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IN THE CRAIGHEAD COUNTY DISTRICT COURT - WESTERN DISTRICT CIVIL DIVISION MIDLAND CREDIT _ PLAINTIFF MANAGEMENT, INC. V. No. > o ZS JAMES YATES Soe: Ju 14 U DEFENDANT 335 DRAKE ST APT B JONESBORO AR 724012140 COMPLAINT. Plaintiff, MIDLAND CREDIT MANAGEMENT, INC., by counsel, sues Defendant, JAMESYATES , under Account Stated and in support thereof states: 1 Plaintiff is authorized to file this Complaint in this Court. Plaintiff owns portfolios ofconsumer receivables, which it attempts to collect. Plaintiff strives to treat its consumers, such asDefendant, with respect, compassion and integrity, hoping to provide mutually-beneficial opportunitiesfor consumers to repay their debts and attain financial recovery. 2 Defendant is subject to this Court's jurisdiction. 3 Defendant established an account with THE BANK OF MISSOURI, under redactedaccount number XXXXXXXXXXXX-6954, 4 Defendant was provided statements delineating Defendants use of the account and statingthe current balance due. 5 Defendant defaulted on the account. 6 A statement of account balance was sent to Defendant and not paid. 7 Plaintiff has acquired all right, title and interest to Defendant's account, and hasattempted to contact Defendant through several means in an effort to resolve the account with Defendant,but has been unsuccessful. Defendant has not repaid the balance owed on the account. Plaintiff remainswilling to discuss various options to resolve the outstanding obligation, although the options may bedifferent than they were prior to the initiation of litigation. 8 Defendant owes Plaintiff $664.00. 9. In support of the allegations, Plaintiff incorporates herein by reference the attachedExhibits.GL_0100G File No.: 23-152581 SCPWHEREFORE, Plaintiff requests judgment against the Defendant for $664.00 and costs of theaction and post judgment interest at the statutory fate. By: KEITH A. AFKEN 2010036 Attorneys for Plaintiff P.O. BOX 772719 MEMPHIS, TN 38177-2719 Phone: (866) 300-8750 Fax: (877) 653-2426 arkansasattorneys@memeg.com PLEASE UNDERSTAND THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.GL_0100G File No.: 23-152581 SCP.BILL OF SALE AND ASSIGNMENT OF ACCOUNTS FROM |THE BANK OF MISSOURI TO GENESIS FS CARD SERVICES, INC.Pursuant to an in accordance with THE BANK OF MISSOURI: Section 36 of that certain SecondAmended and {Restated Receivables Sale Agreement (as amended, the “RSA”), effective as ofMarch 24, 2020, by and between The Bank of Missouri (“Seller”) and Genesis FS Card Services,Inc, (“Buyer”);] as of the applicable account charge off date, for good and valuable consideration,the receipt and' sufficiency of which is hereby acknowledged, Seller transferred, assigned and set-over to Buyerlall right, title and interest of Seller in and to those certain charged-off accountsspecified in Exhibit A, which were originated by Seller.Dated: 04/13/2023 [THE BANK OF MISSOURI] By::Merterter(tor3s, 20730926007 Name: Mark Barker Title: Chief Contract Services OfficerEXHIBIT A ACCOUNT SCHEDULEThose accounts pursuant to the RSA and this BILL OF SALE AND ASSIGNMENT OF ACCOUNTS FROM THE BANK OF MISSOURI TO GENESIS FS CARD SERVICES, INC.that are specifically identified in the electronic file named ‘Account Data (CO-1033).- Midland -GPCC - Flow 3.xlsx’ with such electronic file incorporated herein by reference.Exhibit 2 to Receivables Sale Agreement dated October 12, 2022 BILL OF SALE ' Closing Date: November 29, 2022 Genesis FS Card Services, Inc., an Oregon corporation ("Seller"), in consideration of the Purchase Price (as defined in the Agréement referred to bélow) and other valuable consideration, the receipt of which is hereby acknowledged, hereby sells, assigns and transfers all right, title and interest in and to (i) the Accounts identified in the Sale File entitled “Account Data (CO-1033) ~ Midland- GPCC- Flow 3° (which may-be in electronic form) to Midland Credit Management, Inc, a Kansas Corporation ("Buyer"), without recourse or representation except as expresslyprovided herein or pursuant to the ternis, and subject to the conditions, set forth in the Agreement (the “Accounts), and (ii) all proceeds ofsuch Accounts. ° The information contained in the Sale File (collectively, “Account Information”) is true and complete in all material respects as of the Closing Date. Further, the information contained in the Account Inforthation (a) constitutes business records regarding the Accounts maintained by the’Seller and (b) accurately reflects in all material respects the information about the Accounts in Seller’s possession. The Accourit Information, whether acquired or created, has been kept in the regular course of business by Séller and was made or-compiled at or near the time of tlie event and recorded by (or from information transmitted by) a person (i) with knowledge of the-data entered into and maintained in business records maintained by Seller, or (ii) who caused the data to,be entered into and:maintained in business records maintained’ by the Seller. All capitalized terms used,-but not defined, in this Bill of Sale shall have the meanings assigned to such term in the Agreement, This Bill of Sale is delivered pursuant to that certain Receivables Sale Agreement, dated as of October 12, 2022, by and between Seller and Buyer (as amended, restated, supplemented, or otherwise modified from time to time, the Agreement"). All capitalized terms used but not defined in this Bill of Sale shall have the meanings assigned'to-such terms in the Agreement. MIDLAND CREDIT MANAGEMENT, INC. GENESIS FS.CARD SERVICES, INC. op, Mlimuclle, Word — py AL (oe ‘Name Danielle Wohlfehrt Name: GREGG ATKINSON. Title; MVP, Business Development Title: _CEO,Receivables Sale Agreement dated October 12, 2022 AFFIDAVIT OF SALE OF ACCOUNT BY DEBT SELLERState of Chio, County of Summit.M. Graham Flynn being duly swom,.deposes and says:Tam over 18 and not a party to this action. I am the Director of Debt Sales [title] of GenesisFinancial Solutions, Inc, parent company of Genesis FS Card Services (‘Debt Seller”). In thatposition.I am the custodian of Debt Seller’s books and records and am aware of the proceduresused for the sale and assignment of electronically stored business récords.On_// / 22 !ZoZe. Debt Seller sold a pool of charged-off accounts (the “Accounts”)by a Loan Sale Agreement and a Bill of Sale to Midland Credit Management, Inc, (“Buyer”).All records were kept in the regular course of business.I am not aware of any errors in these Accounts. The above statements are true to the best of myknowledge.Dated: 3 / Jf / 20%3Sy pm to before me 3B, 22 Mnlttiey, M4,“, ANGELA WISE Wid WB Nolary Publis, State of OhioWot Stamp) My Commission res. UAR a 12/08/2025 naka CERTIFICATE OF CONFORMITYI Benjamin Comston, an attorney duly licensed to practice law in the State of Ohio, affirm underpenalty of perjury and certify that I witnessed the signature of M. Graham Flynn as applied to theAffidavit annexed to this Certificate, which was signed and dated on 3 AGThe manner in which same was signed was, and is, in accordance with, and conforms to, thelaws for taking oaths and acknowledgments, in the State of Ohio. Dated: 2 714) 23Field Field DataAccount Number 05Seller Account ID 5498060035563263First Name JAMESLast Name YATESSSN XXX-XX-0083 iDate of Birth aAddress 1 335 DRAKE ST APT BCity JONESBOROState ARZip 72401Open Date 02/24/2022Last Purchase Date 04/14/2022Last Purchase Amount $16.88Sale Amount $664.00Charge Off Date 11/15/2022Charge off Balance $664.00Post Charge Off Interest $0.00Post Charge off Fee $0.00Post Charge off Payments $0.00Post Charge off Payments and Credits $0.00Post Charge off Credits $0.00Affinity MILESTONEAccount information provided by Genesis FS Card Services, Inc. pursuant to the Bill of Sale/Assignment of Accountstransferred on or about 1:1/29/2022 in connection with the sale of accounts from Genesis FS Card Services, Inc. toMidland Credit Management, Inc.Account Data(CO-1 083)-Midlend- The charge In question may remain on your statement, and we may continue to {you wish to close your Account to further Purchases and Gash Advances in orderto charge you Interest on that amount But, Il we determine that we made a mistake, avoid paying the Monthly Fee, you must deliver written notice of closure (instructions ‘you will not have to pay the amount in question or any interest or other fees below) to us prior to the endof a Billing Cycle. Otherwise, your Account will be charged a elated to that amount. Monthly Fee. * While you do not have to pay the amount in question, you are responsible for the remainder of your balance. NOTICE OF ACCOUNT CLOSURE + We can apply any unpaid amount against your credit fimlt. Written notice of closure must be sent to Genosis FS Card Services, P.O. Box 4477, Beaverton, OR 97076. Upon receipt, we will close your Account and the renewal Annual ‘Your Rights If You Are Dissatisfied With Your Credit Card Purchases Fee and/or Monthly Fee (as applicable) will not be charged to your Account Glosing your Ifyou are dissatisfied with the goods or services that you have purchased with yourAccount will not cancel your obligations to pay amounts outstanding on your Account, and credit card, and you have tried in good felth to correct the problem with the merchant, you will be requlred to pay your outstanding balance with interest In accordance with the ‘you may have the right not to pay the remaining amount due on the purchase. To use terms of your Cardholder Agreement. ‘this right, all of the following must be true: 1. The purchase must have been made in your home stale or within 100 miles CREDIT BUREAU REPORTING Of your current mailing address, and the purchase price must have been more. ‘We may report information about your Accountto credit bureaus, Late payments, missed than $50, (Note: Neither of these is necessaryif your purchase was based on payments, or other defaults on your Account may be reflected in your credit report. an advertisem*nt we mailed to you, or if we own the company that sold you the BALANCE SUBJECT TO INTEREST RATE goods or services.)‘Wa use the Average Dally Balance (including new purchases) mathod to calculate the 2. You must have used your credit card for the purchase, Purchases made with cash ‘balance on which we charge interest. To find out more about tha balance computation advances from an ATM or with 2 check that accesses your credit card account do mathad and how interest charges were determined, call us at the toll-free telephone not qualify, number on the front of the first page of your billing statement, 3. You must not yet have fully pald for the purchase. Mall of the criteria above are met and you are still dissatisfied with the purchase, contact MINIMUM INTEREST CHARGE us in waiting ak: Genesis FS Gard Services, P.O. Box 4499, Beaverton, Oregon, $7076. Ifyou are charged interest, the charge will be no less than $1.00. While we investigate, the same rules applyto the disputed amount as discussed above. After we finish our investigation, we will tell you our decision. At that point, if we think you owe an amount and you do not pay, wa may report you as delinquent, O1AC1202 - 4 - 03/22/2021 Detach here ¥ and return below portion with your remitiance. Atter detaching, retaln upper portion for your future reference. ADDRESS / PHONE NUMBER CHANGE FORM By providing a celtular phone number or a number that is later converted to a cellular phone number, you are expressly ensenting that we {and any other owners or servicers of your Account) may contact you via phone or text message, Including the use of pre-recorded messages and calls and messages using an automated dialing system, ADDRESS: CITY STATE ZIP CODE HOME PHONE BUSINESS PHONE EMAIL ADDRESS:JAMES YATES Account number ending in 6954 ‘Totals 2022 Year. Date Total fees charged in 2022 Taah00 | Total interest charged in 2022 $99.01IMPORTANT AGCOU! VTINFORMATION MS fe A Monthly Fee is charged atthe close of each Cycle untess you notify us to close your Account. in the first year, the Monthly Fee is $0; thereafter, the Monthly Fea is $8.25. Please’see the Monthly Fee on the reverse for additional renewal information. YOUR ACCOUNT IS PAST DUE. THE PAST DUE AMOUNT 1S INCLUDED IN THE MINIMUM PAYMENT. PLEASE REMIT IMMEDIATELY. YOUR ACCOUNT IS CURRENTLY OVER YOUR CREDIT LIMIT.INTEREST CHARGE CALCULATION. :Your Annual Percentage Rate (APR) is the annual interest rate on your account. Annual Percentage: Balance Subject toType of Balance Rate (APR) Interest Rate Interest ChargePurchases 35.90% $579.67 $17.34Cash Advances 36.90% $28.21 $0.78(v)= variablecee MILESTONE” JAMES YATES - Dee | + . noes Account number ending in 6954 . a ACCOUNT SUMMARY: . Z PAYMENT INFORMATION . * + - ae Credit Limit . "$300.00" New Balance $339.66 Available Credit ‘ $0.00 Minimum Payment Due $80.00 Past Due Amount : $40.00 Payment Due Date June 13, 2022 Overlimit Amount $39.66 Late Payment Warning: If we do not receive your minimum Statement Closing Date May 14, 2022 payment by the date listed above, you may have to'pay a late fee Days in Billing Cycle 30 of up-to $40.00. Previous Balance $262.77 - Payments & Cradits $0.00 Minimum Payment Warning: If you make only the minimum + Purchases & Other Charges $16.88 payment each period, you will pay more in interest and it will take + Cash Advances you longer to pay off your balance. For example: $22.00 + FEES CHARGED $29.00 Ifyou make no You will pay off the ‘And you will end up + INTEREST CHARGED $9.01 additional charges balance shown on this paying an estimated = New Balance $339.66 using this card and statement in about... total of... each month you pay... QUESTIONS? Call 1-800-305-0330 Only the minimum 9 months $385.00 Please mall billing Inquiries to: payment Genesis FS Card Services if you would like information about credit counseling services, call P.O. Box 4499 1-800-305-0330. Beaverton, OR 97076-4499 www.milestonecard.com Notice: SEE REVERSE SIDE FOR MORE IMPORTANT INFORMATION age a8 ye oy ve Te 2 Tran Post Date Date Reference Number Transaction Description Amount O44 04S 1542202FTO6D02JQ6 SOUTHERN BANK JONESBORO AR 22.00 O44 045 5542950FRMLTJEKP4 DD DOORDASH DOLLARGEN 8559731040 CA 16.88 FEES Osa 05/14 LATE FEE 29.00 TOTAL FEES FOR THIS PERIOD 29.00 INTEREST CHARGED 0514 05/14 Interest Charge on Purchases 8.36 osn4 05/14 Interest Charge on Cash Advances 0.65 TOTAL INTEREST FOR THIS PERIOD 9.01 Please detach bottom portion and submit with payment using enclosed. envelope tet PAYMENT INFORMATION Genesie FS Card Services PO BOX 4477 Account number endi aeMILESTONE’ Beaverton OR 97076-4477 Payment Due Date June 13, 2022 New Balance $339.66 Minimum Payment Due $80.00 Make Check Amount Enclosed: Ss Payable to: JAMES YATES 335 DRAKE ST APT GENESIS FS CARD SERVICES JONESBORO AR 72601-2140 Ugg Uff He tRLA|Doy peal eee epee y PO BOX 84059 Columbus GA 51908-4059 oddone ten og Loe ETT nell iYour Account Is issued by The Bank of Missourl and serviced by PAYING INTEREST Genesis FS Card Services, Inc. Your due date is at least 25 days after the clase of each Billing Cycle, We will not charge PAYMENTS you any interest on Purchases if you pay your entire balance by the due date each Payments shavid be malled with thelpayment coupon and in the envelope provided to month. We will begin charging intereston Cash Advances on the transaction date. the Genesis FS Card Services payment address indicated on the payment coupon. Any ‘OTHER DISCLOSURES: payment received in that form and at that address on or before 5:00 P.M. Eastern Time on For AR, HI, IA, ME Residents: This communication is from a debt collector. This is an @ normal banking day will be credited to your Account that day. I your payment Is recelved attempt to collect debt and any information obtained will be used for that purpose. in that form and at that address after:5:00 P.M. Easter Time on a normal banking day,or anytime on a nonbanking day, we will creditit to your Account the next banking day. ‘What To Do Hf You Think You Find A Mistake On Your Statement Payments can also be made online by visiting milestonecard.com. When you provide a you think thera is an error on your statemnent, writeto us al: Genesis FS Card Services, check as payment, you authorize us either to use the information fram your check to make P.O. Box 4499, Beaverton, Oregon 97076-4499. a one-time electronic fund transfer from your account or to process the payment as a Inyour latter, give us the following Information: check transaction, When we use information from your check to make an electronic fund * Account Information: Your name and Account number. transfer, funds may be withdrawn from your account as scon as the same day we recelve + Dollar Amount: The doliar amount of the suspected error. your payment and you will not receive your check back from your financial Institution. * Description of Problem: ff you think there (san error on your bill, describe what Payments received at other than the remittance address on the tace of this statement may ‘you bellave is wrong and why you believe itisa mistake. be subject to a delay in crediting of up to5 days after the date of receipt. ‘You must contact us: + Within 60 days after the error appeared on your statement. ANNUAL FEE (if applicable) ‘You must notify us of any potential errors in writing. You may call us, but if you do we Ifyou wish to close your Account to further Purchases and Cash Advances in order ‘ate not required to investigate any potential errors and you may have to pay the amount to avoid paying the renewal Annual Fee, yau must deliver written notice af closure (Instruc- in question. {tons below) to us within thinly (30) days from the mailing date of the statement or letter ‘While we investigate whether or not there has been an error, the following are true: containing the renawat Annual Fee notice. (This doas not apply to the inltiat Annual Fea + We cannot try to collect the amount in question, ar report you as delinquent on charged in connection with the opening of your Account.) ‘that amount. MONTHLY FEE (it applicable) * The charge In question may remain on your statement, and we may continue to Iyou wish to close your Accountto further Purchases and Cash Advances In orderto charge you Interest on that amount. But, if we determine that we madea mistake, avoid paying the Monthly Fee, you must deliver written notice of closure {instructions ‘you will riot have to pay the amountin question or any interest or other fees. below) to us priorto the end of a Billing Cycle. Otherwise, your Account will be charged a elated fo that amount.Monthly Fee, * While you do not haveto pay the amount in question, you are responsible for the remainder of your balance. NOTICE OF ACCOUNT CLOSt » We can apply any unpald amount against your credit limit. ‘Written notice of closure must ba sent to Genesis FS Card Services, P.O. Box 4477, Beaverton, OR 97076. Upon receipt, we will close your Account and the renewal Annual ‘Your Rights if You Are Dissatisfied With Your Credit Card Purchases Fee and/or Monthly Fee (as applicable) will not be charged to your Account. Closing your It you ate dissatisfied with the goods or services that you have purchased with your Account will not cancel your obligationsto pay amounts outstanding on your Account, and redit card, and you have trled in good faith to correct the problem with the merchant, you will be required to pay your outstanding balance with interest In accordance with the you may have the right not to pay the remaining amount dus on the purchase. To use. terms of your Cardholder Agreement, ‘this right, all of the following must be true: 1. The purchase must have been made in your home state or within 100 mites CREDIT BUREAU REPORTING of your currant mailing address, and the purchase price must have been more ‘We may report information about your Account to credit bureaus. Late payments, missed than $50. (Note: Neither of these is necessary If your purchase was based on payments, or other defaults on your Account may be reflected in your credit report. an advertisem*nt we mailed to you, orif we own the company that sold you the BALANCE SUBJECT 10 INTEREST RATE goods or services.) ‘We use the Average Dally Balance (including new purchases) mathed to cateulate the 2. You must have used your credit card for the purchase, Purchases made with cash balance on which we charge interest, To find cut more about the balance computation ‘advances from an ATM or with a check that accesses your credit card account do mathod and how Interest charges were determined, call us at the toll-free telephone ‘not qualify. number on the front of the first page of your billing statement. 3. You must not yet have fully pald for the purchase. fall of the criteria above are met and you are still dissatisfied with the purchase, contact MINIMUM INTEREST CHARGE Us inwaitingal: Genesis FS Card Services, ). Box 4499, Beaverton, Oregon, 97076. Ifyou are charged interest, the charge will be no less than $1.00. ‘While we investigate, the same rules applyto the disputed amount as discussed above. Afterwe finish our investigation, we vail tell you our decision. At that point, if we think you owe an amount and you do not pay, we may report you as delinquent. O1AC1202 - 1 - 09/22/2021 Detach here v and return below portion with your remittance. After detaching, retain upper portion for your future reference. ADDRESS / PHONE NUMBER CHANGE FORM By providing a celtutar phone number or a number that Is fater Converted to a cellular phane number, you are expressly consenting that we {and any other owners or servicersof your Account) may contactyou via phone or toxt messago, Including the Use of pre-recorded messages and calls and messages using an automated dialing system. ‘ADDRESS cIry ‘STATE ZIP CODE HOME PHONE: BUSINESS PHONE EMAIL ADDRESSJAMES YATES Account number ending in 6954 . Totals 2022 Year-to-Date. Total fees charged in 2022 $104.00 Total interest charged in 2022 $14.67IMPORTANT. ACCOUNT INFORMATION ns A Monthly Fee is charged at the close of each Billing Cycle unless you notify us to close your Account. !n the first year, the Monthly Fee is $0; thereafter, the Monthly Fee is $8.25. Please sea the Monthly Fee on the reverse for additional renewal information. YOUR.ACCOUNT IS PAST DUE. THE PAST DUE AMOUNT IS INCLUDED IN THE MINIMUM PAYMENT. PLEASE REMIT IMMEDIATELY. YOUR ACCOUNT IS CURRENTLY OVER YOUR CREDIT LIMIT.INTEREST CHARGE CALCULATION .Your Annual Percentage Rate (APR) Is he annual inlerest rate on your account. Annual Percentage Balance Subject toType of Balance Rate (APR) Interest Rate Interest ChargePurchases. 35.90% $279.65 $8.36Cash Advances 35.90% $22.00 $0.65{v) = variableSTATE OF ARKANSAS MIDLAND CREDIT MANAGEMENT, INC., Plaintiff ! =VS~ AFFIDAVIT OF ERIN MARTIN JAMES YATES, Defendant(s). Erin Martin, whose business address is 320 E Big Beaver Rd Suite 300, Troy, MI 48083, certifies and says: 1 1am employed as a Legal Specialist and have access to pertinent records for Midland Credit Management, Inc. ("Plaintiff or "MCM"). I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained by Plaintiff. Plaintiff is the current owner of, and was assigned al] the rights, title and interest to Defendant's THE BANK OF MISSOURI account XXXXXKXKXXKX6954 (hereinafter "the Account"), 2. T have access to and have reviewed the electronic records pertaining to the Account maintained by MCM and am authorized to make this affidavit on MCM's behalf. The electronic records reviewed consist of (i) data and records acquired from the seller or assignor when MCM purchased or was assigned the Account, which were incorporated into MCM's business records upon purchase or assignment, and (ii) data and records generated by MCM in connection with servicing the Account since the date the Account was purchased by or was assigned to MCM. 3. J am familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to the Account, which consist of @) data and documents acquired from the seller or assignor, and (ii) subsequent collection and/or servicing activities by MCM. The records are acquired or created, and are kept in the regular course of MCM's business. It was in the regular course of MCM's business for a person with knowledge of the subsequent collection and/or servicing activities recorded, and a business duty to report, ~ AFFIDAVIT OF ERIN MARTIN 1MONE RC aa UHR Hn Nu IR ‘FREC 3-15.to make the record or data compilation, or to transmit information thereof to be included in such record, or for stich information to be posted in MCM's records by a computer or similar digital means. In the regular course of MCM's business, the record or compilation of the subsequent collection activities is made at or near the time of the act or event by MCM as a regular practice, 4. MCM's records show that Defendant(s) owed a balance of $664.00 as of 2023-10-17. 5 The complete chain of title including THE BANK OF MISSOURI, the original creditor, and ail post-charge-off purchasers/assignees of the debt are as follows: i. THE BANK OF MISSOURI 2022-11-15 2. Genesis FS Card Services, Inc. 2022-11-29 3. Midland Credit Management, Iric. LEFT BLANK INTENTIONALLY ¢ AFFIDAVIT OF ERIN MARTIN - 2AGERE EL HARMANI certi; ify under penalty of perjury that the foregoing statements are true and correct. ocT 2 3 2028 Erin Martin STATE OF MICHIGAN COUNTY OF OAKLAND OCT 2 8 2003 Signed and sworn to (or affirmed) before me n by Erin Martin: sm Publo Siaethan oncounty ‘of Oaklan Rona eet, peal in the Countyat This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose. CA137 AFFIDAVIT OF ERIN MARTIN - 3IMACS AE AIOE INA AUTEN 23-15258
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Superior Court¿(1987) 189 Cal.App.3d 1542, 1544.)¿ [A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to subdivision (t). (CCP,¿§ 437c(t).)¿ To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, [a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment& (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion may not be denied on grounds of credibility, except when¿a material fact is the witnesss¿state of mind and that fact is sought to be established solely by the [witnesss] affirmation thereof. (CCP, § 437c(e).)¿ Once the moving party has met their burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP § 437c(p)(1).) [T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.¿(Consumer Cause, Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿ ¿ The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding. (Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (Ibid.)¿ EVIDENTIARY ISSUES Request for Judicial Notice The moving defendants seek judicial notice of the third amended complaint (TAC) and statements the Court made in its December 27, 2023, ruling on the defendants demurrer. Defendant RFM Holdco, LLC (RFMH) separately seeks judicial notice of a screenshot from Delaware Department of State, Division of Corporations Entity Details for RFM Holdco, LLC, to show that the corporation was formed as a limited liability company in Delaware on June 24, 2019. The Court grants the request for judicial notice as to all documents but not as to the hearsay allegations therein. (Evid. Code, § 452(c), (d), and (h).) Evidentiary Objections Defendants objections filed on August 9, 2024, are overruled. Analysis Like their co-defendants who moved for summary judgment on August 8, 2024, Related Fund Management, LLC (RFM), Related Partners, Inc. (RPI), Related Sales, Inc. (RSI), and RFM Holdco, LLC (RFMH) move for summary judgment, arguing that Plaintiff has no evidence to support her alter ego and/or aiding and abetting theories of liability. Plaintiff opposes each motion. Alter ego is a limited doctrine, invoked only where recognition of the corporate form would work an injustice to a third person. [Citation.] The essence of the alter ego doctrine is that justice be done . & Thus the corporate form will be disregarded only in narrowly defined circ*mstances and only when the ends of justice so require. [Citation.] (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 810. Whether a party is liable under an alter-ego theory is normally a question of fact. (Id. at 811.) Courts have identified the conditions under which the corporate entity may be disregarded, or the corporation be regarded as the alter ego of the stockholders, necessarily vary according to the circ*mstances in each case inasmuch as the doctrine is essentially an equitable one and for that reason is particularly within the province of the trial court. [Citation.] (Id. at 811 [italics in original].) Nevertheless, it is generally stated that in order to prevail on an alter-ego theory, the plaintiff must show that (1) there is such a unity of interest that the separate personalities of the corporations no longer exist; and (2) inequitable results will follow if the corporate separateness is respected. [Citation.] (Id.) As to unity of interest between the corporation and its shareholders, this element can be proved upon a showing of a close ownership and control of the entire organizational framework. (Rosen v. E. C. Losch, Inc. (1965) 234 Cal.App.2d 324, 333.) Another factor is the undercapitalization of the entity. (Id. at p. 334.) The decisions likewise hold that personal liability will attach when the corporation is rendered insolvent due to the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another. (Id.) Zoran identified a non-exhaustive factors that the Court should look for in determining whether to apply an alter-ego basis of liability, including: 1. Commingling of funds and other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of corporate funds or assets to other than corporate uses; 2. The treatment by an individual of the assets of the corporation as his own; 3. The failure to obtain authority to issue stock or to subscribe to or issue the same; 4. The holding out by an individual that he is personally liable for the debts of the corporation; 5. The failure to maintain minutes or adequate corporate records, and the confusion of the records of the separate entities; 6. The identical equitable ownership in the two entities; 7. The identification of the equitable owners thereof with the domination and control of the two entities; 8. Identification of the directors and officers of the two entities in the responsible supervision and management; sole ownership of all of the stock in a corporation by one individual or the members of a family; 9. The use of the same office or business location; 10. The employment of the same employees and/or attorney; 11. The failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization; 12. The use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation; 13. The concealment and misrepresentation of the identity of the responsible ownership, management and financial interest, or concealment of personal business activities; 14. The disregard of legal formalities and the failure to maintain arm's length relationships among related entities; 15. The use of the corporate entity to procure labor, services or merchandise for another person or entity; 16. The diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another; 17. The contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions; and 18. The formation and use of a corporation to transfer to it the existing liability of another person or entity. (Zoran, supra, 185 Cal.App.4th at pp. 811-812.) These factors are not exhaustive and should be considered among other factors that are presented in a particular case. (Id. at p. 812.) According to the TAC, RMFH is a defendant in this action because it owned and controlled an entity (The Related Realty Group, Inc. (TRRG)), TRRG is the general partner of another defendant entity (The Related Companies, L.P. (TRCLP)), TRCLP owned and controlled another defendant entity (Related California Residential, LLC (RCR), RCR employed and paid the salaries of the people controlling Santa Monica Urban Housing A, LLC (SMUHA), which developed, marketed, and sold The Waverly, where Plaintiffs condominium is located. (TAC ¶¶ 2, 7, 13-14, 18.) The TAC also alleges that RMFH was at all relevant times an agent, principal, representative, or affiliate of the other defendants, knew of the wrongful conduct described below and coordinated their actions to facilitate the wrongful conduct, thus becoming a substantial cause of Plaintiffs harm such that each should be held jointly and severally liable for Plaintiffs damages. (TAC ¶ 20.) Finally, the TAC alleges that (1) some defendants defrauded Plaintiff by concealing the defects in her condominium, and (2) some defendants aided and abetted those defrauding defendants. The [a]iding and abetting Defendants actions were [allegedly] a substantial factor in causing Plaintiffs harm because, without their knowledge and assistance, SMUHA and other Defendants would not have been able to conceal the water intrusion and fenestration problems and related lawsuits from Plaintiff. Aiding and abetting Defendants acted as de facto developers, made decisions and signed documents on SMUHAs behalf, marketed for sale units at The Waverly, lent their reputation to entice buyers like Plaintiff, and conducted and oversaw repeated and futile repairs at Unit 201, among other things. Aiding and abetting Defendants are thus equally liable for SMUHAs and other Defendants fraud and therefore equally liable to Plaintiff for compensatory damages or rescission and for punitive damages. (TAC, ¶ 78.) The TAC does not specify which group RFMH falls into (i.e., the defrauding or the aiding and abetting defendants). The Court finds that RMFH has met its initial burden of showing that Plaintiffs fraud, violation of real estate sellers duty to disclose, negligence, and breach of fiduciary duty claims based on an alter ego claim have no merit through the following undisputed facts. In her responses to the defendants request for admission, Plaintiff admitted that she (1) never entered into any agreement directly with Holdco (RMFH), (2) had no communications directly with Holdco prior to her purchase, (3) never had communications directly with Holdco, (4) she did not rely on any representations made specifically by Holdco in making the decision to purchase her unit, and (5) has no evidence that Holdo provided any funds to SMUHA. (Separate Statement [of undisputed material facts] Opposing RFMHs MSJ, filed August 1, 2024 (RFMH-Plaintiff UMF), ¶¶ 4, 5, 6.) It is also undisputed that RFMHs business operations do not now and never have had any involvement with the project known as The Villages at Santa Monica (TVSM), where The Waverly is located. (RFMH-Plaintiff UMF, ¶ 9.) RFMH is not a member of SMUHA, does not commingle funds or assets with any defendant entity and only uses its funds for its own corporate purposes. (RFMH-Plaintiff UMF, ¶ 12.) The Court also finds that RFMH has met its initial burden of showing that Plaintiffs claims against the defendant on the theory of aiding and abetting have no merit. Under an aiding and abetting theory, a defendant must have actual knowledge of the specific primary wrong being committed and gave substantial assistance to the wrongful conduct. (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 188.) Here, it is undisputed that the corporation was formed in Delaware on June 24, 2019. (RFMH-Plaintiff UMF, ¶ 8.) The TAC alleges that Plaintiff purchased her unit in May 2016. (TAC, ¶¶ 52, 66.) Therefore, before Plaintiff purchased the condominium, RFMH could not have aided and abetting the alleged fraudulent concealment of the alleged defects in her condominium unit because the defendant was not formed at the time of purchase. There is also no allegation that between June 24, 2019, when RFMH was formed, and September 13, 2019, when Plaintiff filed this action, RFMH aided and abetted the alleged futile repairs of her condominium. Therefore, as to RFMH, the burden shifts to Plaintiff to show that triable issues of material fact exist as to those two theories. In opposition, Plaintiff argues that RFMH commingles assets. (Opposition to RFMH Motion, p. 8:13.) However, as stated above, Plaintiff agreed that it was undisputed that RFMH does not commingle funds or assets with any defendant entity. Plaintiff also argues that RFMH is the entity through which TRCLP Principals own and control RFM, and RFM is the entity that provides Real Estate Investment Services to TRCLPall within the Related Companies Organization. However, [t]he pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.] [Citation.] (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Thus, a defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.] (Id.) Here, Plaintiff did not plead that RFM-TRCLP-RFMH theory in her TAC. Therefore, she is precluded from raising that theory now. Given that Plaintiff has failed to meet her burden as to RFMH, that defendants motion for summary judgment is GRANTED. With regard to RSIs motion, the Court finds that the defendant has failed to meet its initial burden. RSI moves for summary judgment, suggesting that it was merely engaged by SMUHA and SMUHC to provide sales and marketing services for TVSM, and, therefore, could not be liable for Plaintiffs alleged harm. However, Plaintiff asserts the third cause of action for negligence against RSI. In general, each person has a duty to act with reasonable care under the circ*mstances. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619.) Here, the TAC alleges during the marketing and sale process, the defendants (presumably, including RSI) intentionally concealed in the Public Report and otherwise . . . the defects with Plaintiffs unit. (TAC ¶¶ 65, 88.) RSI has not produced evidence showing that it did not act negligently with regard to its sales and marketing services. Since summary judgment can only be granted if there are no triable issues of fact and RSI has not moved for summary adjudication of Plaintiffs claims, the Court finds that RSI has failed to meet its initial burden of summary judgment. Therefore, the burden does not shift to Plaintiff as to RSIs motion. Accordingly, RSIs motion for summary judgment is DENIED. With regard to RPI, the TAC alleges the defendant employed or paid salaries of persons responsible for managing many of the affiliated entities, including SMUHA, and thereby directed, profited from, and/or participated in the wrongful acts . . .. (TAC ¶ 16.) RPI moves for summary judgment, arguing that it was not involved in the development of TVSM, was not a member or shareholder in any alter ego defendant, and that it merely provides internal corporate services such as payroll. However, the employment of the same employees is a factor that can suggest an alter ego relationship between the defendant entities. Therefore, even if the Court were to find that RPI has met it burden of showing that triable issues of material fact do not exist, Plaintiff has met her burden of showing that triable issues do exist as to whether RPI was an alter ego by producing transcript whereby David Katz testified that [RPI] is an entity that employs all of the Related employees. (Plaintiffs Compendium of Evidence, Exhibit 207, p. 14:16-19.) Accordingly, RPIs motion for summary judgment is DENIED. Lastly, the Court also finds that triable issue exists as to RFMs motion for summary judgment. The defendant moves for summary judgment, arguing, among other things, that it was not involved in the development of TVSM, RFM has never specifically communicated with or interacted with Plaintiff, it is not a member or shareholder of any alter ego defendant in this action, it was not a member of SMUHA, it is merely a financial services company that provides real estate assets investments and advisory services, and does not have a financial ownership interest in SMUHA. However, Plaintiff has shown triable issues exist as to those facts by producing evidence indicating that the defendant belonged to TRCLPs Internal Investment Committee, which oversaw the development of TVSM, where Plaintiff purchased Unit 201. (Pl. Comp., Ex. 65, pp. 16:17 - 17:6; Ex. 107, ¶ 3.) That is sufficient to defeat summary judgment. Accordingly, RFMs motion for summary judgment is DENIED.
Ruling
CVE Contracting Group, Inc. vs. Disaster Restoration International - DRI, Inc.
Aug 14, 2024 |22CECG01744
Re: CVE Contracting Group, Inc. v. Disaster Restoration International – DRI, Inc., et al. Superior Court Case No. 22CECG01744Hearing Date: August 14, 2024 (Dept. 403)Motion: by Plaintiff for Summary AdjudicationTentative Ruling: To grant plaintiff CVE Contracting Group, Inc.’s motion for summary adjudicationof the first, fifth, and sixth causes of action against defendant Disaster RestorationInternational – DRI, Inc. Prevailing party shall submit a judgment consistent with the termsof this ruling within 10 days of service by the clerk of the order.Explanation: A trial court shall grant summary judgment where there are no triable issues ofmaterial fact and the moving party is entitled to judgment as a matter of law. (CodeCiv. Proc., §437c, subd. (c).) Summary adjudication is the proper mechanism forchallenging a particular, “cause of action, an affirmative defense, a claim for punitivedamages, or an issue of duty.” (Paramount Petroleum Corp. v. Superior Court (2014) 227Cal.App.4th 226, 242.) However, “[a] motion for summary adjudication shall be grantedonly if it completely disposes of a cause of action, an affirmative defense, a claim fordamages, or an issue of duty.” (Code of Civ. Proc., § 437c subd. (f)(1); see also Catalanov. Superior Court (2000) 82 Cal.App.4th 91, 97 [piecemeal adjudication prohibited].) If the moving party carries this initial burden of production, the burden ofproduction shifts to the opposing party to show that a triable issue of material fact exists.In determining whether any triable issues of material fact exist, the court must strictlyconstrue the moving papers and liberally construe the declarations of the party opposingsummary judgment. Any doubts as to whether a triable issue of material fact exist are tobe resolved in favor of the party opposing summary judgment/adjudication. (Barber v.Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See’s Candy Shops, Inc. v.Superior Court (2012) 210 Cal.App.4th 889, 900 [“Summary adjudication is a drasticremedy and any doubts about the propriety of summary adjudication must be resolvedin favor of the party opposing the motion.”].) Plaintiff CVE Contracting Group, Inc. dba Central Valley Environmental (“CVE”)moves for summary adjudication against defendant Disaster Restoration International –DRI, Inc. (“DRI”) of the first, fifth, and sixth causes of action of its first amended complaintfiled October 19, 2022. The motion is unopposed. First Cause of Action: Breach of Contract A cause of action for damages for breach of contract is comprised of thefollowing elements: (1) the existence of a contract, (2) plaintiff’s performance or excusefor nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.(Careau & Co. v. Security Pacific Business Center (1990) 222 Cal.App.3d 1371, 1388.) In the case at bench, plaintiff has established that there is no dispute of materialfact that plaintiff entered into a contract with DRI to perform asbestos and leadabatement. (UMF 4.) CVE performed he scope of work according to the agreement andsubmitted an invoice to DRI for payment. (UMF 9, 12.) DRI breached the agreement byfailing to remit payment of the invoices. (UMF 15.) CVE has been damaged by the breachin the amount of $103,508.04, the principal amount owed on the unpaid invoices. (UMF16.) Defendant submits no evidence to raise a triable issue as to whether it is in breachof the agreement with CVE and has damaged CVE in the principal amount of$103,508.04. Therefore, summary adjudication of the first cause of action against DRI isgranted. Fifth Cause of Action: Open Book Account The elements of an open book account cause of action are: (1) that the plaintiffand defendant had financial transactions, (2) that the plaintiff kept an account of thedebits and credits involved in the transactions, (3) that the defendant owes the plaintiffmoney on the account, and (4) the amount of money that the defendant owes theplaintiff. (State Compensation Insurance Fund v. ReadyLink Healthcare, Inc. (2020) 50Cal.App.5th 422.) Here, plaintiff submits as undisputed fact that is entered into a financial transactionby way of the agreement to pay CVE for the work performed. (UMF 4, 9.) Invoices weresubmitted for each of 25 jobs performed by CVE for DRI, which increased the amountowed by DRI with each invoice. (UMF 11.) The invoices were not paid and there is abalance owed of $103,508.04. (UMF 15, 16.) Defendant submits no evidence to raise a triable issue as to plaintiff’s cause ofaction for open book account. Therefore, summary adjudication of the fifth cause ofaction against DRI is granted. Sixth Cause of Action: Violation of Prompt Payment Statute The “Prompt Payment Statute” serving as the basis for the sixth cause of action isfound at Business and Professions Code section 7108.5 which states, A prime contractor or subcontractor shall pay to any subcontractor, not later than seven days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed the contractor on account of the work performed by the subcontractors, to the extent of each subcontractor's interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the prime contractor or subcontractor to a subcontractor, the prime contractor or subcontractor may withhold no more than 150 percent of the disputed amount.(Bus. & Prof. Code § 7108.5, subd. (a).) The trigger for a violation of the statute is the contractor’s receipt of the progresspayment from its client. (Tesco Controls, Inc. v. Monterey Mechanical Co. (2004) 124Cal.App.4th 780, 803-804.) A violation of the statute results in a penalty of two percent ofthe amount due per month for every month payment is not made. (Bus. & Prof. Code §7108.5, subd. (b).) This penalty is in addition to prejudgment interest. (Morton Engineering& Const., Inc. v. Patscheck (2001) 87 Cal.App.4th 712, 717-718.) Here, plaintiff has established CVE was hired as a subcontractor by DRI anddirected to perform 25 separate abatements, for which DRI received invoices from CVE.(UMF 4-5, 7, 9-12.) DRI did not dispute the invoices received from CVE. (UMF 17.) DRIreceived payment for the abatements completed pursuant to its agreement with aninsurance carrier. (UMF 6, 13.) DRI failed to remit payment to CVE in the amount reflectedin the invoices. (UMF 14-15.) Accordingly, plaintiff has supported its assertion that DRI’sfailure to pay CVE’s invoices after having received payment from the insurance carrierfor the work performed by CVE is in violation of Business and Professions Code section7108.5.) Defendant submits no evidence to raise a triable issue as to plaintiff’s cause ofaction for violations of the prompt payment statute. Therefore, summary adjudication ofthe sixth cause of action against DRI is granted. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: JS on 8/12/2024 . (Judge’s initials) (Date)
Ruling
CHICHEN WANG, AN INDIVIDUAL VS HU QING YU TANG USA INC., A CALIFORNIA CORPORATION, ET AL.
Aug 14, 2024 |23STCV16578
Case Number: 23STCV16578 Hearing Date: August 14, 2024 Dept: 49 Chichen Wang v. Hu Qing Yu Tang USA, Inc., et al. CROSS-DEFENDANTS MOTION FOR ATTORNEYS FEES MOVING PARTY: Plaintiff/Cross-Defendant Chichen Wang RESPONDING PARTY(S): Defendant/Cross-Complainant Hu Qing Yu Tang USA, Inc. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiff Chichen Wang alleges Defendants defrauded him out of more than $8 million in cash and cryptocurrency assets by creating a fake cryptocurrency trading platform disguised as the legitimate platform BitYard. Plaintiff brings causes of action for (1) intentional misrepresentation, (2) aiding and abetting fraud, (3) civil penalties, (4) conversion, (5) aiding and abetting conversion, and (6) common count. Defendant Hu Qing Yu Tang USA, Inc. filed a Cross-Complaint against Plaintiff alleging that Plaintiff, as the agent of the buyer of a watch in China, sent $200,000 to Defendant to purchase the watch. In essence, Defendant alleges this action is Plaintiffs attempt to claw back that money by falsely asserting that Defendants scammed him. On April 19, 2024, this courted granted Plaintiff/Cross-Defendants special motion to strike the Cross-Complaint under the anti-SLAPP statute. Plaintiff/Cross-Defendant now moves to recover his reasonable attorneys fees. TENTATIVE RULING: Cross-Defendants Motion for Attorneys Fees is GRANTED in the requested amount of $19,932.50. Cross-Defendant is to file and serve a proposed judgment consistent with this and the prior rulings of this court. Moving party is ordered to give notice. DISCUSSION: Motion for Attorneys Fees I. Judicial Notice Pursuant to the moving partys request, the court takes judicial notice of its April 19, 2024 Minute Order granting the special motion to strike. (Exh. 1.) II. Legal Standard A prevailing defendant on a special motion to strike shall be entitled to recover its attorneys fees and costs. (CCP 425.16(c)(1).) A party may file a noticed motion for attorney's fees after receiving a successful ruling on the anti-SLAPP motion. (Martin v. Inland Empire Utilities Agency (2011) 198 Cal. App. 4th 611, 631.) The determination of reasonable amount of attorney fees is within the sound discretion of trial courts. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal. App. 4th 1127, 1134.) The determination of what constitutes a reasonable fee generally begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate&. [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award&. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) In setting the hourly rate for an attorney fees award, courts are entitled to consider the rate of fees customarily charged by that attorney and others in the community for similar work. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 997 overruled on other grounds by Lakin v. Watkins Associated Indus. (1993) 6 Cal. 4th 644, 664.) The burden is on the party seeking attorney fees to prove reasonableness of the fees. (Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal. App. 4th 603, 615.) The Court has broad discretion in determining the amount of a reasonable attorney's fee award which will not be overturned absent a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence. (Bernardi v. County of Monterey (2008) 167 Cal. App. 4th 1379, 1393-94. The Court need not explain its calculation of the amount of attorneys fees awarded in detail; identifying the factors considered in arriving at the amount will suffice. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 274-75.) III. Analysis On April 19, 2024, this court granted Cross-Defendant Wangs special motion to strike the Cross-Complaint in its entirety. As such, there is no dispute he is entitled to recover attorneys fees in connection with the successful special motion to strike. In total, Wang seeks $19,932.50 in fees. A. Reasonable Hourly Rate The vast majority of the work in this case was done by Attorney Aaron A. Kupchella. (Kupchella Decl. ¶¶ 2, 3, 4.) Attorney Kupchella has over eleven years of experience as a practicing attorney in Southern California. (Id. ¶ 7.) He billed at a rate of $475 per hour. (Id.) He attests that this hourly rate is reasonable and on par with the prevailing rates in the community for similar work by attorneys with similar experience and qualifications. (Id. ¶ 8.) Attorney Kupchella was assisted by Laura Thomas, an experienced paralegal who spent 1.1 hours proofreading the motion and reply. (Id. 4.) Ms. Thomas billed at a rate of $200 per hour. Here, the court concludes the quoted hourly rates of $475 and $200 are reasonable based on the prevailing rates in the Los Angeles area, the complexity of the case, the quality of services provided, and the respective experiences. B. Hours Reasonably Incurred The fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1133 [emphasis in the original].) Attorney Kupchella attests to billing 38.1 hours in connection with the successful anti-SLAPP motion. (Kupchella Decl. ¶ 2.) In addition, counsel attests to have spent 3.4 hours in connection with the instant motion for attorneys fees. (Id. ¶ 5.) Paralegal Thomas spent 1.1 hours proofreading the anti-SLAPP motion and reply brief. (Id. ¶ 4.) By failing to oppose the motion, Cross-Complainant has not demonstrated that the requested award is unreasonable. "[I]t is the burden of the challenging party to point to the specific items challenged [within the moving partys verified billing invoice], with a sufficient argument and citations to evidence. (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) Here, considering the totality of the circ*mstancesincluding the complexity of the motion, the quality of the work, and the motions successthe court finds the time quoted was reasonable and recoverable. Accordingly, utilizing a lodestar approach, and in view of the totality of the circ*mstances, this court finds and awards the full requested amount of $19,932.50 in attorneys fees. IT IS SO ORDERED. Dated: August 14, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
SOUTH BAY STEEL ERECTORS, A CALIFORNIA CORPORATION VS OCOTILLO LA 9001SMB, LLC., A DELAWARE LIMITED LIABILITY COMPANY, ET AL.
Aug 13, 2024 |22STCV36939
Case Number: 22STCV36939 Hearing Date: August 13, 2024 Dept: 68 Dept. 68 Date: 8-13-24 Case #22STCV36939 (related to 23SMCV00485) Trial Date: 1-21-25 DEPO SUBPOENA MOVING PARTY: Plaintiff, South Bay Steel Erectors RESPONDING PARTY: Defendant, Build Group Construction Company, Inc. RELIEF REQUESTED Motion to Compel Compliance with Deposition Subpoena for Production of Documents SUMMARY OF ACTION On November 22, 2022, South Bay Steel Erectors filed a complaint for Breach Of Contract, Foreclosure Of Mechanics Lien, Enforcement Of Mechanics Lien Release Bond. Enforcement Of Bonded Stop Payment Notice, and Enforcement Of Payment Bond. On March 17, 2023, Plaintiff filed a first amended complaint for Breach Of Contract, Common Counts (Quantum Meruit, Open Book, Account Stated), Foreclosure Under Claim Of Mechanics Lien, Enforcement Of Mechanics Lien Release Bond, Enforcement Of Bonded Stop Payment Notice, Enforcement Of Stop Payment Notice Release Bond, and Enforcement Of Payment Bond. On February 2, 2023, Build Group Construction Company, Inc. filed a complaint against South Bay Steel Erectors for Breach of Contract, Express Contractual Indemnity, and Declaratory Relief. On April 10, 2023, the cases were deemed related with 22STCV36939 deemed the lead case. The cases address a construction project located at 9001 Santa Monica Blvd., West Hollywood. On May 8, 2023, Ocotillo LA 9001SMB, LLC answered the first amended complaint. On May 18, 2023, Build Group Construction Company, Inc. answered the first amended complaint. On November 8, 2023, Plaintiff dismissed Ocotillo LA 9001SMB, LLC, Pacific Western Bank, and Pacific Western National Bank. On May 15, 2024, the court entered the stipulation of the parties for judicial reference. RULING: Off-Calendar or Continued. Request for Judicial Notice: Denied The court cannot take judicial notice of filed documents and/or searches with the California Secretary of State. The items are not reflective of an actual official act of the Secretary of State. (Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483-1484.) Plaintiff South Bay Steel Erectors moves to compel compliance with the Deposition Subpoena for Production of Documents Ocotillo LA 9001SMB, LLC (Ocotillo). Build Group Construction Company, Inc. opposes the motion on behalf of non-party Ocotillo. Plaintiff challenges the lack of any opposition from Ocotillo itself, and challenges the basis of standing by Build Group Construction Company. On May 15, 2024, the court entered the stipulation for judicial reference. An Order Appointing Referee under Code of Civil Procedure section 638 was submitted on July 31, 2024. The subject motion was filed prior the stipulation on April 26, 2024, but it remains unclear whether the order for judicial reference also includes any and all discovery matters, even for third parties (former, now dismissed parties). The court therefore declines to address the motion unless and until the parties clarify the scope of the judicial reference. If the parties agree that all discovery proceeds before the referee, then the court will take the matter off-calendar. If the referral as to the subcontract somehow limits the referral to items completely unrelated to the subject discovery, and the parties require court intervention on discovery, the court will continue the hearing to Friday August 23, 2024, for a hearing on the merits. Plaintiff to give notice.
Ruling
Aug 14, 2024 |23VECV04050
Case Number: 23VECV04050 Hearing Date: August 14, 2024 Dept: F51 AUGUST 13, 2024 DEMURRER AND MOTION TO STRIKE Los Angeles Superior Court Case # 23VECV04050¿ Motion Filed: 04/29/24 MOVING PARTY: Defendants Natalie Davidson and Mark Davidson RESPONDING PARTY: Unopposed NOTICE: OK RELIEF REQUESTED: Defendants Natalie Davidson and Mark Davidson demur to each cause of action in the complaint and move to strike portions of the prayer for relief from the complaint. TENTATIVE RULING: For the reasons stated in the Demurrer, the UNOPPOSED demurrer is SUSTAINED with 20 days leave to amend. The motion to strike is DENIED as MOOT.
Ruling
MARCOS SOTO MENDOZA, AN INDIVIDUAL VS OTONIEL MONTANO, AN INDIVIDUAL
Aug 14, 2024 |23STCV30187
Case Number: 23STCV30187 Hearing Date: August 14, 2024 Dept: 39 TENTATIVE RULING DEPT: 39 HEARING DATE: August 14, 2024 CASE NUMBER: 23STCV30187 MOTION: Demurrer to Complaint MOVING PARTY: Defendant Otonel Montano OPPOSING PARTY: Plaintiff Marcos Soto Mendoza MOTION Plaintiff Marcos Soto Mendoza (Plaintiff) sued Defendant Otonel Montano (Defendant) for habitability violations. Defendant demurs to Plaintiffs complaint. Plaintiff opposes the motion. ANALYSIS It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must liberally construe[] the allegations of the complaint. (Code Civ. Proc., § 452.) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) Defendant argues Plaintiffs complaint is uncertain. Defendants primary focus is on Plaintiffs allegations concerning Defendants alleged breach of the warranty of habitability. Defendants contentions are not well-taken. Plaintiff alleges the unit Defendant rented to Plaintiff was uninhabitable in several ways. (See e.g., Complaint, ¶ 9.) Further, a demurrer based on uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Malys of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 (Khoury); see also Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848 fn. 3 [demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond].) For pleading purposes, Plaintiffs allegations suffice. Defendant may obtain further information regarding Plaintiffs claims through discovery. (Khoury, supra, 14 Cal.App.4th at p.616.) The demurrer is overruled. CONCLUSION AND ORDER Defendants demurrer to Plaintiffs complaint is overruled. Defendant is to serve and file an answer to the complaint within 10 days. Defendant is also ordered to provide notice of this order and to file proof of service of same.
Ruling
HEBEI WANG VS LIQIANG ZHANG
Aug 15, 2024 |23AHCV01330
Case Number: 23AHCV01330 Hearing Date: August 15, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: August 15, 2024 TRIAL DATE: No date set. CASE: HEBEI WANG v. LIQIANG ZHANG, et al. CASE NO.: 23AHCV01330 MOTION FOR RECONSIDERATION MOVING PARTY: Plaintiff Hebei Wang RESPONDING PARTY: Specially Appearing Defendant f*ckian Zhang SERVICE: Filed July 8, 2024 OPPOSITION: Filed August 2, 2024 REPLY: None filed. RELIEF REQUESTED Plaintiff Hebei Wang moves for reconsideration of an order made on June 27, 2024, which granted specially appearing Defendant f*ckian Zhangs motion to quash service of summons on the grounds that she is not the f*ckian Zhang named in the First Amended Complaint. Plaintiff requests the Court to reconsider the decision and to deny Defendants motion to quash. BACKGROUND This is a contractual fraud case. Plaintiff Wang alleges that defendants defrauded Plaintiff on an immigration visa or investment-based immigration project. TENTATIVE RULING The motion for reconsideration is DENIED. LEGAL STANDARD A motion for reconsideration must be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circ*mstances or law are claimed to be shown. (Code Civ. Proc. § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Super. Ct. (2005) 135 Cal.App.4th 206, 213.) The burden under Code of Civil Procedure section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. (Weil & Brown, Cal. Prac. Guide: Civ Proc. Before Trial (The Rutter Group 2023) ¶ 9:328, citing New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212- 213.) The party seeking reconsideration also must provide a satisfactory explanation for failing to present the information at the first hearing, i.e., a showing of reasonable diligence. (Id. at ¶9:329, citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690, and California Correctional Peace Officers Ass'n v. Virga (2010) 181 Cal.App.4th 30, 47, fn. 15 (collecting cases).) Granting a motion to reconsider is improper and in excess of a courts jurisdiction where the new facts were within the moving partys possession at the time of the underlying motion. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-91.) DISCUSSION Here, Plaintiff seeks reconsideration of the June 27, 2024 Minute Order granting a motion to quash by specially appearing Defendant f*ckian Zhang. On the current motion for reconsideration, Plaintiff argues that Zhang is indeed the person Plaintiff is looking for. Plaintiffs new facts are that f*ckian Zhang is the correct person by way of comparing the home addresses of defendants. Plaintiff argues f*ckian Zhang is the adopted daughter of another defendant, Liqiang Zhang, and thus f*ckians evidence in her motion to quasha marriage certificate that shows her biological father is not named Liqiang Zhangdoes not prove that she is not the adopted daughter of Liqiang Zhang. Further, Plaintiff argues that f*ckian Zhangs counsel only allowed Plaintiff to have a short video conference with f*ckian, and due to the internet connection, Plaintiff was unable to see her face clearly to make any conclusion. The opposition states Plaintiff offers no evidence that specially appearing Zhang is not the person who showed up on the video call, and is the f*ckian Zhang adopted by Liqiang Zhang. The court agrees. Specially appearing Zhangs fathers name is Taian Zhang, not Liqiang Zhang. The f*ckian Zhang Declaration states she does not know any of the defendants in this case. Based on the courts review of the declaration of Plaintiff and counsel, the Court finds Plaintiffs have failed to meet their burden under Code Civil Procedure section 1008 to establish the existence of new or different facts along with a satisfactory explanation for the failure to produce the evidence at an earlier time. Accordingly, Plaintiffs motion for reconsideration is DENIED. CONCLUSION The motion for reconsideration is DENIED. Moving Party to give notice. Dated: August 15, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org
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