COMPLAINT May 08, 2019 (2024)

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Filing # 89206193 E-Filed 05/08/2019 04:38:12 PMIN THE CIRCUIT COURT FOR THE 9™JUDICIAL CIRCUIT IN AND FOROSCEOLA COUNTY, FLORIDASALUSTIANO RIVERA & MARGARITA GENERAL JURISDICTION DIVISIONRIVERA,CASE NO.:Plaintiff,vs.UNIVERSAL PROPERTY & CASUALTYINSURANCE COMPANY,Defendant.COMPLAINTPlaintiff, SALUSTIANO RIVERA & MARGARITA RIVERA (herein after referredto as the “Insured”), by and through their undersigned counsel, hereby sue the Defendant,UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY (herein after referredto as “Insurance Company”), and allege as follows:PARTIES, JURISDICTION AND VENUE1. This is an action for damages exceeding Fifteen Thousand and 00/100 Dollars($15,000.00), exclusive of interest, costs and attorney’s fees.2. The Insured are individuals who at all times material hereto were and are residents ofOsceola County, Florida, and are otherwise sui juris.3. The Insurance Company is a Florida corporation qualified to do business in Floridaand has, at all times material hereto, been conducting business in Osceola County, Florida.4, Venue is proper in Osceola County, Florida because the contract, which forms thesubject matter of this lawsuit, was executed in Osceola County and the cause of action sued uponaccrued in Osceola County, Florida.5. The Plaintiff have performed all conditions precedent to assert their claim under thepolicy and to the bringing of the instant action, or said conditions have occurred or have beenwaived by the Insurance Company.GENERAL ALLEGATIONS6. At all times material hereto, in consideration of a premium paid by the Insured, therewas in full force and effect a homeowners’ insurance policy issued by the Insurance Companywith a policy number of 1501-1705-5779 (the “Policy”). A true and correct copy of the policy isattached hereto as “Exhibit A.”7. reserve the right to supplement the Complaint by attaching a full copy of the Policy.8. The damaged property is located at 2646 Hawthorne Lane, Kissimmee, Florida34743, (herein after referred to as the “Property”).9. Pursuant to the terms of the Policy, the Insurance Company agreed to provideinsurance coverage to the Insured’s Property for all risks, unless specifically excluded by theterms of the Policy.10. Onor about November 27, 2017, while the Policy was in full force and effect, theProperty sustained a covered loss as a result of water damage (the “Loss”).11. The Insurance Company assigned claim number FL17-0130399 to the Loss.12. The Insurance Company acknowledged that the Property sustained a coveredLoss and offered payment.13. | However, after diligent inspection of the Loss, it was obvious that the Propertysustained covered damages greater than the damages acknowledged by the Insurance Company.14. The Insurance Company’s finalization of its duty to adjust the loss with theInsured is a condition precedent for the Insured to receive the insurance benefits that they areentitled to under the terms of the Policy.15. As of the date of the filing of this lawsuit, the Insurance Company has failed toacknowledge that additional payment would be forthcoming and has failed to adequately providecoverage under the terms of the Policy. Asa result of the foregoing, the Insurance Company hasbreached the Policy.16. The Insured have suffered and continue to suffer damages resulting from theInsurance Company’s breach of the Policy.17. The Insured have been obligated to retain the undersigned attorneys for theprosecution of this action and are entitled to reasonable attorney’s fee pursuant to Florida StatuteSection 627.428.COUNTIBREACH OF CONTRACT18. The Insured reincorporate paragraphs 1 through 17 as if fully set forth herein.19. — Itis undisputed that the Insured and the Insurance Company entered into a writtencontract, the Policy, wherein the Insured agreed to pay a premium and the Insurance Companyagreed to insure the Insured’s Property.20. The Insured have paid all premiums due and owing as contemplated by thePolicy; thus, fully performing all obligations under the Policy.21. The Insured’s Property sustained damage, which the Insurance Company agreedto provide coverage for under the terms of the Policy.22. Furthermore, at all times material hereto, the Insured have satisfied all post-lossobligations accorded in the Policy, including but not limited to: (i) protecting the Property fromfurther loss; (ii) making reasonable and necessary repairs to protect the Property; and (iti)keeping an accurate record of the repairs expenses. Accordingly, the Insured have expendeddiligent effort to complete reasonable repairs to the Property and have mitigated the damagessustained.23. In contrast, the Insurance Company has failed to: (i) provide coverage for theLoss under the terms of the Policy; and/or (ii) acknowledge that payment would be forthcoming;and/or (iii) make adequate payment of insurance proceeds to the Insured. As a result of theforegoing, the Insurance Company has breached the Policy.24. Asa direct and proximate result of the Insurance Company’s breach of the Policy,the Insured have sustained damages.WHEREFORE, the Insured respectfully request that this Court enter judgment againstthe Insurance Company for damages, plus interest, court costs and reasonable attorney’s feespursuant to Section 627.428, Florida Statutes.COUNT IlDECLARATORY JUDGMENT25. The Insured reincorporate paragraphs | through 17 as if fully set forth herein.26. Pursuant to Chapter 86, Florida Statues, the Insured seek a declaratory judgmentthat:a. They have complied with the duties imposed upon them under the Policy and/orthey have been excused from performing any such duties; andb. the Insurance Company’s breach of the Policy by failing to properly adjust andpay the Insured, notwithstanding a clear obligation to do so, excuses the Insured from having tocomply with any further demands by the Insurance Company for compliance with the Policy. Tothe extent the Court determines that the Insurance Company is entitled to any further complianceby the Insured with the Policy, the Court should issue a declaratory judgment that specifies whatobligations the Insured have and allow the Insured an opportunity to comply with any suchobligations.27. The Insurance Company inspected the Property.28. Based upon its improper adjustment of the Insured’s claim, the InsuranceCompany failed to issue payment in the proper amount to the Insured.29. The Insurance Company continues to fail to fully compensate the Insured for theirloss.30. The Insured are asking the Court to make a determination as to their rights andremedies under the terms of the Policy.Need for Declaratory Relief31. The Insured believe they are in full compliance with the terms and conditions ofthe Policy.32. The Insured also believe that no further policy compliance is required as theInsurance Company breached the Policy when the Insurance Company failed to properly adjustand pay the Insured’s claim it the entirety.33. The Insured are entitled to have removed by judicial decree all doubts raised bythe Insurance Company concerning whether the Insured have complied with the duties imposedupon them under the Policy and the validity of the Insurance Company’s demands under thePolicy.34. There is a bona fide, present, and actual need of the Insured for a declaration ofthe aforementioned rights, and the coverage position of the Insurance Company has raised doubtand insecurity about the rights of the Insured as to whether they are in compliance with the termsand conditions of the Policy.35. The Insured retained the undersigned attorneys to represent them in this actionand are required to pay them a reasonable fee for their services.WHEREFORE, the Insured request that the Court enter a declaratory judgment that: (a)the Insured have complied with the duties imposed upon them by the Policy and (b) the InsuranceCompany’s breaches of the Policy excuse any further Policy compliance by the Insured; and awardthe Insured their reasonable attorneys’ fees under Section 627.428, Florida Statutes, along withcosts and such other relief as the Court deems appropriate. Alternatively, the Court should issuea declaration, which specifies the Policy compliance still required and allow the Insured theopportunity to comply with any such requirements.JURY TRIAL DEMANDPlaintiff hereby demands a trial by jury on all issues so triable.Dated this 8th day on May, 2019.Respectfully Submitted,RAMON, RODRIGUEZ, BLANCO-HERRERA LLPATTORNEYS for Plaintiff1750 Coral Way, 2" FloorMiami, Florida 33145Telephone: 305-800-4663Facsimile: 305-735-6461Primary Email: AR@RRBHLaw.comSecondary Email: NH@RRBHLaw.comBy: __/s/_ Alexandra RamonALEXANDRA RAMON, Esq.Florida Bar No. 102804Exhibit “A”Universal Property & Casualty Insurance Company Homeowners: a CDEUVENSU Gy CgDeclaration Effective10/07/2017c/o Universal Risk Advisors1110 W. Commercial Blvd Suite 300Fort Lauderdale, FL 33309Toll Free: 800-425-9113Claims: 800-218-3206 Service: Contact your Agent Listed BelowFROM Policy Period TO INSURED BILLED10/7/2017 10/7/2018 12:01 AM Standard Time ON44UAMENDED: Wind Mitigation, Prior CoveragePolicy Number1501-1705-5779Named Insured and Address | certify that this is a true and attested Agent Name and AddressSalustiano and Margarita Rivera cig the Coastal Homeowners Insurance2646 Hawthorne Ln 17/2018. 4410 W Commercial Blvd.Suite AFort Lauderdale, FL 33309Kissimmee, FL 34743(321) 948-0044Authorized CertificationO!Universal Property & Casualty Ins. Co. (844) 633-9900Premium SummaryBasic Coverages Attached Endorsem*nts Total Policy PremiumPremium Premium Assessments / Surcharges MGA Fees/Policy Fees _ (Including Assessments & Surcharges)$1,283.00 $83.00 $183.00 $27.00 $1,576.00Location 001Townhouse/ Number of ProtectionForm Construction Year Rowhouse Families Occupied Class Territory BCEGHO3 Masonry 1995 N 1 Y 3 511 99Dwelling Protective Device Credits: Wind / HailCounty Replacement Cost Home Updated Burglar Fire Sprinkler Shutter ExclusionOsceola Y Y Local Local N N NWe will provide ‘the i insurance described in this policy in retum for the premium and compliance with all applicable provisionsof this policy. If we elect to continue this insurance, we will renew this policy if you pay the required renewal premium for eachsuccessive policy period subject to our premiums, rules and forms then in effect. You must pay us prior to the end of thecurrent policy period or else this policy will expire.Insurance is provided only with respect to the following coverages for which a limit of liability is specified, subject to all theCOVERAGES - SECTION | LIMITS PREMIUM “LIMITS PRECoverage -A-Dwelling __——-—-$196,550 $1,283.00 _| Coverage -E- Personal Liability $300,000 $18.00Coverage -| - Other Structure : $19, 655 : Coverage -1 Medical Payments _ $1,000 ~ $0.00 ~Coverag! C. Personal roperty $98, 275 oe — —Coverage -D- Loss of Use . _ $39, 310: $866.43NOTE: The portion of your premium for hurricane coverage i$709.57The portion of your premium for all other coverages i 5:Sec! n 1 coverages subject to a minimum 2.0% - $3,931 hurricane deductible per calendar y year.__Section 1 coverages Subject to $1, 000 non- “hurricane (non-sinkhole) deductible per loss. —DESCRIBED LOCATION - The Described Location covered by this policy is at the above address unless otherwise stated:2646 Hawthorne Ln Kissimmee, FL 34743THIS POLICY ‘CONTAINS A A SEPARATE DEDUCTIBLE FOR |HURRICANE LOSSES WHICH MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.Flood coverage is not provided by Universal Property and Casualty Insurance Company and i is not part of this policy.ooChief Executive Officernature DateUPCIC HO003 (02/12) Printed Date: 3/9/2018 4:24:41 PM 1 of2Universal Property & Casualty Insurance CompanyDeclaration Effectivec/o Universal Risk Advisors10/07/20171110 W. Commercial Blvd Suite 300Fort Lauderdale, FL 33309 AMENDED: Wind Mitigation, Prior CoverageToll Free: 800-425-9113Claims: 800-218-3206 Service: Contact your Agent Listed BelowPolicy Number FROM Policy Period TO INSURED BILLED1501-1705-5779 10/7/2017 10/7/2018 12:01 AM Standard Time 9N44UMortgagee / Additional Interest 04 Agent Name and AddressCoastal Homeowners Insurance1110W Commercial Blvd.Suite AFort Lauderdale, FL 33309(844) 633-9900— Additional InterestMortgagee/Additional Interest 01 Mortgagee/Additional Interest 02 Mortgagee/Additional Interest 03Policy Forms and Endorsem*nts Applicable to this PolicyNUMBER EDITION DESCRIPTION LIMITS PREMIUMSHO 00 03 04 91 Homeowners 3 Special Form $1,283.00UPCIC 03 33 07 08 Limited Fungi, Wet or Dry Rot, or Bacteria Section | - $10,000/$20,000;Section Il - $50,000UPCIC 301 98 Outline of Your Homeowner PolicyUPCIC 25 01 98 (06-07) Hurricane DeductibleUPCIC 23 08 16 Special Provisions - FloridaUPCIC 16 01 98 Loss Assessment Coverage $1,000HO 04 96 04 91 No Coverage for Home Day Care BusinessHO 04 16 04 91 Premises Alarm or Fire Protection SystemUPCIC 01 03 06 07 Law and Ordinance Increase to 50% $65.00UPCIC 10 01 98 (06-07) Existing Damage ExclusionYear Built Surcharge $50.00No Prior Insurance Surcharge $133.00Personal Liability Increase Endorsem*nt $300,000 $18.00MGA Fee $25.00Emergency Management Preparedness Assistance Trust Fund $2.00LAW AND ORDINANCE COVERAGE IS AN IMPORTANT COVERAGE THATYOU MAY WISH TO PURCHASE. YOU MAY ALSO NEED TO CONSIDERTHE PURCHASE OF FLOOD INSURANCE FROM THE NATIONAL FLOODINSURANCE PROGRAM. WITHOUT THIS COVERAGE, YOU MAY HAVEUNCOVERED LOSSES. PLEASE DISCUSS THESE COVERAGES WITHYOUR INSURANCE AGENT, COINSURANCE CONTRACT: THIS POLICYCONTAINS A CO-PAY PROVISION THAT MAY RESULT IN HIGH OUT-OF-POCKET EXPENSES TO YOU.YOUR POLICY PROVIDES COVERAGE FOR A CATASTROPHIC GROUND COVER COLLAPSETHAT RESULTS IN THE PROPERTY BEING CONDEMNED AND UNINHABITABLE. OTHERWISE,YOUR POLICY DOES NOT PROVIDE COVERAGE FOR SINKHOLE LOSSES. YOU MAYPURCHASE ADDITIONAL COVERAGE FOR SINKHOLE LOSSES FOR AN ADDITIONALPREMIUM.This replaces all previously issued policy declarations, if any and is subject to all forms and endorsem*nts attached to this policy.UPCIC HO003 (02/12) Printed Date: 3/9/2018 4:24:41 PM 20f2HOMEOWNERSHO 00 03 04 91HOMEOWNERS 3SPECIAL FORMAGREEMENTWe will provide the insurance described in this policy in return for the premium and compliance with all applica-ble provisions of this policy.DEFINITIONSIn this policy, "you" and "your" refer to the "namedinsured" shown in the Declarations and the spouse ifa resident of the same household. "We," "us" and“our" refer to the Company providing this insurance.In addition, certain words and phrases are defined asfollows:1. "Bodily injury" means bodily harm, sickness ordisease, including required care, loss of servicesand death that results.2. "Business" includes trade, profession or occupa-tion.3. "Insured" means you and residents of your house-hold who are:a. Your relatives; orb, Other persons under the age of 21 and in thecare of any person named above.Under Section II, "insured" also means:c. With respect to animals or watercraft to whichthis policy applies, any person or organizationlegally responsible for these animals or water-craft which are owned by you or any person in-cluded in 3.a. or 3.b. above. A person or or-ganization using or having custody of theseanimals or watercraft in the course of any“business” or without consent of the owner isnot an “insured”;d. With respect to any vehicle to which this policyapplies:(1) Persons while engaged in your employ orthat of any person included in 3.a. or 3.b.above; or(2) Other persons using the vehicle on an“insured location" with your consent.4, "Insured location" means:a. The "residence premises";b. The part of other premises, other structuresand grounds used by you as a residence and:(1) Which is shown in the Declarations; or(2) Which is acquired by you during the policyperiod for your use as a residence;c. Any premises used by you in connection with apremises in 4.a. and 4.b, above;d. Any part of a premises:(1) Not owned by an "insured"; and(2) Where an "insured" is temporarily residing;e. Vacant land, other than farm land, owned by orrented to an "insured",f. Land owned by or rented to an "insured" onwhich a one or two family dwelling is beingbuilt as a residence for an "insured";g. Individual or family cemetery plots or burialvaults of an "insured"; orh. Any part of a premises occasionally rented toan "insured" for other than "business" use.. "Occurrence" means an accident, including con-tinuous or repeated exposure to substantially thesame general harmful conditions, which results,during the policy period, in:a. "Bodily injury"; orb. "Property damage.". “Property damage" means physical injury to, de-struction of, or loss of use of tangible property.. "Residence employee" means:a. An employee of an "insured" whose duties arerelated to the maintenance or use of the “resi-dence premises," including household or do-mestic services; orb. One who performs similar duties elsewhere notrelated to the "business" of an "insured.". "Residence premises" means:a. The one family dwelling, other structures, andgrounds; orb. That part of any other building;where you reside and which is shown as the "resi-dence premises" in the Declarations."Residence premises" also means a two familydwelling where you reside in at least one of thefamily units and which is shown as the "residencepremises" in the Declarations.HO 00 03 04 91 Copyright, Insurance Services Office, Inc., 1990 Page 1 of 18SECTION I - PROPERTY COVERAGESCOVERAGE A - DwellingWe cover:1. The dwelling on the "residence premises" shownin the Declarations, including structures attachedto the dwelling; and2. Materials and supplies located on or next to the“residence premises" used to construct, alter orrepair the dwelling or other structures on the "resi-dence premises."This coverage does not apply to land, including landon which the dwelling is located.COVERAGE B - Other StructuresWe cover other structures on the "residence prem-ises" set apart from the dwelling by clear space. Thisincludes structures connected to the dwelling by onlya fence, utility line, or similar connection.This coverage does not apply to land, including landon which the other structures are located.We do not cover other structures:1. Used in whole or in part for "business"; or2. Rented or held for rental to any person not a ten-ant of the dwelling, unless used solely as a privategarage.The limit of liability for this coverage will not be morethan 10% of the limit of liability that applies to Cover-age A. Use of this coverage does not reduce theCoverage A limit of liability.COVERAGE C - Personal PropertyWe cover personal property owned or used by an"insured" while it is anywhere in the world. At yourrequest, we will cover personal property owned by:1. Others while the property is on the part of the“residence premises" occupied by an "insured";2. A guest or a "residence employee," while theproperty is in any residence occupied by an "insured."Our limit of liability for personal property usuallylocated at an "insured's" residence, other than the"residence premises," is 10% of the limit of liability forCoverage C, or $1000, whichever is greater. Personalproperty in a newly acquired principal residence is notsubject to this limitation for the 30 days from the timeyou begin to move the property there.Special Limits of Liability. These limits do not in-crease the Coverage C limit of liability. The speciallimit for each numbered category below is the totallimit for each loss for all property in that category.Page 2 of 18Copyright, Insurance Services Office, Inc., 19901. $200 on money, bank notes, bullion, gold otherthan goldware, silver other than silverware, plati-num, coins and medals.2. $1000 on securities, accounts, deeds, evidencesof debt, letters of credit, notes other than banknotes, manuscripts, personal records, passports,tickets and stamps. This dollar limit applies tothese categories regardless of the medium (suchas paper or computer software) on which the ma-terial exists.This limit includes the cost to research, replace orrestore the information from the lost or damagedmaterial.3. $1000 on watercraft, including their trailers, fur-nishings, equipment and outboard engines or mo-tors.4. $1000 on trailers not used with watercraft.5. $1000 for loss by theft of jewelry, watches, furs,precious and semi-precious stones.6. $2000 for loss by theft of firearms.7. $2500 for loss by theft of silverware, silver-platedware, goldware, gold-plated ware and pewterware.This includes flatware, hollowware, tea sets, traysand trophies made of or including silver, gold orpewter.8. $2500 on property, on the "residence premises,"used at any time or in any manner for any "busi-ness" purpose.9. $250 on property, away from the "residence prem-ises," used at any time or in any manner for any"business" purpose. However, this limit does notapply to loss to adaptable electronic apparatus asdescribed in Special Limits 10. and 11. below.10.$1000 for loss to electronic apparatus, while in orupon a motor vehicle or other motorized land con-veyance, if the electronic apparatus is equipped tobe operated by power from the electrical systemof the vehicle or conveyance while retaining itscapability of being operated by other sources ofpower. Electronic apparatus includes:a. Accessories or antennas; orb. Tapes, wires, records, discs or other media;for use with any electronic apparatus.HO 00 03 04 9111.$1000 for loss to electronic apparatus, while not inor upon a motor vehicle or other motorized landconveyance, if the electronic apparatus:a. Is equipped to be operated by power from theelectrical system of the vehicle or conveyancewhile retaining its capability of being operatedby other sources of power;b. Is away from the "residence premises"; andc. Is used at any time or in any manner for any"business" purpose.Electronic apparatus includes:a. Accessories and antennas; orb. Tapes, wires, records, discs or other media;for use with any electronic apparatus.Property Not Covered. We do not cover:1. Articles separately described and specificallyinsured in this or other insurance;2. Animals, birds or fish;3. Motor vehicles or all other motorized land con-veyances. This includes:a. Their equipment and accessories; orb. Electronic apparatus that is designed to beoperated solely by use of the power from theelectrical system of motor vehicles or all othermotorized land conveyances. Electronic appa-ratus includes:(1) Accessories or antennas; or(2) Tapes, wires, records, discs or other media;for use with any electronic apparatus.The exclusion of property described in 3.a.and 3.b. above applies only while the propertyis in or upon the vehicle or conveyance.We do cover vehicles or conveyances not subjectto motor vehicle registration which are:a. Used to service an "insured's" residence; orb. Designed for assisting the handicapped;4. Aircraft and parts. Aircraft means any contrivanceused or designed for flight, except model or hobbyaircraft not used or designed to carry people orcargo;5. Property of roomers, boarders and other tenants,except property of roomers and boarders relatedto an “insured”;6. Property in an apartment regularly rented or heldfor rental to others by an "insured," except as pro-vided in Additional Coverages 10.;7. Property rented or held for rental to others off the“residence premises";8. "Business" data, including such data stored in:a. Books of account, drawings or other paperrecords; orb. Electronic data processing tapes, wires, re-cords, discs or other software media;However, we do cover the cost of blank recordingor storage media, and of pre-recorded computerprograms available on the retail market; or9. Credit cards or fund transfer cards except asprovided in Additional Coverages 6.COVERAGE D - Loss Of UseThe limit of liability for Coverage D is the total limitfor all the coverages that follow.1. If a loss covered under this Section makes thatpart of the "residence premises" where you residenot fit to live in, we cover, at your choice, either ofthe following. However, if the "residence prem-ises" is not your principal place of residence, wewill not provide the option under paragraph b. be-low.a. Additional Living Expense, meaning anynecessary increase in living expenses incurredby you so that your household can maintain itsnormal standard of living; orb. Fair Rental Value, meaning the fair rentalvalue of that part of the "residence premises"where you reside less any expenses that donot continue while the premises is not fit to livein.Payment under a. or b. will be for the shortesttime required to repair or replace the damage or,if you permanently relocate, the shortest time re-quired for your household to settle elsewhere.2. If a loss covered under this Section makes thatpart of the "residence premises" rented to othersor held for rental by you not fit to live in, we coverthe:Fair Rental Value, meaning the fair rentalvalue of that part of the "residence premises"rented to others or held for rental by you lessany expenses that do not continue while thepremises is not fit to live in.Payment will be for the shortest time required torepair or replace that part of the premises rentedor held for rental.3. If a civil authority prohibits you from use of the“residence premises" as a result of direct damageto neighboring premises by a Peril Insured Againstin this policy, we cover the Additional Living Ex-pense and Fair Rental Value loss as provided un-der 1. and 2. above for no more than two weeks.HO 00 03 04 91 Copyright, Insurance Services Office, Inc., 1990 Page 3 of 18The periods of time under 1., 2. and 3. above are notlimited by expiration of this policy.We do not cover loss or expense due to cancellationof a lease or agreement.ADDITIONAL COVERAGES1. Debris Removal. We will pay your reasonableexpense for the removal of:a. Debris of covered property if a Peril InsuredAgainst that applies to the damaged propertycauses the loss; orb. Ash, dust or particles from a volcanic eruptionthat has caused direct loss to a building orproperty contained in a building.This expense is included in the limit of liability thatapplies to the damaged property. If the amount tobe paid for the actual damage to the property plusthe debris removal expense is more than the limitof liability for the damaged property, an additional5% of that limit of liability is available for debrisremoval expense.We will also pay your reasonable expense, up to$500, for the removal from the "residence prem-ises" of:a. Your tree(s) felled by the peril of Windstorm orHail;b. Your tree(s) felled by the peril of Weight of Ice,Snow or Sleet; orc. A neighbor's tree(s) felled by a Peril InsuredAgainst under Coverage C;provided the tree(s) damages a covered structure.The $500 limit is the most we will pay in any oneloss regardless of the number of fallen trees.2. Reasonable Repairs. In the event that coveredproperty is damaged by an applicable Peril In-sured Against, we will pay the reasonable cost in-curred by you for necessary measures takensolely to protect against further damage. If themeasures taken involve repair to other damagedproperty, we will pay for those measures only ifthat property is covered under this policy and thedamage to that property is caused by an applica-ble Peril Insured Against.This coverage:a. Does not increase the limit of liability thatapplies to the covered property;b. Does not relieve you of your duties, in case ofa loss to covered property, as set forth inSECTION | —- CONDITION 2.d.Page 4 of 18Copyright, Insurance Services Office, Inc., 19903. Trees, Shrubs and Other Plants. We covertrees, shrubs, plants or lawns, on the "residencepremises," for loss caused by the following PerilsInsured Against: Fire or lightning, Explosion, Riotor civil commotion, Aircraft, Vehicles not owned oroperated by a resident of the "residence prem-ises," Vandalism or malicious mischief or Theft.We will pay up to 5% of the limit of liability thatapplies to the dwelling for all trees, shrubs, plantsor lawns. No more than $500 of this limit will beavailable for any one tree, shrub or plant. We donot cover property grown for "business" purposes.This coverage is additional insurance.4, Fire Department Service Charge. We will pay upto $500 for your liability assumed by contract oragreement for fire department charges incurredwhen the fire department is called to save or pro-tect covered property from a Peril InsuredAgainst. We do not cover fire department servicecharges if the property is located within the limitsof the city, municipality or protection district fur-nishing the fire department response.This coverage is additional insurance. No deducti-ble applies to this coverage.5. Property Removed. We insure covered propertyagainst direct loss from any cause while beingremoved from a premises endangered by a PerilInsured Against and for no more than 30 dayswhile removed. This coverage does not changethe limit of liability that applies to the property be-ing removed.6. Credit Card, Fund Transfer Card, Forgery andCounterfeit Money.We will pay up to $500 for:a. The legal obligation of an "insured" to paybecause of the theft or unauthorized use ofcredit cards issued to or registered in an "in-sured's" name;b. Loss resulting from theft or unauthorized useof a fund transfer card used for deposit, with-drawal or transfer of funds, issued to or regis-tered in an "insured's" name;c. Loss to an "insured" caused by forgery or al-teration of any check or negotiable instrument;andd. Loss to an "insured" through acceptance ingood faith of counterfeit United States or Ca-nadian paper currency.HO 00 03 04 91We do not cover use of a credit card or fundtransfer card:a. By a resident of your household;b. By a person who has been entrusted with ei-ther type of card; orc. If an "insured" has not complied with all termsand conditions under which the cards are is-sued.All loss resulting from a series of acts committedby any one person or in which any one person isconcerned or implicated is considered to be oneloss.We do not cover loss arising out of "business" useor dishonesty of an "insured."This coverage is additional insurance. No deducti-ble applies to this coverage.Defense:a. We may investigate and settle any claim orsuit that we decide is appropriate. Our duty todefend a claim or suit ends when the amountwe pay for the loss equals our limit of liability.b. If a suit is brought against an "insured" forliability under the Credit Card or Fund TransferCard coverage, we will provide a defense atour expense by counsel of our choice.c. We have the option to defend at our expensean "insured" or an "insured's" bank against anysuit for the enforcement of payment under theForgery coverage.7. Loss Assessment. We will pay up to $1000 foryour share of loss assessment charged during thepolicy period against you by a corporation or as-sociation of property owners, when the assess-ment is made as a result of direct loss to theproperty, owned by all members collectively,caused by a Peril Insured Against underCOVERAGE A — DWELLING, other than earth-quake or land shock waves or tremors before, dur-ing or after a volcanic eruption.This coverage applies only to loss assessmentscharged against you as owner or tenant of the“residence premises."We do not cover loss assessments chargedagainst you or a corporation or association ofproperty owners by any governmental body.The limit of $1000 is the most we will pay with re-spect to any one loss, regardless of the number ofassessments.Condition 1. Policy Period, under SECTIONS |AND II CONDITIONS, does not apply to this cov-erage.HO 00 03 04 91Copyright, Insurance Services Office, Inc., 19908. Collapse. We insure for direct physical loss tocovered property involving collapse of a buildingor any part of a building caused only by one ormore of the following:a. Perils Insured Against in COVERAGE C —PERSONAL PROPERTY. These perils applyto covered buildings and personal property forloss insured by this additional coverage;b. Hidden decay;Hidden insect or vermin damage;d. Weight of contents, equipment, animals orpeople;e. Weight of rain which collects on a roof; orf. Use of defective material or methods in con-struction, remodeling or renovation if the col-lapse occurs during the course of the construc-tion, remodeling or renovation.Loss to an awning, fence, patio, pavement, swim-ming pool, underground pipe, flue, drain, cess-pool, septic tank, foundation, retaining wall, bulk-head, pier, wharf or dock is not included underitems b., c., d., e., and f. unless the loss is a di-rect result of the collapse of a building.Collapse does not include settling, cracking,shrinking, bulging or expansion.This coverage does not increase the limit of liabil-ity applying to the damaged covered property.9. Glass or Safety Glazing Material.We cover:a. The breakage of glass or safety glazing mate-rial which is part of a covered building, stormdoor or storm window; andb. Damage to covered property by glass or safetyglazing material which is part of a building,storm door or storm window.This coverage does not include loss on the "resi-dence premises" if the dwelling has been vacantfor more than 30 consecutive days immediatelybefore the loss. A dwelling being constructed isnot considered vacant.Loss for damage to glass will be settled on the ba-sis of replacement with safety glazing materialswhen required by ordinance or law.This coverage does not increase the limit of liabil-ity that applies to the damaged property.9°Page 5 of 1810.Landlord's Furnishings. We will pay up to$2500 for your appliances, carpeting and otherhousehold furnishings, in an apartment on the"residence premises" regularly rented or held forrental to others by an "insured," for loss causedonly by the following Perils Insured Against:ab.Fire or lightning.Windstorm or hail.This peril does not include loss to the propertycontained in a building caused by rain, snow,sleet, sand or dust unless the direct force ofwind or hail damages the building causing anopening in a roof or wall and the rain, snow,sleet, sand or dust enters through this opening.This peril includes loss to watercraft and theirtrailers, furnishings, equipment, and outboardengines or motors, only while inside a fully en-closed building.. Explosion.. Riot or civil commotion.. Aircraft, including self-propelled missiles andspacecraft.f. Vehicles.. Smoke, meaning sudden and accidental dam-age from smoke.This peril does not include loss caused bysmoke from agricultural smudging or industrialoperations.. Vandalism or malicious mischief.. Falling objects.This peril does not include loss to propertycontained in a building unless the roof or anoutside wall of the building is first damaged bya falling object. Damage to the falling object it-self is not included.. Weight of ice, snow or sleet which causesdamage to property contained in a building.. Accidental discharge or overflow of wateror steam from within a plumbing, heating, airconditioning or automatic fire protective sprin-kler system or from within a household appli-ance.This peril does not include loss:(1) To the system or appliance from which thewater or steam escaped;(2) Caused by or resulting from freezing ex-cept as provided in the peril of freezing be-low; or(3) On the "residence premises" caused byaccidental discharge or overflow which oc-curs off the "residence premises."In this peril, a plumbing system does not in-clude a sump, sump pump or related equip-ment.. Sudden and accidental tearing apart, crack-ing, burning or bulging of a steam or hot wa-ter heating system, an air conditioning or auto-matic fire protective sprinkler system, or anappliance for heating water.We do not cover loss caused by or resultingfrom freezing under this peril.m. Freezing of a plumbing, heating, air condition-ing or automatic fire protective sprinkler sys-tem or of a household appliance.This peril does not include loss on the "resi-dence premises" while the dwelling is unoccu-pied, unless you have used reasonable care to:(1) Maintain heat in the building; or(2) Shut off the water supply and drain thesystem and appliances of water.n. Sudden and accidental damage fromartificially generated electrical current.This peril does not include loss to a tube, tran-sistor or similar electronic component.o. Volcanic eruption other than loss caused byearthquake, land shock waves or tremors.The $2500 limit is the most we will pay in any oneloss regardless of the number of appliances, car-peting or other household furnishings involved inthe loss.SECTION | - PERILS INSURED AGAINSTCOVERAGE A — DWELLING and COVERAGE B -—OTHER STRUCTURES1. Involving collapse, other than as provided in Addi-tional Coverage 8.;We insure against risk of direct loss to property de- 2. Caused by:scribed in Coverages A and B only if that loss is aphysical loss to property. We do not insure, however,for loss:Page 6 of 18 Copyright, Insurance Services Office, Inc., 1990 HO 00 03 04 91a. Freezing of a plumbing, heating, air condition-ing or automatic fire protective sprinkler sys-tem or of a household appliance, or by dis-charge, leakage or overflow from within thesystem or appliance caused by freezing. Thisexclusion applies only while the dwelling is va-cant, unoccupied or being constructed, unlessyou have used reasonable care to:(1) Maintain heat in the building; or(2) Shut off the water supply and drain thesystem and appliances of water;b. Freezing, thawing, pressure or weight of wateror ice, whether driven by wind or not, to a:(1) Fence, pavement, patio or swimming pool;(2) Foundation, retaining wall, or bulkhead; or(3) Pier, wharf or dock;c. Theft in or to a dwelling under construction, orof materials and supplies for use in the con-struction until the dwelling is finished and oc-cupied;d. Vandalism and malicious mischief if the dwell-ing has been vacant for more than 30 con-secutive days immediately before the loss. Adwelling being constructed is not consideredvacant;e. Any of the following:(1) Wear and tear, marring, deterioration;(2) Inherent vice, latent defect, mechanicalbreakdown;(3) Smog, rust or other corrosion, mold, wet ordry rot;(4) Smoke from agricultural smudging or in-dustrial operations;Discharge, dispersal, seepage, migration,release or escape of pollutants unless thedischarge, dispersal, seepage, migration,release or escape is itself caused by a PerilInsured Against under Coverage C of thispolicy.Pollutants means any solid, liquid, gaseousor thermal irritant or contaminant, includingsmoke, vapor, soot, fumes, acids, alkalis,chemicals and waste. Waste includes ma-terials to be recycled, reconditioned or re-claimed;Settling, shrinking, bulging or expansion,including resultant cracking, of pavements,patios, foundations, walls, floors, roofs orceilings;(7) Birds, vermin, rodents, or insects; or(8) Animals owned or kept by an "insured."6)6)If any of these cause water damage not other-wise excluded, from a plumbing, heating, airconditioning or automatic fire protective sprin-kler system or household appliance, we coverloss caused by the water including the cost oftearing out and replacing any part of a buildingnecessary to repair the system or appliance.We do not cover loss to the system or appli-ance from which this water escaped.3. Excluded under Section | — Exclusions.Under items 1. and 2., any ensuing loss to propertydescribed in Coverages A and B not excluded orexcepted in this policy is covered.COVERAGE C - PERSONAL PROPERTYWe insure for direct physical loss to the propertydescribed in Coverage C caused by a peril listedbelow unless the loss is excluded in SECTION | —EXCLUSIONS.1. Fire or lightning.2. Windstorm or hail.This peril does not include loss to the propertycontained in a building caused by rain, snow,sleet, sand or dust unless the direct force of windor hail damages the building causing an openingin a roof or wall and the rain, snow, sleet, sand ordust enters through this opening.This peril includes loss to watercraft and their trail-ers, furnishings, equipment, and outboard enginesor motors, only while inside a fully enclosed build-ing.3. Explosion.4. Riot or civil commotion.5. Aircraft, including self-propelled missiles andspacecraft.6. Vehicles.7. Smoke, meaning sudden and accidental damagefrom smoke.This peril does not include loss caused by smokefrom agricultural smudging or industrial opera-tions.8. Vandalism or malicious mischief.9. Theft, including attempted theft and loss of prop-erty from a known place when it is likely that theproperty has been stolen.This peril does not include loss caused by theft:a. Committed by an "insured";b. In or to a dwelling under construction, or ofmaterials and supplies for use in the construc-tion until the dwelling is finished and occupied;orHO 00 03 04 91 Copyright, Insurance Services Office, Inc., 1990 Page 7 of 18c. From that part of a "residence premises"rented by an "insured" to other than an “in-sured."This peril does not include loss caused by theftthat occurs off the "residence premises" of:a. Property while at any other residence ownedby, rented to, or occupied by an "insured," ex-cept while an "insured" is temporarily livingthere. Property of a student who is an "insured"is covered while at a residence away fromhome if the student has been there at any timeduring the 45 days immediately before theloss;b. Watercraft, and their furnishings, equipmentand outboard engines or motors; orc. Trailers and campers.10. Falling objects.This peril does not include loss to property con-tained in a building unless the roof or an outsidewall of the building is first damaged by a fallingobject. Damage to the falling object itself is not in-cluded.11. Weight of ice, snow or sleet which causes dam-age to property contained in a building.12. Accidental discharge or overflow of water orsteam from within a plumbing, heating, air condi-tioning or automatic fire protective sprinkler sys-tem or from within a household appliance.This peril does not include loss:a. To the system or appliance from which thewater or steam escaped;b. Caused by or resulting from freezing except asprovided in the peril of freezing below; orc. On the "residence premises" caused by acci-dental discharge or overflow which occurs offthe "residence premises."In this peril, a plumbing system does not include asump, sump pump or related equipment.13. Sudden and accidental tearing apart, cracking,burning or bulging of a steam or hot water heat-ing system, an air conditioning or automatic fireprotective sprinkler system, or an appliance forheating water.We do not cover loss caused by or resulting fromfreezing under this peril.14. Freezing of a plumbing, heating, air conditioningor automatic fire protective sprinkler system or ofa household appliance.This peril does not include loss on the "residencepremises" while the dwelling is unoccupied, unlessyou have used reasonable care to:a. Maintain heat in the building; orb. Shut off the water supply and drain the systemand appliances of water.15.Sudden and accidental damage fromartificially generated electrical current.This peril does not include loss to a tube, transis-tor or similar electronic component.16.Volcanic eruption other than loss caused byearthquake, land shock waves or tremors.SECTION | - EXCLUSIONS1. We do not insure for loss caused directly or indi-rectly by any of the following. Such loss is ex-cluded regardless of any other cause or eventcontributing concurrently or in any sequence tothe loss.a. Ordinance or Law, meaning enforcement ofany ordinance or law regulating the construc-tion, repair, or demolition of a building or otherstructure, unless specifically provided underthis policy.b. Earth Movement, meaning earthquake includ-ing land shock waves or tremors before, duringor after a volcanic eruption; landslide; minesubsidence; mudflow; earth sinking, rising orshifting; unless direct loss by:(1) Fire;(2) Explosion; orPage 8 of 18Copyright, Insurance Services Office, Inc., 1990(3) Breakage of glass or safety glazing mate-tial which is part of a building, storm dooror storm window;ensues and then we will pay only for the ensu-ing loss.This exclusion does not apply to loss by theft.c. Water Damage, meaning:(1) Flood, surface water, waves, tidal water,overflow of a body of water, or spray fromany of these, whether or not driven by wind;(2) Water which backs up through sewers ordrains or which overflows from a sump; orHO 00 03 04 91(3) Water below the surface of the ground,including water which exerts pressure on orseeps or leaks through a building, sidewalk,driveway, foundation, swimming pool orother structure.Direct loss by fire, explosion or theft resultingfrom water damage is covered.d. Power Failure, meaning the failure of poweror other utility service if the failure takes placeoff the "residence premises." But, if a Peril In-sured Against ensues on the "residence prem-ises," we will pay only for that ensuing loss.e. Neglect, meaning neglect of the "insured" touse all reasonable means to save and pre-serve property at and after the time of a loss.. War, including the following and any conse-quence of any of the following:(1) Undeclared war, civil war, insurrection,rebellion or revolution;(2) Warlike act by a military force or militarypersonnel; orDestruction, seizure or use for a militarypurpose.Discharge of a nuclear weapon will be deemeda warlike act even if accidental.g. Nuclear Hazard, to the extent set forth in theNuclear Hazard Clause of SECTION | —CONDITIONS.~(3h. Intentional Loss, meaning any loss arisingout of any act committed:(1) By or at the direction of an "insured"; and(2) With the intent to cause a loss.2. We do not insure for loss to property described inCoverages A and B caused by any of the follow-ing. However, any ensuing loss to property de-scribed in Coverages A and B not excluded or ex-cepted in this policy is covered.a. Weather conditions. However, this exclusiononly applies if weather conditions contribute inany way with a cause or event excluded inparagraph 1. above to produce the loss;b. Acts or decisions, including the failure to actor decide, of any person, group, organizationor governmental body;c. Faulty, inadequate or defective:(1) Planning, zoning, development, surveying,siting;(2) Design, specifications, workmanship, re-pair, construction, renovation, remodeling,grading, compaction;(3) Materials used in repair, construction, reno-vation or remodeling; or(4) Maintenance;of part or all of any property whether on or offthe "residence premises."SECTION I - CONDITIONS1. Insurable Interest and Limit of Liability. Even ifmore than one person has an insurable interest inthe property covered, we will not be liable in any‘one loss:a. To the "insured" for more than the amount ofthe "insured's" interest at the time of loss; orb. For more than the applicable limit of liability.2. Your Duties After Loss. In case of a loss tocovered property, you must see that the followingare done:a. Give prompt notice to us or our agent;b. Notify the police in case of loss by theft;c. Notify the credit card or fund transfer cardcompany in case of loss under Credit Card orFund Transfer Card coverage;d. Protect the property from further damage. Ifrepairs to the property are required, you must:HO 00 03 04 91Copyright, Insurance Services Office, Inc., 1990(1) Make reasonable and necessary repairs toprotect the property; and(2) Keep an accurate record of repair ex-penses;e. Prepare an inventory of damaged personalproperty showing the quantity, description, ac-tual cash value and amount of loss. Attach allbills, receipts and related documents that jus-tify the figures in the inventory;f. As often as we reasonably require:(1) Show the damaged property;(2) Provide us with records and documents werequest and permit us to make copies; and(3) Submit to examination under oath, whilenot in the presence of any other "insured,"and sign the same;Page 9 of 18Page 10 of 18g. Send to us, within 60 days after our request,your signed, sworn proof of loss which setsforth, to the best of your knowledge and belief:(1) The time and cause of loss;(2) The interest of the "insured" and all othersin the property involved and all liens on theproperty;(3) Other insurance which may cover the loss;(4) Changes in title or occupancy of the prop-erty during the term of the policy;Specifications of damaged buildings anddetailed repair estimates;The inventory of damaged personal prop-ert

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Ruling

BUILD GROUP, INC., A CALIFORNIA CORPORATION VS WASHINGTON MOTOR LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.

Aug 22, 2024 |23STCV28672

Case Number: 23STCV28672 Hearing Date: August 22, 2024 Dept: 61 BUILD GROUP, INC., A CALIFORNIA CORPORATION vs WASHINGTON MOTOR LLC, A DELAWARE LIMITED LIABILITY COMPANY, et al. TENTATIVEPlaintiff Build Group Construction Company, Inc.s Motion for Leave to File Second Amended Complaint is GRANTED. The proposed second amended complaint attached as an exhibit to the Declaration of Anthony P. Niccoli in Support of Motion for Leave to File Second Amended Complaint is ordered to be filed within 20 days of this Order. Plaintiff to give notice. DISCUSSIONCode Civ. Proc. section 473 subd. (a)(1) states that: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare. (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.) Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only [w]here no prejudice is shown to the adverse party . . . [Citation.] A different result is indicated [w]here inexcusable delay and probable prejudice to the opposing party is shown. [Citation.] (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) Pursuant to California Rule of Court Rule 3.1324, [a] motion to amend a pleading before trial must: (1)Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3)State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Such a motion must include a supporting declaration stating, (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier. (CRC Rule 3.1324, subd. (b).) Plaintiff Build Group Construction Company, Inc. (Plaintiff) seeks leave to file a second amended complaint (SAC) adding two additional causes of action: a cause of action for fraudulent inducement against Defendant Washington Motor, LLC, based on the latters alleged misrepresentation of its ability to secure power for the construction site, and another grounds for declaratory relief, based on the proposed nuisance claim of a neighbor of the construction project. (Niccoli Decl. Exh. B.) Plaintiff states that the fraud claim came to its notice during the deposition of a third party, and the alleged nuisance claims only arose after the present action was filed. (Niccoli Decl. ¶¶ 7.) Plaintiff has shown good cause for the amendment. Defendant has filed no opposition thereto. The motion is therefore GRANTED.

Ruling

PAUL BLINDERMAN, AN INDIVIDUAL VS 1210 NORTH KINGS ROAD ASSOCIATION, INC., A CALIFORNIA NON-PROFIT, MUTUAL BENEFIT CORPORATION, ET AL.

Aug 20, 2024 |23STCV24649

Case Number: 23STCV24649 Hearing Date: August 20, 2024 Dept: 34 Defendant/Cross-Complainant Ji Hoon Lees unopposed Motion for Leave to File Cross-Complaint is GRANTED. Defendants are ordered to file the Cross-Complaint within 10 days. Background[1] Plaintiff Paul Blinderman (Plaintiff) alleges as follows: Plaintiff is an individual who, since January 2, 2018, has owned and owns Unit No. 102 (the Unit) at the 1210 North Kings Road common-interest development (Development), located at 1210 North Kings Road, West Hollywood, CA 90069. Within the past three years, Plaintiff has complained to the 1210 North Kings Road Association, Inc. (Association) and Asher Kaufman (Kaufman) about moisture on the Units balcony. Plaintiff requested that Association and Kaufman investigate and repair the source of the moisture. In or around November 2020, Plaintiff discovered that the chronic existence of moisture on the balcony had breached under the deck surface and had deteriorated the sliding glass door thresholds. Plaintiff reported his findings regarding the balcony structure and the door thresholds at an Association meeting in or around January 2021. Association agreed to hire a contractor to inspect these issues and to submit an assessment to Association for review. Association has failed to repair structural damage. Also, beginning in May 2021 through January 2022, water leaks forced Plaintiff to vacate the Unit. Plaintiff alleges that one of the leaks was from a water line used by the residents of Unit No. 202. Ji Hoon Lee (Lee) is the owner of Unit No. 202. On October 10, 2023, Plaintiff filed a complaint, asserting causes of action against Defendants Association, Kaufman, and Lee and Does 1-20 for: 1. Breach of CC&RS 2. Negligence 3. Nuisance The Final Status Conference is set for February 24, 2025. Trial is set for February 23, 2025. Legal Standard A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth. . . : (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him& (Code Civ. Proc. § 428.10, subd. (a).) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (Code Civ. Proc. § 428.50, subd. (a).) Except as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded. (Code Civ. Proc. § 426.30, subd. (a).) A [r]elated cause of action means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint. (Code Civ. Proc. § 426.10, subd. (c).) A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action. (Code Civ. Proc. § 426.50(a).) Discussion Defendant/Cross-Complainant Lee moves the court for an order granting it leave to file a proposed cross-complaint. The proposed Cross-Complaint alleges causes of action against Cross-Defendant Barbara Schoen for (1) Equitable Indemnity; (2) Contribution and Apportionment; and, (3) Declaratory Relief. The proposed cross-complaint is compulsory, inasmuch as it is asserted against Plaintiff and involves a related cause of action as defined by Code of Civil Procedure § 426.10, subdivision (c). Causes of action arise out of the same transaction or occurrence if there is a logical relationship between the prior complaint and the cross-complaint. (ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 82). The term transaction is construed broadly; it is not confined to a single, isolated act or occurrence. . . but may embrace a series of acts or occurrences logically interrelated. (Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 993-994 [internal quotations and citation omitted].) In the breach of contract context, the rule means any claims the defendant has against the plaintiff based on the same contract generally must be asserted in a cross-complaint, even if the claims are unrelated to the specific breach or breaches that underlie the plaintiff's complaint. (Id. at 994 [quotations and citation omitted].) Cross-Defendant Schoen allegedly owns another Unit governed by the Association. Cross-Complainant Lee alleges Cross-Defendant Schoens Unit was one of the sources of water leaks at issue in Plaintiffs Complaint. The question remaining, then, is whether or not Defendants have acted in good faith. The provision in section 425.60 relating to good faith does allow trial courts a modicum of discretion in allowing amendments to cross-complaints. Nonetheless, what constitutes good faith must be determined in conformity with the liberality conferred upon the trial courts by the section and by prior law. (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.) [T]his principle of liberality requires that a strong showing of bad faith be made in order to support a denial of the right to file a cross-complaint under this section. (Id. [quotations and citation omitted].) Here, Lees counsel states that Plaintiff produced over ten thousand (10,000) pages of documents in response to written discovery. Among this document production was evidence that one of the sources of the water intrusion and water leaks were originated from and/or flowed through the common area walls of Ms. Schoens Unit. (Declaration of Nicholas A. Konoske, ¶ 5.) There is no evidence that Defendant/Cross-Complainant Lee has acted in bad faith; in fact, the motion is not opposed. The motion, then, is granted. Defendant/Cross-Complainant Lee is ordered to file the Cross-Complaint within 10 days. [1] The motion was filed (and served via mail and email) on May 24, 2024 for hearing on June 24, 2024. On June 18, 2024, the court continued the hearing to July 31, 2024. The court provided notice. On July 11, 2024, the court continued the hearing to August 13, 2024. The court provided notice.

Ruling

MICHAEL WANG, ET AL. VS TODD O'GARA, ET AL.

Aug 23, 2024 |23STCV25748

Case Number: 23STCV25748 Hearing Date: August 23, 2024 Dept: 49 Michael Wang, et al. v. Todd OGara, et al. PLAINTIFFS MOTION FOR PARTIAL RECONSIDERATION OF ORDER ON DEFENDANTS MOTION TO QUASH FOR LACK OF PERSONAL JURISDICTION MOVING PARTY: Plaintiffs Michael Wang and Jared Rothman RESPONDING PARTY(S): Defendants Todd OGara, Michael OGara, and Wanu Water, Inc. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiffs Michael Wang and Jared Rothman allege that Defendants Todd OGara, Michael OGara, Wanu Water, Inc., and Ryco Partners, LLC, committed fraud by falsely representing that they would invest in Plaintiffs business endeavors, and by misrepresenting their supposed wealth. Plaintiffs allege they passed on other investment opportunities in reliance on Defendants representations. On April 22, 2024, this court DENIED Defendants motion to quash service for lack of personal jurisdiction as to Defendant Todd OGara, and GRANTED the motion as to Defendants Michael OGara and Wanu Water, Inc. (See 04/22/2024 Ruling.) Plaintiffs now move for partial reconsideration of that Ruling to the extent it granted the motion to quash as to Defendants Michael OGara and Wanu Water, Inc. Defendants opposed. TENTATIVE RULING: Plaintiffs Motion for Partial Reconsideration of Order on Defendants Motion to Quash for Lack of Personal Jurisdiction is DENIED. Defendants are ordered to give notice, unless waived. DISCUSSION: Motion for Reconsideration I. Legal Standard CCP § 1008 provides, in relevant part: (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circ*mstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circ*mstances, or law are claimed to be shown. II. Defendants Untimely Opposition Defendants opposition to the motion for reconsideration was due on July 11, 2024. (See CCP § 1005(b) [All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days&before the hearing. Plaintiffs argue Defendants opposition to the motion for reconsideration was untimely because it was not received via email service until Friday, July 12, 2024, at 12:04 AM. In other words, service was 5 minutes late. Plaintiffs also assert Defense counsel filed a perjurious proof of service indicating service occurred minutes before midnight on the July 11, when in fact, service did not occur until after midnight the next day. Despite recognizing that the opposition was technically served only a few minutes late, Plaintiffs contend they were somehow prejudiced by the late service and therefore, the court should disregard the opposition. (Reply 5: 1-2.) Now that the guffaws have subsided, this Court rejects such an absurd and hyper-technical argument. Simply put: Because Plaintiffs cannot demonstrate any legitimate and actual prejudice from this five minute late filing, the court exercises its discretion to consider the untimely opposition to the extent it was, in fact, untimely. III. Analysis A. Arguments In granting Michael OGara and Wamu Waters motion to quash, Plaintiffs argue the Court (1) made factual findings not supported by evidence in the record; (2) made observations about Plaintiffs Opposition that were quantifiably untrue; and (3) misapplied the law of specific jurisdiction by seemingly focusing on the volume of contacts as part of the analysis. (Mtn. for Reconsideration, p. 6: 8-10.) Plaintiffs also assert that that new or different facts [or] circ*mstances exist to reconsider the prior order, namely, that in the period of time since Plaintiffs filed their Opposition, Defendants have taken specific actions to destroy, alter, or otherwise spoliate key jurisdictional evidence. (Mtn. 6: 11-12; CCP § 1008(a).) Later in the motion, Plaintiffs take issue with the Courts Ruling as it pertains to Michael and Wanu, asserting that this Courts analysis was short and conclusory and without any meaningful engagement with either the evidence or the law of personal jurisdiction. (Opp. 9: 3-4.) Plaintiffs also contend they were deprived of their right to be heard at the hearing. (Mtn. 8: 16.) To be frank, it would seem that arguments that this Court somehow made mistakes, ignored evidence, failed to adequately explain its decision, or otherwise failed to give the Plaintiff a fair hearing, is likely not sufficient grounds for a motion for reconsideration, under CCP § 1008 (a). An aggrieved party is certainly free to seek any appellate remedies which may be available, as opposed to filing a motion for reconsideration based upon the fact that the result was incorrect, from the Plaintiffs standpoint. Moreover, it is not appropriate to simply contend that the trial court made a mistake, since it didnt pay attention, ignored the evidence and/or pleadings, and engaged in an incorrect and specious analysis. This is borderline contemptuous behavior on behalf of Plaintiffs counsel. See, e.g., Business & Professions Code § 6068 (a) and (b). Insulting the trial court, either directly or by implication, is typically not a preferred or effective persuasive technique. Counsel should act accordingly and choose his/her words more carefully in the future. Be that as it may, this Court does, in fact, treat every motion seriously, and will attempt to address the issues and arguments that are appropriately before this Court on the pending motion for reconsideration. B. New Facts and Circ*mstances Since the ruling on this motion, Plaintiffs assert that new facts and circ*mstances have arisen that justify a deviation from the ruling. 1. Removal of Heart from Text Message First, Plaintiffs assert that Plaintiff Michael Wang received a notification via iMessages informing him that Todd removed a heart reaction from a text message Wang had sent Todd. (Wang Decl. ¶ 2.) The November 22, 2022, subject text message sent from Plaintiff Wang to Todd stated: Warriors call tentatively scheduled tomorrow at 4:30pm ET/1:3pm PT. Will provide details when confirmed. [¶] Already have multiple parties that want the entire thing. Crazy&vanity purchase. (Wang Decl. ¶ 2, Exh. A.) Plaintiff attests that Warriors refers to the Golden State Warriors, a California-based team that Plaintiff says Defendant Todd made multiple efforts to initiate conversations with me about investing. (Wang Decl. ¶ 5.) Todd apparently hearted the iMessage. This remained for some time, until April 14, 2024, when Plaintiff received an iMessage notification informing him that Todd had removed the heart from the text message. (Id. ¶ 2.) Plaintiff attests that a notification of this type typically occurs either because (1) the other person removed a reaction such as a heart, or (2) the other person deleted the message altogether. (Id. ¶ 3.) Therefore, Plaintiff attests that [t]his series of events leads [him] to believe that Todd is attempting to destroy evidence relevant to [his] case. (Id. ¶ 4.) In his declaration opposing the motion, Defendant Todd states that that he accidentally removed a heart emoji from the text while he was trying to take a screenshot of that text message. (Todd OGara Decl. ¶ 4.) He maintains that he was fully aware that all communications, correspondence, text messages, [and] emails between [him] and Mr. Wang and Mr. Rothman needed to be reserved and maintained. (Id.) Plaintiffs argue that the altered or spoliated a text message regarding the OGara familys desire to invest in a California sports team is relevant for reconsideration because Defendant Michael purportedly made multiple efforts to initiate conversations with [Plaintiff Wang] about investing in the Golden State Warriors. (Wang Decl. ¶ 5.) Michael did this, Plaintiff asserts, with knowledge that Wang was a California resident. (Id.) 2. Alteration of Wanu Website Second, Plaintiffs assert that at some point between when Plaintiff filed their Opposition and the present, Defendants altered the content of Wanus website to remove information indicating Wanu was based in California. (Mtn. 10: 10-12.) As of April 4, 2024, Wanus Frequently Asked Questions page indicated that Wanu is produced in sunny Southern California; Orange County, to be exact! (Wang Decl. ISO Oppn to Mot. Quash ¶ 26, Exh. F; Alfera Decl., Exh. B.) However, as of May 2, 2024, that language from the websites FAQ has been completely omitted. (Alfera Decl., Exh. C.) To this evidence, Todd OGara responds that one of Wanus vendors, Glambia, maintained a production facility in Corona, CA, where Glambia bottle[d] and package[d] the Wanu product. (Todd OGara Decl. ¶ 3.) However, Glambia went out of business in 2023, which necessitated that Wanu find another co-packer. (Id.) Accordingly, Wanu could no longer represent on the Companys website that Wanu was produced in sunny southern California and thus, Wanus website needed to be updated for compliance purposes regarding representations that were made on Wanus website. (Id.) Todd attests there was absolutely nothing nefarious about Wanu updating its website so as to make honest representations to its customers. (Id.) C. Jurisdiction over Defendant Michael OGara Defendant Michael is Todds father and a Nevada resident. In the Courts ruling on the motion to quash, the court concluded that the text message Michael sent to Todd, purporting to establish purporting to demonstrate the legitimacy of a large family inheritance, would have been a message from Nevada to Texas. (Ruling, p. 6, § 2.) This was based on evidence presented by Defendants that they were residents of Nevada and Texas. (See Decl. of Todd OGara in Reply to Motion to Quash, ¶ 1; Decl. of Michael OGara in Reply to Motion to Quash, ¶ 1.) This court went on to find that Michaels lone visit to California does not relate to the claims in the Complaint and that his strongest ties to California are those formulated by his son, Defendant Todd. (Id.) The court concluded that the scant facts, standing alone, were insufficient to establish personal jurisdiction over Defendant Michael. (Id.) First, Plaintiffs argue the court erred in making factual findings regarding the locations of the sender and recipient of the Inheritance Text Message. (Mtn. 12: 24-25.) They assert there is nothing in the record demonstrating or suggesting that, on or shortly before March 17, 2023, Michael OGara was a resident of or present in Nevada, or that Todd OGara was a resident of or present in Texas. (Mtn. 13: 10-12.) In any event, Plaintiffs assert this is irrelevant to the analysis. The determinative factor is simply that the older and younger OGara conspired with one another to defraud Michael Wang, and at the time they did so, Michael OGara knew Michael Wang lived in California. (Id. at 13: 16-18.) The court made this determination based on the fact that it was Plaintiffs whoas the ones opposing the motion to quash"had the initial burden to prove, by a preponderance of the evidence, facts establishing purposeful availment and a substantial connection between the defendant's forum contacts and the plaintiff's claim. (Anglo Irish Bank Corp., PLC, supra, 165 Cal. App. 4th at 980.) The court made this determination based on its review of the evidence presented. Upon another review of the evidence, in addition to any new evidence presented in the motion for reconsideration, the court comes to the same conclusion. Plaintiffs then assert that the court should have allowed the case against Michael to proceed because the jurisdictional issues are inextricably bound to the merits of the case. The California authority Plaintiffs rely on, cited in their opposition to the motion to quash, involved a plaintiffs standing in a civil forfeiture action. (See People v. Superior Ct. (Plascencia) (2002) 103 Cal. App. 4th 409, 416.) That Court, in concluding that the trial court correctly found the determination of disputed facts over standing was a question for the jury and not the court, relied on federal authorities holding that when a jurisdictional issue turns upon disputed facts intertwined with the merits of the case, the court should not resolve the factual dispute prior to trial but should employ a summary judgment standard. (Id.) Plaintiffs, however, have not demonstrated with any binding California authority that the same rule applies to the issue of personal jurisdiction in a case not involving civil forfeiture. The court therefore will not apply that rule here. Accordingly, Plaintiffs motion for reconsideration as it applies to Defendant Michael OGara is DENIED. D. Jurisdiction over Wanu In its Ruling on the motion to quash, this court recognized the existence of evidence that Defendant Todd, founder of Wanu, visited California on multiple occasions to solicit investments for Wanu. (Id. ¶ 6.) The court continued, however, by stating that Plaintiffs [had] not identified any authority holding that the solicitation of investments from a California resident, standing alone, is sufficient to invoke personal jurisdiction. (Ruling, p. 6, § 3.) In the motion for reconsideration, Plaintiffs contend the court erred in this statement, and point to a section of their opposition to the motion to quash where they raised Anglo Irish Bank Corp., PLC v. Sup. Ct. (2008) 165 Cal.App.4th 969, 985. (See Ps Opposition to Motion to Quash, 13: 1-7.) This Court regrets that it did, in fact, miss the case citation in its initial analysis of the motion, therefore erring in stating that Plaintiffs had not cited any authority to that effect. However, Plaintiffs single sentence and accompanying parenthetical lacked meaningful analysis or any discussion of the facts in Anglo. (See Ps Opp. to Mtn. to Quash, p. 13: 1-7.) The court addresses the case now and finds it distinguishable. In Anglo, California investors filed suit against Isle of Man Bank, Isle of Man trust company, their officers, and their Irish parent bank fraud and related claims. (Id. at 975.) The trial court denied the defendants motions to quash, and the Court of Appeal affirmed. In that case, Directors of the foreign companies, Davies and Connolly, jointly met with 10 or 11 potential clients in California in March 2000, 9 or 10 of whom decided to invest through the trust company. Their business cards handed out at the meetings bore a logo for Anglo Irish Bank. Davies's card identified him as managing director of the trust company. Connolly's card identified him as Head of Offshore Trust Operations for the Irish bank. Mike McGee, who was then managing director of the Isle of Man bank, also met with several potential investors in California a few months later. (Id.) Davies and Connolly met with Plaintiffs, the Brars, at their home in California in March 2020 in efforts to obtain their investments. (Id. at 975-976.) The Brars did ultimately invest and suffered substantial losses. (Id. at 976.) Davies also visited California again in November 2000 to attend conferences in Los Angeles and San Francisco on the subject of asset protection, and then again in May 2001 to meet with investment advisors and at least one potential investor regarding leveraged with profit bonds. (Id.) By this conduct, the Court of Appeal held that the parties had purposely directed their activities at California by causing a separate person or entity to engage in forum contacts. (Id. at 983.) Particularly, Davies, Connolly, and McGee visited California for the purpose of engaging in economic activity with California residents& [and] they succeeded in garnering millions of dollars in investments from California residents. (Id. at 984.) In doing so, the individuals acted not only on behalf of their employers, the Isle of Man bank and the trust company, but also on behalf of the Irish bank. (Id.) Therefore, the Court concluded that the petitioners purposefully derived benefit from their activities in California and deliberately engaged in significant activities within this state, and that they therefore purposefully availed themselves of forum benefits. (Id.) The court went on to determine there existed a substantial connection between the dispute and the defendants forum activities. (Id. at 985.) The court found such a connection existed, because the allegations in the complaint were based on alleged misrepresentations in or omissions from statements made to them in California by Davies, Connolly, and others in an effort to solicit business from California residents. (Id.) Based on the circ*mstances, the Court concluded that the exercise of personal jurisdiction would be fair and reasonable. (Id.) Turning to the instant case, Plaintiffs contend in their motion for reconsideration that because the visits that Todd made to California to conduct business for Wanu were visits in Todds official capacity with Wanu, then they are sufficient to provide jurisdiction over Wanu. (Mtn. 16: 8-10.) In its opposition to the motion to quash, Plaintiffs identified instances where Defendant Todd OGara, on behalf of Wanu, solicited investments in Wanu. Plaintiffs assert these occurred during a dinner on January 24, 2023 in West Hollywood (Rothman Decl. in Opposition to Motion to Quash ¶¶ 7-8; Wang Decl. in Opposition to Motion to Quash ¶¶ 1819); during two rounds of golf at Lakeside Golf Club in Burbank (Wang Decl. in Opp. ¶¶ 21, 23); and during a meeting with Dominique Appleby at the Beverly Hilton. (Id. ¶ 22.) Clearly, as evidenced by Anglo, where an entity targets the forum through its agents to obtain investments, that may be sufficient to confer personal jurisdiction. (Anglo, supra, 165 Cal.App.4th at 985.) The question is whether the evidence in this case established this. The facts here are distinguishable from Anglo, which involved visits by multiple individuals on behalf of the entities attempting to solicit the investments, which did, in fact, result in millions in investments. Indeed, the sole purpose of the meetings was to obtain investments from California residents. In this case, however, Todd OGara denies that his visits to California were made to made obtain investors in Wanu. (Todd OGara Decl. in Reply to Motion to Quash ¶ 10.) Appleby ultimately did not invest any money in Wanu. (Wang Decl. in Opp. to Motion to Quash ¶ 22). It is unclear if the West Hollywood dinner or golf outings resulted in any investments in Wanu. Thus, Defendant Wanus purposeful availment to California does not reach the level of that in Anglo, and the court again concludes that Plaintiffs have not met their burden to establish personal jurisdiction over Defendant Wanu. Accordingly, Plaintiffs motion for reconsideration as it applies to Defendant Wanu Water is DENIED. IT IS SO ORDERED. Dated: August 23, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Ruling

Aug 20, 2024 |23STCV00634

Case Number: 23STCV00634 Hearing Date: August 20, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING TECHNOLOGY INSURANCE COMPANY, vs. CENTER FOR FAMILY HEALTH & EDUCATION INC. Case No.: 23STCV00634 Hearing Date: August 20, 2024 Defendant Center for Family Health & Education Inc.s motion for summary judgment is denied. Defendant Center for Family Health & Education Inc. (Defendant) moves for summary judgment as to Plaintiff Technology Insurance Companys (Plaintiff) complaint for breach of contract on the basis there are no triable issues of material fact, and Defendant is entitled to judgment as a matter of law. (Notice of Motion, pg. 2.) Background On January 11, 2023, Plaintiff filed a Complaint against Defendant, asserting a cause of action for breach of contract. The complaint alleges that on or about November 4, 2019, Plaintiff provided Defendants Workers Compensation and Employers Liability Insurance coverage (the "2019 Policy"), for the period of 11/4/2019 through 11/4/2020 (but cancelled 7/10/2020), which was subject to an audit and re-computation of its premium. Plaintiff alleges that the 2019 Policy provides that the final premium will be determined by using the actual premium basis and the proper classifications and rates as determined by an audit. Plaintiff claims that the 2019 Policy further obligated Defendants to pay the difference between the estimated and actual premiums after the audit and final premium determined by Plaintiff. Plaintiff alleges that an audit was subsequently performed on the effective policy period for the 2019 Policy. The audit found the premium basis estimate provided by the Defendants to be inaccurate and found the actual audited total premium and fees for the effective policy period for the 2019 Policy to be an additional $40,849.00. Plaintiff alleges that Defendants refused to make any further payments toward the 2019 Policy premium as audited for the 2019 Policy, and thereby Defendants breached the terms of the policy. Defendant filed the instant motion on May 31, 2024. Plaintiff filed its opposition on July 24, 2024. Defendant filed its reply on August 15, 2024. Evidentiary Objections Plaintiffs Objection No. 1 is SUSTAINED on the grounds that it lacks foundation, and it is an improper legal conclusion. Plaintiffs other two Objections are OVERRULED. Request for Judicial Notice Defendants Request for Judicial Notice of the complaint in this matter is GRANTED. Legal Standard The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if 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. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(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. (Id.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Medical Center (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, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).) Breach of Contract To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendants breach and resulting damage. [Citation] (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Plaintiffs claim rests on the allegation that Defendant breached the policy by failing to pay addition premiums assessed by the auditor. Defendant argues that Plaintiffs claim is defective as a matter of law because Defendant did not have a duty to pay additional premiums for 1099 workers. Defendant also argues it has no obligation under the policy to make an affirmative showing as to whether its employees are independent contractors. As such, Defendant argues it is not in breach of the contract. Defendant submits the following evidence. On or about November 4, 2019, Plaintiff issued the Policy to Defendant, which provided workers compensation coverage, amongst other coverages. ([Undisputed Material Fact (UMF) No. 1] Erigero Decl. ¶ 3, Exh. A [Plaintiffs Complaint ¶ 8]; Landeros Decl., ¶ 3, Exh. B [Policy].) The Policy included the following terms, among others: · the workers compensation benefits payable under the Policy were those Defendant would be required to pay under the applicable workers compensation law, i.e., California law ([UMF No. 3] Landeros Decl. ¶ 3, Exh. B [Policy, ¶ C and ¶ 3.A]); · the premium basis for the Policy included payroll and all other remuneration paid or payable during the policy period for the services of (1) all your officers and employees engaged in work covered by this policy and (2) all other persons engaged in work that could make us liable under Part One (Workers Compensation Insurance) of the Policy ([UMF No. 5] Landeros Decl. ¶ 3, Exh. B. [Policy, Part Five, ¶ C]); and · the final premium was to be determined after the end of the Policy by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by the Policy. ([UMF No. 6] Erigero Decl. ¶ 3, Exh. A [Plaintiffs Complaint ¶ 8]; Landeros Decl. ¶ 3, Exh. B [Policy, Part Five, ¶ E].) Defendant argues that under California law, employers are required to secure workers compensation for employees only, not independent contractors. (Lab. Code §§ 3600, 3700.) Defendant relies on State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, where the Court of Appeal interpreted what appears to be the same the policy at play here to determine whether the defendant was obliged to pay insurance premiums for workers the defendant contended were independent contractors. In that matter, State Compensation Insurance Fund sued its former insureds to recover premiums allegedly due on a workers compensation insurance contract. The trial court granted defendants motion summary judgment on the ground they were not contractually obligated to pay the premiums for workers who were not eligible for workers' compensation benefits. In affirming the trial courts grant of the summary judgment, the Court of Appeal held that on summary judgment it was the moving defendants burden to establish that the individuals for whom the defendant contended no premiums was due were independent contractors under the Workers Compensation Act. The Court of Appeal also stated that the defendants had to also show that the individuals status as independent contractors absolved the defendant of contractual liability for premiums. (Id., 200.) The Court of Appeal first examined the S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341 (Borello) factors in order to determine whether the workers were employees or independent contractors. (Id., 202.) After a thorough analysis of the defendants evidence, the Court of Appeal determined that the workers were independent contractors, primarily focusing on the lack of control the defendants had over the workers. (Id., 203.) After the Court of Appeal examined the Borello factors and determined that the workers were independent contractors, it noted that [d]etermining the independent contractor status of the independents is not the end of our task. We must determine if [Defendant] had a contractual obligation to pay premiums for such independent contractors. (Id., 204.) The Court of Appeal held the answer there was, no. Defendants reliance on State Compensation Ins. Funds is unavailing, however. Defendant fails to establish with admissible evidence that the workers for which it is allegedly being charged premiums were independent contractors. As the Court of Appeal expressly stated in State Compensation Ins. Funds, supra, 32 Cal.App.4th at 200, the status of the independents under the Workers Compensation Act was part of the defendants burden on summary judgment. (Id., 200.) Defendant attempts to present Plaintiffs auditors report charging the contested premium, but, putting aside any foundational evidentiary issues presented, the audit, alone, does not offer evidence establishing that the premium being charged is based upon workers who are, in fact, not other persons engaged in work that could make [Plaintiff] liable under Part One of the policy. Moving defendant has simply failed to submit admissible evidence in this motion that it is being charged a premium for workers for whom no premium is owed. In reply, Defendant argues that the audit report relied on sworn statements of Defendant to the federal government of those employees independent contractor status. However, Defendant provided no evidence to support this assertion. Even if it did, in any event, the auditor cannot make a legal determination as to whether the workers are employees or contractors. The court must make this determination after examining the evidence based on the Borello factors, or any other applicable legal test. As such, the evidence is not sufficient to meet Defendants burden on summary judgment to show there are no triable issues of material fact as to whether it breached the contract to pay the premiums, as Defendant has not shown the workers were not eligible for workers compensation benefits. Next, Defendant argues it is not required to make an affirmative showing of independent contractor status because in State Compensation Ins. Fund, the Court of Appeal stated the premium obligation under the Policy is not defined to include all other persons for whom affirmative proof of independent contractor status. (State Compensation Ins. Funds, supra, 32 Cal.App.4th at 205.) However, the quotation is taken out of context, and does not take away from the fact that the status of the workers must first be determined. The Court of Appeal actually stated that Plaintiff cannot seek payment for workers who could not have subjected it to liability for benefits, because it did not define the premium obligation in the contract in this manner (in contrast, for example, with defining the premium obligation under section C(2) as "all other persons for whom you cannot supply affirmative proof of independent contractor status"). (Id., 205.) That Defendant was not contractually obligated to provide proof of the status of the workers is not the basis of the complaint here. In simple terms, the basis of Plaintiffs complaint is that Defendant failed to provide workers compensation benefits to its employees. Defendant, the party moving for summary judgment has the initial burden of proof to show these workers are independent contractors, and thus, it owes no duty to pay. It failed to meet its burden of proof. In the reply, Defendant repeatedly argues that it is Plaintiffs burden to show that the workers are employees and not independent contractors. While this may be Plaintiffs burden at trial, it is Defendants burden on this summary judgment motion. As Defendant failed to meet its burden, the burden did not shift to Plaintiff here. Conclusion Defendants motion for summary judgment is denied. Moving Party to give notice. Dated: August 20, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

Ruling

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.

Aug 19, 2024 |CVG21-0000494

MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.Case Number: CVG21-0000494Tentative Ruling: Plaintiff Members 1st Credit Union moves for an award of attorney’s fees in the amount of$23,666.00 pursuant to Civil Code Section 1717. In reviewing the file, the Court previously noted defects withthe pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, theCourt requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefingwhich has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees areaddressed below.Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, theEstate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of theEstate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicatethe sum of assets and liabilities of a decedent. Bright’s Estate v. Western Air Lines (1951) 104 Cal.App.2d 827,828. An estate can neither sue nor be sued. Id. at 829. For these reasons, Plaintiff was required to file suit againstthe Personal Representative of the Estate but did not do so.Additionally, the Estate was purportedly served on May 3, 2021 on Virgina E. Smith as the “Registered Agent”of the Estate. Estates do not have Registered Agents. The Court takes judicial notice of the filing in the Estateof Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of theEstate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the PersonalRepresentative at the time of service and had no authority to act on behalf of the Estate. A fact made clear byVirgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as PersonalRepresentative. The answer was made on behalf of herself as “an individual.” It also pointed out on multipleoccasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yetbeen appointed.Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smithas the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personaljurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improperservice of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus anyensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representativewas never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity asthe Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf andas the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, asan individual, and as against the Estate. Generally, one who is not named in the complaint is not a properdefendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in thecomplaint. Id. at 1146. A voluntary appearance is a waiver of any failure to name that party in the complaint.Farmers & Merchants Nat. Bank of Los Angeles v. Peterson (1936) 5 Cal.2d 601, 606. The Court finds that Ms.Smith voluntarily appeared as the Personal Representative at the trial on October 11, 2023, and therefore waivedany defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for thelack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived anydefects in service. A general appearance is the equivalent to service of the summons. Dial 800 v. Fesbinder(2004) 118 Cal.App.4th 32, 52. “A general appearance operates as a consent to jurisdiction of the person,dispensing with the requirement of service of process, and curing defects in service.” Id.; citing 2 Witkin, Cal.Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756). “A general appearance occurs when the defendant takespart in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates inan action in some manner which recognizes the authority of the court to proceed. It does not require any formalor technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry ofa judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Courtto proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, theCourt finds that Ms. Smith appeared as the personal representative and made a general appearance excusing theneed for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as thePersonal Representative as the Estate. The judgment is valid.Attorney’s Fees: By stipulation of the parties, the Court has already issued a judgment that attorney’s fees arerecoverable by Plaintiff. The attorney’s fees are based on a contract which was executed by the Decedent.Therefore, attorney’s fees will only be awarded against the Estate.Civil Code § 1717 entitles a prevailing party on a contract to “reasonable attorney’s fees” as fixed by the court.Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP § 1033.5(c)(5). “[T]he feesetting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expendedmultiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A courtassessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” (Ketchumv. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward bythe court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factorsthat may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved,2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) thecontingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324,348. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is thebest judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995)9 Cal.4th 738, 752.Here, the Declaration of Laurel Adams provides the evidentiary basis for the attorney’s fees. Ms. Adamsidentifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for thiscommunity and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that areasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and areview appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, theCourt finds the number of hours requested to be reasonable.

Ruling

HOMESPACE LLC VS. SHIRLEY HARTLING ET AL

Aug 20, 2024 |CGC23607398

Matter on the Discovery Calendar for Tuesday, Aug-20-2024, Line 4, PLAINTIFF HOMESPACE LLC'S Motion To Compel Production Of Documents And For Leave To File Amended Complaint. Continued to September 17, 2024 on the court's motion. No JPT available. (D525)

Ruling

ISIS ACUNA ESPINOZA, ET AL. VS LAX AUTO CENTER, LLC, ET AL.

Aug 20, 2024 |23STCV12234

Case Number: 23STCV12234 Hearing Date: August 20, 2024 Dept: 52 Tentative Ruling: Plaintiffs Isis Acuna Espinoza and Tiofilo Acuna Espinozas Motion for Attorneys Fees and Costs Plaintiffs Isis Acuna Espinoza and Tiofilo Acuna Espinoza move for attorney fees and costs from defendant LAX Auto Center, LLC. Civil Code sections 1780(e) and 1788.30(c) each permit a prevailing plaintiff to recover attorney fees. Plaintiffs contend they prevailed in this action based on their settlement with defendants LAX Auto Center, LLC, Ally Bank, and Great American Insurance Company. The settlement agreement, however, provides: Parties to bear their own costs. The Parties agree that, with the exception of the consideration delineated within this Agreement, each party, hereto, shall bear its own costs, expenses, and attorneys fees incurred in the Action, Arbitration and with this Agreement. (Barry Decl., ¶ 5, Ex. 5, ¶ B.5.) Plaintiffs thus agreed that LAX Auto Center, LLC and the other defendants would not pay any of the attorney fees or costs they claim via this motion. Plaintiffs reply argues, [D]efense counsel pulled a sleight of hand that Plaintiffs counsel missed, changing the language of the [CCP § 998] Offer in drafting the Settlement Agreement, despite saying it was based on the Offer. (Reply, p. 1.) Plaintiffs counsel states, When I reviewed the proposed settlement agreement, I did not notice that Mr. OConnor, despite his representation in the email, had changed the terms and removed Plaintiffs ability to recover costs from his client. (Barry Reply Decl., ¶ 3.) Plaintiffs fail to show this term of the settlement agreement is not enforceable. A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) California uses the objective theory of contract law, where it is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation. (Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1155, internal quotes and citations omitted.) [O]rdinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms. (Marin Storage & Trucking, Inc. v. Benco Contracting and Engineering, Inc. (2001) 89 Cal.App.4th 1042, 10491050.) The words of the contract are clear. It expressly precludes plaintiffs from seeking attorney fees incurred in the action and arbitration proceeding. Plaintiffs signed the settlement agreement. They therefore objectively manifested their consent to its terms. Moreover, defendants present evidence that after they drafted the settlement agreement, plaintiffs counsel sent an email on February 9, 2024, stating, [A]ttached are my edits. (Supp. OConnor Decl., ¶ 2, Ex. U, p. 3.) On February 15, plaintiffs counsel sent another email stating, The edits [by defendants] are fine, but is Paragraph 10 necessary? (Id., p. 2.) Counsel for the parties exchanged several other emails about the agreement. Ultimately, plaintiffs counsel replied, Approved. We will have our client sign as well and send you the signed copy. (Id., p. 1.) Plaintiffs counsel had an opportunity to read and revise the proposed settlement agreement. They did revise the agreementbut not the term providing the parties would bear their own costs. Plaintiffs fail to show a basis for refusing to enforce part of the contract because plaintiffs counsel did not notice the provision stating, in bold and italics, Parties to bear their own costs. (Barry Decl., Ex. 5, ¶ B.5.) Disposition Plaintiffs Isis Acuna Espinoza and Tiofilo Acuna Espinozas motion for attorney fees and costs is denied. Plaintiffs shall not recover any costs or attorney fees from defendants. Order to Show Cause Re: Dismissal Generally, each plaintiff or other party seeking affirmative relief must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed. (Cal. Rules of Court, rule 3.1385(b).) The parties settled the entire case over 45 days ago. The court therefore will set a hearing ordering plaintiff to show good cause why the case should not be dismissed. The court hereby sets an order to show cause re: dismissal (settlement) for October 7, 2024, at 8:30 a.m.

Ruling

FCS059449 - SAUVAGEAU, DAN, ET AL V ADAMS, SETH, ET AL (DMS)

Aug 20, 2024 |FCS059449

FCS059449The ADAMS’ Motion to Compel SAUVAGEAU’s Further Responses to Form andSpecial Interrogatories, Requests for Admission, and Requests for ProductionTENTATIVE RULINGDefendants SETH ADAMS and JESSICA ADAMS (the “ADAMS”) move to compelPlaintiff DAN SAUVAGEAU (“SAUVAGEAU”) to further respond to Defendants’requests for production, requests for admission, and form and special interrogatoriesserved October 11, 2023.The court has not received opposition to the motion.Meet and Confer Efforts. The court first considers the adequacy of the parties’ effortsto meet and confer to work these issues out before resorting to a motion to compelfurther responses. The trial court has discretion in determining whether adequate meetand confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998)67 Cal.App.4th 424 [factors include complexity of discovery issues, history of counsel inprior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline tofile motion was not sufficient attempt].)Code of Civil Procedure section 2016.040 requires a declaration “showing a reasonableand good faith attempt at an informal resolution of each issue presented by the motion”to compel. The ADAMS’ counsel’s declaration accompanying the motion to compelstates that counsel sent the discovery requests at issue on October 11, 2023, receivedobjection-only responses on December 4, 2023, and received material responses onFebruary 2, 2024. (Declaration of Leslee Carroll in Support of Motion at ¶¶ 2-3, 5-8,Exhibits A-E.) The ADAMS sent a meet and confer letter on March 1, 2024. (Id. at ¶10, Exhibit F.) SAUVAGEAU responded and the parties engaged in some discussionthat resulted in SAUVAGEAU providing amended responses on March 22, 2024. (Id. at¶ 13.) The ADAMS considered the amended responses still unsatisfactory and sentSAUVAGEAU another meet and confer letter on April 12, 2024. (Id. at ¶ 19, Exhibit H.)SAUVAGEAU’s counsel responded but no material discussions took place; the ADAMSsent another meet and confer letter on May 17, 2024. (Id. at ¶¶ 20-26, Exhibits I-L.)SAUVAGEAU’s counsel again did not materially respond and expressed that he felt theresponses were adequate. (Id. at ¶ 27, Exhibit M.) The instant motion was filed on May20, 2024.The court finds that Defendants’ efforts to meet and confer were adequate as theparties appear to have reached an impasse.Special Interrogatories. Special Interrogatories #1, 4, 7, 10, 13, 16, 19, 21-22, 24-25,27, 37, 40, 43, 47, 73, 89, and 93. SAUVAGEAU’s several-page narrative laying out hisperception of all that transpired between the parties and his theory of the case, with alist of witnesses at the end, is not a straightforward answer to the ADAMS’ variouscontention interrogatories seeking facts supporting particular aspects of the case.SAUVAGEAU must further respond.Special Interrogatories #2, 5, 8, 11, 14, 17, 41, 44, 48, 51, 55, 58, 61, 74, and 113.SAUVAGEAU’s witness list mentioned above is vague, including an unnamed “buildinginspector.” SAUVAGEAU must further respond.Special Interrogatory #38. SAUVAGEAU’s statement that he, the ADAMS, Cross-Defendant MARC PASQUINI, and “all the workers on site” and “building inspector” arewitnesses to harm is too vague. SAUVAGEAU must further respond.Special Interrogatories #3, 6, 9, 12, 15, 18, 39, 42, 45, 49, 52, 56, 59, 62, 75, 80, 82, 84,86, 88, and 114. SAUVAGEAU “identifies all documents produced to Defendantspreviously and concurrently herewith” in response to these requests for documentssupporting various other responses, each concerning particular topics. This isunacceptably vague and lacking particularity. SAUVAGEAU must further respond.Special Interrogatories #28-30. SAUVAGEAU is not clear about what substantiallyperformed work was paid or unpaid and gives a list “including but not limited to” someparticular items that were “changed and/or unpaid.” This is too vague. SAUVAGEAUmust further respond.Special Interrogatories #31-33. SAUVAGEAU’s response that the ADAMS hiredworkers without his authorization is not responsive to these questions about the workershe employed. SAUVAGEAU must further respond.Special Interrogatories #34-36. SAUVAGEAU does not give intelligible responses. Tothe interrogatory asking for vendors and costs he states he cannot identify persons; tothe one asking for persons he states he cannot identify documents. He again directsthe ADAMS to every document produced, with no particularity. SAUVAGEAU mustfurther respond.Special Interrogatories #46, 50, 53-54, 57, 60. SAUVAGEAU’s reference to alldocuments produced is vague. SAUVAGEAU must further respond.Special Interrogatory #72. SAUVAGEAU’s response that he requires an attorney tounderstand the phrase “work outside the contract” is unresponsive. SAUVAGEAU mustfurther respond.Special Interrogatories #76-78. SAUVAGEAU’s statement that he did not performdefective work suffices to answer these questions contingent on the existence ofdefective work. He need not further respond.Special Interrogatory #90. The ADAMS ask SAUVAGEAU how much profit he expectedto make off particularly named items allegedly taken out of the scope of work. He stateshe generally gets 10% of the contract price and says the ADAMS removed $75,000 ofwork. This is vague. SAUVAGEAU must further respond.Special Interrogatories #96-98. SAUVAGEAU’s narrative and reference to alldocuments are again vague. He must further respond.Special Interrogatories #99, 101-104, 106-108. The ADAMS ask SAUVAGEAU forevery employee and subcontractor that worked on the project, and for thesubcontractors’ scopes of work and outstanding pay owed, with supporting witnessesand documents. He refers them to his narrative and witness list, which is notresponsive. He must further respond.Special Interrogatory #109. The ADAMS ask SAUVAGEAU to tell them how hedetermined the project was worth $750,000 in county planning documents. He says itwas an estimate. That is a responsive statement. SAUVAGEAU need not furtherrespond.Form Interrogatories. Form Interrogatory #309.1. SAUVAGEAU’s response to thisinterrogatory asking after additional damages is not specific enough. He must furtherrespond.Form Interrogatory #314.1. SAUVAGEAU’s reference to the contracts attached to hiscomplaint is not responsive. SAUVAGEAU must further respond.Form Interrogatories #314.2-314.3. SAUVAGEAU’s narrative does not answerparticulars about when alleged breaches occurred. He must further respond.Form Interrogatories #314.5-314.6. SAUVAGEAU says he does not know ifa*greements were unenforceable or unambiguous because he is not a lawyer. This isnot responsive. SAUVAGEAU must further respond.Form Interrogatory #314.7. SAUVAGEAU’s reference to attached contracts isinsufficiently particular and unresponsive. SAUVAGEAU must further respond.Form Interrogatory #321.1. SAUVAGEAU’s statement that he had no supervisingemployees is responsive to this interrogatory. He need not further respond.Form Interrogatory #321.2. SAUVAGEAU’s witness list is not responsive to thisinterrogatory. He must further respond.Form Interrogatories #321.3-321.4. SAUVAGEAU’s reference to all produceddocuments is not responsive. He must further respond.Form Interrogatory #321.5-321.6. SAUVAGEAU’s reference to his complaint andattached contracts, his narrative, and “all documents” is vague. He must furtherrespond.Form Interrogatory #321.9. SAUVAGEAU’s reference to “all plan specs producedherewith” is vague. He must further respond.Form Interrogatory #324.1, 325.1-352.4. SAUVAGEAU’s narrative is not specificenough to respond to these interrogatories and does not identify witnesses anddocuments as requested. SAUVAGEAU must further respond.Form Interrogatory #326.1. SAUVAGEAU’s narrative is unresponsive to thisinterrogatory concerning qualifications on admissions. He must further respond.Requests for Admission #7. The ADAMS ask SAUVAGEAU to admit the contractbetween them was “fixed-price.” He says he cannot understand the question but thenalso says it was “clearly” not a fixed-price contract. He must further respond to clarifyhis position.Requests for Production. SAUVAGEAU must further respond to Requests #8, 9, 14,and 17 produce responsive documents in his possession if any remain. However, withregard to #10 and 15 SAUVAGEAU states no responsive documents have ever existed,which is a sufficient response and he need not further respond.Sanctions. Code of Civil Procedure sections 2030.300, subdivision (d)[interrogatories], 2031.310, subdivision (h) [inspection demands], and 2033.290,subdivision (d) [requests for admissions] require sanctions against a party thatunsuccessfully makes or opposes a motion to compel further responses tointerrogatories, unless the court finds that the losing party acted with substantialjustification or that other circ*mstances weigh against the imposition of sanctions.SAUVAGEAU’s responses were frequently vague and unresponsive. Sanctions areimposed in the sum of $3,000.Conclusion. The ADAMS’ motion to compel further responses is granted with regardto all form interrogatories at issue except #321.1.The motion is granted with regard to the sole request for admission at issue, #7.The motion is granted with regard to all special interrogatories at issue except #76-78and 109.The motion is granted with regard to requests for production #8, 9, 14, and 17.The motion is otherwise denied.SAUVAGEAU is ordered to pay sanctions in the sum of $3,000 within thirty days of thedate of this order.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)

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