, Inc. and Water Dragon Investment, LLC (Defendants), alleging several causes of action based on a failed joint investment. Plaintiff moves to disqualify counsel for Defendants, Stradling Yocca Carlson & Rauth, LLP (Counsel). Counsel also represents Defendants Fire Dragon Investment LLC (Fire Dragon), Victor Le, (Le) and Lynn Tran (Tran). Defendants oppose the motion. ANALYSIS A trial court's authority to disqualify an attorney derives from the power inherent in every court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto. (In re Charlisse C. (2008) 45 Cal.4th 145, 159, internal quotations and citations omitted.) An attorney cannot represent clients with adverse interests in the same matter without the informed written consent of each client. (Cal. Rules of Prof. Conduct, rule 1.7, subd. (a).)[2] In the instant case, Counsels representation of both Defendants poses a significant risk that Counsels representation of each Defendant will be materially limited by Counsels responsibilities to the other. (Cal. Rules of Prof. Conduct, rule 1.7, subd. (b); see also Comment 4 to Rule 1.7 [For example, a lawyers obligations to two or more clients in the same matter, such as several individuals seeking to form a joint venture, may materially limit the lawyers ability to recommend or advocate all possible positions that each might take because of the lawyers duty of loyalty to the other clients].) Accordingly, Counsel was required to obtain written consent from each Defendant. Plaintiff contends he is the only person who could give written consent for Counsels representation of Defendants. Plaintiff is incorrect. Plaintiff asserts she owns a 25% stake in Fire Dragon and Tran has a 75% interest in Fire Dragon. Where, as here, one of an entitys two shareholders sues both the entity and the second shareholder, the second shareholder may give consent to joint representation. (Coldren v. Hart, King & Coldren, Inc. (2015) 239 Cal.App.4th 237, 250.) In any event, Counsel provides evidence through declarations it obtained such consent through Fire Dragons administrator, Ana M. Kunz (Kunz), and this comports with the requirements of Rule 1.13(g) where consent may be given by an appropriate official, constituent, or body of the organization other than the individual who is to be represented, or by shareholders. (See Declaration of Andrew B. Mason, ¶ 3.) In a separate declaration, Kunz confirmed she provided such informed written consent on behalf of Fire Dragon and other defendants in her official capacity as the Administrator of Fire Dragon. (See Declaration of Ana M. Kunz in Support of Defendants Opposition to Plaintiffs Motion to Disqualify, ¶¶ 2, 3.) Accordingly, Kunz has authority to give Fire Dragons consent to Counsels representation of Fire Dragon and Defendants and did so. The motion to disqualify is denied. Plaintiff is ordered to provide notice of this order and to file proof of service of same. [1]The Court notes, since Plaintiff filed this motion on May 13, 2024, she filed a third amended complaint on July 25, 2024, to which the named defendants have not yet responded. [2]All further references to Rules are to the California Rules of Professional Conduct.

Ruling

GOLDEN PRO INSURANCE SERVICES, INC. VS AAA MERCHANT SERVICES, ET AL.

Aug 20, 2024 |23CHCV01560

Case Number: 23CHCV01560 Hearing Date: August 20, 2024 Dept: F49 Dept. F49¿ Date: 8/20/24 Case Name: Golden Pro Insurance Services, Inc. v. AAA Merchant Servies; Aimee Johnson; Fiserv; Credit Risk Monitoring; and Does 1-100 Case # 23CHCV01560 LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 AUGUST 20, 2024 DEMURRER Los Angeles Superior Court Case # 23CHCV01560 Motion filed: 6/20/24 MOVING PARTY: Defendants AAA Merchant Services, and Aimee Johnsen, erroneously sued as Aimee Johnson RESPONDING PARTY: Plaintiff Golden Pro Insurance Services, Inc. NOTICE: OK. RELIEF REQUESTED: An order granting Defendants demurrer to Plaintiffs First Amended Complaint. TENTATIVE RULING: The demurrer is OVERRULED. BACKGROUND On May 30, 2023, Plaintiff Golden Pro Insurance Services, Inc. (Plaintiff) initiated this action against Defendants AAA Merchant Services (AAA), Aimee Johnson, Fiserv, Credit Risk Monitoring, and Does 1 through 100, alleging (1) Conversion, (2) Common Counts, (3) Fraud, and (4) Negligence. Subsequently, On December 15, 2023, Plaintiff filed its amendment to the Complaint, substituting Defendants Fiserv and Credit Risk Monitoring with their true name, CardConnect LLC (CardConnect). Subsequently, on April 2, 2024, Plaintiff filed a Request for Dismissal, dismissing Defendant CardConnect, which was entered on the same day. On April 23, 2024, the Court sustained in part a demurrer filed by Defendants on January 19, 2024, granted Plaintiff 30 days leave to amend. Subsequently, on May 21, 2024, Plaintiff filed the operative First Amended Complaint (FAC) against the remaining Defendants AAA, Aime Johnsen, erroneously sued as Aimee Johnson (Johnsen), and Does 1 through 100. The FAC alleges three causes of action: (1) Conversion, (2) Fraud, and (3) Negligence. On June 20, 2024, Defendants AAA and Johnsen (Defendants) filed the instant Demurrer to the FAC (the Demurrer). Subsequently, Plaintiff filed its Opposition on August 7, 2024, and Defendants replied on August 13, 2024. ANALYSIS It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A general demurrer is proper, and typically used, where the plaintiff fails to allege facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.) The sufficiency of a cause of action is evaluated by presuming all of the material factual allegations in the complaint are true. (Aubry v. TriCity Hospital Dist. (1992) 2 Cal 4th 962, 966 967 (Aubry).) In ruling on a demurrer, a court may consider facts that are properly subject to judicial notice. (Arroyo v. Plosay, 225 Cal. App. 4th 279.) In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while "[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact." (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120, 135.) Additionally, [a] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) And it is an abuse of discretion 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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Aubry, supra, 2 Cal. 4th at 967.) A. First Cause of Action - Conversion Conversion consists in the unwarranted interference by defendant with the dominion over the property of plaintiff, from which injury to the latter results. [Citation omitted.] (Gruber v. Pacific States Savings & Loan Co. (1939) 13 Cal.2d 144, 148.) The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452; see also Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105, 1135; PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) 1) Defendants Interference with Plaintiffs Funds Firstly, Defendants argue that Plaintiff fails to sufficiently state their interference with Plaintiffs funds, asserting that the FAC attributes the withholding of funds to CardConnect, not AAA or Johnsen. (Dem. at pp. 3-4.) They argue that the Service Agreement confirms that CardConnect was the entity responsible for holding funds in reserve against potential risks. (Dem. at p. 2, FAC, Ex. A.) In response, Plaintiff contends that the Court previously overruled Defendants demurrer on this cause of action, thereby arguing that the instant Demurrer is improper. (Oppn. at p. 4.) The Court notes that the operative FAC expressly incorporates the underlying Service Agreement (the Agreement) as its Exhibit A. (FAC ¶ 21.) Unlike the original Complaint, which did not include the Agreement, the Court must now consider the Agreements terms especially if they contradict the allegations alongside the FACs claims to determine the legal sufficiency of the FAC on its face. The Court turns to assess the sufficiency of the pleading. In the FAC, Plaintiff alleges that AAA, Johnsen, and CardConnect (erroneously sued as Fiserv and Credit Risk Monitoring, and subsequently dismissed) are all doing business as purveyor[s] of credit card processing services[.] (FAC ¶¶ 2-5.) [E]ach of the Defendants was the agent, servant, representative or employee of each of the other Defendants, and at all times herein mentioned, was acting within the scope and course of that agency or employment. (Id. ¶ 7.) Plaintiff claims that AIMEE JOHNSON, AAA[], FISERV and CREDIT RISK MONITORING, said Defendants took $132,789.32 of [Plaintiffs] money, to which [Plaintiff] had an immediate right to possession, and deprived [Plaintiff] of said funds for many months, even though the right of [Plaintiff] to immediate possession had been confirmed within a few days. (FAC ¶ 11.) Plaintiff further asserts that [t]he Defendants, and each of them, have interfered with, and continue to interfere with, Plaintiffs right to possession of the above identified amount certain. (Id. ¶ 12.) Regarding the alleged agency relationship, the FAC alleges that Within the last 2 years, Defendants, AIMEE JOHNSON and AAA MERCHANT SERVICES, as the authorized agents of Defendants, FISERV and CREDIT RISK MONITORING, solicited credit card processing services from Plaintiff[.] (FAC ¶ 9.) Based on the representations by Defendants, AIMEE JOHNSON, AAA MERCHANT SERVICES, FISERV and CREDIT RISK MONITORING ... Plaintiff [] retained the credit card processing services represented. (Id. ¶ 10.) While the Court acknowledges that the Agreement, now incorporated as Exhibit A of the FAC, appears to indicate that it was entered into solely by Plaintiff and CardConnect, this signatory exclusivity does not squarely conflict with the allegations that all Defendants, including the non-signatories, acted within the scope and course of that agency or employment with each other and interfered with Plaintiffs funds, identified for the amount of $132,789.32. Although it will ultimately be Plaintiffs burden to prove each element of the Conversion claim, including that Defendants wrongfully interfered with its property right, the Court, at this stage of the proceedings, must liberally construe the allegations of the FAC, with a view to substantial justice between the parties, and presume all of the material factual allegations in the FAC to be true. For this reason, the Court does not consider Defendants dispute over the agency relationship that [they were] merely sales agent[s] who solicit[] merchants for CardConnects credit card processing services ... [and were] not involved in the distribution of funds of Plaintiffs account. (Mot. at p. 4.) Consequently, the Court concludes that at this stage of the proceedings, the FAC has sufficiently alleged that Defendants interfered with Plaintiffs funds. 2) Plaintiffs Immediate Right to Possession Secondly, Defendants do not dispute Plaintiffs ownership of the funds; rather, they argue that the FAC does not establish Plaintiffs immediate right to possession of the funds because the Agreement expressly provides no such right exists. (Mot. at p. 4.) The provisions cited by Defendants include: All credits to your Settlement Account or other payments to [Plaintiff] are provisional and are subject to, among other things, [CardConnects] right to deduct our fees, our final audit, Chargebacks (including our related losses), and fees, fines and any other charge imposed on [CardConnect] by the Card Organizations as a result of your acts or omissions. (FAC, Ex. A, § 24.3.) Additionally, You expressly authorize us to establish a Reserve Account pursuant to the terms and conditions set forth in this Section 32. (Id. § 32.1.) The Court infers that Defendants argument is intended to show that the delayed payment of Plaintiffs funds from a Reserve Account is authorized by the Agreement and thereby does not constitute an interference with a right of possession for the purpose of a conversion claim. The FAC alleges that When Plaintiff, GOLDEN PRO INSURANCE SERVICES, INC., utilized the credit card processing services they had purchased from Defendants, AIMEE JOHNSON, AAA MERCHANT SERVICES, FISERV and CREDIT RISK MONITORING, said Defendants took $132,789.32 of GOLDEN PRO INSURANCE SERVICES, INC.S money, to which GOLDEN PRO INSURANCE SERVICES, INC. had an immediate right to possession, and deprived GOLDEN PRO INSURANCE SERVICES, INC. of said funds for many months, even though the right of GOLDEN PRO INSURANCE SERVICES, INC. to immediate possession had been confirmed within a few days. (FAC, ¶ 11.) (Underlines added.) The Court notes that case law establishes that an unreasonable delay in releasing funds may constitute conversion. (See Greif v. Sanin (2022) 74 Cal.App.5th 412, [holding that a vendor committed conversion by delaying for almost two years in releasing the purchaser plaintiffs funds deposited in escrow.]) Furthermore, the Court observes that Defendants argument does not address whether the Reserve Account justifies delaying the payment of Plaintiffs funds for many months ... even though Plaintiffs right to immediate possession had been confirmed within a few days, as alleged and must be presumed to be true for the purpose of reviewing a demurrer. Consequently, the Court finds the argument to be conclusory and insufficient to overcome Plaintiffs specific allegations of an immediate right to possession. Accordingly, the Court concludes that allegations regarding Plaintiffs immediate right to possession are deemed to the sufficiently stated to survive a demurrer. Therefore, the Court OVERRULES the Demurrer as to the First Cause of Action. B. Second Cause of Action Fraud A claim for fraud must plead all of the following elements: (1) misrepresentation; (2)¿knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Particularity requires facts that show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12¿Cal.4th 631, 645 (Lazar).) Here, Defendants argue that Plaintiff cannot plead reasonable reliance when the Agreement directly contradicts the alleged misrepresentation, citing Hadland v. NN Invs. Life Ins. Co. (1994) 24 Cal.App.4th 1578, 1586-89 (Hadland). (Dem. at p. 5.) Specifically, they contend that the alleged misrepresentation that CardConnect would promptly be crediting the full payments due without delay cannot be reasonably relied upon because the Agreement authorized CardConnect to establish a Reserve Account ... in [CardConnects] sole discretion, based upon [Plaintiffs] processing history and the potential risk of loss to [CardConnect] as we may determine from time to time. (FAC, Ex. A, § 32.1.) (Dem. at p. 6.) Additionally, Defendants argue that the other alleged misrepresentation that the terms of the Agreement were identical for practical purpose to Plaintiffs then-existing processing agreement is also contradicted by the express acknowledgment in the Agreement that CardConnect had the right to withhold funds and that certain risks were to be assumed by Plaintiff. (Dem. at p. 6.) The Court distinguishes Hadland. The Hadland court considers an alleged misrepresentation during an insurance sales presentation, where the insurer defendants associates told the plaintiff that the new policys coverage was as good if not better than the insured plaintiff's previous policy, at half the premium cost. However, as it turned out, the new policy, while less expensive, did not cover most outpatient medical expenses. (Id. at p. 1581.) The Hadland court found that the plaintiffs reliance on the associates representation was unjustified, reasoning that any claim that the plaintiffs new policy would be as good as the old was patently at odds with the express provisions of the written contract. (Id. at p. 1578.) Unlike the insurance policy provisions in Hadland, the terms of the Agreement cannot be said to be clearly at odds with the alleged misrepresentations. Notably, while the Agreements express terms authorize Defendant CardConnect (initially sued as Fiserv and Credit Risk Monitoring, subsequently dismissed) to establish a Reserve Account (FAC, Ex. A, § 32.1), this authorization is conditioned on [CardConnects] sole discretion, based upon [Plaintiffs] processing history and the potential risk of loss ... (Ibid.) Here, Plaintiffs reliance based on these conditions is alleged with specificity that [a]s part of their solicitation, [Defendants] analyzed the payment history of Plaintiff ... and their existing credit card processing contract and represent that the contract terms were identical for practical purposes and that FISERV and CREDIT RISK MONITORING, would promptly be crediting the full payments due without delay. (FAC ¶ 20.) Thus, unlike in Hadland, where the benefits under the new policys express terms directly contradicted with the associates oral representation. Here, the representation, when construed liberally as the Court is required to in reviewing a demurrer, can be interpreted as consistent with the express terms of the Agreement (FAC Ex A, § 32.1), as it implies the effect of the express terms when the conditions are applied. Consequently, the Court finds Defendants argument on this basis is not well founded. Based on this, the Court OVERRULES the Demurrer as to the Third Cause of Action. C. Third Cause of Action Negligence The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) Owing a duty of care to the plaintiff is an indispensable prerequisite to the imposition of liability for negligence. (Richards v. Stanley (1954) 43 Cal.2d 60, 63.) A duty is an obligation, recognized by the law, requiring the actor to conform to certain standard of conduct, for the protection of others against unreasonable risks. (Hilyar v. Union Ice Co. (1955) 45 Cal. 2d 30, 36-37.) The Court previously sustained a demurrer as to the Negligence claim without leave to amend. (2024/4/22 Minute Order.) The original Negligence claim in the Complaint summarily alleged that Defendants owed a duty arising from the Agreement, despite their lack of involvement in it. However, in the FAC, Plaintiff now alleges that Defendants are liable for negligently reviewing Plaintiffs prior contract for credit card services and misrepresenting the effect of the Agreement. (FAC ¶ 33.) Because the Negligence claim in the FAC is now based on different facts specifically, the direct conduct of Defendants prior to the formation of the Agreement the Court should treat it as a new cause of action, even though it is styled under the same Negligence label. As to the duty element, the FAC alleges, When AIMEE JOHNSON and AAA MERCHANT SERVICES held themselves out to be specialists at evaluating and recommending credit card processing services, they implicitly represented to Plaintiff that their conduct would comply with the standard of care of credit card processing service consultants in the area when advising Plaintiff. (FAC ¶ 32.) In their Reply, Defendants argue that Plaintiff has failed to cite any authority supporting the claim that a Credit Card Processing Professional owes a higher standard of care than any other sales representative. (Reply at p. 7.) The Court notes the standard for professionals is articulated in terms of exercising the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing.... (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998 (Flowers); also see CACI No. 600.) Here, Plaintiff alleges that Defendants held themselves out to be specialist at evaluating and recommending credit card processing services[.] (FAC ¶ 32.) By liberally construing the allegation and assuming its truth, the Court may reasonably infer that a standard of care under this particular set of facts is measurable and that Plaintiff, in this context, is so situated that it may reasonably rely on such supposed knowledge, information, or expertise by Defendants. Consequently, the Court declines to hold, at this stage of the proceedings, that as a matter of law, Defendants owed no duty to Plaintiff concerning their review and the recommendation of the credit card processing service. Additionally, Defendants contend that professional negligence claims generally require contractual privity. (Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137.) The Court emphasizes that it is undisputed that Defendants solicited credit card processing services from Plaintiff and directly provided their service of analysis of payment to Plaintiff. While there is no privity of contract for this service, it does not negate the duty that may arise from the facts if an ordinary negligence claim can be sustained. Notably, our Supreme Court in Flowers declared that there is no conceptual distinction between ordinary and professional negligence. With respect to questions of substantive law, they comprise essentially one form of action. Apart from statutory considerations, characterizing misfeasance as one type of negligence or the other generally only serves to define the standard of care applicable to the defendant's conduct. (Flowers, supra, 8 Cal.4th at pp. 995, 996-997.) [W]hether the cause of action is denominated ordinary or professional negligence, or both, ultimately only a single standard can obtain under any given set of facts and any distinction is immaterial[.] (Id. at p. 1000.) In line with the principles set forth in Flowers, the Court concludes that the FACs Negligence claim is capable of surviving the demurrer challenge. Based on the foregoing, the Court OVERRULES the Demurrer. CONCLUSION Defendants Demurrer is OVERRULED. Defendants are ordered to serve and file their Answers to the First Amended Complaint within 20 days. Moving party to give notice.

Ruling

LAW FIRM OF HAROLD GREENBERG VS BARBARA APPLEBERRY

Aug 21, 2024 |23STCV21702

Case Number: 23STCV21702 Hearing Date: August 21, 2024 Dept: 54 Superior Court of California County of Los Angeles Law Firm of Harold Greenberg, Plaintiff, Case No.: 23STCV21702 vs. Tentative Ruling Barbara Appleberry and DOES 1 through 10, inclusive Defendants. Hearing Date: August 21, 2024 Department 54, Judge Maurice A. Leiter Motion to Set Aside Default Moving Party: Plaintiff Law Firm of Harold Greenberg Responding Party: Defendant Barbara Appleberry T/R: DefenDANTS MOTION TO SET ASIDE DEFAULT IS GRANTED. Defendant TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. The Court considers the moving papers, opposition, and reply. Defendant Appleberry moves to set aside the default entered by the Court on May 6, 2024, on grounds of both fraud and excusable neglect. A motion under CCP § 473(b) must be made within six months of the dismissal. Defendants motion is timely, as Default was entered on May 6, 2024, and Defendant Appleberry brought this motion on June 14, 2024. Defendant first contends that the default was entered as the result of fraud. Defendant says she was not properly served and Defendant has produced a false Declaration of Due Diligence. She moves to set aside default pursuant to CCP § 473.5. Defendant has not shown fraud; her allegations are unsubstantiated. Defendant also moves for relief pursuant to CCP § 473(b), claiming that she is 79 years old and experienced health challenges from which she is still healing. She also claims she was confused, and believed that her informal efforts to resolve the case would be sufficient. At the time Defendant was representing herself and did appear in Court explaining that she was trying to speak with Plaintiff to settle the case. The Court finds that this is sufficient to show excusable neglect. The motion is granted. Defendant shall file her response to the complaint within 20 days.

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