Jason M. Israel Vs. Samantha N. Israel

Case Number: 23STCV23239 Hearing Date: September 4, 2024 Dept: 73 9/04/2024 Dept. 73 Hon. Rolf Treu, Judge presiding WESCO INSURANCE COMPANY v. SANCHEZ ( 23STCV23239 ) Counsel for Plaintiff/moving party: Timothy Aires (Aires Law Firm) Counsel for Defendant: None REQUEST FOR ENTRY OF DEFAULT JUDGMENT ( filed 6/06/2024) TENTATIVE RULING Plaintiffs request for default judgment is GRANTED. I. BACKGROUND On September 26, 2023, Plaintiff Wesco Insurance Company filed the instant action against Defendant Jerry Selvin Sanchez individually and dba Swish Cleaning Services. The Complaint alleges three causes of action for breach of contract. Plaintiff alleges it provided Defendant with Workers Compensation and Employers Liability Insurance coverage in 2020, 2021, and 2022. Plaintiff performed an audit on the three policies and found the premium basis estimate provided by the Defendant was inaccurate. Plaintiff alleges that Defendant is obligated to pay the actual audited total premium and fees, but Defendant has refused to make further payments. On April 18, 2024, default was entered against Defendant. On May 8, 2024, Plaintiff filed a Request for Default Judgment. The Court denied Plaintiffs request without prejudice for failure to correctly fill out JC Form CIV-100. On June 6, 2024, Plaintiff again filed a Request for Default Judgment. Plaintiff seeks judgment against Defendant in the total amount of $59,586.84, consisting of the amount demanded in the complaint of $52,367.00, $6,659.84 in interest and $560.00 in costs. II.DISCUSSION A. Legal Standard CCP § 585 permits entry of a judgment after a Defendant has failed to timely answer after being properly served. A party seeking judgment on the default by the Court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys fees if allowed by statute or by the agreement of the parties. (CRC Rule 3.1800.) B. Application SUBMITTED : CRC 3.1800 1. Use of JC Form CIV-100 Yes 2. Dismissal or judgment of non-parties to the judgment Yes 3. Declaration of non-military status for each defendant Yes 4. Summary of the case Yes 5. 585(d) declarations/admissible evidence in support Yes 6. Exhibits (as necessary) Yes 7. Interest computation (as necessary) Yes 8. Cost memorandum Yes 9. Request for attorney fees (Local Rule 3.214) N/A Damages Summary : Damages $ 52,367.00 Punitive Damages N/A Interest $ 6,659.84 Attorneys fees N/A Costs $ 560.00 TOTAL $ 59,586.84 Other relief requested N/A Here, Plaintiff complied with all requirements for a default judgment. Plaintiff submitted the declaration of James Buller, the Vice President of Cash Operations for AmTrust North America, Inc., the operating company for Wesco Insurance Company. (Buller Decl., ¶ 2.) Buller provided a summary of the case, attached the invoices showing the payments due, provided a computation of interest and attested to the costs. Buller states that Plaintiff seeks judgment of $59,586.84. (Buller Decl., ¶ 17.) Since Plaintiff has complied with the requirements, Plaintiffs request for default judgment is GRANTED. III. CONCLUSION Plaintiffs request for default judgment is GRANTED.

Case Number: 24STCV10201 Hearing Date: September 6, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: September 6, 2024 Case Name: Northland THEA LLC, et al. v. Morales, et al. Case No.: 24STCV10201 Matter: Non-Appearance Case Review Re: Default Judgment Ruling: The Default Judgment Application is denied without prejudice. Plaintiffs to give notice. The default judgment application is denied without prejudice because a declaration has not been submitted by the client establishing their damages. There is a declaration provided by counsel, but it is not apparent how counsel has personal knowledge of the matters discussed therein. Plaintiffs to give notice.

Case Number: 24STCV07531 Hearing Date: September 3, 2024 Dept: 73 09/03/2024 Dept. 73 Hon. Rolf Treu, Judge presiding CANCINO v. J & J SNACK FOODS CORP. OF CALIFORNIA ( 24STCV07351 ) Counsel for Plaintiff/opposing party: Brent Marlis (The Work Justice Firm) Counsel for Defendant/moving party: David Prager (Nixon Peabody LLP) DEFENDANTS motion to compel arbitration ( filed 05/24/2024) TENTATIVE RULING The Court GRANTS Defendants motion to compel arbitration. Pursuant to CCP section 1281.4, all proceedings are STAYED pending the outcome of arbitration. BACKGROUND On March 22, 2024, Plaintiff Joaquin Cancino filed this action against Defendant J & J Snack Foods Corp. of California. The Complaint alleges the following causes of action: 1. Age Discrimination; 2. Hostile Work Environment; 3. Retaliation in Violation of FEHA; 4. Failure to Prevent Harassment, Retaliation, or Discrimination; 5. Whistleblower Retaliation Lab Code 1102.5; 6. Whistleblower Retaliation Lab Code 98.6; 7. Whistleblower Retaliation Lab Code 6310; and 8. Wrongful Termination in Violation of Public Policy The Complaint alleges the following. On or about 2017, Plaintiff began his employment with Defendants as a Sanitation Manager. At the time of his termination, Plaintiff regularly worked over fifty (50) to sixty (60) hours per week and earned $80,000 per year. At the time of his termination, Plaintiff was seventy-seven (71) years old. He was the oldest employee at his location. Starting around 2022, Defendants hired a new plant manager, Steve Salie (Mr. Salie) who became Plaintiffs supervisor. Soon after Mr. Salie became Plaintiffs supervisor, he began to retaliate and discriminate against Plaintiff due to his age. On or about November 6, 2023, Defendants terminated Plaintiff telling him he had not met performance expectations. On May 24, 2024, Defendant filed the instant Motion to Compel Arbitration arguing: · The FAA governs the arbitration agreement · Plaintiff signed the attached arbitration agreement, which provides for arbitration of disputes arising out of Plaintiffs employment with Defendants. o On May 25, 2017, Plaintiff personally and physically hand-signed, dated, and executed the Arbitration Agreement. (Silva Decl., ¶ 7, Ex. A.) o Because Plaintiff only brings employment-related claims, he is required to arbitrate all the claims asserted in the Complaint. · The Arbitration Agreement Delegates Any Questions Of Enforceability To The Arbitrator o The arbitrator has sole authority to determine questions of arbitrability because the parties clearly and unmistakably delegated this determination in the Agreement by expressly providing such language in the Arbitration Agreement and by further incorporating the AAA and JAMS Rules. · The arbitration agreement satisfies Armendariz requirements · The Court should compel Plaintiff to attend arbitration and stay proceedings. In opposition, Plaintiff contends: · The Court has jurisdiction to deny Defendants motion as the delegation clause is not clear and unmistakable and the delegation clause is unconscionable · The Arbitration Agreement as a whole is also unconscionable In reply, Defendant argues: · Plaintiff does not dispute he signed the agreement · The delegation clause is enforceable o The Delegation Clause Clearly and Unmistakably Delegates Arbitrability o Plaintiff fails to show the delegation clause is unconscionable · The Agreement should be enforced and any concerns regarding arbitrability including Plaintiffs claim that the agreement is unconscionablemust be raised with the arbitrator as the parties agreed. ANALYSIS A. Legal Standard A written agreement where the parties agree to arbitration is valid, enforceable and irrevocable unless there is a contract defense. (C.C.P. § 1281.) On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.¿¿(C.C.P. § 1281.2.) ¿ [T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence&¿¿( Giuliano v. Inland Empire Personnel, Inc.¿ (2007) 149 Cal.App.4th 1276, 1284.)¿¿In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.¿¿( Weeks v. Crow¿ (1980) 113 Cal.App.3d 350, 353.) To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.¿( Titolo¿v. Cano¿ (2007) 157 Cal.App.4th 310, 316.) Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.¿( California Correctional Peace Officers¿ Ass'n ¿v. State¿ (2006) 142 Cal.App.4th 198, 205.)¿¿ ¿¿ There is strong public policy in favor of both arbitration of disputes and resolving any doubts concerning the scope of arbitrable disputes in favor of arbitration.¿( Moncharsh ¿v.¿Heily¿&¿Blase¿ (1992) 3 Cal.4th 1, 9.) Arbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question.¿¿( Vianna¿v. Doctors Management Co. ¿(1994) 27 Cal.App.4th 1186, 1189.)¿ B. Applicability of the Federal Arbitration Act As an initial matter, Defendant asserts the Federal Arbitration Act (FAA) applies here. The general rule is that the FAA governs all agreements to arbitrate in contracts involving interstate commerce.¿¿( Higgins v.¿Superior Court¿ (2006) 140 Cal.App.4th 1238, 1247.) The term involving commerce is broad and is indeed the functional equivalent of affecting commerce.¿¿( Allied-Bruce Terminix Companies, Inc. v. Dobson ¿(1995) 513 U.S. 265, 27374.)¿ Defendant argues the FAA applies, because Defendant J&J is a national wholesale distributor of branded snack foods to foodservice and retail supermarket outlets in the United States, Mexico, and Canada. (Silva Decl., ¶ 2.) J&J has customers all over the country and therefore its business involves or affects interstate commerce. Plaintiff does not dispute the application of the FAA in his opposition. Thus, the Court finds the FAA applies to the arbitration agreement here. C. Existence of an Agreement to Arbitrate The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code of Civ. Proc. § 1281.2.) Defendant presents an executed arbitration agreement (the Agreement) that is applicable to Plaintiffs claims. (Silva Decl., ¶ 7, Ex. A.) The Agreement states, in relevant part: Claims Covered By the Agreement : J&J Snack Foods Corp. of California, and of its related entities and subsidiaries (the Company) and Joaquin Cancino (the Employee) mutually consent to the resolution by arbitration of all claims or controversies (claims), past, present or future, whether or not arising out of the Employees employment (or its termination), that the Company may have against the Employee or that the Employee may have against the Company or against its officers, directors, employees, or agents in their capacity as such or otherwise. The only claims that are arbitrable are those that, in the absence of this Agreement, would have been justiciable under the applicable state or federal law. The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (express or implied); torts claims; claims for discrimination, harassment, or retaliation (including, but not limited to, race, color, citizenship, sex, sexual orientation, religion, national origin, age, marital status, genetic predisposition, or medical condition, handicap or disability)&. Voluntary Agreement: THE EMPLOYEE AND THE COMPANY ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT, THAT THEY UNDERSTAND ITS TERMS, THAT ALL UNDERSTANDINGS AND AGREEMENT BETWEEN THE COMPANY AND THE EMPLOYEE RELATING TO THE SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT THEY HAVE ENTERED INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATION BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF. THE EMPLOYEE AND THE COMPANY FULLY UNDERSTAND AND ACKNOWLEDGE THAT BY SIGNING THIS AGREEMENT, THEY ARE NOT ONLY AGREEING TO SUBMIT TO THE ARBITRATION PROCESS AS CONTAINED HEREIN, BUT THEY ARE SURRENDERING THEIR RIGHT TO PURSUE STATUTORY CLAIMS, AS WELL AS CLAIMS COVERED BY UNDER ANY STATUTORY LAW AND OTHER CLAIMS THAT ARE COVERED BY THIS AGREEMENT, IN COURT, INCLUDING THEIR RIGHT TO A TRIAL BEFORE A JUDGE OR JURY. (Silva Decl., ¶ 7, Ex. A, p. 1, 7.) Here, Plaintiff alleges causes of action for: (1) Age Discrimination; (2) Hostile Work Environment; (3) Retaliation in Violation of FEHA; (4) Failure to Prevent Harassment, Retaliation, or Discrimination; (5) Whistleblower Retaliation Lab Code 1102.5; (6) Whistleblower Retaliation Lab Code 98.6; (7) Whistleblower Retaliation Lab Code 6310; and (8) Wrongful Termination in Violation of Public Policy. Since these claims arose out of Plaintiffs employment with Defendant, and the Agreement states that the employee agrees that any claim arising out of the employment relationship or termination of employment relationship shall be subject to binding arbitration, the Agreement encompasses all of Plaintiffs claims against Defendants. (Silva Decl., ¶ 7, Ex. A, p. 1.) Accordingly, Defendant has met its burden of showing that a valid agreement to arbitrate exists between the parties. D. Enforceability of Delegation Clause Next, the parties dispute as to whether the Agreement delegates any questions of enforceability to the arbitrator. The enforceability of an arbitration agreement is generally determined by the court. (See Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891; Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781.) However, parties may agree to arbitrate gateway questions of arbitrability such as the enforceability of an arbitration agreement and whether claims are covered by the arbitration agreement. (See Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 68-69; Aanderud , supra, 13 Cal.App.5th at 891-92; Ajamian , supra, 203 Cal.App.4th at 781.) To establish this exception, it must be shown by clear and unmistakable evidence that the parties intended to delegate the issue to the arbitrator. ( Ajamian , supra, 203 Cal.App.4th at 781 (citing First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944).) There are two prerequisites for a delegation clause to be effective. ( Aanderud , supra, 13 Cal.App.5th at 892 (quoting Tiri v. Lucky Changes, Inc. (2014) 226 Cal.App.4th 231, 242).) First, the language of the clause must be clear and unmistakable. ( Id. ) Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability. ( Id. ) a. Language of the Delegation Clause The requirement that the language of the delegation clause be clear is straightforward. The law presumes that a delegation to an arbitrator of enforceability issues is ineffective absent clear and unmistakable evidence that the parties intended such a delegation. [Citations.] ( Tiri v. Lucky Changes, Inc. (2014) 226 Cal.App.4th 231, 242.) Defendant argues the Agreements delegation clause clearly and unmistakably delegates arbitrability. Here, the Agreement provides in relevant part: The Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability or formation of this Agreement . . . . (Silva Decl., Ex. A, p. 6.) The Company and the Employee agree that, except as provided in this Agreement, the arbitration shall be in accordance with the AAAs then-current employment arbitration procedures (if AAA is designated)& or the then-current J.A.M.S. employment arbitration rules (if J.A.M.S. is designated)& (Silva Decl., Ex. A, p. 5.) Plaintiff argues that the agreement does not clearly and unmistakably delegate the issue of arbitrability to an arbitrator because even if a delegation clause expressly delegates arbitrability, other provisions of the agreement that create uncertainty over arbitrability renders an explicit delegation clause ineffective. ( Baker v. Osborne Development Corp. (2008) 159 Cal. App. 4th 884, 891.) First, Plaintiff asserts that the following provision in the agreement creates uncertainty: Judicial Review : Either party may bring an action in any court of competent jurisdiction to compel arbitration under this agreement and to enforce an arbitration award. (Silva Decl., Ex A, p. 8). The Court does not find this provision creates uncertainty. This provision allows either party to bring a motion to compel arbitration in court as provided by Code of Civil Procedure section 1281.2, however, this provision does not create ambiguity as to who decides the issues of arbitrability. Plaintiff does not cite to any authorities in support of his argument. Thus, the Court does not find this provision creates uncertainty. Next, Plaintiff argues the severability clause creates uncertainty: Construction : If any provision of this agreement is adjudged to be void or otherwise unenforceable, in whole or part, such adjudication shall not affect the validity of the remainder of the agreement. (Silva Decl., Ex A, p. 9). Plaintiff argues this clause is ambiguous because it is silent as to the whether the Court or arbitrator will adjudicate whether a clause will be severed from the agreement. In support, Plaintiff cites to the severability provisions in Baker v. Osborne Development Corp. (2008) 159 Cal. App. 4th 884, 891 and Parada v. Superior Court (2009) 176 Cal. App. 4th 1554, 1565, 1566. However, the Court finds these cases are inapposite because the severability provision in Baker and Parada indicated that a court or a trier of fact can rule on issues of arbitrability. ( Ibid .) Here, the provision does not utilize those terms and does not create ambiguity as to whether an arbitrator can determine arbitrability issues. Plaintiff also argues arbitrability is not delegated through the incorporation of AAA or JAMS rules. Plaintiff relies on Mondragon v. Sunrun Inc. (2024) 101 Cal.App.5th 592 in support. However, the Court does not find Plaintiffs argument persuasive as there was no express delegation clause in Mondragon . Here, there is an express delegation clause in addition to the incorporation of AAA or JAMS rules. Thus, the Court does not find the delegation clause is uncertain on this basis. Accordingly, the Court finds that the delegation clause is clear and unmistakable. The delegation clause expressly and unambiguously states that the arbitrator shall have exclusive authority to resolve any dispute relating to the enforceability of the Agreement. b. Unconscionability of the Delegation Clause Rent-A-Center ¿acknowledges that while courts may consider enforceability challenges¿ specific to delegation clauses, ¿the arbitrator is to consider challenges to the arbitration agreement as a whole. ( Tiri v. Lucky Chances, Inc. ¿(2014) 226 Cal.App.4th 231, 240 (emphasis in original).) [A]ny claim of unconscionability must be¿ specific to the delegation clause . ( Id. at 244.) [T]he core concern of unconscionability doctrine is the absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. [Citation.] The doctrine is meant to ensure that contracts, particularly contracts of adhesion, do not impose terms that are overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one sided. [Citation.] The analysis begins with an inquiry into whether the contract is one of adhesion. [Citation.] The term [contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. [Citation.] If the contract is adhesive, the court must then determine whether other factors are present which, under established legal ruleslegislative or judicialoperate to render it [unenforceable]. [Citation.] [U]nconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. [Citation.] The prevailing view is that [procedural and substantive unconscionability] must¿ both ¿be¿present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. [Citation.] But they need not be present in the same degree. . . . [T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. [Citation.] [B]y the use of a sliding scale, a greater showing of procedural or substantive unconscionability will require less of a showing of the other to invalidate the claim. [Citation.] The party opposing arbitration has the burden of proving unconscionability. [Citation.] ( Id. at 243-244.) In Plaintiffs opposition, he asserts that the delegation clause is procedurally unconscionable because it is embedded in a contract of adhesion. Plaintiff contends the clause is buried within another provisions within the same paragraph, organized such a way to conceal rather than highlight the delegation provision. However, the Court notes that Plaintiff fails to argue that the delegation clause is substantively unconscionable. Procedural and substantive unconscionability must both be present to find unconscionability, and any claim of unconscionability must be¿ specific to the delegation clause . ( Tiri, supra , 226 Cal.App.4th at 244 (emphasis in original).) Therefore, the Court finds Plaintiff has not established that the delegation clause is unconscionable. In sum, the Court finds the delegation clause is enforceable. Thus, Plaintiffs argument that the Arbitration Agreement is unconscionable must be raised with the arbitrator. Accordingly, the Court GRANTS Defendants motion to compel arbitration. Pursuant to CCP section 1281.4, all proceedings are STAYED pending the outcome of arbitration. E. Conclusion For these foregoing reasons, the Court GRANTS Defendants motion to compel arbitration. Pursuant to CCP section 1281.4, all proceedings are STAYED pending the outcome of arbitration.

Case Number: 24STCV03266 Hearing Date: September 3, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT AMIDI PARTNERS, LLC, Plaintiff, vs. HUB CITIES CONSORTIUM, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 24STCV03266 [TENTATIVE] ORDER SUSTAINING IN PART AND OVERRULING IN PART DEMURRER Dept. 48 8:30 a.m. September 3, 2024 On February 7, 2024, Plaintiff Amidi Partners LLC filed this action against Defendant Hub Cities Consortium, A Joint Powers Agency formed under California Gov. Code Section 6500 et. seq. The Complaint alleges (1) breach of contract; (2) common count open book account; (3) breach of implied covenant of good faith and fair dealing; (4) fraud; (5) negligence; and (6) declaratory relief. On April 8, 2024, Defendant filed a demurrer. Defendants request for judicial notice is granted. A demurrer for sufficiency tests whether the complaint states a cause of action. ( Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. A. Plaintiffs Claims Are Not Facially Untimely. Defendant argues that Plaintiffs November 2, 2022, and December 7, 2022 letters were not valid claims and do not comply with the California Tort Claims Act requirements, making Plaintiffs claims untimely. Defendant is a joint powers authority established in 1988 pursuant to a Joint Exercise of Powers Agreement . . . . In essence, HCCs legal entity status is that of a public agency. (Demurrer at p. 5; RJN, Ex. A.) Before bringing an action for damages against a public entity, a plaintiff must present the public entity with a written claim. (Gov. Code, § 945.4.) Claims other than those relating to injury to person or to personal property must be presented to the public entity within one year of accrual. (Gov. Code, § 911.2, subd. (a).) In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. ( Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) On November 2, 2022, Plaintiff delivered a letter demanding that Defendant pay $98,653.99 per month for the holdover period, plus updated invoices for August, September, and October of 2022, reflecting an owed amount totaling $ 150,095.50. (Complaint ¶ 33.) On December 7, 2022, Plaintiff delivered another letter with a demand for holdover rent of $269,199.60. (Complaint ¶ 35.) According to Defendant, these letters cannot be valid claims because they improperly include a dollar amount, in violation of Government Code section 910. (Demurrer at p. 5.) [A] claim is a notice which complies with sections 910 and 910.2, and a claim may be defective when it fails to substantially comply with section 910. ( Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 707.) The Complaint does not attach the letters, so the Court cannot determine on demurrer whether Plaintiffs letters substantially comply with the claim requirements. Defendant also argues that it sent a February 17, 2023 Rejection of Claim, so Plaintiff was required to file its lawsuit no later than August 17, 2023. (Demurrer at pp. 6-7; see Complaint ¶ 39.) With certain exceptions, an action against a public entity on a cause of action for which a claim must be presented must be commenced not later than six months after written notice rejecting the claim is delivered to the claimant personally or deposited in the mail. ( County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267-1268; see Gov. Code, § 945.6, subd. (a).) However, Plaintiff also delivered a November 2,2023 notice after Defendants rejection. (Complaint ¶ 40.) The Court cannot determine on demurrer, without evidence, whether the later claim relates back and is barred. (See Demurrer at pp. 6-7.) The demurrer is overruled on this ground. B. Plaintiff Does Not Properly Allege Fraud (Fourth Cause of Action). Defendant argues that Plaintiff cannot allege a fraud claim against it. (Demurrer at pp. 7-8.) A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional. (Gov. Code, § 818.8.) The Complaint alleges that during its holdover tenancy, Defendant made representations about being willing to enter into amendments to the lease and when its tenancy would end. (See Complaint ¶¶ 14, 16-28.) Defendant repeatedly made false promises and misleading statements about the possibility and/or feasibility of their continued tenancy at the Subject property and about the duration of their desired tenancy. (Complaint ¶ 43.) Defendant made misrepresentations with the intent and purpose of cheating and defrauding [Plaintiff] and with the intent to wrongfully interfere with, hinder, delay, obstruct, and prevent [Plaintiff] from leasing the Subject Property to other tenants. (Complaint ¶ 71; see Complaint ¶ 69 [Defendant falsely and fraudulently, and with the intent to wrongfully interfere with and prevent [Plaintiffs] ability to lease the Subject Property to other tenants.].) As a result, Plaintiff was induced to, and did, incur additional expense, loss, and damage in attempting to lease the Subject Property to other tenants. (Complaint ¶ 74.) Plaintiff suffered lost profits, the loss of the use and benefit in the Subject Property, incurred out of-pocket costs and expenses, and reputational harm. (Complaint ¶ 75.) Plaintiff argues that it clearly indicated that [its] Fraud claim is a Contractual Fraud claim. (Opposition at p. 8.) Because Defendant misrepresented facts relating to a term and/or modification of a term within a valid, existing contractual agreement . . . Plaintiffs Fraud claim should be interpreted as contractual rather than tortious in nature. ( Ibid. ) In Plaintiffs cited case, the complaint alleged an action based on a contract because it sought recission and restitution due to a unilateral and concealed mistake that induced the plaintiff to enter into the contract. ( Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 322.) The alleged fraud here arises from Defendants subsequent misrepresentations after and outside of the contract. As pleaded, this cause of action is based in fraud, not contract, and is barred by Government Code section 818.8. The demurrer to the fourth cause of action is sustained. C. Plaintiff Does Not Properly Allege Negligence (Fifth Cause of Action). Defendant argues that the cause of action for negligence is an attempt to smuggle in a cause of action for negligent interference with economic relations, which cannot be asserted against a public agency, and it is another attempt to allege fraud. (Demurrer at pp. 8-9.) Plaintiff alleges that Defendant breached their duty of reasonable care by, including but not limited to, making false promises and misrepresentations that [Defendant] reasonably knew or should have known were false, and for numerous acts, omissions, defaults and breaches as alleged throughout this Complaint. (Complaint ¶ 79.) Plaintiff was damaged because it has not received monies due to it under the Lease. (Complaint ¶ 80.) The alleged negligence is in fact fraud: making false promises and misrepresentations. The other alleged negligence (defaults and breaches) appears to be an allegation of breach of contract. The demurrer to the fifth cause of action is sustained. D. Conclusion The demurrer to the fourth and fifth causes of action is SUSTAINED with 30 days leave to amend. The demurrer is otherwise overruled. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 3rd day of September 2024 Hon. Thomas D. Long Judge of the Superior Court

Case Number: 23AHCV01732 Hearing Date: September 4, 2024 Dept: X MOTION TO STRIKE Defendants Jackie Lubrano, Jake Zacuto, and Zacuto Group, Inc. ( collectively, Defendants or Zacuto Defendants) move to strike the punitive damages allegation and prayer for relief in Plaintiffs first amended complaint pursuant to Code of Civil Procedure sections 435, 436, and 437. Defendants' motion to strike the punitive damages allegation and prayer for relief is GRANTED as to Defendant Zacuto Group, Inc. and DENIED as to Defendants Jackie Lubrano and Jake Zacuto. LEGAL STANDARD A judge may, on a motion to strike made under Code of Civil Procedure section 435 or at any time at the judges discretion, strike out any irrelevant, false, or improper matter in a pleading, on terms the judge deems proper. (Code Civ. Proc., § 436, subd. (a).) A motion to strike may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. ( Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145; Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696.) In ruling on a motion to strike punitive damages, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. ( Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. ( College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) As set forth in the Civil Code, (1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud, or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) When nondeliberate injury is charged, allegations that the defendants conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. ( G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Punitive damages are not ordinarily recoverable in actions for negligence. ( Ibid. ) Punitive damages are only recoverable if the plaintiff establishes oppression, fraud, or malice, as defined by Civil Code section 3294(c). DISCUSSION Zacuto Defendants move to strike the allegation of punitive damages against it in paragraph 40 at 9:21 of the FAC. That is, Zacuto Defendants from the sentence: The Sellers and Zacuto Defendants actions were both oppressive and malicious within the meaning of California Civil Code § 3294 in that they subjected the Plaintiffs to cruel and unjust hardship in willful and conscious disregard of the Plaintiffs rights, thereby entitling Plaintiffs to an award of punitive damages. Also, to strike the Prayer for Relief on page 11, paragraph 3: For punitive damages according to proof[.] Defendants argument centers around their contention that the FAC is devoid of facts to support a conclusion that their alleged conduct was malicious, willful, or oppressive as required by Civil Code section 3294. Under California law, a real estate broker may act as a dual agent for both the seller and the buyer in a real estate property transaction, provided both parties consent to the arrangement after full disclosure. (Civ. Code, §§ 2079.14, 2079.16.) To that end, the law requires brokers to disclose whether they are acting as dual agents and to inform the parties that a broker acting as a dual agent owes fiduciary duties to both buyer and seller. (Civ. Code, § 2079.16.) However, it is not enough to disclose only the fact of dual representation. The agent must also disclose all facts which would reasonably affect the judgment of each party in permitting the dual representation. [Citation.] ( Huijers v. DeMarrais (1992) 11 Cal.App.4th 676, 686 [decided under similar former law].) Defendants admit they dually represented Plaintiffs and Sellers for the subject transaction in 2021. (Memorandum of Points and Authorities, p. 9.) The motion argues Plaintiff only made conclusory allegations that she is entitled to punitive damages without stating facts supporting a finding of malice, oppression, or fraud. The Court disagrees. The FAC claims that Sellers and Zacuto Defendants obtained an inspection report after a physical inspection of the Property in 2016, and the report showed significant water intrusion, previous flooding, and leak and building envelope failures. (FAC, ¶ 33.) Plaintiffs, in the FAC and in opposition, argue Defendants owed a fiduciary duty to Plaintiffs while they represented Plaintiffs during the transaction. (FAC, ¶ 35.) The FAC alleges Plaintiffs relied upon the Zacuto Defendants regarding their decision to purchase the Property, based on Defendants experience and expertise, and that Defendants breached their fiduciary duties by failing to advise Plaintiffs about the defects in the Property. ( Ibid. ) Had Plaintiffs been informed of the defects, they would not have purchased the Property. ( Ibid. ) Defendants argue the allegations lack the requisite specificity and particularity throughout the FAC and the allegations amount to nothing more than a general breach of fiduciary duty claim, involving no conduct upon which to base a punitive damages claim against Zacuto Defendants. (Memorandum, pp. 11-12.) Defendants also argue the FAC fails to allege facts demonstrating an agent of Zacuto Group, Inc. authorized or ratified the alleged wrongful conduct of its employees Jake Zacuto and Jackie Lubrano. (Memorandum, p. 12.) As a fiduciary, a real estate broker must disclose to the brokers client all material information that the broker knows or could reasonably obtain regarding the property or relating to the transaction. (CACI 4107.) The facts that a broker must learn, and the advice and counsel required of the broker, depend on the facts of each transaction, the knowledge and the experience of the principal, the questions asked by the principal, and the nature of the property and the terms of the sale. The broker must place himself in the position of the principal and ask himself the type of information required for the principal to make a well-informed decision. ( Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25.) The Court finds the FACs allegations are not vaguePlaintiffs allege sufficient facts. The FAC alleges that Zacuto Defendants knowingly concealed the defects from Plaintiffs. (FAC, ¶¶ 22, 33, 40.) Plaintiff then reasonably relied on these representations in purchasing the Property. (FAC, ¶¶ 26, 27, 35, 47.) Plaintiffs pled with specificity the representations Zacuto Defendants are alleged to have made. Accordingly, the Court finds that Plaintiffs have specifically pled facts to show fraud within the meaning of section 3294 of the Civil Code to justify a claim for punitive damages against Defendants Jackie Lubrano and Jake Zacuto. However, the Court agrees that more facts are required to sustain a claim for punitive damages against Defendant Zacuto Group, Inc. When the defendant is a corporation, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. ( Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code, § 3294(b).) Here, Plaintiffs fail to allege that Defendants Lubrano and Zacuto, or any other employee or agent of Zacuto Group, Inc. was an officer, director, or managing agent of Defendant who perpetrated or ratified the fraudulent conduct Plaintiffs allege. Accordingly, the Court agrees that Plaintiffs fail to plead punitive damages as to Defendant Zacuto Group, Inc. The motion to strike punitive damages as to Defendant Zacuto Group, Inc. is GRANTED WITH LEAVE TO AMEND. The motion to strike as to individual Defendants Jackie Lubrano and Jake Zacuto is DENIED. CONCLUSION Defendants' motion to strike as to Defendant Zacuto Group, Inc. is GRANTED with 10 days leave to amend and DENIED as to Defendants Jackie Lubrano and Jake Zacuto. Moving Party to provide notice.

Case Number: 22STCV21791 Hearing Date: September 6, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND On July 6, 2022, Plaintiffs Abner Blanco Ramirez and Rene Zarate filed this action against Defendants T&T Express Company, Inc., Juan Carlos Lopez (Lopez), Ed Martinez dba Carrera Hauling (Martinez), and Does 1-50 for motor vehicle tort and general negligence. On August 15, 2022, Lopez and Martinez filed an answer. On August 5, 2024, Plaintiffs filed a motion for relief from potential jury trial waiver. The motion was set for hearing on September 6, 2024. On August 23, 2024, Lopez and Martinez filed an opposition. On August 29, 2024, Plaintiffs filed a reply. Trial is currently scheduled for December 9, 2024. PARTIES REQUESTS Plaintiffs ask the Court to grant relief from potential jury trial waiver. Lopez and Martinez ask the Court to deny the motion. LEGAL STANDARD Code of Civil Procedure section 631 provides in part: (a) The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f). * * * (f) A party waives trial by jury in any of the following ways: * * * (5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee. * * * (g) The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury. (Code Civ. Proc., § 631, subds. (a), (f)(5), (g).) The right to a jury trial is a basic and fundamental part of our system of jurisprudence . . . In case of doubt, therefore, the issue should be resolved in favor of preserving a litigants right to trial by jury. (R. Fairbank et al., Cal. Practice Guide: Civil Trials and Evidence (Rutter 2022) ¶ 2:311, p. 2-68 (Cal. Practice Guide), quoting Byram v. Superior Court (1977) 73 Cal.App.3d 648, 652; see Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 958 [any ambiguity or doubt concerning the waiver provisions of section 631 must be resolved in favor of according to a litigant a jury trial ].) While the matter is discretionary, it is well settled that, in light of the public policy favoring trial by jury, a motion to be relieved of a jury waiver should be granted unless, and except, where granting such a motion would work serious hardship to the objecting party. (Cal. Practice Guide, supra , ¶ 2:317, pp. 2-69 to 2-70, quoting Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809.) Stated differently, The Court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver. ( Id . at p. 2-70, quoting Gann v. William Bros. Realty, Inc . (1991) 231 Cal.App.3d 1698, 1704.) DISCUSSION Plaintiffs inadvertently waived their right to a jury trial by posting jury fees after the deadline. The waiver was unintentional. Lopez and Martinez argue that the case is complex and a judge is better suited than a jury to decide issues of liability, causation, and credibility. Lopez and Martinez also argue that they will be prejudiced by a jury trial because they will incur more litigation costs and attorneys fees than they would incur if the case proceeds as a bench trial. In California, juries are regularly asked to decide important and complicated issues. Also, [t]he prejudice which must be shown to justify [denial of relief from jury trial waiver] is prejudice from granting relief from the waiver, as opposed to prejudice from a jury trial. (Cal. Practice Guide, supra , ¶ 2:320, p. 2-70.) The Court finds that granting Plaintiffs relief from waiver of a jury trial will not prejudice the other parties. The Court exercises its discretion to grant the motion. CONCLUSION The Court GRANTS the motion for relief from jury trial waiver filed by Plaintiffs Abner Blanco Ramirez and Rene Zarate. Moving parties are ordered to give notice of this ruling. Moving parties are ordered to file the proof of service of this ruling with the Court within five days.

Case Number: 22TRCV00563 Hearing Date: September 4, 2024 Dept: 8 Tentative Ruling HEARING DATE: September 4, 2024 CASE NUMBER: 22TRCV00563 CASE NAME: Ocean Recovery, LLC v. Sullivancutrismonroe, et al. MOVING PARTY: Defendants, Scottsdale Insurance Company and Nationwide Mutual Insurance Company RESPONDING PARTY: Plaintiff, Ocean Recovery, LLC (No Opposition) TRIAL DATE: Not Set. MOTION: Motion for Summary Judgment, or in the alternative, Summary Adjudication Tentative Rulings: GRANTED. I. BACKGROUND A. Factual On July 8, 2022, Plaintiff, Ocean Recovery, LLC (Plaintiff) filed a complaint against Sullivan Curtis Monroe Insurance Services, LLC (SCM), and Scottsdale Indemnity Company (collectively Defendants). On July 13, 2022, Plaintiff filed an amended complaint. On February 22, 2023, Plaintiff filed a Second Amended Complaint. On July 31, 2023, Plaintiff filed a Third Amended Complaint (TAC). On February 21, 2024, Plaintiff filed a Fourth Amended Complaint (4AC). On April 18, 2024, Plaintiff filed a Fifth Amended Complaint (5AC) alleging causes of action for: (1) Breach of Contract; (2) Breach of the Implied Covenant of Good Faith and Fair Dealing; and (3) Professional Negligence. On June 13, 2024, Defendants, Scottsdale Insurance Company (Scottsdale) and Nationwide Mutual Insurance Company (Nationwide) filed a Motion to Seal and/or Redact portions of the Motion for Summary Judgment, or in the alternative, Summary Adjudication and to seal Exhibit A in support thereof. On July 12, 2024, this Court granted that motion. Now, the Motion for Summary Judgment, or in the alternative, Summary Adjudication that was the issue of the above motion now comes for hearing. B. Procedural On June 13, 2024, Moving Defendants Scottsdale and Nationwide filed a Motion for Summary Judgment or, in the alternative, Summary Adjudication. To date, no opposition brief has been filed. II. ANALYSIS ¿ A. 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.) CCP Section 437(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. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) 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.)¿ 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.) B. Discussion Moving Defendants, Scottsdale and Nationwide, move for summary judgment or, in the alternative, summary adjudication, on the grounds that they claim Plaintiffs first cause of action for breach of contract fails because there is no coverage for the underlying lawsuit under the insurance policy that Scottsdale issued to Plaintiff. Further, they also move for summary judgment or, in the alternative, summary adjudication, on the grounds that because they argue that there is no coverage for the underlying lawsuit under the insurance policy, Plaintiffs second cause of action for breach of the implied covenant of good faith and fair dealing and claim for punitive damages also fail as a matter of law. In addition, the Moving Defendants argue that Nationwide did not issue the policy to Plaintiff and never owed any duties, contractual or otherwise, to Plaintiff. i. Breach of Insurance Contract First, Moving Defendants argue that they are entitled to summary judgment because the lawsuit for which Plaintiff is seeking coverage is excluded from coverage under the insurance policy that Scottsdale issued to Plaintiff, and because the policy did not contain Employment Practices Liability (EPL) coverage at the time the Underlying Action was filed. An insured can pursue a breach of contract theory against its insurer by alleging the insurance contract, the insured's performance or excuse for nonperformance, the insurer's breach, and resulting damages. ( San Diego Housing Commission v. Industrial Indem. Co. (1998) 68 Cal.App.4th 526, 536.) The complaint must allege the terms of contract that the insurer has breached, either verbatim or according to legal effect.¿( Twaite v Allstate Ins. Co. ¿(1989) 216 Cal.App.3d 239, 252-253.) When an issue of coverage exists, the burden is on the insured to prove facts establishing that the claimed loss falls within the coverage provided by the policy's insuring clause. [Citations.] Once the insured has made that showing, the burden is on the insurer to prove the claim is specifically excluded. ( MRI Healthcare Center of Glendale, Inc. v. State Farm General Ins. Co. (2010) 187 Cal.App.4th 766, 777.) Here, Plaintiff alleges that the companies, including Scottsdale and Nationwide, unequivocally rejected Plaintiffs demand to provide a defense in the Underlying Actions, as the insurance contract provides, therefore materially breaching the terms of the EPLI Policy by refusing to provide policy benefits and by continuing to withhold privacy benefits now due and payable under the policies term namely, a defense in the Underlying Action. (Fifth Amended Complaint (5AC), ¶¶ 23-24.) However, Moving Defendants explain that there is no coverage for the Underlying Action under the Original Policy, which included only a D & O Coverage Section, because the Underlying Action alleges, is based upon, or in any way involves any employment or employment-related matters brought by or on behalf of or on the right of an employee of Plaintiff and, therefore, is barred by the EP Exception. (SSUMF Nos. 7, 12.) Moving Defendants have attached a copy of the Original Policy to the Declaration of Paul Tomasi (Tomasi Decl.) as exhibit D. (Tomasi Decl., ¶ 7, Ex. D.) In the Original Policy, the D&) Coverage Section contained three insuring clauses stating: (1) Scottsdale Insurance shall pay the Loss of the Directors and Officers for which the Director and Officers are not indemnified by Ocean Recovery and which the Directors and Officers have become legally obligated to pay by reason of a Claim first made against the Directors and Officers during the Original Policy Period or, if elected, the Extended Period, and reported to Scottsdale Insurance pursuant to Section E(1) for any Wrongful Act taking place prior the end of the Original Policy Period; (2) Scottsdale Insurance shall pay the Loss of Ocean Recovery for which Ocean Recovery has indemnified the Directors and Officers and which the Directors and Officers have become legally obligated to pay by reason of a Claim first made against the Directors and Officers during the Original Policy Period or, if elected, the Extended Period, and reported to Scottsdale Insurance pursuant to Section E(1) for any Wrongful Act taking place prior to the end of the Original Policy Period; and (3) Scottsdale Insurance shall pay the Loss of Ocean Recovery for which Ocean Recovery becomes legally obligated to pay by reason of a Claim first made against Ocean Recovery during the Original Policy Period or, if applicable, the Extended Period, and reported to Scottsdale Insurance pursuant to Section E(1) for any Wrongful Act taking place prior to the end of the Original Policy Period (SSUMF No. 8.) However, the Original Policy also contained the following EP Exclusion: Scottsdale Insurance shall not be liable for Loss under the D&O Coverage Section on account of any Claim alleging, based upon, arising out of, attributable to, directly or indirectly resulting from, in consequence of, or in any way involving any employment or employment-related matters brought by or on behalf of or on the right of an applicant for employment with Ocean Recovery, or any of the Directors and Officers, including any voluntary, seasonal, temporary, leased or independently-contracted employee of Ocean Recovery. (SSUMF No. 12.) Moreover, the Original Policy states that it shall be the duty of Scottsdale and not the duty of the Insureds to defend any Claim (SSUMF No. 13), stating: THE EMPLOYMENT PRACTICES, DIRECTORS AND OFFICERS AND COMPANY, FIDUCIARY, BUSINESSOWNERS, PRIVACY PLUS, TECHNOLOGY, MEDIA AND PROFESSIONAL SERVICES AND MISCELLANEOUS PROFESSIONAL SERVICES COVERAGE SECTIONS OF THIS POLICY, WHICHEVER ARE APPLICABLE, COVER ONLY CLAIMS FIRST MADE AGAINST THE INSURED DURING THE POLICY PERIOD OR, IF ELECTED, THE EXTENDED PERIOD AND REPORTED TO THE INSURER PURSUANT TO THE TERMS OF THE RELEVANT COVERAGE SECTION. (SSUMF. No. 14.) When arguing that there is no coverage for the Underlying Action under the Original Policy, which included only a D&O Coverage Section, Moving Defendants assert that Courts applying California law have recognized that the prefatory language to the EP Exclusion alleging, based upon, arising out of, attributable to, directly or indirectly resulting from, in consequence of, or in any way involving is unambiguous and extremely broad. More specifically, Moving Defendants rely on Tricor Am., Inc. v. Ill. Union Ins. Co. (9th Cir. 2009) 351 F. Appx. 225, 227 ( Tricor ). In Tricor , Moving Defendants argue that the Ninth Circuit interpreted an identical employment practices exclusion contained in a D&O policy and held that it was plainly intended broadly to exclude coverage for any lawsuits alleging, based upon, arising out of, attributable to, directly or indirectly resulting from, in consequence of, or in any way involving employment-related matters. ( Tricor, supra , 351 F. Appx. at 227.) The Ninth Circuit held that the provisions specific exclusion of suits brought by applicants for employment, in addition to those brought by Directors and Officers, was necessary to effectuate the complete exclusion of all employment-related lawsuits because rejected applicants for Tricor employment do not fall within the definition of Directors and Officers in subsection B.4. ( Ibid. ) Moving Defendants argue that in the case at bar, like in Tricor , the Underlying Action arises out of and, at the very least, in any way involves employment-related matters as Ms. Wooters alleges numerous causes of action for discrimination and retaliation resulting from her employment with Plaintiff, as well as claims for failure to pay her appropriate employment compensation. The Underlying Action complaint is attached to the Declaration of Emil Soskin (Soskin Decl.) as exhibit B. The Underlying Action was filed on July 15, 2020, and alleges causes of action include: (1) Disability Discrimination; (2) Failure to Engage in Good Faith Interactive Process; (3) Failure to Accommodate; (4) Retaliation; (5) Failure to Prevent Discrimination and Retaliation; (6) Discrimination and Retaliation and Safety Code; (7) Retaliation; (8) Failure to Pay Overtime; (9) Failure to Pay Wages When Due and Waiting Time Penalties; (10) Failure to Provide Meal and Rest Periods; (11) Failure to Reimburse Business Expenses; (12) Failure to Provide Accurate Itemized Statements; (13) Failure to Permit the Inspection or Cory of Records; (14) Wrongful Termination in Violation of Public Policy; and (15) Unfair Competition. (Soskin Decl., ¶ 3, Ex. B.) Thus, based on the Original Policy, this Court finds that the EP Exclusion would exclude Scottsdale from having to cover the Underlying Action as it arises out of employment-related matters. Next, Moving Defendants also argue that there is no coverage for the Underlying Action under the Modified Policy because the Underlying Action was filed prior to the effective date of the EP Endorsements. Moving Defendants note that on August 20, 2020, after the Underlying Action was filed on July 15, 2020, Plaintiff executed another Application for Business and Management Indemnity Insurance. (SSUMF No. 22.) Based on the information contained in the August 20, 2020 Application, Moving Defendants note that on or about September 22, 2020, E-Risk issued a revised quote to Plaintiff, to add EPL coverage to the Original Policy (SSUMF No. 24.) Further, Moving Defendants have provided that at the request of Plaintiff, on or about October 1, 2020, Endorsements 24 and 48 (the EP Endorsements) were added to the Original Policy. (SSUMF No. 25.) Moving Defendants confirm that the effective date of the EP Endorsements is October 1, 2020, 12:01 A.M. Standard Time. (SSUMF No. 26.) This is confirmed in the document attached to Tomasis declaration as Exhibit G. (Tomasi Decl., ¶ 10, Ex. G.) In the Modified Policy, Insuring Clause A(a) of the EPL Coverage Section states that Scottsdale Insurance shall pay the Loss of the Insureds which the Insureds have become legally obligated to pay by reason of an Employment Practices Claim first made against the Insureds during the Modified Policy Period or, if elected, the Extended Period, and reported to Scottsdale pursuant to Section E(1) for an Employment Practices Wrongful Act taking place prior to the end of the Modified Policy Period (SSUMF No. 28.) According to the Modified Policy, Employment Practices Claim is defined, in relevant part, as a civil, judicial, administrative, regulatory or arbitration proceeding or a formal governmental investigation against an Insured seeking damages or other relief, commenced by the service of a complaint or similar pleading, including any appeal therefrom brought by or on behalf of an Employee in their capacity as such. (SSUMF No. 29.) However, the EPL Coverage Section contains an exclusion that states that Scottsdale shall not be liable for Loss under [the EPL Coverage Section] on account of any Claim&alleging, based upon, arising out of, attributable to, directly or indirectly resulting from, in consequence of, or in any way involving any prior or pending litigation&filed or pending on or before the Continuity Date& or any fact, circumstance, situation, transaction or event underlying or alleged in such litigation& (the Prior and Pending Litigation Exclusion). (SSUMF No. 30.) As noted in the moving papers, Continuity Date is defined as the Continuity Date set forth in Item 3. of the Declarations relating this Coverage Section, (SSUMF No. 31), and Item 3. of the Declarations of the EPL Coverage Section states that the Continuity Date is October 1, 2020. (SSUMF No. 32.) The Modified Policy states that it shall be the duty of Scottsdale Insurance and not the duty of the Insureds to defend any Claim. (SSUMF No. 33.) As is evidenced by Exhibit G of the Tomasi Declaration, on the very first page of the Modified Policy, the continuity date is listed as: 10/1/2020. (Tomasi Decl., ¶ 10, Ex. G.) Thus, this Court notes that because the continuity date was not until October 1, 2020, and the Underlying Action was filed on July 15, 2020, pursuant to the Modified Policy, Scottsdale would not be required to cover Plaintiff for the Underlying Action. Lastly on this issue, the Moving Defendants also argue that the Underlying Action is excepted from coverage under the Prior and Pending Litigation Exclusion contained in the EPL Coverage Section. The Court agrees that because the Modified Policy was not effective until the continuity date of October 1, 2020, and Ms. Wooters action was filed July 15, 2020, the Underlying Action would be barred from coverage under the Prior and Pending Litigation Exclusion. (SSUMF No. 30.) Moving defendants also submitted evidence that in a letter dated September 21, 2020, Scottsdale specifically declined coverage for the Wooters action which had been filed before the application for the Modified Policy had been submitted, further evidencing that the Underlying Action was subject tot eh Prior and Pending Litigation Exclusions. The Court notes that no opposition has been filed by Plaintiff . Despite this, even where a motion for summary judgment is unopposed, a Court may not grant summary judgment unless the moving party meets its initial burden. ( Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) Here, the Court finds that Moving Defendants have met that burden. As such, this Court notes that as to the Breach of Contract claim, the Motion is GRANTED as Moving Defendants have successfully carried their burden in showing that there is no issue of material fact as to the issue of the Breach of Contract cause of action, based on the evidence presented. Because Plaintiff has failed to oppose this motion, Plaintiff has also failed to carry its shifted burden. ii. Breach of the Duty of Good Faith and Fair Dealing Moving Defendants also argue that Plaintiffs cause of action for Breach of the Duty of Good Faith and Fair Dealing fails because there is no coverage for the Underlying Action under the Policy. A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment. ( Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated . . . [T]he only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery. ( Id. at pp. 1394-1395.) To recover in tort for breach of the implied covenant, the defendant must have acted unreasonably or without proper cause. ( Id. at p. 1395, citations and italics omitted.) In the case at bar, Plaintiffs second cause of action is based on the allegation that Moving Defendants breached the implied covenant of good faith and fair dealing when they unreasonably withheld benefits due under the policy namely, by providing no defense in the Underlying Action. (5AC, ¶ 27.) However, as noted above, because this Court found above that Moving Defendants carried their burden as to the breach of contract cause of action, this Court has found that the Underlying Claim was not covered under the Original or Modified Policy. Moving Defendants assert that because they did not breach the policy when Scottsdale denied coverage for the Underlying Action, Plaintiffs claim for bad faith fails as a matter of law and Defendants are entitled to summary judgment in their favor. The Court agrees. As such, the Motion is GRANTED as to the second cause of action as well. iii. Punitive Damages Here, this Court notes that the Plaintiffs claim for punitive damages arises out of the allegations of bad faith this Court has already ruled in favor of Moving Defendants above. Because of the same reasons above regarding the cause of action for Breach of the Duty of Good Faith and Fair Dealing, the Court GRANTS the Motion as to this issue as well. iv. Plaintiffs Claims Against Nationwide Fail as a Matter of Law Here, Moving Defendants lastly focus on the issue of Plaintiffs causes of action as against Nationwide. Moving Defendants argue that Nationwide did not issue the Original Policy or the Modified Policy to Plaintiff and its claims against Nationwide thus fail as a matter of law. The Court agrees. Moving Defendants have relied on the declaration of Michael Zartman as to some of the issues but fails to include Michael Zartmans declaration with the filing of the moving papers. Despite this, Moving Defendants argue that the 5AC improperly names Nationwide as a defendant despite the Original Policy and the Modified Policy indicating they were issued by Scottsdale Insurance, and not Nationwide (SSUMF Nos. 6, 25.) However, Moving Defendants note that Nationwide is not a party to the Original Policy nor the Modified Policy, which is clear by reviewing them. Instead, Moving Defendants note that Scottsdale is a wholly-owned subsidiary of Nationwide, but that this does not change the fact that Nationwide is not a party to these agreements. (SSUMF Nos. 41-42, 44.) The Court agrees that the evidence provided tends to show that Nationwide is not a party to the Original or Modified Policy. Because Plaintiff has failed to oppose this motion and provide this Court with evidence otherwise, the Court finds that Moving Defendants have carried their initial burden of proof, and that this Motion can be GRANTED as to this issue. III. CONCLUSION For the foregoing reasons, this Court tentatively GRANTS Moving Defendants Motion for Summary Judgment. Moving Defendants are ordered to provide notice.

Case Number: 24SMCV00805 Hearing Date: September 4, 2024 Dept: I The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. The motion to strike is GRANTED. This is a negligence action filed by plaintiff against various public and private entities including the demurring party, the City of West Hollywood. West Hollywood demurs to the second and third causes of action for negligence and premises liability on the ground that there are insufficient facts to support it. In response, plaintiff clarified that it was not bringing those causes of action against West Hollywood. The court believes that the complaint is ambiguous in that regard, but given plaintiffs clarification, the best way to deal with the problem is to sustain the demurrer without leave to amend to clarify plaintiffs stated position. West Hollywood does not demur to the first cause of action. This probably could have been dealt with had the parties engaged in a good faith and meaningful meet and confer process. The motion to strike interest is based on Civil Code section 3291. Defendant contends that interest is not available as against a public entity pursuant to Civil Code section 3291, which does so state. Because it does not seem that plaintiff can overcome that statutory bar, the court is inclined to DENY LEAVE TO AMEND. However, the court will inquire of plaintiff whether plaintiff believes that if given leave to amend plaintiff could cure that problem.