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Case Number: 24STCV13168 Hearing Date: October 11, 2024 Dept: 58 Two tentative rulings follow: Judge Bruce Iwasaki Department 58 Hearing Date: October 11, 2024 Case Name: Perry & Alznauer, P.C. v. City National Bank, et al. Case No.: 24STCV13168 Motion: Demurrer Moving Party: Defendant PNC Bank, N.A Responding Party: Plaintiff Perry & Alznauer, P.C. Tentative Ruling: The Demurrer is sustained. This case arises from an alleged fraudulent wire transfer from the bank account of Plaintiff Perry & Alznauer, P.C.s (Plaintiff) at Defendant City National Bank (CNB), totaling $174,160.22. (Compl. ¶¶ 11-12.) Among these unauthorized payments was a wire transfer from one of Plaintiffs accounts to the accounts of various individuals, one of which was at Defendant PNC Bank, N.A. (PNC). Plaintiff was unable to recover a portion of the funds from the wire transfer to PNC. (Id. ¶¶ 13-14.) On May 24, 2024, Plaintiff filed an action against Defendants City National Bank, Space Coast Credit Union, Wells Fargo Bank, N.A., PNC Bank, N.A., Raheem Vassall, Dante Prescott, Michael Carseli, and Does 1 through 100. On August 6, 2024, Plaintiff filed a First Amended Complaint (FAC) for (1) violation of Commercial Code section 11204, (2) negligence, (3) common counts, (4) conversion, and (5) violation of Penal Code section 496 against PNCs. On September 9, 2024, Defendant PNC demurred to the only counts alleged against it, the second cause of action for negligence and the third causes of action for common counts. On September 30, 2024, Plaintiff filed an opposition. PNC replied. Legal Standard A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . .. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) When a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) Meet and Confer Before filing a demurrer, the demurring or moving party is required to meet and confer in person or by telephone with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.) Counsel for PNC provided that they completed a meet and confer with Plaintiffs counsel on August 15, 2024 via telephone and informed counsel of the deficiencies identified in the First Amended Complaint and that PNC intended to file a demurrer to Plaintiffs First Amended Complaint. (Demurrer, page 2.) Thus, the meet and confer requirement has been met. Discussion PNC demurs to Plaintiffs complaint on the grounds that the allegations contained in the complaint fail to state facts sufficient to constitute causes of action for: (1) negligence and (2) common counts. The California Uniform Commercial Code Displaces Plaintiffs Common Law Claims PNC demurs as to Plaintiffs causes of action for negligence and common counts on the grounds that these common law claims are preempted by the California Uniform Commercial Code. The 1990 Legislature enacted Article 4A of the Uniform Commercial Code as Division 11 of the California Uniform Commercial Code (U.C.C. 11101 et seq.), entitled Funds Transfers. (Zengen, Inc. v. Comerica Bank (2007) 41 Cal.4th 239, 247.) According to the Code Comment to section 4A102, adopted in California as section 11102 of the California Uniform Commercial Code, Article 4A governs fund transfer[s], or as commonly referred to as a wholesale wire transfer. (Cal. U. Com. Code, § 11102.) In the drafting of Article 4A, a deliberate decision was made to write on a clean slate and to treat a funds transfer as a unique method of payment to be governed by unique rules that address the particular issues raised by this method of payment, and to specifically and precisely, allocate risks and establish limits on liability, rather than to rely on broadly stated, flexible principles. (Id.) As our Supreme Court has explained, because the Legislature adopted article 4A of the Uniform Commercial Code exactly as written, this Code Comment is persuasive in interpreting the statute. (Zengen, Inc. v. Comerica Bank (2007) 41 Cal.4th 239, 252.) The Comment makes clear that the funds transfer article is intended to provide a comprehensive body of law and the exclusive means of determining the rights and liabilities of the parties. The rules established within Article 4A represent a careful and delicate balancing of the competing interests of banks that provide funds transfer services, commercial and financial organizations that use their services, and the public interest. (Id.) In balancing these interests, Article 4A is intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered by particular provisions of the Article. (Id.) Consequently, resort to principles of law or equity outside of Article 4A is not appropriate to create rights, duties and liabilities inconsistent with those stated in this Article. (Id.) Both Plaintiff and PNC agree that a funds transfer, as it is defined in Article 4A, is at issue. (FAC ¶ 20; Demurrer, page 10; Cal. U. Com. Code, § 11104(a) [Funds transfer means the series of transactions, beginning with the originators payment order, made for the purpose of making payment to the beneficiary of the order. The term includes any payment order issued by the originator's bank, or an intermediary bank intended to carry out the originator's payment order.].) Further it is undisputed that under Article 4A, City National Bank would be considered the receiving bank, since it received the payment order (funds transfer request) from Plaintiff, Plaintiff would be considered sender, PNC Bank would be considered the beneficiarys bank, and its customer, one of the alleged fraudsters, would be considered the beneficiary. (See Cal. U. Com. Code, § 11103.) In Zengen, supra, 41 Cal. 4th at p. 253, the Supreme Court held that Article 4A displaces common law causes actions based on allegedly unauthorized funds . . . in two specific areas: (1) where the common law claims would create rights, duties, or liabilities inconsistent with division 11; and (2) where the circumstances giving rise to the common law claims are specifically covered by the provisions of [Article 4A.] However, the Court continued to state that [t]his is not to say that the Uniform Commercial Code necessarily displaces all common law actions based on all activities surrounding funds transfers. One court has explained that [t]he exclusivity of Article 4A is deliberately restricted to any situation covered by particular provisions of the Article. Conversely, situations not covered are not the exclusive province of the Article. (Zengen, supra, 41 Cal.4th at p. 249 (citing Sheerbonnet, Ltd. v. American Exp. Bank, Ltd. (S.D.N.Y.1995) 951 F.Supp. 403, 407-408).) In Zengen, the chief financial officer of plaintiff corporation embezzled four funds transfers from one of plaintiff corporations bank accounts to an account that he controlled. The transfers were not authorized, but because it seemed on their face that plaintiff corporations chief executive officer had signed and authorized the payment orders, the Bank processed the orders, which became the subject matter of the dispute. (Zengen, supra, 41 Cal.4th at p. 245.) The Court found that plaintiff corporations common law causes of action against the Bank on the basis that [t]he Bank should not have accepted and executed the fraudulent payment orders are preempted by the California Uniform Commercial Code. (Id. at p. 254.) The Court stated that the fact that the Bank made an improper funds transfer is unequivocally addressed by Article 4A. (Id. at p. 255.) Zengen controls the outcome here. Plaintiffs common law causes of action directly rely on PNCs acceptance of the alleged fraudulent and unauthorized wire transfers. Plaintiff alleges that all banks owe a duty of care to maintain the integrity of the payment order system as it applies to transfers of funds by wire transfer . . . . Part of this duty includes an obligation to protect other parties to the payment order system from illegal conduct committed by the banks own customers. (FAC ¶ 31.) In Zengen, plaintiff corporations common law causes of action were preempted by Article 4A because they directly relied upon unauthorized wire fund transfers. Similarly, Plaintiff Perry & Alznauer also relies on unauthorized wire transfers as the basis for its claims. (FAC ¶ 27; Zengen, supra, 41 Cal.4th at p. 255.) Plaintiff argues that Zengen is distinguishable because that case dealt with claims against the receiving bank and the situation here deals with PNC as the beneficiarys bank. Plaintiff points to nothing in the text of the statute or the holding in Zengen to indicate that Article 4A displaces common law suits against banks that transmit fraudulent tranfers, but not suits against beneficiary banks. The rule is categorical: Zengen states that Article 4A squarely covers the question who should bear the loss when a bank executes an unauthorized payment order. (Id. at p. 254.) Thus, the holding applies to the subject matter of when a bank executes an unauthorized payment order. (Ibid.) Here, Plaintiff alleges that PNC should have stop[ped] the funds from being distributed to the beneficiaries, but negligently or intentionally transferred funds to their customers. (FAC ¶ 29.) In alleging that PNC should have stop[ped] the funds from being distributed, Plaintiff contends that PNC should not have executed the unauthorized transfer, which is explicitly within the purview of Article 4A. Because Plaintiff alleges that PNC basically made an improper funds transfer, its common law claims are displaced by Article 4A and . . . [Plaintiff's] exclusive remedy for that claim must be found in Article 4A. (Zengen, supra, 41 Cal.4th at p. 255.) Other cases have come to the same conclusion. According to Chino Com. Bank, N.A. v. Peters (2010)190 Cal.App.4th 1163, 1173, Article 4A of the UCC governs funds transfers, which include wire transfers. In Attisha Enterprises, Inc. v. Cap. One, N.A. (2020) 505 F. Supp. 3d 1051, 1057 (S.D. Cal. 2020), the court found that plaintiffs common law negligence claim based on the beneficiary banks acceptance of a fraudulent wire transfer and the subsequent release of the funds were preempted by the California Uniform Commercial Code. Like in Attisha, where the court preempted a common law negligence claim against the beneficiary bank for accepting and processing an unauthorized wire transfer, here too Plaintiff pursues common law claims against PNC, the beneficiary bank, for processing an unauthorized and fraudulent wire transfer. As stated above, because Plaintiffs common law causes of action depend on whether PNC processed an unauthorized payment order, Plaintiffs common law claims fails as they are displaced by the California Uniform Commercial Code. (Zengen, supra, 41 Cal.4th at p. 255.) In Chen v. JP Morgan Chase Bank (C.D. Cal 2024) No. 2:23-CV-10874-SPG-AS, 2024 WL 4004999, at p. *7, the court found that plaintiffs common law tort claims were preempted by Article 4A because the plaintiffs allegations that defendants should have, but failed, to stop the allegedly fraudulent transactions from occurring is the gravamen of plaintiffs . . . common law claims. Like Chen, Plaintiff here also alleges that PNC should have stop[ped] the funds from being distributed to the beneficiaries. (FAC ¶ 29.) The situation here is unlike Venture Gen. Agency, LLC v. Wells Fargo Bank, N.A. (N.D. Cal. 2019) No. 19-CV-02778-TSH, 2019 WL 3503109, at *3. There, the court held that plaintiffs negligence claim was not preempted by the UCC because the negligence claim was not based solely on the wire transfers but also on [the Banks] subsequent actions. (Id. at 4.) There, the plaintiffs sought relief not only on the Banks processing of the wire transfers, but also on the Banks acts after processing them. (Id.) However, Plaintiffs common law causes of action here are not based on PNCs subsequent conduct but are solely based on the acceptance of the unauthorized transfers and the release of the funds from those transfers. (Compl., ¶ 30.) Here, the Plaintiff alleges that PNC had time to stop the funds from being distributed to the beneficiaries, but negligently or intentionally transferred funds to their customers (the named individual PNCs), and permitted them to close the accounts and withdraw the funds obtained fraudulently. (Compl., ¶¶ 29-30.) There are no allegations within Plaintiffs common law claims against PNC apart from its actions in connection with the fraudulent transfer. Based on the foregoing, Plaintiffs causes of action for negligence and common counts against PNC fail because they are displaced by the California Uniform Commercial Code. PNCs demurrer is sustained. Conclusion PNC Banks demurrer is sustained as to the second and third causes of action. The Court is dubious that Plaintiff can demonstrate that there is a reasonable possibility that it can amend to state common law causes of action against PNC. The Court will entertain argument on this issue. . . . . . Judge Bruce Iwasaki Department 58 Hearing Date: October 11, 2024 Case Name: Perry & Alznauer, P.C. v. City National Bank, et al. Case No.: 24STCV13168 Motion: Compel Arbitration Moving Party: Defendant City National Bank Responding Party: Plaintiff Perry & Alznauer, P.C. Tentative Ruling: City National Banks motion to compel arbitration is granted. This case arises from an alleged fraudulent wire transfer from Plaintiff Perry & Alznauer, P.C.s (Plaintiff) personal and business bank accounts at Defendant City National Bank to the accounts of various individuals. (Compl. ¶¶ 11-12.) On May 24, 2024, Plaintiff filed an action against Defendants City National Bank, Space Coast Credit Union, Wells Fargo Bank, N.A., PNC Bank, N.A., Raheem Vassall, Dante Prescott, Michael Carseli, and Does 1 through 100. On August 6, 2024, Plaintiff filed a First Amended Complaint (FAC) for (1) violation of Commercial Code section 11204, (2) negligence, (3) common counts, (4) conversion, and (5) violation of Penal Code section 496 against Defendants. On September 9, 2024, Defendant City National Bank (CNB) filed the present Motion to Compel Arbitration. On September 30, 2024, Plaintiff filed an opposition, and evidentiary objections to paragraphs 3 and 5 of the Declaration of Kyle Szabo and the attached Exhibit 2. On October 4, 2024, CNB filed its reply, and its response to Plaintiffs evidentiary objections. Factual Background Mr. Perry, the principal of Plaintiff, was the contact on Plaintiffs two checking accounts that it maintained with Defendant CNB from September 2010 to at least January 2024. (Biles Decl., ¶ 3.) According to CNB, when Plaintiff opened its bank accounts with CNB, it had to and did sign the Account Agreement and Disclosures (AAD), which govern the relationships between CNB and its clients. (Id. ¶¶ 2, 4; Exhibit 2.) When Plaintiff first signed the AAD, there was no arbitration agreement present. (Id. ¶ 5.) However, according to CNB, in late 2022, CNB informed all clients, including Plaintiff, that an arbitration agreement would be added to the AAD. (Id.) The amended portion of the AAD, which contains the arbitration agreement, states in pertinent part: Except to the extent that they may be resolved through small claims court or as set forth in the Miscellaneous section below, any and all Claims, regardless whether they (a) arise out of, affect, or relate to conduct that occurred prior to the Effective Date of the Agreement, or (b) are in contract, tort, statute, or otherwise, shall, at the election of either you or us, be resolved by confidential and binding arbitration. Either you or we may elect to resolve any and all Claims through arbitration, even if one of us has already initiated litigation in court related to such Claim(s), by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, and/or (c) filing a motion to compel arbitration in court. AS A RESULT, IF EITHER YOU OR WE ELECT TO RESOLVE ANY CLAIM(S) THROUGH ARBITRATION, YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR CLAIMS, RIGHTS, AND POSITIONS AS TO SUCH CLAIM(S) (except for a claim brought individually within small claims court jurisdiction, so long as the claim remains in small claims court). The parties shall mutually agree that the arbitration be administered by either the American Arbitration Association (AAA) or JAMS, in accordance with the AAA or JAMS rules and procedures, respectively, then in effect and applicable to the type of dispute at issue (the Rules). (Id.; Exhibit 2, page 18.) According to CNB, it informed Plaintiff on December 6, 2022 of the addition of the arbitration agreement to the AAD by email (to two different email addresses), and that Plaintiff opened both emails. (Szabo Decl., ¶¶ 4, 5; Exhibit 1.) Within these emails, there was a link to the complete text of the new arbitration agreement to be added to the AAD, and that the arbitration agreement was to go into effect on February 1, 2023. (Id. ¶ 5; Exhibits 1, 2.) Specifically, the email states: Effective February 1, 2023, the Dispute Resolution section in the Account Agreement and Disclosures will be revised to implement binding arbitration of almost all disputes between you and City National Bank. Certain eligible clients may have a limited right in some circumstances to opt out of the arbitration agreement. Please carefully review the revised Dispute Resolution section at cnb.com/disputeresolution. (Id., Exhibit 2.) According to CNB, the text of the link also explained Plaintiffs options regarding the arbitration agreement, including its right to opt out and the procedures to do so. (Biles Decl., ¶ 6.) Plaintiff disputes the existence of a valid agreement to arbitrate. First, Plaintiff argues that there is no valid evidence that the two emails that were said to be sent to two of Plaintiffs email addresses were ever sent, opened, or read by Plaintiff, as Plaintiff has filed an evidentiary objection to the Declaration of Kyle Szabo and the attached Exhibit 2. (Opposition, page 6.) Secondly, Plaintiff argues that there was no assent on behalf of Plaintiff to the addition of the arbitration agreement because email notice of a significant change of terms (after 13 years) is not authorized or sufficient. (Id., page 8.) Legal Standard Under Code of Civil Procedure section 1281.2, a court may order arbitration of a controversy if it finds that the parties have agreed to arbitrate that dispute. Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Since arbitration is a favored method of dispute resolution, arbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question. (Id. at p. 353; Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.) Evidentiary objections Plaintiff objects to, and moves to strike, paragraphs 3 and 5 of Kyle Szabos declaration, as well as the entirety of Exhibit 2 to his declaration on the ground of lack of foundation and personal knowledge. The objections are overruled. Discussion CNB moves to compel arbitration on the grounds that (1) a valid agreement to arbitrate exists; (2) the arbitration agreement covers Plaintiffs claim against CNB; (3) the parties agreed to arbitrate using the procedures of the Federal Arbitration Act (FAA); (4) there is no waiver of the right to arbitrate. The sole basis for Plaintiffs opposition to the motion is that CNB failed to establish the existence of an agreement to arbitrate between the parties. The Court disagrees. A Valid Agreement to Arbitrate Exists Arbitration is a matter of contract. (Metalclad Corp. v. Ventana Env't Organizational P'ship (2003) 109 Cal.App.4th 1705, 1711.) General principles of contract law determine whether the parties have entered a binding agreement to arbitrate. (Craig v. Brown & Root, Inc., 84 Cal.App.4th 416, 420 (2000); Engalla v. Permanente Medical Group, Inc., 15 Cal.4th 951, 971-72 (1997).) In determining whether an arbitration agreement exists, we apply the same rules of contract formation as for any other contract. (Weeks v. Interactive Life Forms, LLC (2024) 100 Cal.App.5th 1077, 1084.) Under California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code Civ. Proc., § 1281.2.) In ruling on a motion to compel arbitration, the court must first determine whether the parties agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) Once the moving party alleges that an arbitration agreement exists, the burden shifts to the responding party to prove the falsity of the purported agreement, and no evidence or authentication is required to find the arbitration agreement exists. (See Condee v. Longwood Mgt. Corp. (2001) 88 Cal.App.4th 215, 219.) However, if the existence of the agreement is challenged, "[the moving party] bears the burden of proving [the arbitration agreement's] existence by a preponderance of the evidence." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413. See also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1058-1060.) With respect to the moving party's burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court. (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160). A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference. (Cal. Rules of Court, Rule 3.1330.) Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges. (Baker, supra, 13 Cal.App.5th at 1160.) Here, CNB as the moving party, has met its burden of showing that an arbitration agreement exists by providing the text of the addition of the arbitration agreement to the AAD. (Szabo Decl., ¶¶ 4, 5; Exhibit 1.) The burden shifts. Now, Plaintiff disputes the existence of an agreement to arbitrate because the two emails that CNB sent, which contained a link to the text of the newly added arbitration agreement, were not authorized or sufficient forms of notice to indicate that Plaintiff assented to the arbitration agreement. (Opposition, page 8.) 1. The Arbitration Agreement is a browsewrap agreement. The arbitration agreement, which was contained within the link that was sent out in the December 6, 2022 emails, is a browsewrap agreement. [W]hen transactions occur over the internet, there is no face-to-face contact and the consumer is not typically provided a physical copy of the contractual terms. In that context, and in the absence of actual notice, a manifestation of assent may be inferred from the consumer's actions . . . . (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 461.) Courts have generally enforced agreements to arbitrate formed via clickwrap, where an internet user accepts a website's terms of use by clicking an I agree or I accept button, with a link to the agreement readily available. (Weeks, supra, 100 Cal.App.5th at 108485.) Browsewrap provisions differ from clickwrap because they operate under the theory that the user accepts a website's terms of use merely by browsing the site. (Id. at 1085.) Here, the newly added arbitration agreement is like a browsewrap provision. As stated above, on December 6, 2022, CNB sent two emails to two of the Plaintiffs email addresses. (Szabo Decl., ¶ 5, Exhibits 1, 2.) According to CNB, Plaintiff opened both emails, which included the link to the complete text of the arbitration agreement to be added to the AAD that Plaintiff signed when it first opened its bank accounts with CNB. (Szabo Decl., ¶ 5, Exhibits 1, 2.) Firstly, the transaction occurred over the internet because the addition of the arbitration agreement to the AAD was supplied over email. Secondly, CNB does not claim that Plaintiff, or any of its clients to whom the emails were sent, must have affirmatively assented to the addition of the arbitration agreement. The link provided in the emails did not require [Plaintiff] to take any unambiguous action to agree to the terms of the new arbitration agreement. (Weeks, supra, 100 Cal.App.5th at 108485.) Additionally, CNB states that under the AADs terms, Plaintiffs continued use of its accounts and related services constituted his consent to the arbitration agreement. (Motion, page 10.) 2. Plaintiff was given sufficient notice of the arbitration agreement. CNB in emailing two emails to Plaintiff on December 6, 2022, which contained a hyperlink to the newly added arbitration agreement, provided Plaintiff with actual notice of the terms of the arbitration agreement. Unlike the other common form of [i]nternet contractknown as clickwrap agreementsbrowsewrap agreements do not require users to affirmatively click a button to confirm their assent to the agreement's terms; instead, a user's assent is inferred from his or her use of the [website]. Because assent must be inferred, the determination of whether a binding browsewrap agreement has been formed depends on whether the user had actual or constructive knowledge of the [website's] terms and conditions (Long v. Provide Com., Inc. (2016) 245 Cal.App.4th 855, 858.) [W]here ... there is no evidence that the website user had actual knowledge of the agreement, the validity of the browsewrap agreement turns on whether the website puts a reasonably prudent user on inquiry notice of the terms of the contract. (Nguyen v. Barnes & Noble Inc. (9th Cir. 2014) 763 F.3d 1171, 1177.) [T]o establish the enforceability of a browsewrap agreement, a textual notice should be required to advise consumers that continued use of a [site] will constitute the consumer's agreement to be bound by the [sites] terms of use. (Long, supra, 245 Cal.App.4th at 867.) Here, the Court finds that Plaintiff had actual notice of the addition of the arbitration agreement. The hyperlink here which contained the text of the arbitration agreement was directly sent to two of Plaintiffs email addresses. (Szabo Decl., ¶ 5, Exhibits 1, 2.) Further, Plaintiff actually opened the contents of the two emails minutes after they were sent. (Szabo Decl., ¶ 5, Exhibit 2.) CNB provided Plaintiff with a personalized and targeted notice of the addition of the arbitration agreement, which is sufficient notice to enforce a browsewrap agreement. (Nguyen, supra, 763 F.3d at p. 1176 [[C]ourts have consistently enforced browsewrap agreements where the user had actual notice of the agreement.].) While Plaintiff argues that email notice about a change of terms is inadequate, Plaintiff has not provided any legal authority to support his contention that email notice is insufficient as a matter of law. Because CNB provided Plaintiff with actual notice of the addition of the arbitration agreement, Plaintiff is deemed to have assented to the addition of the arbitration agreement and its terms. In Reply, CNB states that it also provided notice of the arbitration provision early in 2022 by U.S. mail, and also through its online portal through which Plaintiff received its monthly statements. The Court need not consider this new information because the evidence is sufficient to grant the motion to compel arbitration without it. Conclusion CNB Banks Motion to Compel Arbitration is granted. The case is stayed pending arbitration. (Code Civ. Proc., §§ 1281.4, 1292.6.)
Ruling
Maziyar Keyghobadi vs. Wyndham Worldwide Corporation
Oct 08, 2024 |19CECG02300
Re: Maziyar Keyghobadi v. Wyndham Worldwide Corporation Superior Court Case No. 19CECG02300Hearing Date: October 8, 2024 (Dept. 403)Motion: By Plaintiff for Reconsideration, or in the Alternative, Relief from DismissalTentative Ruling: To deny the motion for reconsideration pursuant to Code of Civil Proceduresection 1008, but to grant the alternative relief pursuant to Code of Civil Proceduresection 473, subdivision (b). The dismissal entered on June 14, 2024 is set aside. The issueof payment of defendants’ reasonable attorney’s fees and costs is reserved. A trial setting conference is set for Wednesday, October 16, 2024 at 3:30 p.m. inDepartment 403. Plaintiff’s counsel is ordered to appear in person. Discovery remainsclosed. A dismissal hearing is also set for Tuesday, January 7, 2025 at 3:30 p.m. inDepartment 403. If the trial has not commenced by that date, the case will be dismissed.Explanation:Reconsideration Pursuant to Code of Civil Procedure section 1008, the losing party may bring amotion to reconsider, and a different order may be entered, if, subject to the followingconditions, the motion is: (1) brought before the same judge that made the order; (2) made within 10 days after service upon the party of notice of the entry of the order; (3) based on new or different facts, circumstances, or law; and (4) made and decided before entry of judgment.Code of Civil Procedure section1008 is jurisdictional. (Gilberd v. AC Transit (1995) 32Cal.App.4th 1494, 1499.) A party requesting the court reconsider its prior orders mustprovide new evidence and a satisfactory explanation for why the evidence was notpreviously presented. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342; New YorkTimes Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213; Garcia v. Hejmadi (1997)58 Cal.App.4th 674, 690.) The burden has been compared to “that of a party seeking anew trial on the ground of newly discovered evidence: the information must be suchthat the moving party could not, with reasonable diligence, have discovered orproduced it at the trial.” (New York Times Co. v. Superior Court, supra, 135 Cal.App.4th206, 212-213.) Here, plaintiff’s counsel asserts that there are two new circumstances: 1) thatcounsel’s observation of Shavuot caused him to be unaware of the court’s June 12, 2024order until the evening before he would have been required to appear for the trialreadiness conference on June 14, 2024 and 2) medical documentation of his illness atthe time of the trial readiness conference. Here, counsel fails to provide any explanationfor his failure to present this evidence at the trial readiness conference or to provide thisinformation to specially appearing counsel. As such, plaintiff has not established therequirements for reconsideration.Alternative Relief The alternative relief requested pursuant to Code of Civil Procedure section 473,subdivision (b) asserts that counsel made an error when failing to attend the trialreadiness conference on June 14, 2024. Counsel requests the court set aside the resultingdismissal. Code of Civil Procedure section 473, subdivision (b) articulates that “[t]he courtmay, upon any terms as may be just, relieve a party or his or her legal representative froma judgment, dismissal, order, or other proceeding taken against him or her through his orher mistake, inadvertence, surprise, or excusable neglect.” In order to apply for suchrelief, a copy of the proposed pleading is to be filed with the application, otherwise it issubject to denial. (Code Civ. Proc., § 473, subd. (b).) It shall also be made within areasonable, time, not to exceed six months. (Ibid.) Where an application for relief ismade timely, in the proper form, and accompanied by an attorney’s sworn affidavit ofhis or her mistake, inadvertence, surprise, or excusable neglect, the court shall grant therelief requested, unless the court determines the default or dismissal was not based onthe attorney’s fault. (Ibid.) Here, plaintiff’s counsel has filed this motion timely. Counsel admits his fault insending special appearance counsel to the trial readiness conference on June 14, 2024.The motion therefore must be granted, and the dismissal set aside. The court is inclinedto grant defendants’ request, pending counsel provides evidence of the fees associatedwith this motion.Five Years Tolled Dismissal is mandated where a defendant is not brought to trial within five years ofthe commencement of the matter. (Code Civ. Proc., § 583.310.) This matter was filedJuly 5, 2019, five years and three months ago. However, in light of the pandemic, all civilactions filed on or before April 6, 2020 have an extension of six months to bring the matterto trial. (Cal. Rules of Court, Emergency Rule 10.) As such, the court sets the matter for adismissal hearing on January 7, 2025. In the event the matter has not been brought totrial by January 5, 2025, the case will be dismissed. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: JS on 10/4/2024 . (Judge’s initials) (Date)
Ruling
MICHELE BIDINGER VS RALPH, ESTATE OF SHAFFER, ET AL.
Oct 11, 2024 |22VECV02007
Case Number: 22VECV02007 Hearing Date: October 11, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT Michele Bidinger, Plaintiff, v. Ralph, Estate of Shaffer, et al., Defendants. Case Number Department 22VECV02007 107 COURTS [TENTATIVE] ORDER RE: MOTION TO BE RELIEVED AS COUNSEL [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: Plaintiff Michele Bidingers attorney Gary Kurtz (Counsel) moves to be relieved as counsel. Counsels motion to be relieved as counsel for Plaintiff is GRANTED. I. BACKGROUND This is a landlord-tenant dispute. Plaintiff filed a complaint against Defendants Estate of Ralph Shaffer, Abrienne Shaffer, Vivian Sypien, Andrew Sypien, and Does 1 to 50 on November 15, 2022. The complaint alleges causes of action for statutory violations and breach of implied covenant of quiet enjoyment. Counsel filed a motion to be relieved as counsel (the Motion) on August 30, 2024. No opposition was filed. At a hearing on September 26, 2024, this court granted Counsels oral motion to continue the hearing so Counsel could file a revised proposed order. (09/26/24 Minute Order; 09/30/24 Notice of Ruling.) Counsel filed revised proposed orders on September 26, 2024, and October 4, 2024. II. LEGAL STANDARD An attorney in an action may be changed at any time before or after judgment or final determination upon the order of the court, upon the application of either client or attorney, after notice from one to the other. (Cal. Code Civ. Proc. § 284(2).) California Rules of Court, rule 3.1362 requires: 1. Notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel Civil form (MC-051)); 2. A declaration stating in general terms, and without compromising the confidentiality of the attorney client relationship, why a motion under California Code of Civil Procedure § 284, subdivision (2) is brought instead of filing a consent under California Code of Civil Procedure § 284, subdivision (1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel Civil form (MC-052)); 3. Service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and 4. The proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel Civil form (MC-053)). The motion should be denied if it will cause undue delay in the proceeding or cause injustice. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.) The determination whether to grant or deny an attorneys motion to withdraw as counsel of record lies within the sound discretion of the trial court, having in mind whether such withdrawal might work an injustice in the handling of the case. (Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.) An attorney is not limited to withdrawing from a case for cause and may withdraw when withdrawal can be accomplished without undue prejudice to the client. (Ramirez v. Sturdevant (1994) 26 Cal. Rptr. 2d 554, 559.) III. DISCUSSION (A) NoticeCal. Rules of Court, Rule 3.1362(a) A notice of motion and motion to be relieved as counsel under California Code of Civil Procedure section 284, subdivision (2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as CounselCivil (form MC-051). The Motion complies with this requirement. (B) DeclarationCal. Rules of Court, Rule 3.1362(c) 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 CounselCivil (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, subdivision (2) is brought instead of filing a consent under Code of Civil Procedure section 284, subdivision (1). The Motion complies with this requirement by explaining on form MC-052 that There has been a complete breakdown of the attorney client relationship. Client has stated that she does not want me to be her lawyer and that a lawyer will replace me. After waiting an extended period of time for tht [sic] to occur, and after being unable to respond to discovery or a settlement offer because client refuses to communicate with me, I have no choice but to ask for leave to withdraw. (C) ServiceCal. Rules of Court, Rule 3.1362(d); Super. Ct. L.A. County, Local Rules, Rule 4.35 The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service or mail. If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either: 1. The service address is the current residence or business address of the client; or 2. The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. As used in this rule, current means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011, subdivision (b) applies. When an attorney files a motion to withdraw as attorney of record for a fiduciary, service must be made by citation. The citation must be served in the manner provided in Code of Civil Procedure sections 415.10 or 415.30. If the fiduciary resides outside of California, service may also be made in the manner provided in Code of Civil Procedure section 415.40. (Super. Ct. L.A. County, Local Rules, rule 4.35.) The Motion complies with this requirement. Although Counsel did not attach a proof of service to each filing, Counsel filed a proof of service attached to the MC-051 filing that indicates the motion, declaration, and order were served on Plaintiff by mail. Counsels declaration on MC-052 states that the Motions filings were served on Plaintiff at Plaintiffs last-known address and the address at which the papers were served was confirmed to be Plaintiffs current address within the past 30 days by referencing her employment records and an internet search. Counsel also states a courtesy copy will be sent by email to Plaintiff. Finally, Counsel states Counsel has been unable to confirm that the address is current or to locate a more current address after calling Plaintiffs last known telephone number, contacting persons familiar with the client, and conducting a Zillow search to see if Plaintiffs apartment has been on the market recently. (D) OrderCal. Rules of Court, Rule 3.1362(e) The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as CounselCivil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. Counsels revised proposed order filed on October 4, 2024, complies with this requirement. IV. CONCLUSION Accordingly, this court GRANTS the Motion. Dated: October 11, 2024 __________________________________ Hon. Eric Harmon Judge of the Superior Court
Ruling
GUADALUPE GUERRA VS MIGUEL ANGEL BRAVO-RODRIGUEZ, ET AL.
Oct 09, 2024 |23TRCV01820
Case Number: 23TRCV01820 Hearing Date: October 9, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Wednesday, October 9, 2024 Department M Calendar No. 14 PROCEEDINGS Guadalupe Guerra v. Miguel Angel Bravo-Rodriguez, et al. 23TRCV01820 1. Ruby Bravos Motion to Vacate Default and Any Default Judgment TENTATIVE RULING Ruby Bravos Motion to Vacate Default and Any Default Judgment is granted. Background Plaintiff filed the Complaint on June 6, 2023. Plaintiff alleges the following facts. Plaintiff and Defendants were involved in a motor vehicle collision. Motion to Set Aside Default CCP § 473(b) states, in relevant part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . . CCP § 473.5(a) states, in relevant part: When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. CCP § 473.5(b) states: A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. The phrase actual notice means genuine knowledge of the party litigant and does not include constructive or imputed notice to the client. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077. After six months from entry of default, a trial court may still vacate a default on equitable grounds even if statutory relief is unavailable. . . . One ground for equitable relief is extrinsic mistakea term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended[.] When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. [W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted. . . . To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once ... discovered. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 98182 (internal citations and quotations omitted; emphasis in original). Defendant moves for an order setting aside the default entered against Defendant on February 28, 2024 on the grounds that the default was entered because of mistake, inadvertence, surprise, or excusable neglect. CCP § 473(b). Defendant contends that the default was entered due to Defendants mistake, inadvertence, surprise, or excusable neglect. (Decl., Ruby Bravo, ¶¶ 3-5.) Plaintiff failed to file any written opposition to this motion and, thus, failed to controvert Defendants declaration. On this basis, Defendants motion to set aside the default is granted. Defendant is ordered to file and serve his proposed Answer within 3 days of this date. Defendant is ordered to give notice of this ruling.
Ruling
STARGARDT vs O'NEILL
Oct 12, 2024 |CVPS2305945
Motion to Compel Defendants Responses toCVPS2305945 STARGARDT vs O'NEILLPlaintiff Form Interrogatories General Set One (1)Tentative Ruling: Granted in part, denied in part.Court to provide notice.Plaintiff Scott Stargardt (“Stargardt”) alleges Defendant Helen O’Neill (“O’Neill”) owns a mobile homelocated at 74711 Dillon Road, Space 416 in Desert Hot Springs, which Stargardt rented. Stargardtalleges there were various problems at the property which O’Neill did not resolve and instead turnedoff utilities.On December 7, 2023, Stargardt filed his complaint. On May 22, 2024, Stargardt filed his operativeFirst Amended Complaint alleging ten (10) causes of action: 1) Unfair & Unlawful Business Practices(Violation of Bus. & Prof. Code, § 17200); 2) Wrongful interruption of a utility service (Civ. Code, §789.3); 3) Breach of Covenant of Quiet Enjoyment (Civ. Code, § 1297); 4) Breach of Warranty ofHabitability Pertaining to Interior Maintenance (Civ. Code, § 1941.1); 5) Breach of Warranty ofHabitability pertaining to Exterior Maintenance (Civ. Code, § 1941.1); 6) Negligence; 7) IntentionalInfliction of Emotional Distress; 8) Nuisance; 9) fraud, deceit, misrepresentation; and 10) unjustenrichment.On February 7, 2024, O’Neill filed a cross-complaint. On April 25, 2024, O’Neill filed her operativeFirst Amended Cross-Complaint (“FAXC”) alleging three (3) causes of action: 1) fraud, deceit andmisrepresentation; 2) breach of contract; and 3) elder abuse.Stargardt moves to compel responses to form interrogatories and requests for production, served onMay 3, 2024, to which O’Neill has failed to provide responses.In untimely oppositions, O’Neill states that she did in fact provide responses, and requests acontinuance as she believed that she had counsel to represent her as she did not get notice of themotions.Motion to CompelO’Neill has waived any issues regarding notice by opposing the motion on the merits. (Carlton v.Quint (2000) 77 Cal.App.4th 690, 697.)CCP § 2030.290(b) allows the propounding party to file a motion to compel responses tointerrogatories if a response has not been received. If responses are untimely, responding partywaives objections. (CCP § 2030.290(a).) Failure to respond to requests for admissions permits thepropounding party to move for an order deeming the admissions admitted. (CCP § 2033.280.) Thecourt shall grant the motion “unless it finds that the party to whom the requests for admission havebeen directed has served, before the hearing on the motion, a proposed response…in substantialcompliance with section 2033.220.” (CCP § 2033.280(c).)Here, O’Neill provides proof that she served responses on June 6, 2024—before Stargardt filed themotions. O’Neill indicates in her meet and confer letter that she served responses on 6/7/24.(Motions, Ex. 2.) Stargardt in response then states that no responses have been provided, butfocuses more on requests for production.The parties are ordered to communicate in good faith, as this could have been resolved by Stargardtstating he did not receive a copy and to re-send the responses. The responses are attached toO’Neill’s opposition, however, there is no proof of service attached to the opposition. If O’Neill servedthe opposition on Stargardt, the motions are moot. If O’Neill did not serve the opposition, the court willorder O’Neill to serve a copy of the opposition and responses to Stargardt within 3 days of this order,which will then render the motions moot.
Ruling
BABAJONI BEHROZ VS BRIAN BAHANI, ET AL.
Oct 09, 2024 |21STCV47459
Case Number: 21STCV47459 Hearing Date: October 9, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPARTMENT 32 HEARING DATE October 9, 2024 CASE NUMBER 21STCV47459 MOTION Motion to Continue Trial and All Related Dates and Deadlines MOVING PARTIES Cross-Defendant J & J Tree Service, Inc. OPPOSING PARTY Unopposed MOTION Cross-Defendant J & J Tree Service, Inc. (Cross-Defendant) moves to continue trial and all related dates. No opposition has been filed. BACKGROUND The complaint was filed on December 29, 2021 alleging that Plaintiff was injured after a tree branch fell on him. Trial was initially set for June 28, 2023. Defendants Richard J. Robin and Nurit G. Robin (Defendants) filed their answer and cross-complaint against Roes 1 to 100 on March 25, 2022. On June 6, 2023, pursuant to stipulation, the Court continued trial and related dates to January 30, 2024. On June 16, 2023, Defendants filed an amendment to the cross-complaint, substituting Cross-Defendant as Roe 1. Cross-Defendant filed its answer on August 7, 2023. On November 6, 2023, pursuant to stipulation, the Court continued trial and related dates to July 15, 2024. On May 13, 2024, pursuant to stipulation, the Court continued trial and related dates to November 18, 2024 to accommodate the parties completion of discovery and mediation. (Order, 5/13/24.) The Order also stated, No Further Continuance Absent Sufficient Good Cause. (Ibid.) ANALYSIS Legal Standard Continuances are granted only on an affirmative showing of good cause requiring a continuance. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) A trial court has broad discretion in considering a request for a trial continuance. (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.) California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial. To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).) A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (Cal. Rules of Court, rule 3.1332(b).) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new partys involvement in the case; (6) A partys excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).) In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The courts calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) Discussion Cross-Defendant requests the Court continue trial and related dates to June 16, 2025, or alternatively, vacate the current trial date and set a trial setting conference in 60 days. Cross-Defendant argues it requires additional time to conduct discovery. Cross-Defendant served initial discovery on Plaintiff on March 25, 2024. (Inniss Decl. ¶ 7.) Plaintiff was deposed in June 2024. Cross-Defendant states it propounded its first set of discovery against Defendants/Cross-Complainants on June 14, 2024; it received responses on August 15, 2024. (Inniss Decl. ¶ 12.) Cross-Defendant points to the looming discovery cut-off and asserts the parties have scheduled a mediation on October 17, 2024. Cross-Defendant argues that a short continuance will allow J&J the opportunity to conduct further discovery it is entitled to in this matter, including but not limited to compelling responses from Cross-Complainants if need be, and to evaluate the merits of the case and prepare its defense accordingly. By way of example, at the time this motion was filed, no expert witness depositions have been taken, let alone noticed. (Motion at p. 2.) Cross-Defendant does not set forth with specificity sufficient good cause to justify the length of continuance requested. Trial is currently scheduled for November 18, 2024. Cross-Defendant does not explain why the expert witness depositions cannot be taken promptly. Moreover, no outstanding fact discovery is set forth in the motion. Finally, no dispositive motion has yet been filed. While the Court would consider a short two-week continuance to allow for expert depositions to be taken after the mediation, there is no good cause set forth for a continuance to June 2025. Accordingly, the Court denies the motion to continue trial and all related dates. CONCLUSION AND ORDER The Court DENIES Cross-Defendants motion to continue trial and all related dates. Moving party shall give notice of this order, and file a proof of service of such.
Ruling
CARVER, STEPHANIE vs SUTTER VALLEY HOSPITALS
Oct 09, 2024 |CV-23-000046
CV-23-000046 – CARVER, STEPHANIE vs SUTTER VALLEY HOSPITALS – Defendant Ilan Kaye. M.D.’s Motion for Summary Judgment – GRANTED, unopposed.The Court finds that Defendant’s moving evidence – including the expert declaration of William Whetstone, M.D.– establishes Defendant Ilan Kanye M.D. provided care to the decedent Kevin Carver which met the applicable standard of care expected of an Emergency Medicine Physician such as Defendant.The Court further finds said evidence conclusively disproves each element necessary to support Plaintiffs’ recovery for wrongful death and survival premised upon professional negligence - breach of duty, causation, and resultant damages, and also conclusively disproves the elements of causation and resultant damages that are necessary to support Plaintiffs’ recovery for either wrongful death or survival premised upon professional negligence.The Court further finds that Defendant has established the absence of a triable issue of material fact regarding a crucial element of Plaintiffs’ medical malpractice claim against Defendant. Notably there is no factual dispute with regard to the issue of a breach of the applicable standard of care. Therefore, Defendant Ilan Kaye, M.D is entitled to entry of summary judgment in his favor herein. (Code of Civil Procedure §473 (c)).Accordingly, the Court hereby GRANTS judgment in favor of Defendant Ilan Kaye, M.D. against Plaintiffs in the instant matter.
Ruling
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Oct 08, 2024 |6/18/2022 |23SMCV05915
Case Number: 23SMCV05915 Hearing Date: October 8, 2024 Dept: I The motion to strike is MOOT by virtue of the second amended complaint, filed September 19, 2024. There will be no hearing today
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