COMPLAINT July 17, 2020 (2024)

Case

GAMBARDELLA, BIANCA v. EAST HAVEN MARKETS, LLC

Aug 12, 2024 |T03 - Torts - Defective Premises - Private - Other |NNH-CV24-6146402-S

Case

SARMIENTO-GARRIDO, DANIELA TAMARA v. BANEQAS-MALDONADO, YEINOR Et Al

Aug 14, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146518-S

Case

BINGHAM, DEVONNE v. MOLNAR, CHRISTINE K.

Aug 14, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146513-S

Case

MIRANDA, MIGUEL v. MCFARLANE, ANDREW

Aug 12, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146399-S

Case

RAMOS, JOSEPH v. GAILLARD, LESLEY V Et Al

Aug 15, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146553-S

Case

PRESCOTT, EILEEN v. YMCA Et Al

Aug 13, 2024 |T12 - Torts - Defective Premises - Public - Other |NNH-CV24-6146437-S

Case

BRITENBUCHER, DAVID v. LJ 2, LLC Et Al

Aug 14, 2024 |T02 - Torts - Defective Premises - Private - Snow or Ice |AAN-CV24-6057607-S

Case

GONZALEZ, JR, VICTOR M v. CARRION, PATTY

Aug 13, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146440-S

Case

OKWUOSA, JEWEL v. KUZIEL, JOHN MARTIN Et Al

Aug 12, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146412-S

Ruling

JOHN SIGG ET AL VS. PNEUMO ABEX LLC ET AL

Aug 13, 2024 |CGC23277084

On Asbestos Law and Motion Calendar for Tuesday, August 13, 2024, in Department 301, Line 2. Defendant TMS, Inc.'s Motion for Summary Judgment, or in the alternative, for Summary Adjudication is GRANTED under C.C.P. section 437c. No opposition filed. The prevailing party shall lodge with the clerk in Department 301 by the time set for this hearing a proposed order repeating verbatim the substantive portion of the tentative ruling. Any party wishing to contest the tentative ruling must email contestasbestostr@sftc.org by 4:00 p.m. on the day before the hearing and state their intention to contest. If a hearing is requested, it will be on August 13, 2024, at 9:30 a.m. Attorneys may appear in person or remotely via zoom: Meeting ID 160 757 8308; Passcode: 485029. Face coverings are optional. The Court no longer provides a court reporter in the Law and Motion department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: Their name, CSR and telephone number, and their individual work email address. There will be only one official record. If the parties cannot agree, the Court will designate a qualified court reporter to provide the official transcript for the matter, and the party or parties will bear the cost. = (301/RCE)

Ruling

GARY MICHELSON, AN INDIVIDUAL VS CONQUEST GENERAL BUILDING CONTRACTORS, INC., A CALIFORNIA CORPORATION, ET AL.

Aug 12, 2024 |24STCV06087

Case Number: 24STCV06087 Hearing Date: August 12, 2024 Dept: 55 Case Name: Gary Michelson v. Conquest General Building Contractors Inc., et al. Nature of Proceedings: Demurrer Tentative Ruling: The demurrer filed by Conquest General Building Contractors, Inc., and James Michael Korkunis is OVERRULED. A. BACKGROUND Factual and Procedural Background On March 12, 2024, Dr. Gary Michelson (Plaintiff) filed a Complaint alleging six causes of action against Conquest General Building Contractors Inc. (Conquest) and James Michael Korkunis (individually referred to herein after as Korkunis, collectively referred to as Defendants). The six cause of action are: 1. Fraud Promise Without Intent to Perform (as against all Defendants) 2. Fraud Intentional Misrepresentation (as against all Defendants) 3. Fraud Negligent Misrepresentation (as against all Defendants) 4. Breach of Contract (as against Conquest) 5. Breach of Covenant of Good Faith and Fair Dealing (as against Conquest) 6. Negligence (as against all Defendants) The causes of action stem from a home improvement agreement that Plaintiff and Defendants entered into on June 7, 2023. Plaintiff alleges that the initial agreed upon cost for the work was $267,750.00. (Complaint, ¶¶28-29.) Additionally, Plaintiff alleges that no work was to be paid to Defendants prior to completion. (Complaint, ¶26.) However, Defendants allegedly began to ask for payments immediately upon execution of the agreement, including a $39,000.00 deposit (Complaint, ¶¶30 and 37), $30,000.00 on July 24, 2023 for adjustments requested by a soil engineer (Complaint, ¶¶32 and 37), and another $50,000.00 on July 31, 2023. (Complaint, ¶37.) Plaintiff alleges that during a June 7, 2023 face-to-face meeting between Plaintiff and Defendant Korkunis, on behalf of Defendant Conquest Korkunis orally promised that if Defendants were hired, three trained work crews would be provided each day, no demand for progress payments would be made until specific portions of the project were completed, and that the job would be completed by September of 2023. (Complaint, ¶53.) Plaintiff alleges that work crews were held back deliberately (Complaint, ¶ 38), payments were demanded before progress had been made, (Complaint, ¶ 37) and the project remains uncompleted. (Complaint, ¶49.) Plaintiff then filed suit. The motion now before the Court is Defendants demurrer to Plaintiffs Complaint. Defendants demur to the first, second, and third causes of action, and additionally argue that Korkunis should not be included in Plaintiffs first three causes of action. Plaintiff filed an opposition; no reply was filed. Meet Confer Before filing a demurrer&the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. §430.41(a).) Although the demurring party attaches emails demonstrating meet and confer efforts, there was no meeting telephonically nor in person. Therefore, the requirements of Code Civ. Proc. §430.41(a) remain unsatisfied. However, per Code Civ. Proc. §430.41(a)(4), A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. Therefore, the Court ow turns its attention to the demurrer. B. DISCUSSION Legal Standard [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Analysis Defendants primary argument upon demurrer is that each of the first three causes of action are uncertain and fail to state facts sufficient to support a cause of action. As explained below, the Court disagrees and overrules the demurrer. 1. Fraud Causes of Action The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) Upon demurrer, Defendants contend Plaintiff has not alleged an intent to defraud on part of Defendants. On the contrary, Plaintiff alleges that exact intention. In the Complaint, Plaintiff alleges that in a face-to-face meeting on June 7, 2023 between Plaintiff and Korkunis who spoke on behalf of Conquest Korkunis orally promised that if Defendants were hired, three trained work crews would be provided each day, no demand for progress payments would be made until specific portions of the project were completed, and that the job would be completed by September of 2023. (Complaint, ¶53.) Plaintiff then alleges that work crews were held back deliberately (Complaint, ¶¶ 38, 55), payments were demanded before progress had been made, (Complaint, ¶¶ 37, 55) and the project remains uncompleted. (Complaint, ¶¶ 49, 55.) The Complaint makes clear that not only is the third element of intent sufficiently plead, but so is the first element of a false representation and the second element of scienter. Here, Plaintiff alleges specifically who said what and when, and that what was said later turned out to be false. The intent here was clear, to induce Plaintiff to hire Defendants and enter into the agreement with Defendants for the home improvement project. The fourth element of justifiable reliance is fulfilled because the Complaint shows that Plaintiff performed due diligence by taking bids from two other companies before selecting Defendants. (Complaint, ¶9.) Plaintiff relied on Defendants expertise because Plaintiff knew nothing about construction. (Complaint, ¶7.) With each element of fraud plead with the requisite particularity, the first, second, and third[1] causes of action survive demurrer, and the demurrer is overruled. 2. Korkunis Remains in the suit Defendants additionally make the contention that Korkunis should not be included in Plaintiffs first three causes of action because officers of corporation do not incur personal tort liability merely by reason of their official position. (Demurrer, 11:10-11.) In making such a contention, Defendants rely on several cases, including the Supreme Court of Californias Wyatt v. Union Mortgage Co. (1979) 24Cal.3d 773 (Wyatt). However, Defendants reliance is misplaced. Our Supreme Court was mindful in their holding and meticulous with their words. Wyatt involved a case where the plaintiffs alleged misrepresentations regarding advertisem*nts by a mortgage company. When plaintiffs approached the company about their supposed debtor friendly loans, further misrepresentations were made to induce plaintiffs into signing, plaintiffs signed, and only later found that the loans they agreed to were on much less favorable terms. (Wyatt, supra, at 779-781.) When the lower court ruled in favor of plaintiffs, the mortgage company appealed to the Supreme Court, arguing that officers of a corporation are typically not rendered personally liable. The Wyatt Court pointed out that this is the general rule, however, directors and officers of a corporation may become liable if they directly ordered, authorized, or participated in tortious conduct. (Wyatt, supra, at 785.) That is what Plaintiff is alleging. This sentiment in Wyatt has been echoed in later cases including those cited by Plaintiff: PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1379 and Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 505 [Director status therefore neither immunizes a person from individual liability nor subjects him or her to vicarious liability.] and those cited by Defendants: People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203, 1213 and Reynolds v. Bement (2005) 36 Cal.4th 1075, 1090 (abrogated on other grounds by Martinez v. Combs (2010) 49 Cal.4th 35). As the allegations against Conquest are sufficient, so are those against Korkunis. Therefore, the demurrer as to Korkunis individual liability is overruled. C. CONCLUSION The demurrer filed by Conquest General Building Contractors, Inc., and James Michael Korkunis is OVERRULED. Defendants have twenty days to answer the Complaint. [1] Intentional and negligent misrepresentation possess the same essential elements as Plaintiffs initial fraud claim, and the Court need not repeat its analysis.

Ruling

FCS059298 - THOMPSON, FELICIA V. SAUKHLA, M.D., NARINDER (DMS)

Aug 13, 2024 |FCS059298

FCS059298PORTUGAL’s Motion for Summary JudgmentTENTATIVE RULINGDefendant RUTH PORTUGAL, R.N. (“PORTUGAL”) moves for summary judgment onPlaintiff FELICIA THOMPSON’s cause of action for wrongful death via medicalnegligence. Summarized, Plaintiff alleges that PORTUGAL’s failure to observe thestandard of care applicable to a nurse caused the death of Plaintiff’s father (“Decedent”)on September 2, 2017.Objections to Evidence. In ruling on a motion for summary adjudication the courtneed only rule on those evidentiary objections that it deems material to its disposition ofthe motion. (Code Civ. Proc., § 437c, subd. (q).)PORTUGAL’s Objections #1-10. PORTUGAL’s objections #1-10 are overruled.PORTUGAL’s Objections #11-22. PORTUGAL’s objections to Plaintiff’s declarationsfrom Melvin Smith, Michael Burrus, Cole Bienek, Earl Miller, James Cross, JohnLawyer, Herman Davis, Clarence Myers, Shelvert Dyer, Lamar Minor, and MichaelDavis, as well as the second supplemental declaration of Dr. Dan Field, on the basis offailure to comply with Code of Civil Procedure section 2015.5 are sustained. Thoughthe declarations are not hearsay they do not meet Code of Civil Procedure section2015.5 requirements. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th601, 609 [declarations of personal knowledge admissible on summary judgment].) Alldeclarations but Dr. Field’s fail to state the date and place of execution of thedeclarations. Dr. Field’s second supplemental declaration does not state the place.PORTUGAL’s Objections #23-24. PORTUGAL’s objections to all proffered evidencefrom Dr. Field, being his two declarations, a rebuttal declaration to defense expertopinions, and deposition excerpts, are sustained. A doctor may speak to the standardof care for a nurse if he possesses relevant qualifications or knowledge. (Lattimore v.Dickey (2015) 239 Cal.App.4th 959, 970 (Lattimore).) However, Dr. Field’squalifications and knowledge are solely set forth in his second supplementaldeclaration, which fails to meet Code of Civil Procedure section 2015.5 requirements.Accordingly Plaintiff does not establish with admissible evidence that Dr. Field canspeak to the standard of care applicable to PORTUGAL.Similarly, Dr. Fields’ opinions as a medical doctor are also lacking in foundation. Neitherthe Record Review Report dated 12/11/2020 or the Rebuttal Report dated 1/14/2021state Dr. Fields’ qualifications. The Second Supplemental Declaration, which does statethe doctor’s qualifications, does not cure the problem as the declaration is procedurallydefective under CCP 2015.5.The court does not consider PORTUGAL’s remaining objections material to thedisposition of the motion.Requests for Judicial Notice. Matters subject to judicial notice may support a motionfor summary judgment. (Code Civ. Proc. § 437c, subd. (b)(1).) The court takes judicialnotice of all items proffered by PORTUGAL, being documents from Plaintiff’s federalcase preceding this one on the same facts, as records of a court of the United Statesper Evidence Code section 452, subdivision (d).Legal Standard. A defendant may move for summary judgment on the basis that theplaintiff cannot establish an element of his cause of action. (Code Civ. Proc., § 437c,subd. (o)(1).) A summary judgment motion is properly granted where the evidence insupport of the moving party would be sufficient to sustain a judgment in his favor andhis opponent does not show facts sufficient to present a triable issue of fact. (Parker v.Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion isnot to be granted where any triable issue of material fact exists. (Ibid.) The affidavits ofthe moving party are strictly construed, and doubts as to the propriety of summaryjudgment should be resolved against granting the motion. (Ibid.) Reasonableinferences from the evidence must be drawn in the light most favorable to the opposingparty. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.)Affidavits, declarations, admissions, answers to interrogatories, depositions, andmatters judicially noticed may all support a motion for summary judgment, provided theycontain admissible evidence. (Code Civ. Proc., §§ 437c, subds. (b)(1), (d).) Allegationsin a party’s own pleadings may not satisfy deficiencies in evidence. (Code Civ. Proc., §437c, subd. (p).) Allegations in an opposing party’s pleadings may be consideredevidence, however. (Parker, supra, 3 Cal.3d at p. 181.) Additionally, a defendant doesnot meet its burden of showing a plaintiff cannot establish an element merely bypointing out the absence of evidence; the defendant must show that the plaintiff bothdoes not possess and cannot reasonably obtain evidence. (Zipusch v. LA Workout, Inc.(2007) 155 Cal.App.4th 1281, 1286-1287.)Wrongful Death via Medical Negligence. Wrongful death is a statutory cause ofaction, the elements of which are simply a tort resulting in death and damages.(Lattimore, supra, 239 Cal.App.4th at p. 968.) In this case Plaintiff alleges the wrongfuldeath of Decedent due to the underlying tort of medical malpractice or negligence.(First Amended Complaint at ¶¶ 38-44.) Medical negligence is a form of negligence, towhich general principles of negligence apply. (Massey v. Mercy Medical CenterRedding (2009) 180 Cal.App.4th 690, 695.) Thus a medical practitioner is negligent ifhe fails to use the standard of care that a reasonably careful practitioner would use insimilar circ*mstances, but what the standard of care is for a medical practitioner is amatter peculiarly within the knowledge of experts. (Ibid.) The standard of care for amedical practitioner may therefore only be proven by the testimony of experts unlessthe conduct required in the circ*mstances is something within the common knowledgeof laymen. (Ibid.) In other words, a plaintiff usually may only prove that a medicalpractitioner failed to meet the standard of care via expert testimony. (Ibid.) Theforegoing rules of analysis apply whether the practitioner is a doctor or a nurse; anurse’s conduct is not measured by the same standard of care as a doctor’s butlikewise must be assessed by expert testimony from one qualified to speak to theappropriate profession’s standard of care. (Lattimore at p. 969.)On moving for summary judgment a medical practitioner will accordingly have the initialburden to present evidence, supported by expert testimony where necessary, thathis/her acts met the applicable standard of care, else the motion must be denied.PORTUGAL carries her initial burden as to the standard of care issue. The Declarationof Nancy Booth in Support of PORTUGAL’s Motion for Summary Judgment (Booth)states that PORTUGAL observed the relevant standard of care (Booth at ¶ 17.) Ms.Booth declares she is qualified to speak to the standard of care for a nurse inPORTUGAL’s circ*mstances because she is a licensed registered nurse with almostfifty years’ experience who has been a certified correctional setting health careprofessional since 2013 and worked in a correctional health care setting from 2006 to2021. (Id. at ¶¶ 1, 3.) Ms. Booth reviewed Decedent’s general medical records, therecords from September 2, 2017, and numerous documents generated in the course ofthis litigation. (Id. at ¶ 5.) Ms. Booth explains that in the context of the unusually hotday on September 2, 2017 it was reasonable for PORTUGAL to believe Decedentsuffered heat-related problems and perform associated assessments and treatment.(Id. at ¶ 18.) Ms. Booth states that Decedent was able to answer questions and obeycommands and so it was reasonable for PORTUGAL to not explore a possible alteredmental state. (Id. at ¶ 17.) Ms. Booth states that it was reasonable to believeDecedent’s problems had resolved because he displayed improved vital signs aftertreatment. (Id. at ¶ 18.) Additional tests such as rectal thermometer and orthostaticblood pressure readings were not necessary to meet the standard of care becauseDecedent was a conscious adult male whose vital signs were able to be accessed inother ways. (Id. at ¶¶ 20-21.) Ms. Booth connects her opinions to facts and offerscompetent expert testimony that PORTUGAL met the standard of care.Plaintiff’s admissible evidence suffices to raise triable issues of material fact on theissue of the standard of care. In paragraph 13 of the Ron Lopez declaration he statesthat PORTUGAL observed that Decedent was dehydrated yet performed no evaluationof urine specific gravity, orthostatic blood pressure, or fluid intake and output. Thisdirectly counters Ms. Booth’s assertion that there was no need to examine Decedent’sorthostatic blood pressure and raises a triable issue of material fact on the standard ofcare given that the defense position hinges on the idea that PORTUGAL respondedappropriately to presented dehydration. In paragraph 14 Mr. Lopez states thatPORTUGAL observed “10/10” pain from Decedent for two and a half hours but did notperform a PQRST pain assessment or document the effect of the analgesics provided.This too raises an issue as to the standard of care in the circ*mstances Decedentpresented.On the issue of causation, however, PORTUGAL fails to meet her initial burden. In amedical negligence case, causation must be proven with expert testimony. (Bromme v.Pavitt (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney (1991) 235 Cal.App.3d 1593,1603; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) In the context of a motion for summary judgment, it stands to reason that experttestimony is needed to negate causation. PORTUGAL offers no expert evidence tonegate causation. She uses only a layperson’s analysis based on the disputed factssurrounding Decedent’s cause of death to conclude that there is no evidence thatresponding differently to Decedent’s initial presentation would have changed histreatment outcome.Conclusion. PORTUGAL’s motion for summary judgment is denied.Department 7 is inviting you to a scheduled ZoomGov meeting.Join ZoomGov Meetinghttps://solano-courts-ca-gov.zoomgov.com/j/1611554664?pwd=T3U4QlBGWWNWaGlieXJTcGxIVHRXZz09Meeting ID: 161 155 4664Passcode: 818575One tap mobile+16692545252,,1611554664#,,,,*818575# US (San Jose)+14154494000,,1611554664#,,,,*818575# US (US Spanish Line)

Ruling

The Village of Los Banos, Unit No. 2 Owners Association vs K. Hovnanian Communities, Inc., et al.

Aug 16, 2024 |21CV-03779

21CV-03779 The Village of Los Banos, Unit 2 Owners Association v. K. Hovnanian Communities, Inc., et al.Motion to Stay ProceedingsThe Motion for Stay is DENIED. Defendants offer no authority for the proposition that anotice must be given by the claimant as opposed to someone acting on behalf of aclaimant. Furthermore, to the extent Defendants seek a stay because of an allegedinsufficiency in the pleadings, their remedy is a motion for judgment on the pleadings.The existing complaint is fully at issue. Finally, to the extent that the motion to stay isbased on issues relating to discovery, the Court notes that a discovery master has beenappointed in this matter and that all discovery related matters, including requests forstay of discovery, should be submitted to the discovery master.Motion by K. Hovnanian Communities, Inc., K. Hovnanian Homes Northern California, Inc., K.Hovnanian’s Four Seasons at Los Banos, LLC, K. Hovnanian California Operations, Inc. and L.Hovnanian Cooperative, Inc. for Summary Judgment, or in the alternative, SummaryAdjudication that (1) Plaintiff’s lack standing, and (2) Whether individual homeowners’ claimsare barred by the statute of repose provided under California Civil Code section 941 andCalifornia Code of Civil Procedure section 337.15.All Requests for Judicial Notice are GRANTED.In River’s Side at Washington Square Homeowner’s Association v. The Superior Court ofYolo County (2023) 88 Cal.App.5th 1209, 1218 (“River’s Side”), the Third District ofCalifornia held as follows: As explained in more detail below, we conclude that Plaintiff has standing to bring claims for damages to the common areas pursuant to Civil Code sections 945 and 5980, and that it at least nominally alleged such damages. We further conclude that Plaintiff may have standing to bring claims for damages to the residential units that sound in contract or fraud if it can meet the requirements for bringing a representative action pursuant to Code of Civil Procedure section 382. Lastly, we hold Plaintiff should have been granted leave to amend to cure any standing defect. We thus grant the petition for writ of mandate and direct the trial court to reverse its order granting the demurrer.(River’s Side at Washington Square Homeowner’s Association v. The Superior Court ofYolo County (2023) 88 Cal.App.5th 1209, 1218.)Given that the River’s Side holding that a Homeowners Association’s lack of standing tobring individual unit claims under Civil Code section 5980 may be rendered moot if theComplaint is Amended to allege that the individual homeowners have assigned theirindividual home claims to the Homeowner’s Association, and given the representation byPlaintiff herein that it has obtained appropriate assignments, this Court elects to treat thestanding aspects of the Motion for Summary Judgment, or in the alternative, summaryadjudication, as a Motion for Judgment on the Pleadings (See American Airlines, Inc. v.County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v. Brady Co./Sand Diego, Inc.(2015) 242 Cal.App.4th 1367, 1375-1376) and Grant the Motion for Judgment on thePleadings with leave to amend to cure any standing defect pursuant to River’s Edge,including any standing defect to bring contract or fraud claims based on potentialstanding under Code of Civil Procedure § 382. Although the issue is not directlyaddressed in River’s Edge, the decision implicitly finds that the Defendant Builder in aconstruction defect suit has standing to challenge HOA standing notwithstandingSection 6.11 of the Restatement (3rd) Property. As noted above, this Court is bound by apublished decision of a Court of Appeal absent a contrary finding by another Court ofAppeal.Similarly, while Defendants have established a prima facie case that the ten year statuteof limitations bars this action at least with respect to some properties, Plaintiff assertsthat the ten year statute of limitations is tolled during the period that the Builder controlsthe Homeowner’s association, although there is no allegation in the First AmendedComplaint pleading around the statute of limitations. Since the tolling argument istechnically outside the scope of the current pleadings, this Court elects to treat thestatute of limitations argument in the Motion for Summary Judgment, or in the alternativeSummary Adjudication, as a motion for Judgment on the Pleadings, and GRANTS themotion with leave to amend to plead around the statute of limitations. Any AmendedComplaint shall be filed by September 30, 2024.

Ruling

FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)

Aug 13, 2024 |FCS057573

FCS057573Motions for ContemptTENTATIVE RULING:Petitioner’s “motions” for contempt are denied.No affidavit of the facts constituting any contempt has been presented to thecourt. The filing of a sufficient affidavit is a jurisdictional prerequisite to acontempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court(1951) 103 Cal.App.2d 512, 541.) Page 1 of 1

Ruling

VINCENT SEDDO ET AL VS. CARRIER CORPORATION ET AL

Aug 13, 2024 |CGC23277149

On Asbestos Law and Motion Calendar for Tuesday, August 13, 2024, in Department 301, Line 3. Plaintiff's Motion for Order Substituting Anthony Seddo as Successor-in-Interest to, and Substituting Successor-in-Interest for Deceased Plaintiff; And For Leave to File First Amended Complaint is GRANTED. (C.C.P. Sections 377.20, 377.31, 377.11, 377.32, 377.60, and 473.) No opposition filed. Plaintiff shall file and serve the First Amended Complaint forthwith. The First Amended Complaint is deemed served on all Defendants who have previously appeared in the action. The prevailing party shall lodge with the clerk in Department 301 by the time set for this hearing a proposed order repeating verbatim the substantive portion of the tentative ruling. Any party wishing to contest the tentative ruling must email contestasbestostr@sftc.org by 4:00 p.m. on the day before the hearing and state their intention to contest. If a hearing is requested, it will be on August 13, 2024, at 9:30 a.m. Attorneys may appear in person or remotely. Face coverings are optional. Remote appearances must be arranged through CourtCall (1-888-88-COURT). No prior notice or permission is required. If a party wishes to have the matter reported, the parties must meet and confer to agree on only one court reporter, who must be licensed under Bus. & Prof. Code, sec. 8016. There will be only one official record. If the parties cannot agree, the Court will designate a qualified court reporter to provide the official transcript for the matter, and the party or parties will bear the cost. = (301/RCE)

Ruling

Transport Funding, LLC, a limited liability company vs. Premier Truck and Trailer Repair INC., a California corporation

Aug 13, 2024 |24CECG02001

Re: Transport Funding, LLC v. Premier Truck and Trailer Repair, Inc. Superior Court Case No. 24CECG02001Hearing Date: August 13, 2024 (Dept. 503)Motion: Plaintiff’s Application for a Writ of Possession against Defendant Premier Truck and Trailer Repair, Inc.Tentative Ruling: To deny in light of the entry of default against defendant Premier Truck and TrailerRepair on July 10, 2024.Explanation: This motion requests a prejudgment writ of possession against defendant, which isproper to request before final adjudication of the claims sued upon. (Kemp Bros. Const.,Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476.) However, after serving themoving papers on defendant (served along with the summons and complaint), plaintiffrequested entry of defendant’s default and the clerk entered their defaults on July 10,2024. The entry of default instantly cuts off a defendant’s right to appear in the actionor participate in the proceedings unless the default is set aside or judgment is entered(i.e., the latter giving the defendant the right to appeal). (Devlin v. Kearny MesaAMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) Due process would not beserved by allowing a plaintiff to give a defendant notice of a motion, but then cut off itsright to defend itself regarding that motion. Plaintiff has lodged the papers necessary toobtain a default judgment against defendant, which will be processed in due course.After judgment has been obtained, plaintiff may proceed with all post-judgmentenforcement procedures which are available. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 8/12/24 . (Judge’s initials) (Date)

Ruling

Wallace vs. Winco Foods, LLC, et al.

Aug 17, 2024 |23CV-0203366

WALLACE VS. WINCO FOODS, LLC, ET AL.Case Number: 23CV-0203366This matter is on calendar for a trial setting conference. The litigation is not at issue. Only Defendant WinCoFoods, LLC has appeared. The matter is continued to Monday, October 21, 2024, at 9:00 a.m. in Department63 for status of service and responsive pleadings and, if appropriate, trial setting. The Court expects Plaintiff toget the matter at issue prior to the next hearing. No appearance is necessary on today’s calendar.

Document

MOJICA, HILARIE Et Al v. LOPEZ-DIAZ, LEONARDO Et Al

Jan 16, 2024 |Barbara Bailey Jongbloed |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6139573-S

Document

ZEPEDA, RUBEN v. CLAUDIO ADORNO, ADIEL

Aug 09, 2024 |H13 - Housing - Small Claims Housing - Rent and/or Damages |NHH-CV24-5006780-S

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HARRISON, CAMISHA v. MAGALIK, MEGAN Et Al

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