MOTION Doc # 49 FOR ADVERSE JURY INSTRUCTION Filed by: MORRIS, JILL October 29, 2021 (2024)

Case

FREEDOM MORTGAGE CORPORATION Vs. LYUDMYLA N RADCHENKO.et al

Aug 25, 2023 |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |23-008159-ci

Case

IN RE: ELIZABETH A TOWER

Aug 09, 2024 |DEPOSIT WILL |DEPOSIT WILL |24-007945-ES

Case

IN RE: THE ESTATE OF ROBERT BURTON SARGENT

Aug 05, 2024 |COLEMAN, SHERWOOD |FORMAL ADMINISTRATION |FORMAL ADMINISTRATION |24-007803-ES

Case

IN RE: DYANNE TSURUYE BARDI

Aug 05, 2024 |REQUIRED, NO JUDGE |NOTICE OF TRUST |NOTICE OF TRUST |24-007806-ES

Case

IN RE: THE ESTATE OF PETER J MORLOCK

Aug 07, 2024 |CAMPBELL, PAMELA A |SUMMARY ADMINISTRATION UNDER $1000 |SUMMARY ADMINISTRATION UNDER $1000 |24-007858-ES

Case

IN RE: THE ESTATE OF JULIA DUDZINSKI

Aug 08, 2024 |CAMPBELL, PAMELA A |SUMMARY ADMINISTRATION OVER $1000 |SUMMARY ADMINISTRATION OVER $1000 |24-007948-ES

Case

IN RE: DEBORAH K MILLS

Aug 07, 2024 |DEPOSIT WILL |DEPOSIT WILL |24-007838-ES

Case

IN RE: BARBARA A MITCHELL

Aug 08, 2024 |DEPOSIT WILL |DEPOSIT WILL |24-007892-ES

Case

IN RE: JEANNETTE JUNG

Aug 08, 2024 |DEPOSIT WILL |DEPOSIT WILL |24-007902-ES

Ruling

MARCH MELLOUL, ET AL. VS ARIEL AFAR, ET AL.

Aug 05, 2024 |6/18/2022 |23BBCV02030

Case Number: 23BBCV02030 Hearing Date: August 5, 2024 Dept: I This is an application to advance the hearing date for defendants special motion to strike. The motion was filed on July 24, 2024. It was originally set for October 29, 2024, but because the court will be dark that date, it was continued to November 19, 2024. Defendant is concerned that the court will find that the motion is out of time because it is set more than 30 days after filing. The court will discuss the matter with the parties, but the court will inquire whether October 29, 2024, was truly the first available date. That seems later than the court would have assumed, but if it was the first date, then it was. If there was an earlier date, then the court will inquire why it was not taken. If defendant sought and took the earliest available date, the court will not strike the motion as being over-noticed.

Ruling

RAJAN GARG, AN INDIVIDUAL VS ANDRES PERAZA, AN INDIVIDUAL

Aug 06, 2024 |23STCV21321

Case Number: 23STCV21321 Hearing Date: August 6, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 6, 2024 TRIAL DATE: N/A CASE: Rajan Garg v. Andres Peraza CASE NO.: 23STCV21321 DEMURRER WITH MOTION TO STRIKE MOVING PARTY: Defendant Andres Peraza RESPONDING PARTY: Plaintiff Rajan Garg I. INTRODUCTION Plaintiff Rajan Garg (Garg or Plaintiff) became the medical director and CEO of San Andres Medical Clinic, Inc. (SAMC) in January of 2017. Defendant Daniel Peraza was the previous medical director and CEO of SAMC. In July of 2022, the Trustee of SAMC filed a medical malpractice lawsuit against SAMC, Garg, and several other defendants. In November of 2022, the Trustee and the various defendants agreed to settle the matter for $250,000. Under the terms of the settlement, defendants were to make an initial payment of $60,000 with the remaining settlement balance paid at a rate of $10,000 per month, for nineteen (19) months. As relevant here, Garg and Peraza verbally agreed they alone would be responsible for the settlement payments. Garg and Peraza further agreed they would each pay half of the initial $60,000 payment and half of each of the $10,000 remaining payments. For the next few months, the parties, abided by the oral agreement. In February of 2023, Peraza failed to pay his portion of the monthly installment. Peraza has not made any payments since then, forcing Garg to pay the entire $10,000 monthly installment payment. On September 5, 2023, Plaintiff filed a Complaint against Peraza for (1) Breach of Contract and (2) Intentional Misrepresentation. Plaintiff seeks attorney fees and punitive damages, among other relief. On March 6, 2024, Defendant filed this Demurrer and Motion to Strike attorney fees and punitive damages from the Complaint. Plaintiff filed an opposition. Defendant replied. II. LEGAL STANDARD The primary function of a pleading is to give the other party notice so that it may prepare its¿case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)¿ A¿demurrer¿tests the legal sufficiency of the factual allegations in a complaint. (Ivanoff v. Bank of¿America, N.A.¿(2017) 9 Cal.App.5th 719, 725.) The Court looks to whether the complaint alleges¿facts sufficient to state a cause of action or discloses a complete defense. (Id.) The Court does not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the¿complaint as a whole and its parts in their context. [Citation.] (West v. JPMorgan Chase Bank,¿N.A. (2013) 214 Cal.App.4th 780, 804.) The Court assume[s] the truth of the properly pleaded¿factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of¿which judicial notice has been taken. (Harris, supra, 56 Cal.4th p. 240.) The court does not,¿however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (Durell v.¿Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)¿ A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.¿(Code Civ. Proc., § 430.10, subd. (e).)¿A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.¿ (Khoury v. Malys of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿ Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)¿¿ III. APPLICATION A. Meet and Confer Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised by the demurrer.¿ (Code Civ. Proc., §§ 430.41(a).)¿Defense counsel has satisfied the meet and confer requirement.¿ (See Declaration of Demurring or Moving Party Regarding Meet and Confer.)¿¿¿¿¿ B. Analysis Defendant argues the First Cause of Action fails on the grounds that it is barred by the Statute of Frauds and that the Second Cause of Action fails for lack of specificity. The court addresses each argument in turn. 1. First Cause of Action for Breach of Contract ¿Plaintiff alleges that he and Defendant verbally agreed to be solely responsible for the settlement payments, which consisted of an initial payment of $60,000 and monthly payments of $10,000 for nineteen months. (Complaint, ¶¶ 14-16.) Each party was to pay half of each settlement payment. (Complaint, ¶ 17.) Defendant breached the agreement by failing to contribute to any payments after February 2023. (Complaint, ¶¶ 20-21.) The elements of a breach of contract cause of action are: (1) the existence of a valid contract between the plaintiff and the defendant, (2) the plaintiffs performance, (3) the defendants unjustified failure to perform, and (4) damages to the plaintiff caused by the defendants breach. (CACI No. 303; Careau & Co. v. Security Pacific Business, Inc. (1990) 222 Cal.App.3d 1371, 1388 (Careau); Otworth v. Southern Pac. Transportation (1985) 166 Cal.App.3d 452, 458.) [T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Otworth, 166 Cal.App.3d at pp. 458-459.)¿ The elements of a breach of oral contract claim are the same as those for a breach of written contract. (Careau, 222 Cal.App.3d at p. 1388.)¿ Defendant argues the breach of contract claim fails because it is barred by the Statute of Frauds. Civil Code section 1624 codifies the Statute of Frauds. It states, in relevant part, that an agreement that by its terms is not to be performed within a year from the making thereof is invalid, unless there is some note or memorandum in writing and subscribed by the party to be charged or by the partys agent. (Civ. Code, § 1624, subd. (a)(1).) As alleged, the court agrees the Statute of Frauds bars Plaintiffs breach of contract claim. The alleged contract is not in writing. (See Complaint, ¶ 16.) Further, the contract is to be performed over nineteen months. (See Complaint, ¶ 15.) The breach of contract claims does not clear the bar raised by the Statute of Frauds hurdle. In opposition, Plaintiff acknowledges that the parties did not enter into a formal written agreement yet nonetheless argues the Complaint adequately outlines the terms of the agreement. Plaintiff further references multiple emails and texts between the parties which demonstrate the existence of the agreement. These arguments are unavailing. Plaintiff does not contend with Defendants argument that the parties agreement is neither evidenced by a writing nor to be performed within a year. The Statute of Frauds applies. The references to multiple emails and texts & demonstrat[ing] the existence of the agreement cannot be considered in ruing on this demurrer because those communications have not been pleaded and are therefore disregarded as extrinsic to the Complaint. \ 2. Second Cause of Action for Intentional Misrepresentation Plaintiff alleges that Defendant misrepresented to Plaintiff that Defendant would make half of each of the monthly payments as set forth in their Agreement and that the representation was not true and made with the intent to induce Plaintiff to enter into the settlement agreement with the Trustee. (Complaint, ¶¶ 32-33.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)¿¿ ¿ Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)¿¿ ¿ To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven¿essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff¿reasonably relied on the¿representation;¿(6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.¿ (Manderville¿v. PCG & S Group, Inc.¿(2007) 146 Cal.App.4th 1486, 1498; CACI No. 1900.)¿¿¿ Defendant argues the Second Cause of Action fails because it lacks the specificity required for fraud claims and further, there are no allegations of intent to defraud at the time the misrepresentations were made. Defendants argument has merit. The Complaint does not allege any facts beyond the oral agreement between the parties to share equally in making the settlement payments and Defendants breach of that agreement by failing to contribute his share of payments after February of 2023. In other words, Plaintiff attempts to base a fraud claim solely upon nonperformance of an oral promise for future conduct. This is insufficient to state support a claim for fraud. A promise of future conduct is actionable as fraud only if made without a present intent to perform. A declaration of intention, although in the nature of a promise, made in good faith, without intention to deceive, and in the honest expectation that it will be fulfilled, even though it is not carried out, does not constitute a fraud. Moreover, something more than nonperformance is required to prove the defendants intent not to perform his promise. . . . [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 (internal citations and quotations omitted).) As Defendant correctly points out, there are no specific allegations that Defendant did not intend to perform the agreement at the time he made the promise to Plaintiff. The Second Cause of Action is deficient. IV. CONCLUSION The Demurrer is SUSTAINED. Leave to amend is GRANTED. Plaintiff is ordered to file and serve a First Amended Complaint within 30 days of the date of this order. Given the courts ruling on the Demurrer, the Motion to Strike is MOOT. Defendant to give notice. Dated: August 6, 2024 Kerry Bensinger Judge of the Superior Court

Ruling

Graciela Munguia et al. vs Nissan North America, Inc.

Aug 08, 2024 |20CV-03306

20CV-03306 Gracela Munguia, et al. v. Nissan North America, Inc.Order to Show Cause: Dismissal-Notice of SettlementAppearance optional. Based on the Declaration of Dhara Patel, the OSC re: Settlement iscontinued to October 8, 2024, at 8:15am in courtroom 8.

Ruling

LARRY POBRE VIGILIA, M.D. VS CYNTHIA R. SISON, ET AL.

Aug 09, 2024 |24NNCV00197

Case Number: 24NNCV00197 Hearing Date: August 9, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A TENTATIVE RULING AUGUST 9, 2024 DEMURRER & MOTION TO STRIKE Los Angeles Superior Court Case # 24NNCV00197 MP: Cynthia R. Sison & Nader Allahverdy (Defendants) RP: Larry Pobre Viglia (Plaintiff) [No Opposition Rendered] NOTICE: The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received. Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. ALLEGATIONS: Larry Pobre Viglia (Plaintiff) brings this action against Cynthia R. Sison & Nader Allahverdy (Defendants). Plaintiff alleges Defendants conspired to induce a loan in the amount of $20,000 and thereafter refused to repay the loan pursuant to their agreement. Plaintiffs Complaint contains causes of action for (1) Fraud, (2) Conversion, (3) Breach of Contract, and (4) Damages Pursuant to Cal. Penal Code § 496(c). Defendants now demur to Plaintiffs fourth cause of action for Damages Pursuant to Cal. Penal Code § 496(c). Defendants argue that Cal. Penal Code § 496(c) does not authorize an independent civil cause of action. Defendants also move to strike Plaintiffs claim for treble damages pursuant to Penal Code § 496(c) and his request for attorneys fees. Plaintiff has rendered no opposition to the demurrer or motion to strike. ANALYSIS: I. LEGAL STANDARDS Demurrer The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.) A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiffs allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal. 3d at 318.) Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.) Motion to Strike Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, [t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (C.C.P. § 436 (b).) II. MERITS Meet and Confer C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review the Court finds the meet and confer requirements were met. (Tran Decl. ¶ 2.) Fourth COA Damages pursuant to Cal. Penal Code § 496(c) Overruled Defendant demurs to this cause of action on grounds that it does not permit an independent right of action. Penal Code § 496(a) provides in relevant part: Every person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, shall be punished... A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property. Penal Code § 496(c) provides: Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees. Defendants argument that Penal Code § 496(c) does not permit an independent right of action is unpersuasive. The statute explicitly states that, Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages& By its plain language the statute authorizes an independent cause of action and Defendants cite to no authority interpreting the statute otherwise. Defendants argument that this cause of action is subsumed by Plaintiffs causes of action for fraud and conversion is similarly unavailing for reasons that will be discussed below. Defendants cite to the recent California Supreme Court decision in Siry Investment, L.P. v. Farkhondehpour, which they argue stands for the idea that an action cannot be maintained under Penal Code § 496(c) where a Plaintiff alleges only simple misrepresentation. The Court finds this argument is not supported by the Courts reading of the holding in Siry. (Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333). The Court in Siry did explain that not all consumer fraud or misrepresentations fall within the purview Penal Code § 496. To prove theft, a plaintiff must establish criminal intent on the part of the defendant beyond mere proof of nonperformance or actual falsity. If misrepresentations or unfulfilled promises are made innocently or inadvertently, they can no more form the basis for a prosecution for obtaining property by false pretenses than can an innocent breach of contract. (Siry Investment, L.P. v. Farkhondehpour, supra, 13 Cal.5th at 362 [internal quotation marks and citations omitted].) This quote from Siry, presented in Defendants moving papers, simply does not concern the sufficiency of pleadings. The Siry court was reinforcing that a plaintiff must prove theft and intent to commit theft in order to recover under the statute, they did not opine on the circumstances under which a plaintiffs pleadings concerning theft and intent were sufficient. Here, Plaintiff has alleged that Defendants purposefully defrauded him of $20,000 under the guise of needing funding for a film project. (Compl. ¶ 6.) Plaintiff further alleges that Defendant Sison issued a predated check which was intended to fulfil the loan, but thereafter closed the account the check was to draw upon. (Compl. ¶¶ 8-9.) It is unmistakable that Plaintiff alleges Defendants made the fraudulent representations with the intent to deprive Plaintiff of the $20,000. The holding in Siry makes clear that Plaintiff will eventually have to prove Defendants intent in committing theft to succeed on his cause of action. This is an element which separates the cause of action under 496(c) from those of fraud and conversion such that the statutory cause of action is not duplicative. While Plaintiff may ultimately be unable to prove the intent required to recover on this cause of action, it does not follow that the cause of action is subject to demurrer. Accordingly, the demurrer to the fourth cause of action is OVERRULED. Motion to Strike Defendants move to strike Plaintiffs claim for treble damages pursuant to Penal Code § 496(c). Defendants also move to strike Plaintiffs request for attorneys fees and related allegations, arguing there is no statutory basis for them. Defendants motion to strike is predicated on the success of their demurrer to Plaintiffs cause of action under Penal Code § 496(c). As the Court has overruled Defendants demurrer, the motion to strike is without basis. Plaintiff maintains a valid cause of action under Penal Code § 496(c) and the statute provides the basis for the recovery of attorneys fees. Accordingly, the motion to strike is DENIED. --- RULING: In the event the parties submit on this tentative ruling, or a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the Courts records. ORDER Cynthia R. Sison & Nader Allahverdy s Demurrer and Motion to Strike came on regularly for hearing on August 9, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows: THE DEMURRER TO THE FOURTH CAUSE OF ACTION IS OVERRULED. THE MOTION TO STRIKE IS DENIED IN ITS ENTIRETY. UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANTS TO GIVE NOTICE. IT IS SO ORDERED. DATE: August 9, 2024 _______________________________ F.M. Tavelman, Judge Superior Court of California County of Los Angeles

Ruling

OP Development, Inc., et al. vs Scotty Pereira

Aug 08, 2024 |18CV-02285

18CV-02285 OP Development, Inc., et al. v. Scotty PereiraMotion to Extend Attachment on PropertyThe unopposed Motion to Extend Writ of Attachment on Property is GRANTED and thecurrent writ of attachment is extended one year to August 23, 2025.

Ruling

BIGBATTERY, INC., A CALIFORNIA CORPORATION VS XI WANG, ET AL.

Aug 07, 2024 |23CHCV02952

Case Number: 23CHCV02952 Hearing Date: August 7, 2024 Dept: F47 Dept. F47 Date: 8/7/24 TRIAL DATE: 9/29/25 Case #23CHCV02952 MOTION TO DETERMINE DIRECTORS OF CORPORATION Motion filed on 6/20/24. MOVING PARTY: Defendant/Cross-Complainant Xi Wang RESPONDING PARTY: Plaintiff BigBattery, Inc. NOTICE: ok RELIEF REQUESTED: An order confirming Defendant/Cross-Complainant Xi Wang as a Director of Big Battery, Inc., and as Chair of the Board, and as CEO, and removing officer Clifford Eric Lungren, as well as other associated relief. RULING: The motion is denied. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of a corporate dispute between Plaintiff BigBattery, Inc. (Big Battery/Company) and one of its shareholders, Defendant/Cross-Complainant Xi Wang (Wang) who BigBattery claims to be a former officer and director. In its complaint, BigBattery alleges that Wang used his access to its bank accounts to embezzle more than $660,000, and then used his position as an agent of BigBattery to seize and divert major shipments of the Company inventory to his own facility overseas in Panama for the purpose of relabeling and reselling the Company inventory as his own property and products and for his own profit. BigBattery alleges Wang concurrently engaged in a broad scheme of publishing and disseminating false information to Company clients, business partners and vendors to divert attention from his own conduct and to poison the Companys existing and prospective business relationships to further divert, redirect and usurp these Company business relationships for his own gain and to the deliberate detriment of the Company. As a result of Wangs alleged wrongful conduct, the Company removed Wang as an officer and director of the Company. On 10/2/23, BigBattery filed this action against Wang, Bixia Liu, IT Asset Partners, Inc., BatteryEvo, Inc, and Does 1-10 for: (1) Conversion, (2) Concealment, (3) Breach of Fiduciary Duty, (4) Trespass to Chattels, (5) Intentional Interference With Contractual Relations, (6) Negligence Misrepresentation, (7) Negligent Interference With Prospective Economic Advantage and (8) Violation of Business & Professions Code 17200, et seq. Intentional Infringement of Right of Integrity and Violation of Digital Millennium Copyright Act of 1998 (DMCA). In the operative First Amended Cross-Complaint, Wang alleges causes of action against BigBattery, Clifford Eric Lundgren (Lundgren) and Does 1-15 for: (1) Determining Directors of Corporation (Corporations Code 709), (2) Involuntary Dissolution of Corporation, (3) Fraud, (4) Breach of Fiduciary Duty, (5) Imposition of Constructive Trust, and (6) Accounting. Wang contends that in July 2023, Lundgren wrongfully took control of the Company by holding a directors and shareholders meeting without notice to Wang while he out of the country whereat Wang was removed as an officer and director of the Company. Wang further contends that after this litigation was instituted Lundgren is attempting to move BigBattery from Chatsworth, California to Texas where this Court will not have jurisdiction over the corporation. Wang contends that beginning in June 2023, Lundgren began shutting Wang out of all operations of BigBattery by, among other things: (1) unilaterally filing a Statement of Information on behalf of BigBattery, with the California Secretary of State, which removed Wang's name as an officer and director of Big Battery; (2) removing Wang's name as president from BigBatterys website; and (3) removing Wang's administration rights for BigBatterys email account and ERP system. (See Wang Decl.; Mullaney Decl.). Wang contends that he did not receive any advanced notice of the above actions and no shareholder or director meetings were noticed or held. Id. As such, Wang contends that the foregoing actions are legally ineffective and he Wang legally continues to be a director and corporate officer of BigBattery. Wang further contends that Lundgren has transferred over $500,000.00 of BigBatterys funds to an account solely held by Lundgren without providing Wang with BigBatterys books and records. Id. In contrast, BigBattery contends that Wang was properly removed from the board of directors and as an officer by a majority vote of two board members, Lundgren (45.25%) and Marshall Niepert (5%), at an emergency meeting held on 7/5/23, which was confirmed at subsequent meetings in August and September of 2023 of which Wang received notice but failed to attend. (See Lundgren Decl.). On 6/20/24, Wang filed and served the instant motion seeking an order confirming Defendant/Cross-Complainant Xi Wang as a Director of BigBattery, Inc., as Chair of the Board, and as CEO, and removing officer Clifford Eric Lungren, as well as other associated relief. Big Battery has opposed the motion and Wang has filed a reply to the opposition. ANALYSIS BigBatterys objections to the declaration of Xi Wang, numbers 1-13, are overruled. BigBatterys objections to the declaration of Robert Mullaney, numbers 14-15, are overruled. Wangs objections to the declaration of Clifford Eric Lundgren, numbers 1-5, are overruled. Wang fails to provide clear notice of the relief sought by way of the instant motion. See CRC 3.1110(a) (A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.). Here, the opening paragraph of the notice of motion states that Wang is seeking an order confirming him as a Director of Big Battery, Inc., and as Chair of the Board, and as CEO, and removing the wrongdoing officer, Clifford Eric Lungren, as well as other associated relief without defining in the notice what actually constitutes the vaguely referenced other associated relief. (See Motion, p.1:27-p.2:1). In the caption of the notice, Wang indicates that the motion seeks to determine directors of corporation pursuant to Corporations Code 709. Corporations Code 709 provides: (a) Upon the filing of an action therefor by any shareholder or by any person who claims to have been denied the right to vote, the superior court of the proper county shall try and determine the validity of any election or appointment of any director of any domestic corporation, or of any foreign corporation if the election was held or the appointment was made in this state. In the case of a foreign corporation the action may be brought at the option of the plaintiff in the county in which the corporation has its principal office in California or in the county in which the election was held or the appointment was made. (b) Upon the filing of the complaint, and before any further proceedings are had, the court shall enter an order fixing a date for the hearing, which shall be within five days unless for good cause shown a later date is fixed, and requiring notice of the date for the hearing and a copy of the complaint to be served upon the corporation and upon the person whose purported election or appointment is questioned and upon any person (other than the plaintiff) whom the plaintiff alleges to have been elected or appointed, in the manner in which a summons is required to be served, or, if the court so directs, by registered mail; and the court may make such further requirements as to notice as appear to be proper under the circumstances. (c) The court may determine the person entitled to the office of director or may order a new election to be held or appointment to be made, may determine the validity, effectiveness and construction of voting agreements and voting trusts, the validity of the issuance of shares and the right of persons to vote and may direct such other relief as may be just and proper. It is not until the end of the memorandum of points and authorities in support of the motion that Wang indicates that he is actually seeking the following seven orders for relief by way of the instant motion: (1) remove Lundgren as director and officer of BigBattery under Corporations Code 304 and 701, et seq., due to abuse of authority, mismanagement, and unfair treatment of certain shareholders, particularly towards Wang (Relief 1); (2) confirm Wang as a director and the president of BigBattery (Relief 2); (3) reinstate Wangs access to BigBattery email account and ERP system (Relief 3); (4) amend the Statement of Information to identify Wang as BigBatterys president (Relief 4), (5) update BigBatterys website to reflect Wangs role as president (Relief 5); (6) return of all funds wrongfully transferred from BigBattery (Relief 6); and (7) conduct an accounting of all funds received and disbursed by BigBattery from 7/1/23 to the present date (Relief 7). (See Motion, p.8:9-p.9:1). Corporations Code 304 provides: The superior court of the proper county may, at the suit of shareholders holding at least 10 percent of the number of outstanding shares of any class, remove from office any director in case of fraudulent or dishonest acts or gross abuse of authority or discretion with reference to the corporation and may bar from reelection any director so removed for a period prescribed by the court. The corporation shall be made a party to such action. Corporations Code 701 provides: (a) In order that the corporation may determine the shareholders entitled to notice of any meeting or to vote or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action, the board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days prior to the date of such meeting nor more than 60 days prior to any other action. (b) If no record date is fixed: (1) The record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. (2) The record date for determining shareholders entitled to give consent to corporate action in writing without a meeting, when no prior action by the board has been taken, shall be the day on which the first written consent is given. (3) The record date for determining shareholders for any other purpose shall be at the close of business on the day on which the board adopts the resolution relating thereto, or the 60th day prior to the date of such other action, whichever is later. (c) A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the board fixes a new record date for the adjourned meeting, but the board shall fix a new record date if the meeting is adjourned for more than 45 days from the date set for the original meeting. (d) Shareholders at the close of business on the record date are entitled to notice and to vote or to receive the dividend, distribution or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date, except as otherwise provided in the articles or by agreement or in this division. By way of the instant motion, Wang is not merely attempting to have the Court summarily determine the validity of any election or appointment of any director or determine the person entitled to the office of director as permitted by Corporations Code 709. Rather, Wang improperly seeks to have the Court adjudicate discovery disputes and the merits of the gravamen of the claims in the complaint and cross-complaint. (See Motion, p.8:9-p.9:1; Reply, generally). In the reply, Wang has not addressed his failure to attend the August and September board meetings whereat his removal as an officer and director were confirmed. CONCLUSION The motion is denied.

Ruling

DAMBAR GURUNG VS RENU KAYASTHA, ET AL.

Aug 07, 2024 |19STCV29239

Case Number: 19STCV29239 Hearing Date: August 7, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT DAMBAR GARUNG, Plaintiff, vs. RENU KAYASTHA, et al. Defendants. CASE NO.: 19STCV29239 ORDER RE: MOTION TO BE RELIEVED AS COUNSEL Date: August 7, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Sanjay Sabarwal, Esq. (Counsel) RESPONDING PARTY: None The Court has considered the moving papers. No opposing papers were filed BACKGROUND On August 15, 2019, Plaintiff Dambar Garung filed a complaint against Defendants Renu Kayastha, Tilak Rana, Himalayan Hut, LLC and Does 1 through 10, inclusive, alleging claims for: 1) fraud and deceit; 2) violations of Labor Code (LC) section 98.6; 3) violation of LC section 1102.5; 4) violation of LA section 232.5; 5) wrongful termination; 6) failure to pay wages and/or overtime under LC sections 510, 1194 and 1199; 7) failure to reimburse expenses pursuant to LC section 2802; 8) violation of LC section 226(a); 9) waiting time penalties under LC section 203; and 10) Unfair Business Practices under Business & Professions Code Section 17200, et seq.. Although trial in this case, which was set for July 8, 2024, had been taken off-calendar because on the eve of trial the parties informed the Court that they had reached a settlement, it appears that the settlement may not be completed, such that the Court must set another trial date, and will do so at the hearing on this motion. The last date for this case to be brought to trial is February 14, 2025. On June 26, 2024, Counsel filed the instant motion to be relieved as counsel for Defendants. No opposition has been filed. DISCUSSION The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).) In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client, and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) Under Code of Civil Procedure section 1014, A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396(b), moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant. Analysis Although Counsel filed a noticed Motion and Motion to be relieved as counsel, he was required to file but did not file the proper form for making such a motion (MC-051). Counsel also failed to file the proper form of a Declaration in Support of the Motions (MC-052). On July 15, 2024, the Court ordered that Counsel file forms MC-051 and MC-052 as a prerequisite to the granting of the Motion. Counsel failed to do so, and for that reason, the Court denies the Motion. Dated this 7th day of August 2024 Hon. Holly J. Fujie Judge of the Superior Court

Ruling

FCS053772 - KUDSK, SUSAN V YEAH, HALLORAN (DMS)

Aug 08, 2024 |FCS053772

FCS053772Application for Sale of Dwelling Page 3 of 4TENTATIVE RULINGCounsel for Judgment Creditor to appear. There is no indication in the court’s fileestablishing that counsel prepared and submitted an order to show cause as ordered bythis court. There is also no proof of service demonstrating timely and proper service ofany order to show cause, a copy of the application, and a copy of the notice of hearingon Judgment Creditor and any occupant of the dwelling to be sold. Page 4 of 4

Document

WILMINGTON SAVINGS FUND SOCIETY FSB Vs. EDDIE M MLOTKOWSKI, et al

Sep 28, 2018 |JIROTKA, GEORGE M |REAL PROP - HOMESTEAD RES FORECLOSURE3 $250,000 OR MORE |REAL PROP - HOMESTEAD RES FORECLOSURE3 $250,000 OR MORE |18-006402-CI

Document

MIDFIRST BANK Vs. DWIGHT K MOODY.et al

Feb 26, 2024 |NEWTON, CYNTHIA J |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |24-000926-CI

Document

WILMINGTON SAVINGS FUND SOCIETY FSB Vs. EDDIE M MLOTKOWSKI, et al

Sep 28, 2018 |JIROTKA, GEORGE M |REAL PROP - HOMESTEAD RES FORECLOSURE3 $250,000 OR MORE |REAL PROP - HOMESTEAD RES FORECLOSURE3 $250,000 OR MORE |18-006402-CI

Document

FREEDOM MORTGAGE CORPORATION Vs. LYUDMYLA N RADCHENKO.et al

Aug 25, 2023 |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |23-008159-ci

Document

FLAGSTAR BANK N A Vs. AMY L HART.et al

Jul 07, 2022 |NEWTON, CYNTHIA J |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |22-003258-CI

Document

WILMINGTON SAVINGS FUND SOCIETY FSB Vs. EDDIE M MLOTKOWSKI, et al

Sep 28, 2018 |JIROTKA, GEORGE M |REAL PROP - HOMESTEAD RES FORECLOSURE3 $250,000 OR MORE |REAL PROP - HOMESTEAD RES FORECLOSURE3 $250,000 OR MORE |18-006402-CI

Document

PLANET HOME LENDING LLC Vs. RONALD BROADHURST, SR.et al

Apr 11, 2023 |NEWTON, CYNTHIA J |REAL PROP/MTGE FRCL HOMESTEAD RES3 $250,000 OR MORE |REAL PROP/MTGE FRCL HOMESTEAD RES3 $250,000 OR MORE |23-006552-CI

Document

BANK OF NEW YORK MELLON Vs. UNKNOWN HEIRS DEVISEES GRANTEES.et al

Jul 27, 2023 |JIROTKA, GEORGE M |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |REAL PROP/MTGE FRCL HOMESTEAD RES2 $50,001 - $249,999 |23-007801-CI