EXHIBIT(S) - A (Motion #004) - Exhibit A - Plaintiffs' Commencement and Reply Papers July 19, 2019 (2024)

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D: NEW YORK INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019EXHIBIT “A”7 TNDEX NO. 653538/2016NYSCEF DOC. NO. 227 RECEIVED NVSCEE: O7/22/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKnee ee eee eee en ene! xELZBIETA SLEDZIEJOWSKA and JERZYSLEDZIEJOWSKI,Index No.Plaintiffs,-against-MONIKA WROBEL,Defendant.NOTICE OF MOTION FORSUMMARY JUDGMENT IN LIEU OF COMPLAINTPLEASE TAKE NOTICE, that upon the annexed affidavit of Elzbieta Sledziejowska,sworn to on the Ist day of July, 2016, the affirmation of Lawrence M. Gottlieb, Esq., affirmedthe 6th day of July, 2016, the summons herein, dated July 6, 2016, the undersigned, as counselto plaintiffs, Elzbieta Sledziejowska and Jerzy Sledziejowski (collectively, the “Plaintiffs”) willmove this Court at an IAS Motion Submissions Part, Room 130, at the Supreme Court of theState of New York, County of New York, at the Courthouse located at 60 Centre Street, NewYork, New York 10007 on the 31st day of August, 2016, at 9:30 o’clock in the forenoon of thatday, or as soon thereafter as counsel can be heard, for an order:a) pursuant to §3213, granting summary judgment in favor of the Plaintiffs andagainst the defendant Monika Wrobel in the sum of $240,000.00, together with interest fromJune 30, 2010, premised upon the failure to make payment upon an instrument for the paymentof money only to which there is no defense; andb) for such other and further relief as this Court may deem just, proper and equitable.PLEASE TAKE FURTHER NOTICE that pursuant CPLR §3213, and given that morethan the minimum statutory time has been afforded by this motion, answering papers, if any,lof 2INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019shall be served so as to be received by the undersigned no later than ten (10) days prior to thereturn date of this motion.Dated: Scarsdale, New YorkJulyG, 2016TTLIEEi! Gottlieb, Eneys fr Plaintiffs670 White Plains Suite 121Scarsdale, New(914) 725-2600TO:MONIKA WROBELDefendant455 Main Street, Apartment 10ENew York, New York 100442 of 2E FW YORK C F INDEX NO. 653538/2016NYSCEF BOC. NO. 327 RECEIVED NYSCEF: 07/09/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKELZBIETA SLEDZIEJOWSKA and JERZYSLEDZIEJOWSKI,Index No.:Plaintiffs,-against-MONIKA WROBEL,Defendant.AFFIDAVIT OF ELZBIETA SLEDZIEJOWSKASTATE OF NEW YORK )) ss.COUNTY OF DUTCHESS )ELZBIETA SLEDZIEJOWSKA, being first duly sworn, deposes and says:1. I am one of plaintiffs in the above-referenced action. As such, ] ampersonally familiar with the facts as set forth in this affidavit.2. This affidavit is submitted for purposes of obtaining judgment against thedefendant, our former daughter-in -law Monika Wrobel ("Monika"), the former wife ofour son Roman Sledziejowski ("Roman") .3. On July 1, 2010, my husband, the co-plaintiff, Jerzy Sledziejowski("Jerzy") and I, loaned $240,000.00 (the "Loan")to our son, Roman. At that time, Romansigned a promissory note by which he promised to make interest payments on the Loan atthe rate of 5% per year, commencing as of June 30, 2010. He also agreed to repay theLoan after two years, or on June 30, 2012 (the "Maturity Date").4. The Loan was evidenced by a certain promissory note (the "Note"), a copyof which, signed by both me, my husband Jerzy and our son, Roman is annexed asExhibit A.lof 2(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653536/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019: By separation agreement of November 28, 2012, Roman formallyseparated f ont. A copy of thatpacated from Moritica, A Copy of that separation agreement signed by both Roman andMonika, is annexeExhibit B (the “Sepwation Agreement"),6 ‘The Separation Agrcemient provides. in Article XU, 7 {page 19). thal theobligation for the repayment of the Nate wasuned by Monika.7.‘The Maturity Date of Use Note has long passed and the sam.due and owingof $240,000.00 together with interest from Jane), 2010 (none of which has been paid),has not been repaid,8. Despite due demand made by oar attorneys, Monika has refused to pay thesum due and owing pursuant to the terms of the Note.9. - Prentised upon the foregoing, my husband and I respectiuily request thatwe have judgment against Monika Wrobel for the sam of $240,000.00, together withinterést that has accrued from June 30), 2010 at the rate of 5% per year tothe day and dateof the judgment to be entered, together with such other reliel as tie Court may deem just.Swarn to before me thisL day of July. 201GIORGIO VIOLAtucracy Publle + State of Hew YorkWo. 0108257432dan Wastenaster Countyssion Expuas Mat 12. 20202 of 2E FW YORK C F INDEX NO. 653538/2016NYSCEF BOC. NO. 427 RECEIVED NYSCEF: 07/09/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORKte nee een ee nen ene nen nen xELZBIETA SLEDZIEJOWSKA and JERZYSLEDZIEJOWSKI,Index No.:Plaintiffs,-against-MONIKA WROBEL,Defendant.xAFFIRMATION OF LAWRENCE GOTTLIEB IN SUPPORT OFSUMMARY JUDGMENT MOTIONLAWRENCE M. GOTTLIEB, an attorney duly admitted to practice law before theCourts of the State of New York, under the penalties of perjury, affirms as follows:1. I am a member of Hass & Gottlieb, the attorneys of record for the plaintiffsElzbieta Sledziejowska and Jerzy Sledziejowski (collectively, the Plaintiffs") in the above-referenced action and as such, am fully familiar with the procedural issues raised in this matter.2. This affirmation is submitted in support of the motion of the Plaintiffs, pursuant toCPLR §3213, for summary judgment in lieu of complaint against the defendant, Monika Wrobel(the "Defendant" or "Monika"), premised upon a default pursuant to an instrument for thepayment of money.3, The facts are as set forth in the accompanying affidavit of Elzbieta Sledziejowska,sworn to on the 1st day of July, 2016 (the "Sledziejowska Aff."). Annexed as Exhibit A to theSledziejowska Aff., is the subject promissory note (the "Note"), executed by RomanSledziejowski ("Roman"), the son of the Plaintiffs, which provided for the payment of interest atthe rate of 5% per annum from June 30, 2010 and which matured on June 30, 2012 (the"Maturity Date").lof 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/20194. Annexed as Exhibit B to the Sledziejowska Aff., is that certain separationagreement signed by both Roman and Monika on November 28, 2012 (the "SeparationAgreement"), by which Roman formally separated from Monika. (Sledziejowska Aff. §45-6.)The Separation Agreement provides, in Article XII, §7 (page 19), that the obligation for therepayment of the Note was assumed by Monika.5. Despite the passage of the Maturity Date and due demand, Monika has failed tomake payment upon the Note or any of the interim interest payments. Sledziejowska Aff. §§7-8.Summary Judgment is Appropriate6. It is submitted that summary judgment in favor of the Plaintiffs and against thedefendant Monika Wrobel is appropriate. Without a doubt, the Note is an instrument for thepayment of money only. Likewise beyond dispute, is that it has matured and payment is now dueand owing. Accordingly, the Plaintiffs have established a prima facie case for summaryjudgment. Alard, L.L.C. v. Weiss, 1 A.D.3d 131, 131, 767 N.Y.S.2d 11, 12 (1st Dept. 2003)(having established defendant's execution of the note and default in payment, plaintiff made out aprima facie case for relief pursuant to CPLR §3213); Seaman-Andwall Corp. v. Wright Mach.Andwall Corp v. Wright Mach. Corp, 29 N.Y.2d 617, 273 N.E.2d 138 (1971)(lower court erredin denying plaintiff's motion for summary judgment in lieu of complaint when proceeding ondefault in the terms of a promissory note),7. Premised upon the facts as set forth in the Sledziejowska Aff. as well asapplicable precedent, the Plaintiffs are entitle to the issuance of an order granting summaryjudgment.20f 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019The Plaintiffs Are Third-Party Beneficiaries of the Separation Agreement8. It is submitted that the Defendant may argue that the Plaintiffs cannot bring suitdirectly against her because Monika is not a signatory on the Note. This argument must fail. It isclear that by virtue of the Separation Agreement, the Plaintiffs are third-party beneficiaries ofthat agreement. It likewise beyond doubt that the Plaintiffs were the intended beneficiaries of theSeparation Agreement inasmuch as the assumption of the obligation for the Note was a directresult of that agreement and it was thus in the contemplation of the parties, Monika and Roman,that the Plaintiffs, Roman's parents, would benefit.9. The applicable provision of the Separation Agreement could not be more clearthat the Plaintiffs were the intended beneficiaries. It thus provides as follows:7. The parties acknowledge and represent that the Husband[Roman] signed a Promissory Note in favor of Jerzy and ElzbietaSledziejowski, in the sum of Two Hundred Forty Thousand Dollars($240,000.00), plus interest at a rate of 5% per annum, inconsideration of funds loaned to the parties to pay down themarital debt as well as for costs and expenses related to thepurchase of the marital residence. The current amount outstandingin connection with said Promissory Note, inclusive of interest,totals approximately $267,000 as of October, 2013. Wife agrees tobe solely responsible for the repayment of said outstandingdebt.See, Separation Agreement, Exhibit B, page 19, at Article XII, {7 (emphasis supplied).10. Precedent amply supports a finding that the Defendant is directly obligated to thePlaintiffs and accordingly, the Plaintiffs have standing to bring suit directly against Monika.Thus, for example, in Goodman-Marks Associates, Inc. vy. Westbury Post Associates, 70 A.D.2d145, 149, 420 N.Y.S.2d 26, 29 (2d Dept. 1979), it was held that where a benefit to the plaintiffwas deemed to be the direct result of the promised performance, the plaintiff was deemed anintended beneficiary and therefore entitled to maintain a cause of action for its breach. See,w3 0f 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Internationale Nederlanden (U.S.) Capital Corp. v. Bankers Trust Co., 261 A.D.2d 117, 123, 689N.Y.S.2d 455, 460 (1st Dept. 1999)("Third party seeking to recover on a contract must establishthat a binding contract exists between other parties; that this contract was intended for hisbenefit; and that the benefit to him was direct rather than incidental"). City of New York v.Seabury Const. Corp., 4 A.D.3d 124, 125, 771 N.Y.S.2d 508, 509 (1st Dept. 2004)(court onsummary judgment as to liability, properly concluded that plaintiff was an intended third-partybeneficiary).ll. The theory of third-party beneficiaries has likewise been applied to the context ofseparation agreements and the right to sue for the benefits arising therefrom. Thus, in Drake v.Drake, 89 A.D.2d 207, 209, 455 N.Y.S.2d 420, 422 (4th Dept. 1982), the Court held that thetheory of third-party beneficiaries and their right to sue to enforce the terms of a separationagreement was applicable, although circ*mscribed in the context of children suing for thebenefits derived from such agreement.12. It is submitted, however, that no such restriction is applicable here. That is, thePlaintiffs are clearly third-parties who have been specifically recognized to have received rightspursuant to the strict terms of the Separation Agreement. And, as beneficiaries, it is submittedthat they have standing to not only enforce its terms, but to obtain the issuance of an ordergranting summary judgment with respect to the obligation evidenced by the Note to which thereis no defense,13. Premised upon the foregoing, the Plaintiffs respectfully request that summaryjudgment be granted and that judgment be entered in their favor and against Monika Wrobel forthe sum of $240,000.00 together with interest at the rate of 5% per annum from June 30, 2010.4 of 5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Dated: Scarsdale, New YorkJuly@, 20165 of 5F ED NEW YORK E INDEX NO. 653538/2016NYSCEF DOC. NO. 427 RECEIVED NYSCEF: 07/19/2019EXHIBIT A(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653536/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019PROMISSORY NOTEBetweenJerzy Sledziejowski and Elzbieta Sledziejowska of 132 Todd Hil] Road, Lagrangeville, NY 12540(hereinafter called the “Lender”).andRoman J. Sledziejowski of 195 Evan Drive Ossing, NY 10562 (hereinafter called the “Lender”).Whereas- the Borrower has applied to the Lender for a loan facility (hereafter the “Facility”)- and the Lender has agreed to make the Facility available to the Borrower under the terms andconditions set forth in this agreement (hereinafter called the “Agreement”).HEREFORE IT IS AGREED AND CONVENED BETWEEN THE PARTIES AS FOLLOWS:Asticle | - FacilityThe Lender hereby makes available to the Borrower a Facility of United States dollars in the amount ofUSD 240,000.00 under the terms and conditions of this agreement,The Lender shall place the funds at Borrower’s disposal on July 1, 2010 (hereinafter the “FacilityIssuance Date”)The Borrower hereby acknowledges that the Borrower is legally indebted to the Lender in accordancewith the terms and conditions as set out herein,Article 2 — Other FacilitiesAny amount owing by the Borrower to the Lender as of the Facility Issuance Date shall nat be affectedby this AgreementArticle 3 — Execution of the AgreementThe Facility will be available for a single drawdown or multiple drawdowns to take place on theFacility Issuance Date.The Borrower may use the proceeds from the drawdown for any purposes.Drawdown may be paid directly to the borrower or according to borrower’s instructions.Article 4 ~ InterestInterest will begin to accrue on June 30, 2010.The Borrower undertakes to pay interest (hereinafter the “Interest”) on the amount borrowed less anyamounts repaid (hereinafter the Principal”) in an amount equal to 5% per annum.(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653536/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019On any date on which a part of the Principal is repaid, the interest accrued on that part of the Principalrepaid will be due. If the entire Principal is repaid, the interest accrued up to the date of the repaymentis due with the repayment of the entire Principal,Article 5 — RepaymentThe Borrower will be required to repay the outstanding Principal on June 30, 2012 (the “Due Date”).The Borrower, with the permission of Lender, may repay the Principal in full or in part at anytime priorto the Due Date.Article 6 — CurrencyThe payment of the Principal and the Interest and other amounts that may be payable under thisAgreement by the Borrower to the Lender shal! be made in United States dollars,Article 7 — RepresentationThe Borrower represents and warrants that this Agreement will not breach any other agreement towhich the Borrower is a party,The Lender represents and warrants that entering into this Agreement does not violate any provisions ofJaw under which the Lender is incorporated nor violates its Articles of Association,Article 8 — Event of DefaultIf any of the following events occurs, the Lender is entitled, upon written notice, to demand immediatepayment of the Principal not paid plus accrued interest:- the representations of the Borrower are incorrect as of the date of this Agreement;- the Interest due and payable is in default for 30 days or more, or;- the Borrower has applied for the appointment of a receiver or liquidator of the Company.Article 9 — AccelerationPrincipal and all amounts will be due and payable by the Borrower in case of default under thisAgreement not remedied within 15 days, insolvency or liquidation of the Borrower, in case of seizureof any assets of the Borrower or in case of any event or condition which gives reasonable grounds forthe Lender to conclude the Borrower will be unable to perform or observe its obligations under thisAgreement.Article 10 — Security of the loanLoan shall be secured by any and all possessions of the borrower. It has been mutually agreed that alien for the amount of the Loan shall be recorded on borrower’s primary residence, located at 195 EvanDrive, Ossining, NY 10562,Article 11 ~ MiscellaneousAny modification or changes to this Agreement shall be in writing. This Agreement shall be bindingupon the parties, their respective legal representatives, successors and assignees, This Agreementcontains the entire understanding of the parties with respect to the subject matter thereof. ThisAgreement may be executed in multiple counterparts all of which will be considered part of thisAgreement.INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Article | | - Governing Law and DisputesThe validity, construction, interpretation and enforcement of this Agreement and all rights andobligations hereunder shal! be governed by the laws of the State of New York.we a :fan ae OLco Roman Sledziejowski, BorrowerElzbieta Sledziejowska, Lenderteu VvE W YORK INDEX NO. 653538/2016NYSCEF BOC. NO. &27 RECEIVED NYSCEF: 07/09/2019EXHIBIT B(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019STIPULATION OF SETTLEMENT AND AGREEMENTBETWEENMONIKA WROBELANDROMAN SLEDZIEJOWSKIKeith M. Brown, Esq.NOVENSTERN, FABRIANI & GAUDIO, LLPAttorneys for Plaintiff69 South Bedford RoadMt. Kisco, NY 10549(914) 241-2400ROMAN SLEDZIEJOWSKI, Pro SeDefendant195 Evan DriveOssining, NY 106562(917) 673-6848(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF WESTCHESTERpn emeecnenuicinneonenmnenenqnesesmeennnnnanuiuunanmennmamnnaniamist: xSTIPULATION OFMONIKA WROBEL, SETTLEMENT ANDPlaintiff, AGREEMENT.- against - Index No. 4563/12ROMAN SLEDZIEJOWSKI, Assigned to:Hon. JSS.C.Defendant.ee nnn xXdhSTIPULATION OF SETTLEMENT AND AGREEMENT, made this 6 day ofNovember, 2012, by and between MONIKA WROBEL, residing at 195 Evan Drive,Ossining, New York (hereinafter "Wife" or "Mother") and ROMAN SLEDZIEJOWSKI,residing at 195 Evan Drive, Ossining, New York (hereinafter "Husband" or "Father").WHEREAS, the parties were duly married to each other on June 26, 2003, in theCity of New York, County of New York, and State of New York; andWHEREAS, there are no children of the marriage, and there are no expectedchildren of the marriage; andWHEREAS, certain irreconcilable differences have arisen between the parties asa result of which they are living separate and apart from each other; andWHEREAS, the parties desire to fix their respective financial and property rights,and the privileges and obligations in all matters with respect to each other arising out ofthe marital relationship and otherwise; and(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019WHEREAS, the parties are entering into this Agreement of their own free will andwithout force, coercion or duress of whatever nature; andWHEREAS, each party fully understands the terms, covenants and conditions ofthis Agreement, and after due deliberation, accepts and agrees to such terms,covenants and conditions; andWHEREAS, the parties having had explained to them the provisions of lawaffecting financial and property rights of spouses, including those rights under any law;andWHEREAS, the parties hereto warrant and represent to each other that they, andeach of them, fully understands all the terms, covenants, conditions, provisions andobligations to be performed or contemplated by each of them hereunder, and eachbelieves the same to be fair, just and reasonable and to be in his or her respective bestinterests; andWHEREAS, because of irreconcilable differences between them, the partieshave separated, and are presently, or shortly will be, living separate and apart, anddeem it to be for their mutual benefit, that there should be a binding Agreement betweenthem defining and finally and permanently settling their respective rights and interests inand to all debts, liabilities, funds, assets and property of whatsoever kind now owned orhereafter to be owned by either or both of them, settling all rights of support andmaintenance and other rights and obligations arising out of their marital relationship.NOW, THEREFORE, in consideration of the promises and agreementshereinafter set forth, it is hereby stipulated, covenanted and agreed by and between theparties, as follows:(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019ARTICLE |NO MOLESTATIONNeither party shall in any way molest, malign, disturb or trouble the other orinterfere with the peace and comfort of the other or compel the other to associate,cohabit or dwell with him or her by any action or proceeding for restoration of conjugalrights or by any means whatsoever. Neither party shall, directly or indirectly, makestatements to each other or to any other persons which are derogatory of the otherparty.ARTICLE IISEPARATE RESIDENCEIt is, and shall be, lawful for the parties hereto at all times to live separate andapart from each other and to reside from time to time at such place as each of suchparties may see fit and to contract, carry on and engage in any employment, businessor trade, which either may deem fit, free from control, restraint, or interference, direct orindirect, by the other in all respects as if such parties were sole and unmarried.ARTICLE IllSEPARATE OWNERSHIP1. Except as may be otherwise expressly set forth in this Agreement, eachparty shall own, free of any claim or right of the other, all of the items of property, real,personal and mixed, of any kind, nature or description and wheresoever situate, whichare now in his or her name, control or possession, with full power to him or to her to3(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019dispose of the same as fully and effectually in all respects and for all purposes as if heor she were unmarried.2. It is the intention of the parties by this Agreement to effectuate a fullproperty settlement between them and to divide equitably their property pursuant to theLaws of the State of New York effective as of the date hereof.3. Each party waives any and all rights which he or she may have to adistributive award or an award of equitable distribution in respect of any propertyacquired by the other or acquired jointly either before or during the marriage except asexpressly provided for herein. Each party waives any and all rights which he or shemay have in respect to any property acquired by the other party individually after thedate of commencement of the instant action for divorce; to wit: October 3, 2012 andeach agrees never to seek through judicial proceedings or otherwise a distributiveaward or an award of equitable distribution with respect to any property acquired by theother party except as expressly provided for herein.4. Except as otherwise provided herein, the parties agree that any propertyacquired by a party after the date of commencement of this action, to wit: October 3,2012, shall be his or her separate property.5. Each party acknowledges that the division of the parties’ marital propertyis fair and reasonable.ARTICLE IVRELEASES1. Except as otherwise provided for in this Agreement, the Wife agrees torelease, and hereby does release, any and all claims of the Wife to or upon the property4(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019of the Husband, whether real or personal and whether now owned or hereafteracquired, to the end that he shall have free and unrestricted right to dispose of hisproperty now owned or hereafter acquired, free from any claim or demand of the Wifeand so that his estate and all income therefrom derived or to be derived shall go andbelong to the person or persons who become entitled thereto by gift, devise, bequest,intestacy, administration or otherwise, as if the Wife had died during the lifetime of theHusband and, without in any manner limiting the foregoing, the Wife expresslyrelinquishes any and all rights in the estate of the Husband and expressly relinquishesany and all right of election to take any share of the estate of the Husband, including,without limiting the foregoing, any right of election pursuant to the provisions of §5-1.1Aof the Estates, Powers and Trusts Law of the State of New York (the “EPTL”) orpursuant to any other law of any jurisdiction as said laws may now exist or mayhereafter be amended, the right to dower, a reasonable share, a widow's allowance,community property, statutory set-off, whether pursuant to the provisions of §5-3.1 ofthe EPTL or the laws of any other jurisdiction, or otherwise, the right to homesteadbenefits, the right to contest the validity of any will or any bequest or devise containedtherein and any and all other right and interest in any real or personal property of whichthe Husband may die seized or possessed, and the Wife renounces and disclaims, andcovenants to renounce and disclaim, except as otherwise specifically set forth in thisAgreement: (a) all interest of the Wife under any will or trust agreement executed byHusband prior to the execution of this Agreement and any right of the Wife to serve asexecutor or trustee under any such will; (b) all interest of the Wife in the proceeds of anylife insurance policy on the life of the Husband; (c) all interest of the Wife under any5(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019pension, retirement, death benefit, stock bonus or profit-sharing plan, with respect towhich the Husband was a participant or member, and (d) any right of the Wife under thelaws or practice of any jurisdiction to act as guardian, conservator or committee of theproperty of the Husband in the event of the incompetency of the Husband oradministrator of the estate of the Husband in the event of the death of the Husbandintestate.2. The Wife hereby further agrees to execute any and all documents whichshall be required, at any time, and from time to time, by any or all jurisdictions in orderthat such renunciation and disclaimer shall be effective as though the Wife hadpredeceased the Husband, including, without limiting the generality of the foregoing, therenunciation and affidavit of renouncing party referred to in §2-1.11 of the EPTL. TheWife also agrees that in the event of her death subsequent to the death of the Husband,or of her incompetency or incapacity, such documents, including the renunciation andaffidavit of renouncing party referred to in §2-1.11 of the EPTL, shall be made on theWife’s behalf by her personal representative or committee or conservator. If,notwithstanding the renunciation and disclaimer referred to in this Article, the Wifereceives any right, title or interest in any property so renounced or disclaimed for anyreason whatsoever, then, the Wife shall immediately transfer all such right, title orinterest to the estate of the Husband.3. Except as otherwise provided for in this Agreement, the Husband agreesto release, and hereby does release, any and all claims of the Husband to or upon theproperty of the Wife, whether real or personal and whether now owned or hereafteracquired, to the end that she shall have free and unrestricted right to dispose of her6(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019property now owned or hereafter acquired, free from any claim or demand of theHusband and so that her estate and all income therefrom derived or to be derived shallgo and belong to the person or persons who become entitled thereto by gift, devise,bequest, intestacy, administration or otherwise, as if the Husband had died during thelifetime of the Wife and, without in any manner limiting the foregoing, the Husbandexpressly relinquishes any and all rights in the estate of the Wife and expresslyrelinquishes any and all right of election to take any share of the estate of the Wife,including, without limiting the foregoing, any right of election pursuant to the provisionsof §5-1.1A of the Estates, Powers and Trusts Law of the State of New York (the “EPTL”)or pursuant to any other law of any jurisdiction as said laws may now exist or mayhereafter be amended, the right to dower, a reasonable share, a widower’s allowance,community property, statutory set-off, whether pursuant to the provisions of §5-3.1 ofthe EPTL or the laws of any other jurisdiction, or otherwise, the right to homesteadbenefits, the right to contest the validity of any will or any bequest or devise containedtherein and any and all other right and interest in any real or personal property of whichthe Wife may die seized or possessed, and the Husband renounces and disclaims, andcovenants to renounce and disclaim, except as otherwise specifically set forth in thisAgreement: (a) all interest of the Husband under any will or trust agreement executedby Wife prior to the execution of this Agreement and any right of the Husband to serveas executor or trustee under any such will; (b) all interest of the Husband in theproceeds of any life insurance policy on the life of the Wife; (c) all interest of theHusband under any pension, retirement, death benefit, stock bonus or profit-sharingplan, with respect to which the Wife was a participant or member, and (d) any right of7(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019the Husband under the laws or practice of any jurisdiction to act as guardian,conservator or committee of the property of the Wife in the event of the incompetency ofthe Wife or administrator of the estate of the Wife in the event of the death of the Wifeintestate.4. The Husband hereby further agrees to execute any and all documentswhich shall be required, at any time, and from time to time, by any or all jurisdictions inorder that such renunciation and disclaimer shall be effective as though the Husbandhad predeceased the Wife, including, without limiting the generality of the foregoing, therenunciation and affidavit of renouncing party referred to in §2-1.11 of the EPTL. TheHusband also agrees that in the event of his death subsequent to the death of the Wife,or of his incompetency or incapacity, such documents, including the renunciation andaffidavit of renouncing party referred to in §2-1.11 of the EPTL, shall be made on theHusband’s behalf by his personal representative or committee or conservator. If,notwithstanding the renunciation and disclaimer referred to in this Article, the Husbandreceives any right, title or interest in any property so renounced or disclaimed for anyreason whatsoever, then, the Husband shall immediately transfer all such right, title orinterest to the estate of the Wife.5. Except as otherwise provided for in this Agreement, the Wife herebyconsents to the Husband's election to waive a qualified joint and survivor annuity formof benefit and a qualified pre-retirement survivor annuity form of benefit under any planof deferred compensation to which §401(a)(11)(B) of the Internal Revenue Code of1986 as amended (the “Code”) and/or §205(b)(1) of the Employee Retirement IncomeSecurity Act of 1974 (“ERISA”) shall apply and in which the Husband currently or8(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019hereafter may be deemed a vested participant within the meaning of §417(f)(1) of theCode and §205(h)(1) of ERISA. The Wife further consents to the Husband’s currentand future designation of any alternative form of benefit and of beneficiaries other thanthe Wife under any of such plans (and to any revocation and/or modification of suchdesignations) including any of such plans referred to in §401(a)(11)(B)(iii) of the Code or§205(b)(1)(C) of ERISA. The Wife hereby further agrees to execute any and alldocuments or forms which shall be required, at any time, and from time to time, by anyor all such plans, including but not limited to, any questions required by §417(a)(2) ofthe Code or §205(c)(2) of ERISA to effect the payment of benefits in this manner. TheWife hereby acknowledges that she understands the effect of the Husband's electionsand she consents thereto. The Wife further acknowledges that she understands that,absent the consent contained in this paragraph, she would have the right to limit herconsent to the designation by the Husband of a specific beneficiary or a specific form ofbenefits, and the Wife hereby voluntarily elects to relinquish both such rights.6. Except as otherwise provided for in this Agreement, the Husband herebyconsents to the Wife’s election to waive a qualified joint and survivor annuity form ofbenefit and a qualified pre-retirement survivor annuity form of benefit under any plan ofdeferred compensation to which §401(a)(11)(B) of the Internal Revenue Code of 1986as amended (the “Code”) and/or §205(b)(1) of the Employee Retirement IncomeSecurity Act of 1974 (“ERISA”) shall apply and in which the Wife currently or hereaftermay be deemed a vested participant within the meaning of §417(f)(1) of the Code and§205(h)(1) of ERISA. The Husband further consents to the Wife’s current and futuredesignation of any alternative form of benefit and of beneficiaries other than the9(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019Husband under any of such plans (and to any revocation and/or modification of suchdesignations) including any of such plans referred to in §401(a)(11)(B)(iii) of the Code or§205(b)(1)(C) of ERISA. The Husband hereby further agrees to execute any and alldocuments or forms which shall be required, at any time, and from time to time, by anyor all such plans, including but not limited to, any questions required by §417(a)(2) ofthe Code or §205(c)(2) of ERISA to effect the payment of benefits in this manner. TheHusband hereby acknowledges that he understands the effect of the Wife's electionsand he consents thereto. The Husband further acknowledges that he understands that,absent the consent contained in this paragraph, he would have the right to limit hisconsent to the designation by the Wife of a specific beneficiary or a specific form ofbenefits, and the Husband hereby voluntarily elects to relinquish both such rights.7. Except as otherwise provided for in this Agreement, in the event thatfollowing the effective date of this Agreement, the Wife is the beneficiary under any planof deferred compensation to which §401(a)(11)(B) of the Code and/or §205(b)(1) ofERISA shall apply and in which the Husband currently or hereafter may be deemed avested participant within the meaning of §417(f)(1) of the Code and §205(h)(1) ofERISA, the Wife shall pay any and all proceeds received or to be received by her asabeneficiary under such plan, to the estate of the Husband within fifteen (15) days of theWife’s receipt thereof.8. Except as otherwise provided for in this Agreement, in the event thatfollowing the effective date of this Agreement, the Husband is the beneficiary under anyplan of deferred compensation to which §401(a)(11)(B) of the Code and/or §205(b)(1)of ERISA shall apply and in which the Wife currently or hereafter may be deemed a10(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019vested participant within the meaning of §417(f)(1) of the Code and §205(h)(1) ofERISA, the Husband shall pay any and all proceeds received or to be received by himas a beneficiary under such plan, to the estate of the Wife within fifteen (15) days of theHusband's receipt thereof.9. Except for the obligations, promises and agreements herein set forth andto be performed by the parties hereto, which are hereby expressly reserved, each of theparties hereto hereby, for himself and herself and for his or her legal representatives,forever releases and discharges the other of them and his or her heirs and legalrepresentatives from any and all debts, sums of money, accounts, contracts, claims,cause or causes of action, suits, dues, reckoning, bonds, bills, specialties, covenants,controversies, agreements, promises, variances, trespasses, damages, judgments,extents, executions and demands whatsoever, in law or in equity, which each of themhad, now has or hereafter can, shall or may have by reason of any matter from thebeginning of the world to the execution of this Agreement.ARTICLE VLEGAL INTERPRETATIONThis Agreement and all of the rights and obligations of the parties hereundershall be construed according to the laws of the State of New York as an Agreementmade and to be performed within the State.11(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019ARTICLE VIINDEPENDENT COVENANTSEach of the respective rights and obligations of the parties hereunder shall bedeemed independent and may be enforced independent of any of the other rights andobligations set forth herein.ARTICLE VilIMPLEMENTATIONThe Husband and Wife shall, at any and all times, upon request by the otherparty or his or her legal representatives, promptly make, execute and deliver any and allsuch other and further instruments as may be reasonably necessary for the purpose ofthis agreement, without charge therefor.ARTICLE VillENTIRE UNDERSTANDINGThis Agreement contains the entire understanding of the parties with respect tothe subject matter of this Agreement and the parties hereby acknowledge that therehave been and are no representations, warranties, covenants or undertakings otherthan those expressly set forth herein.12(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019ARTICLE IXSEVERABILITYIf any provision of this Agreement is held to be invalid or unenforceable, all otherprovisions shall, nevertheless, continue in full force and effect.ARTICLE XFULL DISCLOSURE AND LEGAL REPRESENTATION AND FEES1. The parties represent to each other that each of them has had a fullopportunity to read this Agreement, that each of them understands the contents of thisAgreement, and that this Agreement is not entered into as a result of any fraud, duress,or undue influence exercised by either party upon the other or by any other person orpersons upon either of them. Each party has made independent inquiry into thefinancial circ*mstances of the other. Both parties agree that this Agreement has beenachieved based upon honest negotiations between themselves, and each partyacknowledges that he or she is relying upon such negotiations between themselves inentering into this Agreement.2. The parties represent to each other that each of them has had a fullopportunity to read this Agreement, that each of them understands the contents of thisAgreement, and that this Agreement is not entered into as a result of any fraud, duress,or undue influence exercised by either party upon the other or by any other person orpersons upon either of them. The parties acknowledge that they each have a right tomake an independent inquiry into the financial circ*mstances of the other by obtainingdocumentary discovery. Both parties acknowledge that they have made limited13(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019independent inquiry into the financial circ*mstances of the other. Both parties agreethat this Agreement has been achieved based upon disclosure received and honestnegotiations between themselves. Both parties acknowledge that they are aware oftheir right to receive sworn Net Worth Statements from each other under the DomesticRelations Law of the State of New York, and hereby acknowledge the exchange of suchstatements.3. The Wife acknowledges that she has been advised of her right to have theHusband's business interests and real estate holdings valued by a licensed real estateappraiser/forensic evaluator to determine its current fair market value, and has electednot to have said business interests and real estate holdings valued/appraised and hasadvised her attorneys not to undertake any further discovery with respect to this matter.4, The Wife represents, and the Husband acknowledges, that the Wife hasbeen represented by Keith M. Brown, Esq., NOVENSTERN FABRIANI & GAUDIO, LLP,in the negotiation, preparation, and execution of this Agreement. The Husbandrepresents and acknowledges that he has been advised by Wife's attorneys to retainindependent legal counsel of his own selection, by letter; that Wife's attorneys representthe Wife and do not represent him; and that he should review the present Agreementwith an attorney of his own selection. Husband represents and acknowledges that hehas had an adequate opportunity to review the present Agreement with an attorney, buthas elected to proceed in this matter on his own behalf, without his own attorney.Husband acknowledges that he has had a full and complete opportunity to review thepresent Agreement with legal counsel. The Husband represents and warrants that he isentering into the present Agreement freely, willfully and voluntarily. Husband14(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019acknowledges that he has had extensive conversations with Wife over the course ofseveral months concerning the terms and provisions of this Agreement, and that he hasnegotiated said Agreement directly with Wife.5. The Husband represents, and the Wife acknowledges, that the Husbandhas appeared pro se in this matter, and has elected not to consult with an attorneyregarding the terms contained in this Agreement. The Husband is aware that he hadthe right to be represented by separate counsel or to consult an attorney and he hashad ample time to do so, and he has elected to represent himself. He acknowledgesthat he has been urged to retain counsel to represent him in the negotiation and reviewof this Agreement and his decision to appear pro se has been made after carefulreflection and consideration. The Husband acknowledges that he has not received anylegal advice of any kind regarding this matrimonial matter or the preparation orexecution of this Separation Agreement from KEITH M. BROWN, ESQ.), or from anyonein the offices of NOVENSTERN FABRIANI & GAUDIO, LLP. The Husbandacknowledges that this Agreement is fair and reasonable in view of all factors existingbefore and at the time of its execution, including but not limited to, his past and futureearning capacity. Husband waives his right to challenge this Agreement and waives histight to assert any claim of duress, undue influence or unconscionability, or claims thatthe Agreement is not fair and reasonable.6. Except as otherwise set forth herein, each of the parties shall be solelyresponsible for the payment of his or her own counsel fees, accounting fees, if any, anddisbursem*nts incurred in connection with the legal services rendered with respect tothe negotiation and preparation of this Agreement, and with respect to any pending or15(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019future action for divorce, including any and all legal fees due to any prior counsel foreach of them.7. The parties acknowledge that they have been advised by their attorneys, ifany, to have the terms and provisions of the present Agreement reviewed by anaccountant with respect to any all income tax implications associated with issuesaddressed in the Agreement, and the parties acknowledge and represent that they havehad a full and complete opportunity to review said Agreement with an accountant orother appropriate financial professional. The parties acknowledge that they are notrelying upon any statements or advice given to them by their respective attorneys withrespect to tax issues.ARTICLE XICOUNSEL FEES ON DEFAULT1. Should either party have any claim against the other arising from analleged breach of this Agreement and should such alleged breach continue for fifteen(15) days after written notice, by certified mail-return receipt requested, and regularmail, is forwarded to him or her, then in any action or proceeding commenced by eitherparty against the other on account of such alleged breach in which a judicialdetermination is made the successful party shall recover from the other party, inaddition to all other remedies, all reasonable counsel fees and expenses incurred bysuch successful party in connection with such action or proceeding, and/or as awardedby the Court or forum where the proceeding was commenced.2. Should an alleged breach be cured by a party after commencement of anaction or proceeding as set forth in paragraph 1 above, then, unless otherwise agreed16(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/2019by the parties, the party commencing the action or proceeding shall recover from theother party reasonable counsel fees incurred in connection with commencing suchaction or proceedingARTICLE XIlRESPONSIBILITY FOR DEBTS1. Except as otherwise provided herein, the Wife represents, warrants andcovenants that she has not heretofore, nor will she hereafter, incur or contract any debt,charge, obligation or liability whatsoever for which the Husband, his legalrepresentatives or his property or estate is or may become liable. The Wife agrees toindemnify and hold the Husband harmless of all loss, expenses (including reasonableattorneys' fees) and damages in connection with or arising out of a breach by the Wifeof her foregoing representation, warranty and covenant.2. Except as otherwise provided herein, the Husband represents, warrantsand covenants that he has not heretofore, nor will he hereafter, incur or contract anydebt, charge, obligation or liability whatsoever for which the Wife, her legalrepresentatives or her property or estate is or may become liable. The Husband agreesto indemnify and hold the Wife harmless of loss, expenses (including reasonableattorneys' fees) and damages in connection with or arising out of a breach by theHusband of his foregoing representation, warranty and covenant.3. Wife warrants and represents that she maintains no credit cards in herindividual name.(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127RECEIVED NYSCEF: 07/19/20194, Husband warrants and represents that he maintains the following creditcards in his individual name, and that the Wife does not maintain any liability orresponsibility of any kind with respect to said credit card debt:a.AMEX Platinum; account number xxx-1009, with a balance ofapproximately $67,957.00 as of November, 2012;AMEX Starwood; account number xxx-2002, with a balance ofapproximately $8,500.00 as of November, 2012;Discover; account number xxx-0302, with a balance of approximately$8,100.00 as of November, 2012;AT&T Universal Card; account number xxx-2926, with a balance ofapproximately $7,400.00 as of November, 2012.Bank of America Visa Signature; account number xxx-8483, with abalance of approximately $7,700.00 as of November, 2012.Citicard; account number xxx-7138, with a balance of approximately$21,100 as of November, 2012.5. Husband shall be solely responsible for payment of all such credit carddebt in his individual name, and Husband agrees to indemnify Wife and hold herharmless in all respects with regard thereto, including reasonable counsel fees incurredby Wife in any way defending a claim with respect to any debt in the Husband'sindividual name6. Both parties warrant and represent that they do not maintain any creditcards which are held in their joint names.18(FILED: NEW YORK COUNTY CLERK 07/19/2019 10:43 PM INDEX NO. 653538/2016NYSCEF DOC. NO. 127 RECEIVED NYSCEF: 07/19/20197. The parties acknowledge and represent that the Husband signed aPromissory Note in favor of Jerzy and Elzbieta Sledziejowski, in the sum of TwoHundred Forty Thousand Dollars ($240,000.00), plus interest at a rate of 5% perannum, in consideration of funds loaned to the parties to pay down marital debt as wellas for costs and expenses related to the purchase of the marital residence. The currentamount outstanding in connection with said Promissory Note, inclusive of interest, totalsapproximately $267,000 as of October 2012. Wife agrees to be solely responsible forthe repaymen

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ALFONSO STAR VS SAN FERNANDO VALLEY COMMUNITY MENTAL HEALTH CENTER INC/DIVERSION 50/MILESTONE(AB109), ET AL.

Aug 16, 2024 |23CHCV02373

Case Number: 23CHCV02373 Hearing Date: August 16, 2024 Dept: F43 Dept. F43 Date: 8-16-24 Case #23CHCV02373, Alfonso Star vs. San Fernando Valley Community Mental Health Center, Inc., et al. Trial Date: N/A DEMURRER TO FIRST AMENDED COMPLAINT MOVING PARTY: Defendant San Fernando Valley Community Mental Health Center, Inc. RESPONDING PARTIES: No response has been filed RELIEF REQUESTED Demurrer · Entire First Amended Complaint · First Cause of Action for Kidnapping · Second Cause of Action for Fraud · Third Cause of Action for Concealment · Fourth Cause of Action for Negligence · Fifth Cause of Action for Wrongful Imprisonment · Sixth Cause of Action for Personal Injury · Seventh Cause of Action for Emotional Stress and Duress · Eighth Cause of Action for Loss of Personal Property · Ninth Cause of Action for Loss of Income · Tenth Cause of Action for Loss of Time Div. 50 Program · Eleventh Cause of Action for Loss of Record Correction Under Diversion 50 Program · Twelfth Cause of Action for Conversion RULING: Demurrer is sustained without leave to amend. SUMMARY OF ACTION From Plaintiff Alfonzo Stars (Plaintiff) complaint, it appears that he is alleging that Defendant San Fernando Valley Community Mental Health Center, Inc. (Defendant) or the other named defendants made false representations to a judge regarding Plaintiffs participation in a diversion program. Defendant provides rehabilitation services in connection with a diversion program. Plaintiff alleges that though he was in compliance with the reporting requirements of the program, Defendant reported to the court that he was not in compliance. Plaintiff alleges that as a result, he was remanded to jail. His alleged damages are a result of that incarceration. On August 8, 2023, Plaintiff filed his initial complaint in pro per. This Court sustained Defendants demurrer to Plaintiffs entire complaint with leave to amend on January 29, 2024. On April 3, 2024, Plaintiff filed his First Amended Complaint (FAC). Plaintiff filed his complaint with causes of action for kidnapping, fraud, concealment, negligence, wrongful imprisonment, personal injury, emotional distress and duress, loss of personal property, loss of income, loss of time Div. 50 program, and coercion. Defendant filed its demurrer to Plaintiffs FAC on April 17, 2024. The hearing on this motion was originally set for hearing on May 24, 2024. The hearing on the demurrer was continued to the present date of August 16, 2024. Plaintiff was given until July 23, 2024, to file an opposition to Defendants demurrer. Plaintiff has not filed any opposition. ANALYSIS Defendant brings a demurrer to Plaintiffs FAC on the basis that it does not state facts sufficient to constitute any cause of action and is uncertain. Defendant also demurs on the basis that the FAC is barred by the Civ. Code § 47 litigation privilege. A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (CCP § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law& (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) Demurrer Based on Litigation Privilege Defendant demurs to the complaint on this basis that it is barred by the litigation privilege from Civ. Code § 47 due to Plaintiffs apparent allegations that someone employed by Defendant made false representations to a judge. Civ. Code § 47(b)(2) protects statements made during judicial proceedings. The litigation privilege has been held to be absolute and broadly applied with all doubts resolved in favor of the privilege. (Silberg v. Anderson (1990) 50 Cal.3d 205, 211, 215; Kashian v. Harriman (2002) 98 Cal.App,4th 892, 913 [Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]].) The California Supreme Court has held that the litigation privilege is quite extensive and even extends beyond the courthouse doors. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948.) Defendant argues that the conduct alleged in Plaintiffs FAC would be protected by the litigation privilege. Plaintiff seemingly alleges that an individuals called Defendants Hernandez and/or Emily perjured themselves before the Court in their compliance reporting on Plaintiffs status. While it is unclear from Plaintiffs FAC who these individuals are or what their relationship to Defendant is, the in-court statements that Plaintiff has alleged were false would be immune from tort liability through the litigation privilege because they were made during judicial proceedings. All of Plaintiffs claims related to the in-court statements would be barred by the litigation privilege. Kidnapping and Wrongful Imprisonment First, Penal Code § 207 does not allow for a private cause of action for kidnapping. Even if it did allow for a private cause of action, Plaintiff has not alleged facts sufficient to constitute a cause of action for kidnapping because Plaintiff has not alleged that Defendants used force or fear to incarcerate Plaintiff, which are required elements for kidnapping. (See Penal Code § 207(a).) Furthermore, Penal Code § 207(f) indicates that the section does not apply to anyone making an arrest. As for wrongful imprisonment, a required element for it is that it was done without lawful privilege. (See Penal Code § 236; Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.) In this case, the statements were made in court, and based on those statements, Plaintiff was detained. This would be a lawful action. Plaintiff has not pled facts indicating that he was wrongfully imprisoned. Defendants demurrer to Plaintiffs causes of action for kidnapping and wrongful imprisonment is sustained. Fraud and Concealment The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) 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He does not allege whether the statements made by Defendants Hernandez and Emily were intentional or negligent. Plaintiff has not alleged anything beyond the basic elements of these causes of action. He has not alleged them with specificity, as is required. Defendants demurrer to Plaintiffs causes of action for fraud and concealment is sustained. Negligence The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate cause between the breach and (4) the plaintiffs injury. (Mendoza v. City of Los Angeles (1988) 66 Cal.App.4th 1333, 1339.) Plaintiffs FAC fails to allege any duty on the part of Defendants. It appears that he is alleging that Defendants were negligent because they failed to appear in court, but he does not indicate whether they were under any legal duty to appear in court. Plaintiff also does not indicate whether Defendants owed him any legal duty. Defendants demurrer to Plaintiffs cause of action for negligence is sustained. Uncertainty Defendant also argues that Plaintiffs FAC is uncertain because a complaint must contain a statement of the facts constituting the cause of action, in ordinary and concise language. (CCP § 425.10.) Defendant argues that Plaintiffs complaint fails to plead the facts with sufficient clarity for Defendant to know the relationship of the parties, Defendants roles and duties, and the nature and contents of the report made to the Court. The FAC also fails to state who made the report to the Court or what the report said. Defendant also argues that Plaintiffs causes of action for personal injury, emotional stress and duress, loss of personal property, loss of income, loss of time in Div. 50 program, and loss of record in Div. 50 program would be items of damages, not separate claims. Additionally, while coercion is in the caption, the FAC fails to provide any facts relevant to this cause of action in the complaint itself. The Court agrees that Plaintiffs FAC is fatally uncertain. Leave to Amend Defendant has requested that the Court sustain its demurrer to Plaintiffs FAC without leave to amend, based on Plaintiffs claims being barred by the Civ. Code § 47 litigation privilege and because the burden of proving such reasonable possibility [to amend] is squarely on the plaintiff. [Citation.] (Blank v. Kirwan (1985) 39 Cal.3d. 311, 318.) Plaintiff did not file an opposition to Defendants demurrer, so Plaintiff has not fulfilled his burden of proving a reasonable possibility to amend his FAC. Based on this and Defendants above arguments, Defendants demurrer to Plaintiffs entire complaint and all causes of action is sustained without leave to amend. CONCLUSION Defendants demurrer to Plaintiffs FAC is sustained without leave to amend. Moving party to give notice.

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FOULKE, et al. vs. FORD MOTOR COMPANY

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Ruling

Edwards, et al. vs. General Motors LLC

Aug 16, 2024 |22CV-0200334

EDWARDS, ET AL. VS. GENERAL MOTORS LLCCase Number: 22CV-0200334Tentative Ruling: This matter is on calendar regarding status of settlement. On April 19, 2024,the parties filed a Stipulation to Vacate MSC in Light of Settlement. This Court executed an Orderthereon on the same day. The Stipulation indicated that the parties had entered a global settlement,which was conditional and still in the process of being drafted. Attorney fees have since beenawarded pursuant to motion. No Notice of Settlement on Mandatory Judicial Council Form CM-200 has been filed. No dismissal has been filed. The parties are ordered to appear today toprovide a status of the settlement.

Ruling

LOUIS J PALOS VS KIA MOTORS AMERICA INC

Aug 15, 2024 |BC715391

Case Number: BC715391 Hearing Date: August 15, 2024 Dept: 45 Superior Court of California County of Los Angeles LOUIS J. PALOS ; Plaintiff, vs. KIA MOTORS AMERICA, INC., AND DOES 1 through 10, inclusive Defendants. Case No. BC715391 Department 45 [Tentative] Order Action Filed: 7/26/2018 FAC Filed: 11/29/2018 Hearing Date: August 15, 2024 Moving Party: Plaintiff Louis J. Palos Successor-In-Interest Giselle Palos Responding Party: Kia Motors Motion for Attorneys Fees The court has considered the moving, opposition, and reply papers. The court GRANTS Plaintiffs motion for attorneys fees in the reduced amount. Background On July 26, 2018, Plaintiff Louis J. Palos (Palos or Plaintiff) filed the underlying lemon law action against Defendant Kia Motors (Kia or Defendant) asserting six causes of action for (1) violation of subdivision(d) of the Civil Code Section 1793.2; (2) violation of subdivision(b) of Civil Code section 1793.2; (3) violation of subdivision(a)(3) of civil code section 1793.2; (4) breach of express warranty; (5) breach of implied warranty of merchantability; and (6) fraud by omission. On November 9, 2018, the Court sustained Defendant Kias demurrer as to the causes of action regarding (1) civil code section 1793.2(a)(3); (2) breach of implied warranty of merchantability; and (3) fraud by omission with twenty days for leave to amend. (Bokmuller Decl., ¶ 10.) Plaintiff alleges that on February 26, 2012, he purchased a 2012 Kia Optima (Subject Vehicle) for a total purchase price of approximately $35,655.12 which was manufactured and or distributed by Defendant. (See Carvalho Decl., ¶3, Ex. 1.) As a result of the various defects, Plaintiff claims he was forced to take the Vehicle to the dealership at least eight times for repairs, but Kia was unable to conform the Vehicle to warranty or provide Plaintiff with restitution in compliance with its affirmative obligation under the Song-Beverly Act. (Id. at ¶¶6-13.) Thus, Plaintiff initiated the underlying action. On November 29, 2018, Plaintiff filed his First Amended Complaint (FAC) which is now the operative complaint. Defendant then filed another demurrer, as to Plaintiffs third, fifth, and sixth causes of action. (Bokmuller Decl., ¶ 11.) The Court then sustained Defendants demurrer as to the fraud by omission claim, without leave to amend.[1] (Id.) After five years of litigation, Defendant and Plaintiff reached a settlement agreement pursuant to CCP 998 and Defendant Kia agreed to buy back the Vehicle for $99,000.00, plus attorneys fees, costs, and expenses by a single motion to the Court. (Carvalho Decl., ¶ 123, Ex. 8.) Thus, on April 3, 2024, Plaintiff, represented by Successor-In-Interest, Giselle Palos, brought the instant motion. (Plaintiff himself has passed away since commencing the underlying action.) Plaintiff filed the instant motion concurrently with a Request for Judicial Notice, a Proposed Order, an Exhibit List, the Declaration of Plaintiffs attorney, Tiona Carvalho, (Carvalho Decl.), and the Declaration of Plaintiffs attorney Payam Shahian (Shahian Decl.). On June 18, 2024, Defendant Kia filed an Opposition, Defendants Objections, and the Declaration of Tammara N. Bokmuller (Bokmuller Decl.). On June 26, 2024, Plaintiff filed the Amended Motion for Attorneys Fees which the Court is treating as the operative motion. On August 8, 2024, Plaintiff filed the Reply, Evidentiary Objections to Defendant, Plaintiffs Response to Defendants Objections, and the Declaration of one of Plaintiffs attorneys, Angel M. Baker (Baker Decl.). Plaintiffs Request Plaintiff requests the Court award $155,102.89 in attorneys fees. This amount consists of (1) $100,386.00 in attorneys fees for Strategic Legal Practices, APC (SLP); (2) a 1.35 multiplier enhancement on the attorneys fees (or $35,135.10); (3) $16,081.79 in costs and expenses for SLP; and (4) an additional $3,500 for Plaintiffs counsel to review Defendants Opposition, draft the Reply, and attend the hearing on the instant motion. Plaintiff argues that Counsels hourly rates ranging from $385 per hour to $620 per hour is consistent with hourly rates for attorneys in Los Angeles with similar skill and background. In light of numerous factors, including but not limited to the skill demonstrated by Plaintiffs Counsel, the results obtained, the risk of the contingency fee and non-payment, and the serious 5-year delay in payment, Plaintiff argues the 1.35 multiplier is appropriate. Evidentiary Matters Plaintiffs Request for Judicial Notice Defendant requests that pursuant to Evidence Code §§ 451, 452, and/or 453, the Court take Judicial Notice of Exhibits 1-17 which are all attached to the Declaration of Payam Shahian: Exhibit 1 is an order on attorneys fees and prejudgment interest in the lemon law matter of Abraham Forouzan v. BMW (United States District Court for the Central District of California Case No. 2:17-cv-03875-DMG-GJS). Exhibit 2 is an order on attorneys fees, costs and expenses in the lemon law matter of Joshua Holeman v. FCA (United States District Court for the Central District of California Case No. 2:17- cv-08273-SVW-SK). Exhibit 3 is an order on attorneys fees, costs and expenses in the lemon law matter of Catherine Shepard v. BMW (Los Angeles Superior Court Case No. BC622506). Exhibit 4 is an order on attorneys fees and prejudgment interest in the lemon law matter of Jerry Zomorodian v. BMW (United States District Court for the Central District of California Case No. 2:17-cv-5061-DMG(PLAx)). Exhibit 5 is an order on attorneys fees and prejudgment interest in the lemon law matter of Zargarian v. BMW (United States District Court for the Central District of California Case No. 2:18-cv-04857-RSWL-PLA). Exhibit 6 is an April 29, 2021 Minute Order granting plaintiffs Motion for Attorneys Fees, Costs & Expenses in the lemon law matter of Jose Medina v. KMA (Los Angeles Co. Super. Ct., Civil Case No. 19STCV02985). Exhibit 7 is a May 10, 2021 Tentative Ruling granting plaintiffs Motion for Attorneys Fees, Costs & Expenses in the lemon law matter of Michelle Williams v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC722351). Exhibit 8 is an order on attorneys fees in Oscar Millan vs. Kia Motors America, Inc., (Los Angeles Co. Super. Ct., Civil Case No. BC710535). Exhibit 9 is a March 14, 2022 order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the Song Beverly matter of Jason J. Arnold, et al.. vs FCA US, LLC. Et al. (Los Angeles Superior Court Case No. 19STCV26274). Exhibit 10 is an order on Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the matter of Mo Rahman v. FCA US, LLC et al., (United States District Court for the Central District of California Case No. 2:21-cv-02584). Exhibit 11 is a June 13, 2022 Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Klingenberg v. KMA (Los Angeles Co. Super. Ct., Civil Case No. BC709888). Exhibit 12 is a January 24, 2023, Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Sandra J. Williams et al v. Ford Motor Company (United States District Court for the Central District of California Case No.: 5:21-cv- 01346-SPG-SHK). Exhibit 13 is a true and correct copy of the Jul 19, 2021 Order in the matter of Hoyt v. FCA, US LLC Orange Co. Super. Ct., Civil Case No. 30-2019-01066585-CU-BC-CJC). Exhibit 14 is a April 24, 2023 Minute Order granting Plaintiffs Motion for Attorneys Fees, Costs, and Expenses in the lemon law matter of Sergio Proa v. Kia Motors America Inc. (Los Angeles Co. Super. Ct. Civil Case No. BC716647). Exhibit 15 is the Francsico Rodriguez and Norma Rodriquez v. Hyundai Motors America. (Los Angeles Co. Super. Ct. Civil Case No. 21STCV01655) July 6, 2023, Minute Order. Exhibit 16 is the Charles Steven Sedlacek IV v. General Motors, LLC. (Los Angeles Co. Super. Ct. Civil Case No. 21STCV23811) October 16, 2023, Minute Order. Exhibit 17 is an order on attorneys fees in Holcomb v. BMW of N. Am., LLC, Case No. 18CV475JM(BGS) 2020 WL 759285 (S.D. Cal. Feb. 14, 2020). The Court grants Plaintiffs request to judicially notice Exhibits 1-17. Defendant makes Objections 1-37 with respect to the Shahian Declaration and attached exhibits which the Court rules on as follows: Overruled: 1-37. Plaintiff argues in response to Defendants objections that in the Song-Beverly context, the California Court of Appeal has found that counsel may present evidence/declarations regarding hourly rates that other courts have previously awarded them for comparable cases to demonstrate the prevailing rate in the community for comparable legal services. Goglin v. BMW of N. Am., LLC, 4 Cal. App. 5th 462, 473 (2016) (in Song-Beverly case, court accepted declarations demonstrating hourly rates that various state and federal courts had previously awarded [plaintiffs attorney] attorney fees for comparable work at comparable hourly rates as evidence of reasonableness of rates); See also Heritage Pacific Financial, LLC v. Monroy, 215 Cal.App.4th 972, 1009 (2013) (Affidavits of the plaintiffs attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs attorney, are satisfactory evidence of the prevailing market rate.) (emphasis added). Plaintiffs are offering these rulings as evidence of Plaintiffs counsels reasonable hourly rates in the community, not as binding authority that the Court must follow; these rulings simply shed light on what courts have recognized as the prevailing market rate. Plaintiffs Objections The Court overrules objections 1-10. Legal Standard General Attorneys Fees As a general rule, the prevailing party may recover certain statutory costs incurred in the litigation up to and including entry of judgment. [Citations.] These costs may include attorney fees, if authorized by contract, statute . . . or law. [Citation.] . . . attorney fees require a separate noticed motion. [Citations.] (Lucky United Props. Inv., Inc. v. Lee (2010) 185 Cal.App.4th 125, 137.) This motion may be brought: (1) after judgment or dismissal, for fees incurred up to and including the rendition of judgment in the trial court--including attorneys fees on an appeal before the rendition of judgment&; and (2) on an interim basis, upon remittitur of appeal, of only fees incurred on appeal. (CRC, Rule 3.1702(b)-(c).) In determining what fees are reasonable, California courts apply the lodestar approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the [t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Id.) Relevant factors include: (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) CCP Section 1794(d) Discussion If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorneys fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. Plaintiff argues that as the prevailing party under the SBA, Plaintiff is entitled to recover all fees, costs, and expenses reasonably incurred in the commencement and prosecution of this action. (See Carvalho Decl. ¶¶ 123, Ex. 8.) See Cal. Civ. Code § 1794(d). See Reck v. FCA US LLC, 64 Cal. App. 5th 682, 698 (2022) (Plaintiff is entitled to recovery of all reasonably incurred attorney fees when the ultimate settlement amount exceeded manufacturers prior settlement offers). Here, on July 1, 2019, Defendant offered to buy back the Vehicle for $10,000.00 plus attorneys fees, costs, and expenses pursuant to Cal. Civ. Code § 1794(d). (See Carvalho Decl. ¶¶ 48, Ex. 3.) On December 15, 2022, three and half years after the first 998 offer, Defendant served their second 998 Offer, offering to buy back the Vehicle for $34,000.00 plus attorneys fees, costs and expenses pursuant to Cal. Civ. Code § 1794(d). (Id. at ¶¶ 95, Ex. 5) On September 14, 2023, Defendant served their third 998 Offer, offering to buy back the Vehicle for $50,000.00 plus attorneys fees, costs and expenses pursuant to Cal Civ. Code § 1794(d) by single motion to the Court. (Id. at ¶¶ 116, Ex. 7). On October 3, 2023, Defendant served the fourth 998 Offer, offering to buy back the vehicle for $99,000.00 plus attorneys fees, costs and expenses pursuant Cal. Civ. Code § 1794(d). Plaintiff accepted Defendants fourth offer. (Id. at ¶¶ 123, Ex. 8.) Thus, under Reck, Plaintiff argues he is entitled to attorneys fees, costs, and expenses through the settlement of the case because the fourth 998 Offer of $99,000.00 was for a far greater amount than Defendants initial 998 Offer to Compromise. With respect to the multiplier, Plaintiff argues that an enhancement of 1.35 is reasonable given (1) Plaintiffs Counsel obtained an excellent outcome in securing a $99,000 settlement; (2) the risks of taking Plaintiffs case on contingency were high considering Plaintiffs Counsel went five years without pay and could have never received payment; and (3) there has been a significant five-year delay in payment. The Court notes that Plaintiff does not address the factor regarding novelty and difficulty presented by the case. However, given the five-year delay in payment, the four 998 offers, and the difference between the first 998 offer ($10,000) and the fourth and final 998 offer ($99,000), the Court finds the 1.35 multiplier reasonable and warranted. Plaintiff argues Counsels rate and hours billed are reasonable because the California Appellate Courts have found similar rates reasonable in Song-Beverly cases. Although the Court has judicially noticed Plaintiffs Exhibits, the Court agrees with Defendant on Opposition that such orders (of other trial courts) are not binding on thus trial court. However, the matters were judicially noticed as to their existence and to provide context. They orders and decisions therein do not govern in this matter. Defendant argues on Opposition that Counsels rate ranging from $496 per hour to $620 is unreasonable, given the simplicity of the case. Defendant contends that reducing the rate to $350 would be a more appropriate and reasonable. The Court disagrees and finds Plaintiffs range of hourly rates reasonable considering the attorneys range of experience and qualifications. Defendant further argues that Plaintiffs billed hours are unreasonable because Plaintiffs fee recovery is based on 227.60 hours billed. Plaintiff argues such hours were necessary considering Plaintiff had to litigate the instant matter for five-years because Defendant did not offer a reasonable settlement sooner. Moreover, Plaintiff provides the following work, including but not limited to, warrants the total hours billed: the complaint; Plaintiffs FAC; defending the deposition of Plaintiffs Successor-In-Interest, Giselle Palos; attending and conducting the deposition of Defendants PMQ, Sandra Beshai; opposing Defendants demurrer on both the Complaint and FAC; opposing Defendants petition for coordination and motion to stay; numerous discovery motions and responses; opposing and defeating Defendants MSJ; and a protective order. On Opposition, Defendant argues that hours billed for Plaintiffs fraud claim should be deducted considering Plaintiffs fraud claim was dismissed on demurrer. (Opp., pg. 9.) Specifically, Defendant argues that hours billed for Plaintiff trying to seek leave to amend to bring a second amended complaint primarily to revive the fraud claim should be deducted from the fee award. (Bokmuller Decl., Ex. A.) Defendant argues that Plaintiff incurred $14,137.00 in trying to seek leave to amend. Defendant also argues that by overstaffing the case with seventeen (17) attorneys, Plaintiffs case was litigated with significant inefficiencies which has resulted in duplicative billing entries. ((Opp., pg. 9-10.) The Court does not find it problematic that seventeen attorneys were staffed on the case, as it does not change the number of hours billed if the total number of hours expended is reasonable. Except as to the hours spent in reviving the fraud claim, the Court finds it reasonable to bill over 200 hours given the five-year timeframe and number of motions filed, including an MSJ. It is reasonable to deduct the hours spent in an attempt to move the Court for leave to amend a second time when the motion brief evidences the primary purpose of that effort was to revive the fraud claim which Defendant had demurred to. Moreover, the Court sustained that demurrer, with respect to the fraud claim, without leave to amend. Thus, the Court deducts the $14,137.00 incurred. As such, the reduced amount of attorneys fees is for $140,965.89. Additionally, the Court will subtract the enhanced multiplier amount of $5,230.69 for that portion of fees, resulting in the total reduced amount of $135,735.20. Although Defendant requested a significantly greater deduction, the Court finds the public policy related to encouraging settlement in such matters governs: Defendants failure to make an acceptable offer earlier in the litigation came at its own risk. For the foregoing reasons, the court GRANTS Plaintiffs Motion for Attorneys Fees in the reduced amount of $135,735.20. The moving party is to give notice. It is so ordered. Date: August 15, 2024 ______________________ Mel RED recana Judge of the Sup [1] Defendant claims that thereafter, Plaintiff spent over $14,00 attempting to get the fraud claim back into the case which they did not succeed in doing. Thus, Defendant argues the attorneys fees associated with the fraud causes of action should not be recoverable.

Ruling

JULIAN SANCHEZ, ET AL. VS FORD MOTOR COMPANY, ET AL.

Aug 22, 2024 |24PSCV01954

Case Number: 24PSCV01954 Hearing Date: August 22, 2024 Dept: 6 CASE NAME: Julian Sanchez, et al. v. Ford Motor Company, et al. Defendants Ford Motor Companys and Ken Grody Fords Demurrer to the Complaint TENTATIVE RULING The Court OVERRULES the demurrer to the Fifth Cause of Action and SUSTAINS the demurrer to the Sixth Cause of Action. The Court will hear from Plaintiffs counsel whether leave to amend should be granted. Defendants are ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a lemon law case. On June 17, 2024, plaintiffs Julian Sanchez and Moises Sanchez (collectively, Plaintiffs) filed this action against defendants Ford Motor Company (Ford), Ken Grody Ford (erroneously sued as Ken Grody Ford Buena Park) (Ken Grody) (collectively, Defendants) and Does 1 through 10, alleging causes of action for violation of subdivision (d) of Civil Code section 1793.2, violation of subdivision (b) of Civil Code section 1793.2, violation of subdivision (a)(3) of Civil Code section 1793.2, breach of the implied warranty of merchantability, fraudulent inducement concealment, and negligent repair. On July 16, 2024, Defendants demurred to the complaint. On August 9, 2024, Plaintiff opposed the demurrer. On August 15, 2024, Defendants replied. LEGAL STANDARD A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Firemans Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) A demurrer can be utilized where the face of the complaint itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The face of the complaint includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Firemans Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleaders allegations as to the legal effect of the exhibits.]) A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) DISCUSSION Meet and Confer Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person or by telephone before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants meet-and-confer efforts sufficient. (Liu Decl., ¶ 3.) Fifth Cause of Action Fraudulent Inducement-Concealment To plead a cause of action for fraudulent concealment, the plaintiff must allege facts demonstrating, (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.] (Hambrick v. Healthcare Partners Med. Grp., Inc. (2015) 238 Cal.App.4th 124, 162.) There are four circ*mstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.] [Citation.] (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) Defendants demur to the Fifth Cause of Action for fraudulent inducement-concealment on the grounds that the complaint fails to state a cause of action and on the grounds that it is barred by the economic loss rule. Defendants contend Plaintiffs fail to plead the defect that Defendant Ford allegedly concealed. Defendants contend Plaintiffs fail to allege a duty to disclose, such as a direct transactional relationship, Fords exclusive knowledge, active concealment, or that Ford made partial representations while suppressing material facts. Defendants further contend this cause of action is barred by the economic loss rule. Defendants argue the complaint does not contain any allegations that Ford did not intend to honor its contractual promises when Plaintiffs entered into the warranty agreement, and that Plaintiffs fraud claim is the same as their warranty claims. In opposition, Plaintiffs contend that the heightened pleading standard for fraud claims is relaxed in cases of fraudulent concealment. Plaintiffs contend they have alleged sufficient facts to comply with Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (Dhital) for purposes of a fraudulent concealment claim. Plaintiffs contend a direct transactional relationship is not required for the manufacturer to have a duty to disclose. Plaintiffs also argue that the transmission defect is a material fact, that the transmission defect poses safety risks, and that the transmission defect arose during the warranty period. Plaintiffs further contend that the economic loss rule does not bar a fraudulent concealment claim because the duty of fair dealing is independent of the contract and because the tortious conduct occurs before contract formation. The Court finds that Plaintiffs have alleged sufficient facts to state a cause of action for fraudulent concealment. First, the heightened pleading standard for fraud claims is relaxed for fraudulent concealment claims. (See Alfaro v. Community Housing Improvement System Planning Assn. (2009) 171 Cal.App.4th 1356, 1384.) Notwithstanding, the complaint alleges fraudulent concealment with sufficient specificity. The complaint identifies the material defects and facts that Ford allegedly knew and withheld from Plaintiffs before they bought the subject vehicle. (Compl., ¶¶ 71-85.) The complaint alleges facts showing that Ford had superior knowledge of the facts and how such knowledge was obtained, (Compl., ¶¶ 39-50, 71-85); the safety risks posed by the transmission defect, (Compl., ¶¶ 13, 49, 74-78); the materiality of that information, (Compl., ¶ 80); that Plaintiffs were unaware of the concealed defect and that they would not have purchased the subject vehicle had they known of the concealed defect, (Compl., ¶¶ 49, 76, 78, 80); and that Ford intended to defraud Plaintiffs by selling the subject vehicle to Plaintiffs with its known transmission defects without disclosing them to Plaintiffs, resulting in damages to Plaintiffs, (Compl., ¶¶ 79, 84-85). Second, with respect to a relationship imposing a duty to disclose, the Court finds the complaint adequately alleges the existence of a transactional relationship. (See LiMandri v. Judkins, supra, 52 Cal.App.4th at p. 336.) The Court reviewed Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 313-315 and is not persuaded otherwise at the pleading stage. The complaint alleges that Plaintiffs and Ford entered into a warranty agreement for the subject vehicle. (Compl., ¶¶ 7-8, Ex. A.) As noted above, the complaint alleges that Ford was aware of the transmission defect before the subject vehicle was sold to Plaintiffs but did not disclose that knowledge to Plaintiffs. (Compl., ¶¶ 49, 76-80.) The Court also finds that OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835 stands for the proposition that a manufacturer has a duty to disclose material facts to subsequent purchasers when the manufacturer has reason to expect that the item will be resold, which the Court finds applicable in the context of a manufacturer selling vehicles through a dealership. (See Id., at p. 851.) Third, the Court finds that the economic loss rule does not bar this fraudulent concealment claim. The Court agrees with Defendants that the holding in Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993 (Robinson Helicopter) was limited to affirmative misrepresentations. However, the Court still finds that the economic loss rule does not apply to Plaintiffs fraudulent concealment claim. The California Supreme Court granted review in Dhital on February 1, 2023, such that Dhital no longer has precedential effect on the issue of the economic loss rule; however, it may be cited for persuasive value. (Cal. Rules of Court, rule 8.1115, subd. (e).) Defendant argues that the limited ruling in Robinson Helicopter should not extend to fraudulent omission claims. The California Supreme Court in Robinson Helicopter specifically refused to address the issue of whether the economic loss rule applies to concealment. (Robinson Helicopter, supra, 34 Cal.4th at p. 991.) This issue is currently pending before the California Supreme Court in Rattagan v. Uber Technologies, review granted February 9, 2022, S272113. In Dhital, however, the Court of Appeal expressly found that the economic loss rule did not apply to the plaintiffs concealment claim, stating: To hold, at the demurrer stage, that plaintiffs fraud claim is barred by the economic loss rule, we would need to conclude, as Nissan urges us to do, that (1) despite the Supreme Court's statement in Robinson, there is no exception to the economic loss rule for fraudulent inducement claims (or at least no exception that encompasses the claim plaintiffs allege in the SAC), or (2) plaintiffs have not adequately pleaded a claim for fraudulent inducement under California law &. We reject both arguments and conclude the economic loss rule does not bar plaintiffs claim. (Dhital, supra, 84 Cal.App.5th at p. 839.) The Court of Appeal further stated: Robinson left undecided whether concealment-based claims are barred by the economic loss rule. What follows from its analysis, however, is that concealment-based claims for fraudulent inducement are not barred by the economic loss rule. The reasoning in Robinson affirmatively places fraudulent inducement by concealment outside the coverage of the economic loss rule. We now hold that the economic loss rule does not cover such claims. First, as discussed, Robinson identified fraudulent inducement as an existing exception to the economic loss rule, before it proceeded to analyze the particular claims at issue in that case relating to fraud during the performance of a contract. [Citation.] For fraudulent inducement and the other existing exceptions listed in Robinson, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm. [Citation.] In our view, that independence is present in the case of fraudulent inducement (whether it is achieved by intentional concealment or by intentional affirmative misrepresentations), because a defendant's conduct in fraudulently inducing someone to enter a contract is separate from the defendant's later breach of the contract or warranty provisions that were agreed to. (Id., at pp. 840-841.) This Court is persuaded by the reasoning in Dhital and similarly finds the duty exists independent of the contract. Plaintiffs fraudulent concealment claim therefore falls outside the coverage of the economic loss rule. Accordingly, the Court OVERRULES the demurrer to the Fifth Cause of Action. Sixth Cause of Action Negligent Repair To state a cause of action for negligence, the plaintiff must allege facts demonstrating the existence of a duty, breach of that duty, causation, and damages. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202.) Defendants demur to the Sixth Cause of Action for negligent repair on the grounds that it fails to allege sufficient facts to state a cause of action and is barred by the economic loss rule. Defendants contend the economic loss rule bars this cause of action because it arises from and is not independent of the warranty contract. Defendants contend the complaint does not allege intentional conduct by Ken Grody or any physical damage to property or personal injury, but instead only seeks damages for the cost of the repair to the subject vehicle. Defendants also contend the economic loss rule applies to service contracts. Defendants contend the complaint does not allege facts evidencing damages or that Plaintiffs paid out-of-pocket for any repairs performed by Defendant Ken Grody. In opposition, Plaintiffs contend the complaint alleges sufficient facts to state a cause of action for negligent repair, such as delivering the subject vehicle to Defendant Ken Grody for repairs, who breached its duty to use the proper skills. Plaintiffs contend whether Plaintiffs paid out-of-pocket for the work is irrelevant and that they do not need to plead facts necessarily in the control of Ken Grody. Plaintiffs further contend the economic loss rule does not bar their negligence claim, contending that, based on federal district court cases in California, the economic loss rule does not apply to negligent repair claims where subcomponents of a vehicle cause damage to a larger component or where the component causes damage to the vehicle in which it was incorporated. The Court finds the complaint fails to allege sufficient facts to state a cause of action for negligent repair. The complaint alleges in a conclusory manner that Ken Grody owed Plaintiffs a duty of care, that Ken Grody breached that duty, and that the breach damaged Plaintiffs. (Compl., ¶¶ 87-90.) The complaint does not allege facts showing that Ken Grody owed Plaintiffs a duty of care independent of the warranty agreement. (Compl., ¶ 11; see also Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 [Any duty of the repairer arises out of its contract with the owner to repair the equipment for a specified fee and no justification exists to extend that contractual duty beyond the intent of the contracting parties. That the repairer has superior knowledge and may recognize the design defect is not sufficient in and of itself to create a duty to third parties.]) The complaint alleges that Ken Grody did not cause the transmission defect. (Compl., ¶¶ 42-48.) The complaint also does not allege facts demonstrating any damages different than that sought under the lemon law statutory violations. (See Compl., ¶¶ 87-90.) The Court also agrees with Defendants that this cause of action would be barred by the economic loss rule. Not all tort claims for monetary losses between contractual parties are barred by the economic loss rule. But such claims are barred when they arise from or are not independent of the parties underlying contracts. [Citation.] (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 923.) As noted above, the complaint does not allege Ken Grody owed Plaintiffs a duty independent of the warranty agreement. (Compl., ¶ 11.) In fact, the complaint expressly alleges that Plaintiffs causes of action are predicated upon those warranty obligations. (Id.) Therefore, the complaint fails to state a cause of action for negligent repair. Based on the foregoing, the Court SUSTAINS the demurrer to the Sixth Cause of Action. The Court will hear from Plaintiffs counsel whether leave to amend should be granted. CONCLUSION The Court OVERRULES the demurrer to the Fifth Cause of Action and SUSTAINS the demurrer to the Sixth Cause of Action. The Court will hear from Plaintiffs counsel whether leave to amend should be granted. Defendants are ordered to give notice of the Courts ruling within five calendar days of this order.

Ruling

DORON VARDI VS ADRIANA BEISCHL, ET AL.

Aug 14, 2024 |22SMCV02820

Case Number: 22SMCV02820 Hearing Date: August 14, 2024 Dept: M CASE NAME: Vardi v. Beischl, et al. CASE NO.: 22SMCV02820 MOTION: Demurrer to the First Amended Cross-Complaint HEARING DATE: 8/14/2024 LEGAL STANDARD A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law. (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.) Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.) ANALYSIS Plaintiff/Cross-Defendant Doron Vardi demurs to the First Amended Cross-Complaint (FACC). First Cause of Action under Civil Code § 51.9 Vardi asserts that the first cause of action fails as a matter of law because there is no qualifying relationship pled. A defendant is liable for sexual harassment under Civil Code section 51.9 when (1) [t]here is a business, service, or professional relationship between the plaintiff and defendant; (2) the defendant made unwelcome and pervasive or severe sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other conduct of a sexual or hostile nature based on gender; and (3) as a result, the plaintiff suffered or will suffer economic loss or disadvantage or personal injury. (Civ. Code, § 51.9(a).) The business, service, or professional relationship may exist between the plaintiff and a person including, but not limited to, physician, psychotherapist, dentist, attorney, social worker, real estate agent, real estate appraiser, investor, accountant, banker, trust officer, financial planner loan officer, collection service, contractor, escrow loan officer, executor, trustee, administrator, landlord, property manager, teacher, elected official, lobbyist, director, or producer, or in a relationship that is a substantially similar to any of the above. (Civ. Code, § 51.9(a)(1).) The Court previously sustained the demurrer to the initial cross-complaint because it failed to state sufficient facts to support a qualifying relationship under section 51.9. The identified relationship between a contractor and a client of a contractor is not a substantially similar relationship to the above categories. Upon review of the pertinent caselaw, the Court found that the pled relationship was insufficient without further facts showing that the unique relationship was such that the client, Vardi, had inherent and coercive power over the construction manager, Beischl. (Judd v. Weinstein (9th Cir. 2020) 967 F.3d 952, 957; see Hughes v. Pair, (2009) 46 Cal. 4th 1035, 1044 [Cal. Supreme Court observed that § 51.9 was meant to address relationships between providers of services and their clients& The statute sets out a nonexclusive list of such providers[.]]; see also Civ. Code § 51.9(a)(1)(H) [later amended to include Director or producer as a qualifying person].) Beischl identifies the following new allegations in support of such a relationship. First, Beischl highlights that Vardi owed a substantial sum of moneynearly $20,000 for work already done. (FACC ¶ 14.) With this context in mind, the FACC alleges: Ms. Beischls business is dependent on regular cash flow and payment from ongoing projects. Without this regular cash flow, Ms. Beischls business operations cannot continue to operate as she is responsible for disbursing the payments to numerous vendors and other workers involved in the project. If these third parties do not get timely paid, then they will cease working on the job and the entire project will grind to a halt. In the course of Ms. Beischls work on Vardis project, Vardi had run up substantial receivables with Ms. Beischl. Ms. Beischl reasonably feared that, if she were to cease work on Vardis project, she either would never get paid for these receivables or would have to file a lawsuit to get paid, which would delay payment for a substantial time period. (FACC ¶ 16.) [D]ue to the extensive and incessant telephone calls, text messages and emails and demands for communication from Vardi, Ms. Beischl had to devote an inordinate share of her time to Vardis project. This caused Ms. Beischl to have to forgo other projects in order to satisfy Vardi. As a result, while his project was ongoing, Vardi became Ms. Beischls primary client upon whom she relied to sustain her business operations until his project was completed. (FACC ¶ 17.) [G]iven Vardis tempestuous, argumentative and litigious nature, Ms. Beischl reasonably feared that, if she were to terminate her client relationship with Vardi before the project was completed, Vardi would wrongfully sue her for breach of contract and host of other potential claims, which would devastate her business. The foregoing created a power imbalance between Vardi and Beischl and, by virtue of this business, service or professional relationship, Vardi was placed in a position where he was uniquely situat[ed] to exercise coercion or leverage over Ms. Beischl. (FACC ¶ 18.) The above facts do not show an inherent power imbalance where Vardi is uniquely situated to exercise coercion or leverage over Beischl. The pled leverage is not unusual in business transactions and would not translate to the levels of coercion that is presented by caselaw. At best, the pled facts show a typical contractor-client relationship with the same level of coercion and leverage that is inherent in all business dealings: if someone breaches their contract, others will be damaged and might have to resort to a lawsuit. For instance, in Beichls cited case of Judd, supra, the producer allegedly had control over the actresss future career and essentially acted as her gatekeeper as to a career in Hollywood. The $20,000.00 debt pled here is a far cry from the ability to control Beischls future career. In fact, expanding protection to hirers of contractors in the pled circ*mstances would create virtually unlimited protection in all business relationships. Considering the limiting language of the section, such an interpretation would not be consistent with the intent of section 51.9. Accordingly, the demurrer is SUSTAINED without leave to amend as to the first cause of action. Second Cause of Action under CCP § 527 Vardi argues that the CCP section 527.6 claim fails because there are no claimed damages and there is no ongoing harm or harassment alleged because the harassment ended almost two years. Vardi cites no authority that a claim under section 527.6 must support a claim of damages, or must regard threats of future harassment. The plain language of the statute shows no such requirement. Subsection (a) provides that a person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section. Harassment is defined as unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. (Id., § 527.6(b)(3).) Unlawful violence is defined as any assault or battery, or stalking not including lawful acts of self-defense or defense of others. (Id., § 527.6(b)(7).)A plaintiff may therefore seek a restraining order when they have suffered assault or battery without reference to future harassment. The FACC alleges that Vardi engaged in harassment involving aggressive phone calls and texts by Vardi to Beischl and intimidation by Vardi directed at Beischl, including shouting in her face from inches away and looming over her in a threatening and aggressive fashion. (FACC ¶¶ 9-15.) As will be discussed, this alleges a claim of assault. Moreover, the FACC does not allege that the construction has ended or that there is no ongoing threat of harm. Therefore, Defendants demurrer to this cause of action cannot be sustained on the stated grounds. Accordingly, the demurrer is OVERRULED as to this cause of action. Third cause of action for Assault Vardi argues that the FACC fails to allege sufficient facts showing an act that could or was intended to inflict immediate injury. The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendants conduct; (4) the plaintiff was harmed; and (5) the defendants conduct was a substantial factor in causing the plaintiffs harm. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.) Physical injury is not required; rather, the tort of assault is complete when anticipation of harm occurs. (Kiseskey v. Carpenters Trust for Southern California (1983) 144 Cal.App.3d 222, 232.) The FACC alleges each element of assault as a matter of fact. The FACC alleges that Vardi met Beischl inside his home. (FACC ¶ 14.) He explained that he had the money to pay her outstanding receivable, but that in order to get the money she would need to provide him with an absolute date certain by which all work would be completed. (Id.) Beischl explained to him that she could not provide a certain completion date due to supply chain delays. (Id.) This enraged Vardi and he angrily shouted, inches from Ms. Beischls face and with a physical presence looming over her smaller, female stature, that he would not pay her what she was owed and continued to unreasonably demand a completion date that Ms. Beischl simply could not provide. (Id.) Since she feared for her safety and was fed up with Vardis abuse, Beischl told Vardi to keep the money and swiftly departed the premises. (Id.) Vardi allegedly acted with intent to cause harmful or offensive contact and threatened to touch Beischl in a harmful manner. (¶ 37.) Beischl reasonably believed she was about to be touched by Vardi in a harmful or offensive manner. (¶ 38.) Beischl did not consent to Vardis conduct. (¶ 39.) This conduct was a substantial factor in causing Beischls harm. (¶ 40.) With the above allegations, the FACC establishes that Vardi acted with an intent to cause harmful or offensive contact, and Beischl reasonably believed she was about to be touched in a harmful or offensive manner. At the pleading stage, this is all that is required. Accordingly, the demurrer is OVERRULED as to this cause of action. Fourth Cause of Action for Intentional Infliction of Emotional Distress Vardi argues that the alleged conduct simply does not rise to the level of outrageous conduct so extreme as to exceed all bounds of that usually tolerated in a civilized community. The elements of an intentional infliction of emotional distress (IIED) cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) To satisfy the element of extreme and outrageous conduct, defendants conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Id. at 780.) Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiffs interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.) [I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Id.) While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Id. at 494.) Generally, the question of whether the conduct is in fact outrageous is a question of fact to be determined beyond the pleading stage. (So v. Shin (2013) 212 Cal.App.4th 652.) While those cases say that it is usually a question of fact, several cases have dismissed intentional infliction of emotional distress claims on demurrer, concluding that the facts alleged did not amount to outrageous conduct as a matter of law. (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 355-356.) When reasonable persons may differ, it is for the jury to determine whether the conduct has been sufficiently extreme and outrageous to result in liability.¿(Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.) The FACC alleges that Vardi incessantly called and texted Plaintiff at all hours of the day over minor and unnecessary issues, angrily threatened her on repeated occasions, and physically threatened her at his home, screamed directly into her face from inches away and physically intimidated her by looming over her. (FACC ¶¶ 9-14) The Court concurs that these facts fail to allege outrageous conduct as a matter of law. As discussed in case law, IIED liability does not extend to such annoyances, indignities and threats. Moreover, the FACC fails to allege facts supporting the element of severe emotional distress. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) Beischl only alleges conclusions that Vardis conduct caused Beischl severe emotional distress, anxiety and mental anguish. (See, e.g., FACC ¶¶ 19, 23, 26, 44.) Such conclusory averments do not show Beischl suffered from distress of a substantial or enduring quality. Accordingly, the demurrer is SUSTAINED. Leave to amend will not be granted unless Beischl proffers sufficient facts demonstrating a reasonable probability of successful amendment on the outrageous conduct and emotional distress issues. Otherwise, Defendant is ordered to file an answer within 20 days.

Ruling

BEATRIZ CAMARILLO VS SUNRUN, INC., ET AL.

Aug 14, 2024 |23NWCV01707

Case Number: 23NWCV01707 Hearing Date: August 14, 2024 Dept: C CAMARILLO v. SUNRUN, INC., ET AL. CASE NO.: 23NWCV01707 HEARING: 8/14/24 @ 9:30 A.M. #2 TENTATIVE RULING I. Plaintiff Beatriz Camarillos motion to strike Defendants answer is GRANTED. II. Defendant Sunrun Inc.s motion to compel arbitration is MOOT. Defendant to give NOTICE. Background This is a continuation. This is a fraud and breach of contract action regarding the sale and installation of solar panels at a residence. On June 5, 2023, Plaintiff Beatriz Camarillo sued defendant Sunrun, Inc.; Hartman Home Transformation; and DOE defendants 1 through 50. On October 5, 2023, Plaintiff demurred to the Defendants answer. On October 25, 2023, Defendant filed its Motion to Compel Arbitration. On December 7, 2023, the Court sustained the demurrer with leave to amend. On March 13, 2024, Defendant Sunrun, Inc. amended its answer. Plaintiff Beatriz Camarillo moves to strike Defendants answer because it is untimely. Defendant Sunrun, Inc. moves to compel arbitration based on the power purchase agreement Plaintiff Beatriz Camarillo purportedly signed. Motion to Strike The court may strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) Plaintiff argues that Defendants answer is untimely because Defendant filed it more than 10 days after December 7, 2023. Following a ruling on a demurrer, unless otherwise ordered, Defendant must answer or amend within 10 days. (Cal. Rules of Court, rule 3.1320 (g).) The Court did not order otherwise. Thus, Defendants answer is untimely. However, the Court does not strike the answer on this ground because Defendants Counsel asserts she did not receive notice of the demurrer or the Courts ruling on the demurrer. (Fairbrother Decl., ¶ 9.) Plaintiff also argues that Defendant made a general denial even though Plaintiff verified her complaint. In opposition, Defendant argues that Plaintiffs verification does not comply with statutory requirements. Defendant can make a general denial only if the complaint is unverified. (Code Civ. Proc., § 431.30, subd. (d).) Any verification must substantially comply with Code of Civil Procedure, section 2015.5. Based upon the Courts review of the complaint, the verification substantially complies. Thus, the answer improperly asserts a general denial. The motion to strike is GRANTED. Compel Arbitration Here, Defendant answered, Plaintiff demurred, and then Defendant moved to compel arbitration. Then the court sustained Plaintiffs demurrer and Defendant amended the answer that is the subject of this hearing. Because the Court sustained the demurrer to the answer and struck the amended answer, the motion to compel contractual arbitration is MOOT. Defendant is not foreclosed from renewing its motion to compel contractual arbitration in lieu of filing an amended answer. (Code Civ. Proc., § 1281.7.)

Ruling

ART CENTER HOLDINGS, INC., A CALIFORNIA CORPORATION, ET AL. VS WCE CA ART, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Aug 16, 2024 |24SMCV01185

Case Number: 24SMCV01185 Hearing Date: August 16, 2024 Dept: M CASE NAME: Art Center Holdings, Inc., et al., v. WCE CA Art LLC, et al. CASE NO.: 24SMCV01185 MOTION: Defendants Motion to Compel Arbitration HEARING DATE: 8/16/23 Legal Standard Under California and federal law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) Accordingly, whether an agreement is governed by the California Arbitration Act (CAA) or the Federal Arbitration Act (FAA), courts resolve doubts about an arbitration agreements scope in favor of arbitration. (Moncharsh, supra, 3 Cal.4th at 9; Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general].) [U]nder both the FAA and California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Higgins v. Superior Crout (2006) 140 Cal.App.4th 1238, 1247.) Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration if the court determines that an agreement to arbitrate the controversy exists. (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59, quotations omitted.) Accordingly, when presented with a petition to compel arbitration, the courts first task is to determine whether the parties have in fact agreed to arbitrate the dispute. (Ibid.) A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Id. at 71.) As with any other specific performance claim, a party seeking to enforce an arbitration agreement must show the agreements terms are sufficiently definite to enable the court to know what it is to enforce. (Ibid. [internal citations omitted].) Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed. (Ibid.) An arbitration agreement must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. (Civ. Code, § 1636.) The language of the contract governs its interpretation if it is clear and explicit. (Civ. Code, § 1368.) If uncertainty exists, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. (Civ. Code, § 1654.) The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) It would then be plaintiffs burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.) In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the courts discretion, to reach a final determination. (Ibid.) Analysis Factual Background Plaintiffs, including medical doctors Mark W. Surrey and Hal C. Danzer, founded several fertility-related medical companies over two decades ago and in 2019 entered into a transaction with Defendant Womens Care Enterprises, LLC (WCE). The transaction centered around two key agreements: the Participating Physician Compensation Agreement (PPCA) and the Stock Purchase Agreement (SPA), neither of which contained arbitration clauses, instead requiring disputes to be resolved in state or federal courts in Los Angeles County, California. (Compl. ¶¶ 1, 30-32, 45; Keech Decl. ¶¶ 2-3.) In addition to the PPCA and SPA, the parties also entered into three ancillary Management Services Agreements (MSAs) for SCRC, ART, and Roxbury. These MSAs, which included arbitration provisions, are the focus of Defendants motion to compel arbitration. None of the direct Plaintiffs, nor even certain Defendants, signed these MSAs. Of the fifteen parties involved in the case, only five are signatories to the MSAs. (Fisher Decl. ¶ 2.) Each MSA contained a broad arbitration provision, stating: Arbitration. Except as expressly provided below in this Section 10.14, all controversies, claims and disputes arising from or relating to this Agreement will be resolved by final and binding arbitration before a single neutral arbitrator located in Los Angeles, California conducted under the applicable rules of the American Arbitration Association. The arbitrators award will be final and binding upon the Parties and judgment may be entered on the award. Each Party expressly waives its right to have any controversies, claims or dispute arising from or related to this Agreement decided by a court or jury. Nothing in this Section 10.14 will prohibit or prevent either Party from seeking or obtaining injunctive or other equitable relief in court to enforce the restrictive covenants in Article VI or any other agreement between the Parties. The Parties and the arbitrator will maintain in confidence the existence of the arbitration proceeding, all materials filed in conjunction therewith and the substance of the underlying dispute unless and then only to the extent that disclosure is otherwise required by applicable Law (Fisher Decl. ¶ 2, Ex. 1, Surrey Decl., Ex. A (SCRC MSA) at § 10.14; Ex. B (ART MSA) at § 9.13; Ex. C (Roxbury MSA) at § 9.14).** In March 2024, Plaintiffs initiated this lawsuit, with several Plaintiffs suing derivatively on behalf of entities such as ART Center Holdings, Inc., Roxbury Surgery Holdings, Inc., and SCRC Medical Group, P.C. (Compl. at Caption.) Many Plaintiffs, including Drs. Danzer, Alexander, Akopians, and Barritt, are not signatories to any of the MSAs and are suing solely in their individual capacities. The Complaint includes eleven causes of action, only the first six of which are brought derivatively and reference the MSAs. The remaining five causes of action, including breach of contract of the SPA, breach of joint venture/partnership agreement, intentional interference with prospective economic advantage, accounting, and declaratory relief, do not directly reference the MSAs. (Compl. ¶¶ 67-132.) Before filing their motion to compel arbitration, the WCE Defendants litigated the case as to several issues. In March 2024, they opposed Plaintiffs application for a receiver, and asserted that the claims were governed by a detailed purchase agreement, which does not contain an arbitration clause. During those hearings, Plaintiffs argue that the WCE Defendants referred to the MSAs as ancillary agreements and did not indicate any belief that the claims were subject to arbitration. Plaintiffs contend that even after the Court appointed a receiver, the WCE Defendants continued to litigate in court, including submitting an ex parte application in July 2024, which Plaintiffs contend further demonstrated their reliance on the Courts jurisdiction before shifting to seek arbitration. (Opp. to Receivership App., at 6:15-17; Appl. for Clarification dated July 29, 2024, at 7:18.) Existence of Arbitration Clause, Claims Covered, and Equitable Estoppel Defendants argue that Plaintiffs causes of action must proceed to arbitration based on the arbitration provisions contained within the MSAs. Defendants highlight that the MSAs have an interstate nexus, given that the MSO Defendants operate out of Florida while providing management services for the Fertility Practice in Southern California. (Compl. ¶¶ 15-19.) Defendants also invoke the doctrine of equitable estoppel, which compels arbitration even when some claims involve non-signatories to the MSAs, as long as those claims are dependent upon or inextricably linked to the agreements. (Boucher v. Alliance Title Co. (2005) 127 Cal. App. 4th 262, 269.) Defendants argue that the MSAs arbitration clauses are broad, covering all controversies, claims, and disputes arising from or relating to the agreements. Such language, they contend, is sufficient to encompass not only contractual claims but also tort claims and other issues related to the MSAs. They emphasize that Plaintiffs claims are deeply intertwined with the MSAs, as they stem from the alleged mismanagement and breaches of the agreements. This includes claims for breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, conversion, and even those that appear to be tort-based or seek declaratory relief. Each of these claims, according to Defendants, is rooted in the contractual relationship established by the MSAs and therefore falls within the broad scope of the arbitration provisions. (Compl. ¶¶ 67-132.) Defendants argue that the Courts role in deciding a motion to compel arbitration is limited and that the Court must compel arbitration if the agreement is susceptible of an interpretation which would cover the dispute. (Dryer v. Los Angeles Rams (1985) 40 Cal. 3d 406, 413.) In opposition, Plaintiffs contend that arbitration clauses generally do not bind non-signatories, as they are not parties to the agreements. (Compl. ¶¶ 67-132; Keech Decl. ¶ 2.) Plaintiffs assert that their claims do not rely on or invoke the MSAs and are not dependent on any contractual obligations within those agreements and thus, enforcement under an equitable estoppel argument would fail. For example, claims like negligence, conversion, and breach of the SPA do not seek to enforce the MSAs. Plaintiffs emphasize that their claims are viable without reference to the MSAs, further arguing that the WCE Defendants cannot compel arbitration in these circ*mstances. Specifically, Plaintiffs contend that in the fifth cause of action for negligence, they are not seeking to enforce any contract or uphold its validity; rather, they aim to invalidate these contracts. The negligence claims arise from Defendants mismanagement, which, Plaintiffs argue, would exist regardless of the MSAs. The focus is on Defendants role as owners and managers of the Fertility Practice, not on the specific terms of the MSAs. (Compl. ¶ 67-132.) Similarly, the sixth cause of action for conversion alleges that the WCE Defendants improperly awarded themselves compensation beyond what is set forth in the MSAs. Plaintiffs argue that their claims are not based on any contractual right under the MSAs, and therefore, there is no basis to compel arbitration. In the seventh cause of action, Plaintiffs seek individual compensation for breaches of the SPA, which explicitly provides for court-based resolution and does not include an arbitration clause. Thus, Plaintiffs argue that there is a clear agreement to resolve these claims in court, not through arbitration. (Keech Decl. ¶ 3, Ex. B [SPA] § 9.18.) As to the eighth, ninth, tenth and eleventh causes of action, Plaintiffs assert that these claims cannot be forced to arbitration based upon Defendants assertion of the MSAs as a defense. Instead, Plaintiffs argue that the Court should consider how they framed the causes of action, including negligence, intentional interference with prospective economic advantage, accounting, and a claim for declaratory relief regarding the operation of the Fertility Practice Plaintiffs also assert that the Court, not an arbitrator, must determine the arbitrability of the claims brought by the direct plaintiffs since they did not sign any of the agreements containing the arbitration clauses. The Court agrees that the threshold issue must be decided by the Court and not the arbitrator. (See e.g. AT&T Techs., Inc. v. Commcns Workers (1986) 475 U.S. 643, 649 [question of whether parties are bound to agreement to arbitrate is to be decided by the court, not the arbitrator]; Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 79 [same]; Am. Builders Assn. v. Au-Yang (1990) 226 Cal. App. 3d 170, 179 [same].) This is because arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. (United Steelworkers of Am. v. Warrior & Gulf Nav. Co. (1960) 363 U.S. 574, 582.) Plaintiffs argues that if the Court finds certain claims arbitrable, the arbitration should be delayed until after the Court has adjudicated the non-arbitrable claims. In reply, Defendants argue that the Complaint places the MSAs at the center of the dispute because the Complaint specifically focuses on the alleged mismanagement by WCE Defendants under the MSAs, highlighting that these agreements were integral to the relationship and the core issues in the case. For instance, the Complaint describes how WCE Defendants were supposed to offer expert non-medical management services in exchange for substantial fees, but instead, they allegedly mismanaged the Fertility Practice, leading to increased expenses, loss of staff, and compromised patient care. (Compl. ¶¶ 2-4, 30-56.) The Complaint also alleges that the WCE Defendants breached their contractual obligations under the MSAs, which significantly impacted the Plaintiffs operations and financial outcomes. (Compl. ¶¶ 87-88.) Defendants argue that the MSAs are not just ancillary agreements but are essential to understanding the claims presented in the Complaint. They emphasize that the MSAs are repeatedly cited throughout the Complaint as the basis for the alleged mismanagement and the resulting damages claimed by Plaintiffs. Defendants also note that even the claims related to the Stock Purchase Agreement (SPA) are intertwined with the MSAs, as the alleged failure to meet performance targets under the SPA is linked to the WCE Defendants' mismanagement under the MSAs. (Compl. ¶¶ 102-103.) After reviewing the Complaint and its causes of action, the Court concludes that all of Plaintiffs causes of action fall within the scope of the broad arbitration clauses of the MSAs, which require arbitration of all controversies, claims and disputes arising from or relating to the agreements. As to the first four causes of action, which involve breaches of the MSAs and the implied covenant of good faith and fair dealing, Plaintiffs have conceded that they are arbitrable. While the direct Plaintiffs are not signatories to the MSAs, by bringing derivative claims, Plaintiffs not only step into the shoes of the entities that signed the MSAs and are therefore bound by the arbitration clauses, but bring claims that are dependent upon, or inextricably intertwined with the underlying contractual obligations of the agreement containing the arbitration clause. (See Pillar Project AG v. Payward Ventures, Inc., (2021) 64 Cal. App. 5th 677=78.) The claims also demonstrate that Plaintiffs received a direct benefit from the MSAs, which contain the arbitration clauses, in their practice of medicine. (Id.) The same rationale applies to the remaining causes of action (nos. 5-11). These claims are also either predicated on or intertwined with the MSAs. For instance, the fifth cause of action for negligence and sixth cause of action for conversion are brought derivatively and directly relate to the management services provided under the MSAs. Similarly, the seventh cause of action involves breach of the Stock Purchase Agreement (SPA), and the gravamen of the claim is the alleged mismanagement under the MSAs, which prevented certain Plaintiffs from meeting performance targets in the SPA. As to the eighth through eleventh causes of action, which include claims for breach of a joint venture/partnership agreement, intentional interference with prospective economic advantage, accounting, and declaratory relief, they are also similarly based on or intertwined with the MSAs. The MSAs will govern the issue of whether Defendants' actions exceeded their contractual authority or were in violation of the agreements. Here, the Complaint itself places the MSAs at the heart of the dispute, repeatedly referencing the WCE Defendants management obligations and alleged failures under these agreements as to each of the eleven causes of action. Plaintiffs claims, including those for negligence, conversion, and breach of contract, are all rooted in the contractual relationships established by the MSAs. The broad arbitration provisions within the MSAs explicitly cover all controversies, claims and disputes arising from or relating to these agreements, making arbitration the appropriate forum for resolving these issues even as to non-signatories to the MSAs. Waiver Plaintiffs argue that even if the arbitration clauses were applicable, the WCE Defendants waived their right to arbitration by aggressively litigating the case in court. Plaintiffs contend that since March 2024, Defendants engaged in extensive litigation, submitting thousands of pages of evidence and arguments, and invoking the courts jurisdiction on multiple occasions. (Opp. to Receivership App., at 5:22-27, 14:6-7; Supp. Brief Response dated Apr. 17, 2024 (Supp. Brief Response), at 11:2-3; Appl. for Clarification dated July 29, 2024, at 7:18.) It was only after unfavorable court rulings that the Defendants sought to compel arbitration. Plaintiffs contend that this behavior is inconsistent with a right to arbitration and constitutes a waiver. Here, Plaintiffs have not met the burden of proving that Defendants waived their right to compel arbitration. As the Supreme Court recently held, a party opposing arbitration must demonstrate by clear and convincing evidence that the other party knew of their arbitration rights and intentionally relinquished them. (Quach v. California Commerce Club, Inc., 2024 WL 3530266 at *25-26 (July 25, 2024)), The Court concurs that opposing an emergency motion for a provisional remedy like a receivership, or seeking clarification of that order, does not demonstrate a clear intent to forgo arbitration, especially since Defendants filed their motion to compel arbitration just over two months after the case was filed. There is no evidence that Defendants engaged in substantive litigation activities such as filing dispositive motions or serving discovery, but instead, have only responded to Plaintiffs initial motion for a receiver. The Court agrees with Defendants that Plaintiffs fail to show that Defendants waived their arbitration rights. Thus, the Court GRANTS Defendants motion to compel arbitration as to all Plaintiffs and causes of action. Stay of Proceedings The Court will stay further litigation until the arbitration is resolved. The Court has this power to stay the action. The case management tools available to trial courts [include] the inherent authority to stay an action when appropriate&[to] overcome problems of simultaneous litigation&¿ (Jordache Enterprises, Inc. v. Brobeck, Phelger & Harrison (1998) 18 Cal.4th 739, 758; Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 513 (trial courts have inherent authority to stay&holding [actions] in abeyance pending resolution of underlying litigation out of concern for inconsistent judgments). And under CCP § 1281.2(3) the Court may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding. Accordingly, the action is STAYED pending the results of the arbitration. Conclusion For the reasons explained above, Defendants motion to compel arbitration is GRANTED and the action is STAYED. The Court will set a status conference re arbitration out approximately one year.

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Aug 14, 2024 |Commercial - Contract |Commercial - Contract |654124/2024

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Macy'S, Inc., Macy'S Merchandising Group, Inc. v. Martha Stewart Living Omnimedia, Inc., J.C. Penney Corporation, Inc.

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Document

Bply, Llc v. W1nder, Inc., D/B/A Robert Caliber Clothing Company, Winder Inc. Corp., D1hera, Point A Showroom, Inc., Robert Schmidt, Mia Kim A/K/A Meiae Kim

Jan 30, 2008 |Charles Edward Ramos |Commercial Division |Commercial Division |650029/2008

EXHIBIT(S) - A (Motion #004) - Exhibit A - Plaintiffs' Commencement and Reply Papers July 19, 2019 (2024)

FAQs

What is the difference between a motion for summary Judgement and a motion for Judgement on the pleadings? ›

A motion for judgment on the pleadings will occur before the trial and, unlike a motion for summary judgment, does not concern any matters other than what is contained within the pleadings.

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How to write a motion for summary judgment sample? ›

What You Need in Your Motion for Summary Judgement

Title and Introduction. Clearly state the document's purpose and include the case caption. ...
Statement of Facts. Provide a clear, detailed statement of the undisputed facts. ...
Standard of Review. Explain the legal standard for granting summary judgment. ...
Argument. ...
Conclusion.

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How many days to respond to a motion to dismiss in federal court? ›

If the court denies (or partially denies) the motion to dismiss or postpones judgment until trial, the moving party must file a responsive pleading within 14 days after receiving notice of the court's action (FRCP 12(a)(4)(A)).

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Can you file motion for judgment on pleadings before answer? ›

A motion for judgment on the pleadings is filed after the pleadings have closed, but early enough not to delay trial. FRCP 12(c). Pleadings are “closed” once a complaint and answers by all defendants have been filed.

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How do I argue against a motion for summary judgment? ›

Consider the following five approaches:

Show that the motion fails to list the specific facts and law supporting summary judgment. ...
Show that a dispute exists on a material fact. ...
Show that the law does not support judgment on the undisputed facts.

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May 10, 2021

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What do pretrial motions generally seek to do? ›

Common pre-trial motions include: Motion to Dismiss – an attempt to get the judge to dismiss a charge or the case. This may be done if there is not enough evidence, if the alleged facts do not amount to a crime.

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How to reply to a motion for summary judgment? ›

Replies should be succinctly stated. If the response to a fact is “undisputed,” the reply should also state “undisputed.” If you contend that despite a response of “disputed,” the non-moving party has failed to raise a genuine dispute of material fact, you should succinctly state why.

What is the meaning of motion for summary judgment? ›

In a summary judgment, one party may contend there are no facts that need to be decided, or the parties may agree on what the facts are. Either side (and sometimes both sides) may bring a motion for summary judgment arguing that they are entitled to a judgment in their favor without a trial.

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What is the difference between a motion to dismiss and a summary judgment? ›

A motion for summary judgment is another way to ask for a pretrial resolution of a case. It differs from a motion to dismiss because summary judgment is typically considered only after the parties have conducted their discovery.

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How to defeat a motion to dismiss? ›

To successfully defeat the motion to dismiss, a pro se litigant must address the following potential responses.

The plaintiff's allegations don't fit the facts of the case.
There is a missing element of the claim.
There are no factual allegations in the complaint, only conclusions.

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Which of the following are proper grounds for a motion to dismiss? ›

These include dismissals for: (b)(1) a lack of subject-matter jurisdiction. (b)(2) a lack of personal jurisdiction. (b)(3) improper venue.

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How long does it take to respond to motion? ›

There is a specific deadline for filing and serving a written response, usually fourteen (14) days prior to a hearing. The response may agree with or oppose the action requested. If the response opposes the action requested, it must contain the reasons for opposing the motion and must include supporting evidence.

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What are Rule 12 motions? ›

Rule 12(c) motions—allowing a party to move, after the pleadings are closed, for judgment on the pleadings—are often overlooked. Practitioners, however, should consider and incorporate Rule 12(c) motions into their litigation strategies. Motions for judgment on the pleadings are essentially trials on the pleadings.

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What is the difference between a motion and a complaint? ›

The General Rule

A "Motion" predominantly refers to an oral request or written request made to a court requesting that the court do something during the course of a civil action a.k.a. lawsuit a.k.a. court case after the case was initiated with a Complaint or a Petition.

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What is the difference between a judgement and a summary judgement? ›

The Court grants summary judgment when there is no material issue of fact and it is required to enter judgment as a matter of law. A genuine issue of material fact exists when facts related to the specific legal claim are in dispute or when undisputed facts support different outcomes on an issue.

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What is the difference between a motion for summary judgment and a motion to dismiss? ›

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What does a motion for summary Judgement assert? ›

Under a motion for summary judgment, the movant should assert that a fact cannot be genuinely disputed based on the record. The nonmovant is given notice and a reasonable time to respond, after which the court may grant or deny summary judgment.

What is the difference between a 12b6 motion and a summary judgment? ›

b) Motions to dismiss under Rule 12(b)(6) are adjudications on the merits, and therefore should be granted with caution. 1. Summary judgment motions ask the court to examine the record and determine whether any material questions exist for a jury to decide.