Exhibits to motion for leave to file amended petition June 13, 2008 (2024)

Case

AGUA LIBRE MIDSTREAM LLC vs. ECOSTREAM ENERGY SERVICES LLC

Aug 19, 2024 |CORY SEPOLIO |Debt/Contract - Debt/Contract |Debt/Contract - Debt/Contract |202454204

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SMYRNA READY MIX CONCRETE LLC (D/B/A SRM CONCRETE) vs. N L CONCRETE SERVICES LLC

Nov 30, 2023 |MICHAEL GOMEZ |Debt/Contract - Consumer/DTPA |Debt/Contract - Consumer/DTPA |202382812

Case

FORD MOTOR CREDIT COMPANY LLC vs. HUNGATE, MICHAEL D

Sep 13, 2023 |LAUREN REEDER |Debt/Contract - Debt/Contract |Debt/Contract - Debt/Contract |202363362

Case

WELLS FARGO BANK NA vs. GARCIA, JESUS H

Dec 12, 2023 |LATOSHA LEWIS PAYNE |Debt/Contract - Debt/Contract |Debt/Contract - Debt/Contract |202385203

Case

AZOFEIFA, ANA vs. CLEAR BLUE INSURANCE COMPANY

Dec 08, 2023 |FREDERICKA PHILLIPS |Debt/Contract - Consumer/DTPA |Debt/Contract - Consumer/DTPA |202384496

Case

AMERICAN CREDIT ACCEPTANCE vs. KING, TYRA LASHELL

Dec 04, 2023 |URSULA A. HALL |Debt/Contract - Debt/Contract |Debt/Contract - Debt/Contract |202383662

Case

RIVERGATE PROPERTIES LLC SERIES GARDENDALE vs. ALLTHREADSX LLC

Aug 22, 2024 |FREDERICKA PHILLIPS |Debt/Contract - Debt/Contract |Debt/Contract - Debt/Contract |202455435

Case

SURE WIN REAL ESTATE INVESTMENT LLC vs. TEXAS CITY CLINIC PLLC

Dec 04, 2023 |RAVI K. SANDILL |Debt/Contract - Consumer/DTPA |Debt/Contract - Consumer/DTPA |202383518

Case

EMORY FAMILY LTD PARTNERSHIP vs. GEOVERA SPECIALTY INSURANCE COMPANY

Dec 07, 2023 |JERALYNN MANOR |Debt/Contract - Consumer/DTPA |Debt/Contract - Consumer/DTPA |202384495

Ruling

E-COMMERCE LIGHTING INC vs E-COMMERCE TRADE LLC

Aug 22, 2024 |PSC1701019

Motion for Summary Judgment or in theE-COMMERCE LIGHTING INC vs Alternative Summary Adjudication onPSC1701019E-COMMERCE TRADE LLC Complaint of WHITE FIELD EQUITIES-FUND ITentative Ruling: Denied.Responding party to provide notice pursuant to CCP 1019.5.Plaintiff, E-Commerce Lighting, Inc. (“ECL”), alleges that on 7/31/15, as part of the purchase price ofECL’s assets, it and Defendant, E-Commerce Trade, LLC (“ECT”) entered into a Promissory Notewherein ECT agreed to pay ECL the principal amount of $2,500,000 at 7% interest annually, with thefirst monthly payment of $29,661.98 due on 9/15/15, and continuing on the 15th of each successivemonth for ten years when all principal, and interest would be due.In December of 2016, ECL notified ECT in writing that it was in default under the ECL Note. Thefailure to cure the default triggered increased interest to 10% on the unpaid principal balance, and allsums became immediately due and payable. As of 3/15/17, the principal and interest due and owningon the ECL Note is $2,339,825.27. ECL filed its Complaint on 2/24/17 against ECT alleging a singlecause of action for breach of promissory note.Banc of California (“Banc”) sought and received permission to file a Complaint of Intervention. Theoperative pleading is the First Amended Complaint, which is asserted against ECL, Frank Halcovich(“Halcovich”), (ECL’s CEO), Wendy Hertz (“Hertz”) (ECL’s CFO and Halcovich’s wife), ECT, and BrianSawyer (a personal guarantee of a loan entered into by Banc and ECT). It asserts that it providedECT with a loan to purchase ECL’s assets and ECT has breached said agreement, which wasguaranteed by Brian Sawyer. It also alleges that ECL made false representations to ECT andfraudulently concealed facts regarding the assets it was selling.The operative pleading asserts the following claims: (1) fraudulent concealment, (2) negligentmisrepresentation, (3) breach of subordination agreement, (4) breach of contracts/loan documents,(5) breach of guarantees, and (6) unfair competition.A Complaint was filed by White Field Equities-Fund I (“WFE”) on 12/23/19 (Case No. PSC 1909378)against ECL, Halcovich and Hertz, which was consolidated with the breach of promissory note actiondescribed above and the complaint in intervention.The Complaint alleges two causes of action: (1) fraud/fraudulent inducement/fraudulent concealment;and, (2) negligent misrepresentation. The WFE Complaint alleges that under an Asset PurchaseAgreement (“APA”), ECT agreed to pay $11.5 million for the purchase of ECL including assets, andgoodwill, of which $9 million was to be in cash. The remaining $2.5 million was paid using aPromissory Note (ECL Note described above). ECT borrowed $2.7 million of the cash paymentportion of the purchase price of ECL from WFE and executed a promissory note on 7/16/15 for thatamount.After the purchase, and without knowledge of certain concealed facts and misrepresentations aboutthe condition of ECL, WFE loaned an addition $1,939,603 to ECT for operating shortfalls caused bythe concealed facts and misrepresentations. For instance, WFE alleges that ECL, Halovich, andHertz, failed to disclose that numerous vendors had suspended or terminated their relationships dueto ECL selling vendors’ products on the internet below Internet Minimum Advertised Price (IMAP) inviolation of their distributor agreements. In any event, ECT executed a second promissory note for theadditional amount on 4/12/19. ECL agreed that the ECL Note ($2.5 million) and all payments due fromECT under the ECL Note were subordinate to the amount that ECT borrowed from WFE.ECL, Halcovich, and Hertz bring this motion for summary judgment in their own favor on WFE’scomplaint. They argue that WFE’s claims are barred by the applicable statute of limitations.In opposition, WFE contends that its claims are not barred by the statute of limitations because it didnot sustain damages until after the date used by ELC, Halcovich, and Hertz to calculate the statute oflimitations. It also asserts that equity mandates that the statute of limitations be tolled during thependency of WFE’s Motion to Intervene in the ECL Action, which would extend the statute oflimitations period.In reply, the Moving Parties argue that WFE is trying to change the allegations of its pleading, which isimproper. It argues that a fraud cause of action requires harm not damages for the statute oflimitations to start running and the running of the statute or limitations is not postponed by the fact thatthe actual or substantial damages do not occur until a later date. They assert that the statute oflimitations should not be equitably tolled because there was a delay in filing the Motion to Interveneand then filing the Complaint when the Motion to Intervene was denied. They argue that the did nothave notice of the claims until WFE’s lawsuit was filed.Motion for Summary JudgmentA motion for summary judgment attacks the entire pleading. To grant a motion for summary judgment,the moving party must be entitled to judgment in its favor. (CCP § 437c(c).) A defendant meets herburden in a motion for summary judgment by doing one of the following: (1) presenting affirmativeevidence negating an essential element of plaintiff’s cause of action; (2) showing a complete defense;or (3) showing that plaintiff does not possess and cannot reasonably obtain needed evidence. CCP§437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. When a defendant has met herburden, it then shifts to plaintiff to show that a triable issue of fact exists.Procedural History on MSJIt should be noted that this is the second motion for summary judgment brought by Moving Parties onthis Complaint. This issue is not raised or discussed by any of the parties. This motion is brought on acompletely different theory than the original motion. As such, it does not appear to be areconsideration of the prior motion. The prior motion was for summary judgment. As such, this motionalso does not appear to violate CCP § 437c(f)(2), which applies when a motion for summaryadjudication is denied.Request for Judicial Notice (RJN)Moving parties request 10 exhibits be judicially noticed. Granted as to Exhibit 1 (Complaint)Responding party request 12 exhibits be judicially noticed. Granted as to Exhibits 2, 4, 8, and 9.Statute of LimitationsIn the instant motion, moving Parties argue that WFE’s Complaint, which sets forth claims for fraudand negligent misrepresentation, fail because they are barred by the applicable statute of limitations.Negligent misrepresentation is a form of fraud. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.) Athree-year statute of limitations applies to a fraud cause of action. (CCP § 338(d).) The general rule isthat a cause of action accrues on the date of injury. (Vaca v. Wachovia Mortgage Corp. (2011) 198Cal.App.4th 737, 743.) A fraud cause of action “is not deemed to have accrued until the discovery, bythe aggrieved party, of the facts constituting the fraud or mistake.” (CCP § 338(d).) “The courtsinterpret discovery in this context to mean not whether the plaintiff became aware of the specificwrong alleged, but when the plaintiff suspected or should have suspected that an injury was causedby wrongdoing.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.)As our Supreme Court has long held, under Code of Ciivl Procedure section 338, subdivision(d), a ‘plaintiff must affirmatively excuse his [or her] failure to discover the fraud within threeyears after it took place, by establishing facts showing that he [or she] was not negligent infailing to make the discovery sooner or that he [or she] had no actual or presumptiveknowledge of fatcs sufficient to put him [or her] on inquiry.(Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 561-562.)Based on the evidence provided with the moving papers, Mark Sawyer was the president of ECT(Declaration of Mark Sawyer in Opposition to Application for Writ of Attachment, ¶ 1) an investor inWFE, managing partner of WFE (Mark Sawyer’s Deposition, 68:10-24) and the managing partner ofWFE’s managing agent - White Field Capital Partners, LLC (“WFCP”) (Declaration of Mark Sawyer inSupport of WFE’s Opposition to E-Commerce Lighting, Frank Halcovich, and Wendy Hertz’ Motion forSummary Judgment, ¶¶ 8 and 11; Deposition of Brandon Smith, 100:1-13.) Mr. Sawyer was aware byNovember 2016 that some of the outstanding receivables that was part of the sale to ECT wereuncollectable, Home Depot was asserting a large deduction on the amounts it owed due to a largenumber of returns, and there were a number of vendor relationships that had been recently terminatedor threatened to be terminated due to violations in the vendor agreements, which were allegedmisrepresentations made during ECT’s purchase of ECL’s assets. (Declaration of Mark Swayer inopposition to Application for Writ of Attachment, ¶¶ 9-15.) These are the same grounds of fraudasserted in the Complaint.Notice to an officer or authorized agent of a corporation is notice to the corporation. (Moore v. Phillips(1959) 176 Cal.App.2d 702, 709.) An entity can only have knowledge through its officers and agents.(Snyder v. Security-First Nat’l Bank (1939) 31 Cal.App.2d 660, 664.) “A principal is deemed to havenotice of whatever its agent has notice of and should reasonably communicate to the principal.”(Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340. 366.) A principal is boundby the knowledge of its agent that it received while agent acting within the scope of its authority. (Ibid.)“Included among the types of information that may be imputed from agent to principal are facts usedto determine the date of accrual of a statute of limitations.” (Id. at 367.) Due to Mr. Sawyer’s role in allof these businesses, it appears that WFE had notice of these facts in November 2016.WFE does not argue that Sawyer was not aware of this information. It does not dispute that Sawyerheld the positions identified by Moving Parties. Instead, it argues that a letter sent by counsel in 2016addressing the claims of fraud was sent by ECT on ECT’s behalf and not on WFE or WCFP’s behalf.While this may be true, WFE points to no authority that this has any impact on the facts known bySawyer. They point to no authority that Sawyer’s knowledge is not imputed on it. As such, thisargument by WFE appears to have no merit.WFE also contends that the statute of limitations could not have accrued in November 2016 becauseit did not incur damages until sometime later. Based on the allegations in the Complaint, WFE wouldnot have made the loans to ECT, had it known the false representations and concealed facts and thatsaid misrepresentations/concealments harmed WFE. (Complaint, ¶¶ 27, 29, 36, and 37.) Based onthese allegations, WFE incurred damages as soon as they loaned ECT the initial funds because theywould not have done so except for the fraud. In Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57, theplaintiff alleged that the seller of property made false representations and fraudulently concealeddefects to real property. The plaintiff argued that the fraud cause of action did not accrue until she wasinjured by the defects in the home. (Id. at 72.) However, the Court found that injury occurred at thetime of sell because she paid more for the property than it was worth. (Id.) The Court stated “[t]hemere fact that some damages continued to occur or be discovered that might have increased theamount of damages to which she was entitled did not prevent the accrual of [her] claim.” (Id.) Thismatter is similar to Vera. Like in Vera, WFE provided more funds than it would have, had they knownabout the defect at the time the transaction occurred. As such, it appears that injury occurred in thismatter when the initial loan payment was made. It appears that the claims are barred by theapplicable statute of limitations.WFE argues that this matter is similar to Cleveland v. Internet Specialist West, Inc. (2009) 171Cal.App.4th 24. It argues that under Cleveland, where installment payments are at issue, fraud doesnot accrue until a payment is missed. First, it should be noted, there is no installment contractbetween WFE and the Moving Parties. This lawsuit asserts fraud not against the entity that WFE lentmoney to but against the seller of assets to the entity it lent money to. Second, Cleveland is notapplicable because the fraud at issue in Cleveland did not occur until after the investment agreementwas entered into and when funds were not paid out. (Id. at 32.) As such, Cleveland does not appearapplicable. WFE also relies on City of Vista v. Robert Thomas Sec. (2000) 84 Cal.App.4th 882, 886-887. This case also does not appear applicable because it was based on fraud pertaining to thepayout of the security investment, which would not have been known until the last interest paymentwas made to the investors. (Id.) This fact pattern is not like the issue in this lawsuit. As such, thesecases are not persuasive.WFE argues that this motion should also not be granted due to equitable tolling. Equitable tolling is ajudge made doctrine that extends or suspends the statute of limitations for fairness and to ensurefundamental practicality. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) Equitable tolling ofthe statute of limitations has been recognized in California only where (1) the plaintiff is pursuing analternative remedy in another forum; (2) under narrow circ*mstances, while plaintiff is pursuing thesame remedy in the same forum; (3) where a defendant fraudulently conceals the cause of action;and (4) in certain actions against an insurer. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343,360.) It applies where a party has several legal remedies and in good faith reasonably pursues one.(Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 725.) Equitabletolling can only be applied when the following elements are present: (1) timely notice to the otherparty, (2) lack of prejudice, and (3) reasonable and good faith conduct by plaintiff. (Id. at 724.) Theseelements are designed to balance the injustices to the plaintiff that will occur if their claims are barredagainst the effect upon the important policy policies expressed by the statute of limitations. (Ibid.)WFE argues that the statute of limitations should be tolled during the time period that it filed and theCourt heard its motion to intervene in ECL’s lawsuit. It argues that the Motion to Intervene gave theMoving Parties timely notice of its claims. It asserts that there has been no prejudice considering thatequitable tolling only tolls the statute of limitations 62 days. It contends that its actions werereasonable and made in good faith. Moving Parties contend that equitable tolling should not beapplied because WFE does not indicate why it did not file a Motion to Intervene sooner and why itwaited until three months after the Motion to Intervene was denied before filing its Complaint. Whileequitable tolling is rarely applied and it is probably unlikely that it will be found ultimately applicable,there appears to be a triable issue of material fact as to this issue.The first element of equitable tolling is timely notice. “When considering whether a plaintiff providedtimely notice, courts focus on whether the party’s action caused the defendant to be ‘fully notifiedwithin the [statute of limitations] of plaintiff’s claims and their intent to litigate.’” (Saint FrancisMemorial Hospital, supra, 9 Cal.5th at 726.) Moving Parties argue that a motion to intervene cannotprovide said notice because it is not the actual filing of a complaint or claim. However, in Saint FrancisMemorial Hospital, the Court found that filing a motion for reconsideration met the first requirement ofequitable tolling because it could possibly give the party the legal relief they sought. (Id. at 726-727.)As such, the legal remedy does not appear to be limited to the filing of a pleading or claim and thisargument is not persuasive. The Motion to intervene attached a Complaint in Intervention, whichincludes the same causes of action set forth in WFE’s current complaint. This motion was filed on7/27/19, months before the statute of limitations ran on WFE’s claims. As such, it appears that MovingParties were provided with notice of WFE’s claims.The second issue for equitable tolling is whether there has been prejudice to the defendant. The corefocus of the second element is “whether application of equitable tolling would prevent the defendantfrom defending a claim on the merits.” (Saint Francis Memorial Hospital, supra, 9 Cal.5th at 728.)WFE points to the fact that its complaint was filed less than two months after the statute of limitationsran on this matter. This is a limited amount of time after the statute of limitations ran and appears toindicate lack of prejudice. Moving Parties have failed to identify any prejudice, except for the fact thatthey must defend this lawsuit. Due to this, it appears that there is evidence to support the secondelement of equitable tolling.The third element requires that the actions by the plaintiff be reasonable and taken in good faith. MarkSawyer has provided a declaration indicating that WFE’s decision to file the Motion to Intervene wasdone because they felt it was the easiest way to assert their claims and believed their request wouldbe granted based on the Court’s granting of Banc’s similar motion to intervene. (Declaration of MarkSawyer, ¶¶ 27-31). Based on this, it appears that WFE has provided evidence to support thesubjective test of good faith. “When it comes to reasonableness, the ‘ultimate test’ is ‘objective.’ Ananalysis of reasonableness focuses not on a party’s intentions or the motives behind a party’s actions,but instead on whether that party’s actions were fair, proper, and sensible in light of thecirc*mstances.” (Saint Francis Memorial Hospital, supra, 9 Cal.5th at 729.)The Complaint in Intervention that the Court allowed Banc to file is similar to WFE’s complaint. Itasserts fraud, negligent misrepresentation and other claims based on false representations made byECL via the APA with ECT. As such, it does not appear unreasonable for WFE to believe that theirsimilar complaint would be granted. As for the timing, it does not appear improper for WFE to waituntil 7/26/19 to file its motion. This is only three months after Banc’s motion was granted, which is notan excessive amount of time and months before the statute of limitations ran. Moving Parties arguethat the three months between the denial of the Motion to intervene and the filing of the Complaint inthis lawsuit was not reasonable or in good faith. While WFE did have time between this period to filetheir Complaint but did not take advantage of this, the purpose of equitable tolling is to pause thestatute of limitations during the time period that alternative relief is sought. When applying this pause,the Complaint was filed during the appropriate statute of limitations period. Moving Defendantsprovide no authority that this type of conduct makes WFE’s conduct unreasonable. As such, thereappears to be a triable issue of material fact as to equitable tolling. Due to this, the motion forsummary judgment must be denied.

Ruling

LAW FIRM OF HAROLD GREENBERG VS BARBARA APPLEBERRY

Aug 21, 2024 |23STCV21702

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

Ruling

Stellar Solar, Inc. vs. Amazing Energy Partners, Inc.

Aug 20, 2024 |22CECG02818

Re: Stellar Solar, Inc. v. Amazing Energy Partners, Inc. Superior Court Case No. 22CECG02818Hearing Date: August 20, 2024 (Dept. 501)Motion: brought by Defendant/Cross-Complainant/Cross-Defendant Amazing Energy Partners, Inc. (AEP) to Strike Answer and Cross-Complaint of Kota Construction, LLC (Kota) and for Entry of Default Against KotaTentative Ruling: To continue to Thursday, October 10, 2024, at 3:30 p.m. in Department 501, to allowKota one last chance to retain new counsel, and to file written notice of new counsel’scontact information no later than October 3, 2024. If new counsel is not retained, thecourt intends to grant this motion in all respects. If oral argument is timely requested, such argument will be entertained on August21, 2024, at 3:30 p.m.Explanation: A corporation is not a natural person, and therefore cannot appear in an actionin propria persona, but instead must appear only through counsel. (Merco ConstructionEngineers, Inc. v. Mun.Ct. (1978) 21 Cal.3d 724, 731.) This rule prevents the corporaterepresentative from engaging in the unauthorized practice of law. (See, e.g., Gamet v.Blanchard (2001) 91 Cal.App.4th 1276, 1284, fn. 5.) This also applies to LLCs, since as anentity whose rights and liabilities are distinct from the persons composing it, an LLC mustappear through an agent, and a layperson agent cannot practice law. (See, e.g., CleanAir Transport Systems v. San Mateo County Transit Dist. (1988) 198 Cal.App.3d 576, 578-579(applying rationale to unincorporated associations).) Here, defendant/cross-complainant/cross-defendant Kota was represented bycounsel when it filed its Answer to the Cross-Complaint of AEP and its own Cross-Complaint.1 However, its attorney was allowed to withdraw at a hearing on March 20,2024. A Judicial Council form order (MC-053) was signed that same day, which indicatedwithdrawal would be effective upon the filing of the proof of service of the orders onKota. A Notice of Entry of Order with attached proof of service of the Order Granting1 The court does not see an answer to the complaint filed by defendant Kota, nor did AEP includeany such pleading in its request for judicial notice. While the First Amended Complaint failed toname Kota, plaintiff filed a Notice of Errata on November 3, 2022 indicating that this wasinadvertent and correcting the caption and including the omitted allegations. The court takesfurther judicial notice of a stipulation and order filed on December 14, 2022, wherein defendantKota was given additional time to respond to the complaint. But again, the court does not findthat its answer to the complaint was ever filed.Withdrawal was filed on March 21, 2024, so this was the effective date on which Kota wasleft without counsel. The order allowing its attorney to withdraw was made after due notice was givento Kota. The motion and the order were drawn on the mandated Judicial Council forms,which are designed to be easily understood by non-attorney litigants. The order thusgave Kota the following “NOTICE TO CLIENT” (set off from the rest of the form in a textbox): “Your present attorney will no longer be representing you. You may not in most cases represent yourself if you are one of the parties on the following list: …A Corporation…. If you are one of these parties, YOU SHOULD IMMEDIATELY SEEK LEGAL ADVICE REGARDING LEGAL REPRESENTATION. Failure to retain an attorney may lead to an order striking the pleadings or to the entry of a default judgment.”(Order filed March 20, 2024, at Page 2, Item 10 (bolded and upper case text in theoriginal).) Thus, Kota was notified: 1) of its attorney’s withdrawal; 2) that as an entity it couldnot represent itself, and thus it needed to immediately seek other counsel; and 3) thatthe consequences of not doing so might be “an order striking the pleadings or…the entryof a default judgment.” Kota has had several months to retain other counsel, andapparently it has not done so. It has not filed any response to this motion, even to informthe court that it was attempting to retain new counsel. Moving party does not address the fact that this motion to strike is untimely underCode of Civil Procedure section 435, subdivision (b)(1), since it was not filed “within thetime allowed to respond to a pleading.” Even so, this does affect the court’s power tostrike a pleading sua sponte, at any time in the court’s discretion, under Code of CivilProcedure section 436. As noted above, the Judicial Council form anticipates such aruling might be made in a situation such as this. The court is inclined to utilize this powerhere, but only after giving Kota clear notice of its intent to do so, and giving it anopportunity to cure the defect by retaining new counsel. (CLD Construction, Inc. v. Cityof San Ramon (2004) 120 Cal.App.4th 1141, 1149-1150 (legal actions taken byunrepresented corporation a curable defect if it retains new counsel, and there is noprejudice to the other parties).) If, after notice, the unrepresented entity refuses or isunable to obtain representation, the court can note the corporation's nonappearanceand strike the pleadings it has filed in the case and, after striking the answer, enter itsdefault. (Van Gundy v. Camelot Resorts, Inc. (1983) 152 Cal.App.3d Supp. 29, 31.) Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 8/19/2024 . (Judge’s initials) (Date)

Ruling

WATERS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL. VS YOON HEE YEH, ET AL.

Aug 22, 2024 |22STCV34350

Case Number: 22STCV34350 Hearing Date: August 22, 2024 Dept: 55 Background This lawsuit commenced on October 26, 2022, as an action for breach of Defendants personal guaranty of a lease. On May 5, 2024, following a bench trial, the Court granted judgment to Plaintiffs in the amount of $821,608.85. Plaintiffs brought a related action for unlawful detainer on June 30, 2023, which the parties resolved through a stipulated judgment. Plaintiffs filed this unopposed motion for attorneys fees in the amount of $284,075. The Court, considering the moving papers, GRANTS the motion with modifications as follows. Standard The party claiming attorneys fees must establish entitlement to such fees and the reasonableness of the fees claimed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) Except as attorneys fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties[.] ( Code Civ. Proc. § 1021.) [T]he the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs. (Code Civ. Proc. § 1717.) It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Ibid.) In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. Fundamental to its determination & [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney & in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at 49.) Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circ*mstance permitting the trial court to reduce the award or deny one altogether. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV); see also Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 [The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsels declaration unsubstantiated by time records and billing statements.]) Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.) The value of legal services performed in a case is a matter in which the trial court has its own expertise. (Id. at 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circ*mstances in the case. (Ibid.) Entitlement Plaintiffs seek reimbursem*nt of their attorneys fees based on the terms of the master lease and personal guaranty signed by Defendants. The terms of both the master lease and Defendants personal guaranty contain attorney fee provisions. The master lease states, In the event of any controversy, claim or dispute between the parties arising out of or relating to this Lease, or the enforcement of the provisions hereof, the prevailing party shall be entitled to reasonable attorneys fees. Additionally, Defendants personal guaranty provides, If not paid when due, Guarantor promises to pay, on demand, the full amount of [the] Indebtedness, and all costs and attorneys fees incurred in collecting the Indebtedness or enforcing this Guaranty, regardless of whether an action is filed&. Because the Court, entered judgment for Plaintiffs and against Defendants in the amount of $821,608.85, the Plaintiffs are the prevailing parties. Therefore, Plaintiffs are entitled to recover their attorneys' fees. Reasonableness of Rate/Hours Plaintiffs seek to recover fees for 569.15[1] hours worked by their attorneys, Robert Lewis, Jerald Gale, and Lawrance Poteet in this case. In their accounting of hours, Plaintiffs attorneys separately account for and do not seek compensation for time spent working on the related unlawful detainer action. Lawrence Poteet: 235.1 (Lawrence Decl. at p.3) Jerald Gale: 161.55 (Gale Decl. at p. 4) Robert Lewis: 171.5 (Lewis Decl. at p. 4) Total: 568.15 Based on the invoices counsel charged to Plaintiffs, these hours are reasonable. (Lawrence Decl., Ex A, 8-157.) Counsel charged Plaintiffs a rate of $450 per hour. Based on counsels experience and market conditions this rate is reasonable. (Lawrence Decl. at p. 2; Gale Decl. at p. 2-3; Lewis Decl. at p. 2-3.) Loadstar Enhancement Plaintiffs request a lodestar enhancement. Relevant factors to determine whether an enhancement is appropriate 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, (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Here, no lodestar enhancement is warranted because the risks counsel claims are absorbed by the hourly rate actually paid by the client. (See Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 822.) Additionally, no extraordinary novelty or skill was involved because the gravamen of this action was a straightforward lease guaranty dispute. Therefore, the Court declines to apply a lodestar multiplier. Accordingly, Plaintiffs are awarded attorneys fees for 568.15 hours at a rate of $450 per hour. Conclusion The motion is GRANTED with the award modified to $255,667.5. [1] This appears to be a computational error. Based on the declarations of Plaintiffs counsel, the total should be 568.15 hours.

Ruling

HARGES FAMILY PARTNERSHIP, LP VS PASADENA PARTNERS, LP, ET AL.

Aug 21, 2024 |23VECV04927

Case Number: 23VECV04927 Hearing Date: August 21, 2024 Dept: W HARGES FAMILY PARTNERSHIP, LP vs PASADENA PARTNERS, LP, et al. DEMURRER Date of Hearing: August 21, 2024 Trial Date: None set. Department: W Case No.: 23VECV04927 Moving Party: Defendant Pasadena Partners, L.P. Responding Party: No opposition. FACTUAL BACKGROUND On November 3, 2023, Plaintiff Harges Family Partnership LP filed a complaint against Defendants Pasadena Partners LP and Landmark Properties for breach of contract. Defendant Pasadena Partners LP entered into a written contract with Plaintiff Harges Family Partnership for the purchase of real property located at 7455 Hazeltine Avenue. Defendant Landmark Properties also entered into two written contracts with Plaintiff Harges for the purchase of real property located at 16765 Sherman Way and 13441 Victory Boulevard. Plaintiff alleges Defendants breached the agreements by failing to make the requisite deposits with an escrow company and breached the contracts by failed to go forward with the transactions. This action is related to 23VECV01917, Harges Family Partnership LP v. Chartwell Escrow, Inc. and 23VECP00458, Harges Family Partnership, LP, et al. v. Landmark Global Management, et al. TENTATIVE RULING Defendant Pasadena Partners, L.P. Demurrer to the Complaint is SUSATAINED WITH LEAVE TO AMEND. DISCUSSION Defendant Pasadena Partners, L.P. (Pasadena Partners) demurs to the complaint of Plaintiff Harges Family Partnership as to the first cause of action for breach of contract on the grounds the complaint fails to plead facts sufficient to constitute a cause of action against Pasadena Partners. Pasadena Partners makes the demurrer on the grounds an express condition precedent of the agreement failed to occur such that Pasadena Partners could never be in breach of contract for alleged failure to perform (as there was no escrow opened for which it could perform). Indeed, it is alleged that Pasadena Partners did make the required deposit, but simply that it was returned because Chartwell Escrow, Inc. decided not to act as the escrow agent. The standard elements of a claim for breach of contract are: (1) the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) Pasadena Partners argues Plaintiff fails to plead the third element of its claim, i.e., that Pasadena Partners breached the subject agreement. Pasadena Partners asserts this is because the duty for Pasadena Partners to perform under the subject agreement (i.e. make the initial deposit, remove contingencies, provide closing funds, and sign a closing statement), all required there to be a valid escrow opened on the matter, which did not happen because Chartwell Escrow refused to act as an escrow agent. The court agrees the complaint fails to allege fact sufficient to support a claim for breach of contract against Pasadena Partners. The complaint alleges Pasadena Partners breached the agreement by failing to make the requisite deposits with an escrow company and failing to go forward with the transactions. The complaint also alleges, however, Pasadena Partners did make a $250,000.00 deposit into Chartwell Escrow, Inc. but Chartwell chose not to act as the escrow company and returned the money to Pasadena Partners. (Compl. ¶10.) The complaint does not allege Pasadena Partners breached any of the agreements by failing to find another escrow company after Chartwell returned their deposit or that they had a duty to do so. Accordingly, the demurrer to the complaint is SUSTAINED WITH LEAVE TO AMEND.

Ruling

JONG UK BYUN, ET AL. VS PACKO INVESTMENTS, INC., A CALIFORNIA CORPORATION, ET AL.

Aug 19, 2024 |23STCV07931

Case Number: 23STCV07931 Hearing Date: August 19, 2024 Dept: 55 NATURE OF PROCEEDINGS: Demurrer with Motion to Strike The demurrer is SUSTAINED with 20 days leave to amend in part and OVERRULED in part. The demurrer is sustained with leave to amend as to the causes of action for fraud and deceit; elder financial abuse; conversion; violation of Penal Code section 496; civil conspiracy; aiding and abetting; and Business and Professions Code section 17200. The demurrer is overruled as to the causes of action for breach of fiduciary duty and accounting. The motion to strike is GRANTED with 20 days leave to amend. Plaintiffs First Amended Complaint (FAC) against Defendants Daniel E. Park and Christine Chong alleges nine causes of action for: (1) fraud and deceit; (2) elder financial abuse; (3) breach of fiduciary duty; (4) conversion; (5) violation of Penal Code section 496; (6) Civil Conspiracy; (7) Aiding and Abetting; (8) Business and Professions Code section 17200; and (9) Accounting. The FAC alleges that Defendants Daniel Park and Christine Chong were Plaintiffs former attorneys, who in breach of their fiduciary duties, colluded with Allen Park, entities he controls, and others he conspired with, to defraud Plaintiffs by falsifying promissory notes and deed of trust instruments. The FAC alleges that Defendants were trusted to translate and explain the terms of loan transactions to Byun, who was over the age of 65 at the time of the wrongful acts alleged herein, and who speaks and understands limited English. Plaintiffs allege that Defendants took advantage of Byun by causing him to execute signature pages which Defendants fraudulently attached to notes and deeds of trust that contained different terms from those described to and agreed to by Byun, including higher loan amounts and the encumbrance of additional real properties. Plaintiff alleges that in connection with these and other transactions, Defendants received secret compensation and other benefits which was not disclosed to Plaintiffs. Defendant Daniel E. Park filed a demurrer and motion to strike. Defendant Chong filed a joinder. Plaintiffs oppose. Demurrer Here, Defendants demur to all the causes of action in the FAC, arguing that they are barred by the statute of limitations, and that they fail to state sufficient facts and are uncertain. 1. Statute of Limitations Defendants first argue that the FAC is barred by the statute of limitations under CCP section 340.6. In opposition, Plaintiffs argue that Section 340.6 tolls the time for commencing the action when the attorney willfully conceals the facts constituting the wrongful act. CCP section 340.6 provides that [a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. (Code Civ. Proc., § 340.6(a).) Section 340.6 further provides that the time for commencing an action shall be tolled during the time when: (3) the attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation. (Id.; see Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 313.) The statutory grounds for tolling are exclusive. (See Laird v. Blacker (1992) 2 Cal.4th 606, 618.) Here, the FAC alleges that Daniel Park and Chong actively and willfully concealed the facts constituting the wrongful acts alleged in relation to the introduction to Allen Park, and the promissory notes executed in 2016 and 2017. (FAC, ¶ 23.) As the four-year period expired first, that provision would apply, rather than the one-year statute of limitations. As such, due to the allegations of concealment by the attorneys here, the four-year statute of limitations would be tolled under Section 340.6(a)(3) from 2015 until 2022, which is when Plaintiffs allege they found out about the wrongdoing, making the causes of action for Breach of Fiduciary Duty, Business and Professions Code section 17200, and Accounting timely for purposes of the demurrer. (Id., ¶ 13.) As a result, the demurrer to the causes of action for Breach of Fiduciary Duty, Business and Professions Code section 17200, and Accounting is overruled on this ground. As to the rest of the causes of action in the FAC, as Plaintiffs point out, CCP section 340.6 does not apply to the claims for fraud, Elder Financial Abuse, Conversion, Violation of Penal Code section 496, Civil Conspiracy, and Aiding and Abetting. As explained in Lee v. Hanley (2015) 61 Cal.4th 1225, CCP section 340.6(a) applies to claims whose merits necessarily depend on proof that an attorney violated a professional obligation in the course of providing professional services. In this context, a professional obligation is an obligation that an attorney has by virtue of being an attorney, such as fiduciary obligations, the obligation to perform competently, the obligation to perform the services contemplated in a legal services contract into which an attorney has entered, and the obligations embodied in the Rules of Professional Conduct. (Id. at 1236-1237.) Section 340.6(a) does not bar a claim for wrongdoingfor example, garden-variety theftthat does not require proof that the attorney has violated a professional obligation, even if the theft occurs while the attorney and the victim are discussing the victim's legal affairs. (Id. at 1237.) CCP section 340.6 also applies to nonlegal services governed by an attorney's professional obligations. (Id.) Examples of an attorney's provision of professional services that include some nonlegal services are holding funds in trust, bookkeeping and accounting. (Id.) Nevertheless, the court analyzes whether the applicable statutes of limitations bar these causes of action. CCP section 338(d) provides that an action for relief on the ground of fraud or mistake has a statute of limitations of three years. A fraud claim begins to accrue when the aggrieved party discovers the facts constituting the fraud or could have discovered the fraud through the exercise of reasonable diligence. (San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1327.) CCP section 338 provides a three-year statute of limitations period for a conversion cause of action. (See Code Civ. Proc., § 338(c); AmerUS Life Insurance Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639.) This statute of limitations for conversion is triggered by the act of wrongfully taking property. (See AmerUS Life Insurance Co., supra, 143 Cal.App.4th at 639.) An action for damages for financial abuse of an elder or dependent (e.g., including takings by undue influence) must be commenced within 4 years after plaintiff discovers or has reason to discover the facts constituting the abuse. (Banke & Segal, Cal. Practice Guide: Civil Procedure Before Trial Statutes of Limitations (The Rutter Group February 2021 Update) ¶ 4:522, italics in original.) Aiding and abetting causes of action generally share the statute of limitations with the underlying claim. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1478.) Conspiracy causes of action begin to accrue when the last act in furtherance of the conspiracy took place. (People v. Martinez (2017) 10 Cal.App.5th 686, 715.) Californias discovery rule delays the start of the statute of limitations until the plaintiff discovers, or is on inquiry notice (i.e., has reason to discover) facts supporting a cause of action.¿(Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 807.)¿A plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.¿(McKelvey v. Boeing N. Am. (1999)¿74 Cal.App.4th 151, 160.) Here, the FAC shows on its face it would be barred by the statute of limitations, as the alleged events took place in 2015-2017. (FAC, ¶¶ 10, 11, 16, 17). Thus, under the applicable statute of limitations, the complaint should have been filed by 2019-2021 for the financial elder abuse cause of action, and 2018-2020 as to the others. The original complaint was filed in April 2023. As such, facts must be pled to show the delayed discovery rule applies. As to delayed discovery, the FAC alleges that Plaintiffs discovered the true contents of these documents in 2022. Specifically, Plaintiffs learned that Daniel Park caused the signature pages executed by Plaintiffs to be fraudulently attached Deeds of Trust that, contrary to Defendants representations, purported to encumber additional properties that were not agreed collateral for purchase and restructuring of the WSB Loan Documents (the Fraudulent Deeds of Trust). The Fraudulent Deeds of Trust purport to encumber without limitation certain additional properties as follows (a) in Los Angeles County, APN Nos. 5167-015-063, 5167-015-064, 5167-015-065, 5167-015-067 and 5167-015-068 (the Alameda Property); and (b) in San Bernardino County, APN Nos. 0136-011-31, 0136-011-41, 0136-091-11, 0138-084-20, 0136-091-12 (the San Bernardino Property). (FAC, ¶ 15.) However, Plaintiffs fail to allege the time and manner of discovery. The month should also be pled, and not just the year. While Plaintiffs allege that they learned that Park caused the signature pages to be fraudulent attached deeds of trust in 2022, the FAC fails to allege how they found this out. As such, the manner of discovery has not been properly pled. In addition, there are no facts pled showing Plaintiffs were unable to make this discovery despite reasonable diligence. The fact that Plaintiff does not speak English and is over the age of 65 is not enough. For this reason, as currently pled, the causes of action for fraud, Elder Financial Abuse, Conversion, Violation of Penal Code section 496, Civil Conspiracy, and Aiding and Abetting are all time-barred. Plaintiffs failed to sufficiently plead that the delayed discovery rule applies. Thus, the demurrer is sustained to these causes of action with 20 days leave to amend. As the demurrer to these causes of action is being sustained, the court does not address Defendants remaining arguments as it pertains to these causes of action. The court notes that Defendants argue in reply that Code of Civil Procedure Section 340.6 applies to all of Plaintiffs claims. Defendants rely on Nguyen v. Ford (2020) 49 Cal. App. 5th 1, 17, where the client styled her claims against the lawyer as fraud. But the fraud claim was based on allegations that the lawyer breached her fiduciary duty by failing to inform the client of significant developments in the case. (Id.) In Nguyen, the client only sued for breach of fiduciary duty and malpractice to save her case from the statute of limitations. The court stated, beyond the bare assertion that Fords conduct amounts to actual fraud, which Nguyen does not support with any authority or elaboration, Nguyen does not explain how this cause of action falls outside of section 340.6(a). The court noted that the basis of Nguyen's cause of action for breach of fiduciary duty is that Ford provided "deficient professional services." (Id., 18.) On the other hand, here, the basis for the claims in the FAC are more akin to theft and actual fraud. Lastly, the court notes that in the reply, Defendant Chong asserts that Plaintiffs knew about the alleged wrongful acts in 2018 as they informed the Bankruptcy Court that they pledged their Alameda and San Bernardino properties to Allen Park and his companies. Defendant Chong asks for judicial notice of the Bankruptcy filings. Further, Defendant Park seeks to introduce evidence through his declaration, but extrinsic evidence is not allowed on demurrer. In any event, this is evidence and argument introduced for the first time in the reply, and Plaintiffs have not had an opportunity to respond to this argument. As a result, the court cannot consider it at this time. Defendants may seek to introduce this evidence and argument in connection with their next demurrer or in connection with another motion such as summary judgment. Third Cause of Action for Breach of Fiduciary Duty Defendants argue that this cause of action fails because Plaintiffs fail to allege specific instances of breach and fail to allege damages. The elements for a breach of fiduciary duty cause of action are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604.) [B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law. (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140 (quoting Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221).) A fiduciary duty under common law may arise when one person enters into a confidential relationship with another. (Id.) The attorney-client relationship is a fiduciary relation of the very highest character imposing on the attorney a duty to communicate to the client whatever information the attorney has or may acquire in relation to the subject matter of the transaction. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534 (quoting Beery v. State Bar (1987) 43 Cal.3d 802, 813.) The scope of an attorneys duty may be determined as a matter of law based on the Rules of Professional Conduct which, together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client. (Id. at 1534-35 (quoting Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086-87).) In opposition, Plaintiff argues that the FAC points to specific instances of breach, including that Defendants received compensation for their actions from Allen Park and that they disclosed confidential information to Allen Park in violation of their fiduciary obligations (FAC ¶12.) The FAC also alleges damages. (Id., ¶ 26.) The court agrees that the FAC adequately pleads this claim, and thus the demurrer to this cause of action is overruled. Eighth Cause of Action under Business and Professions Code section 17200 Defendants argue Plaintiffs are not entitled to injunctive relief where, as here, there is no threat of continuing misconduct. Further, Defendants argue that Plaintiffs do not seek restitution. The remedies for UCL claims brought by private individuals are limited to injunctive relief and restitution. (See, e.g., Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105, 1133.) The UCL proscribes unlawful, unfair or fraudulent business act[s] or practice [s]. (Bus. & Prof. Code § 17200.) Virtually any statute or regulation (federal or state) can serve as a predicate for a UCL unlawful practice cause of action. (See Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1265.) The FAC alleges that Plaintiffs seek restitution and disgorgement of all gains and profits obtained by Defendants. (FAC, Prayer.) As such, the demurrer is overruled on the ground that it does not seek restitution. Defendants also argue that the FAC does not specify which alleged acts of Defendants are the predicate acts with respect to this cause of action. The FAC alleges Defendants engaged in a pattern of unlawful, unfair and/or fraudulent acts to enrich themselves by, amongst other things, wrongfully encumbering the properties owned by Plaintiffs via material misrepresentations and defrauding Plaintiffs as set forth herein. (FAC, ¶ 59.) However, the demurrer to the fraud cause of action is sustained. Thus, because this relies on the fraud cause of action, the demurrer to this cause of action is also sustained. Ninth Cause of Action for Accounting Defendants also demur to the cause of action for accounting arguing that the FAC fails to demonstrate the existence of such a relationship or the necessity of an accounting to determine any balances owed. A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) The FAC alleges that there is fiduciary relationship that exists between the Parties as the Defendants were Plaintiffs attorneys. (FAC ¶¶ 3, 4, 8). Further that, Defendants are in possession of money that rightfully belong to Plaintiffs and is due to Plaintiffs as it was fraudulently and wrongfully obtained, including but not limited to proceeds from the Chong Note. The amount of money due from each of the Defendants is unknown to Plaintiffs and cannot be ascertained without an accounting of the money wrongfully obtained by Defendants. (FAC, ¶ 63.) The demurrer is overruled as to this cause of action. Motion to Strike Defendants also move to strike all allegations for punitive damages, and the request for attorney fees and treble damages. Punitive Damages To support a claim for punitive damages, a plaintiff must allege facts and circ*mstances showing conduct constituting malice, fraud or oppression.¿(Grieves v. Superior Court¿(1984) 157 Cal. App. 3d 159, 166.) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294(c)(1).) Oppressive conduct is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of a persons rights. (Code Civ. Proc. § 3294(c).)¿¿ Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as having the character of outrage frequently associated with crime. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) As the demurrer is sustained as to the causes of action for fraud, civil conspiracy, violation of Penal Code section 496, elder financial abuse, conversion and aiding and abetting, the motion to strike punitive damages is granted. Request for Treble Damages Plaintiffs argue they are entitled to treble damages under Penal Code section 496 and under their cause of action for Financial Elder Abuse. Treble damages are available under Penal Code section 496. (Siry Inv. v. Farkhondehpour (2022) 13 Cal.5th 333.) However, the demurrer to the causes of action for financial elder abuse and Penal Code section 496 is sustained. Thus, the motion to strike the request for treble damages is granted. Request for Attorney Fees Plaintiffs argue they are entitled to attorney fees under Penal Code section 496 and under their cause of action for Financial Elder Abuse. However, the demurrer to the causes of action for financial elder abuse and Penal Code section 496 is sustained. Thus, the motion to strike the request for attorney fees is granted. Conclusion The demurrer is SUSTAINED with 20 days leave to amend in part and OVERRULED in part. The demurrer is sustained with leave to amend as to the causes of action for fraud and deceit; elder financial abuse; conversion; violation of Penal Code section 496; Civil Conspiracy; Aiding and Abetting; and Business and Professions Code section 17200. The demurrer is overruled as to the causes of action for breach of fiduciary duty and accounting. The motion to strike is GRANTED with 20 days leave to amend.

Ruling

DONE VENTURES LLC VS JERRY JAMGOTCHIAN ET AL

Aug 27, 2024 |BC674357

Case Number: BC674357 Hearing Date: August 27, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 27, 2024 Case Name: DONE! Ventures, LLC v. Jamgotchian, et al. Case No.: BC674357 Matter: Motion to Stay Moving Party: Jamgotchian, Theta, and ESPA Responding Party: Coastal and Done! Notice: OK Ruling: The Motion is granted in part. Jamgotchian to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Jamgotchian, Theta, and ESPA seek an order staying: (a) the scheduling of the judgment debtor examination of Defendant Jamgotchian, set to be scheduled on September 5, 2024; and (b) all future hearings in this case at which Defendant Jamgotchian, or any other Defendant, has the right to appear and be heard, due to Defendant Jamgotchians temporary medical unavailability and inability to communicate . . . . Jamgotchian indicates that he is not available for any oral testimony until at least mid-December 2024. Jamgotchian was recently diagnosed with a large polyp on his vocal cord which requires further testing, pre-op planning, pain management and the first available surgery date to remove it. Jamgotchian is now on vocal rest, has difficulty talking and is not expected to recover until at least mid-December per his doctors current treatment plan. This condition severely restricts Jamgotchians ability to work, communicate with counsel/experts and conduct his businesses and litigation-related activities. Jamgotchians debtor examinations will be continued/stayed as needed. On the other hand, the Court will not stay or continue any other hearings unless and until it becomes apparent that Jamgotchian will need to provide oral testimony. That decision can be made at the appropriate time and does not require formal law and motion practice. In sum, the Motion to Stay is granted in part as set forth herein. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

Ruling

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Aug 16, 2024 |C22-01170

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