CERTIFIED COPY - DFT'S MOTION TO DISMISS PLT'S COMPLAINT FOR LACK OF STANDING May 19, 2020 (2024)

Case

PINKEN, BARRY L V HERITAGE PROPERTY AND CASUALTY INSURANCE COMPANY

Aug 20, 2024 |G. Joseph Curley |INSURANCE CLAIM |50-2024-CA-007822-XXXA-MB

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Aug 21, 2024 |Carolyn R. Bell |INSURANCE CLAIM |50-2024-CA-007919-XXXA-MB

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Aug 21, 2024 |Gregory M. Keyser |INSURANCE CLAIM |50-2024-CA-007994-XXXA-MB

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Aug 16, 2024 |Maxine D. Cheesman |INSURANCE CLAIM |50-2024-CA-007785-XXXA-MB

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DIXON, CHARMAINE V CITIZENS PROPERTY INSURANCE CORPORATION

Aug 23, 2024 |James W. Sherman |INSURANCE CLAIM |50-2024-CA-008026-XXXA-MB

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GONCALVES, SARAH V UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY

Aug 22, 2024 |Luis Delgado |INSURANCE CLAIM |50-2024-CA-007951-XXXA-MB

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PARDA, MATTHEW V TYPTAP INSURANCE COMPANY

Aug 15, 2024 |Bradley G. Harper |INSURANCE CLAIM |50-2024-CA-007746-XXXA-MB

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CRONAN, LOUISE V CITIZENS PROPERTY INSURANCE CORPORATION

Aug 16, 2024 |James W. Sherman |INSURANCE CLAIM |50-2024-CA-007843-XXXA-MB

Ruling

ARI ADVISORS LLC VS ALVARO MARRON, ET AL.

Aug 21, 2024 |11/28/2022 |23SMCV02209

Case Number: 23SMCV02209 Hearing Date: August 21, 2024 Dept: N These Motions: Defendant Jose Marrons demurrer and motion to strike the complaint. TENTATIVE RULING Defendant Jose Marrons Demurrer to Complaint is OVERRULED. Defendant Jose Marrons Motion to Strike Portions of the Complaint is DENIED. Defendant Jose Marron shall file and serve an answer to Plaintiff ARI Advisors LLCs Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).) Defendant Jose Marron to give notice. REASONING Request for Judicial Notice Defendant Jose Marron (Defendant) requests judicial notice of the California Secretary of State Business search results showing that Plaintiff ARI Advisors, LLC (Plaintiff) is not qualified to do business in California. Plaintiffs request is DENIED, as the search results show only that Plaintiff does not appear as a qualified business in the search results, and the Court will not use the search results as definitive evidence. Plaintiff requests judicial notice of a Certificate of Qualification issued to Plaintiff by the California Secretary of State on February 1, 2024. Plaintiffs request is GRANTED pursuant to Evidence Code section 452, subdivisions (c) and (h). Defendants objection to the Court taking judicial notice of this document is OVERRULED. Legal Standard [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125). Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Demurrer Defendant demurs to Plaintiffs complaint on the ground that Plaintiff does not have the legal capacity to sue. Defendant points to the California Secretary of State Business search results, which do not show Plaintiff as a business qualified to do business in California, Corporations Code section 2105, subdivision (a), which states that [a] foreign corporation shall not transact intrastate business without having first obtained from the Secretary of State a certificate of qualification, and Corporations Code section 2233, subdivision (c), which requires compliance with statutory requirements and payment of certain fees to be able to maintain an action upon any intrastate business. Notably, Plaintiff does not state in the complaint that it conducts intrastate business, and Defendant has not provided evidence that Plaintiff conducts intrastate business in California. (See Corp. Code, § 191 [defining intrastate business].) Plaintiff also provides evidence of a Certificate of Qualification, which states that Plaintiff has complied with the requirements to transact intrastate business. Defendant takes issue with the authenticity of this certificate, but this is a matter that is best considered with additional evidence outside the context of a demurrer. Accordingly, Defendant Jose Marrons Demurrer to Complaint is OVERRULED. Motion to Strike Defendant moves to strike Plaintiffs request and prayer for treble damages and Plaintiffs prayer for attorney fees. Defendant argues that Plaintiff has not alleged any damages in the complaint and limits its claim for a single cause of action for disgorgement, and there is no basis to order treble disgorgement. The Court is not so convinced, as Plaintiff seeks actual damages, specifically the fees, costs, and award made to Defendant in the workers compensation case. (Compl. ¶ 18.) Defendant also argues that Plaintiff does not include any facts supporting its claim for attorney fees. An award of attorneys fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).) Code of Civil Procedure section 1029.8, subdivision (a), allows the Court to award attorney fees and costs to a prevailing party in an action arising from injury due to lack of a license, as is the case here. Thus, Defendant Jose Marrons Motion to Strike Portions of the Complaint is DENIED. Defendant Jose Marron shall file and serve an answer to Plaintiff ARI Advisors LLCs Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Ruling

TOIAH GORDON, ET AL. VS CONTINENTAL CASUALTY COMPANY, AN ILLINOIS CORPORATION, ET AL.

Aug 21, 2024 |21STCV38762

Case Number: 21STCV38762 Hearing Date: August 21, 2024 Dept: 78 Superior Court of California County of Los Angeles Department 78 ¿ Toiah gordon, et al., Plaintiff(s), vs. Continental casualty company, et al., Defendant(s). Case No.: 21STCV38762 Hearing Date: August 21, 2024 [TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION I. BACKGROUND & PROCEDURAL HISTORY On July 5, 2022, plaintiffs Toiah Gordon (Gordon), Morganne Mersadie Root (Root), Karina Carrero (Carrero), Zongwei Shen (Shen), Zhong Xin (Xin), and Sanyiweile Inc. (Sanyiweile (collectively, Plaintiffs) filed their First Amended Complaint (FAC) against Continental Casualty Company (Continental), Topco Insurance Agency, Inc. (Topco), Northfield Insurance Company, (Northfield), Hawkeye Wholesale Insurance Services, Inc. (Hawkeye) and Does 1 through 20 stemming from a separate action wherein Continental and Northfield refused to provide Shen, Xin, and Sanyiweile defense in a tort action brought by Gordon, Root, and Carrero for allegations of sexual misconduct by Shen when he gave them massages at Nobles Foot Massage Spa. (FAC ¶¶ 1-4.) As a result, Shen, Xin, and Sanyiweile provided their own defense, and judgment was entered against them in the amount of $6,778,231.48. (Id. ¶ 3.) Shen, Xin, and Sanyiweile assigned to Gordon, Root, and Carrero their assignable rights under the Continental and Northfield Insurance contracts. (Id. ¶ 5.) In the alternative, Plaintiffs allege that insurance brokerage firms Topco and Hawkeye failed to obtain appropriate insurance coverage available in the market for Shen and Sanyiweile, and that Topco and Hawkeye failed to advise Shen and Sanyiweile of this. (Id. ¶ 4.) Since then, Continentals motion for summary judgment was granted, Northfield dismissed, and Plaintiffs settled with Hawkeye. Thus, the only remaining causes of action are the fourth cause of action for professional negligence by Shen against Topco and the fifth cause of action for breach of implied-in-fact contract by Shen against Topco. There is notably no actual cause of action alleged by Sanyiweile against Topco in the FAC. Topco, as the only remaining named defendant, moves for summary judgment on Shens and Sanyiweiles FAC against Topco, or in the alternative, for summary adjudication on the issues of Shens causes of action for negligence/professional malpractice and breach of implied contract. As provided above, the Court cannot locate any cause of action asserted by Sanyiweile against Topco in the FAC. Thus, the only causes of action at issue are Shens claims against Topco for the fifth and sixth causes of action. Plaintiffs oppose the motion for summary judgment, and Topco filed its reply. On May 22, 2024, the previous court requested supplemental briefing on five topics pertaining to the application of Insurance Code §533. (Min. Order, May 22, 2024.) This case matter was then reassigned, effective July 5, 2024. This Court has reviewed the original briefs and the supplemental briefs. Preliminary, the Court notes that the topics for supplemental briefing did not necessitate the filing of any additional evidence or supplemental declarations. In terms of the supplemental briefing, this Courts review will be limited to contentions directly responsive to the questions posed by the prior court on narrow issues, and nothing more. II. LEGAL STANDARD A party may move for summary judgment if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. § 437c, subd. (a).) [I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law, the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).) III. EVIDENTIARY OBJECTIONS & REQUEST FOR JUDICIAL NOTICE Evidentiary Objections Plaintiffs object to Topcos evidence submitted in support of the motion for summary judgment. Plaintiffs object to the declaration of Jamileh Hawatmeh (Hawatmeh). Objections 1-6 are overruled. Plaintiffs remaining objections are to the declaration of Samuel Lin. The objections are sustained to the extent of Lin testifying as to the statements of others or information in which he has not established personal knowledge. Topco objects to Plaintiffs evidence submitted in opposition to the motion for summary judgment. Topcos objections are overruled. Topco submitted a supplemental declaration of Hawatmeh, which provides four additional exhibits of the May 3, 2021 arbitration judgment in the underlying suit, a copy of the Continental insurance policy in effect from October 3, 2015 to October 3, 2016, a copy of the Northfield insurance policy from October 3, 2017 to October 3, 2018, and a copy of the Courts November 30, 2022 order granting co-defendant Continentals motion for summary judgment. The previous court did not request the parties to provide supplemental evidence. Plaintiffs objections are sustained except as to the insurance policies in effect at the time. Request for Judicial Notice Topco requests judicial notice of the Complaint in this case. The request is granted. (Cal. Evid. Code § 452(d).) IV. DISCUSSION Topco argues that it did not have a duty to obtain or advise Shen of coverage that would provide coverage for the underlying lawsuit. Topco contends Shen never indicated to Topco that he wanted or needed such coverage, and that Shen only sought premises liability coverage from Topco to satisfy the property landlords requirements. As a general rule, there is no duty to defend in an action filed against the insured in which there is no potential that the insurer would have to provide indemnification. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 507 (Downey Venture).) However, there is a difference between the duty to indemnify and the duty to defend. The parties agree that pursuant to Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595 (Coit), and Downey Venture, Insurance Code § 533 does not explicitly prohibit insurers from contracting to provide a defense for wrongful conduct and/or willful acts. Insurance Code § 533 only serves as a bar to indemnification. Therefore, the issue is whether Topco, as an insurance broker, breached a duty to Shen for failure to procure appropriate insurance, such that Shen could have had insurance that included a contractual duty to defend him and his business in the underlying sexual misconduct case. Based on the original and supplemental briefs, the following facts are undisputed. Topco, a licensed casualty-broker agent in California, was the insurance agency that procured the Continental policy for Shen. Shen and Xin are spouses who owned and operated Nobles Foot Massage Spa. Nobles Foot Massage Spa was then transferred to Sanyiweile, a corporation owned by Shen. For the July 16, 2016 assault against Gordon, the relevant policy in effect from October 3, 2015 to October 3, 2016 was issued by Continental, with Zongwei Shen dba Nobles Massage Spa as the named insured. For the November 26, 2017 assault against Root and the May 2, 2018 assault against Carrero, the relevant policy in effect from October 3, 2017 to October 3, 2018 was issued by Northfield with Sanyiweile Inc. DBA Nobles Foot Massage Spa, as the named insured. Fourth C/A Professional Negligence As framed by the FAC, the fourth cause of action is brought by Shen only against Topco. The complaint alleges that Topco knew or should have known that Shen needed and wanted coverage for the kinds of claims alleged against him in the underlying tort action, that Topco had experience and expertise in insurance, and that Topto breached its duty as a reasonable broker by failing to procure the type of insurance. (FAC ¶¶53-58.) In California, an insurance broker owes the client a duty to procure the requested insurance. (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1153.) On the other hand, the broker is under no duty to advise the insured on specific insurance matters. (Jones v. Grewe (1987) 189 Cal.App.3d 950, 956.) Unless a client has made a specific[] request[] for insurance, there can be no claim that the broker failed to obtain such insurance. (Roberts v. Assurance Co. of America (2008) 163 Cal.App4th 1398, 1405; see also Jones, supra, 189 Cal.App.3d at p. 956 [An insurance policy arises out of the insureds desire to be protected in a particular manner against a specific kind of obligation. It is the insureds responsibility to advise the agent of the insurance he wants].) An agent may point out to [the insured] the advantages of additional coverage and may ferret out additional facts from the insured applicable to such coverage, but he [or she] is under no obligation to do so; nor is the insured under an obligation to respond. (Id. at p. 954.) In asserting that Topco did not breach its duty to Shen, nor did Topco have a heightened duty, Topco argues Shen only asked for premises liability coverage in 2014, and never asked Topco representatives for coverage that Topco would obtain for Nobles Foot Massage Spa would include coverage for certain sexual abuse or molestation occurring at the massage business. Thereafter, Shen signed renewal documents at Topcos offices every year until 2019. Topco contends that when Shen met with Topco to sign policy documents for the 2015-2016 policy, that Shen only asked if the policy would be approved by the landlord, and that Topco representatives explained that it would satisfy the landlords requirements. Topco argues that Shen never asked anyone at Topco for insurance that would cover sexual misconduct. Topco has not met its prima facie burden that Shen only asked for premises liability coverage, and never asked for coverage that would include sexual misconduct. Nor does Topco meet its burden regarding what its representatives advised or discussed with Shen. Topco relies on the declaration of Samuel Lin (Lin), general manager of Topco, in support of these arguments. However, Lin lacks the requisite personal knowledge as to any discussions held after the initial meeting in 2014 between Topco representatives and Shen. Lin declares that Shen met with representatives of Topco, including Lin himself, for the first 2014 meeting, in which Shen asked about the insurance coverage needed to satisfy the landlords requirements for premises liability coverage only. (Decl. Lin ¶ 4.) Every year thereafter until 2019, Lin fails to establish any foundation or personal knowledge that Shen did not ask any Topco representatives for a policy that would cover sexual misconduct or what was discussed regarding coverage. (Id. ¶¶ 5, 8) Lin avers that any potential coverage would only extend to the innocent employer, and not to the intentional wrongdoer of the sexual misconduct such as Shen. (Id. ¶ 7.) Topco has not established that Shen limited his insurance request, has not established what type of insurance policy a massage business would typically require, and has not established that no coverage existed to have covered Shens defense in the underlying claim. A massage business involves personal contact with customers bodies, and it is feasible that claims of sexual misconduct, whether true or false, may potentially arise. Topco has not established with any evidence that insurance coverage, in terms of a contractual duty to defend, did not exist on the market. Because Topco did not meet its prima facie burden of production, the burden does not shift to Shen to raise a triable issue of material fact. Summary adjudication as to the fourth cause of action is denied. 5th C/A Breach of Implied-In-Fact Contract The fifth cause of action by Shen against Topco alleges that an implied-in-fact contract was created when Topco promised Shen that it would procure appropriate insurance for the spa. (FAC ¶ 61.) Topco argues there was no implied-in-fact contract with Shen to obtain or advise as to sexual misconduct or abuse coverage for Nobles Foot Massage Spa because Shen never requested coverage for sexual misconduct or abuse for Topco to misrepresent the available coverage. 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.) A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisors conduct. (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) Topcos argument fails for the same reasons as for the cause of action for professional negligence. The burden does not shift to Shen. Summary adjudication as to the fifth cause of action is denied. V. CONCLUSION Topcos motion for summary judgment, or in the alternative adjudication, is DENIED. Moving Party is ordered to give notice. DATED: August 20, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Ruling

Adriana Munoz, et al. vs State Farm General Insurance Company

Aug 22, 2024 |23CV-01760

23CV-01760 Adriana Munoz, et al. v. State Farm General Insurance CompanyCase Management ConferenceContinued on the Court’s own motion to September 20, 2024 at 8:15 A.M. in Courtroom 8to be heard concurrently with the pending Motion by Plaintiff’s counsel to be relieved ascounsel.

Ruling

JONATHAN ATKINS VS INTEGON NATIONAL INSURANCE COMPANY

Aug 20, 2024 |24VECV01919

Case Number: 24VECV01919 Hearing Date: August 20, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT JONATHAN ATKINS, Plaintiff, vs. INTEGON INSURANCE COMPANY, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO: 24VECV01919 [TENTATIVE] ORDER RE: DEFENDANTS DEMURRER Dept. 107 9:00 a.m. August 20, 2024 I. BACKGROUND On April 25, 2024, Plaintiff Jonathan Atkins (Plaintiff) filed a complaint against Integon National Insurance Company alleging causes of action for: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; and (3) Violation of Business and Professions Code section 17200 (Unfair Business Practices). The complaint alleges that on April 4, 2023, the parties entered into a contract for insurance coverage for Plaintiffs BMW. The complaint alleges that on July 4, 2023, Plaintiff suffered damage to his vehicle while driving on a street that had become flooded due to a nearby unrelated accident, where a car hit a fire hydrant that was flooding the street. A police officer, who was directing traffic around the flooded area, instructed Plaintiff to drive through the high water. As he did so, Plaintiff noticed his car begin to sputter and, within half a block, the car completely broke down and stopped working. Plaintiff alleges he advised Defendant on July 4, 2023, of the property damage to his vehicle when he filed a claim under the Policy. Plaintiff alleges that Defendant then denied coverage on the ground that the damage to the engine is not related to the reported loss, as the service advisor informed Defendants appraiser that there was no water-related damage to the engine. Plaintiff alleges that Defendant unreasonably failed to investigate the facts of the case. On June 21, 2024, Defendant filed this demurrer. On August 16, 2024, Plaintiff filed an untimely opposition. No reply has been filed. II. 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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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 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. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) III. DISCUSSION Meet and Confer Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.) The meet and confer requirements have been met. (Garaglis Decl., ¶ 3.) Demurrer 1. Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing Defendant demurs to the second cause of action for Breach of the Covenant of Good Faith and Fair Dealing, arguing that it fails to state sufficient facts to constitute a cause of action because an insurer's conduct in withholding benefits where there is a dispute as to the liability, even if ultimately the benefits are found to be due to the policy holder, does not expose the insurer to bad faith liability. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1281.) Instead, Defendant argues, before an insurer can be found to have acted tortiously (i.e., in bad faith) in refusing to pay policy benefits, the insured must prove such refusal was without any reasonable basis. (Opsal v. United Services Auto. Assn. (1992) 2 Cal.App.4th 1197, 1206; California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 54.) Defendant contends that Plaintiff does not allege any facts to show Integon engaged in unreasonable conduct but merely relies on conclusory allegations. There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654.) [T]o establish the insurer's bad faith liability, the insured must show that the insurer has (1) withheld benefits due under the policy, and (2) that such withholding was unreasonable or without proper cause. The actionable withholding of benefits may consist of the denial of benefits due; paying less than due; and/or unreasonably delaying payments due. (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1209.) The principal issue in first party cases is whether the insurer¿unreasonably withheld¿benefits due the¿insured. Unreasonableness is usually a question of fact depending on the circ*mstances of the particular case. It only becomes a question of law where the evidence is undisputed and only one reasonable inference can be drawn from the evidence. (Chateau Chamberay Homeowners Ass'n v. Associated Int'l Ins. Co.¿(2001) 90 Cal.App.4th 335, 347.) Further, where coverage turns on factual questions, the erroneous withholding of policy benefits resulting from failure to investigate the claim thoroughly may breach the insurer's implied covenant of good faith and fair dealing. (Egan v. Mutual of Omaha Ins. Co. (1979) 24 C3d 809, 819.) To protect the insured's peace of mind and security, an insurer cannot reasonably and in good faith deny payments to its insured without thoroughly investigating the foundation for its denial. (Ibid.) An insurer that denies or delays payment of policy benefits due to the existence of a genuine dispute with its insured as to the existence of coverage liability or the amount of the insured's coverage claim is not liable in bad faith even though it might be liable for breach of contract. (Wilson v. 21st Century Ins. Co.¿(2007) 42 Cal.4th 713, 723.)¿The genuine dispute doctrine applies to both factual disputes and legal disputes. (Id. at 723.) Here, although Plaintiff alleges that Defendant denied coverage based on the service advisors opinion that the damage to the engine is not related to the reported loss, Plaintiff also alleges that Defendant unreasonably failed to investigate the facts of the case. The complaint alleges that Defendant favored the explanation that was financially advantageous to them, disregarding the repair estimate from Resurrection and the facts of the case. (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1072, quoting Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 819 [[I]n order to protect the interests of its insured, it was essential that an insurer fully inquire into possible bases that might support the insured's claim].) These allegations are sufficient at the pleadings stage to maintain a bad faith cause of action based on failure to properly investigate a claim. The demurrer to the second cause of action is therefore OVERRULED. 2. Third Cause of Action for Unfair Business Practice Defendant also demurs to the cause of action under the Unfair Competition Law (UCL), arguing that Plaintiff has not alleged any unlawful, unfair, or fraudulent conduct. To successfully plead a UCL claim for unfair business practices, a plaintiff must allege facts justifying relief in the form of protecting the public from unfair business practices or deceptive advertising. (Day v. AT&T Corp. (1998) 63 Cal.App.4th 325, 331-332.) A plaintiff must plead and prove that the defendant engaged in a business practice that was either unlawful (i.e., is forbidden by law) or unfair (i.e., harm to victim outweighs any benefit) or fraudulent (i.e., is likely to deceive members of the public).¿(Albillo v. Intermodal Container Services, Inc. (2003) 114 Cal.App.4th 190, 206.)¿ In consumer cases, there is a split of authority among the Courts of Appeal, which have applied three different tests for unfairness. (See generally Davis v. Ford Motor Credit LLC (2009) 179 Cal.App.4th 581, 593598 (tracing split in authority among Courts of Appeal in consumer cases); Bardin, 136 Cal.App.4th at 1267 (noting split of authority).) Plaintiff sufficiently alleges a claim under two of the three tests. The test applied in one line of cases requires that the public policy which is a predicate to a consumer unfair competition action under the unfair prong of the UCL must be tethered to specific constitutional, statutory, or regulatory provisions. (Bardin, 136 Cal.App.4th at 12601261; see Davis, 179 Cal.App.4th at 595596; Gregory, supra, 104 Cal.App.4th at p. 854.) Under this test, plaintiffs claim fails as Plaintiff has not identified a law that was violated. The test applied in a second line of cases is whether the alleged business practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers and requires the court to weigh the utility of the defendants conduct against the gravity of the harm to the alleged victim. (Bardin, 136 Cal.App.4th at 1260; see Davis, 179 Cal.App.4th at pp. 594595; see also Ticconi v. Blue Shield of California Life & Health Ins. Co. (2008) 160 Cal.App.4th 528, 539.) Here, a reasonable inference could be drawn that it was substantially injurious to Plaintiff. (Ticconi, 160 Cal.App.4th at 539.) The test applied in a third line of cases draws on the definition of unfair in section 5 of the Federal Trade Commission Act (15 U.S.C. § 45(n)), and requires that (1) the consumer injury must be substantial; (2) the injury must not be outweighed by any countervailing benefits to consumers or competition; and (3) it must be an injury that consumers themselves could not reasonably have avoided. (Davis, 179 Cal.App.4th at 597598; see Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1403.) Construing the allegations liberally, the court concludes Plaintiff has alleged he was substantially injured by Defendants denial of his claim; there are no countervailing benefits to Defendants denial, and the injury was not one Plaintiff could have avoided. The demurrer to this cause of action is thus OVERRULED. IV. CONCLUSION Based on the foregoing, Defendants demurrer is OVERRULED. Plaintiff is ordered to give notice. Dated: August 20, 2024 __­­­­___________________________ Hon. Eric Harmon

Ruling

KSFB MANAGEMENT, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS FOCUS FINANCIAL PARTNERS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Aug 20, 2024 |23SMCV02465

Case Number: 23SMCV02465 Hearing Date: August 20, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 KSFB MANAGEMENT, LLC, Plaintiff, v. FOCUS FINANCIAL PARTNERS, LLC, et al., Defendants. Case No.: 23SMCV02696 Hearing Date: August 20, 2024 [TENTATIVE] ORDER RE: PLAINTIFFS MOTION TO COMPEL RESPONSES TO ITS REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) BACKGROUND This action relates to a dispute over a non-compete provision. Defendant Focus Financial Partners LLC (Focus) is an acquirer of, and investor in, financial wealth management firms and other financial services firms. (Compl. ¶6.) Focusthrough its wholly owned subsidiary NKSFB, LLC (NKSFB)acquired substantially all assets of Nigro Karlin Segal Feldstein & Bolno, LLC (Nigro Karlin), a business management firm. (Id. ¶¶ 6, 16.) At the same time, the principals of Nigro Karlin formed a management companyPlaintiff KSFB Management LLC (KSFB) through which those principals would pursuant to a Management Agreement, manage and oversee the NKSFB business. (Id. ¶ 17.) As part of the initial acquisition, KFSB and its principals agreed to a Transaction Management Agreement (TMA). (Id. ¶ 18.) The TMA contains a non-competition covenant which applied for two years following the termination of (a) the TMA or (b) a principals employment or affiliation with KSFB. (Id.) The parties also signed a separate Non-Competition and Non-Solicitation Agreement, which contained a five year non-compete expiring on April 1, 2023, which KSFB concedes is valid and enforceable. (Id. ¶ 19.) On July 1, 2022, the parties entered into an Amended and Restated Management Agreement (ARMA) which is an amended and restated version of the TMA. (Id. ¶ 20.) The ARMA contains a materially similar non-competition covenant to the one to which the parties agreed in the TMA. The ARMAs non-compete also applied for two years following the termination of (a) the ARMA or (b) a principals employment or affiliation with KSFB. (Id. ¶¶ 21, 25.) On June 7, 2023, KSFB sued Focus, seeking a declaratory judgment that the ARMAs non-compete is not enforceable under California law. The operative complaint alleges two claims for (1) declaratory relief and (2) injunctive relief. This hearing is on KSFBs motion to compel further responses to three requests in its first set of requests for production of documents: Request No. 6: All DOCUMENTS RELATING TO the dispute between FOCUS and PLAINTIFF REGARDING the two year non-compete restriction in the ARMA. Request No. 7: All DOCUMENTS RELATING TO bid packages sent by GOLDMAN AND/OR FOCUS to prospective purchasers of FOCUS. Request No. 8: All DOCUMENTS RELATING TO the potential sale of FOCUS. KSFB argues the requests seek relevant information which is not protected by any privilege, and the requests are narrowly tailored. LEGAL STANDARD A¿motion to compel further responses¿to a¿document request¿is proper where the moving party believes the statement of compliance is incomplete, or a representation of inability to comply is inadequate, evasive and/or an objection is without merit or too general. (Code Civ. Proc., § 2031.310 (a).) The motion must show good cause to justify the discovery and must be supported by a meet and confer declaration. (Id. at subd. (b).) The scope of discovery is liberally construed in favor of disclosure as a matter of right unless statutory or public policy considerations clearly prohibit it. (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal. 2d 355, 377-378.) The broad scope of permissible discovery includes any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) MEET AND CONFER KSFB submits the Declaration of Kelly Dahan in support of its meet and confer requirements. The declaration attests the parties met and conferred by telephone on April 11, 2024, and subsequently participated in an informal discovery conference, neither of which resolved the parties dispute. The Court concludes KSFB has met its obligations to meet and confer. TIMELINESS On June 28, 2024, counsel for the Parties agreed that Plaintiffs deadline to file this Motion would be extended until July 19, 2024 and subsequently agreed to extend the deadline to July 25 in light of technical issues being experienced by the Los Angeles Superior Court due to a ransomware attack. (Dahan Decl., ¶ 10.) KSFB filed its motion on July 30, 2024, and accordingly, the motion is untimely. CONCLUSION Based on the foregoing, the Court DENIES Plaintiffs motion to compel as untimely IT IS SO ORDERED. DATED: August 20, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 KSFB MANAGEMENT, LLC, Plaintiff, v. FOCUS FINANCIAL PARTNERS, LLC, et al., Defendants. Case No.: 23SMCV02696 Hearing Date: August 20, 2024 [TENTATIVE] ORDER RE: DEFENDANTS MOTION TO COMPEL RESPONSES TO ITS FIRST AND SECOND SETS OF DOCUMENT REQUESTS BACKGROUND This action relates to a dispute over a non-compete provision. Defendant Focus Financial Partners LLC (Focus) is an acquirer of, and investor in, financial wealth management firms and other financial services firms. (Compl. ¶6.) Focusthrough its wholly owned subsidiary NKSFB, LLC (NKSFB)acquired substantially all assets of Nigro Karlin Segal Feldstein & Bolno, LLC (Nigro Karlin), a business management firm. (Id. ¶¶ 6, 16.) At the same time, the principals of Nigro Karlin formed a management companyPlaintiff KSFB Management LLC (KSFB) through which those principals would pursuant to a Management Agreement, manage and oversee the NKSFB business. (Id. ¶ 17.) As part of the initial acquisition, KFSB and its principals agreed to a Transaction Management Agreement (TMA). (Id. ¶ 18.) The TMA contains a non-competition covenant which applied for two years following the termination of (a) the TMA or (b) a principals employment or affiliation with KSFB. (Id.) The parties also signed a separate Non-Competition and Non-Solicitation Agreement, which contained a five year non-compete expiring on April 1, 2023, which KSFB concedes is valid and enforceable. (Id. ¶ 19.) On July 1, 2022, the parties entered into an Amended and Restated Management Agreement (ARMA) which is an amended and restated version of the TMA. (Id. ¶ 20.) The ARMA contains a materially similar non-competition covenant to the one to which the parties agreed in the TMA. The ARMAs non-compete also applied for two years following the termination of (a) the ARMA or (b) a principals employment or affiliation with KSFB. (Id. ¶¶ 21, 25.) On June 7, 2023, KSFB sued Focus, seeking a declaratory judgment that the ARMAs non-compete is not enforceable under California law. The operative complaint alleges two claims for (1) declaratory relief and (2) injunctive relief. On June 14, 2023, Focus served its First Set of Requests for Production of Documents (1st RFPs) which included the following Requests: Request No. 1: All Documents and Communications relating to any covenant of non-competition or non-solicitation in any contract or agreement to which You, NKSFB, or Focus are a party. Request No. 2: All Documents or Communications relating to Focuss alleged assertion that it will seek to enforce Sections 2.12(a) and (b) of the ARMA if the KSFB Principals terminate their relationship with Focus, NKSFB, or KSFB, as referenced in Paragraph 29 of KSFBs Complaint. Request No. 3: All Documents and Communications relating to any action taken by any of the KSFB Principals, or any Person acting on their behalf, to terminate any relationship with Focus, NKSFB, or KSFB, as referenced in Paragraph 29 of KSFBs Complaint. (Glass Decl. ¶ 2; id., Ex. 1, at 45.) KSFB responded to the 1st RFPs on August 11, 2023, and agreed to produce documents responsive to each of the three Requests. (See id. ¶ 2; id., Ex. 1, at 45.) As of July 25, 2024, however, KSFB has produced only two documents, responsive to Request No. 1, and no documents responsive to Request Nos. 2 and 3. (Id. ¶ 3.) On February 23, 2024, Focus served its Second Set of RFPs (2nd RFPs). (Id. ¶ 11.) On March 26, 2024, KSFB responded to the 2nd RFPs with objections to every single request and blanket refusals to search for or produce any documents. (See id.; id., Ex. 5, at 511.) Focus met and conferred with KSFB regarding its responses to the 2nd RFPs on April 11, 2024. (Id. ¶ 12.) During the meet and confer, Focus agreed to consider narrowing several of the 2nd RFPs. (Id.) On May 22, 2024, Focus agreed temporarily to withdraw Request Nos. 10 and 11, and conditionally offered to withdraw Request No. 8. (Id. ¶ 13.) Focus also offered to narrow or amend Request Nos. 4, 6, and 7 in response to KSFBs stated concerns. (Id.) Focus did not elect to make changes to Request Nos. 5, 9, and 12. (Id.) The 2nd RFPs now include the following Requests: Request No. 4: All Documents and Communications relating to the negotiation of the non-compete in the Original Management Agreement. Request No. 5: All Documents and Communications relating to the negotiation of the ARMA, including but not limited to the non-compete (Section 2.12), non-solicit (Section 2.13), full-time-duties (Section 2.5), and confidentiality provisions (Section 2.10). Request No. 6: All Documents and Communications relating to the negotiation and execution of the purchase of RBS. Request No. 7: Documents sufficient to show where each KSFB Principal resides and from where each KSFB principal primarily works. Request No. 9: All Documents and Communications between KSFB or any KSFB Principal and any other Personincluding but not limited to clients, other Focus partner firms, or potential acquirers of NKSFB or KSFBrelating to the ARMAs non-compete (Section 2.12), terminating any relationship with Focus, NKSFB, or KSFB, or leaving Focus to start a new firm of any kind. Request No. 12: Documents sufficient to show Your document retention policies, including but not limited to, policies implemented to retain documents relating to this Litigation. (Id. ¶ 13; id., Ex. 5, at 410.) This hearing is on Focus motion to compel responses to its 1st and 2nd RFPs. Focus argues that as to the 1st RFPs, KSFB failed, and must be compelled, to conduct a reasonable search for responsive documents. As to the 2nd RFPs, Focus argues they seek relevant discovery, and KSFBs objections are boilerplate and meritless. LEGAL STANDARD A¿motion to compel further responses¿to a¿document request¿is proper where the moving party believes the statement of compliance is incomplete, or a representation of inability to comply is inadequate, evasive and/or an objection is without merit or too general. (Code Civ. Proc., § 2031.310 (a).) The motion must show good cause to justify the discovery and must be supported by a meet and confer declaration. (Id. at subd. (b).) The scope of discovery is liberally construed in favor of disclosure as a matter of right unless statutory or public policy considerations clearly prohibit it. (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal. 2d 355, 377-378.) The broad scope of permissible discovery includes any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) MEET AND CONFER Focus submits the Declaration of Scott Glass in support of its meet and confer requirements. The declaration attests the parties met and conferred on the 1st RFPs and 2nd RFPs and attended an informal discovery conference (IDC). (Glass Decl. ¶¶ 3, 12-16.) The Court concludes Focus has met its obligations to meet and confer. TIMELINESS The Court concludes Focus motion is untimely. A motion to compel further must be filed within 45 days from the responding partys discovery response. (Code Civ. Proc. § 2031.310(c).) As to the 1st RFPs, the 45-day deadline to file a motion to compel is September 25, 2023. As to the 2nd RFPs, the deadline to file is May 10, 2024. Focus filed its motion to compel on July 25, 2024. Thus, the present motion is in violation of¿Code Civ. Proc. § 2031.310(c). Under¿Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410, this failure to move within the statutory time period constitutes a waiver of the right to compel a further response. CONCLUSION Based on the foregoing, the Court DENIES Defendant Focus Financial Partners, LLCs motion to compel as untimely IT IS SO ORDERED. DATED: August 20, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Ruling

Martin Alvarez vs. Preferred Contractors Insurance Company Risk Retention Group LLC

Aug 19, 2024 |C23-03004

C23-03004CASE NAME: MARTIN ALVAREZ VS. PREFERRED CONTRACTORS INSURANCE COMPANY RISKRETENTION GROUP LLC *HEARING ON MOTION IN RE: FOR JUDGMENT ON THE PLEADINGSFILED BY: ALVAREZ, MARTIN LABRADA*TENTATIVE RULING:* Plaintiff’s motion for judgment on the pleadings is denied, as discussed below.Background This action was filed by contractor, Martin Labrada Alvarez, dba California RetrofitConstruction, against his insurance company for refusing to cover damages he incurred when he wassued for negligence in Chao v. Leskiw, et al., MSC21-01887 (“underlying suit”). The underlying suitwas filed after plaintiff removed soil that caused damages to the Chaos’ property. After initiallyretaining counsel and covering the claim until July of 2023, defendant insurance company thenabandoned coverage and left plaintiff to pay for defense and damages. Its “legally untenable”grounds for doing so were (1) negligent act occurred during coverage, but not discovered until aretaining wall collapse a few days after policy ended; and (2) coverage exclusion for soil collapse dueto natural conditions. (Complaint, p. 3.) Plaintiffs contends his “negligent act, improper excavation, took place during coverage timeframe.” He further states, “[t]he damage that took place during coverage caused a retaining wall tocollapse about two weeks after coverage ended. Coverage is timed to the negligent act, thereforePCIC's reason is not legally tenable.” (Complaint, p. 4.) While soil collapse due to natural conditionsmay be excluded from coverage, collapse caused by negligence of the insured does not fall withinsuch exclusion. (Ibid.) In this motion, plaintiff argues these two latter points. He argues the subsidence exclusioncontained in his insurance policy does not apply to his negligent actions involving deliberateexcavation of soil. He also argues that the date of the incident giving rise to damages was when heexcavated the soil, not later when the damage occurred. In support of the motion, plaintiff submitshis own declaration attaching four exhibits: (1) his Complaint, (2) defendant’s answer, (3) the policy,and (4) the claim denial letter. Plaintiff also submits a declaration by his attorney, Andrew Shalaby,attaching the settlement agreement reaching in the underlying suit. Defendant objects to plaintiff’s evidence and opposes the motion, arguing that the motion isuntimely, that it is procedurally improper, and that the underlying claim was not covered. In supportof the opposition, defendant provides a declaration by counsel with attached deposition excerpts aswell as a copy of the complaint in the underlying suit.Meet and Confer Plaintiff has failed to submit a declaration concerning efforts to meet and confer with thedefendant in conformity with Code of Civil Procedure section 439(a)(3). Still, considering that thedefendant did not raise this point, and a conference is unlikely to resolve any of the underlyingdisputes, the Court proceeds with its ruling and reminds plaintiff of the statutory requirement tomeet and confer prior to filing a motion for judgment on the pleadings.Standard Code of Civil Procedure § 438 permits a plaintiff to move for judgment on the pleadings onthe ground that the complaint states facts sufficient to constitute a cause of action or causes of actionagainst the defendant, but the answer does not state facts sufficient to constitute a defense to thecomplaint. (Code Civ. Proc. §§ 438(b)(1) and 438(c)(1)(A).) Like a demurrer, a motion for judgment onthe pleadings attacks defects disclosed on the face of the pleadings or by matters that may bejudicially noticed. (Code Civ. Proc. § 438(d).) The legal standards for determination of a motion for judgment on the pleadings are similarto the standards for determination of a demurrer. (Eckler v. Neutrogena Corp. (2015) 238 Cal.App.4th433, 439.) As in the case of a demurrer, the Court accepts all factual allegations of the challengedpleading and "gives them a liberal construction." (Gerawan Farming, Inc. v. Lyon (2000) 24 Cal.4th468, 515-16.) Where a motion for judgment on the pleadings is granted, is the defect can be cured byamendment, leave to amend must be granted. (Hudson v. County of Los Angeles (2014) 232Cal.App.4th 392, 408.)Evidentiary Matters Defendant has filed objections to plaintiff’s evidence in support of the motion. The Courtsustains the objections, but takes judicial notice of Exhibits A and B to the declaration of plaintiff(Complaint and Answer in this matter) because these documents are already part of the Court’s file. Defendant has also filed an opposition to plaintiff’s “request for judicial notice.” There was noseparate request for judicial notice filed with the Court, but to the extent that plaintiff requestsjudicial notice of certain facts in his memorandum, the Court denies plaintiff’s request. The listedfacts are not the proper subject of judicial notice and are not entitled to a presumption of truthbecause they are not specifically pleaded in the Complaint. Nor has plaintiff attached the denial letteror the underlying policy to his Complaint, which would permit judicial notice of the contents.Discussion Setting aside that plaintiff did not attach any exhibits to his Complaint, and filed no separate“request for judicial notice” in support of his motion, as required by California Rules of Court, Rule3.1113(l), the facts as to which plaintiff seeks judicial notice are not within any of the statutorilypermitted categories for such notice. In order for the Court to take judicial notice of facts, they must be “[f]acts and propositionsthat are not reasonably subject to dispute and are capable of immediate and accurate determinationby resort to sources of reasonably indisputable accuracy.” As examples, the date of the excavation,any permission obtained, the existence and amount of insurance, and the cause of the retaining wall’sfailure here are all factual matters which are not subject to judicial notice. Had these facts been setforth in the Complaint, the Court would be required to assume their truth, but would also be requiredto accept the truth of any denial. As currently pleaded, not all of these matters are alleged and to the extent they are, theAnswer sufficiently denies them. The Court is not required or even permitted to presume the truth oflegal contentions set forth in the pleadings such as defendant’s grounds for denial of coverage asbeing “legally untenable.” (See Complaint, p. 3.) Defendant filed a general denial, requiring plaintiff to offer proof of every material allegationin his Complaint. While such proof may not be difficult to obtain (such as facts that plaintiff caninclude in his own declaration, for example), the defendant must have the opportunity to disputefactual matters, as would be allowed in a motion for summary judgment or trial. Plaintiff argues this case should not be subject to “protracted litigation” in order to determinethe two “questions of law” presented. (Memorandum in Support of Motion, 3:7-11.) But “[t]hestandard governing the trial court's consideration of [a motion for judgment on the pleadings] is quitedifferent than is the standard governing consideration of [a motion for summary judgment], and thisdifference materially affects the burden on the moving and responding parties. (Columbia CasualtyCo. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 467.) As articulated by one appellate court: The contrasting treatment of writings incorporated by reference which varies from express allegations of the pleading and the distinction in impact of judicial notice and evidentiary admissions or concessions in motions for summary judgment and motions for judgment on the pleadings does not rest on mere technicalities of pleading and procedure. Rather it is rooted in the demand of due process that a party be given “notice and opportunity for hearing appropriate to the nature of the case.”(Columbia Casualty Co., supra, 231 Cal.App.3d at 468, citation omitted.)

Ruling

MIA KUSHNER, BY AND THROUGH HER GUARDIAN AD LITEM JOSHUA KUSHNER VS BLUE CROSS OF CALIFORNIA

Aug 22, 2024 |24STCV05109

Case Number: 24STCV05109 Hearing Date: August 22, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING MIA KUSHNER, BY AND THROUGH HER GUARDIAN AD LITEM JOSHUA KUSHNER, Plaintiff, v. BLUE CROSS OF CALIFORNIA, Defendant. Case No: 24STCV05109 Hearing Date: August 22, 2024 Calendar Number: 7 Plaintiff Mia Kushner, by and through her guardian ad litem Joshua Kushner (Plaintiff) petitions for the approval compromise of Plaintiffs claim against Defendant Blue Cross of California (Defendant). Plaintiff and Defendant jointly move to seal Plaintiffs medical and related information, and the financial information relating to the confidential settlement agreement (the Settlement) between the parties, contained in (1) Plaintiffs Petition For Approval of Compromise of Claim or Action For Minor, (2) Plaintiffs proposed Order Approving Compromise of Pending Action, and (3) Plaintiffs proposed Order to Deposit Money into Blocked Account (collectively, the Petition). The Court GRANTS the motion to seal. The parties will need to discuss the logistics of the sealing at the hearing. The Court GRANTS the motion to approve the compromise of Plaintiffs claims. The Court APPROVES the withdrawal of settlement funds from the blocked account for the purpose of Plaintiffs medical care as specified in the Declaration of Joshua Kushner ¶ 12. Background This is an insurance case. The following facts are taken from the declarations of Joshua Kushner and Robert Gianelli. Plaintiff is covered under a Medi-Cal health plan issued by Defendant. Under this plan, Defendant authorized Plaintiffs physician group to determine if Plaintiff needed specialized medical services. Plaintiffs physician group authorized certain specialized care, which was covered under Plaintiffs plan. Beginning in May 2023, Defendant covered medical services needed by Plaintiff. In October 2023, Defendant stopped paying for Plaintiffs treatment. As a result, Plaintiff was unable to receive the level of treatment that she needed. Plaintiffs specialized care provider eventually ceased treatment as a result, resulting in medical problems for Plaintiff. Plaintiff filed this action on February 29, 2024, by and through her father and guardian ad litem, Joshua Kushner. Plaintiff raised claims for (1) breach of contract; and (2) breach of the implied covenant of good faith and fair dealing. In March 2024, Defendant resumed payment for the relevant treatments. Plaintiffs condition has significantly improved since that time. Plaintiff filed a Notice of Settlement on June 10, 2024. On August 5, 2024, Plaintiff moved for approval of the compromise of her claims. On August 6, 2024, the parties jointly filed the motion to seal. No party opposes either motion. Legal Standard Motion to Seal The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. (California Rules of Court, rule 2.550(d).) An order sealing the record must: (A) Specifically state the facts that support the findings; and (B) Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file. (California Rules of Court, rule 2.550(e)(1).) (1) If the court grants an order sealing a record and if the sealed record is in paper format, the clerk must substitute on the envelope or container for the label required by (d)(2) a label prominently stating "SEALED BY ORDER OF THE COURT ON (DATE)," and must replace the cover sheet required by (d)(3) with a filed-endorsed copy of the court's order. If the sealed record is in electronic form, the clerk must file the court's order, maintain the record ordered sealed in a secure manner, and clearly identify the record as sealed by court order on a specified date. (2) The order must state whether-in addition to the sealed records-the order itself, the register of actions, any other court records, or any other records relating to the case are to be sealed. (3) The order must state whether any person other than the court is authorized to inspect the sealed record. (4) Unless the sealing order provides otherwise, it prohibits the parties from disclosing the contents of any materials that have been sealed in anything that is subsequently publicly filed. (California Rules of Court, rule 2.551(e).) Motion to Approve Minors Compromise Pursuant to California Code of Civil Procedure section 372, any settlement of a claim made by a minor or adult with a disability must be approved by the court. If the court is satisfied that the settlement is in the best interest of the claimant, then the court shall approve the settlement. (See Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1338.) A petition for court approval of a compromise or covenant not to sue under Code of Civil Procedure section 372 must comply with California Rules of Court, Rules 7.950, 7.951, and 7.952. The petition must be verified by the petitioner and contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise or the covenant. (Cal. Rules of Court, Rule 7.950.) The person compromising the claim on behalf of the minor or person who lacks capacity, and the represented person, must attend the hearing on compromise of the claim unless the court for good cause dispenses with their personal appearance. (Cal. Rules of Court, Rule 7.952.) Discussion Motion to Seal Medical Information The parties move to seal Plaintiffs medical information in the Petition. The disclosure of [&] sensitive medical information is at the core of the protected informational privacy interest. (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851.) The Court finds that there is therefore an overriding interest that overcomes the public right of access to the record and supports sealing the record. The Court finds that Plaintiffs privacy interest in her medical records will be prejudiced if the records are not sealed. The Court finds that the parties proposed seal is narrowly tailored and that no less restrictive means exist to achieve the overriding interest. The Court therefore grants the motion to seal Plaintiffs medical information. Settlement Financial Information The parties move to seal the financial terms of the Settlement. The Settlement contains a confidentiality provision where the parties agree to keep the settlement amount confidential. (Barrera Decl. ¶ 2.) [A] binding contractual agreement not to disclose can give rise to an overriding interest. (Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 107, abrogated on other grounds as recognized in Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 471.) The Court finds that such an interest arises here, under the facts of this case, and that it supports sealing the record. The Court finds that the seal proposed by the parties is narrowly tailored and that no less restrictive means exist. The Court therefore grants the motion to seal the Settlements financial information. Motion to Approve Minors Compromise Kushner has properly verified the Petition. The Court has evaluated the settlement amount and finds that it is reasonable. Joshua Kushner declares that he believes the settlement amount is fair and reasonable, and will fairly compensate Plaintiff for her damages. (Kushner Decl. ¶ 13.) Kushner made a careful investigation regarding the nature and extent of Plaintiffs injuries. (Kushner Decl. ¶ 13.) It is Kushners opinion that the settlement is in Plaintiffs best interests. (Kushner Decl. ¶ 13.) The Petition provides that $742.11 in costs will be paid out of the settlement amount. The Court finds that this amount is reasonable. Plaintiffs fee agreement with her counsel provides for an attorney fee of 25 percent of the gross recovery. (Gianelli Decl. ¶ 7, Ex. 1.) The Court finds that this fee is reasonable. Plaintiffs counsel obtained a substantial settlement amount in just six months after filing the case. The experience of Plaintiffs counsel further supports a finding of reasonability. (Gianelli Decl. ¶ 12(c).) The Settlement will be transferred into a blocked account for Plaintiffs benefit. Kushner requests that the Court authorize disbursem*nt of funds from the blocked account for Plaintiffs care. The Court approves this request. The Court therefore finds that the Settlement is in Plaintiffs best interests and grants the motion for approval of the Settlement.

Ruling

FLYER DEFENSE, LLC, ET AL. VS MARVIN ENGINEERING CO., INC.

Aug 26, 2024 |22STCV29636

Case Number: 22STCV29636 Hearing Date: August 26, 2024 Dept: 68 Dept. 68 Date: 8-26-24 Case Number: 22STCV29636 Trial Date: 2-24-24 c/f 11-4-24 c/f 4-8-24 PRO HAC VICE MOVING PARTY: Plaintiffs, Flyer Next, LLC, et al. RESPONDING PARTY: Unopposed/Defendant, Marvin Engineering Co., Inc., et al. RELIEF REQUESTED Motion for Pro Hac Vice Admission SUMMARY OF ACTION Oded Nechushtan And Amit Nechushtan founded the Flyer entities, which includes Flyer Defense LLC, an entity wholly owned by Flyer Next, LLC, and Flyer Technologies, LLC, a separate entity 50% owned by Flyer Technologies. In 2000, Flyer Technologies entered into a joint venture agreement with Marvin Engineering Co., Inc. for a project involving the developments and sale of lightweight tactical all-terrain vehicles to the United States Marine Corps. Flyer agreed to license its intellectual property to Marvin Engineering, and transferred its subsidiary, Flyer Defense, LLC. Flyer Technologies retained a right to a 50-50 split of royalties and equal board voting power. In 2018, following the retirement/discontinued involvement of former head of Marvin Engineering, Jerry Friedman, the partied entered in a new agreement, whereby Flyer Defense was transferred to a new entity identified as Flyer Next, LLC, with joint ownership between Flyer Technologies and Marvin Engineering. Oded Nechushtan was also designated with the title of Manager, granting sole power to manage the business, property, and affairs of Flyer Next and ... Flyer Defense. Flyer Technologies also agreed to an $18,000,000 priority return to Marvin Engineering upon the occurrence of specified liquidity events. Plaintiffs allege Defendants provided misrepresenting information, which led to now determined unsupported terms for the revised agreement. Plaintiffs allege a multitude of allegations, including improper money withdrawals to pay other debts, concealment of certain debts, nonpayment of outstanding payments to Flyer Defense, and estruction of data. David Gussman and Howard Gussman serve as president and chief operating officer, and chief executive officer and director of Marving Engineering, and conducted the negotiations. On September 12, 2022, Plaintiffs Flyer Defense LLC, Flyer Technologies, LLC and Flyer Next, LLC (Flyer) filed their complaint for Declaratory Relief, Accounting, Breach of Contract (contribution and assignment agreement), Money Had and Received, Breach of Fiduciary Duty, and Breach of Contract (22STCV29636). On September 14, 2022, Marvin Engineering Co., Inc. filed a complaint for (1) Breach of Fiduciary Duty; (2) (Derivative) Breach of Fiduciary Duty; (3) Breach of Contract; (Operating Agreement) (4) Breach of Contract (Services Agreement); (5) Breach of the Obligation of Good Faith And Fair Dealing; (6) Breach of the Obligation of Good Faith and Fair Dealing; (7) Theft Pursuant To Cal. Penal Code § 496; (8) Aiding and Abetting Breach of Fiduciary Duty; (9) (Derivative) Aiding And Abetting Breach Of Fiduciary Duty; (10) Demand for Accounting; and (11) Declaratory Relief against the Flyer plaintiffs and Oded Nechushtan And Amit Nechushtan (22STCV30079). On October 5, 2022, the court deemed the cases related, with 22STCV29636 deemed the lead case. On October 7, 2022, the Flyer plaintiffs filed their first amended complaint for Breach of Contract, Conversion, Declaratory Relief, Accounting, Breach of Contract (contribution and assignment agreement), Money Had and Received, Breach of Fiduciary Duty, Breach of Contract (services agreement), and Breach of Contract (Line of Credit Agreement). on October 28, 2022, defendants Flyer Defense LLC, Flyer Technologies, LLC and Flyer Next, LLC answered the first amended complaint of Marvin Engineering Co., Inc. On October 28, 2022, Oded Nechushtan And Amit Nechushtan answered the Marvin Engineering Co., Inc. complaint. On November 14, 2022, Marvin Engineering Co., Inc. answered the Flyer plaintiffs first amended complaint. On the same date, Marvin Engineering Co., Inc. filed a cross-complaint against Flyer Defense LLC, Flyer Technologies, LLC, Flyer Next, LLC, Oded Nechushtan and Amit Nechushtan for (1) Breach of Fiduciary Duty; (2) (Derivative) Breach of Fiduciary Duty; (3) Breach of Contract; (Operating Agreement) (4) Breach of Contract (Services Agreement); (5) Breach of the Obligation of Good Faith And Fair Dealing; (6) Breach of the Obligation of Good Faith and Fair Dealing; (7) Theft Pursuant To Cal. Penal Code § 496; (8) Aiding and Abetting Breach of Fiduciary Duty; (9) (Derivative) Aiding And Abetting Breach Of Fiduciary Duty; (10) Demand for Accounting; and (11) Declaratory Relief. On December 22, 2022, Marvin Engineering Co., Inc. dismissed its cross-complaint without prejudice. On May 16, 2023, the court entered the parties stipulation for leave to file a second amended complaint of Flyer plaintiffs complaint. On May 17, 2023, Plaintiffs filed their second amended complaint for Breach of Contract, Conversion, Declaratory Relief, Accounting, Breach of Contract (contribution and assignment agreement), Money Had and Received, Breach of Fiduciary Duty, Breach of Contract (services agreement), Breach of Contract (Line of Credit Agreement), Fraudulent Concealment, Fraudulent Misrepresentation, Trespass to Chattels, Conversion, and Unauthorized Access to Computers. The second amended complaint added in new defendants David Gussman and Howard Gussman as well. On May 25, 2022, the court ordered the cases consolidated. On the June 21, 2023, the Gussman parties and Marvin Engineering Co., Inc. answered the second amended complaint. On July 5, 2023, the writs and receivers court denied the motion of Marvin Engineering for a writ of attachment against Flyer Defense, LLC and Flyer Next, LLC. RULING: Granted. Plaintiffs Flyer Next, LLC and Flyer Defense, LLC move for pro hac vice admission of attorney Jean Ralph Fleurmont. Pro hac vice admission in California is governed by California Rules of Court, Rule 9.40. To be admitted pro hac vice, one must be a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state, territory, or insular possession of the United States. (California Rules of Court, rule 9.40(a).) However, in no case shall an attorney appear pro hac vice if the attorney is a resident of California, regularly employed in California, or regularly engaged in substantial business, professional, or other activities in the State of California. An attorney seeking pro hac vice admission must file a verified application in both court and the State Bar of California establishing: (1) [t]he applicant's residence and office address; (2)[t]he courts to which the applicant has been admitted to practice and the dates of admission; (3)[t]hat the applicant is a member in good standing in those courts; (4)[t]hat the applicant is not currently suspended or disbarred in any court; (5)[t]he title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6)[t]he name, address, and telephone number of the active member of the State Bar of California who is attorney of record. (California Rules of Court, rule 9.40(d).) The subject application constitutes the second such request by Flyer Next, LLC and Flyer Defense, LLC following the April 17, 2024, application for Stephanie Command. The application complies with California Rules of Court, Rule 9.40. Attorney Fleurmont has not sought admission within the last two years, and practices within the District of Columbia. The application includes a representation of payment to the California State Bar on an unspecified date, without any copy of the receipt or proof of to service to the State Bar. [Declaration of Sheldon Eisenberg.] The application for pro hac vice admission is granted. Moving Plaintiffs to submit proof of compliance for both service of the application on the State Bar and proof of payment within 30 days. Motion for Appointment of Discovery Referee and Trial Continuance set for September 18, 2024. Plaintiffs Flyer Next, LLC and Flyer Defense, LLC to give notice.

Ruling

MARIA LUIZA MARTINS VS YOSEF SHALOM - CREATIVE REMODELING #1

Aug 20, 2024 |23STCV26243

Case Number: 23STCV26243 Hearing Date: August 20, 2024 Dept: 52 Tentative Ruling Order to Show Cause Re: Entry of Default Judgment Plaintiff Maria Luiza Martins requests court judgment by default against defendant Yosef Shalom Creative Remodeling #1. Plaintiffs application meets all requirements for default judgment. The proposed judgment plaintiff submitted on form JUD-100 contains errors. Plaintiff did not correctly fill out section 5 to indicate the judgment is for her and against defendant Yosef Shalom Creative Remodeling #1. Also, in section 6.a., plaintiff put the amounts of damages and interest on the wrong lines. The court will modify plaintiffs proposed judgment to correct these problems. Plaintiffs request for default judgment is granted. The court will modify plaintiffs proposed judgment and enter judgment.

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