2024.07.22 Pl. Opp. to D's MIL with Exhibits July 22, 2024 (2024)

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IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIAIFLYAJET, INC., ) ) Plaintiff, ) ) )v. ) Case No. ) 22-A-10788-10 )OPTICAL AIR DATA SYSTEMS, LLC., )and WHBB, LLC. ) ) Defendant. ) PLAINTIFF IFLYAJET, INC.’S OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE COMES NOW, Plaintiff, IFLYAJET, Inc. (“IFJ” or “Plaintiff”) and opposesDefendants’ Motions in Limine as follows:I. Defendants’ MIL No. 1 to Exclude Evidence or Testimony from Counsel The Court should deny Defendants’ Motion in Limine Number 1 for thereasons set forth in IFJ’s Opposition to Defendants’ Motion to Quash Subpoena ofMr. Faraci, which is fully incorporated herein by reference.II. Defendants’ MIL No. 2 to Exclude Evidence of Settlement Discussions Defendants claim that IFJ’s Trial Exhibits 90, 91, 92, 99, 110, 111, 126, 127,134, 137 and 148 are inadmissible settlement communications and should beexcluded. The Court should deny the Motion. Notably, IFJ’s Trial Exhibits 99, 110,111, 134 and 137 are not settlement communications. Regardless, even if they weresettlement communications, all of the Trial Exhibits that Defendants seek to excludeare admissible under O.C.G.A. § 24-4-408(c). O.C.G.A. § 24-4-408 governs the admissibility of settlement communicationsand states as follows: a. Except as provided in Code Section 9-11-68, evidence of: 1. Furnishing, offering, or promising to furnish; or 2. Accepting, offering, or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount shall not be admissible to prove liability for or invalidity of any claim or its amount. b. Evidence of conduct or statements made in compromise negotiations or mediation shall not be admissible. c. This Code section shall not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation. This Code section shall not require exclusion of evidence offered for another purpose, including, but not limited to, proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution.“Rule 408 does not operate as a blanket prohibition of all evidence relating tosettlement offers . . . .” SEC v. Melvin, 2014 U.S. Dist. LEXIS 200251 at *7 (N.D.Ga. Nov. 21, 2014).1 The contents and facts of settlement communications are1 O.C.G.A. § 24-4-408 is substantially similar to Federal Rule of Evidence 408. Georgia courts,therefore, may look to the decisions of the federal courts in applying the Rule. Hayes v. State,298 Ga. 98, 102-103 (2015). 2admissible for certain purposes. Thus, “admissibility under Rule 408 turns on thepurpose for which the settlement evidence is being introduced.” Id. IFJ does notintend to offer Trial Exhibits 90, 91, 92, 99, 110, 111, 126, 127, 134, 137 and 148 toprove liability. Instead, IFJ intends to offer them for other permissible purposes,including to prove facts that are otherwise admissible, for purposes of rebuttal, andto show that Defendants acted in bad faith, were stubbornly litigious, and caused IFJunnecessary expense under O.C.G.A. § 13-6-11. A. Exhibits 99, 110, 111, 134, and 137 are not settlement communications O.C.G.A. § 24-4-408 only concerns the admissibility of settlementcommunications. If the proffered evidence is not evidence of statements made in“compromise negotiations or mediation” then the rule is inapplicable. IFJ’s TrialExhibits 99, 110, 111, 134 and 137 were not offers to compromise a claim. 1. IFJ’s Trial Exhibit 99 IFJ’s November 21, 2022 email communication to OADS was not an offer tocompromise. Rather, Mr. Brown noted that OADS would be working with a brokerto sell its share of N250KC, and Mr. Brown offered his assistance in that endeavor.See Pla. Trial Ex. 99. Mr. Brown also attempted to collect the debt OADS owed byIFJ. Mr. Brown’s communication does not contain any offer to compromise the case.The email is admissible because it is not a settlement communication that is subject 3to O.C.G.A. § 24-4-408. See e.g., Jordan v. Trower, 208 Ga. App. 552 (1993) (letterwas admissible because “there is no evidence of any effort to compromise). Even ifit were, the Trial Exhibit is admissible because Mr. Brown’s offer to assist in sellingDefendants’ share of N250KC and his attempts to collect are facts that are“otherwise discoverable” under O.C.G.A. § 24-4-408(c). 2. IFJ’s Trial Exhibits 134 and 137. Exhibit 134 and IFJ’s communication on page 1 of Exhibit 1372 are not offersto compromise and do not mention O.C.G.A. § 24-4-408. Notably, the emailcommunication shown in Exhibit 134 (and also on page 4 of Exhibit 137) does notmake an offer to resolve the litigation. Rather, IFJ’s counsel merely told OADS thatIFJ had found a buyer willing to purchase the entirety of N250KC for approximately$3.2mm. See Pla. Trial Ex. 134 and 137 attached hereto. IFJ’s counsel does not saythat the purchase was conditioned on resolution of the dispute. To the contrary, IFJinvited Defendants to engage in settlement discussions, demonstrating that IFJ didnot intend the communication to be a settlement offer. See IFJ Trial Ex. 137 at pg.4. In response, Defendants attempted to turn that communication into an offer ofcompromise. See Pla. Trial Ex. 137 at pg. 2, Jan. 3, 2024, message from S. Faraci.2 Exhibit 134 is the initial communication of a longer email chain. Exhibit 137 includes theinitial Exhibit 134 email, as well as others in the chain. 4Specifically, Defendants characterized IFJ’s original email as an “inquiryconcerning my clients’ interest in a potential purchase of WHBB’s interest in theN250KC as a means to resolve the current dispute.” (emphasis added)). Defendants,however, did not send the original communication and cannot change the intent ofIFJ’s counsel’s communication. IFJ’s original email did not make an offer to“resolve the current dispute” as Defendants claim. IFJ’s Trial Exhibit 137 is not an offer of compromise. Nothing in thecommunication from IFJ’s counsel (Ms. Gentry) to OAD’s counsel contains an offerfrom IFJ to compromise a claim or resolve the dispute. IFJ intends to use TrialExhibit 137 to show that IFJ “arranged for a purchase of WHBB’s interest for$800,000.00 which WHBB rejected and your client also turned down an offer to buyanother owner’s interest for $750,000.00” as Ms. Gentry noted in her email. See Pla.Trial Ex. 137. As discussed above, IFJ did not arrange for the purchase of WHBB’sinterest for $800,000.00 as a means to settle this case. See IFJ Trial Ex. 137 at pg. 4.In addition, the fact that Defendants turned down an offer to buy a third-partyowner’s interest for $750,000.00 is a fact that is independent of any settlementnegotiations between IFJ and OADS. Thus, Exhibit 137 is not evidence of an offerto compromise under Rule 408. The Court should, therefore, deny Defendants’Motion as to Exhibits 134 and 137 because they are not evidence of offers tocompromise. 5 3. IFJ’s Trial Exhibits 110 and 111. Similarly, O.C.G.A. § 24-4-408 also does not apply to IFJ’s Trial Exhibits 110and 1113 because they are not settlement communications. While Exhibits 110 and111 contain “Rule 408” in the subject line, the context and substance of thecommunications in the email chain demonstrate that the Trial Exhibits are not offersto compromise. Instead, the Rule 408 communication was a letter sent by IFJ’scounsel on November 26, 2022, which was transmitted via the initial email in thechain. See Pla. Trial Ex. 110. That letter is not a part of IFJ’s Trial Exhibits 110 and111. Counsel engaged in a number of communications unrelated to settlementdiscussions throughout early December using the same email chain withoutchanging the subject line. See Pla. Trial Ex. 110. On December 15, 2022, continuingto use that same email chain, IFJ’s counsel sent the following email:3 Exhibits 110 and 111 are identical. 6Pla. Trial Ex. 110 at pg. 2. IFJ’s December 15, 2022, email does not contain an offerto compromise. Notably, IFJ’s counsel did not suggest that the option for Defendantsto sell their interest was contingent on resolution of any claim in this case. Thestatement that “[w]e would want to settle up on money out of the proceeds” did notrequire Defendants’ to release any claim. IFJ’s counsel did not intend for the email to be a settlement communicationand nothing in the communication suggests that it was. Instead, Defendants claimthat it was a settlement communication based only on the subject line which containsthe words “Rule 408.” The context of the communications, however, shows that thesubject line was a held-over relic from a previous settlement offer. O.C.G.A. § 24-4-408 does not apply to IFJ’s Trial Exhibits 110 and 111. Therefore, the Court shoulddeny Defendants’ motion as to those exhibits because they do not reflect settlementoffers. B. All of the Trial Exhibits Defendants seek to exclude admissible under O.C.G.A. § 24-4-408(c) because IFJ intends to offer them for permissible purposes and not to prove liability. The contents and facts of settlement communications are admissible forcertain purposes, including for purposes of rebuttal, to show that a party is entitledto attorneys’ fees, and if the information is otherwise discoverable. See e.g. Christiev. Rainmaster Irrigation, Inc., 299 Ga. App. 383 (2009) (evidence regardingsettlement negotiations was admissible to show bad faith when offered to support 7claim for attorneys’ fees under O.C.G.A. § 13-6-11); Zurich American Ins. Co. v.Watts Indus., 417 F.3d 682, 689 (7th Cir. 2005) (affirming trial court’s decision toallow statements made during settlement negotiations to prove intent and state ofmind); Freidus v. First Nat’l Bank, 928 F.2d 793 (8th Cir. 1991) (affirmingadmission of evidence of settlement communications from defendant to rebut party’sclaim that defendant “never gave any reason for its conditions on consent to the sale,‘even up to this date’ [of trial.]” because the “jury could well find that the letterswhen read together, constituted plausible explanation” for the bank’s conduct). And,of course, evidence that is otherwise admissible should not be excluded merelybecause it was presented during a settlement negotiation or mediation. O.C.G.A. §24-4-408(c). Exhibits 90, 91, 92, 110 and 111 are admissible under O.C.G.A. § 24-4-408(c)for two independent reasons: (1) the independent appraisal that Defendants sent toIFJ is a fact that is otherwise admissible and (2) IFJ intends to offer the exhibits torebut Defendants claims. First, OADS attached an appraisal from an “independent broker” thatdetermined that OADS’ share of N250KC was worth $1,400,000.00. See Pla. TrialEx. 90, 91. The communication demonstrates that OADS did not obtain the appraisalin connection with settlement but rather in connection with its desire to sell its shareof N250KC. Similarly, in its December 16, 2022, communication (Pla. Trial Ex. 110 8and 111), Defendants’ counsel claimed that the “fair market value” of Defendants’share was $1,400,000.00, which is an obvious reference to the appraisal. The facts that (1) OADS obtained an appraisal from an “independent broker”for its share of N250KC, (2) the appraisal show found that OADS’ share of N250KCwas worth $1,400,000.00 and (3) Defendants’ belief that the $1,400,000.00 appraisalvalue was the “fair market value” of Defendants’ share are all “otherwisediscoverable.” Therefore, the Trial Exhibits are admissible under § 24-4-408(c). Seee.g. Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602(1931) (“an independent acknowledgement of a fact may be received, although madepending a treaty for the amicable adjustment of a controversy”); Young v. McDowellServs., 1991 U.S. Dist. LEXIS 21814 (N.D. GA. April 30, 1991) (form letter sent toplaintiff’s counsel during settlement negotiations was admissible because it wasotherwise discoverable). Second, IFJ’s Trial Exhibits 90-92, 99, 110, 111 134, 1374 and 148 are eachadmissible for purposes of rebuttal. Defendants now, in litigation, claim that theirshare is worthless and valued at $0.00. See e.g., Ex. A, Romaine Depo. at 23:22-34.Defendants claim that Defendants’ share of N250KC is unsalable because of theFAA investigations and IFJ’s use of time share agreements. See e.g., Ex. A, Romaine4 As argued above, Exhibits 99, 110, 111, 134 and 137 were not settlement communications. But,even if they were, they are admissible. 9Depo. at 99:12-19; Ex. B, Romaine Report at 8 (excerpt only). IFJ’s Trial Exhibits 90-92 and 110-111 are admissible to rebut Defendants’contention that the value of Defendants’ share N250KC is $0.00. Defendants cannothide evidence that a third party found that their share was worth $1,400,000.00 inNovember 2022, under the guise of that independent fact being a part of allegedsettlement negotiations. See e.g., Fisk Elec. Co. v. Solo Constr. Corp., 417 Fed.Appx. 898, (11th Cir. 2011) (evidence establishing that a mediation took place andresulted in a payment to defendant was admissible for “other purposes” becausedefendants’ affirmative defense of a “pay when paid” clause in a contract invitedevidence rebutting that defense); Coyote Portable Storage, LLC v. Pods Enters.,2012 U.S. Dist. LEXIS 197867 (N.D. Ga. March 29, 2012) (“PODS has asserted asan affirmative defense, that the definition of Net Sales in the contract is ambiguous,was the result of a scrivener’s error, and necessitates reformation of the contract.PODS’ prior position regarding the language of the contract, which is not beingoffered to prove liability, is thus relevant and admissible as rebuttal evidence onPlaintiff’s breach of contract claims.”); Zurich, 417 F.3d at 689 (Evidence fromsettlement negotiations is admissible “for additional purposes than establishingliability, including for purposes of rebuttal . . . .”); Freidus, 928 F.2d at 795(affirming admission of settlement communications for purposes of rebuttal). IFJ Trial Exhibits 110, 111, 134, and 137 are also admissible. Each of those 10Trial Exhibits demonstrates that there were buyers willing to purchase Defendants’share of N250KC, which directly rebuts Defendants’ claim that their share ofN250KC was “worthless” and unsalable. IFJ Trial Exhibits 90-92, 99, 110, 111, 134 and 137 are all admissible for anadditional reason. IFJ has claimed that Defendants are liable to IFJ for attorneys’fees and costs under O.C.G.A. § 13-6-11. Specifically, IFJ has alleged thatDefendants acted in bad faith, were stubbornly litigious, and caused IFJ unnecessarytrouble or expense. Pursuant to O.C.G.A. § 13-6-11, IFJ may admit evidence that it madesettlement offers and that Defendants refused to comply to show that Defendantsacted in bad faith, or were stubbornly litigious, or put IFJ to unnecessary trouble orexpense. See e.g., Christie v. Rainmaster Irrigation, Inc., 299 Ga. App. 383 (2009)(evidence regarding settlement negotiations was admissible to show bad faith whenoffered to support claim for attorneys’ fees under O.C.G.A. § 13-6-11); U-Haul Co.v. Ford, 171 Ga. App. 744 (1984). Therefore, the Trial Exhibits are also admissiblefor that purpose. Finally, IFJ does not intend to use Trial Exhibit 126, 127, and 148 to proveliability. Instead, IFJ intends to use Trial Exhibits 126 and 127 for the narrowpurpose of showing that on June 30, 2023 IFJ placed Stephen Faraci and Defendantson notice regarding Mr. Faraci’s role as a witness and the necessity of his 11disqualification trial counsel. IFJ intends to use Trial Exhibit 148 for the narrowpurpose of showing that Defendants’ have stated that Virginia witnesses, includingPhil Rogers, Alisa Rogers, Beth Daiken, and Tom Daiken, are unavailable for trialbecause any service of subpoenas to them is improper. IFJ is willing to redact theextraneous material in Exhibits 126, 127, and 148.III. Defendants’ MIL No. 3 to Exclude Proffer of the Pleadings into Evidence. The Court should deny Defendants’ efforts to preclude IFJ from admittingDefendants’ own pleadings into evidence. IFJ’s Trial Exhibits 114, 133, 135, 138,139, 147, 175, and 176 are all pleadings filed by Defendants.5 See Ex. C, Plaintiff’sAmended Exhibit 1 to Consolidated Pretrial Order. An admission of fact in apleading is a judicial admission. See e.g., Vaughn v. Metro Prop & Cas. Ins. Co.,260 Ga. App. 573, 574 (2003). Therefore, any statements of fact made inDefendants’ pleadings are admissible. Defendants’ reliance on Behar v. Aero Med Int’l Inc, 185 Ga. App. 845, 846(1998) is misplaced. The statement in Behar that “allegations contained in pleadings5 Exhibit 114 is Defendants’ Answer, Affirmative Defenses and Counterclaim filed January 23,2023. Exhibit 133 is Defendants’ Answer to Plaintiff’s Second Amended Complaint filedDecember 19, 2023. Exhibit 135 is Defendants’ Answer to Plaintiff’s Second Amended Complaintfiled January 4, 2024. Exhibit 138 is Alisa Rogers’ January 22, 2024 Affidavit. Exhibit 139 is PhilRogers January 22, 2024 Affidavit and Exhibit 147 is Defendants’ Amended Counterclaim deemedfiled on June 21, 2024. Exhibits 174 and 175 are pleadings from the Virginia action that PhilRogers brought against IFLYAJET and Robert Brown that was dismissed for lack of standingbecause the claims belonged to OADS and were substantially similar to the ones brought in thiscase. 12do not constitute evidence nor are they to be accepted as true except to the extentthey are admitted by the opposite party to be true” concerned allegations in pleadingssubmitted by the same party offering them into evidence. Id. Thus, the Court foundthat a plaintiff could not rely on allegations in his complaint to prove that thedefendant was subject to personal jurisdiction. Id. But, IFJ only listed Defendants’pleadings on its Exhibit List, not IFJ’s pleadings. Defendants’ allegations of fact areconclusive, binding judicial admissions. Defendants’ pleadings are admissible for another reason. IFJ has claimed thatit is entitled to attorneys’ fees under O.C.G.A. § 13-6-11. The allegations andstatements of fact that Defendants made in their Answers, Counterclaims, and theRogers’ Affidavits are relevant to whether Defendants’ have acted in bad faith, beenstubbornly litigious, and caused IFJ unnecessary expense. The limiting instructionthat Defendants’ request is inappropriate in the context of O.C.G.A. § 13-6-11.Defendants’ allegations are evidence of the claims that they made in this case. Thus, the Court should deny Defendants’ Motion in Limine Number 3because (1) the statements of fact in Defendants’ pleadings are judicial admissionsas to Defendants and (2) the allegations made in their pleadings are relevant evidenceunder O.C.G.A. § 13-6-11. In the alternative, the Court should deny the Motionbecause the Court is well equipped to handle any objections to IFJ’s introduction ofDefendants’ pleadings, should IFJ seek to admit the pleadings at trial. The rationale 13behind a motion in limine is based upon the recognition that the mere asking of somehighly improper questions within the hearing of the jury can prove so prejudicial orinflammatory that even a cautionary instruction by the court to disregard theoffensive matter provides insufficient guarantee of a fair trial. By requesting alimiting instruction, Defendants implicitly admit that this is not the type of evidencethat should be the subject of a motion in limine. Moreover, by handling anyobjections to the introduction of Defendants’ pleadings at trial, the Court will be ableto assess the admissibility of the pleadings with the full context of the specific issuesfor which IFJ seeks to introduce the pleadings. IV. Defendants’ MIL No. 4 to Exclude Reference to the “October 2022 Agreements” as Valid or Operative in this Matter. The Court should deny Defendants’ Motion. IFJ asserted that the October2022 Agreements control in its Original Complaint through its Fourth AmendedComplaint and in the Pretrial Order. Defendants inaccurately claim the Court refused to allow Defendants to addtheir proposed Declaratory Judgment claim6 seeking to invalidate the October 2022Agreements because “IFLYAJET (via counsel) represented to the Court thatIFLYAJET would not contend that the October 2022 Agreements are valid oroperative in this case” Def. Mot. at pg. 4-5. IFJ did not represent that it would not6 Count VI of Defendants’ Proposed Amended Counterclaim. 14argue at trial that the October 2022 Agreements were valid; and, the Court did notdeny Defendants’ Motion to Add Parties and Amend Counterclaims on that basis. Defendants omit a crucial fact from their Motion in Limine. In their Motionto Add Parties and Amend Counterclaims, Defendants sought to add RFBC as a newparty to this action and proposed to assert their new Declaratory Judgmentcounterclaim against both IFJ and RFBC. As the Court is aware, the Court found that it was not necessary to involveRFBC in this dispute, especially given the procedural posture of the case. The Court,therefore, denied Defendants’ Motion to Add Parties on that basis. Both Partiesacknowledged in open court that not adding RFBC and the proposed newDeclaratory Judgement counterclaim would not impede Defendants from presentingtheir arguments that the October 2022 Agreements were invalid as part of theirbreach of contract case. Indeed, the allegations of the proposed Declaratory Judgment claim againstIFJ and RFBC are nearly identical to allegations made as part of Defendants’ breachof contract claim. In the proposed Declaratory Judgment Counterclaim (Count VI),Defendants alleged that in or around October 2022 IFJ “purported to transfer certainownership interest in the N250KC [to RFBC] and to enter into a new JointOwnership Agreement” without obtaining unanimous owner consent. See Ex. D,Defs. Mot. to Add Parties and Amend Counterclaims at its Exhibit A, Count VI, ¶¶ 15106-108. Defendants further claimed that IFJ “fraudulently affixed Phil Rogers”signature to the agreements. Id. Defendants made substantially the same allegations as part of their breach ofcontract claim. Specifically, Defendants’ Amended Counterclaim includes a sectiontitled “Material Breaches of the Parties’ Agreements and IFLYAJET’s Breaches ofFiduciary Duties.” See Ex., D Amended Counterclaim at pg. 17. Within that section,Defendants alleged that “IFLYAJET has committed, at least, the following firstmaterial breaches of the parties’ agreements, among others . . . d. Forging OADS’s signature on ownership documents and FAA documents (Ex. D, First Ownership Agreement § 6(h); Ex. A, Ownership Agreement § 1(b)); e. Failing to obtain unanimous member consent before purporting to transfer ownership interest in the N250KC.See Ex. D, Amended Counterclaim at ¶ 69(d), (e). IFJ’s contention that the October2022 Agreements are valid, and binding will not impede Defendants fromcontending that they are invalid because IFJ allegedly forged Phil Roger’s signatureand did not obtain unanimous owner consent. Thus, the Court should deny Defendants’ Motion and allow IFJ to presentevidence and argument regarding the validity of the October 2022 Agreements. TheCourt should also deny Defendants’ request that it be allowed to proceed on itsproposed Declaratory Judgment claim if IFJ is allowed to argue that the October 162022 Agreements are valid. RFBC must be a party to any such Declaratory Judgmentclaim because it is a signatory to the October 2022 Agreements. Thus, if the Courtwere to find that those Agreements are invalid, RFBC’s rights will be adverselyaffected. Conversely, the addition of RFBC and Defendants’ Declaratory Judgmentclaim is not necessary for Defendants to argue that the October 2022 Agreementsare invalid. Defendants may make that (baseless) argument to the jury if they sochoose. CONCLUSION The Court should deny each of Defendants’ Motions in Limine. Mr. Faraci isa necessary witness. Defendants injected the issue of IFJ’s compliance with FAAregulations and its alleged illegal charter into this litigation. Defendants waived theattorney-client privilege when they asserted that they relied on advice of counselwhen concluding that IFJ operated an illegal charter. Mr. Faraci is the only witnesswho can provide answers to IFJ’s questions. Thus, Mr. Faraci should be disqualifiedunder Georgia Rule of Professional Conduct 3.7. IFJ’s Trial Exhibits 99, 110, 111, 134 and 137 are not offers to compromise asDefendants claim. O.C.G.A. § 24-4-408, therefore, does not preclude thosecommunications from being admitted into evidence. In addition, IFJ’s Trial Exhibits90, 91, 92, 99, 110, 111, 126, 127, 134, 137, and 148 are each admissible underO.C.G.A. 24-4-408(c) as evidence that is otherwise admissible, to rebut Defendants’ 17claims that N250KC is worthless and unsalable and to show that Defendants actedin bad faith, were stubbornly litigious, and caused IFJ unnecessary trouble andexpense. Factual statements in Defendants’ own pleadings are admissible. They arejudicial admissions that are binding on Defendants. In addition, the allegations in thepleadings are admissible under O.C.G.A. § 13-6-11 to show that Defendants actedin bad faith, were stubbornly litigious, and caused IFJ unnecessary trouble andexpense. Therefore, Defendants’ limiting instruction is improper. Defendants misrepresent what occurred at the June 18, 2024 hearing to claimthat IFJ should not be allowed to argue that the October 2022 Agreements are valid.At the hearing, the Parties agreed that Defendants could argue that the October 2022Agreements are invalid as part of their breach of contract case. The Court should notallow them to recapture their proposed Declaratory Judgment claim (Count VI)because, as the Court determined at the June 18 hearing, RFBC should not be addedto this action. Respectfully submitted this 22nd day of July, 2024. COHAN & LEVY /s/ Louis R. Cohan LOUIS R. COHAN Georgia Bar No. 173357 18 Robin L. Gentry Georgia Bar No. 289899 Attorneys for Plaintiff 3340 Peachtree Rd. NE, Ste. 2570 Atlanta, Georgia 30326 (404) 891-1770 (telephone) (404) 891-5094 (facsimile) lcohan@cohanlevy.com19 PLAINTIFF’S TRIAL EXHIBITS90, 91, 92, 99, 110, 111, 126, 127, 134, 137, and 148 Thursday, February 29, 2024 at 16:10:06 Eastern Standard TimeSubject: N250KCDate: Thursday, November 10, 2022 at 1:01:48 PM Eastern Standard TimeFrom: Karyn KraftTo: Bob BrownCC: Alisa Rogers, Phil Rogers, Eliza BrownAttachments: Becky Brock.vcf, image.pngBob,An independent broker has provided the a3ached comparable valua8on of N250KC. If you wish to buyout Op8cal Air Data Systems quarter share and for a full and complete se3lement of all claims, pleasedeposit $1.4M into escrow at Interna8onal AircraL Title and Escrow, contact informa8on is a3ached,within the next 5 days. We are planning on engaging a private broker to sell our share on November17th in the event that you decline this oﬀer.Best Regards,KarynKaryn KraftChief Financial OfficerOptical Air Data Systems, LLCPrecision Flight Technologies, LLC10781 James Payne CourtManassas, VA 20110703-393-0754 phonekkraft@oads.comwww.oads.com 90 IFLYAJET0004793 1 of 1Becky Brock.vcf attachment produced in native. IFLYAJET0004794IFLYAJET0004795 Monday, November 21, 2022 at 17:53:16 Eastern Standard TimeNicoleNicole Graham | Vice President - SalesJSSI Maintenance SoftwareMobile +1 904.945.0980website | facebook | linkedin | twiFer | instagramThis message and any attachments may contain confidential, proprietary and/or privileged material. If this message was misdirected, JetSupport Services, Inc., and its affiliates do not waive any confidentiality or privilege. If you are not the intended recipient, please notify thesender immediately and destroy the message. Unauthorized review, use, disclosure, or distribution of this e-mail or the information itcontains is prohibited.Subject: N250KCDate: Thursday, November 10, 2022 at 1:01:48 PM Eastern Standard TimeFrom: Karyn KraATo: Bob BrownCC: Alisa Rogers, Phil Rogers, Eliza BrownAFachments: image.png, Becky Brock.vcfBob,An independent broker has provided the a2ached comparable valua6on of N250KC. If you wish to buy outOp6cal Air Data Systems quarter share and for a full and complete se2lement of all claims, please deposit$1.4M into escrow at Interna6onal Aircra[ Title and Escrow, contact informa6on is a2ached, within the next5 days. We are planning on engaging a private broker to sell our share on November 17th in the event thatyou decline this oﬀer.Best Regards,KarynKaryn KraftChief Financial OfficerOptical Air Data Systems, LLCPrecision Flight Technologies, LLC 9110781 James Payne CourtManassas, VA 20110703-393-0754 phonekkraft@oads.com Page IFLYAJET0001560 13 of 132From: Bob BrownTo: Karyn KraftCc: Alisa Rogers; Phil Rogers; Eliza BrownSubject: Re: N250KCDate: Friday, November 11, 2022 1:48:43 PMAttachments: image.png Becky Brock.vcfThanks for this information. I will take evaluate and get back to you shortly.Bob Brown, PresidentIFLYAJET, Inc.510 Briscoe BlvdLawrenceville, GA 30046(678) 691-5204 Office(770) 547-1327 Cell(678) 367-4570 Faxinfo@iflyajet.comwww.iflyajet.com On Nov 10, 2022, at 10:02 AM, Karyn Kraft wrote: Bob, An independent broker has provided the attached comparable valuation of N250KC. If you wish to buy out Optical Air Data Systems quarter share and for a full and complete settlement of all claims, please deposit $1.4M into escrow at International Aircraft Title and Escrow, contact information is attached, within the next 5 days. We are planning on engaging a private broker to sell our share on November 17th in the event that you decline this offer. Best Regards, Karyn Karyn Kraft Chief Financial Officer Optical Air Data Systems, LLC Precision Flight Technologies, LLC 10781 James Payne Court Manassas, VA 20110 703-393-0754 phone kkraft@oads.com www.oads.com 92 99OADS_0459OADS_0460 Thursday, July 11, 2024 at 15:53:25 Eastern Daylight TimeSubject: RE: ***URGENT***. IFLYAJET/Optical Air Data Systems, LLC (OADS) – Rule 408 settlement communicationDate: Friday, December 16, 2022 at 10:21:36 AM Eastern Standard TimeFrom: Faraci Sr., StephenTo: Louis CohanCC: Robin Gentry, Shannon Clutter, Gregory CirilloAttachments: image001.png, image002.jpg, image003.png 110Louis:Thanks for your e-mail. My client and I have had the opportunity to review your client’s offerand discuss same. After due consideration, your offer for my client to sell its 24.75% interest inthe Gulfstream G-IV, FAA Registration N250KC (the “Aircraft”) for $800,000 is rejected. Aspreviously noted, my client is willing to accept the fair market value of $1,400,000 for its interestin the Aircraft.With regard to your statement that “if OADS does not sell its interest, Bob will sell his smallerinterest for the same equivalent value,” please note that any purported transfer of an interest inthe Aircraft without prior written consent of all other Owners is not a valid transfer. SeeOwnership Agreement § 7(a), (d). OADS cannot, and will not, consent to the transfer of anyinterest in the Aircraft until it has concluded its review of relevant corporate records anddocuments, the production of which has been requested and which I understand is forthcoming.As noted in prior letters, Mr. Brown is not authorized, by DocuSign or any other means, to signon behalf of OADS or any member or manager of OADS, including, but not limited to, PhilRogers. Any purported attempt to do so would be unauthorized and void. See OwnershipAgreement § 7(d).On Tuesday, December 13, 2022, you noted that you expected to produce the documentsresponsive to my recent letter by Wednesday of this week. Please advise whether you still intendto make that production.Many of your communications have asserted that OADS owes IFLYAJET in connection withtwo aircrafts (i.e., the Gulfstream and the Falcon). Prior correspondence has detailed the seriousand substantial damages OADS has suffered as a direct result of IFLYAJET’s breaches of theManagement Agreement, which damages offset the amounts IFLYAJET contends it is owed.With respect to the Falcon, it should be noted that OADS paid significant maintenance fees toMr. Brown’s maintenance shop (which he owns) for unnecessary repairs. Indeed, in someinstances, Mr. Brown was purporting to do monthly maintenance for matters that are onlynecessary on an annual basis. Thus, there is a good deal to get to the bottom of with respect toboth aircrafts.Nothing contained in or omitted from this letter shall be deemed a waiver of any claims, rights,or available remedies, each of which are expressly reserved with respect to the OwnershipAgreement, the Management Agreement, applicable law or regulations, and the relationshipbetween IFLYAJET and OADS and WHBB. 1 of 9Best regards,SteveFrom: Louis Cohan Sent: Thursday, December 15, 2022 1:29 PMTo: Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: [EXTERNAL] ***URGENT***. IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408seKlement communicaZonImportance: HighStephen: Bob has a potenZal buyer for your client’s interest in N250KC. I believe the amount is $800k.The buyer oﬀered to buy Bob’s interest and Bob wanted to give your client the opZon to sell if they wantto do it. We would want to seKle up on money out of the proceeds. The buyer needs to get this donebefore the end of the year, so we need your client’s response by noon tomorrow. To be clear, if OADSdoes not sell its interest, Bob will sell his smaller interest for the same equivalent value. Thanks.__________________________LOUIS R. COHANATTORNEY AT LAW■ COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Tuesday, December 13, 2022 at 1:31 PMTo: Louis Cohan Cc: Robin Gentry , Shannon CluKer, Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonWe look forward to the production. Thank you.From: Louis Cohan Sent: Tuesday, December 13, 2022 1:23 PM 2 of 9To: Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonSteve: Pursuant to the Agreement, your client is enZtled to: “All records pertaining to the performance of Manager's services hereunderand all books of account and records relating to the Aircraft [N250KC] and itsoperations…” We expect to produce those documents tomorrow. They are and have been available at theoﬃces of IFLYAJET, subject to availability of IFLYAJET personnel to supervise your inspecZon/audit. Iassume you would prefer we produce them to you. It will be faster, a lot less expensive, and you willhave copies. Meanwhile, it is worth poinZng out that the past due and unpaid billing applies to two planes: N250KC Total $203,419.56 N59CJ Total $118,444.03 My understanding is that the N59CJ was not shared. The money is owed and past due, andyour client has refused to pay. That speaks volumes about their intenZons.__________________________LOUIS R. COHANATTORNEY AT LAW■ COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Tuesday, December 13, 2022 at 12:22 PMTo: Louis Cohan Cc: Robin Gentry , Shannon CluKer, Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZon Some people who received this message don't often get email from sfaraci@wtplaw.com. Learn why this is 3 of 9 important [aka.ms]Louis:Please advise when IFLYAJET will provide access to the documents identified in my letter. Inyour response, please confirm that OADS will have access to all of the document categoriesidentified.Thank you,SteveFrom: Faraci Sr., StephenSent: Friday, December 9, 2022 3:33 PMTo: 'Louis Cohan' Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlement communicaZonLouis:Just following up on our call of yesterday.?With respect to the question in your last message ofyesterday, OADS/WHBB has no interest in the trip that is apparently on IFLYAJET’s calendarand has no interest in restoring access to the calendar.Instead, we look forward to your notice that the records identified in my letter are ready for eitherinspection and/or production.?Thanks,SteveFrom: Louis Cohan Sent: Thursday, December 8, 2022 12:14 PMTo: Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonSteve: Just tried to call you and I leq you a vmail to call me back. Please give me a call. Your client owes more than $300k. Notwithstanding inconsistent allegaZons in your leKer, yourclient has a lengthy reservaZon in place for February 2023. Your client has purported to transfer itsinterest but that transfer is void. Your client complains about the availability of the plane, but this is ashared plane and there is nothing in the agreement that guarantees your client a percentage of use, nordoes it obligate your client to pay for a percentage of use. My oﬃce and cell numbers are below. Thanks. 4 of 9__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Thursday, December 8, 2022 at 8:56 AMTo: Louis Cohan Cc: Robin Gentry , Shannon CluKer, Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZon Some people who received this message don't often get email from sfaraci@wtplaw.com. Learn why this is important [aka.ms] This message's attachments contains at least one web link. This is often used for phishing attempts. Please only interact with this attachment if you know its source and that the content is safe. If in doubt, confirm the legitimacy with the sender by phone.Louis:Please see the attached.Best regards,SteveFrom: Louis Cohan Sent: Tuesday, December 6, 2022 12:04 PMTo: Faraci Sr., Stephen ; Gregory Cirillo Cc: Robin Gentry ; Shannon CluKer Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonSteve and Greg(ory): I just tried to call Steve in response to his leKer. I need to know what your client wants to do?Unpaid fees and expenses (airplane) conZnue to mount. The plane needs expensive parts. The groupmembers are co-dependent, and OADS is causing problems for everyone. IFLYAJET has received arequest for informaZon in connecZon with a change in the OADS insurance for the plane. 5 of 9 It is in everyone’s interest to avoid liZgaZon, but that is the current trajectory. What are your client’s intenZons? Thanks.__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Friday, December 2, 2022 at 5:39 PMTo: Louis Cohan , Gregory Cirillo Cc: Robin Gentry , Shannon CluKerSubject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZon Some people who received this message don't often get email from sfaraci@wtplaw.com. Learn why this is important [aka.ms] This message's attachments contains at least one web link. This is often used for phishing attempts. Please only interact with this attachment if you know its source and that the content is safe. If in doubt, confirm the legitimacy with the sender by phone.Louis:Please see the attached.--SteveFrom: Louis Cohan Sent: Thursday, December 1, 2022 11:03 AMTo: Faraci Sr., Stephen ; Gregory Cirillo Cc: Robin Gentry ; Shannon CluKer Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonThank you. 6 of 9__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Thursday, December 1, 2022 at 11:00 AMTo: Louis Cohan , Gregory Cirillo Cc: Robin Gentry , Shannon CluKerSubject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonLouis:Thanks for your e-mail. Between holiday travels and prior out of town work commitments, Ihave not been able to get a substantive response to you, though I expect to do so soon.Also, I have replaced the e-mail address for Greg Cirillo that you used with his correct e-mailaddress.Regards,SteveStephen M. Faraci, Sr. | Partner1021 E. Cary Street | Suite 1700 | Richmond, VA | 23219t: 804.977.3307 | f: 804.977.3298 | m: 804.873.0116sfaraci@wtplaw.com | www.wtplaw.com | bio | vcardFrom: Louis Cohan Sent: Thursday, December 1, 2022 10:33 AMTo: gcirillo@dilworthlaw.com; Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlement 7 of 9communicaZonImportance: HighGentlemen: Good morning. I have heard from neither of you. One of the outstanding issues is life raqs. As an accommodaZon, IFLYAJET was able to ﬁt theFalcon 50 with life raqs borrowed from another plane IFLYAJET managed in order to facilitate the August14 to September 3 HI trip. There are two parts to this issue:First – OADS needs to return the life raqs.Second – At the request of and with approval from OADS, IFLYAJET ordered life raqs for the Falcon.IFLYAJET may, yet, be able to cancel the order. In the absence of a response by noon tomorrow, return ofthe borrowed raqs, and payment arrangements for the ordered raqs, IFLYAJET will seek to cancel theorder for the raqs. If cancellaZon is not possible, OADS will be liable for the cost of the raqs.__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: Louis Cohan Date: Saturday, November 26, 2022 at 10:00 AMTo: "gcirillo@dilworthlaw.com" , "sfaraci@wtplaw.com"Cc: Robin Gentry , Shannon CluKerSubject: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlement communicaZonGentlemen: See aKached. I hope to hear from one or both of you not later than Monday.__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.com 8 of 9www.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMThis transmission contains information from the law firm of Whiteford, Taylor & Preston LLP which may be confidential and/or privileged. Theinformation is intended to be for the exclusive use of the planned recipient. If you are not the intended recipient, be advised that anydisclosure, copying, distribution or other use of this information is strictly prohibited. If you have received this transmission in error, pleasenotify the sender immediately. 9 of 9 Monday, June 24, 2024 at 09:11:50 Eastern Daylight TimeSubject: RE: ***URGENT***. IFLYAJET/Optical Air Data Systems, LLC (OADS) – Rule 408 settlement communicationDate: Friday, December 16, 2022 at 10:21:36 AM Eastern Standard TimeFrom:

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1200 MANAGEMENT LLC VS JACKIE BUNAO, AN INDIVIDUAL, ET AL.

Aug 09, 2024 |23STCV19826

Case Number: 23STCV19826 Hearing Date: August 9, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING 1200 MANAGEMENT LLC, vs. JACKIE BUNAO, et al. Case No.: 23STCV19826 Hearing Date: August 9, 2024 Defendant Jackie Bunaos motion to set aside the entry of default on October 5, 2023, and default judgment entered on April 26, 2024, is granted. Plaintiffs request for sanctions against Defendant Jackie Bunaos counsel, Onica Valle, is granted in the amount of $1,000, payable to Plaintiff within 20 days. Defendant Jackie Bunao (Jackie) (Defendant) moves for this Court to set aside the default judgment entered by the clerk on October 5, 2023, on the grounds that Defendant was served the Summons and Complaint, but her counsel failed to respond on her behalf due to mistake, inadvertence, or excusable neglect. (Notice of Motion, pgs. 1-2; C.C.P. §§473, 128(a)(8), 1005; CRC, Rule 3.1300(b).) Background On August 18, 2023, Plaintiff 1200 Management LLC (1200 Management) (Plaintiff) filed its operative Complaint against Non-moving Defendant Alan Bunao (Alan) and Jackie (collectively, Defendants) alleging a single cause of action for recovery of COVID-19 rental debt as defined under C.C.P. §1179.02. (See Complaint.) On October 5, 2023, Entry of Default was entered against Jackie. On April 26, 2024, Default Judgment was entered against Defendants in the amount of $62,346.98. On April 26, 2024, Jackie filed the instant motion. Defendant filed its opposition on July 25, 2024. As of the date of this hearing no reply has been filed. Motion to Vacate/Set Aside Dismissal The law favors judgments on the merits. Thus, on a motion for relief from default, doubts must be resolved in favor of relief, with an order denying relief scrutinized [on appeal] more carefully than an order granting it. (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) The trial court has broad discretion to vacate the judgment and/or the clerks entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the proper time limits. (See Cruz v. fa*gor America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court is empowered to relieve a party or his legal representative upon any terms as may be just . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (C.C.P. §473(b).) C.C.P. §473(b) consists of two distinct parts: a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right. (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25-26; Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 348.) The reference to judgment . . . order or other proceedings allows relief both from default judgments and from the entry of default that preceded it. It also includes any step taken in a case, whether by the court or by one of the parties: Anything done from the commencement to the termination is a proceeding. (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1105.) [W]henever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, [the court shall] vacate any . . . resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment. (C.C.P. §473(b).) The court must set aside the default unless the court finds that the default . . . was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. (Id.) Plaintiffs counsel declares, [d]ue to the high case load I had at the time and some issues with staffing, the filing of Defendants Answer slipped through the cracks. I admit this mistake and take full responsibility. This mistake harmed the Defendant and I request that the Court to accept the Answer pursuant to CCP Section 473. (Decl. of Cole ¶3.) Plaintiffs counsel properly submitted an attorney affidavit of fault, for which relief is mandatory. (C.C.P. §473(b).) Plaintiffs counsel properly submitted an answer on behalf of Jackie,[1] which, complies with the procedures in C.C.P. §473(b). Plaintiff argues in opposition that Defendants counsels conduct does not meet the definition of excusable neglect, citing to Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660, and therefore the mandatory provision of C.C.P. §473(b) does not apply. However, in Graham v. Beers, defense counsel conceded he made a conscious decision not to prosecute the case at issue. (Id.) Here, unlike in Graham, Defendants counsel declares that her failure to file Jackies Answer was due to a mistake exacerbated by staffing issues and a high case load. (Decl. of Cole ¶3.) The Court does not condone Defendants counsels mismanagement of her case load, however, the failure to file the answer is the result of inadvertence rather than excusable neglect, which is subject to mandatory relief under C.C.P. §473(b). Plaintiff argues it will be prejudiced if relief is granted because Plaintiff has scheduled judgment debtor exams and is in the process of collecting on the judgment, but does not submit evidence in support of this contention. (See Decl. of Shy.) Nonetheless, as discussed below, the Court is granting Plaintiffs request for sanctions, which should ameliorate any such prejudice. Therefore, Plaintiff fails to demonstrate it will be prejudiced by the Court granting the instant motion. Accordingly, Jackies motion is granted. Sanctions The court shall, whenever relief is granted based on an attorneys affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. (C.C.P. §473(b).) Plaintiff requests this Court impose a penalty of no greater than $1,000 to Plaintiffs counsel. (Opposition, pg. 9.) The court orders Jackies Counsel, Onica Valle, to pay $1,000.00 in sanctions to Plaintiff within 20 days. Conclusion Jackies motion to set aside the entry of default entered on October 5, 2023, and default judgment entered against Jackie on April 26, 2024, is granted. The Court sets a hearing on an order to show cause why the complaint should not be dismissed and/or Plaintiffs counsel sanctioned $250 for failing to enter default against Jackie Bunao, as well as a Trial Setting Conference, on September 24, 2024 at 8:30 a.m. Jackies Counsel, Onica Valle, is ordered to pay $1,000.00 in sanctions to Plaintiff within 20 days. Moving Party to give notice. Dated: August _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court [1] The Court notes the proposed Answer was filed on behalf of both Defendants, although the instant motion only concerns Jackie, not Alan. Therefore, Jackies Answer, when filed, must be made only on her behalf and not Alans. As of the time of this ruling entry of default against Alan remains.

Ruling

JEANIE BRYANT, AN INDIVIDUAL VS JON ALLEN, AN INDIVIDUAL, ET AL.

Aug 08, 2024 |24STCV09175

Case Number: 24STCV09175 Hearing Date: August 8, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: August 8, 2024 Case Name: Bryant v. Allen, et al. Case No.: 24STCV09175 Motion: Demurrer Moving Party: Defendant Jon Allen Responding Party: Unopposed Tentative Ruling: The Court therefore sustains Defendant Jon Allens Demurrer with leave to amend. I. Background This is an action in which Plaintiff Jeanie Bryant alleges she was defrauded out of money paid to Defendants Jon Allen dba Jon Allen Construction, Michael Zatorski dba Ubuild Construction, David OBrien, and Efrain Olalde, in exchange for promises to build two tiny homes for her by September 13, 2022. On April 11, 2024, Plaintiff filed a Complaint for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) fraudintentional misrepresentation, (4) negligent misrepresentation, (5) deceit Civil Code §§ 1709-10, (6) conspiracy to commit fraud or other tort, (7) conversion, (8) monies had and received, (9) breach of oral contract, (10) promissory estoppel, and (11) Business & Professions Code § 17200. On July 5, 2024, Defendant Allen filed the instant demurrer. The demurrer is unopposed. II. Discussion Legal Standard The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿ A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint. (Ivanoff v. Bank of America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (Id.) The Court does not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint as a whole and its parts in their context. [Citation.] (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Harris, supra, 56 Cal.4th p. 240.) The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿¿¿ ¿ A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)¿¿¿ ¿ 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 complainant to show the Court that a pleading can be amended successfully. (Id.)¿¿ Meet and Confer Per Code of Civil Procedure Section 430.41(a), parties are supposed to meet and confer in person or by telephone before filing a demurrer. (Code Civ. Proc., § 430.41(a).) Defendant Allen attempted to meet and confer with Plaintiff and her former counsel but was unsuccessful. (Mackay Decl. ¶¶1-6, Exs. 1-5.) First and Ninth Causes of Action for Breach of Contract First, Defendant Allen argues the allegations in the complaint as currently pled fails to distinguish whether the contract purportedly breached is oral or written. Establishing that claim requires a showing of (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (DArrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.) Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458459.)¿ The Complaint alleges that on or about March 17, 2022, Plaintiff and Defendants entered into a written agreement for the construction and purchase of two tiny homes. (Compl., ¶¶6-7.) The Complaint further alleges that Plaintiff paid Defendants $120,000.00 in cash to substantially remit the total cost of the construction and purchase in the amount of $191,000.00. (Id. at ¶8.) The Complaint further alleges that Defendant failed to perform under the agreement. (Id. at ¶¶17.) Although the allegations in the first cause of action appear to allege the parties entered into a written contract, the ninth cause of action is labeled breach of oral contract and re-alleges the facts set forth in the first cause of action. (Compl., ¶¶72-73.) Moreover, the ninth cause of action alleges that to the extent any of the oral promise made required a writing, the writing is excused by estoppel and part performance. (Id. at ¶77.) As such, the Complaint fails to indicate on its face whether Plaintiff is pleading breach of oral or written contract. Therefore, the demurrer is sustained with leave to amend as to the first and ninth causes of action. Second Cause of Action for Breach of Covenant of Good Faith and Fair Dealing Next, Defendant Allen argues that the second cause of action fails to state sufficient facts to constitute a cause of action because it is based on the same operative breach of contract allegations. The [implied] covenant of good faith and fair dealing [is] implied by law in every contract. The covenant is read into contracts and functions as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract. (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) As such, [i]f the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) The Complaint alleges that Defendants violated the duty to act fairly and in good faith as described in the paragraphs set forth in the first cause of action and common allegations. (Compl., ¶21.) The Complaint alleges that Defendants violated the duty good faith and fair dealing by making false promises and otherwise inducing Plaintiff to pay $120,000.00. (Id.) As currently pled, these allegations merely re-allege the acts set forth in the breach of contract claims. (Id. at ¶¶9-11.) Duplicative causes of action are subject to being stricken. Therefore, the demurrer is sustained with leave to amend as to the second cause of action. Third, Fourth, and Fifth Causes of Action for Fraud Defendant Allen further argues that third, fourth, and fifth causes of action fail because Plaintiff does not plead them with specificity. The elements of intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245 (emphasis added).) By contrast, [t]he elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 (emphasis added).) Finally, pursuant to Civil Code Section 1709, One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. (Civ. Code, § 1709, see also Civ. Code, § 1710 (defining deceit).) The facts constituting the alleged fraud must be pled with specificity not is a general or conclusory matter. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) However, [l]ess specificity should be required of fraud claims when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,[citation]. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) The Complaint alleges that Defendants presented to Plaintiff that they would construct and deliver the two tiny homes by September 13, 2022 in order to induce her to pay them $120,000.00. (Compl., ¶29.) The Complaint alleges that Defendants knew their representations were false at the time they were made with the intent to defraud Plaintiff of $120,000.00. (Id. at ¶30.) The Complaint further alleges that Defendants had no reasonable grounds to believe these representations were true when they were made to Plaintiff. (Id. at ¶39.) The Complaint also alleges that Defendants represented to Plaintiff that they would willfully discharge their duties under the agreement, which they knew was false. (Id. at ¶¶45-46.) These allegations are insufficient to support the fraud claims are currently pled because they allege facts in a conclusory matter without specifying which Defendants made what statements to Plaintiff, when these statements were made, or even how these alleged misrepresentations were communicated to Plaintiff. Therefore, the demurrer is sustained with leave to amend as to the third, fourth, and fifth causes of action. Sixth Cause of Action for Conspiracy to Commit Fraud Additionally, Defendant Allen argues that the sixth cause of action fails to state sufficient facts to constitute a cause of action because there are no allegations that Defendants conduct was wrongful. To support a conspiracy claim, a plaintiff must allege the following elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct. (AREI II Cases (2013) 216 Cal.App.4th 1004, 1022 (internal citations omitted).) The Complaint alleges that Plaintiff was harmed by Defendants fraud and deceit. (Compl., ¶54.) The Complaint alleges that Defendants are all responsible for the harm because they conspired to commit fraud and deceit and to commit wrongful acts. (Id.) As discussed above, the Complaint fails to plead the fraud and deceit claims with the required specificity. Likewise, a reasonable jury could infer on the face the Complaint what are the actual wrongful acts of the Defendants to which they conspired against Plaintiff. Therefore, the demurrer is sustained with leave to amend as to the sixth cause of action. Eleventh Cause of Action for Business & Professions Code Section 17200 Lastly, Defendant Allen argues that the eleventh cause of action fails to state sufficient facts to constitute a cause of action because it is based on the breach of contract and fraud claims, which Plaintiff fails to sufficiently plead. To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970.) 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.) An unlawful business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351.) The Complaint alleges that the foregoing conduct of Defendants constituted either fraud and/or breach of contract, and other unlawful conduct. (Compl., ¶86.) As explained above, the Complaint fails to (1) distinguish whether the parties entered into a written or oral contract, (2) adequately plead breach of oral contract in the alternative, and (3) plead the fraud claims with specificity. Therefore, the demurrer is sustained with leave to amend as to the eleventh cause of action. III. Conclusion The Court therefore sustains Defendant Jon Allens Demurrer. Plaintiff shall serve and file her amended Complaint on or before August 30, 2024.

Ruling

GBR Funding West Inc. vs. Sharpline Mechanical

Aug 19, 2024 |S-CV-0052607

S-CV-0052607 GBR Funding West Inc. vs. Sharpline MechanicalNo appearance required. CMC is continued to 11/04/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Sharpline Mechanical

Ruling

SAMANTHA CLAYTON, AN INDIVIDUAL, ET AL. VS MALIBU WEST SWIMMING CLUB, A NON-PROFIT CALIFORNIA CORPORATION, ET AL.

Aug 06, 2024 |21SMCV01662

Case Number: 21SMCV01662 Hearing Date: August 6, 2024 Dept: M CASE NAME: Clayton v. Malibu West Swimming Club, et al. CASE NO.: 21SMCV01662 MOTION: Defendant Jason Riddicks Special Motion to Strike HEARING DATE: 8/6/2024 Legal Standard Code of Civil Procedure section 425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant's right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. The anti-SLAPP procedures are designed to shield a defendants constitutionally protected conduct from the undue burden of frivolous litigation. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. (Id. at 384.) Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has described this second step as a summary-judgment-like procedure. The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiffs evidence as true, and evaluates the defendants showing only to determine if it defeats the plaintiffs claim as a matter of law. [C]laims with the requisite minimal merit may proceed. (Id. at 384-385 [citations omitted].) EVIDENTIARY OBJECTIONS Plaintiffs objections to the Riddick declaration are OVERRULED. Defendants objections are OVERRULED. Defendants request for judicial notice is GRANTED. (Evid. Code § 452(d).) Plaintiffs request for judicial notice is GRANTED except as to nos. 3-4. (Evid. Code §452 (c), (d), (h).) ANALYSIS Defendant Jason Riddick moves to strike the Third Amended Complaint (TAC) of Plaintiffs Samantha and Royce Clayton pursuant to Code of Civil Procedure section 425.16(e)(3)-(4). Riddick asserts that the TAC must be stricken as a SLAPP because Plaintiffs causes of action alleged against him arise from alleged statements and/or conduct which are protected by section 425.16, and Plaintiffs cannot establish a probability success because Riddick is not the legal cause of any of Plaintiffs injuries. Defendant has the initial burden to demonstrate that the claims alleged against him each arise from protected activity. Defendant specifically cites section 425.16(e)(3)-(4), which defines protected acts as: (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. A claim arises from protected activity when that activity underlies or forms the basis for the claim. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) [T]he defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. (Id. at 1063.) [T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. (Id.) Instead, the focus is on determining what the defendants activity [is] that gives rise to his or her asserted liabilityand whether that activity constitutes protected speech or petitioning. (Id.) The only means specified in section 425.16 by which a moving defendant can satisfy that [arising from] requirement is to demonstrate that the defendants conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e). . . . (Id.) In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability. (Id.) The instant action arises from a dispute over Plaintiffs efforts to rebuild their home at 5924 Pasea Canyon Dr., Malibu, CA 90265, following the 2018 Woolsey Fire. Their address is subject to certain CC&Rs enforced by Defendant Malibu West Swimming Club. Generally, Plaintiffs obtained plans and permits for their replacement home, which they describe as a modest single-story residence, and received approval from the City of Malibu. The TAC alleges that the Board, including Riddick, breached the Associations CC&Rs by denying Plaintiffs plans, which was motivated by racial animus and discrimination. The TAC names Riddick as Doe 1. The TAC includes Doe 1 in every cause of action, including: (1) breach of the HOAs CC&Rs; (2) breach of the Davis-Stirling Common Interest Development Act; (3) declaratory relief; (4) equitable relief; (5) intentional infliction of emotional distress; (6) trespass; (7) violation of Fair Employment and Housing Act; (8) Unruh Civil Rights Act; and (9) negligence. Aside from the Boards denial of the Plaintiffs variances, the TAC incidentally alleges that Riddick self-dealt with the Board for approval of his own variances, which are far greater than the Claytons requested variances. (TAC ¶ 5.) The TAC alleges that this disparate treatment between black and white residents evidences the Boards racial animus. (Id.) The TAC also seeks liability against Riddick for trespass on their property (although Plaintiffs admit they didnt intend to bring this claim against Riddick, and the TAC brings no facts in support of such a claim against Riddick). Therefore, except for the trespass claim (which would not arise from protected conduct in any event), Riddicks liability arises from his role as a Board member and the Boards multiple denials of variances, which allegedly violated the CC&Rs, statutes and common law. (TAC ¶¶ 5, 90, 206-207.) The Court does not find that the Riddicks conduct falls within the scope of subsection (3) or (4) as pled even though the conduct does involve statements. As set forth below, the Court concludes that the at-issue conduc was not done in connection with a public issue. Both section 425.16(e)(3) and (4) require Defendant to show a relationship between the subject conduct, and the public conversation about some matter of public interest. (Serova v. Sony Music Entertainment (2020) 44 Cal.App.5th 103, 116, citing FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-50.) In deciding whether a statement was in connection with an issue of public interest . . . a court must consider whether a statement . . . contributes to or furthers the public conversation on an issue of public interest. It is by carefully observing this wedding of content and context that we can discern if conduct is in furtherance of free speech in connection with a public issue or issue of public interest. (Id. at 154.) In analyzing the relationship between the challenged speech and the issue of public interest, it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate. (Serona, supra, 44 Cal.App.5th at 116.) A defendant has contributed to the public debate if he or she participated in, or furthered, the discourse that makes an issue one of public interest. (Id.) Public interest includes not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) Section 425.16 does not define public interest, but its preamble states that its provisions shall be construed broadly to safeguard the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. (Nygard, supra, 159 Cal.App.4th at 1039.) [A]n issue of public interest . . . is any issue in which the public is interested. In other words, the issue need not be significant to be protected by the anti-SLAPP statuteit is enough that it is one in which the public takes an interest. (Id. at 1042.) [I]n cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115, 119; see Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456.) An issue involving the HOA, its board members, or its decisions does not always involve a public issue or an issue of public interest. In general terms, courts have concluded that the petitioning conduct involves a public issue when it centers on HOA-wide policies, decisions, and management, but not when it centers on an individual member or property. The following cases are instructive on this distinction. In Ruiz, a homeowner sued his homeowners association alleging libelous letters written by the associations counsel. (Ruiz, supra, 134 Cal.App.4th at 1463-1465.) The letters concerned a dispute over the association's rejection of Ruiz's building plans, and Ruiz's complaints that the association was not applying its architectural guidelines evenhandedly. (Ibid.) The court concluded the letters fell within section 425.16(e)(4), noting that the letters were written in the context an ongoing dispute between Ruiz and the association over denial of Ruiz's plans and the application of the association's architectural guidelines. The dispute was of interest to a definable portion of the public, i.e., residents of the HOA, because they would be affected by the outcome of those disputes and would have a stake in [association] governance. (Id. at 1467-1469.) Moreover, the attorney's letters were part of the ongoing discussion over those disputes and contribute[d] to the public debate on the issues presented by those disputes. [Citation.] (Id. at 1469.) Ultimately, the challenged conduct in Ruiz involved an act of expression in two writings that gave rise to a libel cause of action and an issue of free speech, and were related to the broad issue of how the HOA would apply its guidelines. (Id. at 1468-69.) In Turner v. Vista Pointe Ridge Homeowners Assn., (2009) 180 Cal. App. 4th 676, homeowners brought claims against their homeowners' association, challenging the association's denial of variances for construction on their property. (Id. at 687-688.) The Court of Appeal found that the homeowners complaint arose out of the association's unwillingness to grant a variance to homeowners for construction of improvements, its demand that money be paid in exchange for a variance, its demand that various disputed improvements be removed, its levy of a reimbursem*nt assessment, its failure to comply with the covenants, and its demand that homeowners pay to remove a tree located in development's common area. (Id.) In reversing the trial courts granting of an anti-SLAPP motion, the appellate court explained that the written demands to the homeowners gave rise to breach of contract and other causes of action that do not raise free speech concerns. (Id. at 688.) The court explained: [n]ot every mundane communication between a homeowners association and a homeowner gives rise to a freedom of speech issue. Section 425.16, subdivision (e)(4), at issue here, does not come into play unless the right of free speech or the right to petition is involved. The cause of action itself must be based on the speech or petitioning activity. If neither of those rights is at stake, section 425.16, subdivision (e)(4) is inapplicable, irrespective of whether the subject of the dispute may otherwise be a matter of public interest. (Id. at 679.) As the alleged breaches did not implicate free speech concerns, the anti-SLAPP statute did not protect the HOA Board from liability for their denial of variances. In Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, a homeowner raised objections with her homeowners association over a change in practices regarding whether individual homeowners or the association had responsibility to pay for maintaining balconies and siding on individual units. (Id. at 1113.) The association filed suit against her (Ivie) seeking declaratory relief in interpreting the association's governing documents regarding maintenance obligations. (Ibid.) The court found that Ivie's complaints to the board were a matter of public interest because her statements concerned issues that affected all members of the association, such as whether all members would have to pay for maintenance costs assumed by the association. (Id. at 1118.) In addition, Ivies public complaints about the competency of Country Side's board's management of the association regarded a matter of public interest, because Country Side's decisions affected all members of the association. (Id., at 1118.) Damon is another case where a public interest was found and involved a defamation action brought by a former manager of a homeowners association. (Damon, supra, 85 Cal.App.4th at 471-473.) A number of homeowners had been unhappy with plaintiff's management style and had wanted a different manager for their homeowners association. They prepared editorials, articles and letters to the editor that were published in a newsletter circulated to homeowners association members and others. Certain members of the board of directors spoke critically of plaintiff at board meetings and one of them wrote memoranda criticizing the plaintiff's performance. (Id. at 472.) When plaintiff's contract term ended and he was replaced, plaintiff filed suit against two board members who had been critical of him, certain association members whose articles or letters had been published in the newsletter, and the publisher of the newsletter. (Id. at 473.) Defendants moved to strike under the anti-SLAPP statute, which was granted. (Id.) In affirming the decision, the court noted that each of the alleged defamatory statements concerned: (1) the decision whether to continue to be self-governed or to switch to a professional management company; and/or (2) Damon's competency to manage the Association. (Id. at 479-480.) The Damon court considered the defamatory statements to be public issues because the substantive issue affected all HOA members. In Colyear, a homeowner (Liu) submitted an application to a homeowners association seeking to invoke dispute resolution process against neighbor (Colyear) who refused to trim trees blocking homeowner's view. (Colyear v. Rolling Hills Cmty. Assn. of Rancho Palos Verdes, (2017) 9 Cal. App. 5th 119, 123.) Colyear brought an action against Liu and the association, alleging that they were wrongfully clouding his title by seeking to apply a tree-trimming covenant in the CC&Rs to his property. (Ibid.) As to Liu, Colyear alleged that some of the offending trees designated by Liu on the photos attached to his application were on Colyear's lot, thus Liu sought to apply the Liu Application to cut back trees and plantings on Colyear's lot. (Id. at 127.) The Second District agreed that this was protected activity under section 425.16(e)(4). (Id. at 130-131.) The court explained that Liu submitted his application in the context of an ongoing controversy, dispute, or discussion regarding the applicability of tree-trimming covenants to lots not expressly burdened by them, and the HOA's authority to enforce such covenants. (Id. at 132-133.) These issues were of public interest because the issues would affect all HOA members. In Lee v. Silveira (2016) 6 Cal.App.5th 527, minority board members sued six other board members regarding the board's renewal of the association's management contract and the decision-making process at board meetings. (Id. at 530-531, 542.) The defendants argued that the declaratory relief claim was based on their decisions and statements at board meetings and the claims thus arose from protected conduct in connection with a public issue. (Id. at 531.) In reversing the trial court's denial of the anti-SLAPP motion, the court held the plaintiffs' claim arose from the defendants' free speech activity in discussions and voting at board meetings. (Id. at 545.) The court noted that it [was] significant the defendants were individual board members and not the homeowners association, leading the court to conclude that the claims arose from protected free speech conduct. (Id. at 542.) Notable for this case, the complaints by homeowners association board members against other board members was in the context of a dispute concerning a large roofing project and a management company contract regarding day-to-day operations of the HOA, as affecting a broad segment, if not all, association members. (Id. at 540.) Thus, the public issue requirement was met in Lee. Considering the above case law and the allegations at issue, the claims here do not arise out of free speech or petitioning conduct in connection with a public issue. Simply put, the Boards discussions and vote regarded a controversy concerning a single lot. At best, the decision would only impact Plaintiffs and their immediate neighbor(s). This is unlike the above issues found to be public which each involved issues that impacted a broad segment of the HOA community. Therefore, any implicit votes or discussions by individual board members, such as Riddick, would concern this limited issue. Such a limited issue was not part of any ongoing discussion or public debate that would affect the entire HOA or some broad portion of the HOA community. Therefore, to the extent that Riddicks votes or discussion could be considered free speech conduct, the conduct still lacks a connection with a public issue. Accordingly, the motion is DENIED.

Ruling

MAANDI HOUSE STUDIOS, INC., A CALIFORNIA CORPORATION VS GVN RELEASING, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Aug 06, 2024 |6/18/2022 |22SMCV01644

Case Number: 22SMCV01644 Hearing Date: August 6, 2024 Dept: I This is a motion brought under CCP section 664.6 to enforce a settlement agreement. Plaintiff entered into a settlement. As part of the written settlement, three parties were responsible for making monetary payments to the plaintiff. They were Luminosity, GVN Releasing, and MMJ Productions. Defendants also included four individuals, but they had no personal obligation to pay anything under the settlement. (Rather, the settlement provided that if the payments were not made, those the release as to those individuals would be of no effect.) As the reader has probably guessed by now, the payments were not made. The settlement agreement provided that if Luminosity did not pay, plaintiff could apply ex parte to file a stipulated judgment against Luminosity. There was no similar provision as to GVN or MMJ. In fact, according to the defense, a provision that would have allowed such a remedy was removed from a draft. Plaintiff has now brought a noticed motion to obtain a judgment against GVN and MMJ for the unpaid amounts. GVN and MMJ oppose, claiming that a judgment could only be entered against Luminosity and that no judgment against them would be appropriate. Section 664.6 is a procedure enacted by our Legislature to allow courts a speedy way to enforce a settlement. Where certain conditions are met (and no one disputes that they were met here), a party can bring a motion to enforce the agreement. The court can enforce the agreement without requiring the pleadings to be amended. Further, the court can receive evidence and make determinations thereon where appropriate without the need for a trial. Before section 664.6 was enacted, the settlement was in the nature of a contract. If a party wanted to enforce it, the complaint or answer had to be amended to plead the existence of the settlement contract and its breach. If that was done, the settlement could be enforced after a trial on the merits or, if there were no disputed questions of material fact, on summary judgment. That was cumbersome and made settlements less attractive. Hence the statute. Plaintiff contends that it is entitled to enforce the agreement. Defendants state that the only express agreement pertaining to a judgment related to Luminosity, suggesting that no judgment could or would lie against GVN or MMJ. (All agree that there is no judgment against the individuals because they had no obligations under the settlement agreement, meaning that they have not breached it.) The court must agree with plaintiff here. If GVNs and MMJs position were credited, then the settlement provision that they would be responsible for the payment would be a dead letter. The court can think of no way to enforce the payment obligation other than to enter a judgment so enforcing. If the court could not do that, what could it do? The court will not interpret the settlement agreement to have a toothless payment obligation or to be illusory as to those parties. This is not some minor term; it is the agreements core. Such a promise will not be viewed as illusory if there is any other option. And there is. The court interprets the agreement as providing for a stipulated judgment that could be entered on an ex parte basis as to Luminosity. Those are strong terms. It allows a speedy process to be even speedier. GVN and MMJ are not subject to the stipulated judgment provision nor are they subject to plaintiffs right to move ex parte. And they may challenge the proposed judgments terms if they believe the terms to be wrong. But that does not mean that their promise can be ignored. Accordingly, plaintiffs motion is GRANTED. The court will enter a judgment against GVN and MMJ for the amount they promised to pay. Plaintiff is entitled to its costs and fees as provided in the settlement agreement, except that its fees are limited to fees relating to enforcing the settlement.

Ruling

EMIGDIO ANDUJO NEVAREZ VS CERRITOS FORD, INC., A CALIFORNIA CORPORATION, ET AL.

Aug 07, 2024 |22NWCV01281

Case Number: 22NWCV01281 Hearing Date: August 7, 2024 Dept: C Nevarez v. Cerritos Ford, Inc., Case No. 22NWCV01281 This is a Song-Beverly action. Plaintiff moves ex parte for leave to file the first amended complaint. Plaintiff argues that due to a calendaring error, Plaintiff did not file the first amended complaint by the deadline set by the Court when leave to amend was granted on November 15, 2023. Plaintiff has not demonstrated irreparable harm. However, in the exercise of the Courts discretion, a hearing is specially set for October 29, 2024 at 9:30 a.m. in Dept. SE-C. The ex parte application is deemed to be the moving papers. Opposition and Reply briefs to be filed and served in compliance with the hearing date. Counsel is advised that a party seeking an earlier hearing date is typically required to reserve a hearing date on the Courts reservation system and then apply ex parte to advance the hearing date. Moving party to give notice.

Ruling

VADIM KOGAN VS. UWE GUEHNEMANN ET AL

Aug 08, 2024 |CGC23608619

Matter on the Law & Motion calendar for Thursday, August 8, 2024, Line 7. PLAINTIFF VADIM KOGAN's MOTION FOR SUMMARY ADJUDICATION Of The Second Cause Of Action Against Defendants Uwe Guehnemann. Transferred to be heard in department 501 on August 23, 2024, at 9:30 a.m. That department handles all real property cases per SF Local Rule 8.10A1. Both parties to comply with SFLR 2.7B and deliver courtesy copies of their respective filings in support of and in opposition to the motion to department 501 with a cover letter reflecting the new hearing date and department no later than August 13, 2024. =(302/RBU)

Ruling

BEACH DISTRICT SURGERY CENTER VS UNITED AIRLINES, INC.

Aug 08, 2024 |23STCV19725

Case Number: 23STCV19725 Hearing Date: August 8, 2024 Dept: 54 Superior Court of California County of Los Angeles Beach District Surgery Center, Plaintiff, Case No.: 23STCV19725 vs. Tentative Ruling United Airlines, Inc., et al., Defendants. Hearing Date: August 8, 2024 Department 54, Judge Maurice Leiter Demurrer to First Amended Complaint Moving Parties: Defendants United Airlines, Inc. and Aetna Life Insurance Company Responding Party: Plaintiff Beach District Surgery Center T/R: The demurrer is overruled. Defendant to give notice. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers, opposition, and reply. BACKGROUND Plaintiff Beach District Surgery Center sued defendants United Airlines, Inc. and Aetna Life Insurance Company on August 17, 2023. Plaintiff filed its operative first amended complaint (FAC) on February 26, 2024, asserting causes of action for negligent misrepresentation and promissory estoppel. As alleged in the FAC, Plaintiff is a California-based medical provider. (FAC, ¶ 1.) Two of its patients, designated GA and VM in the FAC, receive health insurance through Uniteds employee benefit plan. (Id., ¶ 20.) Aetna acts as Uniteds agent in connection with stating the manner of payment for medical services and providing other administrative services relating to the Patients and [Uniteds] health plan. (Id., ¶ 3.) GA and VM received services from Plaintiff in 2022. (Id., ¶¶ 20, 39.) Prior to their appointments, Plaintiff verified with Aetna that their insurance would reimburse for services provided. (Id., ¶¶ 21-30, 40-49.) After confirming its patients coverage, Plaintiff billed $28,050.00 and $13,200.00, respectively, to Defendants for reimbursem*nt. (Id., ¶¶ 37, 56.) Defendants paid $0.00 in the first instance, and slightly more than $2,000.00 in the second. (Ibid.) ANALYSIS When considering a demurrer, a court reads the allegations stated in the challenged pleading liberally and in context, and treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) 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 treats all facts alleged in the complaint as true. (Picton v. Anderson Union High School District (1996) 50 Cal.App.4th 726, 732.) A. ERISA Preemption Defendants argue that Plaintiffs claims are preempted by the federal Employee Retirement Securities Act of 1974 (ERISA). They are not. Morris B. Silver M.D., Inc. v. International Longshore & Warehouse Union (2016) 2 Cal.App.5th 793 (Silver) controls. Where, as here, a plan administrator promises payments to a third party, then fails to make them, the dispute does not arise from the terms of the relevant benefit plan, and it is not preempted by ERISA. (Id., at pp. 802-803 [surveying precedent].) Defendant attempts to distinguish Silver by arguing that the defendant in that case had promised payment in a certain amount, while Defendants promise here depended on the terms of Plaintiffs patients benefit plans. That is not what is pleaded. Plaintiffs FAC is on all fours with Silver, where the plaintiff-provider stated a claim based on the defendants statements that it would pay according to the usual terms of the plan (a certain percentage of UCR, up to an out-of-pocket maximum, and less a deductible). (See id., at p. 796, fn. 2.) Plaintiffs claims are not preempted. B. Negligent Misrepresentation The elements of a claim for negligent misrepresentation are [M]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage& [citation omitted] (Hydro-Mill Co. Inc. v. Hayward, Tilton & RolappIns. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154 [citation omitted].) Defendant argues Plaintiff has not specifically pleaded the elements of its negligent misrepresentation claim. The Court disagrees. Plaintiff alleges Aetna employees, who spoke on behalf of United, at various times misrepresented that GA and VMs claims would be paid. Plaintiff alleges Defendant should have known the terms of its own coverage (see FAC, ¶¶ 60-61). And Plaintiff alleges Defendant intended to induce Plaintiffs reliance on its statements. The demurrer to the first cause of action is overruled. C. Promissory Estoppel The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. [Citation.] [Citation.] (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) Plaintiff has stated a claim for promissory estoppel. It alleges it spoke with Defendants representatives, who promised Plaintiff that if they provided medical services they would be paid a certain amount. Plaintiff provided services in reasonable reliance on this promise, and Plaintiff was not repaid. The demurrer to the second cause of action is overruled.

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REPUBLIC FINANCE LLC vs Dancy

Nov 28, 2023 |eFile Financial Garnishment |eFile Financial Garnishment |23-GM-27879

2024.07.22 Pl. Opp. to D's MIL with Exhibits July 22, 2024 (2024)

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