MOTION TO STRIKE Motion to Strike & Memorandum of Law In Support Of RESULT: Order 5/3/2024 BY THE CLERK March 21, 2024 (2024)

Case

SPRAY FOAM OUTLETS, LLC v. FIRST DATA MERCHANT SERVICES LLC

Jul 22, 2024 |C90 - Contracts - All other |FST-CV24-6068210-S

Case

SUMMIT WESTPORT LLC v. JESSBAR VENTURES LLC

Jul 24, 2024 |C30 - Contracts - Specific Performance |FBT-CV24-6136462-S

Case

HOP ENERGY LLC DBA KAUFMAN FUEL v. WILLIAMS, NICOLE D

Jul 24, 2024 |S25 - Small Claims - Small Claims - Contract - Other |FST-CV24-6068246-S

Case

PICKERING,JAMES JR. P v. TOWN OF NEW CANAAN -HUMAN RESOURCES DEPARTMENT

Jul 26, 2024 |S25 - Small Claims - Small Claims - Contract - Other |FST-CV24-5030818-S

Case

Jul 25, 2024 |S20 - Small Claims - Small Claims - Contract - Home Improvement |DBD-CV24-6051065-S

Case

CONN-MAY v. SISTRUNK,ALBERT

Jun 29, 1992 |BY THE CLERK |F81 - Family - Parentage Acknowledgment With Support Agreement - C.G.S. 46b-172 |FST-FA92-0125386-S

Case

RED CANOE PARTNERS, LLC v. 189 SOUND BEACH AVENUE, LLC Et Al

Jul 25, 2024 |C90 - Contracts - All other |FBT-CV24-6136517-S

Case

CALDERON, IAN, AS TRUSTEE TO THE JESSE H. TENNEY R v. EMPIRE REALTY USA CORP.

Jul 25, 2024 |C90 - Contracts - All other |FST-CV24-6068280-S

Case

HOP ENERGY LLC DBA KAUFMAN FUEL v. DISRAELLY, ARI SAM

Jul 24, 2024 |S25 - Small Claims - Small Claims - Contract - Other |FST-CV24-6068244-S

Ruling

MORA vs DPEP, INC.

Jul 23, 2024 |CVSW2303245

MOTION TO COMPEL FURTHERRESPONSE TO SPECIALCVSW2303245 MORA VS DPEP, INC. INTERROGATORIES; REQUEST FORSANCTIONS BY JOSHUA MORA,SHANNON MORATentative Ruling: Take the hearing on the motion off calendar. The parties are ordered to meetand confer further. If the parties are unable to resolve their differences, then they should requestan IDC (Informal Discovery Conference). If after an IDC the court is unable to help the partiesresolve any remaining issues, then the court will re-calendar the hearing on the motion.A motion to compel further responses to SPROGs must be accompanied by a declarationdescribing in detail the reasonable and good-faith efforts that each party has made to resolveinformally each issue presented by the motion. (C.C.P. §§2016.040, C.C.P. § 2030.300(b)(1).)Each party must “confer in person, by telephone, or by letter with an opposing party or attorney,”and make a “reasonable and good faith attempt to resolve informally any dispute concerningdiscovery”; failure by any party to do so is a misuse of the discovery process. (C.C.P.2023.010(i).) The purpose of the meet and confer requirement is to force lawyers to reexaminetheir positions, and to narrow their discovery disputes to the irreducible minimum, before callingupon the court to resolve the matter. (Stewart v. Colonial Western Agency, Inc. (2001) 87Cal.App.4th 1006, 1016-17.) Evaluating whether a “reasonable and good faith attempt” to meetand confer was made requires an “evaluation of whether, from the perspective of a reasonableperson in the position of the discovering party, additional effort appears likely to bear fruit.”(Clement v. Alegra (2009) 177 Cal.App.4th 1277, 1294.) The level of effort that is reasonable isdifferent in different circ*mstances and may vary with the prospects for success, but the lawrequires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.(Ibid.)Plaintiffs’ counsel sent one letter to FCA’s counsel, who responded and also extended Plaintiffs’motion to compel deadline. (Decl. of Armando Lopez [“Lopez Decl.”] at ¶¶ 6-8.) Plaintiffs madeno other attempts to resolve these matters before filing the motion. Had the parties properly metand conferred, at least some of the issues in this motion likely could have been resolved.Therefore, the Court finds Plaintiffs did not meet their statutory obligation to make a good faithattempt to resolve the issues raised by the motion.

Ruling

SCHUSTER vs GENERAL MOTORS, LLC.

Jul 25, 2024 |CVRI2305472

Motion to Strike Complaint on 1stAmended Complaint for Breach ofSCHUSTER vs GENERALCVRI2305472 Contract/Warranty (Over $25,000) ofMOTORS, LLC.MARK SCHUSTER by GENERALMOTORS, LLC.Demurrer on 1st Amended Complaint forSCHUSTER vs GENERAL Breach of Contract/Warranty (OverCVRI2305472MOTORS, LLC. $25,000) of MARK SCHUSTER byGENERAL MOTORS, LLC.Tentative Ruling:Plaintiffs, Mark and Joanne Schuster, allege that on 5/20/20 they entered into a warranty contractwith Defendant, General Motors, LLC (GM) regarding a certified pre-owned 2019 ChevroletSilverado, which they purchased from Premier Chevrolet in Buena Park. Plaintiffs allege defectsand nonconformities manifested within the express warranty period that impair the use, value, orsafety of the vehicle including defects in the engine and transmission among others. Plaintiffsallege that GM and its representative were unable to repair the vehicle after a reasonable numberof repair attempts, and failed to replace or make restitution for the defective vehicle. Plaintiffs filedtheir operative First Amended Complaint (FAC) on 2/20/24 alleging six causes of action, someunder the Song Beverly Act (SBA): 1) violation of Civil Code (CC) § 1793.2(d); 2) violation of CC§ 1793.2(b); 3) violation of CC § 1793.2(a)(3); 4) breach of the implied warranty of merchantability(CC §§ 1791.1, 1794, 1795.5; 5) fraudulent inducement-concealment; and, 6) violation of theMagnuson-Moss Warranty Act.***Counsel for GM, Sandra Habib, filed a meet and confer declaration in compliance with CCP §§430.41, and 435.5. Specifically, on 4/15/24 Ms. Habib met and conferred by phone with Plaintiff’scounsel, but they were unable to resolve the dispute.Defendant, GM, brings this demurrer to the 5th cause of action in the FAC for failure to state factssufficient to constitute a cause of action. (CCP § 430.10(e).) GM argues that the 5th cause ofaction is barred by the applicable three-year statute of limitations (CCP § 338(d)); fails to allegespecific facts to support the elements – who, their authority, what, to whom, and when; and failsto allege a transactional relationship giving rise to a duty to disclose – Plaintiffs did not purchasethe vehicle directly from GM.Plaintiffs oppose the demurrer arguing that the fraud claim is timely; that the running of the statuteof limitations does not appear “clearly and affirmatively” on the face of the FAC; that GM failed todisclose the transmission defect each time Plaintiffs returned to the GM dealership for repairsthereby concealing the defect; that the discovery rule, fraudulent concealment, and the repair ruledoctrines apply to toll the running of the statute of limitations; that fraud is alleged with requisitespecificity; that specificity is relaxed where there was concealment and it is apparent thatdefendant necessarily has knowledge of the facts; and that a transactional relationship is notrequired where the manufacturer has a duty to disclose.The Reply re-asserts prior arguments.GM also brings this motion to strike punitive damages from the FAC on the ground that the fraudclaim fails so, the claim for punitive damages also fails. (CCP §§ 435, 436.)Plaintiffs oppose arguing that the demurrer to the fraud cause of action fails as it is sufficientlyalleged, and therefore, so is the claim for punitive damages. Also, Plaintiffs argue that punitivedamages are available under the SBA.The Reply re-asserts prior arguments and adds that punitive damages are not available to theSBA claims, which limits damages to a refund or replacement, and potential civil penalties.Analysis:DEMURRERIn evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it asa whole and all of its parts in their context. (Moore v. Regents of University of California (1990)51 Cal. 3d 120, 125). The court assumes the truth of all material facts which have been properlypleaded, of facts which may be inferred from those expressly pleaded, and of any material factsof which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8Cal. 4th 666, 672). However, a demurrer does not admit contentions, deductions or conclusionsof fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713). Facts appearing inexhibits attached to the complaint will also be accepted as true and, if contrary allegations appearin the complaint, will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981)123 Cal. App. 3d 593, 606). If the complaint fails to state a cause of action, the court must grantthe plaintiff leave to amend if there is a reasonable possibility that the defect can be cured byamendment. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318).5th Cause of Action for Fraudulent Inducement - ConcealmentStatute of LimitationsImportantly, a demurrer can be used only to challenge defects appearing on the face of thepleading under attack or from matters outside the pleading that are judicially noticeable (Blank v.Kirwan (1985) 39 Cal.3d 311, 318), and it is error for a court to consider facts asserted in asupporting memorandum. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Afusov. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other groundsin Moradi-Shalal v. Fireman’s Fund Ins. Co. (1988) 46 Cal.3d 287.) Thus, a demurrer based upona statute of limitations only lies where the running of the statute “clearly and affirmatively” appearson the face of the complaint. (Committee for Green Foothills v. Santa Clara County Bd. ofSupervisors (2010) 48 Cal.4th 32, 42.)Here, the FAC alleges that Plaintiffs entered into a warranty contract with GM on 3/5/19 regardingthe purchase of a 2019 Chevrolet Silverado. (FAC ¶ 6.) It is alleged that defects andnonconformities to warranty manifested within the express warranty period. (Id. ¶ 11.) It is alsoalleged that statutes of limitations were tolled under the doctrines of equitable tolling, thediscovery rule, equitable estoppel, the repair rule, and/or class action tolling including factualallegations. (Id. ¶¶ 22, 24-41.) Plaintiffs allege that they discovered GM’s wrongful conduct“shortly before the filing of the complaint, as the Vehicle continued to exhibit symptoms of defectsfollowing Defendant GM’s unsuccessful attempts to repair them.” (Id. ¶ 23.) These allegationswere incorporated into the fraud cause of action. (Id. ¶ 61.) The FAC alleges fraudulentinducement - concealment at the time of purchase (Id. ¶¶ 62-70) and continuing thereafter whenGM concealed the defect and its inability to repair it. (Id. ¶¶ 71-72.) Based on these allegations,it is not clear on the face of the FAC that the statute of limitations period bars the action.Therefore, on this ground, the demurrer is overruled.Requisite AllegationsThe elements of an action for fraud based on concealment are: (1) the defendant concealed amaterial fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendantintentionally concealed the fact with intent to defraud; (4) the plaintiff was unaware of the fact andwould not have acted had she or he had knowledge of the concealed fact; and (5) the plaintiffsustained damages as a result of the concealment. (Blickman Turkus, LP v. MF DowntownSunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) Fraud in the inducement is a subset of thefraud tort occurring when a promisor’s consent is induced by fraud. (Hinesley v. Oakshade TownCenter (2005) 135 Cal.App.4th 289, 294; see also Engalla v. Permanente Medical Group, Inc.(1997) 15 Cal.4th 951, 973-74.) In any event, each element of a claim for fraud must be pleadedwith specificity rather than with general and conclusory allegations. (Knox v. Dean (2012) 205Cal.App.4th 417, 433.)Duty to DiscloseHere, for pleading purposes, Plaintiffs have demonstrated that GM had a duty to disclose. A dutyto disclose arises under four circ*mstances in which nondisclosure or concealment may constituteactionable fraud: “(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) whenthe defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when thedefendant actively conceals a material fact from the plaintiff; and (4) when the defendant makespartial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc.(2017) 7 Cal.App.5th 276, 311 [citation and internal quotation marks omitted].) Here, theallegations of the FAC do not indicate the existence of a fiduciary relationship between GM andPlaintiffs. The other three circ*mstances in which the duty may arise “presuppose the existenceof some other relationship between the plaintiff and defendant in which a duty to disclose canarise …. such as seller and buyer, employer and prospective employee, doctor and patient, orparties entering into any kind of contractual arrangement.” (Ibid. [citation and internal quotationmarks omitted].)Here, Plaintiffs identify GM as the manufacturer and/or distributor. (FAC ¶ 4.) They allege thatwhen they purchased the vehicle, they also purchased an express written warranty from GM (Id.¶ 6.) They do not allege that they purchased the subject vehicle directly from GM. Rather, it isalleged that Plaintiffs purchased the subject vehicle from a GM “authorized retail dealer” – PremierChevrolet in Buena Park. (Id. ¶ 6.) These allegations are incorporated into the 5th cause of actionfor fraudulent inducement - concealment. (Id. ¶ 61.) Plaintiffs have not specifically alleged theexistence of a direct relationship between them and GM, but they do allege an express writtenwarranty, which may give rise to a duty to disclose. Plaintiffs are not required at the pleading stageto prove the agency relationship between GM and its dealerships, and there is no question thatGM communicates to consumers, at least in part, through its authorized dealers. (See, e.g.,Daniel v. Ford Motor Co. (9th Cir. 2015) 806 F.3d 1217, 1226-27.)Plaintiffs also argue that they do not have to show a fiduciary or direct relationship because therewas an unreasonable safety hazard posed by the defect so that GM had an affirmative duty todisclose it. (see Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 835.)Plaintiffs allege and argue safety concerns regarding the vehicle’s transmission that GM wasaware of since at least 2014, but GM did not disclose the Transmission Defect or the safety issues.(FAC ¶¶ 12, 62-73.) GM allegedly marketed and sold a new eight-speed automatic transmissionas having “world-class performance” that was “lightning-fast and smooth shifting, along withimproved fuel efficiency.” (Id. ¶ 66.) But, the transmissions did not live up to the representationsmade, which Plaintiffs had no way of knowing about. (Id. ¶ 67.) The subject vehicle was deliveredwith serious defects. (Id. ¶¶ 61-63.) The vehicle has hard or harsh shifts, jerking, lurching,hesitation on acceleration, surging and/or inability to control the vehicle’s speed, acceleration, ordeceleration. (Id. ¶ 64.) The FAC alleges that GM and its agents knew the transmissions weredefective and “present a safety hazard and are unreasonably dangerous to consumers becausethey can suddenly and unexpectedly cause the driver to be unable to control the vehicle’s speed….” (Ibid.; see also ¶¶ 62-63 and 65-74.) Had Plaintiffs known about the Transmission defects,they would not have purchased the vehicle. (Id. ¶ 75.)Further, although not binding on this court, the fairly recent decision of Dhital v. Nissan NorthAmerica, Inc. (2022) 84 Cal.App.5th 828 is instructive with respect to the pleading requirementsfor fraudulent concealment. The Dhital court decided two distinct issues: (1) whether there is anexception to the economic loss rule for fraudulent inducement claims; and (2) whether theplaintiffs’ allegations in that case adequately set forth a claim for fraudulent inducement underCalifornia law. The court concluded both that the economic loss rule did not bar plaintiffs’ claimand that the claim had been adequately pleaded. (Id. at 839.) The California Supreme Courtrecently granted review but declined to order deduplication; thus, the case may be cited for itspersuasive value. (See Dhital v. Nissan North America (Cal. 2023) 304 Cal.Rptr.3d 82 [grantingpetition for review]; CRC 8.1105 and 8.1115(e).)In Dhital, the plaintiff alleged: (1) Nissan installed defective transmissions in numerous vehicles(including the plaintiffs’ vehicle); (2) Nissan was aware of the defects and hazards they posed; (3)Nissan had exclusive knowledge of the defects but intentionally concealed and failed to disclosethe information; (4) Nissan intended to deceive plaintiffs by concealing the transmission problems;(5) plaintiffs would not have purchased the car had they known of the defects; and (6) plaintiffsuffered damages in the form of money paid to purchase the car. (Id. at 843-844.) The Court heldthat the plaintiffs’ allegations sufficiently pleaded a claim for fraudulent inducement and that thesame was excepted from the economic loss rule. (Id. at 843-45.)Here, the FAC makes similar allegations to those set forth above in the Dhital case including aduty to disclose, and ongoing concealment of the Transmission Defect for years. (FAC ¶¶ 12, 61-75.) Plaintiffs’ allegations in the FAC are sufficient at the pleading stage to set forth a claim forfraudulent concealment. Accordingly, the demurrer to the 5th cause of action is overruled.MOTION TO STRIKECCP §435 and §436 authorize a motion to strike, and permit the court to strike out irrelevant, falseor improper matter, or “any part of any pleading not drawn or filed in conformity with the laws ofthis state, a court rule, or an order of the court.” (CCP §436.)Punitive DamagesTo support a demand for punitive damages under Civ. Code §3294, a plaintiff must plead andprove facts demonstrating malice, oppression or fraud as defined in Civ. Code §3294(c). Asdefined in the statute, malice is “conduct which is intended by the defendant to cause injury to theplaintiff or despicable conduct which is carried on by the defendant with a willful and consciousdisregard of the rights or safety of others,” while oppression is defined as “despicable conductthat subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”(Civ. Code § 3294(c)(1) and (2).) Thus, punitive damages may be recovered for a non-intentionaltort where a plaintiff pleads and proves that the defendant acted with “conscious disregard of therights and safety of others.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299[quoting Gawara v. United States Brass Corp. (1998) 63 Cal.App.4th 1341, 1361].)In the present case, Plaintiffs argue that they may recover punitive damages based on the 5thcause of action for fraudulent inducement - concealment. As discussed above, Plaintiffs havesufficiently set forth a cause of action for fraudulent inducement - concealment, which is sufficientto support the demand for punitive damages. Thus, the motion to strike is denied.Summary: Overrule the demurrer. The motion to strike is denied as moot.

Ruling

Albert Seeno, Jr. vs. Albert Seeno, III

Jul 22, 2024 |C22-01746

C22-01746CASE NAME: ALBERT SEENO, JR. VS. ALBERT SEENO, III*HEARING ON MOTION IN RE: FOR COMPLEX CASE DESIGNATIONFILED BY: SEENO, ALBERT D., III*TENTATIVE RULING:*Before the Court is Defendant Albert D. Seeno III and Defendant Discovery Builders, Inc. (collectively,“Defendants”)’s motion for complex case designation. The motion is opposed by Plaintiffs Albert D.Seeno, Jr. (“Seeno”), Seecon Financial & Construction Co., Inc. (“Seecon”), Seecon Built Homes, Inc.(“Seecon Built Homes”), Albert D. Seeno Construction Co. (“ADSCO”), West Coast Home Builders, Inc.(“West Coast”), North Village Development, Inc. (“North Village”), and Alsan Financial & Leasing, Inc.(“Alsan”) and (collectively, “Plaintiffs”).This hearing is scheduled along with related matters C23-00614, C23-01658, C24-00327, N24-0406,and C23-01029.For the following reasons, the Court grants the motion to designate this case (C22-01746) complexand consolidates it with the related matters C23-00614, C23-01658, C24-00327, N24-0406, and C23-01029 for discovery and pretrial determinations. The Court deems case number C22-01746 complexand it is assigned for all purposes to the Honorable John P. Devine, Department 9.AnalysisDefendants argue that this case is properly designated as a complex action because it will involve alarge number of witnesses and documents, will involve numerous complex pretrial motions, and islikely to require coordination among different departments, counties, and courts.Plaintiffs argue that complex case designation is not appropriate because it is not complex as thatterm is defined by CRC 3.400. Specifically, that this case involves a “focused pool” of witnesses anddocumentary evidence, that any pre-trial motions will rely on relatively straightforward corporatelaw, and “any need for coordination with other cases only arises from Seeno III’s artificial claimsplitting.”On reply, Defendants argue that the anticipated witnesses and documents are much broader thanPlaintiffs suggest. They also point to the number and complexity of motions that have been heard andare scheduled in this case.A “complex case” is an action that requires exceptional judicial management to avoid placingunnecessary burdens on the Court or the litigants and to expedite the case, keep costs reasonable,and promote effective decision making by the Court, the parties, and counsel. (California Rules ofCourt, Rule 3.400(a).) In deciding whether an action is a complex case, the Court addresses whetherthe action is likely to involve the following: (1) numerous pretrial motions raising difficult or novellegal issues that will be time-consuming to resolve; (2) management of a large number of witnesses ora substantial amount of documentary evidence; (3) management of a large number of separatelyrepresented parties; (4) coordination with related actions pending in one or more Courts in othercounties, states, or countries, or in a federal Court; or (5) substantial postjudgment judicialsupervision. (Id. at (b).) An action is provisionally a complex case if it involves one or more of thefollowing types of claims: (1) antitrust or trade regulation claims; (2) construction defect claimsinvolving many parties or structures; (3) securities claims or investment losses involving many parties;(4) environmental or toxic tort claims involving many parties; (5) claims involving mass torts; (6)claims involving class actions; or (7) insurance coverage claims arising out of any of the claims listedabove. (Id. at (c).)Here, the Court finds that the case is properly designated as complex. This case has already seen anumber of complex motions which have consumed significant Court resources. This is in addition tothe frequent use of ex parte procedures by the parties in this case.Additionally, the parties were also given the opportunity to brief the issue of consolidation of thiscase with related matters including case numbers C23-00614, C23-01658, C24-00327, and C23-01029.The Court finds that consolidation is merited here.“When actions involving a common question of law or fact are pending before the court, it may ordera joint hearing or trial of any or all the matters in issue in the actions; it may order all the actionsconsolidated and it may make such orders concerning proceedings therein as may tend to avoidunnecessary costs or delay.” (Code Civ. Proc. § 1048, subd. (a).) The purpose of consolidation is toenhance trial court efficiency by avoiding unnecessary duplication of evidence and the danger ofinconsistent adjudications. (See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th976, 978-979.) The consolidation of cases under Code of Civil Procedure section 1048(a) is a matter oftrial court discretion. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 979-980.)There is significant party and issue overlap between this case and the related matters C23-00614,C23-01658, C24-00327, and C23-01029. Consolidation would promote judicial economy. The Courtreserves the issue of whether to consolidate all cases for trial and at this time consolidates for thelimited purpose of discovery and pretrial matters.

Ruling

GUERRA vs REYNA, et al.

Jul 23, 2024 |Civil Unlimited (Fraud (no contract)) |22CV021036

22CV021036: GUERRA vs REYNA, et al. 07/23/2024 Hearing on Motion for Judgment on the Pleadings in Department 22Tentative Ruling - 07/17/2024 Brad SeligmanThe Motion for Judgment on the Pleadings filed by Nancy Cole, Yolanda Reyna on 06/17/2024is Granted.Defendants Yolanda Reyna (“Reyna”) and Nancy Cole’s (“Cole”) (collectively “Defendants”)Unopposed Motion for Judgment on the Pleadings is GRANTED in its entirety with leave toamend because Plaintiff Gloria Guerra’s form complaint that checks boxes corresponding togeneral negligence and fraud fails to allege material facts sufficient to support its conclusoryallegations that negligence and fraud took place. (Code Civ. Proc. §, 438, subd. (d).)MOTION FOR JUDGMENT ON THE PLEADINGS – LEGAL STANDARDA motion for judgment on the pleadings performs the same function as a general demurrer but ismade after the time for demurrer has expired. (Cloud v. Northrop Grumman Corp. (1998) 67Cal.App.4th 995, 999.) Like a demurrer, in a motion for judgment on the pleadings, any defectupon which a motion for judgment on the pleadings is based must appear on the face of thepleadings or from a matter which may be judicially noticed. (Code Civ. Proc. §, 438, subd. (d).)Where the complaint is defective, it ordinarily constitutes an abuse of discretion to sustain ademurrer without leave to amend if there is a reasonable possibility that the defect can be curedby amendment. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 970–971.)ANALYSISDefendants’ unopposed motion for judgment on the pleadings is granted with leave to amendbecause Plaintiff’s form complaint fails to provide a coherent narrative of facts to indicate whateach defendant did to support Plaintiff’s claims against them.The form complaint attaches seven separate pages of attachments (all titled “Cause of Action -General Negligence”) which each make various conclusory allegations regarding the distributionof an inheritance and a property located at 1737 Ustick Road, Modesto, California. While itremain unclear what actually happened due to the dearth of material facts alleged, it appears thatReyna was the executor of the trust and Cole persuaded Reyna not to distribute some portion ofthe inheritance to Plaintiff. Several conclusory statements regarding embezzlement, grand theft,criminal fraud, greed, persuasion of the Rena (the executor) to sell her own home to hand overher life savings and breach of fiduciary duties are alleged without much context. It thereforeremains unclear what actions were taken by each defendant that supports Plaintiff’s claimsagainst them and what those claims actually are. As Plaintiff’s Complaint fails to state factssufficient to state a cause of action for negligence or fraud, Defendants’ unopposed motion forjudgment on the pleadings with granted with leave to amend. (Code Civ. Proc. §, 438, subd. (d).)In amending her Complaint, Plaintiff should identify the trust at issue (by date, name or SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV021036: GUERRA vs REYNA, et al. 07/23/2024 Hearing on Motion for Judgment on the Pleadings in Department 22otherwise). In addition, although Plaintiff appears to have filed various declarations over thecourse of this litigation, those declarations are not part of her Complaint. The Complaint itselfmust state all material facts that Plaintiff claims are relevant to this case.NEGLIGENCETo state a cause of action for negligence, a plaintiff must allege material facts to show that:1) Defendant owed plaintiff a legal duty,2) Defendant breached that duty, and3) Defendant’s breach proximately caused Plaintiff’s damages or injuries.(Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)FRAUDTo state a cause of action for fraud, a plaintiff must allege material facts to show that:1) Defendant made a misrepresentation2) Defendant knew that their representation was false3) Defendant intended to defraud the plaintiff4) Defendant induced the plaintiff’s reliance5) Plaintiff’s reliance was justified, and6) As a result of Plaintiff’s reliance, Plaintiff was damaged.(Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)Additionally, the cause of action for fraud must state facts that “show how, when, where, towhom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at p.645.)With these guidelines in mind, Plaintiff is granted leave to amend. Plaintiff shall file heramended pleading within ten (10) days of the date of this Order.HOW DO I CONTEST A TENTATIVE RULING?THROUGH eCOURTNotify the Court and all the other parties no later than 4:00 PM one court day before thescheduled hearing, and briefly identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal2. Case Search3. Enter the Case Number and select “Search” SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV021036: GUERRA vs REYNA, et al. 07/23/2024 Hearing on Motion for Judgment on the Pleadings in Department 224. Select the Case Name5. Select the Tentative Rulings Tab6. Select “Click to Contest this Ruling”7. Enter your Name and Reason for Contesting8. Select “Proceed”BY EMAILSend an email to the DEPARTMENT CLERK (dept22@alameda.courts.ca.gov) and all the otherparties no later than 4:00 PM one court day before the scheduled hearing. This will permit thedepartment clerk to send invitations to counsel to appear remotely.Notice via BOTH eCourt AND email is required. The tentative ruling will become the ruling ofthe court if no party contests the tentative ruling.

Ruling

MORA vs FORD MOTOR COMPANY

Jul 22, 2024 |CVRI2305266

Motion to Compel Defendant Fritts FordMORA vs FORD MOTOR to Respond to Plaintiff's SpecialCVRI2305266COMPANY Interrogatories, Set One by OCTAVIOMORA, BARBARA MORATentative Ruling: This matter was stayed as to Fritt’s Ford on 4/22/2024. As such, this motion isoff calendar.

Ruling

Caetano Custom Tractor, LLC vs Janet Silva, et al.

Jul 29, 2024 |21CV-03994

21CV-03994 Caetano Custom Tractor, LLC v. Janet Silva, et al.Status Review of SettlementAppearance required. Remote appearances are permitted. Parties who wish to appearremotely must contact the clerk of the court at (209) 725-4111 to arrange for a remoteappearance. Notice of Settlement of Entire Case filed April 17, 2024. The settlement wasclaimed to be unconditional. On July 17, 2024, a Dismissal was filed of the Complaint andCross-Complaint filed December 8, 2022. Appear to address the remaining Cross-Complaint filed August 12, 2022, and whether a Motion to Enforce Settlement will be filed.

Ruling

SACRAMENTO PACKING INC vs MID VALLEY NUT COMPANY INC

Jul 25, 2024 |CV-24-003064

CV-24-003064 – SACRAMENTO PACKING INC vs MID VALLEY NUT COMPANY INC – Plaintiff’s Application for Writ of Attachment - Hearing Required.A hearing is required based on the provisions of Code Civ. Proc §484.040(a). However, based on the moving papers and evidence, the Court is inclined to GRANT the application on the basis that Plaintiff has established the requirements for issuance of a writ of attachment against Defendant, subject to the filing of an undertaking. (Code Civ. Proc. §§484.090, 489.210 and 489.220).In the absence of a property list for attachment, the Court would like to know the possible items of Defendant’s property that Plaintiff seeks to attach herein. Any right to attach order and writ of attachment shall be subject to the posting of an undertaking by Plaintiff pursuant to Code of Civil Procedure §§489.210 and 489.220.THE COURT’S PHONE SYSTEM MAY BE DOWN.If you desire a hearing, you must email your request to civil.tentatives@stanct.org before 4:00 p.m. today. In addition, your email must list the email addresses of all counsel who will appear at the hearing.Please refer to the Stanislaus Superior Court website for call-ininstructions for the hearing. IfVCourtis unavailable the website will postZoom Meetingcredentials for Dept. 24. The hearing will proceed via Zoom if VCourt is still unavailable.

Ruling

REYES vs. GENERAL MOTORS LLC

Jul 22, 2024 |C23-00960

C23-00960CASE NAME: REYES VS. GENERAL MOTORS LLC*HEARING ON MOTION FOR DISCOVERY FOR TERMINATING, ISSUE, OR EVIDENCE SANCTIONS ANDMONETARY SANCTIONS IN THE AMOUNT OF $4,320.00FILED BY: REYES, CHANTEL*TENTATIVE RULING:*Plaintiff Chantel Reyes filed a motion for terminating, issue, evidence and/or monetary sanctions inthe amount of $4320.00 against Defendant General Motors, LLC. Defendant General Motors, LLC hasfiled an opposition to this motion. For the reasons set forth below, the motion is denied.BackgroundOn April 11, 2024, Plaintiff Chantel Reyes filed a motion for terminating, issue, evidence, and/ormonetary sanctions against Defendant General Motors, LLC. Plaintiff alleges Defendant has notcooperated with court-ordered production of documents. On April 27, 2023, Plaintiff filed suit againstDefendant for alleged violation of the Song-Beverly Consumer Warranty Act, after her newlypurchased 2021 Cadillac Escalade, manufactured, distributed, and warranted by Defendant,experienced multiple defects and non-conformities to warranty. On June 8, 2023, Plaintiff servedrequests for production of documents on Defendant, Defendant responded serving only objections intheir reply. Plaintiff engaged in meet and confer as required by statute, and after no progress wasachieved, filed a motion to compel further responses on September 20, 2023. (CCP § 2016.040.)On December 6, 2023, the court ordered Defendant to produce further responses no later thanFebruary 6, 2024. On January 19, 2024, Defendant served Plaintiff with supplemental responses thateither stated the original responses or referred to a protective order that Plaintiff alleges does notexist. Plaintiff believes there are other documents Defendant is withholding, while Defendant statesthey have produced all documents in their possession.Legal StandardCivil discovery in California is governed by the Civil Discovery Act. (CCP §§2016.010–2036.050.) Civildiscovery is essentially self-executing by the parties. (Clement v. Alegre (2009) 177 Cal. App. 4th1277, 1291.) Civil discovery is intended to operate with a minimum of judicial intervention. (SinaikoHealthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 402)(emphasis added). “. . . [A]ny party may obtain discovery regarding any matter, not privileged, that isrelevant to the subject matter involved in the pending action or to the determination of any motionmade in that action.” (CCP §2017.010.) Motions for terminating, issue, evidence, and monetarysanctions are governed by the Discovery Act. (CCP §2023.030.)AnalysisTerminating SanctionsThe four types of terminating sanctions are: (1) striking a pleading in whole or in part; (2) stayingfurther proceedings by a party until it obeys a discovery order; (3) dismissing the action or part of it;and (4) rendering a default judgment. (CCP § 2023.030(d).) Termination may be imposed as asanction under the Discovery Act only after (1) a court order has been issued, compelling the party tocomply with a discovery request; (2) the party has disobeyed the order; and (3) the party has beengiven an opportunity to be heard regarding the order. (J.W. v. Watchtower Bible & Tract Society ofNew York, Inc. (2018) 29 Cal. App. 5th 1142, 1167.) A terminating sanction is appropriate only when aparty’s failure to obey a court order prejudiced the opposing party. (Morgan v. Ransom (1979) 95 Cal.App. 3rd 664, 669.)Failure to respond to discovery and to comply with a judge’s court orders compelling discovery aresufficient to impose a terminating sanction. (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App. 4th, 1058, 1069.) If the party has committed severe discovery abuses, a judge’s denial ofterminating sanctions may be an abuse of discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App. 4th 967, 992.) However, a judge should not, unless in extreme conditions, impose terminatingsanctions as a first measure. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246Cal. App. 4th 566, 606 (holding a judge erred by issuing terminating sanctions as the first measureagainst a non-compliant party.).) 1. Court order has been issued:On December 6, 2024, the court ordered Defendant to amend their responses to Plaintiff’s requestfor production of documents. 2. The party has not disobeyed the order:On January 19, 2024, Defendant issued code compliant responses to the Request for Production.Defendant has directed Plaintiff to the relevant requested documents as well as attached newdocuments in their amended response. However, Defendant makes multiple references to a“Protective Order,” as guiding their compliance, but has produced no evidence of such. (GM’sResponses 2–3.) While Defendant has not disobeyed the court order, their inclusion of reference tothe Protective Order with no evidence as to its existence is curious. Defendant is ordered to producea copy of the Protective Order they claim guides their compliance with the court ordered discovery. 3. The party has been given an opportunity to be heard regarding the order:Defendant has filed an opposition to the motion for varying types of sanctions, pleading theirproduction of code compliant responses. The court has taken Defendant’s account underconsideration and finds they indeed produced code compliant responses and complied with the courtordered discovery request. 4. The party’s failure to obey a court order prejudiced the opposing party:Defendant obeyed the court order. It is unnecessary to discuss why a non-occurrence prejudiced theopposing party.Terminating sanctions are denied because the elements to grant have not been met, since the partythey are sought against has complied with the court order, even though the Plaintiff finds issue withthe responses. They are also denied as an extreme first measure to what the Plaintiff incorrectlyperceived as non-compliance.Issue Sanction:An issue sanction either orders that designated facts must be taken in accordance with the claim ofthe party adversely affected by the misuse of the discovery process or prohibits a party fromsupporting or opposing designated claims or defenses. (CCP § 2023.030(b).) The court may impose anissue sanction on a party engaging in abuse of the discovery process. A party moving for issuesanctions must file and serve with the motion a separate document that states the informationrequired by Cal Rules of Ct 3.1345(a)(7).Plaintiff requests an order that Plaintiff’s Song-Beverely claims have been proven and limit the issueon trial to the question of damages. (Plaintiff’s Memorandum 5:1–2.)A separate statement is required Cal Rules of Ct 3.1345(a)(7). Plaintiff has not complied with thisrequirement, but in efforts to efficiently utilize judicial resources, the sanction request will be judgedon its merits.As discussed in subsection Terminating Sanctions, this motion is denied on the grounds thatDefendant has not engaged in discovery abuse.Evidence SanctionAn evidence sanction prevents a party engaging in discovery abuse from “introducing designatedmatters in evidence.” Plaintiff requests the court prevent GM from introducing the documents at trialthat it refuses to produce through discovery.As stated in the issue sanction subsection, a separate statement is required pursuant to Cal Rules ofCt 3.1345(a)(7). Again, Plaintiff has not complied with this requirement, but in efforts to efficientlyutilize judicial resources, the sanction request will be judged on its merits.As discussed in subsection Terminating Sanctions, this motion is denied on the grounds thatDefendant has not engaged in discovery abuse.Monetary SanctionsThe Code of Civil Procedure section 2023.030(a) holds monetary sanctions may be ordered againstthe party engaging in discovery abuse for “reasonable expenses, including attorney’s fees, incurred byanyone as a result of that conduct.”Plaintiff requests monetary sanctions against Defendant in the amount of $4320.00, $2160.00 for thepreparation of the motion at hand, and an additional $2160.00 for the preparation of the motion tocompel GM to produce supplemental responses on December 6, 2023.As discussed in subsection Terminating Sanctions, this motion is denied on the grounds thatDefendant has not engaged in discovery abuse.DispositionPlaintiff obtained a court order to compel further responses to discovery requests. Defendant timelycomplied with the court order and produced code compliant documents and responses to the furtherresponses requested.The court does find issue with Defendant repeatedly referencing a “Protective Order” as a reasoningtheir responses are limited. Defendant has given neither Plaintiff nor the court a copy of thisProtective Order. However, Defendant has supplemented its discovery responses in codecompliance. Defendant cannot produce documents they do not have, but they are ordered toproduce a copy of the “Protective Order” by August 17, 2024. The motion for sanctions is denied.

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