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Ruling
23CV-0203159
Aug 25, 2024 |23CV-0203159
BELTRAN VS. M.K. & A., LLCCase Number: 23CV-0203159This matter is on calendar for a trial setting conference. The Court notes that Plaintiff filed a Motion for Leave toFile a First Amended Complaint that is calendared for hearing on September 16, 2024. The matter is continuedto Monday, September 16, 2024 at 9:00 a.m. in Department 63 for status of the case. No appearance isnecessary on today’s calendar.
Ruling
34-2021-00308593-CU-BC-GDS
Aug 20, 2024 |Unlimited Civil (Breach of Contract/Warranty) |34-2021-00308593-CU-BC-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00308593-CU-BC-GDS: Rollingwood Green Homeowners Association vs. Jo Ann M. Petrosene, as Trustee of the Jo Ann M. Petrosene Living Trust 08/21/2024 Hearing on Motion to Compel Responses to Form Interrogatories in Department 53Tentative RulingNOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendarmust comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law and Motion OralArgument Request Line at (916) 874-2615 by 4:00 p.m. the court day before the hearing and adviseopposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mailmessage: a) identifying themselves as the party requesting oral argument; b) indicating the specificmatter/motion for which they are requesting oral argument; and c) confirming that it has notified theopposing party of its intention to appear and that opposing party may appear via Zoom using the Zoomlink and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomesthe final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or byvideo conference via the Zoom video/audio conference platform with notice to the Court and all otherparties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required,the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. TheDepartment 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the ZoomMeeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the ZoomMeeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporter services attheir own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956.Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Temporeavailable on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore byutilizing the list of Court Approved Official Reporters Pro Tempore available athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.Pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed byeach party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from theCourt’s Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with theclerk.If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Requestfor Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Onceapproved, the clerk will be forward the form to the Court Reporter’s Office and an official reporter will beprovided.TENTATIVE RULING:Plaintiff’s motion to compel defendant in pro per Vincent Petrosene’s responses toplaintiff’s first set of “supplemental” form interrogatories and second set of forminterrogatories is UNOPPOSED and is GRANTED since the lack of opposition isconstrued as a concession on the merits of this motion. (see, e.g., D.I. Chadbourne, Inc.v. Superior Court (1964) 60 Cal.2d 723, 728, n.4.) Page 1 of 2 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO34-2021-00308593-CU-BC-GDS: Rollingwood Green Homeowners Association vs. Jo Ann M. Petrosene, as Trustee of the Jo Ann M. Petrosene Living Trust 08/21/2024 Hearing on Motion to Compel Responses to Form Interrogatories in Department 53Defendant Petrosene shall provide verified responses, without objections, to plaintiff’sfirst set of “supplemental” form interrogatories and second set of form interrogatories nolater than 9/4/2024 (unless plaintiff agrees to a later date memorialized in writing). (Tothe extent defendant may have already provided verified responses without objections,he need not re-serve the responses in order to comply with this ruling.)To the extent moving plaintiff may contend defendant’s responses are deficient for anyreason, plaintiff may file and serve an appropriate motion only after completing therequisite meet-and-confer process.Plaintiff’s request for monetary sanctions is denied since the motion to compel is notopposed.Moving counsel is advised that where discovery responses (as opposed to furtherresponses) are sought, the discovery requests need not be included with the movingpapers. Proof of the discovery’s service is all that is required.Moving party to provide notice of this ruling and file proof of service of same nolater than 8/28/2024.This minute order is effective immediately. No formal order or other notice is required.(Code Civ. Proc. §1019.5; CRC Rule 3.1312.) Page 2 of 2
Ruling
CITIBANK, N.A., A NATIONAL ASSOCIATION VS STEPHAN GRIGORIAN MD, INC., A CALIFORNIA CORPORATION, ET AL.
Aug 23, 2024 |23GDCV01927
Case Number: 23GDCV01927 Hearing Date: August 23, 2024 Dept: D TENTATIVE RULING Calendar: 6 Date: 8/23/2024 Case No. 23 GDCV01927 Trial Date: None Set (Judgment entered) Case Name: Citibank, N.A. v. Stephan Grigorian MD, Inc., et al. MOTIONS TO BE RELIEVED AS COUNSEL (2) Moving Party: The Green Firm, P.C. Name of Client: Defendant Stephan Grigorian MD, Inc. Defendant Stephan Grigorian (No Opposition) RELIEF REQUESTED: Order permitting attorney to be relieved as attorney of record in this action GROUNDS FOR MOTION: Client and attorney have irreconcilable differences regarding the handling of the case. DECLARATION BY MOVING ATTORNEY: Reasons why motion is necessary: ok Address recently confirmed (within last 30 days) By conversation PROPOSED ORDER: Address and phone number of client set forth: ok, last known, should be current Proper warning: ok Future dates filled in: ok ANALYSIS: The paperwork is in order, with the exception that the proposed orders purport to provide the clients last known address and telephone number, when the declarations in support of the motion represent that the currency of the addresses has been confirmed within the last 30 days by conversation. [See Orders, paras. 6; Declarations, paras. (3)(b)(1)(c)]. Counsel will be ordered to modify the orders to check the box before current at paragraphs 6, and delete the selection of last known. Once the orders are modified, the court will sign the orders, and the attorney will be relieved as attorney of record effective upon the filing of proofs of service of the signed orders upon each client. RULING: [No Opposition] UNOPPOSED Motion to be Relieved as Counsel for defendant Stephan Grigorian MD, Inc. is GRANTED. The Court will sign the proposed Order Granting Attorneys Motion to be Relieved as Counsel-Civil with the following modification: (1) in paragraph 6, the Order will indicate that the address and telephone number provided are the clients current, information, not last known. As so modified, the Court will sign the Order and counsel will be relieved effective upon the efiling of the proof of service of the signed order upon the client. UNOPPOSED Motion to be Relieved as Counsel for defendant Stephan Grigorian is GRANTED. The Court will sign the proposed Order Granting Attorneys Motion to be Relieved as Counsel-Civil with the following modification: (1) in paragraph 6, the Order will indicate that the address and telephone number provided are the clients current, information, not last known. As so modified, the Court will sign the Order and counsel will be relieved effective upon the efiling of the proof of service of the signed order upon the client. DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE AUDIO OR VIDEO APPEARANCES Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED. If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.
Ruling
FCS059449 - SAUVAGEAU, DAN, ET AL V ADAMS, SETH, ET AL (DMS)
Aug 24, 2024 |FCS059449
FCS059449The ADAMS’ Motion to Compel SAUVAGEAU’s Further Responses to Form andSpecial Interrogatories, Requests for Admission, and Requests for ProductionTENTATIVE RULINGDefendants SETH ADAMS and JESSICA ADAMS (the “ADAMS”) move to compelPlaintiff DAN SAUVAGEAU (“SAUVAGEAU”) to further respond to Defendants’requests for production, requests for admission, and form and special interrogatoriesserved October 11, 2023.The court has not received opposition to the motion.Meet and Confer Efforts. The court first considers the adequacy of the parties’ effortsto meet and confer to work these issues out before resorting to a motion to compelfurther responses. The trial court has discretion in determining whether adequate meetand confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998)67 Cal.App.4th 424 [factors include complexity of discovery issues, history of counsel inprior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline tofile motion was not sufficient attempt].)Code of Civil Procedure section 2016.040 requires a declaration “showing a reasonableand good faith attempt at an informal resolution of each issue presented by the motion”to compel. The ADAMS’ counsel’s declaration accompanying the motion to compelstates that counsel sent the discovery requests at issue on October 11, 2023, receivedobjection-only responses on December 4, 2023, and received material responses onFebruary 2, 2024. (Declaration of Leslee Carroll in Support of Motion at ¶¶ 2-3, 5-8,Exhibits A-E.) The ADAMS sent a meet and confer letter on March 1, 2024. (Id. at ¶10, Exhibit F.) SAUVAGEAU responded and the parties engaged in some discussionthat resulted in SAUVAGEAU providing amended responses on March 22, 2024. (Id. at¶ 13.) The ADAMS considered the amended responses still unsatisfactory and sentSAUVAGEAU another meet and confer letter on April 12, 2024. (Id. at ¶ 19, Exhibit H.)SAUVAGEAU’s counsel responded but no material discussions took place; the ADAMSsent another meet and confer letter on May 17, 2024. (Id. at ¶¶ 20-26, Exhibits I-L.)SAUVAGEAU’s counsel again did not materially respond and expressed that he felt theresponses were adequate. (Id. at ¶ 27, Exhibit M.) The instant motion was filed on May20, 2024.The court finds that Defendants’ efforts to meet and confer were adequate as theparties appear to have reached an impasse.Special Interrogatories. Special Interrogatories #1, 4, 7, 10, 13, 16, 19, 21-22, 24-25,27, 37, 40, 43, 47, 73, 89, and 93. SAUVAGEAU’s several-page narrative laying out hisperception of all that transpired between the parties and his theory of the case, with alist of witnesses at the end, is not a straightforward answer to the ADAMS’ variouscontention interrogatories seeking facts supporting particular aspects of the case.SAUVAGEAU must further respond.Special Interrogatories #2, 5, 8, 11, 14, 17, 41, 44, 48, 51, 55, 58, 61, 74, and 113.SAUVAGEAU’s witness list mentioned above is vague, including an unnamed “buildinginspector.” SAUVAGEAU must further respond.Special Interrogatory #38. SAUVAGEAU’s statement that he, the ADAMS, Cross-Defendant MARC PASQUINI, and “all the workers on site” and “building inspector” arewitnesses to harm is too vague. SAUVAGEAU must further respond.Special Interrogatories #3, 6, 9, 12, 15, 18, 39, 42, 45, 49, 52, 56, 59, 62, 75, 80, 82, 84,86, 88, and 114. SAUVAGEAU “identifies all documents produced to Defendantspreviously and concurrently herewith” in response to these requests for documentssupporting various other responses, each concerning particular topics. This isunacceptably vague and lacking particularity. SAUVAGEAU must further respond.Special Interrogatories #28-30. SAUVAGEAU is not clear about what substantiallyperformed work was paid or unpaid and gives a list “including but not limited to” someparticular items that were “changed and/or unpaid.” This is too vague. SAUVAGEAUmust further respond.Special Interrogatories #31-33. SAUVAGEAU’s response that the ADAMS hiredworkers without his authorization is not responsive to these questions about the workershe employed. SAUVAGEAU must further respond.Special Interrogatories #34-36. SAUVAGEAU does not give intelligible responses. Tothe interrogatory asking for vendors and costs he states he cannot identify persons; tothe one asking for persons he states he cannot identify documents. He again directsthe ADAMS to every document produced, with no particularity. SAUVAGEAU mustfurther respond.Special Interrogatories #46, 50, 53-54, 57, 60. SAUVAGEAU’s reference to alldocuments produced is vague. SAUVAGEAU must further respond.Special Interrogatory #72. SAUVAGEAU’s response that he requires an attorney tounderstand the phrase “work outside the contract” is unresponsive. SAUVAGEAU mustfurther respond.Special Interrogatories #76-78. SAUVAGEAU’s statement that he did not performdefective work suffices to answer these questions contingent on the existence ofdefective work. He need not further respond.Special Interrogatory #90. The ADAMS ask SAUVAGEAU how much profit he expectedto make off particularly named items allegedly taken out of the scope of work. He stateshe generally gets 10% of the contract price and says the ADAMS removed $75,000 ofwork. This is vague. SAUVAGEAU must further respond.Special Interrogatories #96-98. SAUVAGEAU’s narrative and reference to alldocuments are again vague. He must further respond.Special Interrogatories #99, 101-104, 106-108. The ADAMS ask SAUVAGEAU forevery employee and subcontractor that worked on the project, and for thesubcontractors’ scopes of work and outstanding pay owed, with supporting witnessesand documents. He refers them to his narrative and witness list, which is notresponsive. He must further respond.Special Interrogatory #109. The ADAMS ask SAUVAGEAU to tell them how hedetermined the project was worth $750,000 in county planning documents. He says itwas an estimate. That is a responsive statement. SAUVAGEAU need not furtherrespond.Form Interrogatories. Form Interrogatory #309.1. SAUVAGEAU’s response to thisinterrogatory asking after additional damages is not specific enough. He must furtherrespond.Form Interrogatory #314.1. SAUVAGEAU’s reference to the contracts attached to hiscomplaint is not responsive. SAUVAGEAU must further respond.Form Interrogatories #314.2-314.3. SAUVAGEAU’s narrative does not answerparticulars about when alleged breaches occurred. He must further respond.Form Interrogatories #314.5-314.6. SAUVAGEAU says he does not know ifa*greements were unenforceable or unambiguous because he is not a lawyer. This isnot responsive. SAUVAGEAU must further respond.Form Interrogatory #314.7. SAUVAGEAU’s reference to attached contracts isinsufficiently particular and unresponsive. SAUVAGEAU must further respond.Form Interrogatory #321.1. SAUVAGEAU’s statement that he had no supervisingemployees is responsive to this interrogatory. He need not further respond.Form Interrogatory #321.2. SAUVAGEAU’s witness list is not responsive to thisinterrogatory. He must further respond.Form Interrogatories #321.3-321.4. SAUVAGEAU’s reference to all produceddocuments is not responsive. He must further respond.Form Interrogatory #321.5-321.6. SAUVAGEAU’s reference to his complaint andattached contracts, his narrative, and “all documents” is vague. He must furtherrespond.Form Interrogatory #321.9. SAUVAGEAU’s reference to “all plan specs producedherewith” is vague. He must further respond.Form Interrogatory #324.1, 325.1-352.4. SAUVAGEAU’s narrative is not specificenough to respond to these interrogatories and does not identify witnesses anddocuments as requested. SAUVAGEAU must further respond.Form Interrogatory #326.1. SAUVAGEAU’s narrative is unresponsive to thisinterrogatory concerning qualifications on admissions. He must further respond.Requests for Admission #7. The ADAMS ask SAUVAGEAU to admit the contractbetween them was “fixed-price.” He says he cannot understand the question but thenalso says it was “clearly” not a fixed-price contract. He must further respond to clarifyhis position.Requests for Production. SAUVAGEAU must further respond to Requests #8, 9, 14,and 17 produce responsive documents in his possession if any remain. However, withregard to #10 and 15 SAUVAGEAU states no responsive documents have ever existed,which is a sufficient response and he need not further respond.Sanctions. Code of Civil Procedure sections 2030.300, subdivision (d)[interrogatories], 2031.310, subdivision (h) [inspection demands], and 2033.290,subdivision (d) [requests for admissions] require sanctions against a party thatunsuccessfully makes or opposes a motion to compel further responses tointerrogatories, unless the court finds that the losing party acted with substantialjustification or that other circ*mstances weigh against the imposition of sanctions.SAUVAGEAU’s responses were frequently vague and unresponsive. Sanctions areimposed in the sum of $3,000.Conclusion. The ADAMS’ motion to compel further responses is granted with regardto all form interrogatories at issue except #321.1.The motion is granted with regard to the sole request for admission at issue, #7.The motion is granted with regard to all special interrogatories at issue except #76-78and 109.The motion is granted with regard to requests for production #8, 9, 14, and 17.The motion is otherwise denied.SAUVAGEAU is ordered to pay sanctions in the sum of $3,000 within thirty days of thedate of this order.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)
Ruling
Redding City Ballet vs. Christensen, et al.
Aug 19, 2024 |23CV-0203221
REDDING CITY BALLET VS. CHRISTENSEN, ET AL.Case Number: 23CV-0203221This matter is on calendar for a trial setting conference. The Court notes that there is no Proof of Service ofSummons on file for Defendants Redding Arts Project and Redding City Ballet Theatre. The matter is continuedto Monday, October 21, 2024 at 9:00 a.m. in Department 63 for trial setting. Plaintiff is ordered to get thematter at issue prior to the next hearing. No appearance is necessary on today’s calendar.
Ruling
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.
Aug 22, 2024 |CVG21-0000494
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.Case Number: CVG21-0000494Tentative Ruling: Plaintiff Members 1st Credit Union moves for an award of attorney’s fees in the amount of$23,666.00 pursuant to Civil Code Section 1717. In reviewing the file, the Court previously noted defects withthe pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, theCourt requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefingwhich has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees areaddressed below.Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, theEstate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of theEstate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicatethe sum of assets and liabilities of a decedent. Bright’s Estate v. Western Air Lines (1951) 104 Cal.App.2d 827,828. An estate can neither sue nor be sued. Id. at 829. For these reasons, Plaintiff was required to file suit againstthe Personal Representative of the Estate but did not do so.Additionally, the Estate was purportedly served on May 3, 2021 on Virgina E. Smith as the “Registered Agent”of the Estate. Estates do not have Registered Agents. The Court takes judicial notice of the filing in the Estateof Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of theEstate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the PersonalRepresentative at the time of service and had no authority to act on behalf of the Estate. A fact made clear byVirgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as PersonalRepresentative. The answer was made on behalf of herself as “an individual.” It also pointed out on multipleoccasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yetbeen appointed.Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smithas the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personaljurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improperservice of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus anyensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representativewas never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity asthe Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf andas the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, asan individual, and as against the Estate. Generally, one who is not named in the complaint is not a properdefendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in thecomplaint. Id. at 1146. A voluntary appearance is a waiver of any failure to name that party in the complaint.Farmers & Merchants Nat. Bank of Los Angeles v. Peterson (1936) 5 Cal.2d 601, 606. The Court finds that Ms.Smith voluntarily appeared as the Personal Representative at the trial on October 11, 2023, and therefore waivedany defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for thelack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived anydefects in service. A general appearance is the equivalent to service of the summons. Dial 800 v. Fesbinder(2004) 118 Cal.App.4th 32, 52. “A general appearance operates as a consent to jurisdiction of the person,dispensing with the requirement of service of process, and curing defects in service.” Id.; citing 2 Witkin, Cal.Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756). “A general appearance occurs when the defendant takespart in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates inan action in some manner which recognizes the authority of the court to proceed. It does not require any formalor technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry ofa judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Courtto proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, theCourt finds that Ms. Smith appeared as the personal representative and made a general appearance excusing theneed for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as thePersonal Representative as the Estate. The judgment is valid.Attorney’s Fees: By stipulation of the parties, the Court has already issued a judgment that attorney’s fees arerecoverable by Plaintiff. The attorney’s fees are based on a contract which was executed by the Decedent.Therefore, attorney’s fees will only be awarded against the Estate.Civil Code § 1717 entitles a prevailing party on a contract to “reasonable attorney’s fees” as fixed by the court.Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP § 1033.5(c)(5). “[T]he feesetting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expendedmultiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A courtassessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” (Ketchumv. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward bythe court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factorsthat may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved,2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) thecontingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324,348. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is thebest judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995)9 Cal.4th 738, 752.Here, the Declaration of Laurel Adams provides the evidentiary basis for the attorney’s fees. Ms. Adamsidentifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for thiscommunity and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that areasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and areview appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, theCourt finds the number of hours requested to be reasonable.
Ruling
ALESHIA HUNTER VS BPSN II LLC, ET AL.
Aug 22, 2024 |24VECV00371
Case Number: 24VECV00371 Hearing Date: August 22, 2024 Dept: W ALESHIA HUNTER VS BPSN II LLC, ET AL. DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT Date of Hearing: August 22, 2024 Trial Date: None set Department: W Case No.: 24VECV00371 Moving Party: Defendants Great American Insurance Company and BPSN II LLC and Santander Consumer USA, Inc. Responding Party: Plaintiff Aleshia Hunter Meet and Coner: Yes. (OConnor Decl. ¶¶2-4.) BACKGROUND This is a lemon law action. On April 12, 2024, Plaintiff Aleshia Hunter filed a First Amended Complaint against Defendants BPSN II LLC, FCA US LLC, Santander consumer USA, Inc., and Great American Insurance Company for 1. Violation of Song-Beverly Consumer Warranty Act, Civ. C § 1790 et seq.; 2. Violation of Consumer Legal Remedies Act at Civ. C § 1770 et seq.; 3. Negligent Misrepresentation; and 4. Bond Liability. Plaintiff purchased from BPSN II LLC (Dealer) a new 2023 Alfa Romeo Stelvio on May 10, 2023. Plaintiff alleges the subject vehicle was sold to Plaintiff with the Manufacturers new-vehicle express warranties yet suffered from significant defects and non-conformities which were not repaired under warranty despite repeated presentations or a refusal to repair. Plaintiff further alleges Defendants misrepresented the quality of the vehicle and installed an electronic tracking device on the subject vehicle without her knowledge. Moreover, the bond issued to Dealer as a condition of obtaining a license from California DMV to sell vehicles, is payable to Plaintiff due to any loss or damage by reason of any fraud practiced on Plaintiff or fraudulent representation made to Plaintiff by Dealer or one of Dealers salespersons acting for Dealer. [TENTATIVE] RULING: Defendant BPSN II LLC and Santander Consumer USA, Inc.s Demurrer is SUSTAINED WITH LEAVE TO AMEND. Defendant BPSN II LLC and Santander Consumer USA, Inc.s Motion to Strike is MOOT. Defendant Great American Insurance Companys Demurrer to the Fourth Cause of Action is SUSTAINED WITH LEAVE TO AMEND. DISCUSSION I. DEFENDANT BPSN II LLC AND SANTANDER CONSUMER USA, INC.S DEMURRER Defendants BPSN II LLC and Santander Consumer USA, Inc. demur to Plaintiffs First Amended Complaint on the grounds the first, second and third causes of action fail to state facts sufficient to constitute a claim against Defendants and the causes of action are uncertain. Defendants also move to strike portions of the first amended complaint. Defendant Great American joins in the Reply to Plaintiffs Opposition to Motion to Strike Portions of Plaintiffs First Amended Complaint filed by Defendants BPSN II LLC, d/b/a Russell Westbrook Alfa Romeo Maserati of Van Nuys (Westbrook) and lender Santander Consumer USA, Inc. (Santander). First Cause of Action Defendants demur to the first cause action for Violation of the Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq. on the grounds Plaintiff fails to state facts sufficient to constitute a claim. Such a cause of action exists when (1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value, or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); . . . (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of attempts (the failure to repair element); and (4) the manufacturer did not promptly replace or buy back the vehicle. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101; CACI No. 3201.) Defendants argue the first cause of action only generally refers to the Song-Beverly Consumer Warranty Act, with no allegations as to how Defendants failed to comply with their statutory obligations. The only allegation specific to Song-Beverly is that the Subject Vehicle suffered from significant defects and non-conformities which were not repaired under warranty despite repeated presentations or a refusal to repair, and further which rendered the Vehicle unmerchantable. (FAC ¶ 11.) Moreover, Plaintiff has not sufficiently alleged the electronic tracking device was used to personally track her as required under Penal Code section 637.7. Lastly, the FAC is ambiguous as to what defects she actually alleges with the Subject Vehicle. In opposition, Plaintiff argues the complaint contains straight forward lemon law allegations, including specific allegations are of (1) the CEL (check engine light) illuminating twice, (2) two repair presentations, and (3) continuing CEL symptoms accompanied by a malfunction of the engines start/stop function and loss of power on acceleration. (FAC 2:22-3:9.) The court agrees Plaintiff has failed to allege facts sufficient to support a claim for violation of the Song-Beverly Act. Paragraph 8 of the complaint does allege certain malfunctions with the Subject Vehicle. However, it is unclear from Paragraph 8 whether these are the same defects and non-conformities which were not repaired under warranty in the first cause of action. It is also unclear whether Plaintiff is alleging violation of Penal Code section 637.7 as part of an express warranty that was breached by Defendants. Accordingly, the demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND. Second Cause of Action Defendants demur to the second cause of action for violation of the Consumer Legal Remedies Act, Civil Code section 1770, et seq. on the grounds Plaintiff provides no facts whatsoever to support the alleged violations. Defendants assert Plaintiffs select various unlawful acts and practices under the CLRA, including violation of Civil Code § 1770(a)(2), (a)(5), (a)(7), (a)(9), (a)(14), and (a)(16). However, there is simply no way to determine what facts could possibly support these alleged violations. In opposition, Plaintiff first focuses on Defendants Penal Code section 637.7 argument. Plaintiff points out the cause of action is based on concealment of the device being added to the Vehicle, regardless of how the Penal Code is interpreted. The selling dealership concealed from Plaintiff that a tracking device had been installed, while at the same time falsely telling Plaintiff in writing what was actually installed per the Monroney Label and the Supplemental Stickerneither of which listed the tracking device. The court finds the complaint fails to allege facts sufficient to support a claim for violation of CLRA. Plaintiff cites several violations under the CRLA. However, when alleging statutory violations, statutory causes of action must be pled with particularity. (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) The complaint fails to allege with particularity Defendants alleged concealment that support any of the CLRA violations alleged. The court also notes violation of Penal Code section 637.7 makes it a crime to use an electronic tracking device to determine the location or movement of a person. The complaint fails to sufficiently allege tracking of a person. Accordingly, the demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND. Third Cause of Action Plaintiff agreed to dismiss the cause of action. Therefore, the demurrer to the third cause of action for negligent misrepresentation is MOOT. Motion to Strike Defendants first move to strike the FAC on the grounds Plaintiff fails to state a cause of action against Defendants, including violation of 637.7. The motion to strike is MOOT on these grounds for reasons stated above in the demurrer. The court briefly notes Defendants also move to strike Plaintiffs allegations for punitive damages and joint liability. Plaintiff in opposition, asserts that to the extent defendants herein are jointly liable, Plaintiff agrees that is a legal issue to be resolved later, and therefore agrees to strike p. 2, para. 3 and agrees that punitive damages allegations in connection with the CLRA claim, if discovery warrants, can be added later (p. 5, para 19, lines 19-25). Accordingly, these portions of the complaint will be STRICKEN. II. DEFENDANT GREAT AMERICAN INSURANCE COMPANYS DEMURRER Defendant Great American Insurance Company demurs to Plaintiffs First Amended Complaint on the grounds the fourth cause of action for bond liability fails to state facts sufficient to constitute a cause of action against Defendant Great American Insurance Company and is uncertain, ambiguous and unintelligible. Vehicle Code section 11710 requires that car dealerships obtain a surety bond in the amount of $50,000.00. (Veh. Code, § 11710(b).) Any person who suffers a loss by reason of the dealer's fraud [or fraudulent representation] has a right of action against the dealer and the surety on the bond in an amount not to exceed the value of the vehicle purchased. (Pierce v. Western Surety Co. (2012) 207 Cal.App.4th 83, 86, citing Veh. Code, § 11711(a).) Therefore, in order to recover under the bond, the plaintiff must demonstrate an act of fraud committed by the dealer. The words fraud and fraudulent representation in Vehicle Code sections 11710 and 11711 have the normal meaning of fraud as defined in Civil Code sections 1571, 1572, 1573, 1170, and cases construing those sections. (See id. at pp. 91-92; see also Beverly Finance Co. v. American Casualty Co. of Reading (1969) 273 Cal.App.2d 259, 268.) Defendant argues the single paragraph in support of the fourth cause of action states the statutory requirements but fails to allege the necessary supporting facts. Defendant contends even had Plaintiff properly pled the bond, the allegations here do not allege Plaintiff suffer[ed] any loss or damage by reason of any fraud practiced on him or fraudulent representation made to him by a licensed dealer or one of such dealers salesmen& (Veh. Code, § 11711.) Defendant further argues Plaintiffs violation of the Song-Beverly Act does not establish fraud nor has Plaintiff sufficiently alleged a violation of Consumers Legal Remedies Act to establish fraud. Similarly, Defendant contends Plaintiffs negligent misrepresentation cause of action fails to sufficiently establish the elements of fraud. The court agrees. The fourth cause of action fails to allege any fraud or fraudulent representation. Looking at Plaintiffs second and third causes of action, the court finds those also do not sufficiently allege fraud by Defendant Great American Insurance Company. The fourth cause of action for violation of the CLRA does not differentiate between Defendants nor are there any facts supporting the allegations that there was a misrepresentation of the source, sponsorship, approval, or certification of goods or services or a representation that the goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have and so forth. Similarly, the third cause of action for negligent misrepresentation lumps Defendants together and moreover, it is unclear what the representation was or when it was made and by who. The court notes Plaintiffs allegations that the Dealer concealed the installation of an unlawful and undisclosed tracking device, but that is not an affirmative misrepresentation. Accordingly, the demurrer to the fourth cause of action is SUSTAINED WITH LEAVE TO AMEND.
Ruling
JG BUILDERS, INC., A CALIFORNIA CORPORATION VS KIMBERLY CATES, AN INDIVIDUAL, ET AL.
Aug 22, 2024 |23TRCV02697
Case Number: 23TRCV02697 Hearing Date: August 22, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B JG BUILDERS, INC., Plaintiff, Case No.: 23TRCV02697 vs. [Tentative] RULING KIMBERLY CATES, et al., Defendants. Hearing Date: August 22, 2024 Moving Parties: (1), (2) Cross-defendants JG Builders, Inc. dba EcoSmart Builders, EcoSmart Builders, LLC, Jose Guadalupe Ramirez, and Farzad Zamani; (3), (4) cross-defendant Kamyar K. Rezani Responding Party: Cross-complainants Kimberly Cates and Nancy Dodd (1) Demurrer to First Amended Cross-Complaint (2) Demurrer to First Amended Cross-Complaint (3) Motion to Strike (4) Motion to Strike The Court considered the moving, opposition, and reply papers. BACKGROUND On August 17, 2023, plaintiff JG Builders, Inc., dba EcoSmart Builders (note the name) filed a complaint against Kimberly Cates and Nancy Dodd for breach of contract. It alleged that it used the fictitious business name EcoSmart Builders. On November 2, 2023, the Court sustained defendants Cates and Dodds demurrer to the complaint with leave to amend. On November 2, 2023, defendants Cates and Dodd filed a cross-complaint against EcoSmart Builders, LLC (note the fact that this is an LLC, and appears to be a distinct entity from EcoSmart Builders identified in the Complaint and FAC), Kamyar K. Rezani, Farzad Zamani, JG Builders, Inc., and Jose Guadalupe Ramirez for (1) breach of written contract, (2) breach of oral contract, (3) misrepresentation, (4) negligence, (5) statutory recovery of compensation paid, (6) recission, (7) fraud, and (8) unfair business practices. On November 22, 2023, plaintiff JG Builders, Inc. dba EcoSmart Builders filed a FAC for breach of contract. On April 4, 2024, the Court sustained with leave to amend the demurrers to the second (breach of oral contract), third (misrepresentation), and seventh (fraud) causes of action in the cross-complaint and overruled the demurrers as to the eighth (B&P Code § 17200) cause of action. The motions to strike were granted with leave to amend as to claim for punitive damages. On April 23, 2024, cross-complainants filed a FACC for (1) breach of written contract, (2) negligence, (3) negligent misrepresentation, (4) fraud, (5) statutory recovery of compensation paid, (6) rescission, and (7) unfair business practices. The Court notes that the causes of action are misnumbered on the caption page. LEGAL AUTHORITY When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747. 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. CCP § 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. CCP §436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP §436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437. DISCUSSION Demurrers Cross-complainants (1) JG Builders, Inc. dba EcoSmart Builders, (2) EcoSmart Builders, LLC, (3) Jose Guadalupe Ramirez, and (4) Farzad Zamani demur to the first, second, third, fourth, fifth, sixth, and seventh causes of action on the grounds that the allegations are insufficient to constitute a cause of action and are uncertain. Cross-complainant Kamyar K. Rezani demurs to the first, third, fourth, fifth, sixth, and seventh causes of action in the FACC on the grounds that the allegations are insufficient to constitute a cause of action against him and are uncertain. FAC The Court makes the following observation. The FAC filed by JG Builders, Inc. alleges that Plaintiff JG BUILDERS, INC., a California corporation, dba ECOSMART BUILDERS (hereinafter Plaintiff)&. Cross Complainant identifies JG Builders as a Cross-Defendant, and chooses to make no reference to that corporation using the fictitious business name EcoSmart Builders. Instead, Cross-Complainant identifies a different entity which is alleged to be a limited liability company. Cross-Defendant, ECOSMART BUILDERS, LLC. (hereinafter ECOSMART) is, and at all times relevant to this action, is an active California limited liability company& FACC ¶ 2. Unfortunately, Cross-Complainants introduce confusion and uncertainty by not clearly differentiating between the entity using the dba EcoSmart Builders and the entity named EcoSmart Builders, LLC. Because of the uncertainty that is introduced by this choice to use the confusing designation of EcoSmart the Court shall require a Second Amended Cross-Complaint which clearly differentiates the allegations that are made as between the two defendants. This shall (hopefully) eliminate a major uncertainly that permeates the entire pleading. The First Amended Complaint As context, the FAC alleges Since on or about December 19, 2018, Plaintiff [JG Builders, Inc.] has done business under the fictious name ECOSMART BUILDERS. Plaintiff registered the fictious name ECOSMART BUILDERS on December 19, 2018 (Document # 2018314872). See Exhibit 1 conformed Fictious Business Name Statement. FAC, ¶ 6. It is also alleged that on December 4, 2021, plaintiff JG Builders, Inc. and defendants executed a written contract wherein plaintiff was to construct an Accessory Dwelling Unit (ADU) on defendants property located at 624 W. Acacia Ave., El Segundo. Id., ¶ 15. Plaintiff agreed to provide all services, materials, and labor for the conversion of defendants garage into an ADU pursuant to a Term Sheet. Id., ¶15, Exh. 4. Plaintiff was to be paid by defendants pursuant to a schedule of progress payment per certain Milestones. Id., ¶16. On December 17, 2021, defendants submitted payment by way of defendant Cates check in the sum of $10,000 for the initial deposit and Milestone 1 payment. Id., ¶17. On June 16, 2022, pursuant to the December 4, 2021 written contract, plaintiff completed Milestone 2 by obtaining the necessary permits from the City of El Segundo. At this time, defendants payment for Milestone 2 came due. Defendants did not submit payment for Milestone 2 until July 18, 2022. This was in breach of the December 4, 2021 contract. Id., ¶14. On July 17, 2022, defendants gave plaintiff access to defendants property and plaintiff began construction at defendants property. Id., ¶20. Defendants submitted checks totaling $54,040 for Milestone 3. Id., ¶22. On January 10, 2023, defendants took issue with the kitchen cabinets, bookshelf and materials that were going to be used within the ADU. Defendants took issue with quality of materials they never saw. Id., ¶23. On March 1, 2023, defendants sent notice that they were terminating their agreement with plaintiff and would not allow plaintiff to complete the work. Plaintiff stopped work per defendants demand. Id., ¶28. Defendants breached the December 1, 2021 agreement by failing to submit timely payment, forbidding plaintiff to complete the kitchen, forbidding plaintiff to complete the bookshelf, and unnecessarily placing a stop work order on the entire project. Id., ¶31. Defendants breached the contract by failing to pay the unpaid principal balance of $68,170 despite plaintiffs demand. Id., ¶34. Plaintiff has attached to the FAC as Exhibit 5 the alleged written contract between itself and Defendants Castes and Dodd. It shows that the parties are Cates and Dodd and EcoSmart Builders. (The Contractor is not identified as EcoSmart Builders, LLC.) First Amended Cross-Complaint The FACC alleges that EcoSmart Builders, LLC (which the Court shall refer to EcoSmart, LLC) is a current and active LLC. FACC ¶ 2, 13. (Thus, Cross-Complainants introduce a new entity into the dispute. But as noted above, the FACC does not clearly differentiate between the corporation using that name and the LLC using a similar name.) The LLCs members are defendants Rezani, Zamani, and Ramirez. Id., ¶ 13. In 2012, EcoSmart, LLC applied for a contractors license. Id., ¶ 13. Rezani represented to the Contractors Board he was member-secretary of EcoSmart, LLC. Zamani represented that he was the member-secretary and Ramirez represented that he was the qualifying individual and responsible managing member for EcoSmart, LLC. Of all three defendants, only Ramirez represented having any construction experience. FACC, ¶13. The Cal. State License Board issued a general B contractors license number 971444 to EcoSmart, LLC in 2012. Id., ¶14. On December 2018, Ramirez applied for a separate contractors license for JG Builders, Inc. In his application, Ramirez is listed as the chief executive officer, secretary, and chief financial officer for JG Builders. No one else is listed as an officer or owner of JG Builders, Inc. The Contractors Board assigned license number 1049536 to JG Builders, Inc. Id., ¶15. On November 1, 2020, Rezani, Zamani, and Ramirez sent the Contractors Board a License Cancellation Request to cancel 97114 used by EcoSmart, LLC and it was cancelled. EcoSmart. LLC has not possessed a valid contractors license since 2020. Id., ¶16. Despite no longer possessing a valid contractors license, EcoSmart, LLC continued to perform construction services in the Los Angeles area. As the members and owners, defendants knew that EcoSmart, LLCs general contractor license number was cancelled. Despite this knowledge, defendants conspired with and agreed to allow EcoSmart, LLC to continue to enter home improvement contracts with homeowners and perform construction services without a license by having EcoSmart, LLC use the contractor license number for JG Builders, Inc. Id., ¶17. The FACC further alleges that in November 2021, cross-complainants were interviewing general contractors to hire to convert their existing detached garage into an ADU. Cross-complainants spoke with Zamani who represented he was the CEO and owner of EcoSmart, LLC and that EcoSmart, LLC was a licensed general contractor. Id., ¶18. In December 2021, Zamani presented a contract for EcoSmart, LLC to convert the garage into an ADU; the contract price was $130,000 for the construction of a premium ADU which was to include a kitchen, laundry room, and bathroom. It was signed by Zamani on behalf of EcoSmart, LLC. Id., ¶19. (The Court notes that the Contract attached to the FACC states that the contractor is EcoSmart Builders, not EcoSmart Builders, LLC. It also shows the license number for EcoSmart Builders not for EcoSmart Builders, LLC.) The contract identifies EcoSmarts work address as 5000 Parkway Calabasas, Unit 144, Calabasas. FACC Ex. A. It provides that all notices and warranty requests were to be sent to that address. FACC Ex. A ¶ 15. EcoSmart provided invoices and schedule of progress payments which stated: Please make all checks payable to EcoSmart Builders, LLC. Nowhere on the agreement is JG Builders, Inc. or Jose Guadalupe Ramirez. Id., ¶20. The contract listed the contractor license number 1049536, which is the license belonging to JG Builders. Inc. Id., ¶21. On December 4, 2021, before any construction work had begun, EcoSmart, LLC collected a $10,000 payment from cross-complainants. Id., ¶22. On January 27, 2022, EcoSmart, LLC presented a design presentation review wherein it notified cross-complainants that the actual cost for the completion of the project would be increased to $163,070. Id., ¶23. The FACC further alleges that on June 16, 2022, EcoSmart, LLC applied for a building permit with the City of El Segundo. EcoSmart, LLC listed itself as the applicant but listed the general contractor for the project as JG Builders, Inc. and listed the contractors license for JG Builders, Inc. on the permit application. Id., ¶24. Between July 2022 and March 2023, EcoSmart, LLC performed construction services at the subject property. EcoSmart, LLC did not maintain a valid contractor license at all times it performed construction services at the property. During this time, EcoSmart, LLC collected $103,750 in payments. Id., ¶25. EcoSmart, LLC failed to complete the project as required under the agreement. The project took much longer than represented, and EcoSmart, LLC failed to construct the project within the standard of care. EcoSmart, LLC was notified of the numerous defects and errors in its work but refused to make the required repairs. Id., ¶26 (see FACC for list of defects). Although Ramirez is the responsible managing owner for JG Builders, Inc. contractors license and despite the fact that JG Builders, Inc. was listed on the permit application as the general contractor Ramirez failed to supervise the work of the employees of EcoSmart, LLC and the work of EcoSmart, LLCs subcontractors. Id., ¶27. The FACC also alleges that EcoSmart, LLCs contract sets forth a schedule of payment based upon the various phases of work. Through the course of performing the construction services, EcoSmart, LLC would demand payment from cross-complainants for work not yet started or completed. EcoSmart, LLC would require full payment for stages of work which were not started or completed, and in some instances would not be completed for months. EcoSmart, LLC collected more from cross-complainants than the work performed at the property in violation of Bus. and Prof. Code §7159 (It is against the law for a contractor to collect payment for work not yet completed, or for materials not yet delivered.). Id., ¶28. Due to the numerous problems and issues with EcoSmart, LLCs performance of the work and its refusal to fix the many defects reported to it, cross-complainants terminated EcoSmart, LLCs contract on March 1, 2023. Id., ¶29. First cause of action for breach of written contract (against all cross-defendants) The FACC alleges that in December 2021, Zamani presented cross-complainants with a contract for EcoSmart, LLC to convert an existing garage and construct an ADU. The contract was signed by Zamani on behalf of EcoSmart, LLC. FACC, ¶31. (Ex. A identifies the contractor as EcoSmart Builders, not EcoSmart Builders, LLC. Generally the contract attached to the Cross-Complaint will control over contrary allegations in the pleading.) Cross-complainants have fully performed and satisfied all of the conditions and covenants required to be performed on their part pursuant to the terms of the contracts. Cross-complainants paid $103,750 to cross-defendants. Cross-defendants collected more money than the work they performed. Id., ¶32. Cross-defendants breached the contract by failing to perform the services described in the contract. Id., ¶33. In addition, cross-defendants breached their agreement to obtain and carry the requisite general contractors license and to obtain the required workers compensation insurance. Id., ¶34. Cross-defendant Rezani argues that the FACC fails to establish his involvement in the contract or any conduct on his part that constituted an alleged breach. The contract attached as Exh. A does not name Rezani. Cross-defendants JG Builders, Inc. dba EcoSmart Builders, EcoSmart Builders, LLC, Ramirez and Zamani argue that the FACC only establishes a contract with EcoSmart Builders, LLC and not as to the other cross-defendants. They also contend that Zamanis signature as the representative of the corporation does not bind that individual to the contract. Cross-defendants argue that the allegations are insufficient to show personal liability as to the other cross-defendants. In opposition, cross-complainants argue that JG Builders, Inc.s FAC is a judicial admission that it was JG Builders, Inc. that entered into the contract with cross-complainants. The Court notes that JG Builders, Inc. alleges in its FAC that it, doing business as EcoSmart Builders is a party to the contract. JG Builders, Inc. is alleged by Cross-Complainants to possess a license. However, Cross-Complainants allege in the FACC that their contract was with EcoSmart, LLC, a different entity that did not possess a license. FACC ¶ 19, 20, 31. Since it is Cross-Complainants who reject the assertion that the contract is between Cross-Complainants and JG Builders, Inc. and instead allege that they entered into a contract with EcoSmart, LLC, it is not appropriate at this juncture to reject the allegations in the FACC and instead accept the allegations made by Plaintiff. Therefore, the Court shall accept the allegations made by Cross-Complainants. However, the allegations of the FACC are themselves made uncertain by the fact that the attached contract shows that it is between Cross-Complainants and EcoSmart Builders, not EcoSmart Builders, LLC. This uncertainty creates confusion by not differentiating between the two entities sharing similar names and dictates that the demurrer to the first cause of action be sustained. There is no factual allegation that the other defendants were directly obligated to perform the contract. In the opposition, cross-complainants argue that each of the cross-defendants are liable based on civil conspiracy and/or alter ego. Thus, Cross-Complainants concede that the persons that are not parties to contract were not obligated directly on the contract, and had no obligation to perform the contract. Since the basis upon which Cross-Complaints seek to hold everyone (other than the directly contracting party) liable is on alter ego and/or conspiracy allegations, the Court shall sustain the demurrer on uncertainty grounds and require that the cause of action make it clear that the basis for liability of each non-contracting defendant is the alleged vicarious liability of all other defendants. (Is there conspiracy to breach contract?) Defendant Rezani notes that he is not a party to the contract. That is true. He has no direct liability on the contract. The suggestion is that he has liability on an alter ego or conspiracy basis. Since the Court is allowing an amendment, the Court expects that Cross-Complainants shall make clear the factual basis for claiming the Rezani has liability on the contract. The demurrer is SUSTAINED with 20 days leave to amend. Second cause of action for negligence (against JG Builders, Inc. and EcoSmart, LLC) The FACC alleges that JG Builders, Inc. and EcoSmart Builders, LLC had a duty to perform their contractual services in a non-negligent manner. FACC ¶ 37. Said Cross-Defendants [JG Builders, Inc. and EcoSmart Builders, LLC], and each of them, breached their duties to Cross-Complainants by failing to act in a reasonable manner in designing, developing, processing, producing, building, assembling, testing, inspecting, installing, equipping, maintaining, modifying, repairing, managing, supervising, operating, and otherwise directing the remodel of the ADU at the Subject Property in an unreasonable manner. The above acts and omissions by the Cross-Defendants constitute negligence and resulted in a breach of the Cross-Defendants legal duty to Cross-Complainants. FACC ¶ 38. Cross-defendant JG Builders, Inc. argues that if it did not do any work at cross-complainants property it assumed no duty of care. In opposition, cross-complainants argue that JG Builders has already made the judicial admission that it entered into a contract with cross-complainants. Further, cross-complainants argue, they allege that JG Builders, Inc. actively helped perpetuate the fraud of EcoSmart, LLC having its own contractor license and that JG Builders was listed on the permit application but failed to supervise the work performed. Similar to the First Cause of Action, this claim suffers from the confusion created by the choice of Cross-Complainants not differentiating between the two entities. Ordinarily there is no duty of JG Builder, Inc. as a non-party to the contract to perform the contract in a non-negligent manner. But Cross-Complainants allege that JG Builder, Inc was involved in the job as JG Builder, Inc.s license number was listed on the permit application. FACC ¶ 24. However, Cross-Complaints allege that it was EcoSmart, LLC that listed the number. The allegation does not include a claim that JG Builders, Inc. actually was involved in the work, only that EcoSmart, LLC listed JG Builders, Inc. on the permit application that EcoSmart, LLC filed. That is not enough to impose liability on JG Builders, Inc. The demurrer to the Second Cause of Action is SUSTAINED with 20 days leave to amend. Third cause of action for negligent misrepresentation The elements of negligent misrepresentation are: (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce anothers reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit. B.L.M. v. Sabo & Deitsch (1997) 55 Cal. App. 4th 823, 834. To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings. Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. The particularity requirement necessitates pleadings facts that show how, when, where, to whom, and by what means the representations were tendered. Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645. The FACC alleges that cross-defendants through their word and deeds made misrepresentations to cross-complainants about EcoSmart, LLC being a licensed general contractor with the ability and experience required to construct the work at the property in a good and workmanlike manner, free from defects. Among several representations were statements made on EcoSmart, LLCs website, which boasted We Plan. Design. Permit. Build. ADUs and that EcoSmart offered homeowners Full-service design and build services for ADUs in the Los Angeles area. EcoSmarts website also states the companys ADU construction business was mentioned in articles from Forbes, Wall Street Journal, New York Times, CNN Business and Fox Business; however, there are no articles in any of these publications about EcoSmart. FACC, ¶45. (There is no allegation that the web statements were seen by Cross-Complainants prior to entering into the contract.) Additional misrepresentations were made by Zamani on behalf of all cross-defendants. At a site meeting at the property on November 1, 2021, Zamani represented to cross-defendants that he was the CEO and owner of EcoSmart, LLC and could speak on the companys behalf. He expressed that he was 100% confident that as a licensed general contractor, EcoSmart, LLC had the qualifications to build the ADU for as low as $115,000 with a $130,000 ADU being on par with their premium ADUs that EcoSmart, LLC has completed in the past. Id., ¶46. On November 26, 2021 after receiving the contract, cross-complainants questioned why the contractor license number of 1049536 was listed on the EcoSmart, LLC website and contract did not match the business address for EcoSmart, LLC. They also questioned why Zamani was listed as an employee of EcoSmart, LLC, which had a contractors license number 971114 which was cancelled. Id., ¶47. In response, Zamani stated the reason why EcoSmart, LLC was using the contractors license of JG Builders, Inc. (1049536) was that he had received bad legal advice in the past about moving the contractors license from EcoSmart, LLC to JG Builders, Inc. and the issue was resolved by changing the license to JG Builders, Inc dba EcoSmart. Zamani stated that Ramirez was an employee of EcoSmart, LLC and that both companies were licensed through Ramirez contractors license. He assured cross-complainants not to worry and that it did not matter as it was all the same thing and it did not make a difference. Id., ¶48. Cross-defendants lacked reasonable grounds for the representations that EcoSmart, LLC was a duly licensed general contractor. Id., ¶49. Despite EcoSmart, LLC no longer having a valid contractors license, EcoSmart, LLC, Rezani, and Zamani conspired with Ramirez and JG Builders, Inc. to allow EcoSmart, LLC to illegally use JG Builders contractors license number. All cross-defendants made numerous false statements and used false promises and reassurances about EcoSmarts contractors license to obtain additional funds from cross-complainants. Id., ¶50. Zamani made these representations on behalf of cross-defendants with the intent to induce cross-complainants to enter into a contract with EcoSmart, LLC. But for the statements about EcoSmart, LLC having a valid contractors license, cross-complainants would have never entered into a contract with EcoSmart, LLC. Id., ¶51. Cross-defendant Rezani contends that the FACC does not allege any misrepresentation of any past or existing material fact made by Rezani. Cross-defendants argue that the FACC fails to allege intentional or even negligent misrepresentation. They further argue that the FACC does not sufficiently allege reasonable reliance because it alleges that cross-complainants asked about the contractors license issue. They also argue that cross-complainants have not alleged damages as to how the misrepresentation about the license caused damage beyond the damages suffered due to negligent workmanship. They contend that the FACC appears to be alleging nothing more than breach of an alleged agreement to construct an ADU. In opposition, cross-complainants argue that the allegations are sufficient to meet the elements and individual liability under alter ego. Claims of fraud and misrepresentation must be pleaded with particularity. This cause of action suffers from the same vice that infects the entire Cross-Complaint a lack of clarity regarding the use of the name EcoSmart Builders. It appears that once Cross-Complainant files a Second Amended Complaint identifying the specific entity with whom it is claiming it had a contract, that will shed light on the meaning of the alleged misrepresentations. Accepting as true the allegations of the FACC, Cross-Complainants appear to be admitting that on November 26, 2021, prior to the contract being signed, they were aware that EcoSmart Builders, LLC had a cancelled contractors license. FACC ¶ 47. They were aware that the contract presented to them had the contractors license number 1049536. FACC ¶ 47. (That number is the license number for JG Builders, Inc. dba EcoSmart Builders.) They questioned Zamani about these facts. 48. In response to these questions, FRAZAD ZAMANI, on behalf of all CROSS DEFENDANTS, stated the reason why ECOSMART was using the contractors license of JG BUILDERS was that he had received bad legal advice in the past about moving the contractors licensed from ECOSMART to JG BUILDERS and that the issue was resolved by changing the license to JG BUILDERS dba ECOSMART. FACC ¶ 48. The Court finds that the allegations are not sufficient to support a claim of misrepresentation. On the contrary, the allegations merely show that the confusion created by the ambiguous use of EcoSmart makes this pleading uncertain and it fails to state a cause of action. Defendant Rezani is entitled to a pleading that makes it clear that it is not claimed that he made any statements, but that his claimed liability is entirely based on the assertion of a basis for imposing liability upon him for the actions of others. The demurrer is SUSTAINED with 20 days leave to amend. Fourth cause of action for fraud The elements of a fraud claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to deceive; and (4) reliance and resulting damage. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282, 290. To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings. Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. The particularity requirement necessitates pleadings facts that show how, when, where, to whom, and by what means the representations were tendered. Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645. The FACC alleges that prior to entering into the agreement, Zamani, on behalf of cross-defendants, represented to cross-complainants that EcoSmart, LLC possessed the experience and expertise as a licensed California contractor to be capable of converting the existing garage into an ADU at the property. Cross-defendants, through their words and deeds, made intentional misrepresentations to cross-complainants that EcoSmart, LLC was a licensed general contractor with the ability and experience required to construct the work. FACC, ¶56. The FACC alleges the same as under the third cause of action. Cross-defendant Rezani contends that the FACC does not allege any fraudulent actions by Rezani or plead with particularity as to any misrepresentations made by Rezani. Cross-defendants argue the same as under the third cause of action. In opposition, cross-complainants argue that the allegations are sufficient and have been pled with particularity, including that the individual members of EcoSmart, LLC intentionally cancelled EcoSmart LLCs contractors license but misrepresented that it was properly licensed. The Court finds that the allegations are not sufficient to support a claim of fraud. On the contrary, the allegations merely show that the confusion created by the ambiguous use of EcoSmart makes this pleading uncertain and it fails to state a cause of action. The demurrer is SUSTAINED with 20 days leave to amend. Fifth cause of action for statutory recovery of compensation paid (disgorgement) under Bus. and Prof. Code §7031 Business and Professions Code §7031(b) states: Except as provided in subdivision (e), a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract. A person who utilizes the services of an unlicensed contractor may bring an action to recover all compensation paid to the contractor for performance of any act or contractor. The burden is on the contractor to prove proper licensure. Bus. & Profs. Code §7031(b), (d). When the contracting party is unlicensed, it is subject to §7031 liability even if the entity's president or other principal has a license. Opp v. St. Paul Fire & Marine Ins. Co. (2007) 154 Cal. App. 4th 71, 74-76. The statute applies to all persons and entities who act as contractors, regardless of whether they operate . . . by formal contract. MW Erectors, Inc. v. Neiderhauser Ornamental & Metal Works Co. (2005) 36 Cal.4th 412, 427. When the elements of §7031 are met, an unlicensed contractor must disgorge all profits, regardless of the equities involved. The FACC alleges that EcoSmart, LLC and its owners/managers Rezani, Zamani, and Ramirez did not have a valid contractors license while EcoSmart, LLC was performing work at the property. The license was cancelled effective November 1, 2020. FACC, ¶68. Cross-complainants have paid EcoSmart, LLC for performing construction services at the property. The exact amount is believed to be $103,750. Id., ¶69. Cross-complainants seek reimbursem*nt for all sums paid. Id., ¶70. Cross-defendant Rezani argues that disgorgement is a remedy, not a cause of action. Further, cross-defendant contends, this claim fails as it depends on the claim for breach of contract, under which Rezani was not a party. Cross-defendants argue the same as Rezani and add that it is not illegal for a general contracting corporation, such as JG Builders, Inc. to do business using another name and that there is no ground for disgorgement because the contract was validly entered into using a DBA. In opposition, cross-complainants cite to Bus. and Prof. Code §7031(b) as statutory authority for such a cause of action. As with all the causes of action, this claim suffers from the confusion regarding the identity of the contracting party. Accepting the allegation that the contract was with EcoSmart, LLC, the claim passes muster as to EcoSmart, LLC. EcoSmart LLC is alleged to be unlicensed and it is claimed that it is the entity that entered into the contract. As such, it is potentially liable under Bus. and Prof. Code §7031(b) and the statutory cause of action is viable. The Cross-Complaint seeks to impose liability on Rezani, Zamani and Ramirez under this statute. The Cross Complaint should make clear the basis for such liability. The Court assumes that Cross-Complainants allege that the liability of the individuals is entirely vicarious based on a claim of alter ego and/or conspiracy. That should be made clear in an amended pleading. The Court finds that the allegations are sufficient as to Defenant EcoSmart, LLC and that there is a cause of action for disgorgement under § 7031. There is no need to prove a breach of contract. However, the allegations are not sufficient as to Rezani, Zamani and Ramierz. The demurrer is SUSTAINED as to Rezani, Zamani and Ramierz with 20 days leave to amend, and it is OVERRULED as to EcoSmart, LLC. Sixth cause of action for rescission Cross-Complainants claim that they entered into a contract with EcoSmart that they wish to rescind. (They admit in their oppositions to the demurrers that they are not claiming they have contracts with the other defendants, only that the other defendants have vicarious liability on the theory of alter ego and/or conspiracy.) First, since the Cross-Defendants have noted that they did not have a contract with the individual defendants, only with an entity, the Court will sustain the demurrer as to the Rezani, Ramirez and Zamani. There is nothing to rescind as to these defendants. Civil Code §1689 states in part: (b) A party to a contract may rescind the contract in the following cases: (1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party. Civil Code §1691 states: Subject to Section 1693, to effect a rescission a party to the contract must, promptly upon discovering the facts which entitle him to rescind if he is free from duress, menace, undue influence or disability and is aware of his right to rescind: (a) Give notice of rescission to the party as to whom he rescinds; and (b) Restore to the other party everything of value which he has received from him under the contract or offer to restore the same upon condition that the other party do likewise, unless the latter is unable or positively refuses to do so. When notice of rescission has not otherwise been given or an offer to restore the benefits received under the contract has not otherwise been made, the service of a pleading in an action or proceeding that seeks relief based on rescission shall be deemed to be such notice or offer or both. The FACC alleges that cross-complainants seek the rescission of the contract with EcoSmart, LLC based on mistake of fact, fraud, illegality, and contract against public policy. FACC, ¶74. Cross-complainants believed that, based on actions and false statements of Zamani on behalf of cross-defendants that EcoSmart, LLC was a licensed general contractor, which is not true. Id., ¶75. Cross-defendant Rezani argues that rescission is a remedy, not a cause of action. Further, cross-defendant contends, this claim fails as it depends on the claim for breach of contract, under which Rezani was not a party. Cross-defendants argue the same as Rezani. In opposition, cross-complainants argue that the allegations are sufficient based on the fraudulent statements made by EcoSmart, LLC that it was a licensed general contractor and the mistake made by cross-complainants in believing EcoSmart, LLC was a licensed general contractor. Cross-complainants also assert that they have plead alter ego as to the other cross-defendants. The Court finds that the allegations are sufficient as to EcoSmart, LLC to meet the elements and that cross-complainants have alleged sufficiently the underlying basis. The demurrer is SUSTAINED as to Rezani, Ramierz and Zamani, and OVERRULED as to EcoSmart, LLC and JG Builders, Inc. (The Court is overruling as to both entity defendants due to the confusion regarding which entity Cross-Complainants are claiming they entered into a contract with. Once that confusion is resolved by a new Cross-Complaint, one entity may be entitled to be dismissed from this claim.) Seventh cause of action for unfair business practices The purpose of the Unfair Business Practices Act (Bus. & Prof. Code §17000, et. seq.) is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair, dishonest, deceptive, destructive, fraudulent and discriminatory practices by which fair and honest competition is destroyed or prevented. Bus. & Prof. Code §17001. The Unfair Business Practices Act shall include any unlawful, unfair or fraudulent business act or practice. Bus. & Prof. Code §17200. The Unfair Business Practices Act is a tool with which to enjoin deceptive or sharp practices. Samura v. Kaiser Foundation Health Plan, Inc. (1993) 17 Cal. App. 4th 1284, 1299, fn. 6. A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619. The FACC alleges that cross-defendants engaged and continue to engage in business practices which are unfair and unlawful and in violation of Bus. and Prof. Code §17200, et seq. by fraudulently representing to cross-complainants and the general public that it was a properly licensed general contractor. They also violated the Bus. and Prof. Code by failing to have an actual RMO supervise, coordinate, and inspect the construction services being performed under JG Builders contractors license. FACC, ¶80. Cross-defendant Rezani argues that the FACC does not plead any facts to show any unlawful, unfair, or fraudulent business acts or practices. Cross-defendants argue that cross-complainants cannot bypass the heightened pleading requirement of fraud by lumping multiple individuals and companies together. In opposition, cross-defendants argue that the allegations are sufficient and that it has already overruled the demurrer to this cause of action. Given the confusion created by the pleading as to the basis for imposing liability on each Cross-Defendant, the Court shall sustain the demurrer to this cause of action. This claim is largely derivative form the other claims. The demurrer is SUSTAINED with 20 days leave to amend. Motion to Strike In light of the Courts ruling on the demurrer, the Court deems the Motion to Strike moot. ORDER Cross-defendant Rezanis demurrer to the first, third, fourth, fifth, sixth, and seventh causes of action in the FACC is SUSTAINED. Cross-defendants JG Builders, Inc., EcoSmart, LLC, Zamani, and Ramirezs demurrer to the first, second, third, fourth, and seventh causes of action in the FACC is SUSTAINED. The demurrer to the fifth cause of action is SUSTAINED as to Rezani, Zamani and Ramierz with leave to amend, and it is OVERRULED as to EcoSmart, LLC. The demurrer to the sixth cause of action is SUSTAINED as to Rezani, Ramierz and Zamani, and OVERRULED as to EcoSmart, LLC and JG Builders, Inc. 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