Midland Funding, Llc As Assignee Of Credit One Bank, N.A. , filed a(n) Breach of Contract - Commercial case represented by Mccullough, Jeremy T , Whiddon, James G, Iii. , against Andrews, Andre , in the jurisdiction of Dekalb County, GA, . Dekalb County, GA Superior Courts Magistrate with Anderson, Berryl A presiding.
Anderson, Berryl A
Dekalb County, GA
Breach of Contract
Midland Funding, Llc As Assignee Of Credit One Bank, N.A.
Mccullough, Jeremy T
Whiddon, James G, Iii.
| Date | Type | Description |
|---|---|---|
| July 19, 2024 | Docket Event | Peremptory |
| July 17, 2024 | Docket Event | DISMISSAL WITHOUT PREJUDICE |
| August 03, 2020 | Docket Event | Affidavit of Non Service Affidavit of Non-Service-No answer |
| June 11, 2020 | Docket Event | Statement of Claim |
| June 11, 2020 | Docket Event | Magistrate Civil Service |
Case Number: 24STCV12456 Hearing Date: August 29, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING STEVEN YUN, Plaintiff, v. JOANNE KIM, et al., Defendants. Case No: 24STCV12456 Hearing Date: August 29, 2024 Calendar Number: 6 Defendants Joanne Kim (Kim) and Youngjun Go (Go) (collectively, Defendants) demur to the First Amended Complaint (FAC) filed by Plaintiff Steven Yun dba Lohi General Construction (Plaintiff). The Court SUSTAINS the demurrer to Plaintiffs first, second, and third claims WITH LEAVE TO AMEND. Plaintiff shall have 20 days to file an amended complaint. Background This is a construction contract case. The following facts are taken from the allegations of the FAC, which the Court accepts as true for the purposes of the demurrer. Plaintiff alleges that he is a general contractor with a C33 license and a license number of 1088199 with the City of Los Angeles, the County of Los Angeles. On December 5, 2023, Plaintiff entered into a written agreement whereby Plaintiff agreed to remodel Defendants home in exchange for $315,000.00, including labor and materials. Defendants paid Plaintiff a total of $200,000.00 in installment payments. Plaintiff alleges that he completed 80 percent of the construction, leaving only 20 percent of the construction to be completed. Plaintiff alleges that Defendants owe him the remaining $115,000.00 under the agreement. Plaintiff alleges that Defendant Go engaged in a course of conduct intended to harass, humiliate, and insult Plaintiff by shouting fucking you during the construction of the house. (Complaint ¶ 12.) Plaintiff alleges that Defendants owned a large dog which bit Plaintiff. Plaintiff appears to allege that Defendants made false representations to Plaintiff, but it is unclear what the content of the alleged representations is. Plaintiff filed this action on May 17, 2024. The operative Complaint is now the FAC against Defendants, which raises claims for (1) breach of contract; (2) slander per se; and (3) dog bit statute, Civil Code, section 3342. Request for Judicial Notice The Court grants Defendants request for judicial notice and takes notice of the Verified Certificate of Non-Licensed Status for Steven Youngsuk Yun dba Lohi General Construction as a public record. Legal Standard As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. ( Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. ( E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. ( Ibid. ) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. ( Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. ( Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. ( Ibid .; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. ( Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Discussion Breach of Contract First Claim To state a cause of action for breach of contract, a plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. ( Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. ( Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) To protect the public, the Contractors' State License Law (CSLL; Bus. & Prof. Code, § 7000 et seq.) imposes strict and harsh penalties for a contractor's failure to maintain proper licensure. Among other things, the CSLL states a general rule that, regardless of the merits of the claim, a contractor may not maintain any action, legal or equitable, to recover compensation for the performance of any act or contract unless he or she was duly licensed at all times during the performance of that act or contract. ( MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 418, quoting Bus. & Prof. Code, § 7031, subd. (a).)) Defendants provide a Verified Certificate of Non-Licensed Status for Steven Youngsuk Yun dba Lohi General Construction, which is judicially noticeable as a public record. The certificate indicates that no record was found to indicate that Plaintiff was licensed as a California contractor under the laws administered by the Contractors State License Board for the period of January 1, 2022 to July 9, 2024. Plaintiff alleges that he entered into the contract that gives rise to this case on December 5, 2023. Thus, Plaintiff was not licensed for the period when the contract was performed and when the work occurred. Because Plaintiff was an unlicensed contractor, Plaintiff cannot maintain his claim for breach of contract. The Court therefore sustains the demurrer to this claim. Plaintiff does not give any basis on which he can overcome this legal problem. However, in an abundance of cautiongiven Californias liberal rules relating to leave to amendthe Court will grant Plaintiff an opportunity to amend to overcome this problem. Accordingly, the Court grants Plaintiff leave to amend. Slander Per Se Second Claim The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff. ( John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 [quotation marks and citation omitted].) Defamatory statements can be either libel or slander. (Civ. Code, § 44.) Libel is written communication that is false, that is not protected by any privilege, and that exposes a person to contempt or ridicule or certain other reputational injuries. (Civ. Code §45.) Slander is a false unprivileged oral communication attributing to a person specific misdeeds or certain unfavorable characteristics or qualities or uttering certain other derogatory statements regarding a person, such as one which by natural consequence causes actual damage. (Civ. Code § 46.) A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and require no proof of actual damages. ( Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.) A statement is slander per se if it: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [or] 4. Imputes to him impotence or a want of chastity[.] (Civ. Code, § 46.) Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.) The FAC does not identify an allegedly false statement of fact that Defendants made about Plaintiff. Plaintiff alleges that Go shouted fucking you near Plaintiff and other workers. This is not a statement of fact. Additionally, the FAC does not allege that Gos exclamation was about Plaintiff. Nor does the FAC allege that Gos statement had a natural tendency to cause damage or fell within one of the statutory categories of slander per se. The Court therefore sustains the demurrer to this claim with leave to amend. Dog Bite Statute Third Claim The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner. (Civ. Code, § 3342, subd. (a).) Defendants argue that Plaintiff was an unlicensed contractor and was therefore unlawfully on Defendants property. Plaintiff has alleged that Defendants invited him onto their property to work on their house. Defendants provide no citation to authority to support the assertion that an unlicensed contractor cannot lawfully enter private property when invited to do work there. It is not clear why Plaintiffs license status is relevant to this claim. Defendants argue that Plaintiff has not alleged that he was bitten while he was lawfully on Defendants property because the FAC does not mention whether the dog bite occurred during Plaintiffs work on the property, or after the contract had ended. The Court agrees. Plaintiff must allege when the bite occurred in order to clarify whether Plaintiff was lawfully on Defendants property at the time of the bite. The Court therefore sustains the demurer to this claim with leave to amend.
Case Number: 21SMCV00498 Hearing Date: August 27, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 27, 2024 CASE NUMBER 21SMCV00498 MOTION Demurrer MOVING PARTIES Defendants David Fannon and Seth Needle OPPOSING PARTY Plaintiff Myriad Pictures, Inc. MOTION This case arises from a dispute concerning the production and distribution of the fourth movie in the Jeepers Creepers movie franchise. On June 18, 2024, Plaintiff Myriad Pictures, Inc. (Plaintiff) filed the Third Amended Complaint (TAC) against Defendants Infinity Films Holdings, LLC; Michael Ohoven; Brandon Farm, LLC; Jake Seal; Screen Media Ventures, LLC (SMV); Chicken Soup for the Soul Entertainment, Inc.; [1] Independent Frame, LLC; Orwo Film Distribution, LLC; PVS Studios, LLC; David Fannon; Seth Needle; and the Estate Mark Damon, alleging five causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) intentional interference with contractual relations; (4) fraudulent concealment; and (5) declaratory relief. Defendants David Fannon (Fannon) and Seth Needle (Needle) (together, Moving Defendants) now demur to the third, fourth, and fifth causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action, pursuant to California Code of Civil Procedure section 430.10, subdivision (e). The first two causes of action are not alleged as to Moving Defendants. Plaintiff opposes the demurrer. ANALYSIS 1. DEMURRER It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint. ( Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts [a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context. ( 290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc . (2018) 26 Cal.App.5th 270, 280 [in considering the merits of a demurrer, however, the facts alleged in the pleading are deemed to be true, however improbable they may be].) Further, in ruling on a demurrer, a court must liberally construe the allegations of the complaint with a view to substantial justice between the parties. (See Code Civ. Proc., § 452.) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. ( Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) In summary, [d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. ( Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) A. FAILURE TO STATE A CAUSE OF ACTION Moving Defendants demur to all three causes of action alleged against them on the grounds that the statute of limitations has passed. The statute of limitations for fraud and causes of action arising out of fraud is three years. (Code Civ. Proc., § 338, subd. (d); see also Romano v. Wilbur Ellis & Co. (1947) 82 Cal.App.2d 670, 674.) Here, the conduct is alleged to have occurred in 2019. (TAC ¶ 33.) Yet, the Third Amended Complaint that names Moving Defendants was not filed until June 18, 2024, more than three years later. Plaintiff argues that the demurrer should be overruled because (1) Plaintiff did not discover the facts giving rise to the causes of action against moving defendants until SMVs production of foreign distribution agreements on October 16, 2023; and (2) the TAC relates back to the original complaint, which was filed on March 16, 2021. Discovery Rule An important exception to the general rule of accrual is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. ( Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (hereafter Fox ).) A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements. ( Ibid. ) However, the discovery rule allows accrual of the cause of action even if the plaintiff does not have reason to suspect the defendants identity. ( Ibid. ) The discovery rule does not delay accrual in that situation because the identity of the defendant is not an element of a cause of action. ( Ibid. ) Plaintiff contends in opposition [2] that although it was aware of Moving Defendants names and identities generally, it did not discover the facts giving rise to the causes of action against Moving Defendants until October 16, 2023, when SMV produced (1) foreign distribution agreements signed by Fannon demonstrating Fannons acquisition of foreign distribution rights for SMV and Fannons approval of foreign distribution agreements; and (2) Needles production services on Jeepers Creepers: Reborn . However, the TAC does not allege any facts about the October 16, 2023 discovery of facts to overcome the apparent statute of limitations problem on the face of the complaint. In order to rely on the discovery rule for delayed accrual of a cause of action, [a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. ( Fox, supra, 35 Cal.4th at p. 808.) Therefore, the Court finds that Discovery Rule does not save the Plaintiff from demurrer. Relation Back When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.] (Code Civ. Proc., § 474.) A plaintiff's ignorance must be genuine and based on a lack of knowledge of the defendant's connection with the case. ( Organizacion Comunidad De Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 794.) An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar, if it (1) rests on the same general set of facts as the original complaint and (2) refers to the same accident and the same injuries as the original complaint. ( San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1549.) The relation-back doctrine typically applies where an amendment identifies a defendant previously named as a Doe defendant or adds a new cause of action asserted by the same plaintiff on the same general set of facts. ( Id. at pp. 1549-1550 [cleaned up].) The original complaint, filed March 16, 2021, alleges four causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) intentional interference with contractual relations; and (4) fraudulent concealment. Although the original complaint does not name Moving Defendants as defendants, it does include the following allegations: 26. Knowing that Myriad controlled distribution rights to all sequels, and given that Screen Media had profited over $1 million from its distribution of Jeepers Creepers III, in April 2018, David Fannon, President, and Seth Needle, the Senior Vice President of Acquisitions for Screen Media, made an offer to Myriad/Infinity to distribute Jeepers Creepers IV in the United States. The terms of the offer from Screen Media included a $900,000 up-front advance payment (the deal with Screen Media for Jeepers Creepers III did not include an advance). Screen Media was very eager to distribute Jeepers Creepers IV and followed up with Myriad and Infinity several times regarding its offer. Ohoven advised Needle that they could not commit to any distribution deal with Screen Media at that time given irregularities with Screen Medias accountings on Jeepers Creepers III. Ohoven said that he was unwilling to discuss any deal with Screen Media until the accounting gets sorted because he wanted to see that the equity investors on Jeepers Creepers III would be paid. These issues with Screen Media were not timely resolved and Myriad/Infinity were eventually forced to audit Screen Media on Jeepers Creepers III. [&] 59. Screen Media was fully aware of Myriads rights. Among other things, Myriad negotiated a license of certain U.S. rights to Jeepers Creepers III to Screen Media in or about February 2017. Further, in 2018, while Myriad was attempting to develop Jeepers Creepers IV with Ohoven/Infinity, Seth Needle, on behalf of Screen Media engaged in discussions with Kirk DAmico, on behalf of Myriad, to distribute Jeepers Creepers IV in the United States. On or about April 3, 2018, Screen Media presented a written offer to Myriad and Infinity to distribute Jeepers Creepers IV in the United States. Thereafter, Seth Needle continued to follow up with DAmico concerning Screen Medias offer and to express Screen Medias continued interest in distributing the picture in the United States. DAmico sent a script treatment to Seth Needle of Screen Media in November 2018. Even beyond that, on or about November 22, 2019, DAmico expressly informed Mark Damon of Screen Media that Myriad still held worldwide distribution rights for Jeepers Creepers sequels and warned him to ensure that Screen Media did not interfere with such rights. DAmico was clear that Myriads exclusive rights were subject to a right of first negotiation and last refusal, which rights had not yet been triggered. 60. Myriad is informed and believes, and based thereon alleges that despite Screen Medias knowledge and understanding that Myriad had agreements with Frame, Infinity, and Brandon Farm regarding exclusive distribution rights to Jeepers Creepers projects, in or about 2019 Screen Media sought and unlawfully obtained Myriads distribution rights to Jeepers Creepers IV and Jeepers Creepers V. Indeed, Variety reported on February 24, 2021 that worldwide distribution rights in the franchise had been sold to Screen Media. During a recent conversation between Seth Needle and Kirk DAmico, Needle admitted that Screen Media already had a distribution agreement in place by February 1, 2021. [&] 89. On information and belief, Seth Needle, Dave Fannon and/or Mark Damon of Screen Media (the Screen Media Employees) formed a conspiracy with Ohoven and/or Seal and their respective companies, Infinity, Brandon Farm, Orwo Distribution and PVS in or about the Fall of 2019 to defraud Myriad out of its worldwide distribution rights to Jeepers Creepers IV and V. (Complaint, ¶¶ 26, 59-60, 89.) The First Amended Complaint (FAC) filed on July 7, 2021 alleges the same four causes of action and contains substantially the same allegations in paragraphs 27, 60-61, and 90. The Second Amended Complaint (SAC) filed on July 26, 2023 adds the fifth cause of action for declaratory relief, and still does not name Moving Defendants as defendants, but contains substantially the same allegations. The Third Amended Complaint (TAC) formally names Needle and Fannon and contains the following allegations: 10. Defendant David Fannon (Fannon) is an individual and on information and belief is a resident of Los Angeles, California. Fannon is CSSEs executive vice president and the president of Screen Media. 11. Defendant Seth Needle (Needle) is an individual and on information and belief is a resident of Los Angeles, California. Needle was an executive producer on the motion picture, Jeepers Creepers: Reborn and was the executive vice president of global acquisitions and co-productions at Screen Media. [&] 30. Knowing that Myriad controlled distribution rights to all sequels, and given that Screen Media/CSSE had profited over $1 million from their distribution of Jeepers Creepers III, in April 2018, Fannon, President, and Needle, the Senior Vice President of Acquisitions for Screen Media, made an offer to Myriad/Infinity to distribute Jeepers Creepers IV in the United States. The terms of the offer from Screen Media included a $900,000 up-front advance payment (the deal with Screen Media for Jeepers Creepers III did not include an advance). Screen Media/CSSE were very eager to distribute Jeepers Creepers IV and followed up with Myriad and Infinity several times regarding Screen Medias offer. Ohoven advised Needle that they could not commit to any distribution deal with Screen Media/CSSE at that time given irregularities with Screen Medias accountings on Jeepers Creepers III. Ohoven said that he was unwilling to discuss any deal with Screen Media/CSSE until the accounting gets sorted because he wanted to see that the equity investors on Jeepers Creepers III would be paid. These issues with Screen Media/CSSE were not timely resolved and Myriad/Infinity were eventually forced to audit Screen Media/CSSE on Jeepers Creepers III. [&] 62. On February 16, 2017, Myriad, Infinity, and Brandon Farm entered into the Term Sheet which granted Myriad the right to act as the exclusive sales agent throughout the world for any subsequent Jeepers Creepers productions, such as sequels, prequels, remakes, etc. 63. Screen Media/CSSE and in particular its officers, employees, and representatives Fannon, Needle, and Damon (collectively, Fannon, Needle, and Damon are the Screen Media Employees) were fully aware of Myriads rights. Among other things, Myriad negotiated a license of certain U.S. rights to Jeepers Creepers III to Screen Media in or about February 2017. Further, in 2018, while Myriad was attempting to develop Jeepers Creepers IV with Ohoven/Infinity, Seth Needle, on behalf of Screen Media engaged in discussions with Kirk DAmico, on behalf of Myriad, to distribute Jeepers Creepers IV in the United States. On or about April 3, 2018, Screen Media presented a written offer to Myriad and Infinity to distribute Jeepers Creepers IV in the United States. Thereafter, Seth Needle continued to follow up with DAmico concerning Screen Medias offer and to express Screen Medias continued interest in distributing the picture in the United States. DAmico sent a script treatment to Seth Needle of Screen Media in November 2018. Even beyond that, on or about November 22, 2019, DAmico expressly informed Mark Damon of Screen Media that Myriad still held worldwide distribution rights for Jeepers Creepers sequels and warned him to ensure that Screen Media did not interfere with such rights. DAmico was clear that Myriads exclusive rights were subject to a right of first negotiation and last refusal, which rights had not yet been triggered. 64. Myriad is informed and believes, and based thereon alleges that despite Screen Media/CSSE and the Screen Media Employees knowledge and understanding that Myriad had agreements with Frame, Infinity, and Brandon Farm regarding exclusive distribution rights to Jeepers Creepers projects, in or about 2019 Screen Media/CSSE with the participation and consent of the Screen Media Employees sought and unlawfully obtained Myriads distribution rights to Jeepers Creepers IV and Jeepers Creepers V. Indeed, Variety reported on February 24, 2021 that worldwide distribution rights in the franchise had been sold to Screen Media. During a recent conversation between Seth Needle and Kirk DAmico, Needle admitted that Screen Media/CSSE already had a distribution agreement in place by February 1, 2021. 65. Screen Media/CSSE and the Screen Media Employees unlawful conduct has prevented Myriad from exercising its exclusive distribution rights to Jeepers Creepers IV and Jeepers Creepers V. 66. Because Screen Media/CSSE and the Screen Media Employees knew that Myriad had exclusive distribution rights to the Jeepers Creepers projects, they took those rights with the intention of disrupting Myriads ability to exercise its rights and to perform under the Term Sheet and the CoFinance Agreement. 67. As a direct and proximate result of Screen Media/CSSE and the Screen Media Employees wrongful conduct, Myriad has been damaged in at least the sum of $2,000,000, with the exact amount to be proven at time of trial. 68. Screen Media/CSSE and the Screen Media Employees conduct was a substantial factor in causing Myriads harm. (TAC ¶¶ 10-11, 30, 62-68.) Paragraph 30 of the TAC is substantially similar to paragraph 26 of the original Complaint, TAC ¶¶ 63-64 are substantially similar to Complaint ¶¶ 56-60. Similarly, TAC ¶ 62 is substantially similar to Complaint ¶ 24, which alleges: 24. On February 16, 2017, Scoundrel on the one hand and Infinity and Brandon Farm on the other hand as Producer executed the Term Sheet. Among other things, the Term Sheet provided that: (i) Scoundrel shall be the sole and exclusive sales representative of the Picture in the Territory [i.e., the world] for the purposes of licensing Distribution Rights in the Picture to third parties. [Term Sheet, ¶1]. And TAC ¶¶ 65-68 are substantially similar to Complaint ¶¶ 61-64. Thus, the complaints rest on the same general set of facts and refer to the same incident and injuries. However, [a]s a general rule, an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. ( Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503.) But where an amendment does not add a new defendant, but simply corrects a misnomer by which an old defendant was sued, case law recognizes an exception to the general rule of no relation back. ( Ibid. ) Here, Moving Defendants were not substituted in place of the originally named Doe defendants. Instead, Moving Defendants were newly named, and the original Doe defendants 1-20 remain in the TAC. Therefore, the Court cannot say that the new addition of Moving Defendants relates back to the original complaint. 2. LEAVE TO AMEND A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc . (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc . , supra , 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend. (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) Here, Plaintiff contends it can add facts that it did not discover the extent of Moving Defendants involvement in the alleged scheme until October 16, 2023. In the alternative, and on the same basis, Plaintiff could theoretically substitute Moving Defendants in place of the previously named Doe Defendants. Therefore, the Court grants Plaintiff leave to amend. CONCLUSION AND ORDER For the reasons stated, the Court sustains Moving Defendants Demurrer to the Third, Fourth, and Fifth causes of action with leave to amend. Further the Court orders Plaintiff to file and serve a fourth amended complaint in conformance with this ruling on or before September 24, 2024. Moving Defendants shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: August 27, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court [1] Chicken Soup for the Soul Entertainment, Inc. and Screen Media Ventures, LLC filed a Notice of Stay (Bankruptcy) on July 8, 2024, and as such, the case is stayed as to those defendants. [2] The Court does not consider the Declaration of Robert Paredes in connection with the demurrer, as the Court may not generally consider extrinsic evidence when ruling on a demurrer.
24CV00877 REXEL, USA v. HIGH PERFORMANCE ELECTRIC, INC. MOTION FOR ENTRY OF JUDGMENT (UNOPPOSED) Plaintiff’s unopposed motion is granted. I. BACKGROUND Plaintiff brings this motion for entry of judgment pursuant to stipulation and Code of Civil Procedure section 664.6. On March 27, 2024, plaintiff filed a complaint for breach of contract, account stated, and open book account against defendants High Performance Electric, Inc, Daniel Lozano, and Michelle Lozano (“defendants”) in the amount of $26,295.75 plus prejudgment interest at the rate of 18% per year from November 15, 2021, costs, and reasonable attorneys’ fees in the amount of $3,500.00. The parties entered into a stipulation in May 2024, agreeing the amount due and owing by defendants was $19,775.75, plus interest on this amount at the rate of 18% from November 15, 2021, $2,500.00 in attorneys’ fees and costs per a memorandum of costs to be filed. (Ex. A to Dec. of Angelo) Pursuant to the stipulation, “no judgment shall be entered and the complaint shall be dismissed with prejudice provided that defendants pay to plaintiff the principal sum of $19,775.75 in installments of $2,500.00/month starting June 15, 2024, and continuing on the 15th day of each successive month until November 15, 2024, followed by a seventh and final payment of $4,775.75 on December 15, 2024. Defendants failed to make their first June 15 payment. (Dec. of Angelo at ¶ 6.) On June 19, 2024, counsel for plaintiff advised defendants, per email as required by the stipulation, of their non-compliance and provided them ten days to cure. (Dec. of Angelo, Ex. C.) No payment has been received. (Dec. of Angelo at ¶ 8.) Plaintiff now requests judgment be entered against High Performance Electric, Inc., Daniel Lozano, and Michelle Lozano in the amount of $32,912.40. Included in this amount are the costs outlined in the concurrently filed memorandum of costs in the amount of $3,220.90, which is comprised of $2,500.00 for attorneys’ fees, $430.00 in motion fees, $269.00 in service of process fees, and $21.90 in electronic filing fees. Page 1 of 3 II. LEGAL STANDARD “Where the statutory requirements are met, the court may, upon motion, enter judgment pursuant to the terms of a settlement agreement.” The court can enter judgment where parties to pending litigation stipulate to a settlement either orally before the court or in writing, signed by the parties or their counsel outside court. (Weil & Brown Civ. Pro. Before Trial (TRG 2023) § 12:950-12:952.) “To be enforceable, under CCP §664.6, any written settlement agreement outside of court must be signed by the parties or their counsel.” (Id. at § 12:953.) Cal Code Civ Proc § 664.6 Judgment pursuant to terms of settlement provides: (a) If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. (Emphasis added.) (b) For purposes of this section, a writing is signed by a party if it is signed by any of the following: (1) The party. (2) An attorney who represents the party. (3) If the party is an insurer, an agent who is authorized in writing by the insurer to sign on the insurer’s behalf. (c) Paragraphs (2) and (3) of subdivision (b) do not apply in a civil harassment action, an action brought pursuant to the Family Code, an action brought pursuant to the Probate Code, or a matter that is being adjudicated in a juvenile court or a dependency court. (d) In addition to any available civil remedies, an attorney who signs a writing on behalf of a party pursuant to subdivision (b) without the party’s express authorization shall, absent good cause, be subject to professional discipline. 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.) III. DISCUSSION In this case, the parties entered into a stipulated settlement agreement.(Ex. A to Dec. of Angelo.) All three defendants signed the agreement. Pursuant to the stipulation, defendants Page 2 of 3 acknowledged they owed $19,775.75, plus interest in the amount of 18% per annum from November 15, 2021, $2,500.00 in attorney fees, and costs per memorandum of costs to be filed in the event of default. (Stip. at ¶1.) The parties stipulated the court would retain jurisdiction pursuant to Code of Civil Procedure section 664.6. The stipulation stated that entry of judgment shall not occur as long as defendants remained out of default. Default is defined as whether an installment payment remains unpaid 10 days after written notice of the failure to make payment is sent by email to Michelle Lozano. If such default is not cured … without further notice of hearing, judgment shall be entered in favor of plaintiff and against defendants for the full amount of the debt less any credits. (Stip. at ¶ 3.) Plaintiff demonstrated defendants failed to make payments as they agreed to and did not cure their default after having been notified of the default by email, as outlined in the stipulation. (Ex. C to Dec. of Angelo.) Plaintiff also filed a memorandum of costs per the stipulation. Defendants did not oppose or respond to this motion. Therefore, the court finds that default should be entered against defendants pursuant to the stipulation and Code of Civil Procedure section 664.6. Judgment is entered against defendants High Performance Electric, Inc., Daniel Lozano, and Michelle Lozano in the amount of $32,912.40. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 3 of 3
Case Number: 21STCV40588 Hearing Date: August 26, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 HEUNGSEOK SHIN, an individual Plaintiff, v. BYEONG YEL CHO, aka, PICK HUN, an individual; and DOES 1 through 20, inclusive, Defendants . Case No.: 21STCV40588 Hearing Date: August 26, 2024 Trial Date: None. [TENTATIVE] RULING RE: Defendants Motion to Set Aside Default and Default Judgment Background On November 4, 2021, Plaintiff Heungseok Shin (Shin) filed a complaint against Defendants Byeong Yel Cho, aka Pick Hun (Cho), and Does 1 through 20 alleging (1) breach of contract; (2) fraud; (3) constructive trust; (4) quiet title; and (5) specific performance on the grounds that Shin conveyed title to 2106 Greenwood Court, Fullerton, CA 92833 (the Property) to Cho in exchange for an $800,000 loan under the agreement that Cho would reconvey the Property to Shin after Cho repaid the loan. (Compl. ¶¶ 6-8.) Shin alleges that he repaid Cho, but Cho did not reconvey the property. (Compl. ¶¶ 9-10.) On March 9, 2023, Shin filed a proof of service of the summons and complaint on Cho on January 22, 2023 at his 3785 Wilshire Blvd., #1709, Los Angeles, CA 90010 address via substituted service followed by mailing. On March 10, 2023, default was entered against Cho and on April 3, 2023, the Court granted default judgment against Cho. On July 17, 2024 Cho filed this motion to set aside the default and default judgment under Code of Civil Procedure section 473.5, arguing that he did not have actual notice of the lawsuit. Shin opposes. No reply appears in the record. Request for Judicial Notice Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. The court however may not take judicial notice of the truth of the contents of the documents. ( Herrera v. Deutsche Bank National Trust Co . (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. ( Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) Shin seeks judicial notice of the grant deed filed on November 20, 2017, in the Los Angeles Recorders Office, bearing recording #: 20171330624. (Request for Judicial Notice, p.2, Ex. A.) The court takes judicial notice to the extent of the documents existence. Motion to Set Aside/Vacate Default and Default Judgment Legal Standard The defendant can directly attack the entry of default or default judgment on the ground that even though service was proper, the defendant did not receive actual notice of the action. (Code Civ. Proc., § 473.5, subd. (a).) Actual notice means the party had genuine knowledge of the action; it does not contemplate notice attributable to apart from an attorneys actual notice. ( Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) Lack of actual notice usually occurs when service is made by publication, mail, or substitution. (See e.g., Tunis , supra , 184 Cal.App.3d at p. 1074 [publication]; Kodiak Films, Inc. v. Jensen (1991) 230 Cal.App.3d 1260, 1261-62 [mail and substitution].) If the defendant receives actual notice from a source other than the service of summons, the court may still grant the defendant relief under Code of Civil Procedure section 473.5. (See Ellard v. Conway (2001) 94 Cal.App.4th 540, 548; Olvera v. Olvera (1991) 232 Cal.App.3d 32, 40.) If the court grants the motion to vacate, the court can set aside the entry of default or the default judgment on whatever terms it deems just and allow the defendant to defend the action. (Code Civ. Proc., § 473.5, subd. (c).) Relief under Code of Civil Procedure section 473.5 is discretionary. (Code Civ. Proc., § 473.5, subd. (c).) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc., § 473.5, subd. (a).) Analysis According to proofs of service on file with the court, Cho was served with the summons and complaint via substituted service by leaving the documents with a woman named Ara at the 3785 Wilshire Blvd., #1709, Los Angeles, CA 90010 address on January 22, 2023. The summons and complaint were subsequently mailed to the same address. Cho states that he left California in March 2020 and has not returned to the U.S. since. (Cho Decl. ¶ 8.) He states that he only became aware of the complaint against him in May 2024, when he asked a friend to help sell his property. (Cho Decl. ¶ 3.) The friend informed him that the deed to the property was null and void. (Cho Decl. ¶ 3.) Following this, Cho contacted an attorney, who then notified him about the complaint and the default judgment. (Cho Decl. ¶ 4-9.) In opposition, Shin incorrectly relies on Code of Civil Procedure section 473 subdivision (b) and cases interpreting the same, pertaining to relief from judgment when caused by mistake. (Opp., pp. 3-6.) (Code Civ. Proc., § 473 subd. (b).) Here, Cho moves to set aside the default judgment under Code of Civil Procedure § 473.5, pertaining to relief from judgment when a party has not received actual notice. (Code Civ. Proc., § 473.5, subds. (a)-(c).) Shin also argues that Cho owns the 3785 Wilshire Blvd., #1709, Los Angeles, CA 90010 property at which he was served. However, since Cho claims he did not live at the property when the service was completed, simply proving ownership is not sufficient to demonstrate that he had actual notice. Thus, Cho did not have actual notice of the summons. Moreover, the motion was filed within the two-year period required. Thus, the Court will exercise its discretion and grant the motion so as to allow for a trial on the merits. Conclusion Defendant Byeong Yel Cho s Motion to Set Aside Default and Default Judgment is GRANTED. Defendant must file his proposed Answer within 30 days. If no such responsive pleading is filed, the Court will issue an Order to Show Cause why the default should not be reinstated.
Case Number: 23STCV29093 Hearing Date: August 28, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: August 28, 2024 TRIAL DATE: NOT SET CASE: Michelle C. Mathis v. Coldwell Banker Residential Brokerage Co. d/b/a Coldwell Banker Realty CASE NO.: 23STCV29093 MOTION TO COMPEL ARBITRATION MOVING PARTY : Defendant Coldwell Banker Residential Brokerage Co., d/b/a Coldwell Banker Realty RESPONDING PARTY(S) : No response on eCourt as of 08/26/24 STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is an action for fraud and breach of contract that was filed on February 2, 2024. Plaintiff alleges that Defendant failed to adhere to a referral agreement for commissions on the sale of real property. Defendant moves to compel arbitration of this dispute pursuant to an arbitration clause in the referral agreement. TENTATIVE RULING: Defendants Motion to Compel Arbitration is GRANTED. This action is stayed pending resolution of binding arbitration. The Court sets a Status Conference Re: Arbitration for Thursday, September 25, 2025, at 8:30 AM. DISCUSSION: Defendant moves to compel arbitration of this dispute pursuant to an arbitration clause in the referral agreement at issue in this action. // Request for Judicial Notice Defendant requests that the Court take judicial notice of the Independent Contractor Agreement attached as Exhibit A to the Complaint. Defendants request is GRANTED pursuant to Evidence Code section 452(d) (court records). Existence of an Arbitration Agreement Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. ( Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 ( overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. ( Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.) As to the burden of production , rather than persuasion, courts have articulated a three-step burden shifting process: First, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy. [citation] The moving party can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing partys] signature. [citation] Alternatively, the moving party can meet its burden by setting forth the agreements provisions in the motion. [citations] For this step, it is not necessary to follow the normal procedures of document authentication. [citation] If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion. If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. [citation] The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement. [citations] If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party. [citation]. ( Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165-66.) An electronic record or signature is attributable to a person if it was the act of the person. (Civ. Code § 1633.9(a).) The act of the person may be shown in any manner. ( Id. ) As described by the Court of Appeal, the burden of authenticating an electronic signature is not great. ( Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844.) Defendant has provided a copy of the Independent Contractor Agreement, also attached as Exhibit A to the Complaint, which bears Plainitiffs electronic signature dated October 21, 2021. (See Complaint Exh. A.) As relevant here, Paragraph 10 of the Agreement states: COLDWELL BANKER and [Plaintiff Michelle Mathis]& agree to resolve any and all & controversies, disputes, or claims of any nature in any way arising out of [or] relating to this Agreement or the relationship between the Parties & exclusively by mandatory, binding arbitration. This agreement to arbitrate covers Claims of any nature, whether at law or in equity, statute or common law &[.] (Complaint Exh. A. ¶ 10(A).) As Plaintiff has presented this same document as part of her claims, there is no dispute as to the existence of this document or its contents. The Court therefore finds that Defendant has demonstrated the existence of an agreement to arbitrate. Applicability of FAA Defendant contends that Federal Arbitration Act governs the arbitration agreement at issue. An arbitration clause is governed by the FAA if the agreement is a contract evidencing a transaction involving commerce. (9 U.S.C. § 2.) Courts broadly construe this phrase, because the FAA embodies Congress intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause. ( Giuliano v. Inland Empire Pers., Inc. (2007) 149 Cal.App.4th 1276, 1286.) Here, the Agreement expressly states that it is governed by the Federal Arbitration Act. (Complaint Exh. A. ¶ 10(F).) The Court therefore finds that the Federal Arbitration Act applies to this agreement. Scope of the Arbitration Agreement Defendant contends that the scope of the Arbitration Agreement covers Plaintiffs substantive claims. The scope of arbitration is a matter of agreement between the parties. (See, e.g., Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323.) A party can be compelled to arbitrate only those issues it has agreed to arbitrate. ( Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408, 419.) Here, the arbitration clause expressly states that it applies to any and all controversies, disputes, or claims of any nature in any way arising out of [or] relating to this agreement or the relationship between the Parties. (Complaint Exh. A. ¶ 10(A).) This language is facially applicable to Plaintiffs claims. As Plaintiff has not opposed this motion, the Court finds that Defendant has demonstrated the existence of a valid agreement to arbitrate which applies to Plaintiffs claims. CONCLUSION : Accordingly, Defendants Motion to Compel Arbitration is GRANTED. This action is stayed pending resolution of binding arbitration. The Court sets a Status Conference Re: Arbitration for Thursday, September 25, 2025 at 8:30 AM. Moving Party to give notice. IT IS SO ORDERED. Dated: August 28, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.
STONECREST ACQUISITIONS LLC VS. HANSEN, ET AL. Case Number: 22CV-0199769 Tentative Ruling on Motion for Order Directing Clerk to Sign Documents: Plaintiff requests an order directing the Clerk of Court to sign documents relating to Plaintiff’s Stonecrest Acquisitions, LLC purchase of 2915 Lanning Ave., Redding, California, 96001 from Defendant Christian Hansen. This Court’s May 26, 2023 Judgment required Defendants to close escrow on the property. Plaintiff has made diligent efforts for nearly a year to get Defendant to sign, but to date he has refused to do so. Merits: The Court has the power to compel obedience to its judgments and orders. California Code of Civil Procedure section 128(a)(4). Here, Plaintiff seeks the Court’s intervention to compel Defendant’s compliance with is Judgment entered May 11, 2023. Plaintiff asks the Court to appoint the Clerk of Court as an elisor to execute documents related to the sale of real property. “As used in the case at bar, consistent with its common legal meaning, an elisor is a person appointed by the court to perform functions like the execution of a deed or document. (Rayan v. Dykeman (1990) 224 Cal.App.3d 1629, 1635, fn. 2, [274 Cal.Rptr. 672] (Rayan).) A court typically appoints an elisor to sign documents on behalf of a recalcitrant party in order to effectuate its judgments or orders, where the party refuses to execute such documents. (See Ibid.)” Blueberry Properties, LLC v. Chow (2014) 230 Cal. App. 4th 1017, 1020. Here, the Court held a default prove up hearing on February 27, 2023, and entered Judgment for Petitioner on May 11, 2023. The Court’s Order held: “Plaintiff is entitled to Specific Enforcement of the Real Estate Purchase Agreement. Defendants are required to close escrow, vacate the premises and transfer title to the Plaintiff consistent with the terms of the Real Estate Purchase Agreement. In the event Defendants continue to fail and refuse to do so, the Clerk of the Court shall be directed to execute all necessary documents upon Plaintiff’s motion for an order to do so pursuant to Shasta County Superior Court Local Rule 2.14.” Shasta County Superior Court Local Rule 2.14 entitled Requests for Clerk to Sign Documents provides as follows: The Clerk of the Court will not execute documents on behalf of any party unless the party seeking the clerk’s signature has first obtained an order of the court directing the clerk to sign the specific document(s) the clerk is requested to sign. Absent good cause for proceeding on an ex parte basis, a request for such an order shall be made by noticed motion, which motion shall include a proposed order with exact copies of the subject document(s) attached to the proposed order. The original document to be signed shall be lodged with the clerk, and shall contain the following specific language in place of the party’s signature: _____________________________, by _______________________, Clerk of the Court, as duly appointed Court Commissioner for _____________________, in Shasta County Superior Court No. _______________ A party obtaining an order for clerk’s signature may be required to arrange for its own notary if the court is unable to provide a notary. Confirmation of an available notary should be made by contacting Court Administration prior to obtaining an order under this rule. (Amended, effective July 1, 2015). Plaintiffs have properly made their request by noticed motion. Plaintiffs have established with verified declarations that Defendant refuses to execute the required documents as previously ordered by this Court. The Court will therefore appoint the Clerk of Court as elisor to execute the documents. The Motion is GRANTED. However, the Court notes that Plaintiffs have not properly lodged the documents to be signed. Local Rule 2.14 specifies that a proposed order with exact copies of the subject document(s) attached to the proposed order must be lodged. Additionally, the original document to be signed must be lodged with the clerk. Here, Plaintiff has improperly filed the documents to be signed as an attachment to a declaration. Further, the documents are not organized or tabbed to make review and signature manageable. There are 23 documents to be signed, and some must be notarized. The Court will require Plaintiff to properly lodge exact copies of the documents attached to a proposed order. Plaintiff must also separately lodge the original documents to be signed, with tabs identifying each document, as well as signature flags indicating where the document should be executed. Finally, the Plaintiff must organize the documents so that those required to be notarized are easily identifiable. This matter is continued to Monday, September 16, 2024, at 9:00 a.m. in Department 64 for confirmation of lodging the proposed order, copies, and original documents in the manner specified above. If the documents have been appropriately lodged, at that time the Court will set a future date and time for signing and notary of the documents. ****************************************************************************** 9:00 a.m. Review Hearings ****************************************************************************** CALIFORNIA LAND STEWARDSHIP COUNCIL, LLC VS. COUNTY OF SHASTA AND
Case Number: 23STCV11831 Hearing Date: August 29, 2024 Dept: 26 08/29/2024 Dept. 26 Rolf M. Treu, Judge presiding TigerBelly 2 LLC v. Wondery LLC ( 23STCV11831) Counsel for Plaintiff/opposing party: Jeremiah Reynolds, Zachary T. Elsea, Alexandra Achamallah (Eisner LLP) Counsel for Defendant/moving party: Julie A. Shepard, Lauren M. Greene, Rachael Goldman (Jenner & Block LLP) 1. Defendant WONDERY LLCs Motion for Summary Judgment/adjudication ( filed 05/30/2024) 2. DEFENDANT WONDERY LLCS MOTION TO SEAL (Res ID 3869) ( filed 05/30/2024) TENTATIVE RULING Motion for Summary Judgment filed by Defendant Wondery LLC on May 30, 2024 is GRANTED. Motion to Seal filed by Defendant Wondery LLC on May 30, 2024 (Res ID 3869) is GRANTED. Discussion This is an action for breach of contract. On May 25, 2023, Plaintiff TigerBelly 2 LLC (Plaintiff) filed its Complaint against Defendant Wondery LLC (Defendant) for a single cause of action for breach of contract. Plaintiff and Defendant entered into a term sheet dated December 15, 2022, which provided that, in exchange for a significant financial guarantee and other economic benefits, Plaintiff agreed to, among other things, grant Defendant the right to sell ads for the weekly TigerBelly podcast and to distribute and monetize the video version on YouTube (the Term Sheet). The term of the agreement was 39 months. (Complaint ¶ 41.) TigerBelly is a weekly podcast hosted by comedian Bobby Lee and Khalyla Kuhn. (Complaint ¶ 1.) Defendant terminated the Term Sheet on April 3, 2023, on the grounds that Plaintiff violated a morals clause that was incorporated into the term sheet. (Complaint ¶¶ 7-8.) On July 11, 2023, Defendant filed its Answer to the Complaint. On August 31, 2023, Defendant filed its Amended Answer to the Complaint. On August 31, 2023, Defendant filed its Cross-Complaint against Plaintiff for declaratory relief and breach of contract. On September 25, 2023 Plaintiff filed its Answer to the Cross-Complaint. On May 30, 2024, Defendant filed its Motion for Summary Judgment/Adjudication arguing: · Defendant is entitled to summary judgment against Plaintiff on the First Cause of Action in Plaintiffs Complaint as a matter of law on the grounds that Plaintiff cannot establish the existence of an enforceable agreement between the parties in light of its position that it never agreed to a material term, i.e., the morals clause. · If for any reason summary judgment is not granted on Plaintiffs First Cause of Action, in the alternative, Defendant is entitled to summary adjudication on the First Cause of Action in Defendants Cross-Complaint for Declaratory Relief and the Fourth Affirmative Defense in Plaintiffs Answer to Cross-Complaint for No Contract on the grounds that Defendants standard morals clause was incorporated into the parties agreement. In opposition, Plaintiff argues that: · The Term Sheet is binding and enforceable. · The Term Sheet does not incorporate a morals clause. · Defendant has failed to prove that the parties incorporated any documents by reference. In reply, Defendant argues that: · As to Plaintiffs first argument, Defendant/Cross-Complainant is not arguing that the Term Sheet did not purport to be binding, instead Defendant/Cross-Complainants position is that, if Plaintiff/Cross-Defendant did not agree to be bound to a morals clause, there was no meeting of the minds between the parties and no contract was formed. · As to Plaintiffs second argument, Plaintiff argues that Section 28 of the Term Sheet is a list of the types of clauses the Parties expected to negotiate; however, Section 28 does not reference any future negotiation or provide that its terms will be agreed upon at a later date. Instead, the parties agreed to be bound by Defendants standard terms and conditions as long as the Term Sheet governed the parties relationship. · As to Plaintiffs third argument, Defendant has authenticated Exhibit 25; the standard morals clause effective when the Term Sheet was negotiated is Exhibit 25; and Plaintiff had access to Defendants standard morals clause and every draft of the deal memo and term sheet referenced the terms and conditions in Defendants standard long form agreement, including the morals clause. On May 30, 2024, Defendant also filed its Motion to Seal. Defendant seeks to seal various exhibits to the Declaration of Shea Simpson, Declaration of Lee Goldberg, and Declaration of Julie Shepard in support of its Motion for Summary Judgment/Adjudication as well as various text on the motion and separate statement. The motion is unopposed. ANALYSIS A. Legal Standard for Motion to Seal The court may order that a record be filed under seal only if it expressly finds facts that establish: 1) there exists an overriding interest that overcomes the right of public access to the record; 2) the overriding interest supports sealing the record; 3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4) the proposed sealing is narrowly tailored; and 5) no less restrictive means exist to achieve the overriding interest. (CRC, rule 2.550(d).) [I]t is appropriate to seal certain records when those particular records contain highly sensitive and potentially embarrassing personal information about individuals. [Citation.] ( People v. Jackson (2005) 128 Cal.App.4th 1009, 1024.) There is a substantial probability this privacy interest will be prejudiced absent sealing. The burden of showing there are less restrictive means of achieving the overriding interest lies with the one seeking disclosure. ( People v. Jackson , supra, 128 Cal.App.4th at p. 1026; see also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1224.) A reasoned decision about sealing or unsealing records cannot be made without . . . (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations. The burden of presenting information sufficient to accomplish the first two steps is logically placed on the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm and how. ( H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.) A motion or application to file records under seal must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (CRC, rule 2.551(b)(1).) Here, Defendant requests an order sealing various exhibits to the Declaration of Shea Simpson, Declaration of Lee Goldberg, and Declaration of Julie Shepard in support of its motion for summary judgment/adjudication. Defendant also request an order sealing various text on the motion and separate statement. The exhibits and text that Defendant seeks to seal contain detailed references to the confidential financial and business terms. Upon review of the declarations of Julie A. Shephard and Lee Goldberg in support of the motion to seal, the Court finds the following. There exists an overriding interest that overcomes the right of public access to the record and the overriding interest supports sealing the record. ( Shepard Decl. ¶¶ 58, Ex. A ¶¶ 8-9, 22; Goldberg Decl. ¶¶ 5-6.) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed ( Goldberg Decl. ¶¶ 7-8) . The proposed sealing is narrowly tailored and no less restrictive means exist to achieve the overriding interest. ( Goldberg Decl. ¶¶ 5-8.) Because the Court finds that the memorandum and declarations of Shephard and Goldberg contains sufficient facts to justify the sealing and because there is no opposition, the Court grants the motion to seal. B. Evidentiary Objections Defendant raises objections to Plaintiffs responses to Defendants Separate Statement in Support of Motion for Summary Judgment/Adjudication. The Court sustains the objections. C. Legal Standard for Motion for Summary Judgment/Adjudication The purpose of the law of summary judgment 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.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. ( Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show 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, subd. (p)(2); see also Aguilar , supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar , supra, 25 Cal.4th at pp. 850-851.) The party opposing a motion for summary judgment or summary adjudication may not simply rely upon the allegations or denials of its pleadings but must instead set forth the specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. ( Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. ( Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389. Here, Defendant moves for summary judgment in its favor and against Plaintiff or, alternatively, for summary adjudication in its favor and against Plaintiff on the following issues: · Issue 1: Defendant is entitled to summary judgment against Plaintiff on the First Cause of Action in Plaintiffs Complaint as a matter of law on the grounds that Plaintiff cannot establish the existence of an enforceable agreement between the parties in light of its position that it never agreed to a material term, i.e., the morals clause. · Issue 2: If for any reason summary judgment is not granted on Plaintiffs First Cause of Action, in the alternative, Defendant is entitled to summary adjudication on the First Cause of Action in Defendants Cross-Complaint for Declaratory Relief and the Fourth Affirmative Defense in Plaintiffs Answer to Cross-Complaint for No Contract on the grounds that Defendants standard morals clause was incorporated into the parties agreement. D. First Cause of Action for Breach of Contract To prevail on a breach of contract claim, a plaintiff must prove (1) the existence of [a] contract , (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. ( Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) To establish that a contract exists (the first element), the plaintiff must prove that there has been a meeting of the [parties'] minds on all material points. ( Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 359; Cheema v. L.S. Trucking, Inc. (2019) 39 Cal.App.5th 1142, 1149.) Whether the parties' minds have met is judged objective[ly] by looking to the outward manifestations or expressions of the parties, . and not their unexpressed intentions or understandings. ( Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141 ( Alexander ), disapproved on another ground in Reid v. Google (2010) 50 Cal.4th 512; Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208 ( Bustamante ). A particular term of a contract is material or essential if it is necessary (1) in order to provide a basis for determining the existence of a breach of that contract , and (2) for giving an appropriate remedy. ( Bustamante , at p. 209; Alexander, at p. 141.) Here, the Court finds that Defendant has met its initial burden for summary judgment by showing that one or more elements of the cause of action for breach of contract cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) Specifically, the evidence put forth by Defendant demonstrates that Plaintiff cannot establish the first element of its breach of contract cause of actionthe existence of a contractbecause the morals clause was a material term of the parties agreement and Plaintiff did not agree to it. First, to demonstrate that the morals clause was a material term of the parties agreement Defendant provides the following evidence. Every version of the deal offer and term sheet Defendant provided to Plaintiff referenced the incorporation of Defendants morals clause. (UMF Nos. 1226, 2831, 3334.) Every single podcast agreement containing a minimum guarantee that Defendant executed in the two years prior to the Term Sheet included a morals clause. (UMF Nos. 52-63.) Defendant would not have entered into the Term Sheet if Plaintiff had refused to agree to a moral clause. (UMF No. 65.) Defendant includes a morals clause as part of its standard terms and conditions. (UMF No. 44.) Second, to demonstrate that Plaintiff did not agree to a morals clause Defendant provides evidence of multiple examples where Plaintiff asserted that it did not agree to be bound by a morals clause. (UMF Nos. 46-51.) The foregoing evidence thus establishes that there was no meeting of the minds on all material points, including the inclusion of the morals clause. Therefore, Defendant has shown that Plaintiff cannot establish the existence of a contract, which is the first element of a breach of contract cause of action. Because the Court finds that Defendant has satisfied its initial burden, the burden shifts to Plaintiff to present a triable issue of material fact. The Court finds that Plaintiff has not satisfied its responsive burden. Plaintiff does not dispute that the morals clause was a material term of the parties agreement. Instead, Plaintiff argues that Defendant fails to submit evidence showing that a morals clause was a material term of the Term Sheet. (Opposition, pp. 13-14.) However, the Court finds this argument unpersuasive based on the evidence put forth by Defendant as stated above. Neither does Plaintiff dispute that it did not agree to a morals clause. Plaintiffs separate statement attempts to disputes Defendants evidence by stating that the purported fact is a legal conclusion and that it is true that TigerBelly does not interpret the Term Sheet to include a morals clause. (UMF Nos. 46-51.) Plaintiff cannot dispute its own discovery responses. Plaintiff also argues that the Term Sheet explicitly states that it is binding and enforceable; and Defendant incorrectly asserts that the Court may nonetheless dismiss Plaintiffs claim because the parties disagree about how the Term Sheet should be interpreted. (Opposition, p. 5.) However, there are at least two issue with this argument. First, Plaintiff appears to misinterpret Defendants argument because Defendant argues that there was no meeting of the minds if Plaintiff did not agree to be bound by Defendants morals clause; Defendant does not argue that the Term Sheet did not purport to be binding. Second, interpretation of a term presupposes the existence of a contract, but the evidence submitted shows there was no contract because there was no meeting of the minds on all material points, including the inclusion of the morals clause. Accordingly, summary judgment is granted on Plaintiffs sole cause of action for breach of contract. As such, the Court does not address Defendants request for summary adjudication on Issue 2 that Defendants standard morals clause was incorporated into the parties agreement. CONCLUSION Motion for Summary Judgment filed by Defendant Wondery LLC on May 30, 2024 is GRANTED. Motion to Seal filed by Defendant Wondery LLC on May 30, 2024 (Res ID 3869) is GRANTED.
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL. Case Number: CVG21-0000494 Tentative 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 with the pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, the Court requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefing which has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees are addressed below. Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, the Estate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of the Estate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicate the 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 against the 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 Estate of Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of the Estate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the Personal Representative at the time of service and had no authority to act on behalf of the Estate. A fact made clear by Virgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as Personal Representative. The answer was made on behalf of herself as “an individual.” It also pointed out on multiple occasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yet been appointed. Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smith as the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personal jurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improper service of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus any ensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representative was never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity as the Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf and as the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, as an individual, and as against the Estate. Generally, one who is not named in the complaint is not a proper defendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in the complaint. 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 waived any defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for the lack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived any defects 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 takes part in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118 Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry of a judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Court to proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, the Court finds that Ms. Smith appeared as the personal representative and made a general appearance excusing the need for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as the Personal 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 are recoverable 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 fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney . involved in the presentation of the case.’” (Ketchum v. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward by the court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factors that 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) the contingent 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 the best 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. Adams identifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for this community and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250 an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that a reasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and a review appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, the Court finds the number of hours requested to be reasonable.