Tentative Rulings

The Tentative Rulings for Monday, July 29, 2024, are:

Re:                Marcelino, Juan Millan vs. Helena Chemical Company

Case No.:  VCU301385

Date:           July 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Plaintiff Hidalgo’s Counsel’s Motion to be Relieved

Tentative Ruling: To grant the motion

Facts

On June 29, 2024, Plaintiff’s Counsel Theodore Kreit filed a motion to be relieved as counsel as to Plaintiff Estanislao Hidalgo. Plaintiff’s Counsel filed the following with respect to withdrawing:

(1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel;

(2) MC-052 – Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Plaintiff’s Counsel has filed proofs of service of these documents by mail.

Authority and Analysis

Code of Civil Procedure section 284 provides that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

California Rule of Court 3.1362(a) requires that the “notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).”

As noted above, Attorney Kreit has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to Plaintiff.

California Rule of Court 3.1362 (c) further mandates that: “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a “Substitution of Attorney” from the client as required under CCP §284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052 and uses general terms without compromising confidentiality. The declaration states that counsel, despite attempts to contact Plaintiff by telephone, by letters to last known address, by a public records search and by sending an investigator to canvass the last known address area, has been unable to locate or contact Plaintiff. The investigator indicates contact with one of Plaintiff’s relatives and that Plaintiff has left the country without plans to return.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail on June 28, 2022 to the last known address.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Plaintiff’s Counsel has complied with this requirement.

Given the declaration of counsel, the Court grants the motion to withdraw and will sign the order lodged with the motion and declaration.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Toor Farming, LLC vs. Kaitech Automation

Case No.:   VCU294686

Date:           July 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Defendant Jerel Nelson’s Motion to Quash Summons of Service Based on Personal Jurisdiction

Tentative Ruling: To permit Plaintiff to take jurisdictional discovery, to continue this hearing to October 28, 2024, 8:30 am, Dept. 7 and to set a briefing schedule as to supplemental filings as indicated herein.

Facts

Plaintiff, in its first amended complaint, alleges causes of action for breach of contract, money had and received and intentional misrepresentation against Defendants Kaitech Automotive and Jerel Nelson.

Plaintiff alleges that on or about January 21, 2022, Defendant Kaitech sent a proposal for a robotic system and agreed to deliver it within 20-24 weeks of Plaintiff approving the proposals in exchange for $172,363.25. (FAC ¶¶11, 12.) Plaintiff thereafter approved the propels. (FAC ¶12.)

Defendant Kaitech delivered an invoice on February 1, 2022 for the full amount and Plaintiff, in reliance thereof, obtained financing for payment of the system. (FAC ¶¶ 12, 13.) Defendant Kaitech was paid in full in or around February 2022. (FAC at ¶ 13.)

In or around July 2022, Plaintiff contacted Kaitech as to the status of the order, but Kaitech’s response was that it was going out of business, would not be able to complete production and offered to deliver the incomplete system. (FAC ¶14.) Further, Defendant Kaitech refused to refund the payment. (FAC ¶14.)

Plaintiff alleges that Defendant Nelson is the alter ego of Kaitech. (FAC ¶¶15, 22, 27.)

Plaintiff further alleges, as to fraud, that Defendants, both of them, represent to Plaintiff they had the expertise and financial wherewithal to manufacture and deliver the robotics system, that when these statements were made, they were false and that Plaintiff reasonably relied on these statements. (FAC ¶¶29, 30, 31, 32, 33.)

Defendant Nelson was served personally in Idaho on May 21, 2024.

On June 20, 2024, Defendant Nelson filed this motion to quash service the basis that this Court lacks personal jurisdiction over Nelson. In support, Nelson provides a declaration that he has lived in Idaho since 1987, did not travel to California to seek Plaintiff’s business and that the relationship with Plaintiff was established by sales personnel who engaged in general promotion activity leading to the contract described in the amended complaint. (Declaration of Nelson ¶¶2, 3.) The work on the robotic system took place in Idaho, where Defendant Kaitech has its headquarters. (Declaration of Nelson ¶4.)

In opposition, Plaintiff states that Nelson was the primary point of contact for Kaitech, that Plaintiff’s agent discussed the terms of the project proposal and status thereof directly with Nelson. (Declaration of Hundal ¶3, 4, 5.) Plaintiff further declares it communicated with Nelson exclusively by email and phone. (Declaration of Hundal ¶6.) The declarant adds: “Through the negotiations and finalization of the agreement, Nelson represented to me that Kaitech, as a reputable and legitimate corporation, would be able to deliver on its promise to create a robotic automated palletizing system.” (Declaration of Hundal ¶7.)

Authority and Analysis

General Jurisdiction

“General jurisdiction results where the defendant’s contacts with the forum state are so systematic and continuous as to make it consistent with traditional notions of fair play and substantial justice to subject the defendant to the jurisdiction of the forum, even where the cause of action is unrelated to the contacts.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, 536.)

Plaintiff concedes that this Court lacks general jurisdiction over Nelson. 

Specific Jurisdiction

In order to establish specific jurisdiction “[t]here must be ‘an affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that take splace in the forum State and is therefore subject to the State’s regulation.’” (See Bristol-Myers Suibb. Co. v. Superior Court (2017) 582 U.S. 255, 262.)

“When a defendant challenges jurisdiction through a motion to quash, the plaintiff bears the burden to demonstrate facts, as to each nonresident defendant, justifying the exercise of jurisdiction by a preponderance of evidence. [Citation.] The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair and Logistics, LP (2016) 5 Cal.App.5th 215, 221-222.) (emphasis added.)

“It is generally true that the defendant’s own contacts are considered for the purpose of jurisdiction [citation omitted.], but corporate veils may be pierced and agents’ activities may be considered in appropriate cases.” Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 458, fn. 7.)

Here, Plaintiff claims that Nelson, acting as the corporate officer for Kaitech, directly participated in making promises to them. Conversely, Nelson claims that he never directly worked with Plaintiff.

Plaintiff also contends that Nelson was directly involved in the formation and execution of the agreement. As with the above, Nelson conversely claims that he conducted this business through an employee of the business. T

This directly relates to the remaining causes of action because if Nelson was personally involved and was acting as the alter ego, then may be subject to specific personal jurisdiction. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 537-543.)

In any event, the Court need not resolve these factual disputes on the basis of opposing declarations. The Court grants Plaintiff’s request to conduct jurisdictional discovery and continue this hearing. (See HealthMarkets, Inc. Superior Court (2009) 171 Cal.App.4th 1160, 1173 [holding “[a] trial court has the discretion to continue the hearing on a motion to quash service of summons for lack of personal jurisdiction to allow the plaintiff to conduct discovery on jurisdictional issues”].) Plaintiff should be permitted to conduct discovery regarding Nelsons alleged contacts with California, including Plaintiff. The Court finds a sufficient showing via Plaintiff’s declaration as to a basis in fact  for jurisdictional discovery, such that the Court concludes discovery is likely to produce evidence of California contacts sufficient for personal jurisdiction. (See In re Automobile Antitrust Cases (2005) 136 Cal.App.4th 100, 127 ["In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction"].)

Upon completion of this jurisdictional discovery, the Court will properly determine specific jurisdiction. The Court will provide 60 days to complete discovery (subject to adjustment as to any disputes or motions to compel) and an additional 30 days for supplemental filings.

The Court, therefore, continues this hearing on the motion to quash to October 28, 2024, 8:30 am, Dept. 7 and sets a briefing schedule as follows as to supplemental filings: Plaintiff’s supplemental opposition is due no later than September 30, 2024 and Defendant Nelsons’ supplemental reply is due no later than October 14, 2024.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Mendoza, Faustino vs. Betancourt, David

Case No.:   VCU308403

Date:           July 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Defendants’ Demurrer

Tentative Ruling: To sustain the demurrer with ten (10) days leave to amend.

Facts

Plaintiffs allege that, on September 30, 2015, Plaintiffs and Defendant David Betancourt entered into an oral agreement as to Plaintiffs’ purchase of 363 Homassel Avenue (“Subject Property.”) (Complaint ¶1.) Plaintiffs and Defendant David agreed that Plaintiffs would pay Defendant David the sum of $85,000 as the purchase price. (Complaint ¶2.)

For seven (7) years prior to this alleged oral agreement, Plaintiffs had been residing in the Subject Property and paying Defendant David $480 per month in rent. (Complaint ¶2.)

In October 2015, Plaintiffs allege they clarified the terms of the oral contract, and pursuant thereto, made an initial payment of $22,500 and then made mortgage payments thereafter directly to Defendants until the Subject Property was paid off in full. (Complaint ¶¶3, 5) Plaintiffs and Defendant David also agreed that Plaintiffs would thereafter pay all property taxes and “also agreed that the subject property would be placed in both Plaintiffs’ names.” (Complaint ¶4.)

The complaint then alleges that in December 2017, Plaintiff Claudia returned to Mexico to live there permanently, but payments continued to be made via Plaintiff Faustino’s account. (Complaint ¶¶6, 7.)

In 2015, the Subject  Property was in Defendant David Bentancourt’s name only, as Defendant Patrician Bentacourt had transferred the Subject Property to David in 2007. (Complaint ¶1.) However, the complaint alleges that in June 2021, Defendant David transferred all interest in the Subject Property to his wife, Defendant Patricia, as her sole and separate property. (Complaint ¶8.)

In November of 2021, Plaintiff Claudia came to the United States to speak with Defendant David, during which Defendant David told Plaintiff Claudia that he needed the remaining balance owed on the subject property (approximately $22,500) paid off in full as he wanted to purchase another property and his name being on the title of the Subject Property was complicating things for him. (Complaint ¶9.)

Plaintiff Claudia stated she could only pay him a lump sum payment of $15,000, which Defendant David refused to accept. (Complaint ¶9.)

The complaint further alleges that “Defendant David then offered to pay Plaintiffs the sum of $70,000 to essentially “buy back” the subject property, but Plaintiff Claudia refused to consider this.” (Complaint ¶10.)

Still around November 2021, Defendant David further told Plaintiff Claudia that he needed to get the Subject Property out of his name, so he wanted her to meet up with a notary public in order to sign documents which would place title of the property into Plaintiff Claudia’s name, despite having transferred the Subject Property to Defendant Patricia. (Complaint ¶11.) Plaintiff Claudia returned to Mexico without any further acts as to the Subject Property at that time and signed no documents. (Complaint ¶12.)

In February 2022, Plaintiff Faustino inquired as to how much was owed by Plaintiffs on the Subject Property, but Defendant David responded that the sums paid were rent payments because the “contract between Plaintiff Claudia and Defendant David” had been broken and that the alleged contract was only between Plaintiff Claudia and Defendant David. (Complaint ¶13, 14.)

In February or March 2022, Defendant David refinanced the Subject Property. (Complaint ¶15.)

In August 2022, Plaintiff Claudia returned and Defendant David informed her the Subject Property had been refinanced and claimed that Plaintiff Claudia told Defendant David “Well, you said 1 could do whatever I wanted with the property.” (Complaint ¶16.)

The complaint further alleges “Defendant David then stated ‘The house is mine anyway, because you never came back to sign the documents.’ Defendant David then assured Plaintiff Claudia that she didn’t need to worry because he would give her ‘about $40,000’ but needed a couple of years to gather the money and then offered to resell the Subject Property to Plaintiff Claudia at market price. (Complaint ¶¶17, 18.)

Defendant David claims the Subject Property “no longer belonged to Plaintiffs because they had failed to pay him the $22,500 he had demanded in November 2021.” (Complaint ¶19.)

Plaintiffs sue for breach of oral contract, specific performance and unjust enrichment.

Defendants demurrer to each cause of action, arguing the first two causes of action fail to satisfy the statute of frauds and fail to allege facts sufficient to constitute a cause of action and that the statute of limitations has expired as to all causes of action  expiration of the statute of limitations.

Authority and Analysis

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

Statute of Frauds

Defendants first demurrer to the first two causes of action for breach of oral contract and specific performance for failure to satisfy the statute of frauds.

Civil Code section 1624 provides that certain enumerated “contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent.” Contracts for the sale of real property are included within the statute of frauds (Civil Code §1623(a)(3).)

Here, the contract alleged is oral and concerns the purchase of real property. There is no written note or memorandum subscribed by Defendants as to this contract.

The Court notes exceptions to the statute of frauds, however. Therefore, the Court will sustain the demurrer as to the first and second causes of action for failure to satisfy the statute of frauds. Plaintiffs shall have ten (10) days from the date of  this hearing to file an amended complaint as to this statute of frauds issue.

Statute of Limitations

A claim for unjust enrichment lies even in the absence of an oral contract, where the plaintiff has “nonetheless ... conferred a benefit on the defendant which the defendant has knowingly accepted under circumstances that make it inequitable for the defendant to retain the benefit without paying for its value. [Citation.]” (Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938.)

Nevertheless, the statute of limitations for the third cause of action for unjust enrichment depends on the underlying theory on which recovery is sought. (Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 348.) Here the underlying theory is breach of oral contract and therefore the limitations period is two years. (Code Civ. Proc., § 339.) In order to sustain a demurrer based on the statute of limitations defect, the defect must clearly and affirmatively appear on the face of the complaint and it is not enough that the complaint might be barred. (Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, 1117.)

First, Plaintiffs appear to set the accrual date of June 2021, when Defendant David transferred title to the Subject Property to Defendant Patricia. (Opposition 5:18-20.) However, Plaintiffs argue that due to David’s intentional concealment of the breach, either the discovery rule or tolling applies to start the statute of limitations August 2022.

Discovery Rule

“An exception to the general rule for defining the accrual of a cause of action … is the discovery rule. [Citation.] It may be expressed by the Legislature or implied by the courts. [Citation.] It postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the  cause of action. [Citations.]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Under this rule, "[a] limitations period ... accrues no later than the time the plaintiff learns the facts essential to a particular cause of action. [Citations.]” (Bernson v. Browning—Ferris Industries (1994) 7 Cal.4th 926, 941.) The discovery rule applies to breach of contract (April Enterprises v. KTTV (1983) 147 Cal.App.3d 805, 832) and therefore the Court will apply it to the unjust enrichment claim. Additionally, Plaintiffs allege grounds of fraud, though not a cause of action for fraud, which appears sufficient under Code of Civil Procedure section 338(d).

“The provision tolling operation of the statute until discovery of the fraud has long been treated as an exception and, accordingly, this court has held that if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint." (Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 437.) 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. (See CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1536-37.) "Mere conclusory assertions that delay in discovery was reasonable are insufficient and will not enable the complaint to withstand general demurrer." (Id)

Here, the allegations of the complaint do not detail whether the June 2021transfer of title to Defendant Patricia was recorded or what steps as to reasonable diligence were made between June 2021 and August 2022. The Court notes that Defendant David is alleged to have changed the initial terms of the alleged oral contract as to requesting a second lump sum of $22,500 in November 2021. (Complaint ¶9.) However, Defendant David also made alleged deceptive statements in November 2021 that indicated he desired to remove his name from the Subject Property (despite having doing so in June 2021) and through further conversations about setting up a notary appointment. (Complaint ¶¶11, 12.) Defendant David is also alleged, sometime after February 2022, to have stated that the monthly sums paid from payments toward the purchase to rent payments and that the oral contract was only between Plaintiff Claudia and Defendant David. (Complaint ¶14.)

These facts, however, do not meet the requisite specificity as to the second element above of the delayed discovery rule as to the inability to have made earlier discovery despite reasonable diligence.

The Court, therefore, sustains the demurrer to the third cause of action with leave to amend as to the discovery rule.

Tolling

Plaintiffs also argue that the statute of limitations is tolled by fraud or concealment, citing, for instance to Mills v. Mills (1956) 147 Cal.App.2d 107. Mills holds generally that “When a party is guilty of fraudulent concealment of the cause of action the statute is deemed not to become operative until the aggrieved party discovers the cause of action” citing to Code of Civil Procedure section 338(4). (Id. at 121.) “To bring himself within section 338, subdivision 4, a party must allege when the fraud was discovered, the circumstances of the discovery, what the discovery was, and why it was not discovered sooner.” (Id.)

In the Court’s view, this mirrors the discussion of the discovery rule above and therefore the Court sustains the demurrer here for the same reasons, with leave to amend. The Court notes that its analysis of the discovery rule and/or tolling arguments apply equally to the first and second causes of action.

The Court will therefore sustain the demurrer, in its entirety, with leave to amend. A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Tafti, Farshad A. vs. Kings Petroleum LLC

Case No.:   VCL308375

Date:           July 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Plaintiff’s Motion to Strike Answer of Defendant LLC

Tentative Ruling: To grant the motion with leave to amend; Defendant shall have thirty (30) days from the date of this hearing to obtain counsel and file a responsive pleading.

Facts

Plaintiff filed this case against single Defendant, Kings Petroleum, LLC.

On May 31, 2024, Defendant filed an answer “in pro per.” The answer was served via mail on June 11, 2024.

On June 26, 2024, Plaintiff filed this motion to strike the answer on the basis that an LLC cannot represent itself. 

Authority and Analysis

Since a motion to strike an answer may be brought “within the time allowed to respond to a pleading,” and a demurrer to an answer must be brought within ten days following service of the answer, a motion to strike an answer must be filed within ten (10) days following service of the answer. (Code Civ. Proc. §§ 430.40(b), 435(b)(1); Cal. Rules of Court, rule 3.1322(b).)

Here, this motion appears timely, as Defendant served the motion by mail on June 11, 2024, within the ten (10) days requirement plus five (5) days for service by mail. (Code Civ. Proc. § 1013(a).)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) This provision is for “the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

“[U]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.  It must be represented by licensed counsel in proceedings before courts of record.”  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898 [“A composite rule in the decided cases, overwhelmingly sustained by the authorities, be thus stated: A natural person may represent himself and present his own case to the court although he is not a licensed attorney.  A corporation is not a natural person.  It is an artificial entity created by law and as such it can neither practice law nor appear or act in person. . . . [I]n matters in court it can act only through licensed attorneys.  A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona.” ].) 

The Court applies the same to Defendant, an LLC. Any attempt by the LLC to represent itself is improper and must Defendant must appear through an attorney. This includes filing an answer to the complaint.

The Court, therefore, grants the motion and strikes the answer. The Court will permit thirty (30) days for Defendant to retain counsel and file a responsive pleading to the complaint.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Midland Credit Management Inc. vs. Story, Michelle

Case No.:   VCL307717

Date:           July 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Continued Motion to Compel Arbitration Hearing

Tentative Ruling: To grant the motion. 

Facts

This is a debt collection matter.

Defendant moves to compel arbitration based upon the card member agreement’s term titled “Arbitration of Disputes Provision.” In support, Defendant attaches the card member agreement, which appears to be related to the underlying credit agreement.

The Agreement provides for arbitration of any claim arising out of or related to the card member agreement, waives jury trial, has a right to reject, defines the terms “we," “us,” and “our” to include successors or assigns, and defines claim as “any claim, dispute, or controversy between you and us that in any way arises from or relates to his Agreement…”

On July 11, 2024, Defendant filed a proof of service indicating service of the motion and accompanying documents on May 24, 2024, by mail, which appears to include the Answer as well as the motion and attached cardmember arbitration term.

No opposition appears to have been filed.

Authority and Analysis – Agreement to Arbitrate

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement.  They may do so by simply providing a copy of the arbitration agreement.  (Baker v. Italian Maple Holdings, LLC, 13 Cal. App. 5th 1152, 1160 (2017); Cal. Rules of Court, rule 3.1330.)  “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)  

Here, Defendant has met this burden through attachment of the agreement to arbitrate and Plaintiff has not opposed or otherwise challenge the agreement. Therefore, the Court finds that an agreement to arbitrate exists.

Authority and Analysis – Scope of Agreement

Plaintiff filed this action to collect a debt allegedly owed by Defendant. The agreement’s scope covers the claims in this matter, as they are a dispute between the parties involving the underlying credit account.

Plaintiff, having failed to oppose this motion, has not presented any grounds or defenses to the enforcement of the agreement.

Therefore, the Court grants the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Trujillo, Luis A Martinez vs. Ford Spraying, Inc.

Case No.:   VCU298017

Date:           July 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Continued Motion for Preliminary Approval of Class Action and PAGA Settlement

Tentative Ruling: To approve the preliminary settlement as indicated herein; to set the motion for final approval February 10, 2025, 8:30 am, Dept. 7.

Facts

The Court continued this motion as to a sixty (60) day notice period to object to or opt out of the proposed settlement. On July 17, 2024, Counsel submitted a supplemental declaration as to the modification of the approval period from 45 days to 60 days. (Supplemental Declaration of Donnelly ¶2.)

The preliminarily approved deductions from the gross settlement of $130,00 therefore are as follows:

Preliminarily Approved Attorney Fees (33.3%):	$43,333.33
Preliminarily Approved Attorney Costs (up to):	$9,000.00
Preliminarily Approved Enhancement Payment to Plaintiff:	$5,000.00
Preliminarily Approved Settlement Administrator Costs	$5,500.00
Preliminarily Approved PAGA Payment	$5,000.00
Preliminarily Approved Net Settlement Amount	$62,166.67

The Court sets the motion for final approval for February 10, 2025, 8:30 am, Dept. 7.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Martinez, Psalms vs. Saputo Dairy Foods USA, LLC

Case No.:    VCU294960

Date:            July 29, 2024

Time:             8:30 A.M. 

Dept.             7-The Honorable Gary M. Johnson

Motion:        Motion for Preliminary Approval of Class Action and PAGA Settlement

Tentative Ruling: To approve the preliminary settlement as modified herein; to set the motion for final approval February 10, 2025, 8:30 am, Dept. 7.

Facts

The Court continued this matter and ordered supplemental declarations as to the lodestar information to evaluate the request for attorneys’ fees and class notice period.

Class Notice

The settlement agreement provides no claim form will be required of class members to participate in distributions.  Only those wishing to object or opt out must file notice with the settlement administrator. 

Objections or opt out notices are now to be made within 60 days. (Supplemental Declaration of Marquez ¶4, 5.) The Court regularly approves notice periods of 60 days or longer. The class notice period is therefore approved.

Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $2,000,000 or $666,667 and actual costs not to exceed $60,000 (calculated by the Court  based upon the present costs incurred of $51,200.66)  are sought by Plaintiff’s counsel.

As to the Wilshire Law Firm, PLC, counsel indicates $187,375 lodestar consisting of 228 hours on rates ranging from $1,500 to $175. (Supplemental Declaration of Marquez ¶6, 7.)

However, the Court will reduce the hourly rates, as $1,500 is simply not the rate “…prevailing in the community for similar work.”  (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

The Court, therefore, adjusts the Wilshire Law Firm, PLC hourly rates as follows:

Name	Stated Hourly Rate	Approved Hourly Rate	Hours	Preliminarily Approved Total
Justin F. Marquez	$1,500	$850	46	$39,100
Benjamin H. Haber	$750	$550	73	$40,150
Daniel J. Kramer	$725	$525	81	$42,525
Min Jee Kim	$175	$175	28	$4,900
Adjusted Wilshire Law Firm Lodestar:	$126,675

As to the Matern Law Group, PC, counsel indicates $118,420 lodestar consisting of 13.5 hours at rates ranging from $1,125 to 875. (Supplemental Declaration of Stahle ¶14.) The Court will adjust the rates here as follows:

Name	Stated Hourly Rate	Approved Hourly Rate	Hours	Preliminarily Approved Total
Matthew J. Matern	$1,125	$850	11.3	$9,605
Mikael H. Stahle	$1,050	$650	37.1	$24,115
Dalia Khalili	$975	$600	.6	$360
Max Slove	$875	$550	32.7	$17,985
Irina A. Kirnosov	$725	$525	51.8	$27,195
Adjusted Matern Law Group Lodestar:	$79,260

As to Blumenthal Nordrehaug Bhowmik De Blouw LLP, the stated lodestar is $140,915.00 for 199.85 hours at rates ranging from $995 to $250. (Supplemental Declaration of Nordrehaug ¶6.) The Court will adjust the rates here as follows:

Name	Stated Hourly Rate	Approved Hourly Rate	Hours	Preliminarily Approved Total
Norm Blumenthal	$995	$850	2	$1,700
Kyle Nordrehaug	$950	$775	2.55	$1,976
AJ Bhowmik	$895	$700	3.5	$2,450
Nicholas De Blouw	$850	$675	46.6	$31,455
Jeffrey Herman	$750	$600	32.8	$19,680
Ricardo Ehmann	$675	$575	19.7	$11,328
Sergio Puche	$675	$575	64.3	$36,973
Scott Blumenthal	$450	$400	23.8	$9,520
Trevor Moran	$450	$400	3	$1,200
Heather Drosi	$250	$175	1.1	$193
Adolfo Sanchez Contreras	$250	$175	.5	$88
Adjusted Blumenthal Lodestar:	$116,561

Therefore, the Court finds the total, adjusted lodestar in the amount of $322,496. Therefore, in order for the Court to award the requested 33.3% or $666,667 in fees, it would need to apply a 2.07. 

The Court permits a maximum lodestar multiple of 1.5 in these cases. The Court has reviewed the declarations of counsel in support of what is now an additional .56 multiplier, but, in its discretion, rules that the additional .5 awarded adequately takes into account the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented. (See In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1052 quoting Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 833) Despite any agreement by the parties to the contrary, the Court has an independent responsibility to review the attorney fee provision of the settlement agreement and award an amount that it determines to be reasonable. (Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128.)

Therefore, the Court will preliminarily approve $483,744.38 in fees, equal to 1.5 times the current lodestar. Wilshire Law Firm anticipates spending at least 25 to 50 additional hours on these future tasks. (Supplemental Declaration of Marquez ¶7.) The Court will examine those hours actually expended in its calculation of the lodestar for final approval.

Having resolved theses two issues from the prior hearing, the Court preliminarily approves the following deductions from the gross settlement of $2,000,000 as follows:

Preliminarily Approved Attorney Fees (1.5 Multiplier):	$483,744.38
Preliminarily Approved Attorney Costs (up to):	$60,000.00
Preliminarily Approved Enhancement Payment to Plaintiff Martinez:	$5,000.00
Preliminarily Approved Enhancement Payment to Plaintiff Vargas:	$5,000.00
Preliminarily Approved Enhancement Payment to Plaintiff Lopez:	$5,000.00
Preliminarily Approved Settlement Administrator Costs	$13,528.70
Preliminarily Approved PAGA Payment	$100,000.00
Preliminarily Approved Net Settlement Amount	$1,327,726.92

The Court sets the motion for final approval for February 10, 2025, 8:30 am, Dept. 7.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division