SUMMONS + COMPLAINT November 01, 2019 (2024)

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Ruling

CASTRO VALLEY INVESTMENT GROUP, LLC, A CALIFORNIA LIMITED LIA...

Jul 25, 2024 |Civil Unlimited (Contract/Warranty Breach - Se...) |24CV075116

24CV075116: CASTRO VALLEY INVESTMENT GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs CASTRO VALLEY MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Motion for Preliminary Injunction filed by Castro Valley Investment Group, LLC, a California limited liability company (Plaintiff) in Department 17Tentative Ruling - 07/23/2024 Frank RoeschThe Motion for Preliminary Injunction filed by Castro Valley Investment Group, LLC, aCalifornia limited liability company on 07/02/2024 is Granted.Plaintiff Castro Valley Investment Group LLC’s (“Plaintiff”) Motion for Preliminary Injunctionis GRANTED. (Code Civ. Proc.,§ 527; Brown v. Pacifica Foundation, Inc. (2019) 34Cal.App.5th 915, 925.)Here, Plaintiff’s evidence demonstrates that:1) The harm Plaintiff would suffer if a preliminary injunction is denied outweighs the harmDefendant Castro Valley Marketplace, LLC’s (“Defendant”) would suffer if a preliminaryinjunction is issued; and2) Plaintiff has shown a strong probability of prevailing on the merits because its evidence showsthat Defendant’s lease to Slice House anticipates exclusive use by Slice House of a non-exclusive easem*nt that burdens Plaintiff’s parcel (Poniatowski Decl. ¶¶ 12-14) and that appearsto substantially exceeds the scope of the easem*nt which was originally contemplated by theparties as one limited to ingress and egress. (Chau Decl. ¶ 8; Exh. B.) (Code Civ. Proc., §§ 527,subd. (a); 3387.)Defendant’s evidence does not defeat this showing, but instead confirms that the collectiveEasem*nt Agreement intends for the easem*nt to be used for pedestrian access (ingress andegress), that use of paseos is to be non-exclusive and that use of the common non-exclusiveeasem*nts (the paseos) are to be “reasonable.” (Miller Decl. ¶¶ 2-3; Exhs. A-B.)Although Defendant argues that prior tenants used portions of the paseo easem*nt for outdoordining (Oppo. pp. 6:5-7: 28), Plaintiff’s evidence shows that had separate arrangements withthose establishments and received compensation in the form of monthly rental payments fromestablishments that exceeded the intended use of the easem*nt. (Chau Decl. ¶ 20; Exh. C; Supp.Chau Decl. ¶ 9.)In response, Defendant has provided no evidence that Slice House has agreed to pay Plaintiff forits exclusive-use of any portion of the non-exclusive easem*nt that runs over Plaintiff’s parcel orthat it made any agreements with Plaintiff to allow for such use akin to prior tenants that Plaintiffallowed to use a portion of the easem*nt exclusively in exchange for rental payments. (ChauDecl. ¶ 20; Exh. C.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV075116: CASTRO VALLEY INVESTMENT GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs CASTRO VALLEY MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Motion for Preliminary Injunction filed by Castro Valley Investment Group, LLC, a California limited liability company (Plaintiff) in Department 17Addressing Defendant’s argument that additional members must be joined including othermembers of the collective Easem*nt Agreement, Code of Civil Procedure section 389 does notpreclude the court from granting a preliminary injunction to preserve the status quo while itawaits service of all necessary parties in this action. Because a preliminary injunction is not“complete relief” and will not become “complete relief” unless and until the court entersjudgment in the form of a permanent injunction, the court has jurisdiction to rule on Plaintiff’smotion but additionally notes that Defendant correctly identifies that other parties should bejoined.Plaintiff’s motion for preliminary injunction is therefore granted. (Code Civ. Proc., § 527, subd.(a).)However, because final adjudication of the present action may leave other parties to theEasem*nt Agreement and Defendant’s tenant Slice House with “inconsistent obligations” if apermanent injunction is issued in their absence, Plaintiff is ordered to join all other members ofthe Easem*nt Agreement and Slice House as additional named defendants in this action.In the meantime, following issuance of a preliminary injunction, this matter will be stayedpending a declaration from Plaintiff’s counsel that attaches copies of proofs of serviceconfirming that all indispensable parties (other members of the collective Easem*nt Agreementand Slice House) have been effectively joined and served. (Code Civ. Proc., § 389.)OBJECTIONS TO EVIDENCEPlaintiff’s Objections to the Declaration of Denise L. Miller Paragraph 6; Exhibit E is sustained.Plaintiff’s Objections to Defendant’s Request for Judicial Notice Exhibits 1 and 2 are sustained.REQUESTS FOR JUDICIAL NOTICEDefendant’s Requests for Judicial Notice (“RJN”) are denied as to Exhibits 1 and 2.BACKGROUNDThis case arises out of Defendant’s alleged overburdening use of a non-exclusive easem*ntacross Plaintiff’s property. Plaintiff and Defendant are adjoining parcel owners. Plaintiff is thefee title owner of 3303 Castro Valley Boulevard in Castro Valley, CA, which consists of acommercial building and 48 stalls of surface parking. (Chau Decl. ¶ 9; Exh. A.) Defendant is thefee title owner of 3295 Castro Valley Boulevard in Castro Valley, CA, consisting of acommercial building and 74 stalls of surface parking. (Chau Decl. ¶ 10; Exh. A.) Over the years,Defendant has leased portions of its property to tenants (that have included restaurant SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV075116: CASTRO VALLEY INVESTMENT GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs CASTRO VALLEY MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Motion for Preliminary Injunction filed by Castro Valley Investment Group, LLC, a California limited liability company (Plaintiff) in Department 17establishments), and historically, certain of those establishments have entered into a separatelease agreement with Plaintiff to lease additional space (a portion of the non-exclusive easem*nt)for exclusive use that would allow for outdoor dining on the easem*nt area. (Chau Decl. ¶ 20;Exh. C.)The Commercial Lease Agreement between Plaintiff and Defendant expired by its terms on May31, 2022 and thereafter Marketplace was a holdover tenant until about July 2023. (Chau Decl. ¶21.) At Defendant’s request, Plaintiff presented Defendant with a new lease for the samesegment of easem*nt at issue (that was used for outdoor dining), but Defendant rejected thatlease, claiming that it is entitled to exclusive use of the previously-leased portion of the easem*ntat issue (for exclusive use by its tenant Slice House) without any obligation to pay Plaintiff forthat use of its property. (Ibid.) Anticipated use of the non-exclusive easem*nt by Slice Houseincludes exclusive use of that portion of the easem*nt for its guests and the consumption ofalcoholic beverages. (Ibid.)Defendant claims that an Easem*nt Agreement entered into by the parties with other propertyowners allows its tenant to exclusively use portions of the easem*nt that burdens Plaintiff’sparcel for free. (Miller Decl. ¶¶ 2-3; Exhs. A-B.) Plaintiff acknowledges that free mutual non-exclusive use of the paseo easem*nts for ingress and egress are allowed, but that exclusive use ofthe non-exclusive easem*nt is excessive and unreasonable in violation of the Easem*ntAgreement, absent a separate agreement with Plaintiff where the area intended for exclusive usebe separately leased from Plaintiff. (MPA pp. 1:2-3:11; 5:15-10:28.)LAWA. Preliminary Injunction – Legal StandardThe general purpose of a preliminary injunction is to preserve the status quo pending adetermination on the merits of the action. (Tulare Lake Canal Co. v. Stratford Public Utility Dist.(2023) 92 Cal.App.5th 380, 396 (“Tulare”).) Granting or denying a preliminary injunction is notan adjudication of the ultimate rights in controversy. (Ibid.)The decision of whether to issue a preliminary injunction requires the trial court to evaluate twointerrelated factors: (i) the likelihood that the party seeking the injunction will prevail on themerits, and (ii) the balance of harms presented. (Brown, supra, 34 Cal.App.5th at p. 925.)Typically, the trial court's evaluation of the relative balance of harms compares the interim harmthe plaintiff is likely to sustain if the injunction is denied to the harm the defendant is likely tosuffer if the preliminary injunction is issued. (Tulare, supra, 92 Cal.App.5th at p. 396.) Thepotential merit and interim harm are described as interrelated factors because the greater the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV075116: CASTRO VALLEY INVESTMENT GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs CASTRO VALLEY MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Motion for Preliminary Injunction filed by Castro Valley Investment Group, LLC, a California limited liability company (Plaintiff) in Department 17plaintiff's showing on one, the less must be shown on the other to obtain an injunction. (Id. at pp.396-397.) The goal of this test is to minimize the harm that an erroneous interim decision wouldcause. (Id. at p. 397.)Appellate review of a trial court's order granting or denying a motion for preliminary injunctiongenerally is “limited to whether the trial court's decision was an abuse of discretion.” (Butt v.State of California (1992) 4 Cal.4th 668, 678.)DISCUSSIONI. Preliminary InjunctionPlaintiff’s motion for preliminary injunction is granted because Plaintiff has demonstrated alikelihood of prevailing on the merits and that the balance of harms weighs in its favor. (CodeCiv. Proc., § 527; Brown, supra, 34 Cal.App.5th at p. 925.)Here, Plaintiff’s evidence shows that it is the fee title owner to the property on which theeasem*nt is located. (Chau Decl. ¶ 9; Exh. A.) Its evidence further shows that Defendant appearsto have promised its tenant Slice House exclusive use of a portion of non-exclusive easem*ntover Plaintiff’s property for the exclusive outdoor dining of its patrons, notwithstanding that theeasem*nt at issue was originally contemplated to allow public ingress and egress, or exclusiveuse of a limited portion of the easem*nt in excess of its grant in exchange for a fee, with theapproval of Plaintiff, and for a limited period of time to be contemplated by contract. (ChauDecl. ¶¶ 24-28; Chau Decl. ¶ 20; Exh. C.)While Defendant’s Opposition reiterates that pursuant to the collective Easem*nt Agreemententered into with other retail property owners, that easem*nts (paseos) would “allow for outdoordining opportunities,” it does not address the issue that Slice House anticipates exclusive use of afairly large portion of the paseo at issue (over the non-exclusive easem*nt that burdens Plaintiff’sproperty); nor has it addressed the issue that prior tenants who engaged in partial-exclusive useof this easem*nt had prior approval from Plaintiff and paid for the right to exclusive access to aportion of that easem*nt across Plaintiff’s parcel for a limited period of time by way of monthlyrental payments. (Chau Decl. ¶ 20; Exh. C; Supp. Chau Decl. ¶ 9.)Defendant’s Opposition contends that the parties to the collective Easem*nt Agreement met as acommittee and “overwhelmingly voted to allow public access and shared use to all areas coveredby the Easem*nt Agreement within a window of hours from 6:00 AM to 11:00 PM daily.”(Oppo. p. 14: 25-28.) However, this statement ignores the fact that Defendant’s tenant SliceHouse does not expect to use the easem*nt area for “public access” but instead intends exclusiveuse of the “outdoor dining” portion of the easem*nt for its patrons. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV075116: CASTRO VALLEY INVESTMENT GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs CASTRO VALLEY MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Motion for Preliminary Injunction filed by Castro Valley Investment Group, LLC, a California limited liability company (Plaintiff) in Department 17At issue in this litigation is whether the collective Easem*nt Agreement between the parties andother retail property owners supersedes individual agreements between adjoining propertyowners and their respective tenants, whether exclusive use of a non-exclusive easem*nt (ascontemplated by Slice House) exceeds the grant of the easem*nt at issue, and whether Plaintiffhas a right to demand payment in exchange for use of its easem*nt that overburdens the easem*ntand exceeds the scope of its grant.Although these issues remain to be litigated in this action, based on the evidence before thiscourt, Plaintiff has a strong likelihood of prevailing on the merits.It also appears that irreparable harm would result from the denial of a preliminary injunction andthat issuing an injunction later, after Slice House commences operations and uses the easem*ntas anticipated, would require the issuance of a mandatory injunction (that changes the status quo)where issuing one now would only require a prohibitory injunction (to maintain the status quo)because no offending use by Slice House has yet taken place.Currently, the status quo is that Slice House has not yet began its exclusive use of a portion ofthe non-exclusive easem*nt at issue. However, because it is slated to commence operationsshortly, a preliminary injunction is proper because Plaintiffs have demonstrated a likelihood ofprevailing and have additionally shown that the balance of harms weighs in their favor based onSlice House’s anticipated use of the easem*nt. (Poniatowski Decl. ¶¶ 12-14; Chau Decl. ¶ 8; 20;24-28; Exhs. B; C; Supp. Chau Decl. ¶ 9.) Plaintiff’s motion for preliminary injunction istherefore granted. (Code Civ. Proc., §§ 527, subd. (a); 3387.)II. Joinder of Necessary Parties (Code Civ. Proc., § 389)As noted above, final adjudication of the present action could leave other parties to the Easem*ntAgreement and Defendant’s tenant Slice House with “inconsistent obligations” if a permanentinjunction is issued in their absence. Therefore, Plaintiff is ordered to join all other members ofthe Easem*nt Agreement and Slice House as additional named defendants in this action.In the meantime, following issuance of a preliminary injunction, this matter will be stayedpending a declaration from Plaintiff’s counsel that attaches copies of proofs of serviceconfirming that all indispensable parties (other members of the collective Easem*nt Agreementand Slice House) have been effectively joined and served. (Code Civ. Proc., § 389.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV075116: CASTRO VALLEY INVESTMENT GROUP, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY vs CASTRO VALLEY MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Motion for Preliminary Injunction filed by Castro Valley Investment Group, LLC, a California limited liability company (Plaintiff) in Department 17If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, theTentative Ruling will become the order of the court.HOW DO I CONTEST A TENTATIVE RULING?THROUGH ECOURTNotify the Court and all the other parties no later than 4:00 PM one court day before thescheduled hearing, and briefly identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal2. Case Search3. Enter the Case Number and select “Search”4. Select the Case Name5. Select the Tentative Rulings Tab6. Select “Click to Contest this Ruling”7. Enter your Name and Reason for Contesting8. Select “Proceed”BY EMAILSend an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM onecourt day before the scheduled hearing. This will permit the department clerk to send invitationsto counsel to appear remotely.BOTH ECOURT AND EMAIL notices are required.

Ruling

KAPSCH TRAFFICCOM USA, INC., A DELAWARE VS. GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION ET AL

Jul 24, 2024 |CGC23611275

Matter on the Law & Motion calendar for Wednesday, July 24, 2024, Line 5. DEFENDANT GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT's DEMURRER to COMPLAINT. Off calendar as moot. First amended complaint filed. =(302/RBU)

Ruling

FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS

Jul 24, 2024 |FCS059237

FCS059237Motion to Compel ArbitrationTENTATIVE RULINGThe Court (Department Seven) self recuses pursuant to CCP Section 170.1(b)(6)(iii).Pursuant to the direction of Judge Stephen Gizzi, Supervising Judge of the CivilDivision, the matter is reassigned and continued to August 1, 2024 at 9:30 a.m.,Department Three.

Ruling

SINGH vs FORD MOTOR COMPANY, A DELAWARE LIMITED LIABILITY COM...

Jul 25, 2024 |Civil Unlimited (Breach of Rental/Lease Contra...) |24CV067605

24CV067605: SINGH vs GENERAL MOTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Demurrer GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES; filed by GENERAL MOTORS, LLC, A Delaware Limited Liability Company (Defendant) in Department 517Tentative Ruling - 07/22/2024 Keith FongThe Demurrer filed by GENERAL MOTORS, LLC, A Delaware Limited Liability Company on06/03/2024 is Sustained in Part.Defendant General Motors, LLC’s demurrer is SUSTAINED IN PART and OVERRULED INPART. The demurrer to the Third Cause of Action for Fraudulent Concealment is SUSTAINEDWITH LEAVE TO AMEND. The demurrer to the Fourth Cause of Action for Violation of CivilCode § 1750 (Consumer Legal Remedies Act) is OVERRULED.Defendant General Motors, LLC’s motion to strike is GRANTED.BACKGROUNDOn or about March 5, 2023, Plaintiff Kapaldev Singh (“Plaintiff”) purchased a 2023 ChevroletSilverado 1500 (“the Subject Vehicle”). (First Amended Complaint ¶ 5.) The vehicle wasaccompanied by warranties issued by Defendant General Motors, LLC (“Defendant” or “GM”).Plaintiff initially filed this action against GM on March 13, 2024. The operative First AmendedComplaint (“FAC”) filed on April 16, 2024 alleges violations of the Song-Beverly Act (“SBA”),fraudulent concealment, and violation of Civil Code § 1750, also known as the Consumers LegalRemedies Act (“CLRA”).LEGAL STANDARDA demurrer tests the legal sufficiency of factual allegations in a complaint. (Title Ins. Co. v.Comerica Bank-California (1994) 27 Cal.App.4th 800, 807.) A plaintiff must plead facts as arenecessary to acquaint a defendant with the nature, source and extent of her claims to providedefendant with notice of the issues sufficient to enable preparation of a defense. (Doe v. City ofLos Angeles (2007) 42 Cal.4th 531, 570.) A court should not sustain a general demurrer unlessthe complaint liberally construed fails to state a cause of action on any theory. (Kramer v. IntuitInc. (2004) 121 Cal.App.4th 574, 578.)The court may strike any “irrelevant, false, or improper matter inserted in any pleading,” or maystrike out all or any part of a pleading “not drawn or filed in conformity with the laws of thisstate, a rule of court, or an order of the court.” (Code Civ. Proc., § 436.) In order to survive amotion to strike an allegation of punitive damages, the ultimate facts showing an entitlement tosuch relief must be pled by a plaintiff.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255; SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV067605: SINGH vs GENERAL MOTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Demurrer GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES; filed by GENERAL MOTORS, LLC, A Delaware Limited Liability Company (Defendant) in Department 517accord Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004,1055.) A complaint that describes conduct from which a conscious disregard for parties’ rightsmay be inferred is sufficient to state a cause of action for punitive damages. (SKF Farms v. Sup.Ct. (1984) 153 Cal.App.3d 902, 907.) However, conclusory allegations, devoid of any factualassertions, are insufficient to support a conclusion that parties acted with oppression, fraud ormalice. (Smith v. Sup. Ct. (1992) 10 Cal.App.4th 1033, 1042.)DISCUSSIONGM now demurs to the third cause of action for fraudulent concealment and the fourth cause ofaction for violation of the CLRA on the grounds that: (1) Plaintiff fails to plead fraud withspecificity; (2) Plaintiff failed to provide proper notice of its CLRA claim pursuant to Civil Code§ 1782; and (3) Plaintiff fails to allege facts sufficient to state a claim for violation of the CLRA.Meet and Confer Requirement Not MetAs an initial matter, the parties dispute whether a substantive meet and confer discussion tookplace prior to the filing of the demurrer, pursuant to C.C.P. § 430.41. GM’s counsel states that hemet and conferred telephonically with Plaintiff’s counsel on May 31, 2024. (Kay Dec. ¶ 2.)However, Plaintiff’s counsel states that his office found no records of any efforts by GM to meetand confer prior to the filing of the demurrer. (Barry Dec. ¶ 5.) GM does not address this issue onReply.Moreover, while not raised by Plaintiff, the Court notes that GM’s stated date of meet andconfer, Friday, May 31, 2024, was only three calendar days, and one court day, prior to GMfiling its demurrer on Monday, June 3, 2024. C.C.P. § 430.41, subdivision (a)(2) requires themeet and confer to take place at least five days before filing the demurrer.A determination of an insufficient meet and confer process does not provide grounds to sustainor overrule a demurrer. (C.C.P. §430.41(a)(4).)The parties are reminded that future meet and confer must include discussion in person, bytelephone or video conference. Exchanging correspondence alone will not satisfy the Court’smeet and confer requirement. Department 517 requires parties to meet and confer prior tosubmitting any motion or request to the Court. Each request shall include a certification bycounsel that the parties have met and conferred in a good faith effort to resolve the particulardispute without judicial intervention. If this requirement is not satisfied, the Court may, in itsdiscretion, decline to consider the request.Third Cause of Action – Fraudulent Concealment SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV067605: SINGH vs GENERAL MOTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Demurrer GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES; filed by GENERAL MOTORS, LLC, A Delaware Limited Liability Company (Defendant) in Department 517The elements of a cause of action for fraud based on concealment are (1) defendant must haveconcealed or suppressed a material fact, (2) the defendant must have been under a duty todisclose the fact to the plaintiff, (3) the defendant must have intentionally concealed orsuppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have beenunaware of the fact and would not have acted as he did if he had known of the concealed orsuppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiffmust have sustained damage. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-11.)GM contends that Plaintiff’s fraud claims are not pleaded with requisite specificity. A cause ofaction for fraud “must be pled specifically; general and conclusory allegations do not suffice.”(Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Hamilton v. Greenwich Investors XXVI,LLC (2011) 195 Cal.App.4th 1602, 1614.) To satisfy “ ‘[t]his particularity requirement,’ ” aplaintiff must plead “ ‘facts which “show how, when, where, to whom, and by what means therepresentations were tendered.” ’ ” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645; e.g.Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 838-39[the pleadings must allege, how the statements were made, when the statements were made,where the statements were made, to whom the statements were made and the means by whichthey were made].) The specificity requirement applies to both affirmative misrepresentation andconcealment claims. (Cansino v. Bank of Am. (2014) 224 Cal.App.4th 1462, 1472.)The fraud allegations set forth in Paragraphs 14-18, 33, 40-41, 59, 61-65, 81, 110, 115, and 124fail to satisfy the specificity requirements set forth above. Moreover, there are no facts in thoseparagraphs establishing that any of the alleged fraudulent conduct pertained to the SubjectVehicle.The demurrer to the third cause of action for fraudulent concealment is SUSTAINED WITHLEAVE TO AMEND. If Plaintiff chooses to do so and can do so in good faith, Plaintiff may filean amended pleading that sufficiently alleges a claim for fraudulent concealment with therequisite specificity.Notice of the CLRA ClaimGM argues that Plaintiff failed to provide proper notice of its CLRA claim pursuant to CivilCode § 1782. Thirty days prior to the commencement of an action for damages for a violation ofthe CLRA, a consumer is required to notify the person alleged to have employed or committedmethods, acts, or practices in violation of the CLRA and demand that the person correct, repair,replace, or otherwise rectify the goods alleged to be in violation. (Civil Code § 1782(a)(1)-(2).)The FAC states that Plaintiff complied with Civil Code § 1782 and provided notice to SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV067605: SINGH vs GENERAL MOTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Demurrer GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES; filed by GENERAL MOTORS, LLC, A Delaware Limited Liability Company (Defendant) in Department 517Defendants on March 13, 2024, the same date that Plaintiff filed the original complaint. (FAC ¶127.) A consumer’s alleged failure to comply with CLRA notice requirements before filing theircomplaint seeking damages under the CLRA does not require dismissal of the CLRA claim,where the consumer sends the required notice more than thirty (30) days before the most recentamended complaint. (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235,1260.)Here, Plaintiff alleges that they provided notice on March 13, 2024. (FAC ¶ 127.) The notice wasmore than thirty days before Plaintiff filed the First Amended Complaint on April 16, 2024. Assuch, Plaintiff has complied with Civil Code § 1782’s notice requirement.The demurrer to the fourth cause of action on the grounds of failure to provide timely notice isOVERRULED.Fourth Cause of Action – Violation of the CLRAThe Consumers Legal Remedies Act establishes a non-exclusive statutory remedy for unfairmethods of competition and unfair or deceptive acts or practices undertaken by any person in atransaction intended to result or which does result in the sale or lease of goods or services to aconsumer. (Bardin v. Daimlerchrysler Corp. (2006) 136 Cal.App.4th 1255, 1275.) To adequatelyplead a claim under the CLRA, a plaintiff must allege that she relied on a defendant’s allegedmisrepresentation and that she suffered economic injury as a result. (Moore v. Apple, Inc. (N.D.Cal. 2014) 73 F.Supp.3d 1191, 1200.) Although a claim may be stated under the CLRA in termsconstituting fraudulent omissions, to be actionable, the omission must be contrary to arepresentation actually made by the defendant, or an omission of a fact the defendant wasrequired to disclose. (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th824, 835.)GM argues that Plaintiff’s fourth cause of action, like the third cause of action, is not plead with“the required specificity.” (Demurrer at p. 14.) However, a cause of action under the CLRA mustbe stated with reasonable particularity, which is a more lenient pleading standard than thespecificity standard applied to fraud claims. (Gutierrez v. Carmax Auto Superstores California(2018) 19 Cal.App.5th 1234, 1261.) For purposes of rule requiring that allegations of fraud bepleaded with particularity, fraud is not an essential element of a claim under the CLRA.(Nordberg v. Triolegiant Corp. (N.D. Cal. 2006) 445 F.Supp.2d 1082, 1097.)Plaintiff alleges that GM made material omissions by failing to tell or make Plaintiff aware thatthe Subject Vehicle had a defective omission, which was material to Plaintiff’s decision topurchase the Subject Vehicle. (FAC ¶¶ 33, 66, 93, 96.) The FAC alleges that Plaintiff sufferedeconomic injury as a result of GM’s material omissions. (Ibid.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV067605: SINGH vs GENERAL MOTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Demurrer GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES; filed by GENERAL MOTORS, LLC, A Delaware Limited Liability Company (Defendant) in Department 517Plaintiff adequately alleges a cause of action for violation of the CLRA. The demurrer to thefourth cause of action is OVERRULED.MOTION TO STRIKEGM separately filed a motion to strike Plaintiffs’ request for punitive damages. Specifically, GMcontends that the only cause of action alleged in the FAC that could support a punitive damagesaward is the fraud claim. Thus, to the extent that the Court sustains the demurrer to the fraudclaim, there is no longer any basis for an award of punitive damages.LEAVE TO AMENDPlaintiff is granted leave to amend as to the fraudulent concealment claim and the related requestfor punitive damages. Plaintiff shall file an amended pleading by or before August 9, 2024.(C.R.C. 3.1320(g).)HOW DO I CONTEST A TENTATIVE RULING?THROUGH ECOURTNotify the Court and all the other parties no later than 4:00 p.m. (but by Noon if possible) at leastone (1) court day before the scheduled hearing, and briefly identify the issues you wish to arguethrough the following steps:1. Log into eCourt Public Portal2. Case Search3. Enter the Case Number and select “Search”4. Select the Case Name5. Select the Tentative Rulings Tab6. Select “Click to Contest this Ruling”7. Enter your Name and Reason for Contesting8. Select “Proceed”BY EMAILSend an email to the DEPARTMENT CLERK and all the other parties no later than 4pm (but byNoon if possible) at least one (1) court day before the scheduled hearing.BOTH ECOURT AND EMAIL notices are required. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV067605: SINGH vs GENERAL MOTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY 07/25/2024 Hearing on Demurrer GENERAL MOTORS LLC’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS OF AUTHORITIES; filed by GENERAL MOTORS, LLC, A Delaware Limited Liability Company (Defendant) in Department 517ZOOM LOG-IN INFORMATION FOR DEPARTMENT 517 IS BELOW.Join ZoomGov Meetinghttps://www.zoomgov.com/j/16181989812Meeting ID: 161 8198 9812One tap mobile+16692545252,,16181989812# US (San Jose) 16692161590,,16181989812# US+(San Jose)Dial by your location+1 669 254 5252 US (San Jose)+1 669 216 1590 US (San Jose)+1 551 285 1373 US+1 646 828 7666 US (New York)833 568 8864 US Toll-freeMeeting ID: 161 8198 9812Find your local number: https://www.zoomgov.com/u/ad6x1ZH23dJoin by SIP16181989812@sip.zoomgov.comJoin by H.323161.199.138.10 (US West)161.199.136.10 (US East)Meeting ID: 161 8198 9812

Ruling

TRILLIUM PARTNERS, L.P., A DELAWARE LIMITED PARTNERSHIP vs NUTRANOMICS, INC., A WYOMING CORPORATION

Jul 22, 2024 |CVPS2305959

TRILLIUM PARTNERS, L.P., ADELAWARE LIMITEDCVPS2305959 PARTNERSHIP vs Application for Writ of PossessionNUTRANOMICS, INC., AWYOMING CORPORATIONTentative Ruling: Granted.Trillium’s security interest in the property is a senior security interest to Happy Hours’ implied securityinterest in the property to recover storage costs from the tenant.Court will sign proposed order for writ of possession filed March 8, 2024. However, $50,000.00undertaking will be required pursuant to CCP 515.010 within 10 days of this order becoming final forclerk to issue the writ of possession.Moving party to provide notice pursuant to CCP 1019.5.From April 2022 to July 2022 defendant Nutranomics Inc. entered into a series of loans with plaintiffTrillium Partners L.P., under which Trillium lent Nutranomics something in the neighborhood of$1,660,000. On each loan Trillium took a security interest in certain property owned by Nutranomics.Nutranomics fell into default, and in addition in August of 2023 was evicted from the tenancy at whichthe property was held by its landlord, defendant Happy Hours LLC. As a result of the eviction, HappyHours is now in possession of the security on the Trillium loans. Trillium filed this action against HappyHours and Nutranomics. Happy Hours initially defaulted but has obtained relief from that and hasanswered the complaint, while Nutranomics and a third defendant, DHS Development, have beenserved; Nutranomics is currently in default.Trillium now seeks a writ of possession as to the secured equipment, which Happy Hours opposes.Writ of PossessionUpon the filing of the complaint or at any time thereafter, a plaintiff may apply for a writ of possession.(Cal. Code Civ. Pro § 512.010(a). The application shall include all of the following:1. A showing of the basis of the plaintiff’s claim that the plaintiff is entitled to possession, includingthe written instrument;2. A showing that the property is wrongfully detained by defendant and of the manner in whichdefendant came into possession and the reason for the detention;3. A particular description of the property and a statement of its value;4. A statement of the property’s location based on plaintiff’s knowledge, information and belief; and5. A statement that the property has not been taken for a tax, assessment or fine pursuant to astatute; or seized under an execution against the property; or if so seized, that it is by statuteexempt from such seizure.(C.C.P. §512.010(b).) The court may order the defendant to transfer possession of the property to theplaintiff. (C.C.P. §512.070.) The property sought to be recovered must exist in a concrete or tangibleform, capable of identification and seizure and the writ does not issue for intangibles such as bankaccounts. (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group 2023) §9:768.)in addition to establishing the probable validity of the claim of possession, in order to obtain a writ ofpossess or TRO, Petitioner must post a bond that is equal to twice the value of Respondent’s interestin the property, which is the market value less amounts of liens or balances due under the conditionalsales contracts or security agreements. (C.C.P. §515.010(a).)At or after the time a plaintiff files an application for writ of possession, he or she may apply for atemporary restraining order if: (1) the plaintiff has established the probable validity of his claim topossession of the property; (2) the plaintiff has provided an undertaking; (3) the plaintiff has establishedthe probability that there is an immediate danger that the property claimed may become unavailable tolevy by reason of being transferred, concealed, or removed or may become substantially impaired invalue. (C.C.P. §513.010.)The party requesting a writ of possession must establish the probable validity of his or her claim topossession of the property, which means that it is more likely than not that the plaintiff will obtain ajudgment against the defendant on the claim. (RCA Service Co. v. Superior Court (1982) 137Cal.App.3d 1, 3.) The defendant may not retain wrongful possession of property even if he or she hasa valid claim for damages against the plaintiff. (RCA Service Co., 137 Cal.App.3d 1, 3.)Here, the procedural requirements of the application have been met and plaintiff’s claim obviously hasprobable validity over Nutranomics, which is in default. The question raised by the parties is whetherHappy Hours claim for storage fees has priority over Trillium’s right to repossess the collateral. UnderC.C.P. §1174(h), if personal property is left on rental property after execution of an unlawful detainerjudgment, “[t]he landlord shall release the personal property pursuant to Section 1965 of the Civil Codeor shall release it to the tenant or, at the landlord’s option, to a person reasonably believed by thelandlord to be its owner if the tenant or other person pays the costs of storage as provided in Section1990 of the Civil Code and claims the property not later than the date specified in the writ of possessionbefore which the tenant must make his or her claim or the date specified in the notice before which aperson other than the tenant must make his or her claim.”Early versions of the statute were either silent as to what to do with the tenant’s property or requiredthe county to store leftover property; “[t]he 1968 amendment with which we are here concerned shiftedthe duty of storing the tenant’s property to the plaintiff landlord and provides that the reasonable costsof storage incurred by the landlord are to be reimbursed to him either by the tenant, if the property isredeemed by him, or out of the proceeds realized upon a public sale of the property if it is not redeemedby the tenant as prescribed in the statute.” (Gray v. Whitmore (1971) 17 Cal.App.3d 1, 15.) Under thestatute “a deposit for purposes of storage is created by the terms of the statute and the landlordbecomes a depositary for the safekeeping of the property for the benefit of the tenant.” (Gray, 17Cal.App.3d 1, 16.) “To secure the payment of such compensation section 1174, in essence, gives theplaintiff a special lien on the property dependent on possession.” (Gray, 17 Cal.App.3d 1, 16.)Insofar as the landlord has something in the nature of a lien on the property, however, there is no reasonto conclude that the landlord’s lien is senior to an earlier created security interest in favor of plaintiffhere. In general, conflicting security interests are ranked in priority of time of filing or perfection.(Commercial Code §9322.) There are various exceptions but nothing in the language of C.C.P. §1174or Civil Code §1965 suggest that an interest of a landlord as depository achieves priority over existingsecurity interests in property.The language of section 1174(h) only suggests a right to recover costs of deposit from the tenant or bythe owner of the property being held. Trillium, it bears noting, is neither of these. It is the holder of asecurity interest in the property, while Nutranomics remains both the tenant and the owner of theproperty. Like any other person taking a junior interest in a security, Happy Hours runs the risk of havingits interest in the security extinguished by a senior security interest; this does not give it the right towithhold the property from the holder of senior security interest. Neither of Happy Hours’ briefs provideany argument as to why a section 1174 interest in the property should be deemed superior to apreexisting security interest, nor does it analyze the statutory language in any way that explains whythe holder of a senior security interest should be required to pay the tenant’s storage expenses beforeseizing or foreclosing on the property.Also troublesome is Happy Hours’ claim that it has incurred storage costs of $900,266.22 from theAugust 2023 eviction through April 19, 2024. (Nichani declaration, ¶8.) By Happy Hours’ own account,this is $4,142.67 per day. (Opposition to Writ of Possession, p. 6.) There is no explanation for whystorage costs are so high—no description of the property being held, its size or any special needs inmaintaining it, no calculation performed or explained. The size of the storage space is not given. Abald statement that the storage costs are $124,280 a month, without any further explanation, has noevidentiary value to the court in attempting to determine a reasonable bond to require.

Ruling

Janet K Harris vs Ryan Darrell Reed et al

Tentative not yet posted please check again.

Ruling

FCS058678 - ALL BAY BUILDERS V WELTER, IAN, ET AL (DMS)

Jul 25, 2024 |FCS058678

FCS058678Defendants/cross-complainants’ motions to deem matters admitted and for sanctionsTENTATIVE RULINGDefendants/Cross-Complainants Ian Welter and Jennifer Welter bring 3 motions todeem matters admitted as follows:1) Motion to Deem Requests for Admission, Set One, Admitted as to Charles Littlefieldindividually and dba All Bay Builder [sic];2) Motion to Deem Requests for Admission, Set One, Admitted against Plaintiffs/Cross-Defendants All Bay Builders, Inc. and3) Motion to Deem Requests for Admission, Set Two, Admitted against Plaintiffs/Cross-Defendants All Bay Builders, Inc.The Complaint in this matter was filed on August 22, 2022. On February 3, 2023,Defendants filed their Answer and Cross-Complaint. A Notice of Acknowledgment andReceipt was executed by Plaintiff Charles Littlefield individually and dba All Bay Buildercounsel on March 27, 2023. No Proof of Service or Notice of Acknowledgment andReceipt is contained in the court file as to Plaintiff All Bay Builders, Inc.On May 8, 2023 a Substitution of Attorneys was filed as to plaintiff/cross-defendant “AllBay Builders”. Plaintiff’s counsel Elizabeth Lawley substituted out of the case and AllBay Builders was named the successor legal representative. No new attorney hassubstituted into the case on behalf of any of the plaintiffs/cross-defendants. One of thecross-defendants is a corporation and must be represented by an attorney.On June 21, 2023, counsel for Defendants/Cross-Complainants requested the entry ofdefault as to All Bay Builders, Inc. and Charles Littlefield, individually and dba All BayBuilder [sic]. The defaults were entered as to Plaintiffs/Cross-Defendants. Page 2 of 3On December 8, 2023 Defendants/Cross-Complainants served Requests for Admission,Set One on All Bay Builders, Inc. On February 6, 2024 Defendants/Cross-Complainants served Requests for Admission, Set Two on All Bay Builders, Inc. OnFebruary 6, 2024 Defendants/Cross-Complainants served Requests for Admission, SetOne on Charles Littlefield individually and dba “All Bay Builder” on February 6, 2024.No responses have been received to any of the requests for admission.On June 12, 2024 the instant motions were filed.Counsel for the moving parties has not provided any authority upon which she relies forthe principle that a defaulted party can be compelled to respond to discovery servedmore than 5 months after his or their defaults were taken. Once the clerk enters adefault in the court record, that defendant is no longer able to file a response orotherwise participate in the case. It is unclear why discovery was not served ondefendants while they were still represented or before their defaults were taken. It isequally unclear why defendants, after losing their rights to file pleadings or defend theirposition, should be forced to respond to discovery.All three motions are denied. Sanctions are denied. Page 3 of 3

Ruling

EAKINS vs STATE FARM GENERAL INSURANCE COMPANY

Jul 22, 2024 |CVSW2400585

EAKINS VS STATE FARMCVSW2400585 GENERAL INSURANCE DEMURRER TO COMPLAINTCOMPANYTentative Ruling: CONTINUE to September 26, 2024.

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