MEMORANDUM OF LAW IN OPPOSITION (Motion #1) June 05, 2024 (2024)

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FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS (Mot Seq. 001) -----------------------------------------------X MESA UNDERWRITERS SPECIALTY INSURANCE COMPANY, Index No. 534974/2023 Plaintiff, -against- FINBAR DEVELOPMENT LLC and VALENTINA GONOPOLSKAYA, Defendants. -----------------------------------------------X DEFENDANT VALENTINA GONOPOLSKAYA’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ITS DECLARATORY JUDGMENT ACTION Michael H. Zhu, Esq. Harris, Keenan & Goldfarb, PLLC Attorneys for Defendant Valentina Gonopolskaya 233 Broadway, Suite 900 New York, New York 10278 mzhu@mzhulaw.com 1 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 TABLE OF CONTENTS TABLE OF AUTHORITIES...........................................i PRELIMINARY STATEMENT..........................................1 A. Declaratory Judgment Actions in General...................1 B. Plaintiff Failed to Meet its Initial Prima Facie Burden...5 WHEREFORE......................................................7 PRINTING SPECIFICATIONS STATEMENT..............................8 2 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 TABLE OF AUTHORITIES Page(s) Cases Alvarez v. Prospect Hosp., 68 NY2d 320 [1986] ............................................2 Atlantic Mut. Ins. Co. v. Terk Tech. Corp., 309 AD2d 22 [1st Dept. 2003] ..................................4 Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co., 53 AD3d 140 [1st Dept. 2008] ..................................2 BP A.C. Corp. v. One Beacon Ins. Group, 8 NY3d 708 [2007] .............................................4 Broad St., LLC v. Gulf Ins. Co., 37 AD3d 126 [1st Dept. 2006] .................................3 Bustamante v. Westinghouse Elevator Co., 195 AD2d 318 [1st Dept. 1993] .................................6 Campoverde v. Fabian Builders, LLC, 83 AD3d 986 [2d Dept. 2011] ...................................4 DMP Contr. Corp. v. Essex Ins. Co., 76 AD3d 844 [1st Dept. 2010] ..................................3 Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 16 NY3d 257 [2011] ............................................2 Fitzpatrick v. American Honda Motor Co., 78 NY2d 61 [1991] .............................................4 Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire, 143 AD3d 146 [1st Dept. 2016] .................................3 Government Empls. Ins. Co. v. Kligler, 42 NY2d 863 [1977] ............................................2 Lend Lease [US] Constr. LMB Inc. v. Zurich Am. Ins. Co., 136 AD3d 52 [1st Dept. 2015] ..................................3 Platek v. Town of Hamburg, 24 NY3d 688, 3 NYS.3d 312 [2015] ..............................3 Seaboard Sur. Co. v. Gillette Co., 64 NY2d 304 [1984] ............................................3 Sewitch v. LaFrese, 41 AD3d 695 [2d Dept. 2007] ...................................6 Universal Am. Corp. v. National Union Fire Ins. Co., 25 NY3d 675 [2015] .........................................2, 3 Vega v. Restani Constr. Corp., 18 NY3d 499 [2012] .........................................1, 2 William J. Jenack Estate Appraisers & Auct, Inc. v. Rabizadeh, 22 NY3d 470 [2013] ............................................2 Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985] ............................................1 i 3 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 Zuckerman v. City of New York, 49 NY2d 557 [1980] ............................................1 Rules CPLR 3212 ......................................................1 ii 4 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 PRELIMINARY STATEMENT 1. This memorandum of law is submitted by Harris, Keenan & Goldfarb, attorneys of record for defendant Valentina Gonopolskaya in opposition to plaintiff Mesa Underwriters Special Insurance Company’s (“Mesa”) motion for summary judgment on it declaratory judgment action declaring that it has no obligation to provide coverage to Finbar Development LLC under the terms of its policy of insurance. 2. Mesa’s contention that the policy of insurance in question does not cover the reported loss because “Finbar used Atlantic as its contractor, not Millennium” (MOL at p. 5) is meritless and belied by the record. A. Declaratory Judgment Actions in General 3. On a motion for summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The motion must be supported by evidence in admissible form (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]), and by the pleadings and other proof such as affidavits, depositions and written admissions (see CPLR 3212). The “facts must be viewed in the light most favorable to the non- moving party” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). 1 5 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 4. Once the movant meets its burden, it is incumbent upon the nonmoving party to establish the existence of material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). If the moving party fails to meet its prima facie burden, the motion will be denied, “regardless of the sufficiency of the opposing papers” (William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475 [2013]; Vega, 18 NY3d at 503). 5. “An insurance policy is a contract between the insurer and the insured [and] the extent of coverage is controlled by the relevant policy terms” (Bovis Lend Lease LMB, Inc. v. Great Am. Ins. Co., 53 AD3d 140, 145 [1st Dept. 2008]). Thus, where a dispute over coverage arises, the court must look to the language in the policy (Fieldston Prop. Owners Assn., Inc. v. Hermitage Ins. Co., Inc., 16 NY3d 257, 264 [2011]). 6. “An insurance agreement is subject to principles of contract interpretation [and] ‘unambiguous provisions of an insurance contract must be given their plain and ordinary meaning’” (Universal Am. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 25 NY3d 675, 680 [2015]; Government Empls. Ins. Co. v. Kligler, 42 NY2d 863, 864 [1977] [same]). 7. “[A] contract is unambiguous if the language was ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of 2 6 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 opinion’” (Broad St., LLC v. Gulf Ins. Co., 37 AD3d 126, 131 [1st Dept. 2006] [internal quotation marks and citations omitted]). Language is considered ambiguous if it is “susceptible of two or more reasonable interpretations” (id.). That said, parties cannot create an ambiguity where none exists (Universal Am. Corp., 25 NY3d at 680). 8. While an insured bears the burden of demonstrating its entitlement to coverage (Platek v. Town of Hamburg, 24 NY3d 688, 694, 3 NYS.3d 312 [2015]), an insurer seeking to invoke a policy exclusion bears the burden of demonstrating that the exclusion applies (Seaboard Sur. Co. v. Gillette Co., 64 NY2d 304, 311 [1984]). 9. An insurer meets this burden by showing “that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case” (Lend Lease [US] Constr. LMB Inc. v. Zurich Am. Ins. Co., 136 AD3d 52, 59 [1st Dept. 2015], affd 28 NY3d 675 [2017]). 10. Generally, any ambiguity in an insurance contract must be resolved in the insured's favor (Gilbane Bldg. Co./TDX Constr. Corp. v. St. Paul Fire & Mar. Ins. Co., 143 AD3d 146, 151 [1st Dept. 2016], affd 31 NY3d 131 [2018]; DMP Contr. Corp. v. Essex Ins. Co., 76 AD3d 844, 846 [1st Dept. 2010] [same]). 3 7 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 11. Furthermore, “it is well settled that an insurer's duty to defend [its insured] is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest a reasonable possibility of coverage” (BP A.C. Corp. v. One Beacon Ins. Group, 8 NY3d 708, 714 [2007]; Fitzpatrick v. American Honda Motor Co., 78 NY2d 61, 63 [1991] [stating that an insurer has a duty to defend even though “facts outside the four corners of those pleadings indicate that the claim may be meritless or not covered”]). However, “[i]f the allegations interposed in an underlying complaint allow for no interpretation which brings them within an insurance policy's provisions, then no duty [on the part of the insurer] to defend exists” (Atlantic Mut. Ins. Co. v. Terk Tech. Corp., 309 AD2d 22, 29 [1st Dept. 2003]). 12. Stated differently, the duty to defend an insured is not triggered, however, “when the only possible interpretation of the allegations against the insured is that the factual predicate for the claim falls wholly within a policy exclusion”. Campoverde v. Fabian Builders, LLC, 83 AD3d 986 [2d Dept. 2011] 13. In this case, there is no dispute Finbar is an “insured” under the MUSIC Policy which expressly limits the coverage to claims arising out of Millennium’s operations or Finbar’s supervision of Millennium’s operations. (MOL at p. 5) 14. Contrary to MUSIC’s assertions, the evidence submitted in its motion does not show “as a matter of law that Millennium 4 8 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 did not work on the project and that there is therefore no coverage under the MUSIC Policy.” (MOL at p. 5) Rather, the evidence submitted raises more question than it answers, warranting a denial of the motion regardless of the sufficiency of the defendant’s opposition papers. B. Plaintiff Failed to Meet its Initial Prima Facie Burden 15. In support of this argument, MUSIC erroneously contends that Finbar’s owner Mr. Piccinni testified “that Finbar’s contractor on the project was Atlantic, not Millennium.” (MOL at p. 5) This is simply not true. 16. Rather Mr. Piccinni testified that he could not understand the question as phrased and asked for it to be rephrased and even after rephrasing the question, it did not lead to an answer establishing that Millennium was not retained as a contractor: Q. Okay. In terms of the familiarity with the project, your company, Atlantic Ocean Construction Incorporated, did it have or does it currently have any involvement whatsoever with the address of 1837 Benson Avenue? A. I don't understand the question. Q. Okay. Can you tell me, please, in terms of 1837 Benson -- I know it's an apartment building. I think you mentioned twenty-one units, three-stories. Has the construction been completed or is it ongoing or something else? A. It's ongoing still. (Exhibit C, 26-27) 17. This exchange reminds us of the adage that “posing the wrong question usually leads to an answer which is less than 5 9 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 enlightening”. Bustamante v. Westinghouse Elevator Co., 195 AD2d 318 [1st Dept. 1993]. A witness is not responsible for answering a question he/she is not asked at a deposition. Mr. Piccinni was never asked whether Millennium worked on this project or was retained by Finbar as a contractor for this project. 18. As if this weren’t enough. Mr. Piccininni actually testified that he retained subcontractors for all the work: Q. Was there a general contractor? A. I’m the superintendent, the owner, and I'm the contractor itself. I sub everything out. (Exhibit C, 42) (emphasis added) 19. This testimony, which was submitted by Mesa as part of its motion-in-chief, destroys Mesa’s contention that Atlantic was the only contractor who performed work at this site. Where a moving party submits documents or evidence that refute its prima facie showing, then the motion must be denied. Sewitch v. LaFrese, 41 AD3d 695 [2d Dept. 2007] (where tenant sued landlord for accumulation of ice and water on the steps, this Court reversed summary judgment for landlord in part because “defendant's submission reveals that a triable issue of fact exists as to whether the defendant had actual knowledge of a recurring condition of ice and water accumulating on the steps, and, thus, whether she may be charged with constructive notice of each specific recurrence of that condition”). 6 10 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 20. While Mr. Piccinni’s testimony is less than pellucid, it is clear that subcontractors were retained to perform all the construction work. More importantly, this testimony does not establish that Atlantic was the only contractor who performed work at this jobsite. Thus, Mesa has failed to eliminate all questions of fact as to whether Millennium was retained to perform work at this project. Accordingly, plaintiff’s motion for summary judgment on its declaratory judgment action must be denied as a matter of law. WHEREFORE, based on the foregoing, this Court should issue an order denying plaintiff’s motion for summary judgment on its declaratory judgment action and issue such other further and different relief as this Court deems just and proper. Dated: New York, NY June 5, 2024 __________________ Michael H. Zhu, Esq. 7 11 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 PRINTING SPECIFICATIONS STATEMENT It is hereby certified pursuant to 22 NYCRR §202.8-b(c) that the foregoing document was prepared on a computer. Type: A proportionally spaced typeface was used as follows: Name of typeface: Courier New Point size: 12 Line spacing: Double Word Count: The total number of words in foregoing document, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, printing specifications statement, or any authorized addendum containing statutes, rules, regulations, etc. is 1503. Dated: New York, New York June 5, 2024 __________________ Michael H. Zhu, Esq. 8 12 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985) 476 N.E.2d 642, 487 N.Y.S.2d 316 64 N.Y.2d 851 Court of Appeals of New York. OPINION OF THE COURT Muriel WINEGRAD et al., Appellants, v. MEMORANDUM. NEW YORK UNIVERSITY MEDICAL The order of the Appellate Division, 104 A.D.2d 748, 480 CENTER, Defendant, N.Y.S.2d 472, should be reversed, with costs, the and individual defendants’ cross motion for summary judgment Joseph Jacobs et al., Respondents. denied, and the case remitted to the Appellate Division for consideration of issues not reached on the appeal to that 200 court. | Feb. 12, 1985. In this action to recover damages for medical malpractice, plaintiffs in a verified complaint and bill of particulars alleged that defendant Jacobs failed to check Mrs. Synopsis Winegrad’s medical history before undertaking to perform Action was brought to recover damages for medical surgery on the tissues surrounding her eyes, and allowed malpractice. The Supreme Court, Special Term, New York administration of anesthesia without checking this history; County, Leonard Cohen, J., denied defendants’ motion for that during the course of this minor surgery she went into summary judgment, and defendants appealed. The shock and developed cardiac arrhythmia; that defendants Supreme Court, Appellate Division, 104 A.D.2d 748, 480 Ross and Pasternack treated her and administered drugs for N.Y.S.2d 472, reversed and dismissed the complaint, and a blood clot and heart condition which were unnecessary plaintiffs appealed. The Court of Appeals held that in and actually were incompatible with her condition; and that medical malpractice action in which the plaintiffs defendant Jacobs wrongfully left the surgery incomplete described certain injuries purportedly caused by negligence after representing to her that it had been completed. of defendants and in which one defendant acknowledged that at least in some part the alleged injury actually In response to plaintiffs’ motion to direct that defendants’ occurred, defendants’ conclusory assertions that they did answers be stricken on account of their failure to appear for not deviate from good and accepted medical practices, with depositions, defendants sought summary judgment, no factual relationship with the alleged injury, did not tendering in support of their cross motion only the brief establish absence of genuine issue of material fact as to affidavit of each asserting that the pertinent medical their liability so as to warrant granting of summary records had been reviewed. Each affidavit further judgment in their favor. contained the following identical paragraph: “I now state with a reasonable degree of medical certainty that I did not Reversed and remitted. deviate from good and accepted medical practices in my treatment of plaintiff, nor did anything I do [sic ] or Procedural Posture(s): On Appeal; Motion for Summary allegedly failed to do proximately cause the plaintiff’s Judgment. alleged injuries. Therefore, I should not have been named as a defendant in the above-entitled action.” Defendant Attorneys and Law Firms Jacobs, in addition, acknowledged that he had attempted to perform a blepharoplasty on plaintiff, which was not *852 ***317 **643 Abraham A. Salm, New York City, for completed since she developed cardiac arrhythmia. In appellants. opposition to the cross motion, plaintiffs submitted only their counsel’s affidavit complaining of defendants’ failure Martin Wendel, Rahway, N.J., for respondents. - to appear for depositions. Special Term granted *853 plaintiffs’ requested relief and denied the cross motion for summary judgment; the Appellate Division reversed and © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 13 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985) 476 N.E.2d 642, 487 N.Y.S.2d 316 dismissed the complaint. defendants to summary judgment (CPLR 3212[b]; cf. Neuman v. Greenstein, 99 A.D.2d 1018, 473 N.Y.S.2d 806, The proponent of a summary judgment motion must make and Pan v. Coburn, 95 A.D.2d 670, 463 N.Y.S.2d 223). a prima facie showing of entitlement to judgment as a Defendants’ cross motion for summary judgment should matter of law, tendering sufficient evidence to eliminate therefore have been denied. any material issues of fact from the case (see, ***318 Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). Failure to make such showing WACHTLER, C.J., and JASEN, SIMONS, KAYE and requires denial of the motion, regardless of the sufficiency ALEXANDER, JJ., concur in memorandum. of the **644 opposing papers (Matter of Redemption MEYER, J., taking no part. Church of Christ v. Williams, 84 A.D.2d 648, 649, 444 N.Y.S.2d 305; Greenberg v. Manlon Realty, 43 A.D.2d Opinion 968, 969, 352 N.Y.S.2d 494). In the appeal before us, plaintiffs have in verified pleadings On review of submissions pursuant to section 500.4 of the described certain injuries purportedly caused by the Rules of the Court of Appeals (22 NYCRR 500.4), order negligence of defendants, and defendant Jacobs has reversed, etc. acknowledged that at least in some part the alleged injury actually occurred. On this record, the bare conclusory assertions echoed by all three defendants that they did not All Citations deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 that the cause of action has no merit so as to entitle End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. - © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2 14 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) 404 N.E.2d 718, 427 N.Y.S.2d 595 counsel), for City of New York, respondent. 49 N.Y.2d 557 Nathan Cyperstein and Alvin P. Bluthman, Brooklyn, for Court of Appeals of New York. Royfost Co., Inc., respondent. Muriel ZUCKERMAN, Plaintiff, v. CITY OF NEW YORK et al., Respondents, New York City Transit Authority, Appellant, et al., Defendant. April 1, 1980. *560 OPINION OF THE COURT JONES, Judge. Synopsis Plaintiff who was injured when she fell at curb near bus We repeat today a precept frequently stated where the stop in city of New York while she was attempting to board moving party has demonstrated its entitlement to summary a bus brought action against city as owner of sidewalk, city judgment, the party opposing the motion must demonstrate transit authority as operator of bus, owner of abutting by admissible evidence the existence of a factual issue property and tenant in abutting property, and all defendants requiring a trial of the action or tender an acceptable excuse cross-claimed against others for indemnification or for his failure so to do, and the submission of a hearsay apportionment. The Supreme Court at Special Term, affirmation by counsel alone does not satisfy this Sidney H. Asch, J., New York County, denied motion by requirement. transit authority for summary judgment, and authority appealed. The Supreme Court, Appellate Division, On April 3, 1975 plaintiff (who is not a party to the present Sandler, J., 66 A.D.2d 248, 413 N.Y.S.2d 657, denied appeal) was injured when she fell at a curb near a bus stop motion by New York City Transit Authority for summary located in the City of New York while she was attempting judgment dismissing cross claims, and city transit authority to board a bus. She thereafter instituted an action against and others appealed. The Court of Appeals, Jones, J., held the city as owner of the sidewalk, the New York City that affirmation of attorney that city transit authority was Transit Authority as operator of the bus, Royfost Co., Inc., negligent and that its negligence caused accident, without the owner of the abutting property, and Harvey’s Seafood personal knowledge, would not preclude summary House, Inc., the tenant in the abutting property. Each **719 judgment in favor of transit authority. of the four defendants cross-claimed against the others, simply asking for indemnification or apportionment of Appellate Division reversed. liability under Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288. Meyer, J., concurred with opinion in which Gabrielli, J., concurred. Because the only basis for liability of the transit authority set out in the complaint was its alleged failure to have Procedural Posture(s): On Appeal; Motion for Summary maintained the sidewalk and curb at the site of the accident Judgment. in a safe condition and its negligence in permitting it to have become dangerous, the transit authority moved for Attorneys and Law Firms summary judgment dismissing plaintiff’s pleading as to it, asserting that it was under no legal obligation to maintain *559 ***596 **718 Kenneth J. Chertoff, Helen R. Cassidy the sidewalk or curb. Agreeing with that contention, on and John A. Murray, Brooklyn, for appellant. June 19, 1977 Supreme Court granted the relief requested. No appeal from that disposition was taken by plaintiff or - Allen G. Schwartz, Corp. Counsel, New York City by any of the other defendants, each of whom had been (Bernard Abel and L. Kevin Sheridan, New York City, of served with notice of the transit authority’s motion. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 15 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) 404 N.E.2d 718, 427 N.Y.S.2d 595 negligence in bus operation to preclude the grant of The transit authority then moved for summary judgment summary judgment. *561 dismissing all cross claims against it, renewing its disclaimer of obligation with regard to sidewalk or curb Because this latter conclusion was error, on this record we maintenance and pointing out that if, as had been do not reach the question **720 whether the Appellate determined on the previous motion for summary judgment, Division’s disposition reflected a proper application of the it owed no duty to plaintiff for the condition of the Dole principle. We recently restated the principles sidewalk, it could owe no obligation of contribution to the applicable to the disposition of motions for summary codefendants. The city opposed the motion on a ground judgment in Friends of Animals v. Associated Fur Mfrs., subsequently abandoned after it had aligned itself with the 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 791-792, position of Royfost, owner of the abutting ***597 390 N.E.2d 298, 299: “To obtain summary judgment it is property. The latter opposed the motion to dismiss by an necessary that the movant establish his cause of action or affirmation of its attorney stating that, although plaintiff’s defense ‘sufficiently to warrant the court as a matter of law complaint alleging liability of the transit authority in directing judgment’ in his favor (CPLR 3212, subd. (b)), predicated on an obligation to maintain the sidewalk and and he must do so by tender of evidentiary proof in curb had been dismissed, in a comptroller’s hearing1 admissible form. On the other hand, to defeat a motion for plaintiff said that as she prepared to enter the bus her foot summary judgment the opposing party must ‘show facts sank into mud at the curb and that this happened because sufficient to require a trial of any issue of fact’ (CPLR the bus did not stop at the curb. The attorney concluded that 3212, subd. (b)). Normally if the opponent is to succeed in the accident was therefore caused by the transit authority defeating a summary judgment motion he, too, must make because its bus did not pull up to the curb and urged that a his showing by producing evidentiary proof in admissible trial with respect to the cross claims should be had because form. The rule with respect to defeating a motion for “(u)pon the trial of the action, which will doubtless entail a summary judgment, however, is more flexible, for the thorough examination of plaintiff and which may entail a opposing party, as contrasted with the movant, may be thorough examination of other witnesses to the occurrence, permitted to demonstrate acceptable excuse for his failure the evidence will doubtless support the view that New to meet the strict requirement of tender in admissible form York City Transit Authority through the negligent and (e. g., Phillips v. Kantor & Co., 31 N.Y.2d 307, 338 reckless operation of its buses particularly with regard to N.Y.S.2d 882, 291 N.E.2d 129; ***598 Indig v. boarding passengers, caused plaintiff to suffer the injuries Finkelstein, 23 N.Y.2d 728, 296 N.Y.S.2d 370, 244 N.E.2d of which she complains.” Nothing accompanied the 61; also CPLR 3212, subd. (f)).” We have repeatedly held attorney’s affirmation. that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to Supreme Court denied the transit authority’s motion for require a trial of material questions of fact on which he rests summary judgment and the Appellate Division, 66 A.D.2d his claim or must demonstrate acceptable excuse for his 248, 413 N.Y.S.2d 657, by a divided court, affirmed, failure to meet the requirement of tender in admissible thereafter granting the transit authority leave to appeal to form; mere conclusions, expressions of hope or our court and certifying the question, “Was the order of the unsubstantiated allegations or assertions are insufficient Supreme Court, as affirmed by this Court, properly (Alvord and Swift v. Stewart M. Muller Constr. Co., 46 made?”2 In affirming the denial of the motion by which the N.Y.2d 276, 281-282, 413 N.Y.S.2d 309, 385 N.E.2d 1238; transit authority sought disposition of all claims asserted Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 against it arising out of plaintiff’s accident the majority of N.Y.S.2d 650, 386 N.E.2d 258; Platzman v. American the court below held that the transit authority might be held Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, liable under the Dole theory to one or more of its 383 N.E.2d 876; Mallad Constr. Corp. v. County Fed. Sav. codefendants by reason of negligence in the operation of & Loan Ass’n, 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 its bus negligence not pleaded nor asserted by plaintiff but N.E.2d 96). suggested by a codefendant for the first time in opposition to the transit *562 authority’s summary judgment motion In this instance the transit authority, the moving party, has despite the summary dismissal of plaintiff’s complaint *563 met its burden by submission of the pleadings in the against the transit authority by which she had sought to action by plaintiff against it together with the final judicial hold it liable for her injuries by reason of alleged dismissal of that action. We turn then to the submission on - negligence in sidewalk and curb maintenance. The court the part of Royfost and the city to determine its sufficiency also concluded that the hearsay affirmation by Royfost’s to defeat the grant of summary judgment to which the counsel was sufficient with respect to the claimed transit authority would otherwise be entitled. This © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2 16 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) 404 N.E.2d 718, 427 N.Y.S.2d 595 consisted only of the bare affirmation of Royfost’s attorney Presiding Justice Murphy’s dissent below (66 A.D.2d, at who demonstrated no personal knowledge of the manner in pp. 267-268, 413 N.Y.S.2d 657), that the failure of the which the accident occurred. Such an affirmation by authority’s bus driver to stop close to the curb could not be counsel is without evidentiary value and thus unavailing found to be a proximate cause of plaintiff’s injury. (Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 500, 398 N.Y.S.2d 1004, 369 N.E.2d 4; I cannot agree, however, to the reasoning of the majority, Israelson v. Rubin, 20 A.D.2d 668, 247 N.Y.S.2d 85, affd. which in my view is a hypertechnical exaltation of form 14 N.Y.2d 887, 252 N.Y.S.2d 90, 200 N.E.2d 774; over substance. That an attorney’s affidavit is insufficient Lamberta v. Long Is. R. R., 51 A.D.2d 730, 379 N.Y.S.2d to put before the court on a motion for summary judgment 139). His speculation as to what would “doubtless” appear facts of which he has no personal knowledge is an at the trial is patently inadequate to establish the existence eminently sound rule well known to the Bar, but it is of a factual issue requiring a trial as to the manner of likewise well known that an affidavit based on operation of the transit authority’s bus. The record contains documentary evidence in an attorney’s possession is no affidavit of plaintiff or of any eyewitness and no probative and sufficient, notwithstanding his lack of transcript of any examination before trial;3 no request was personal knowledge (Getlan v. Hofstra Univ., 41 A.D.2d made for an adjournment of the motion to permit any such 830, 831, 342 N.Y.S.2d 44, app. dsmd. 33 N.Y.2d 646, 348 examination; no identification of the hypothetical “other N.Y.S.2d 554, 303 N.E.2d 72). witnesses to the occurrence”, with an accompanying statement as to the substance of their testimony and The latter rule, moreover, permits use of an attorney’s explanation for failure to submit affidavits from them, was affidavit to put before the court factual data from a proffered. deposition (Dorkin v. American Express Co., 43 A.D.2d 877, 351 N.Y.S.2d 190; see 4 Weinstein-Korn-Miller, N.Y. **721 The affidavit or affirmation of an attorney, even if Civ.Prac., par. 3212.09). Lamberta v. Long Is. R. R., 51 he has no personal knowledge of the facts, may, of course, A.D.2d 730, 379 N.Y.S.2d 139, relied on by the majority, serve as the vehicle for the submission of acceptable is not to the contrary, for it was the conclusory nature of attachments which do provide “evidentiary proof in the restatement rather than the failure to annex the admissible form”, e. g., documents, transcripts. Such an deposition which formed the basis for the ruling in that affidavit or affirmation could also be accepted with respect case. Here, the factual data is set forth in the affidavit as to admissions of a party made in the attorney’s presence. fact, rather than as conclusion (see 66 A.D.2d, at p. 250, In the present instance, however, the attorney was not 413 N.Y.S.2d 657). While it would certainly have been present at the comptroller’s hearing, nor was anyone else better practice to annex the deposition summarized, to on behalf of his client. As to that hearing the attorney was seize upon the failure to do so as the ground for dismissal a total stranger. would appear to be contrary to the practice as presently understood. Thus, there is a failure to tender evidentiary proof in admissible form and no offer of excuse for such failure. In Nor should denial by the Appellate Division of plaintiff’s this circ*mstance it was error to deny the transit authority’s application to supplement the record by annexing the *564 motion for summary judgment on the speculative transcript of the examination before the comptroller be ground that recovery against it on one or more of the cross given significance in view of the acceptance by the claims might be premised on negligent operation of its bus. majority of that court of the attorney’s affidavit as sufficient to present the *565 facts.* To deal with its doing Accordingly, the order of the Appellate Division should be so as an error of law, rather than an unreviewable act of reversed, with costs, and the motion for summary judgment discretion, is needlessly to ignore the realities of litigation granted against all codefendants. practice and to expose attorneys to possible malpractice liability without material benefit to the administration of justice. ***599 MEYER, Judge (concurring). I concur in the conclusion of the majority that the transit COOKE, C. J., and JASEN, WACHTLER and - authority’s motion for summary judgment should have FUCHSBERG, JJ., concur with JONES, J. been granted, but do so on the ground, articulated in © 2024 Thomson Reuters. No claim to original U.S. Government Works. 3 17 of 232FILED: KINGS COUNTY CLERK 06/05/2024 07:20 PM INDEX NO. 534974/2023NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 06/05/2024 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980) 404 N.E.2d 718, 427 N.Y.S.2d 595 MEYER, J., concurs in a separate opinion in which Question certified answered in the negative. GABRIELLI, J., concurs. All Citations **722 Order reversed, with costs, and the motion for

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Ruling

ARMANI MARSALIS GATES, I VS LEMONADE INSURANCE AGENCY, LLC.

Jul 09, 2024 |23STCV05225

Case Number: 23STCV05225 Hearing Date: July 9, 2024 Dept: 45 Superior Court of California County of Los Angeles ARMANI MARSALIS GATES I, Plaintiff, vs. LEMONADE INSURANCE AGENCY, LLC, Defendants. Case No.: 23STCV05225 DEPARTMENT 45 [TENTATIVE] RULING Action Filed: 03/09/2023 [1st Amended Complaint Filed: N/A] Trial Date: 05/27/2025 Hearing date: 07/09/2024 Moving Party: Defendant Lemonade Insurance Agency, LLC Responding Party: N/A - Unopposed Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1) The Court considered the moving papers. Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1), is GRANTED. The Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Responses and the monetary sanctions are due to Defendant within 20 days of this order. Background Armani Marsalis Gates I filed a Complaint on March 9, 2023 alleging breach of contract and intentional infliction of emotional distress. The motion before the Court now is Lemonade Insurance Agency, LLCs (Defendant) Motion to Compel Plaintiffs Responses to Request for Production of Documents, Set 1 (the Motion). No opposition has been filed, and Defendant files a Notice of Non-Opposition. Discussion Legal Standard If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4&(b) The party making the demand may move for an order compelling response to the demand. (c) Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (CCP § 2031.300) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (CCP § 2023.030(a).) Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery. (CCP § 2023.010) Analysis Attached to the moving papers, Defendant provides the Declaration of William A. Hadikusumo (Hadikusumo Decl.) which states that on July 5, 2023, Plaintiff was served by Defendant with Requests for Production of Documents, Set 1. (Hadikusumo Decl., ¶3.) The deadline to provide responses was August 8, 2023 but no responses were provided. On August 9, 2023, Defendant reach out and provided an extension until September 6, 2023, however, no responses were ever received. (Hadikusumo Decl., ¶¶5-9.) Therefore, the Motion is granted, and sanctions are warranted. Sanctions Defense counsel provides the following calculations: · Counsels hourly rate is $240.00 · Counsel spent 5 hours preparing the instant Motion · Counsel anticipates the hearing taking 1 hour · Counsel incurred a filing fee of $60.00 · Counsel requests a total of $1,500.00 Accordingly, the Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Conclusion Defendants Motion to Compel Plaintiffs Responses to Request for Production of Documents (Set 1), is GRANTED. The Court will impose a sanction on Plaintiff, and award said sanction to Defendant in the amount of $1,500.00. Responses and the monetary sanctions are due to Defendant within 20 days of this order. It is so ordered. Dated: July 9, 2024 _______________________ MEL RED RECANA Judge of the Superior Court

Ruling

GOLDRICH KEST, LLC VS CERTAIN UNDERWRITERS AT LLOYD?S, LONDON, ET AL.

Jul 10, 2024 |11/28/2022 |23SMCV03537

Case Number: 23SMCV03537 Hearing Date: July 10, 2024 Dept: N TENTATIVE RULING Plaintiff Goldrich Kest, LLCs Motion to Compel Further Responses from Certain Underwriters at Lloyds of London, Ategrity Specialty Insurance Company and Axis Surplus Lines Insurance Company to Requests for Production (Set One) and Special Interrogatories (Set One) is GRANTED in part. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59 within thirty (30) days of entry of this order. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16, insofar as Defendants have possession of, access to, or control of responsive documents, within thirty (30) days of entry of this order. Plaintiff Goldrich Kest, LLC to give notice. REASONING If a party that has propounded interrogatories or requests for production of documents believes that the responses received are evasive or incomplete, or that an objection to the interrogatories or requests for production of documents is without merit or too general, the propounding party may bring a motion to compel further responses to the interrogatories. (Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a); see also Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189-1190 [motion to compel proper to challenge boilerplate responses].) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories or requests for production of documents. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c).) This timeliness requirement is mandatory, and in some sense may even be considered a matter of jurisdiction, and the Court therefore [has] no power to make an order compelling further answers where the propounding party failed to serve this motion within the statutory time. (Profl Career Colls., Magna Inst., Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 493; see also Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681 [same].) A motion to compel further responses must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (See Code Civ. Proc., §§ 2030.300, subd. (b)(1), 2031.310, subd. (b)(2).) A meet and confer declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.) California Rules of Court, rule 3.1345(a) requires that any motion to compel further responses to discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further. Plaintiff Goldrich Kest, LLC (Plaintiff) moves for further responses to its Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16 and Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59 propounded on Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company (Defendants); for an order requiring Defendants to search for, collect, and produce all documents and electronically-stored information responsive to Requests for Production Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16; and for an order requiring Defendants to provide privilege logs identifying all responsive documents that have been withheld or redacted. Insofar as Plaintiff asks for further responses to its Special Interrogatories (Set One) Nos. 66, 67, 68, 69, 70, 71, 80, 81, 82, 83, 84, and 85, the Court will not order any such responses because those requests were not identified in the notice of motion. The Court also will not consider a request for sanctions that is not stated in the notice of motion. (See Code Civ. Proc., § 2023.040.) The Court has reviewed the requests at issue, as well as Defendants responses to the same, and hereby rules as follows: Defendants shall provide supplemental responses to Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59. Each of the interrogatories seeks discoverable information, specifically, information relevant to Defendants basic business operations, Defendants identification of certain employees involved with the claim at issue, and Defendants process as to the claim at issue. As to Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16, Defendants must provide all documents responsive to these requests, as they, too, seek discoverable information. The Court cannot order Defendants to produce documents which do not exist. However, as to documents possessed by Defendants claims administrator, sub-consultants, and counsel, the Court will not order production of documents possessed by a third party which is not in Defendants possession and for which Defendants do not have access and control. The Court has not considered any supplemental responses here. Accordingly, Plaintiff Goldrich Kest, LLCs Motion to Compel Further Responses from Certain Underwriters at Lloyds of London, Ategrity Specialty Insurance Company and Axis Surplus Lines Insurance Company to Requests for Production (Set One) and Special Interrogatories (Set One) is GRANTED in part. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Special Interrogatories (Set One) Nos. 3, 16, 17, 18, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 57, and 59 within thirty (30) days of entry of this order. Defendants Certain Underwriters at Lloyds, London, Syndicate 4444; Ategrity Specialty Insurance Company; and Axis Surplus Insurance Company shall provide supplemental responses to Plaintiff Goldrich Kest, LLCs Requests for Production (Set One) Nos. 1, 2, 6, 9, 10, 11, 12, 13, 15, and 16, insofar as Defendants have possession of, access to, or control of responsive documents, within thirty (30) days of entry of this order.

Ruling

AARON ROSEN DBA RA CONSTRUCTION VS DAVID MALKA

Jul 09, 2024 |24VECV00152

Case Number: 24VECV00152 Hearing Date: July 9, 2024 Dept: T ROSEN V MALKA 24VECV00152 [TENTATIVE] ORDER: Defendant David Malkas Demurrer to the Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the First Cause of Action for Breach of Oral Contract and OVERRULED as to the Second, Third, Fourth, and Fifth causes of action. Leave to amend is limited to curing the pleading defects identified and not to add new causes of action. The Motion to Strike is DENIED. Introduction The Demurrer and Motion to Strike were filed by Defendant David Malka (Defendant) against the Complaint filed by Plaintiff Aaron Rosen dba RA Construction (Plaintiff). Defendant demurs the entire Complaint and each cause of action (i.e., the first cause of action for breach of oral contract, second cause of action for common counts, third cause of action for common count, fourth cause of action for unjust enrichment, and fifth cause of action for promissory fraud). Defendant also moves to strike exemplary damages allegations in the Complaint. Demurrer Discussion Res Judicata The Court takes judicial notice of the documents attached to the Demurrer: Complaint (Exhibit A), Notice of Settlement of Entire Case (Exhibit B), and Request for Dismissal (Exhibit C) from Los Angeles Superior Court case Aaron Rosen dba RA Construction v. Van Nuys Lofts, LLC, et al., Case Number 22VECV00735 (the Prior Lawsuit). (Evid. Code, 452, subd. (d) [stating that a court may take judicial notice of court records].) Those documents show that Plaintiff settled and then dismissed the Prior Lawsuit without prejudice. (Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714, 718, fn. 3 [stating that a court may take judicial notice of the existence, facial contents, and legal effect of & court records [citations] &].) A dismissal with prejudice following a settlement constitutes a final judgment on the merits. A dismissal with prejudice is the modern name for a common law retraxit. [Citation.] ... Dismissal with prejudice is determinative of the issues in the action and precludes the dismissing party from litigating those issues again. [Citations.] (Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533.) On the other hand, [i]t is established in California that a voluntary dismissal without prejudice is not a judgment on the merits, and, as such, has no claim-preclusive effect upon a later suit. (Gray v. La Salle Bank, N.A. (2023) 95 Cal.App.5th 932, 950.) Since Plaintiffs voluntary dismissal of the Prior Lawsuit without prejudice has no preclusive effect, Defendants Demurrer to the entire Complaint based on res judicata is OVERRULED. First Cause of Action Breach of Oral Contract The Court agrees with Defendant that the first cause of action for breach of oral contract fails to state facts sufficient to constitute a cause of action. Specifically, the Complaint does not allege consideration. Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him. [Citation.] (Speirs v. BlueFire Ethanol Fuels, Inc. (2015) 243 Cal.App.4th 969, 987.) Here, Plaintiff alleges the following. After Plaintiff provided general contractor services pursuant to a written agreement with nonparty Van Nuys Lofts, LLC, and the nonparty refused to pay Plaintiff in breach of the written agreement, Defendant assume[d] [the] responsibility to pay Plaintiff [$100,000] & in a written text message. (Compl., ¶ 10.) Defendants agreement to pay Plaintiff was based on Defendants interest in the property where the construction project took place and the benefit the Defendant received from Plaintiffs work. (Compl., ¶ 10.) Defendant never paid Plaintiff the amount he had promised to pay. (Compl., ¶ 11.) However, those facts do not show what consideration was provided in exchange for Defendants alleged promise to pay Plaintiff $100,000. Plaintiff cannot rely on its past performance to show consideration because [p]ast consideration cannot support a contract. (Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1247.) Accordingly, the demurrer to the first cause of action for breach of oral contract is SUSTAINED WITH LEAVE TO AMEND. Second, Third, and Fourth Causes of Action Common Counts, Account Stated, and Unjust Enrichment Defendant demurs the second, third, and fourth causes of action, arguing that they are barred by the doctrine of res judicata. The Court has found that res judicata argument unpersuasive. Accordingly, the demurrer to the second, third, and fourth causes of action is OVERRULED. Fifth Cause of Action Promissory Fraud Defendant demurs the fifth cause of action, arguing that the Complaint has not alleged intent to defraud. [I]n a promissory fraud action, to sufficiently alleges defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) [F]or the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance. (Ibid.) In other words, the only necessary averment is the general statement that the promise was made without the intention to perform it, or that the defendant did not intend to perform it. [Citation.] (Ibid.) Here, the Complaint alleges that Defendant made a promise to Plaintiff to pay $100,000 for Plaintiffs work, but did not intend to perform the promise when he made it to Plaintiff. (Compl., ¶¶ 22, 23.) That allegation is sufficient to allege intent to defraud. Accordingly, the demurrer to the fifth cause of action for promissory fraud is OVERRULED. Demurrer Conclusion Defendants Demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the First cause of action, and OVERRULED as to the Second, Third, Fourth, and Fifth causes of action. Motion to Strike Discussion Defendant moves to strike the exemplary damages allegations, arguing that Plaintiffs entire Complaint relies on alleged breach of contract. As such, Plaintiffs prayer for exemplary damages is not supported by law. (Motion, p. 5:3-5.) However, [t]he words oppression, fraud, or malice in Civil Code section 3294 being in the disjunctive, fraud alone is an adequate basis for awarding punitive damages. (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 135.) Here, the Court has found that Plaintiff has alleged facts sufficient to constitute the fifth cause of action for promissory fraud. Accordingly, the Motion to Strike is DENIED. IT IS SO ORDERED, CLERK TO GIVE NOTICE.

Ruling

['HERRERA, ADESS ET AL V. ANDERSON, ROB ET AL', 'C D V. COUNTY OF BUTTE ET AL']

Jul 10, 2024 |21CV01931

21CV01931 HERRERA, ADESS ET AL V. ANDERSON, ROB ET ALEVENT: Defendants Nationwide Insurance Company and Allied Property and CasualtyInsurance Company’s Motion for Summary Judgment or, Alternatively, SummaryAdjudicationThe Court finds that there is no triable issue of material fact as to Plaintiffs’ SecondCause of Action for Breach of Contract as Plaintiffs failed to oppose the Motion in thisregard. See, Plaintiff’s Memorandum of Points and Authorities in Support of theOpposition to Motion for Summary Judgment or Alternatively Summary Adjudication atPg. 1, Lines 4-5 [“Plaintiffs do not contend that payment of the drastically underinsuredproperties was bad faith...”]; and see, Undisputed Material Fact Nos. 1-4. As such, theMotion for Summary Adjudication is GRANTED as to the Second Cause of Action forBreach of Contract.Without a breach of contract, there can be no bad faith liability. See Waller v. Truck Ins.Exch. (1995) 11 Cal.4th 1, 36 [the covenant of good faith and fair dealing is “based upon”the contract and has no existence independent of such contract]; Everett v. State FarmGen. Ins. Co. (2008) 162 Cal.App.4th 649, 663 [“Because there was no breach ofcontract, there was no breach of the implied covenant”; 823-24 [where homeownerclaimed to be underinsured, but insurer paid full policy limits, there was no breach ofcontract and therefore no bad faith]; Vulk v. State Farm Gen. Ins. Co. (2021) 69Cal.App.5th 243, 263 [underinsured homeowner had no bad faith claim where he waspaid all benefits due under policy]; and see, Undisputed Material Fact Nos. 1-4. Basedupon the Court’s ruling as to the Second Cause of Action for Breach of Contract, theFirst Cause of Action for Bad Faith likewise fails and the Motion for SummaryAdjudication is GRANTED as to the First Cause of Action for Bad Faith.The evidence presented leads the Court to conclude that there is no triable issue ofmaterial fact in regard to the application of an exception to the general rule that aninsurance agent has no duty to advise an insured on types of coverages or policy limits.Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927; Everett v. State Farm General Ins.Co. (2008) 162 Cal.App.4th 649, 660; Vulk v. State Farm Gen. Ins. Co. (2021) 69Cal.App.5th 243, 254-255; see also Undisputed Material Fact Nos. 24-47. The Motion forSummary Adjudication is GRANTED as to the Third Cause of Action for Negligence andFourth Cause of Action for Negligent Misrepresentation.Plaintiffs do not oppose the Motion as it relates to their punitive damages claim See,Plaintiff’s Memorandum of Points and Authorities in Support of the Opposition to Motionfor Summary Judgment or Alternatively Summary Adjudication at Pg. 1, Line 3 [“Plaintiffswithdraw the request for punitive damages.”] As such, the Motion for SummaryAdjudication is GRANTED as to the Plaintiffs’ claim for punitive damages.Counsel for the Defendants shall submit a form of order consistent with this ruling withintwo weeks.1||2. 22CV01639 C D V. COUNTY OF BUTTE ET ALEVENT: Defendant County of Butte’s Motion to Seal Defendant’s Motion for SummaryJudgment, or in the Alternative, Motion for Summary Adjudication, and AttachedExhibitsThe Motion is unopposed and is granted. The Court will sign the form of order submittedby counsel.

Ruling

Jul 12, 2024 |22STCV13457

Case Number: 22STCV13457 Hearing Date: July 12, 2024 Dept: 17 Superior Court of California County of Los Angeles DEPARTMENT 17 TENTATIVE RULING CBD FRANCHISING, INC. vs. CENTRAL JERSEY DOORS & CLOSETS, LLC Case No.: 22STCV13457 Hearing Date: July 12, 2024 CBD Franchisings motion for reconsideration is DENIED. On 4/21/2022, Plaintiff CBD Franchising, Inc. (Plaintiff or CBD) filed suit against Central Jersey Doors & Closets, LLC, Mary Conway, William Conway, One Day Doors and Closets, Inc., and One Day Enterprises, alleging: (1) breach of written contract; (2) breach of the implied duty of good faith and fair dealing; (3) tortious interference with contractual relations; and (4) unlawful business practices. On 5/21/2024, the Court granted One Day Defendants motion for summary judgment. Now, CBD Franchising moves for reconsideration of that ruling. Discussion CBD Franchising argues that the Court should reconsider its MSJ ruling because it was denied the opportunity to respond to the non-compete provision arguments and because there was a good will transfer here within the meaning of Business and Professions Code section 16601. After review, the Court denies the motion for several reasons: First, the Court disagrees that One Day Defendants only raised goodwill arguments in reply, or that CBD Franchising was denied an opportunity to fully respond to these arguments. One Day Defendants opening brief in support of their motion for summary judgment argued that the 2013 Franchise Agreement expressly and repeatedly states that it does not transfer any goodwill. Moreover, CBD was provided a full opportunity to respond in oral argument, and the Court fully considered those arguments in its ruling. Importantly, as noted by One Day Defendants, CBDF argued for the first time at the May 9, 2024, hearing on the One Day Defendants motion for summary judgment that the 2013 Franchise Agreement (1) transfers a license to use its goodwill and (2) is part of a series of integrated agreements that includes both the 2016 Asset Purchase Agreement and the 2016 Transfer Agreement. (Opp., 4:10-12.) As such, CBD Franchising itself advanced arguments for the first time at oral argument which it request be considered now. Taken together, the Court fails to find that CBD Franchisings motion is based upon new or different facts, circ*mstances, or law, as a motion for reconsideration must be. (Code Civ. Proc., § 1008, subd. (a).) Second, even setting aside the fact that reconsideration is not appropriate given the lack of new or different facts or law, the Court reaches the same conclusion as to the merits for several reasons: First, Section 16601 provides that a person who sells the goodwill of a business. . . may agree with the buyer to refrain from carrying on a similar business within a specified geographic area. (Bus & Prof. Code, § 16601, italics added.) Here, there was no evidence submitted to show that the Conways, as sellers, sold the goodwill of a business to CBDF as buyer. Rather, CBDF argues that it licensed its goodwill to the Conways via the 2013 Franchise Agreement; that the Conways assigned goodwill to DenMatt Industries via the 2016 Asset Purchase Agreement; and that the Conways, with CBDFs consent, assigned their license to use CBDFs goodwill to DenMatt Industries via the 2016 Transfer Agreement. As such, there is no evidence that the Conways ever sold their goodwill, or that they did so with CBDF agreeing as a buyer to refrain from carrying on a similar business within a specified geographic area. Indeed, the 2013 Franchise Agreement expressly states that it does not transfer the ownership of any goodwill, whether associated with CBDFs proprietary marks or otherwise, such that a franchisee could never sell any goodwill following the termination or expiration of the agreement: Following the termination or expiration of this agreement, no monetary amount will be attributable to any goodwill associated with your use of the Proprietary Marks or operation of the franchised Business or Closets By Design Location, include any local goodwill. (MSJ C.E. Ex. 9, p. 130 2013 Franchise Agreement at p. 42, § 15.01.) The Northern District of Californias decision in Scott v. Snelling and Snelling, Inc. (N.D. Cal. 1990) 732 F.Supp. 1034 supports this interpretation. In Scott, the plaintiff-franchisor argued that section 16601 applied because a franchise agreement is akin to a sale of goodwill in a business. (Id. at p. 1041.) The Northern District disagreed, and instead found that a franchisor simply does not sell its goodwill to the franchisee but instead, consistent with the terms of a license, only agrees that the franchisee may benefit from the goodwill for a specified period of time. (Id.) Given that distinction, the court rejected the plaintiff-franchisors argument that section 16601 applied, noting that the position that a franchisor sells its goodwill by entering into a franchise agreement while retaining its ownership of the goodwill is patently untenable. (Id. at p. 1041, fn. 9.) As applied here, CBDF, as a franchiser, never sold any goodwill to the Conways, and thus the Conways never owned any goodwill to sell. Third, the Court maintains that the 2013 Franchise Agreement, 2016 Asset Purchase Agreement, and 2016 Transfer Agreement are not integrated agreements that should be read together. Civil Code section 1642 provides that [s]everal contracts relating to the same matters, between the same parties, and made as part of substantially one transaction, are to be taken together. (Civil Code, § 1642.) But, here, the three referenced agreements do not relate to the same matters, are not between the same parties, and were not made as part of substantially one transaction. As noted by One Day Defendants: - The three agreements were signed at different times over a more than three-and-a-half-year period: the Conways signed the 2013 Franchise Agreement in December 2012; signed the 2016 Asset Purchase Agreement over three years later in March 2016; and signed the 2016 Transfer Agreement five more months later in August 2016. - The three agreements relate to three distinct transactions: the Conways sought a franchise relationship via the 2013 Franchise Agreement; sold and assigned assets to DenMatt Industries via the 2016 Asset Purchase Agreement; and transferred their post-termination rights, duties, and obligations under the 2013 Franchise Agreement to DenMatt Industries via the 2016 Transfer Agreement. - The three agreements were not signed by the same parties: neither CBDF nor DenMatt Industries signed the 2013 Franchise Agreement, and CBDF did not sign the 2016 Asset Purchase Agreement. - And the three agreements do not each reference the other: the 2013 Franchise agreement does not reference the 2016 Asset Purchase Agreement or the 2016 Transfer Agreement; the 2016 Asset Purchase Agreement does not reference the 2016 Transfer Agreement; and the 2016 Transfer Agreementwhich CBDF calls the most important document in the transaction and references as the agreement that binds all three agreements together (Recons. Mot. 7, 17)does not even reference the 2016 Asset Purchase Agreement. (Opp., 7:6-16.) Moreover, even assuming the three referenced agreements were integrated agreements that should be read together, that does not mean that they were merged into one contract. (Mountain Air Enters., LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 759, noting that while it is the rule that several contracts relating to the same matters are to be construed together (citing Civ. Code, sec. 1642), it does not follow that for all purposes they constitute one contract.) And even if the contracts to be read as one, there is still nothing which would show a sale of the goodwill of a business to CBDF, as required to fall within the scope of the section 16601. Based on the foregoing, CBDFs motion for reconsideration is denied. It is so ordered. Dated: July , 2024 Hon. Jon R. Takasugi Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. For more information, please contact the court clerk at (213) 633-0517.

Ruling

LGP EQUIPMENT RENTALS, INC. VS LAGD PROPERTIES LLC, ET AL.

Jul 10, 2024 |21STCV33926

Case Number: 21STCV33926 Hearing Date: July 10, 2024 Dept: 45 Superior Court of California County of Los Angeles LGP EQUIPMENT RENTALS, INC., a California Corporation, Plaintiff, vs. LAGD PROPERTIES LLC, a California limited liability company; 1st DESIGN AND DEVELOPMENT, a California Corporation; RAMON ROMERO, an individual dba SOUTHERN CALI CONSTRUCITON; L.A. GREEN DESIGNS, an unknown form of entity; and DOES 1 through 100, inclusive, Defendants. Case No.: 21STCV33926 DEPARTMENT 45 [TENTATIVE] RULING Action Filed: 09/14/21 1ST Amended Complaint Filed: 07/17/23 Trial Date: None set. Hearing date: 07/10/2024 Moving Party: Plaintiff LGP Equipment Rentals, Inc. Responding Party: Defendant 1ST Choice Design and Development Motion to Compel Initial Responses to Request for Production of Documents, Set One and Request for Sanctions in the Amount of $3,000.00 The Court considered the moving, opposition, and reply papers. The motion is GRANTED. Recommendation: Grant, Defendant is ordered to serve responses to Requests for Production, Set One without objections within 20 days of this order. Defendant and Defense Counsel are also ordered to pay monetary sanctions jointly and severally in the amount of $750.00 to Plaintiff through its counsel of record. Reason: Plaintiff served Requests for Production, Set One, on December 18, 2023. To date, the Defendant has not served any responses. However, Defendant argues that after a diligent search, it was unable to locate the documents it initially believed it had. Defendants counsel states [w]hen I was corresponding with Plaintiffs counsel, I was unaware that the documents did not exist and based on discussions with my Client we both believed the documents did exist but eventually Defendant was unable to locate them after a diligent search. (Diefenbach Decl. ¶ 8; See also Innabi Decl. ¶ 5, Ex. C.) Moreover, Tony Holder, the principal and owner of Defendant 1st Choice Design & Development states Defendant is ultimately unable to produce the documents because the project file was taken from a former employee who worked as the project manager for both projects, Mr. Alberto Dominguez. (Holder Decl. ¶ 2.) Mr. Holder further states [t]he records that 1st Choice did have that were not lost at the project site were lost when 1st Choice changed office locations in approximately June of 2021 . . . 1st Choice does not have any responsive documents in its custody and control that it can make available for production. I initially believed the project documents existed but was unable to locate them after a diligent search and realized that Mr. Dominguez was in charge of the documents and then other documents were lost during a move. (Id. at ¶¶ 4-6.) Nevertheless, the Court notes Defendant fails to provide any evidence for its speculations of the former employee taking the records. Therefore, the Court should grant the motion under CCP section 2031.300 and impose the reasonable amount of $750.00 (1.5 hours at $500 per hour) in monetary sanctions on the Defendant and Defense Counsel, jointly and severally. Other Notes: There is a discrepancy as to the sanction amount requested. In the moving papers, Plaintiff seeks $3,000.00 in sanctions. However, in the reply papers, Plaintiff seeks $2,000.00 in sanctions. It is so ordered. Dated: July 10, 2024 _______________________ MEL RED RECANA Judge of the Superior Court

Ruling

BOGHOS TOVMASSIAN, ET AL. VS HIPPOS INSURANCE SERVICE, ET AL.

Jul 12, 2024 |23STCV10128

Case Number: 23STCV10128 Hearing Date: July 12, 2024 Dept: 32 BOGHOS TOVMASSIAN, et al., Plaintiffs, v. HIPPO INSURANCE SERVICES, et al., Defendants. Case No.: 23STCV10128 Hearing Date: July 12, 2024 [TENTATIVE] order RE: defendants motion for summary judgment BACKGROUND On May 5, 2023, Plaintiffs Boghos Tovmassian and Marguerite Tovmassian filed this action against Defendants Hippo Insurance Services (Hippo), Spinnaker Insurance Company (Spinnaker), and Patrick Hix, alleging (1) breach of insurance contract, (2) breach of the covenant of good faith and fair dealing, and (3) elder abuse. According to the complaint, Plaintiffs own a home located in Tujunga, California (the Property). (Compl. ¶ 1.) The Property was insured by a homeowners insurance policy issued by Hippo, which is owned and underwritten by Spinnaker. (Ibid.) In December 2021, the Property suffered wind and water intrusion, leading Plaintiffs to make a claim. (Ibid.) Plaintiffs allege that Defendants failed to conduct a full and fair investigation, which resulted in an insufficient payout. (Id., ¶ 3.) On April 25, 2024, Hippo and Spinnaker filed the instant motion for summary judgment. Plaintiffs have not filed an opposition. LEGAL STANDARD The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) DISCUSSION I. Hippos Liability a. Plaintiffs Had No Contract with Hippo To establish breach of contract, a plaintiff must show: (1) the contract existed, (2) the plaintiffs performance of the contract or excuse for nonperformance, (3) the defendants breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A plaintiff cannot assert a claim for breach of contract against one who is not a party to the contract. (Tri-Continent Internat. Corp. v. Paris Savings & Loan Assn. (1993) 12 Cal.App.4th 1354, 1359.) It is undisputed that the policy was issued by Spinnaker, with Hippo as the program administrator. (Def.s Undisputed Facts (UF) 1; Carden Decl., Ex. A.) The policy was signed by Spinnakers CEO. (Ibid.) Therefore, Hippo has satisfied its initial burden by showing that it was not a party to the policy with Plaintiffs. This is sufficient to shift the burden to Plaintiffs, who do not oppose the motion or present any contrary evidence. Accordingly, Hippo is not liable for breach of contract as a matter of law. b. Hippo Cannot be Liable for the Implied Covenant The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other partys right to receive the benefits of the agreement actually made. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-50.) In the absence of a contractual relationship, no implied covenant claims may be stated. (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 430.) As discussed above, Hippo has established that it had no contractual relationship with Plaintiffs. Accordingly, Plaintiffs cannot maintain an implied covenant claim against Hippo. c. Hippo Cannot be Liable for Elder Abuse Financial abuse of an elder or dependent adult occurs when a person or entity does any of the following: takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (Welf. & Inst. Code, § 15610.30.) Hippo could not have wrongfully retained Plaintiffs property (i.e., the insurance proceeds) if it was not a party to the policy and did not have any obligation to pay Plaintiffs. Therefore, the elder abuse claim fails as a matter of law. II. Spinnakers Liability a. The Claims are Time-Barred Under California law parties may agree to a provision shortening the statute of limitations, qualified, however, by the requirement that the period fixed is not in itself unreasonable or is not so unreasonable as to show imposition or undue advantage. (William L. Lyon & Associates, Inc. v. Superior Court (2012) 204 Cal.App.4th 1294, 1307, quoting Capehart v. Heady (1962) 206 Cal.App.2d 386, 388.) [A] covenant shortening the period of limitations is a valid provision of an insurance contract and cannot be ignored with impunity as long as the limitation is not so unreasonable as to show imposition or undue advantage. (Prudential-LMI Com. Ins. v. Superior Court (1990) 51 Cal.3d 674, 683.) One year was not an unfair period of limitation. (Ibid.; see also Ins. Code, § 2071(a) [imposing one-year limitations period for fire insurance claims].) The statute of limitations for actions on insurance claims is equitably tolled from the time the insured notifies the insurer of the claim until coverage is denied. (Marselis v. Allstate Ins. Co. (2004) 121 Cal.App.4th 122, 124.) The reason for the tolling rule is to avoid penalizing the insured for the time consumed by the insurer investigating the claim. (Id. at p. 125.) The running of the limitations period resumes upon the insurers denial of a claim, and no further tolling occurs, even if the insurer reconsiders its denial. (Singh v. Allstate Ins. Co. (1998) 63 Cal.App.4th 135, 142.) Here, the insurance policy provides that [n]o action can be brought against us unless . . . the action is started within one year after the date of loss. (Carden Decl., Ex. A.) The loss occurred on December 30, 2021. (Compl. ¶ 1.) Plaintiffs reported the loss to Spinnaker on January 8, 2022. (Carden Decl. ¶ 4, Ex. B.) Spinnaker issued notice of its coverage position on January 27, 2022, granting coverage on certain items and denying the rest. (Id., ¶ 5, Ex. C.) Plaintiffs did not file this action until May 5, 2023, well past the one-year limitations period, even accounting for the tolling period between January 8, 2022 and January 27, 2022. Spinnakers reopening of the claim on May 17, 2022 based on Plaintiffs request for reconsideration (Carden Decl. ¶13) did not further toll the limitations period. Therefore, Spinnaker has met its initial burden by establishing that the claims are time-barred.[1] This is sufficient to shift the burden to Plaintiffs, who do not oppose the motion or present any contrary evidence. Accordingly, Spinnaker is not liable as a matter of law. b. Spinnaker Did Not Breach the Policy There can be no breach of the insurance policy . . . [where] the undisputed evidence established that [the insurer] paid all amounts due under the policy. (Janney v. CSAA Ins. Exchange (2021) 70 Cal.App.5th 374, 390.) Here, the policy covered direct physical loss to property. (Carden Decl., Ex. A.) Spinnaker covered damage to the first-floor flooring, the only part of the Property directly damaged by the water intrusion. (Carden Decl. ¶ 14, Ex. F.) Spinnaker declined to cover the undamaged stairs and second-floor flooring. (Ibid.) Spinnaker issued payment for the covered portions. (Id., ¶¶ 5-6, Ex. C, D.) Spinnaker has met its initial burden by showing that it satisfied its obligations under the policy. This is sufficient to shift the burden to Plaintiffs, who do not oppose the motion or present any contrary evidence. Accordingly, Spinnaker is not liable for breach of contract as a matter of law for this independent reason. c. Spinnaker Could Not Have Breached the Implied Covenant [A] bad faith claim cannot be maintained unless policy benefits are due. (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1153.) Spinnaker could not have acted in bad faith if it correctly denied policy coverage. Furthermore, as discussed above, the claim is time-barred. Therefore, the implied covenant claim fails as a matter of law. d. Spinnaker Could Not Have Committed Elder Abuse Likewise, Spinnaker could not have wrongfully retained insurance benefits if it correctly denied them, and the claim is time-barred in any case. Therefore, the elder abuse claim fails as a matter of law. CONCLUSION The motion for summary judgment filed by Hippo and Spinnaker is GRANTED. [1] This applies to all three causes of action, not just breach of contract, because the policy states that no action may be brought outside one year. The policy does not restrict the limitations period to claims on the policy itself. Furthermore, where the essence of [a] claim[] is an attempt to recover [d]amages for failure to provide benefits under subject contract of insurance, the claim is fundamentally a claim on the policy and is thus time barred under the limitations period stated in the policy. (Magnolia Square Homeowners Ass'n v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1063, quoting Lawrence v. Western Mutual Ins. Co. (1988) 204 Cal.App.3d 565, 575.)

Ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. VS. MICAHEL Y. HUANG et al

Jul 09, 2024 |CGC11509296

Matter on the Law & Motion Calendar for Tuesday, July 9, 2024, Line 1. PLAINTIFF STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.'s HEARING ON CLAIM OF EXEMPTION. The judgment debtor's claim of exemption is denied. The levying officer is directed to release all sums held to the judgment creditor for payment on the judgment. The levying officer shall withhold $220 per pay period ($440 per month) from debtor's earnings and pay that sum to the judgment creditor. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court will execute a judicial council form of order repeating the tentative if it adopts the tentative ruling. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

LIEL LEVI VS KEYES HYUNDAI OF VAN NUYS, AN ENTITY, ET AL.

Jul 10, 2024 |23VECV02505

Case Number: 23VECV02505 Hearing Date: July 10, 2024 Dept: T Levi v Keyes 23VECV02505 Tentative rulings Defendants motion to strike First Amended Complaint-GRANT. The opposition was not considered because plaintiffs counsel was to provide a declaration from Saniel Sanft attaching a copy of the overnight mail receipt, and proof of delivery or status of delivery (he stated in his 5/10/2024 proof of service that it was served by overnight delivery.). He failed to do so, and defense denies receiving the opposition. By court order of 2/7/2024, the first amended complaint was to be served and filed no later than 20 days. Because notice was given by the court by mail, an additional 5 days were added, which would make the due date 3/4/2024. It was not served until 3/13/2024 and not filed until 3/14/2024 after the answer had been filed. Therefore, the First Amended Complaint was late, and it is disregarded. The ruling on the demurrer as to the original complaint stands: Defendants Hyundai Motor America and Van Nuys-H, Inc. dba Keyes Hyundai of Van Nuyss Demurrer to the Complaint is OVERRULED as to the eighth cause of action; SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the second cause of action; and SUSTAINED WITHOUT LEAVE TO AMEND as to the fourth, fifth, seventh, tenth, twelfth, and thirteenth causes of action. The Answer to the Complaint filed on 3/13/2024 stands. Plaintiffs Demurrer to Answer: SUSTAINED WITH 20 DAYS LEAVE TO AMEND THE ANSWER. Plaintiff may demur to an answer, particularly as to affirmative defenses. (Timberidge Enterps., Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879; see Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 535 [proper vehicle to test the sufficiency of an answer].) The affirmative defenses must do more than set forth bare legal conclusion. Affirmative defenses must specify supporting facts. (FPI Devel., Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) Allegations stating a legal conclusion (rather than pleading facts) are inadequate. (Berger v. California Ins. Guar. Assn. (2005) 128 Cal.App.4th 989, 1006; Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.) Here, the court finds that the demurrer is justified because there are no factual allegations supporting the bare legal conclusions. The demurrer is sustained with 20 days leave to amend. The Second Affirmative Defense at page 19, lines 3-6, is uncertain in that it cannot be ascertained what was the improper conduct of Plaintiff, and what applicable statutes required notice: Sustained as to lack of facts which is alleged to have been improper conduct. The Sixth Affirmative Defense is uncertain in that on page 19, line 26, it cannot be ascertained who are the persons or entities other than Defendants, nor can it be ascertained how, when, or in what manner such persons or entitles were reckless, careless and/or negligent: Sustained. No facts identified. The Twelfth Affirmative Defense fails to allege facts sufficient to state a defense; Sustained. No facts alleged. The Twelfth Affirmative Defense is uncertain in that on page 21, line 18, it cannot be ascertained what the statutory requirements were: Sustained. No facts alleged. The Fourteenth Affirmative Defense fails to allege facts sufficient to state a cause of action; Sustained. No facts alleged. The Fourteenth Affirmative Defense is uncertain in that on page 21, lines 26-28, it cannot be ascertained how, when, or in what manner there was either a release or a settlement; Sustained. No facts alleged. The Twentieth Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-First Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-Second Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Twenty-Fifth Affirmative defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Second Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Third Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged. The Thirty Fourth Affirmative Defense is uncertain in that on page 25 lines 24- 25, it cannot be ascertained in what action or proceeding was there a prior class action settlement, nor can it be ascertained how, when or in what manner, Plaintiff was given notice so as to prevent his being opted out: Sustained. No facts alleged. 14. The Thirty Sixth Affirmative Defense fails to allege facts sufficient to state a defense: Sustained. No facts alleged.

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Leeding Builders Group Llc,, Lm Insurance Corporation, Liberty Mutual Fire Insurance Co. v. Ramos Xalcuaco Camilo

Jul 03, 2024 |Commercial - Insurance |Commercial - Insurance |518153/2024

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