EXHIBIT(S) - A (Motion #002) - Summons, Complaint, Affidavit of Service May 19, 2022 (2024)

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Ruling

MARGIT STEVENS, ET AL. VS BLUE CROSS OF CALIFORNIA, ET AL.

Aug 15, 2024 |23STCV31222

Case Number: 23STCV31222 Hearing Date: August 15, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 MARGIT STEVENS, et al. Plaintiffs, vs. BLUE CROSS OF CALIFORNIA DBA ANTHEM BLUE CROSS, et al. Defendants. Case No.: 23STCV31222 Hearing Date: August 15, 2024 Hearing Time: 10:00 a.m. [TENTATIVE] ORDER RE: DEFENDANTS PETITION TO COMPEL ARBITRATION AND STAY TRIAL COURT PROCEEDINGS Background Plaintiffs Margit Stevens and Nathaniel Stevens (jointly, Plaintiffs) filed this action on December 21, 2023 against Defendants Blue Cross of California dba Anthem Blue Cross and Anthem Life and Health Insurance Company. Plaintiffs filed the operative First Amended Complaint on December 28, 2023, alleging causes of action for (1) negligence and (2) promissory fraud. Blue Cross of California dba Anthem Blue Cross and Anthem Blue Cross Life and Health Insurance Company (erroneously sued as Anthem Life and Health Insurance Company) (jointly, Defendants) now petition the Court for an order: (1) compelling Plaintiffs to submit their claims against Defendants to binding arbitration and (2) staying trial court proceedings pending a ruling on the petition and until the arbitration is concluded. Plaintiffs oppose. Discussion A. Procedural Issues As an initial matter, in support of the opposition, Plaintiffs submit the Declaration of Adrian J. Barrio. Exhibit 2 to Mr. Barrios declaration is redacted. (Barrio Decl., ¶ 5, Ex. 2.) Plaintiffs filed a notice of lodging with the opposition indicating that Plaintiffs Ryan Williford and Tangi Williford[1] have lodged with the Court the following unredacted document designated by Defendants as confidential: 1. Plaintiffs Exhibit 2: Administrative Services Agreement between Anthem and CVT. DEFENDANTS ARE HEREBY NOTICED that if they fail to file a motion or an application to seal the record within 10 days or obtain a court order extending the time to file such a motion or application, the Clerk will promptly transfer the lodged document to the public file pursuant to Rule 2.551 of the California Rules of Court. The lodged document will remain conditionally under seal until the Court rules on a motion or application or as otherwise ordered by the Court. (Plaintiffs Notice of Lodging at p. 1:2-12.) It appears Plaintiffs may be referring to California Rules of Court, rule 2.551, subdivision (b)(3), which provides, (3) Procedure for party not intending to file motion or application (A) A party that files or intends to file with the court, for the purposes of adjudication or to use at trial, records produced in discovery that are subject to a confidentiality agreement or protective order, and does not intend to request to have the records sealed, must: (i) Lodge the unredacted records subject to the confidentiality agreement or protective order and any pleadings, memorandums, declarations, and other documents that disclose the contents of the records, in the manner stated in (d); (ii) File copies of the documents in (i) that are redacted so that they do not disclose the contents of the records that are subject to the confidentiality agreement or protective order; and (iii) Give written notice to the party that produced the records that the records and the other documents lodged under (i) will be placed in the public court file unless that party files a timely motion or application to seal the records under this rule. (B) If the party that produced the documents and was served with the notice under (A)(iii) fails to file a motion or an application to seal the records within 10 days or to obtain a court order extending the time to file such a motion or an application, the clerk must promptly transfer all the documents in (A)(i) from the envelope, container, or secure electronic file to the public file. If the party files a motion or an application to seal within 10 days or such later time as the court has ordered, these documents are to remain conditionally under seal until the court rules on the motion or application and thereafter are to be filed as ordered by the court. (Emphasis added.) As set forth above, California Rules of Court, rule 2.551, subdivision (b)(3) applies to [a] party that files or intends to file with the court, for the purposes of adjudication or to use at trial, records produced in discovery that are subject to a confidentiality agreement or protective order& (Cal. Rules of Court, rule 2.551, subd. (b)(3)(A).) Plaintiffs do not appear to provide any evidence that Plaintiffs Exhibit 2 is subject to a confidentiality agreement or protective order. Based on the foregoing, the Court does not find that California Rules of Court, rule 2.551, subdivision (b)(3) is applicable here. Pursuant to California Rules of Court, rule 2.551, subdivision (a), [a] record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. In addition, [a] party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing. (Cal. Rules of Court, Rule 2.551, subd. (b)(2).) In light of the foregoing, the hearing on Defendants petition to compel arbitration and stay trial court proceedings is continued to ____________, 2024, at 10:00 a.m. in Dept. 50. If Plaintiffs seek to seal the subject Exhibit 2, Plaintiffs must immediately file a motion or application to seal pursuant to California Rules of Court, rule 2.550, et seq.¿If Plaintiffs do not seek to seal the subject document, Plaintiffs must immediately file with the Court an unredacted version of Exhibit 2. Plaintiffs are ordered to give notice of this Order. ¿ DATED: August 15, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court [1]The reference to Plaintiffs Ryan Williford and Tangi Williford appears to be a typo.

Ruling

Partners Real Estate, Inc., a California corporation vs Michael J. Lemon et al.

Aug 13, 2024 |STK-CV-LBC-2023-0011079

Defendant Side Inc. aka All City Homes and Serina Lowden's Unopposed Motion for Determination of Good Faith Settlement is GRANTED. Jayne C. Lee Judge of the Superior Court Directions for Contesting or Arguing the Tentative Ruling: Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. Parties may appear in person in Dept. 10C or remotely to contest the tentative ruling. To conduct a remote appearance, follow the instructions below. There is a dedicated conference bridge lines for Dept 10C. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept 10C: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6937 and Pin # 6822.

Ruling

ADLI LAW GROUP P.C., ET AL. VS SKYPANELS, INC., ET AL.

Aug 14, 2024 |20STCV43191

Case Number: 20STCV43191 Hearing Date: August 14, 2024 Dept: 54 Superior Court of California County of Los Angeles Dariush G. Adli, et al., Plaintiffs, Case No.: 20STCV43191 vs. Tentative Ruling Skypanels Inc., et al., Defendants. And Cross-Action. Hearing Date: August 14, 2024 Department 54, Judge Maurice Leiter Motion for Judgment on the Pleadings (Cross-Complaint) Moving Party: Cross-Defendants ADLI Law Group, P.C. and Dariush G. Adli Responding Party: Cross-Complainants Ali Salomi and Chadwick Tyner T/R: THE MOTION IS GRANTED IN ITS ENTIRETY AS TO CROSS-DEFENDANT ADLI LAW GROUP, P.C. THE MOTION IS GRANTED IN PART AS TO CROSS-DEFENDANT DARIUSH G. ADLI, WITH PARTIAL LEAVE TO AMEND WITHIN 30 DAYS. CROSS-DEFENDANT DARIUSH G. ADLI TO GIVE NOTICE. The Court considers the moving papers, opposition, and reply. BACKGROUND This is a dispute over legal fees. Plaintiffs Dariush G. Adli (Adli) and ADLI Law Group P.C. (ALG) sued defendants Skypanels, Inc., Ali Salomi, and Chadwick Tyner on November 12, 2020, alleging a single cause of action for breach of contract (retainer agreement) and claiming $33,343.25 in damages. Defendants Ali Salomi and Chadwick Tyner cross-complained against Plaintiffs on May 27, 2021 for intentional misrepresentation, negligent misrepresentation, unjust enrichment, conversion, unfair business practices, breach of contract (in two iterations), and civil theft (Penal Code § 496). Salomi and Tyner (Cross-Complainants) allege Adli and ALG overbilled them at least $40,000.00 for the services in question. On July 3, 2024, Plaintiffs moved for judgment on the pleading as to all causes of action in the cross-complaint. ANALYSIS A. Request for Judicial Notice Cross-Defendants request judicial notice of (1-3) each Cross-Complainants creditor claim filed in ALGs Chapter 11 bankruptcy proceeding, (4) the Bankruptcy Courts Order Confirming Debtor [ALG]s Fourth Amended Plan of Reorganization, and (5) the retainer agreement that allegedly underlies the parties dispute. The request is granted as to the first four documents and denied as to the fifth. B. ALGs Chapter 11 Bankruptcy Cross-Defendants contend ALG cannot be held liable because the Bankruptcy Courts February 21, 2023 Order discharged ALG of liabilities incurred prior to approval of its Plan. The Court has taken judicial notice of the order, which confirms ALGs Chapter 11 bankruptcy plan. (See RJN, Ex. 4, 4:7-8 [The Plan ... is hereby confirmed.].) [A]fter confirmation of a [bankruptcy] plan, the property dealt with by the plan is free and clear of all claims and interests of creditors, equity security holders, and of general partners in the debtor. (11 U.S.C. § 1141(c).) Absent certain exceptions, the confirmation of a plan ... discharges the debtor from any debt that arose before the date of such confirmation ... . (Id., subd. (d)(1)(A).) Cross-Complainants argue section 1141 does not apply because the moving party has never produced any written orders from the bankruptcy court pertaining to the Cross-Complaint. (Opp., 3:21-22.) But noticed materials show ALG was relieved of debts accrued prior to February 2023, by operation of law. The bankruptcy court does not need to make any special order directed to this proceeding. The motion is granted in its entirety as to ALG, without leave to amend. D. First and Second Causes of Action for Misrepresentation Cross-Complainants do not state a claim for either intentional or negligent misrepresentation. The elements of fraud [i.e., intentional misrepresentation], ... are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 428.) Negligent misrepresentation requires assertion of an untrue fact that is believed by the defendant to be true, lack of reasonable ground for the belief, defendants intent to induce plaintiffs reliance upon the representation, plaintiffs justifiable reliance upon the representation, and resulting damage. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781; Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Intentional and negligent misrepresentation must both be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Cross-Complainants allege that Cross-Defendants overcharged them. This is arguably a misrepresentation. But Cross-Complainants do not allege facts showing Cross-Defendants intentionally overcharged them with knowledge of the charges falsity and an intent to induce Cross-Complainants reliance. Without more facts, Cross-Complainants have not satisfied the heightened pleading standard for fraud. Motion for judgment on the pleadings is granted as to these causes of action, with leave to file an amended cross-complaint. C. Third Cause of Action for Unjust Enrichment Unjust enrichment is not a cause of action; it is a result of a defendants failure to make restitution. (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) But this is a distinction without a difference; restitution and unjust enrichment are synonymous under California law. (Melchior v. New Line Productions, Inc., supra, 106 Cal.App.4th at 793.) For this reason, courts regularly discuss, without contradiction, the elements of a claim for unjust enrichment [,] which are receipt of a benefit and unjust retention of the benefit at the expense of another. (Lyles v. Sangadeo-Patel (2014) 225 Cal.App.4th 759, 769, quoting Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132.) Cross-Complainants pled facts showing they paid Cross-Defendants overstated bill. If true, Cross-Defendants received Cross-Complainants money and continue to benefit from it unjustly at Cross-Complainants expense. This states a claim for unjust enrichment. But Cross-Defendants are correct that Cross-Complainants cannot recover on a restitution theory if they seek only to recover on the parties contract. (See Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.) The limitation is not absolute. [A] party to an express contract can assert a claim for restitution based on unjust enrichment by alleg[ing in that cause of action] that the express contract is void or was rescinded. (Ibid.) And [a] claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of an enforceable agreement. (Ibid., quoting Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1389.) But the party must allege its contract is void or voidable, or that there are some other equitable ground for recovery. Cross-Complainants have not done so here. The motion is granted as to the third cause of action, with leave to file an amended cross-complaint. D. Fourth and Eighth Causes of Action for Conversion and Receipt of Stolen Property Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.] (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (Fremont).) No cause of action lies for conversion where the property in dispute is voluntarily transferred, even if the transferee does not have a legal claim to possess it. (See Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271 [ there can be no conversion where an owner either expressly or impliedly assents to or ratifies the taking, use or disposition of his property. ].) Cross-Complainants allege they voluntarily paid Cross-Defendants, either based on the parties written retainer agreement or for work performed on a trademark matter. Because they concede they paid voluntarily, they have not stated a claim. Cross-Complainants claim under Penal Code § 496 fails for similar reasons. The Court is persuaded by the reasoning in Alvarez v. Adtalem Education Group, Inc. (Dec. 16, 2019, N.D.Cal. 19-cv-04079-JSW) [nonpub. opn.] 2019 WL 13065378, p. *5, cited in Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 370 (Groban, J., conc. opn.), where the federal district court, applying section 496, held [a] cause of action for civil theft cannot lie where a plaintiff received legitimate services based on mutual agreement to pay for those services.[1] (Ibid., citing AdTrader, Inc. v. Google LLC (July 13, 2018, N.D.Cal. 17-cv-07082-BLF) [nonpub. opn.] 2018 WL 3428525, pp. *9-*10.) These defects cannot be cured by amendment. Cross-Defendants motion is granted as to the fourth and eighth causes of action without leave to amend. E. Fifth Cause of Action for Unfair Business Practices The UCL bars unfair competition and defines the term as a business act or practice that is (1) fraudulent, (2) unlawful, or (3) unfair. & Each is its own independent ground for liability under the [UCL], but their underlying purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services & . (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1135, citations omitted.) [T]he UCL is a chameleon. & Depending on which prong is involved, a UCL claim may most closely resemble, in terms of the right asserted, an action for misrepresentation &, misappropriation &, price fixing &, interference with prospective economic advantage &, or any of countless other common law and statutory claims. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1196.) A claim for unfair practices arises from injury to consumers in general. (See Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1403.) Cross-Complainants have not alleged such injury. And as discussed above, Cross-Complainants have not pled any fraudulent practice. They have also not pled facts that tie Cross-Defendants alleged overbilling to any violation of law. They have not stated a claim under any prong of the UCL. The motion is granted as to the fifth cause of action, with leave to file an amended cross-complaint. F. Sixth and Seventh Causes of Action for Breach of Contract The elements of breach of contract are (1) the contract, (2) performance or excuse, (3) breach, and (4) injury. (Richman v. Hartley (2014) 222 Cal.App.4th 1182, 1186.) A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor's conduct. (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.) Cross-Complainants allege they had a retainer agreement and they paid Cross-Defendants according to that agreement, but Cross-Defendants did not perform the work Cross-Complainants paid them for. Cross-Complainants have pled a claim for breach of express contract based on the retainer agreement. Cross-Complainants may plead a breach of implied contract in the alternative. (See Berlanga v. University of San Francisco (2024) 100 Cal.App.5th 75, 82 [claims for express and implied contract]; Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1232 [concurrent claims based on express oral and implied-in-fact contracts that shared a common factual predicate].) Cross-Defendants contend Adli is not liable because ALG, not Adli, was the only one who signed the parties agreement. But this contention is based on the partys private contract, which is outside the four corners of the cross-complaint and not judicially noticeable. Cross-Complainants allege in their pleading they contracted with both Adli and ALG. That is sufficient to state a claim against Adli. The motion is denied as to the sixth and seventh causes of action. [1] Unreported federal court cases may be cited in California as persuasive authority. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 940.)

Ruling

ADOLFO FLORES, ET AL. VS KIA MOTOR AMERICA, INC., A CALIFORNIA CORPORATION

Aug 12, 2024 |19STCV13270

Case Number: 19STCV13270 Hearing Date: August 12, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 12, 2024 TRIAL DATE: Not set CASE: Adolfo Flores, et al. v. Kia Motor America, Inc. CASE NO.: 19STCV13270 MOTION FOR STAY OF PROCEEDINGS MOVING PARTY: Defendant Kia Motor America, Inc. RESPONDING PARTY: Plaintiffs Adolfo Flores and Olga Flores I. Introduction This Song-Beverly action arises out of Adolfo and Olga Floress (Plaintiffs) purchase of a used Kia Sorrento, VIN number 5XYKW4A7XEG452856 (the Subject Vehicle). The Subject Vehicle was sold with a warranty. Plaintiffs allege that, following their purchase, the engine of the Subject Vehicle had serious defects and nonconformities that made the Subject Vehicle prone to risk of an engine fire. On April 17, 2019, Plaintiffs filed a Complaint against Defendant Kia Motors America, Inc. (KIA or Defendant). The Complaint alleges causes of action for (1) Violation of Song-Beverly ActBreach of Express Warranty; (2) Violation of Song-Beverly ActBreach of Implied Warranty; (3) Violation of Song-Beverly Act Section 1793.2; (4) Fraudulent InducementConcealment; and (5) Fraudulent InducementMisrepresentation. On November 11, 2021, Defendant moved for summary adjudication of the second, third, fourth, and fifth causes of action. The court granted summary adjudication as to the fourth and fifth causes of action and denied adjudication as to the second and third causes of action. On September 9, 2022, the court denied Kias motion for judgment on the pleadings as to the first, second, and third causes of action. On October 7, 2022, Kia filed a motion for summary judgment, or summary adjudication, of the first, second, and third causes of action, based in part on the Court of Appeals opinion in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209 (Rodriguez). On April 25, 2023, the court denied Kias motion. On May 16, 2024, Kia filed this Motion for a Stay of Proceedings. Plaintiff filed an opposition. Kia replied. II. Discussion & Legal Standard Kia requests a stay of this action pending the California Supreme Courts ruling in Rodriguez which may impact the viability of Plaintiffs remaining causes of action. The court has the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.¿ (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; Code Civ. Proc., § 128, subd. (a).)¿ Here, the court finds a stay of these proceedings is appropriate because, in part, it is the most expedient use of resources. In Rodriguez, the Court of Appeal acknowledge[d] that in isolation the phrase other motor vehicle sold with a manufacturers new car warranty could arguably refer to any car sold with a manufacturers warranty still in force, but it agreed that context clearly requires a more narrow interpretation.¿ (Rodriguez, supra,¿77 Cal.App.5th at p. 220.)¿ The court noted that the phrase appears in a definition of¿new¿motor vehicles, strongly suggesting that the Legislature did not intend the phrase to refer to used (i.e., previously sold) vehicles.¿ (Ibid.)¿ The court also noted that more importantly, the phrase is preceded by a dealer-owned vehicle and demonstrator, which comprise a specific and narrow class of vehicles.¿ (Ibid.)¿ The Rodriguez court therefore concluded that the phrase other motor vehicles sold with a manufacturers new car warranty refers to cars sold with a full warranty, not to previously sold cars accompanied by some balance of the original warranty.¿ (Id.¿at p. 225.)¿ This holding conflicts with Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112.) Plaintiffs Song-Beverly claims concern the purchase of a used vehicle with a balance remaining on the express warranty. The facts of this case align with Rodriguez. Given that review of Rodriguez has been granted, and indeed the issues are fully briefed, the California Supreme Courts ruling will likely determine whether Plaintiff can maintain his Song-Beverly claims. Plaintiff opposes a stay on the following grounds: (1) this motion is an improper motion for reconsideration of the courts April 25, 2023 order wherein the court denied Kias request for a stay pending resolution of Rodriguez; and (2) Code of Civil Procedure section 128 does not a grant this court the power to grant the stay requested. Plaintiff is mistaken. First, the courts April 25, 2023 did not rule on Kias request for a stay. Indeed, the request is not mentioned at all. (See Minute Order, 4/25/23.) Second, Code of Civil Procedure section 128 expresses the courts broad power in controlling its processes. Subdivision (a)(8), in particular, states that very principle. The courts power to issue a stay such as the one requested by Kia is within the courts authority. The court, where necessary and not violative of the law, may even create new processes. (See James v. Superior Court (1978) 77 Cal.App.3d 169, 175 [referencing Code of Civil Procedure section 128(a)(8) as a source of the courts inherent power to create new forms of procedure in particular cases].) In sum, Plaintiffs arguments are unavailing. Moreover, Plaintiff fails to address the principal issue raised by Kias motion: the Supreme Courts pending decision is determinative of the viability of Plaintiffs Song-Beverly claims. A stay will serve the interests of justice by preventing potentially unnecessary litigation. IV. CONCLUSION Accordingly, the Motion For Stay of Proceedings is GRANTED. The court sets a Status Conference on January 10, 2025 at 9:00 a.m. re: California Supreme Courts ruling in Rodriguez. Moving party to give notice. Dated: August 12, 2024 Kerry Bensinger Judge of the Superior Court

Ruling

JEFFREY ALBERT SJOBRING VS. FIRST AMERICAN TITLE CO ET AL

Aug 16, 2024 |BC329482

Case Number: BC329482 Hearing Date: August 16, 2024 Dept: 14 SJOBRING V. FIRST AMERICAN TITLE INSURANCE COMPANY FIRST AMERICAN TITLE INSURANCE COMPANY v. PATRICK AND GLORIA KIRK Case No.: BC329482 r/t BC370141 and BC382826 Hearing Date: 8/14/24 Department 14 DEFENDANTS MOTION IN LIMINE NO. 9 TO EXCLUDE REFERENCE TO PRIOR DISCOVERY ORDERS TENTATIVE RULING Grant Defendants MIL#9 DISCUSSION I. Background In their motion in limine #9, Defendants move for an order in limine excluding the introduction into evidence, or any reference, to selected discovery orders from the 2007-2010 time period. A. Relevance and probative value vs. prejudice [The Court incorporates by reference its discussion of the standards governing relevance and probative value vs. prejudice in its analysis of Defendants MIL #1.] Between 2007-2010, the prior discovery referee issued a series of discovery orders. Defendants argue that fifteen (15) of these discovery orders were referenced in the Plaintiffs opposition to Defendants motion for summary judgment. Defendants argue that these discovery orders are not relevant to any issue in the case; reference to such orders would be improper without complying with the governing Discovery Act procedures for the issuance of discovery sanctions and admonitions, (3) the Discovery Orders contain impermissible hearsay, and (4) even if the Discovery Orders were probative of any issue at trial, which they are not, references to the cherry-picked universe of orders would be unfairly prejudicial. According to Plaintiffs, though, these orders are relevant for two reasons: (1) They evidence First Americans consciousness of guilt; and (2) They irrefutably rebut First Americans insincere and unsupported claim that the Ratepayers engaged in discovery abuse and delayed the case.--------------------------------------------------------------------------------------------------------------------------------------------------------------------------1SJOBRING v. FIRST AMERICAN TITLE INSURANCE COMPANYFIRST AMERICAN TITLE INSURANCE COMPANY, ET AL. V. PATRICK AND GLORIA KIRK, ET AL.No.: BC329482 r/t BC370141 and BC382826Hearing Date: 8/16/24Department 14I.PLAINTIFFS MOTION IN LIMINE NO. 1 FOR A RULING THAT DOCUMENTS AUTHORED BY FIRST AMERICAN AND PRODUCED BY FIRST AMERICAN IN DISCOVERY ARE AUTHENTIC AND NON-HEARSAYTENTATIVE RULINGDefer order on MIL #1; require the parties to meet and confer as to those documents for which a stipulation can be reached regarding authenticity and hearsay; to the extent disputes exist over the authenticity of documents and whether said documents constitute hearsay, require Plaintiffs to make a proffer at the appropriate timeI. BackgroundIn anticipation of trial in this matter, Plaintiffs and Defendants have filed a series of motions in limine. In the instant motion in limine, Plaintiffs move for an order in limine finding that: (1) documents produced by Defendants First American Title Insurance Company and First American Title Company (collectively, First American) in discovery in this matter are authentic, and (2) such documents, to the extent they were authored by First American and are offered against First American at trial, are authorized admissions and thus excepted from the normal rule that hearsay evidence is inadmissible.A. Request for Judicial NoticeIn connection with MILs 1-8, Plaintiffs request for judicial notice is granted as to each exhibit pursuant to Evidence Code §452(d). Each of these exhibits is a record of a court of the State of California, and is subject to judicial notice under this section. The Court does not judicially notice the truth of the matters set forth within exhibits 4-8, and judicial notice of these exhibits is limited to the fact that they comprise part of the trial record in Kirk v. First American.B. Motion in Limine #11. General standards governing authenticationWritings must be authenticated before they are received into evidence or before secondary evidence of their contents may be received. Evidence Code §1401; Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525-526; Osborne v. Todd Farm Service )2016) 247 Cal.App.4th 43, 53; People v. Goldsmith (2014) 59 Cal.4th 258, 266; Jacobson v. Gourley (2000)283 Cal.App.4th 1331, 1334; California Practice Guide, Civil Trials & Evidence, ¶8:315 (The Rutter Group 2023). Authentication means either: the introduction of evidence sufficient to sustain a finding that the writing is what the proponent claims it is; or the establishment of such facts by any other means provided by law (e.g., stipulation or admissions). California Practice Guide, Civil Trials & Evidence, ¶8:317 (The Rutter Group 2023); People v. Goldsmith (2014) 59 Cal.4th 258, 266-267; Jacobson v. Gourley, supra, 83 Cal.App.4th at 1334; People v. Smith (2009) 179 Cal.App.4th 986, 1001.Certain types of writing may be authenticated by judicial notice. Evidence Code §§451 and 452. Certain documents are presumed authentic (e.g., notarized deeds or certified copies of public records). California Practice Guide, Civil Trials & Evidence, ¶8:325 (The Rutter Group 2023). The party offering the writing has the burden of offering sufficient evidence of its authenticity to sustain a finding of fact to that effect. Evidence Code §403(a)(3). The judge alone determines whether there is sufficient evidence to sustain a finding of authenticity. Evidence Code §§403, 1400; Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 65. As long as the proponents evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to its weight as evidence, not its admissibility. California Practice Guide, Civil Trials & Evidence, ¶8:331 (The Rutter Group 2023); McAllister v. George (1977) 73 Cal.App.3d 258, 261-263.A writing may be authenticated by evidence that the party against whom it is being offered has acted upon the writing as authentic. Evidence Code §1414(b); People v. Lynn (1984) 159 Cal.App.3d 715, 735; Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 326; California Practice Guide, Civil Trials & Evidence, ¶8:356 (The Rutter Group 2023).The court has discretionary power to admit a writing into evidence even before its authenticity is established...subject to proof of authenticity being supplied later in the course of the trial. Evidence Code §403(b). If such proof fails, the opposing party must move to strike the writing from evidence; and may ask that the jury be admonished to disregard it. California Practice Guide, Civil Trials & Evidence, ¶8:334 (The Rutter Group 2023).Authentication of internet sources presents a special problem. Because (a)nyone can put anything on the Internet and hackers can adulterate the content on any web-site from any location at any time, evidence procured from the Internet must be properly authenticated. California Practice Guide, Civil Trials & Evidence, The Rutter Group, §8:359 (citing People v. Beckley (2010) 185 Cal.App.4th 509, 515-516; Wady v. Provident Life & Acc. Ins. Co. of America (CD CA 2002) 216 F.Supp.2d 1060, 1064-1065). Various factors may provide a basis for authenticating Internet-based material as evidence, including: 1) distinctive characteristics (unique characteristics of Internet material may be sufficient to establish authenticity see ACTONet, Ltd. v. Allou Health & Beauty Care (8th Cir. 2000) 219 F.3d 836, 848 and Florida Conference Assn. of Seventh Day Adventists v. Kyriakides (CD CA 2001) 151 F.Supp.2d 1223, 1225, fn.3); 2) the context in which the party obtained documents (courts may also consider the context in which a party obtained Internet-based material to determine its authenticity see Florida Conference Assn .v Seventh Day Adventists, supra, 151 F.Supp.2d at 1225, fn.3); 3) the content (the content of the Internet-based material may be a factor in establishing its authenticity Florida Conference Assn., supra, at 1225, fn.3); and 4) the preparers testimony (testimony3from the person who created the Internet-based document attesting to how the material was prepared and its accuracy may also establish authenticity see United States v. Tank (9th Cir. 2000) 200 F.3d 627, 630-631). California Practice Guide, Civil Trials & Evidence, ¶¶8:359.1-8:359.5 (The Rutter Group 2023).2. Standard governing relevanceUnder Evidence Code §350, [n]o evidence is admissible except relevant evidence. Relevant evidence is evidence that has a tendency in reason to prove or disprove any disputed fact or consequence to the determination of the action.3. AdmissionsAdmissions made, adopted or authorized by, or imputable to, a party to the action are admissible under several exceptions to the hearsay rule. California Practice Guide, Civil Trials and Evidence, ¶8:1136 (The Rutter Group 2023) (citing Evidence Code §§1220-1227). Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party&. Evidence Code §1220.However:[S]tatements assertedly made by a corporation are not usually analyzed as party admissions under Evidence Code section 1220, but rather as authorized admissions under Evidence Code section 1222.Under Evidence Code section 1222, Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement .... (Evid. Code, § 1222, subd. (a).) Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 611.In their MIL#1, Plaintiffs seek a blanket order in limine, permitting them to introduce at trial documents created by First American in discovery, with a finding that such documents are authentic and admissible (if Plaintiffs make a proffer that such documents are relevant). Additionally, Plaintiffs seek an order finding that the First American-produced documents are authorized admissions, and not inadmissible hearsay.According to Plaintiffs, they seek to obviate the need to authenticate each document produced by First American in discovery, arguing that such documents are authentic as authorized admissions (and not inadmissible hearsay).However, the instant motion is extremely broad. The Court cannot make a blanket order at this time with respect to whether all documents Plaintiffs seek to introduce constitute hearsay (and/or hearsay within hearsay) or are otherwise authentic, especially given the fact that Defendants have expressed their intent to dispute the admissibility of specific documents.4With that said, Defendants have agreed that there are many documents that have been produced and that are indisputably authentic and non-hearsay. [Defendants Opposition 2:5-6.] The parties are ordered to engage in further meet-and-confer efforts in an attempt to reach a stipulation as to the authenticity and non-hearsay status of such documents.To the extent documents remain for which the parties cannot reach a stipulation on authenticity and non-hearsay, the Court defers a ruling on said documents, and will require a proffer at the appropriate time Plaintiffs seek to introduce the document.II.PLAINTIFFS MOTION IN LIMINE NO. 2 TO PRECLUDE DEFENDANTS FROM DISPUTING STATEMENTS MADE BY DEFENDANTS THROUGH INDIVIDUALS DESIGNATED AS PERSONS MOST QUALIFIEDTentative RulingDeny Plaintiffs MIL #2DISCUSSIONI. BackgroundIn the instant motion in limine, Plaintiffs move for an order in limine precluding First American from disputing, contradicting, or contesting factual statements or admissions made by First American through individuals it designated and produced as persons most qualified to testify in response to depositions noticed by class representative Sjobring under CCP§ 2025.230A. CCP §2025.230Under CCP §2025.230, [i]f the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.In their MIL#2, Plaintiffs seek an order in limine, precluding Defendant from contradicting the deposition statements and admissions by its PMQs. As laid out in the motion, Plaintiffs reference numerous instances where various of Defendants PMQs (designated separately for various topics) understood that their testimony would be binding on Defendants. According to Plaintiffs, such testimony constitutes judicial admissions and binds Defendants.A partys deposition answers are admissible as party admissions or for impeachment purposes but are not conclusive of the matter and may be contradicted by other evidence. See California Practice Guide, Civil Trials and Evidence, ¶8:1245 (The Rutter Group 2023) (citing CCP §2025.620; Mayhood v. LaRosa (1962) 58 Cal.2d 498, 500-501).5As discussed by the Court of Appeal in Scalf v. D.B. Log Homes, Inc.:For summary judgment purposes, deposition answers are simply evidence. Subject to the self-impeachment limitations of D'Amico, they are considered and weighed in conjunction with other evidence. They do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading [citations], or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit. [Citation.] Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522 (emphasis added).As Defendants point out (and as this Court previously acknowledged in its prior rulings), the Plaintiffs theory of recovery in this case has changed from its inception. Thus, context is everything. Many of the PMQ depositions were taken years ago, before the evolution of Plaintiffs theory of recovery. It is precisely for that reason that the policy enunciated in Scalf above is so important.Plaintiffs, of course, will be free to attempt to highlight contradictions in the PMQ testimony at trial and Defendants subsequent explanations/clarifications of said testimony. The trier of fact will ultimately be given the opportunity to weigh such evidence. However, the Court will not enter a blanket order that all such PMQ deposition testimony is binding on the Defendants as a judicial admission.In doing so, the Court will also not permit references to a PMQ witness by Plaintiffs at trial; only references to lay witnesses and expert witnesses.In LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, the Court of Appeal stated:The Evidence Code recognizes only two types of witnesses: lay witnesses and expert witnesses. Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. (Evid. Code, § 702, subd. (a).) Evidence Code section 801 governs the testimony of an expert witness, who may provide an opinion based on hearsay which need not always be based on personal knowledge.There is no special category of corporate representative witness&.[¶] The Evidence Code also does not recognize a special category of person previously designated as most knowledgeable witness. Person most qualified is a term from the Code of Civil Procedure pertaining to depositions of entities which are not natural persons. LAOSD Asbestos Cases, 87 Cal.App.5th at 947-948.For these reasons, Plaintiffs MIL #2 is denied.6III.PLAINTIFFS MOTION IN LIMINE NO. 3 TO EXCLUDE REFERENCES TO ANY AND ALL MARKET CONDUCT EXAMSTENTATIVE RULINGDefer an order Plaintiffs MIL #3 subject to Defendant laying the foundation that the Market Conduct Exam satisfies the strictures of Evidence Code §1280s governmental records exception to the hearsay ruleDISCUSSIONI. BackgroundIn their motion in limine #3, Plaintiffs move for an order in limine precluding First American from submitting into evidence, discussing, or questioning any witness about Market Conduct Examinations by the California Department of Insurance.A. Relevance and probative value vs. prejudiceUnder Evidence Code §350, [n]o evidence is admissible except relevant evidence. Relevant evidence is evidence that has a tendency in reason to prove or disprove any disputed fact or consequence to the determination of the action.Evidence Code §352 provides:The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.The prejudice §352 is designed to avoid is directed at evidence that uniquely tends to evoke an emotional bias against (a party) as an individual and which has very little effect on the issues. California Practice Guide, Civil Trials and Evidence, ¶8:3208 (The Rutter Group 2023) (citing People v. Karis (1988) 46 Cal.3d 612, 638; Ajaxo, Inc. v. E*TRADE Group, Inc. (2005) 135 Cal.App.4th 21, 45; Green v. County of Riverside (2015) 238 Cal.App.4th 1363, 1369-1370). Further, [p]rejudice in the context of Ev. C. §352 means the evidence is of such nature as to inflame the emotions of the jury, motivating them to use the information&to reward or punish one side because of the jurors emotional reaction. California Practice Guide, Civil Trials and Evidence, ¶8:32010 (The Rutter Group 2023) (citing People v. Doolin (2009) 45 Cal.4th 390, 439; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008; Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1014; People v. Cowan (2010) 50 Cal.4th 401, 477; People v. Scott (2011) 52 Cal.4th 452, 491).B. HearsayHearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.7Evidence Code §1200(a). Except as provided by law, hearsay evidence is inadmissible. Evidence Code §1200(b).In their MIL#3, Plaintiffs seek an order in limine, precluding Defendant from submitting into evidence, discussing, or questioning any witness about Market Conduct Examinations by the California Department of Insurance (CDI). As explained in the motion, the CDI regulates insurers in California, including Defendant First American. The CDI issued a document entitled Report of Market Conduct Examination of the Rating and Underwriting Practices of the First American Title Insurance Company (the Market Conduct Exam). [Exh. 1 to Freedman Declaration in Support of MIL #3.]Among other things, the Market Conduct Exam discusses First Americans method of doing business, advertising materials, authorized classes of business, authorized counties for affiliated underwritten title companies, and a premium and loss experience study. The Market Conduct Exam reviewed First Americans Title business, including a review of 343 in-force title policies and escrow files. [Market Conduct Exam at 10.] The examiner, as provided in the report, identified 103 rating errors and 10 non-rating errors, and alleged violations of 13 provisions of California law. [Id.] A summary table of the policy review results appears at page 11 of the Market Conduct Exam. [Market Conduct Exam at 11.]According to Plaintiffs, Defendant First American will seek to introduce the Market Conduct Exam to show that CDIs failure to cite First American for overcharges means no such overcharges occurred. [Motion at 3:25-26.] Plaintiffs argue that the Market Conduct Exam constitutes hearsay, and that any probative value of the Market Conduct Exam is outweighed by undue prejudice.Subject to specified foundational requirements, evidence of a public employees writing made in the performance of official duties as a record of an act, condition or event is admissible in any civil or criminal proceeding to prove the act, condition or event. California Practice Guide, Civil Trials and Evidence, ¶8:1682 (The Rutter Group 2023) (citing Evidence Code §1280).Admissibility of the writing under §1280 turns on the following foundational requirements:"The writing must have been made by a public employee within the scope of the public employee's official duties (Ev.C. § 1280(a));"The record must have been made at or near the time of the act, condition or event recorded (Ev.C. § 1280(b)); and"The sources of information and method and time of the record preparation must have been such as to indicate its trustworthiness California Practice Guide, Civil Trials and Evidence, ¶8:1682 (The Rutter Group 2023) (citing Ev.C. § 1280(c)) (emphasis added by Rutter Guide)).Here, the Court will require a proffer from Defendant that the report, prepared by CDIs Senior Insurance Rate Analyst Jerome Tu, performed the exam within the scope of his official8duties, and that the other requirements under §1280 are satisfied. If that proffer is made, then the Market Conduct Exam will qualify under §1280s governmental record exception to the hearsay rule.The document is plainly relevant, as it tends to support Defendants argument that it charged lawful rates, and committed no misrepresentation with regard to the rates. Additionally, the probative value of the Market Conduct Exam is not outweighed by any undue prejudice, within the meaning of Evidence Code §352 above.Of course, Plaintiffs will be free to highlight the statement in the Market Conduct Exam that the [f]ailure to identify, comment on, or criticize non-compliant activities does not constitute acceptance of such activities. Additionally, Plaintiffs may attempt to attack the Market Conduct Exam on other grounds. The trier of fact will consider such evidence (to the extent it is admissible at trial), including the testimony of Douglas Barker and James Dufficy. The objections lodged by Plaintiffs to the Market Conduct Exam go to the weight the jury will place on this evidence, rather than to its admissibility.For these reasons, the Court will defer an order Plaintiffs MIL #3 subject to Defendant laying the foundation that the Market Conduct Exam satisfies the strictures of Evidence Code §1280s governmental records exception to the hearsay rule.IV.PLAINTIFFS MOTION IN LIMINE NO. 4 TO EXCLUDE DOCUMENTS PRODUCED BY THE CALIFORNIA DEPARTMENT OF INSURANCETENTATIVE RULINGDefer an order Plaintiffs MIL #4 subject to Defendant making a proffer that specific DOI documents are nonhearsay (or fall under an exception to the hearsay rule), relevant, and that the probative value of such document(s) outweighs any undue prejudiceDISCUSSIONI. BackgroundIn their motion in limine #4, Plaintiffs move for an order in limine precluding Defendant First American from submitting into evidence, discussing, or questioning any witness about any documents produced by the California Department of Insurance in this litigation.II. MotionA. Legal standards and Discussion[The Court incorporates by reference the standards for relevance, probative value vs. prejudice, and hearsay, discussed in its analysis of Plaintiffs MIL #3.]9In their MIL#4, Plaintiffs seek an order in limine, precluding Defendant from submitting into evidence, discussing, or questioning any witness about any documents produced by the California Department of Insurance.The motion, as crafted, is extremely broad. The Court cannot issue an order in limine in a vacuum. To the extent Defendant First American seeks to introduce specific documents prepared by the CDI for use at trial, First American will be required to make a proffer, demonstrating that a given CDI document is relevant, that the probative value of the document is not outweighed by any undue prejudice, and that the document itself is either not hearsay or falls within one or more exceptions to the hearsay rule. As the Court does not know which CDI document(s) it plans to rely on and introduce at trial, the Court defers any ruling on the motion, subject to Defendant making this proffer at trial.V.PLAINTIFFS MOTION IN LIMINE NO. 5 TO EXCLUDE EVIDENCE OR ARGUMENT THAT THE CDI APPROVES OR PASSES JUDGMENT ON RATES CHARGED BY TITLE COMPANIES AND TITLE INSURERSTENTATIVE RULINGDefer an order Plaintiffs MIL #5 subject to Defendant making a proffer at trial with respect to the alleged approval by the CDI of its rates in question.DISCUSSIONI. BackgroundIn their motion in limine #5, Plaintiffs move for an order in limine precluding Defendants from seeking to suggest to the jury in any way, whether through offering evidence, questioning witnesses, or argument, that the Department of Insurance (CDI) approves the rates filed by title insurance companies, or that the CDI approved the rates at issue in this case.II. MotionIn their MIL#5, Plaintiffs seek an order in limine, precluding Defendants from seeking to suggest to the jury in any way, whether through offering evidence, questioning witnesses, or argument, that the Department of Insurance (CDI) approves the rates filed by title insurance companies, or that the CDI approved the rates at issue in this case.According to Plaintiffs, there are no challenges in this case to the Schedule of Fees itself or the rates reflected therein. However, Plaintiffs argue, Defendants want to argue that the CDI approved the fees or rates in question. [Motion at 4:7-9.] Plaintiffs argue that it is now beyond dispute that CDI does not approve title insurance rates. Sjobring v. First Am. Title Ins. Co. (Aug. 24, 2022, No. B293732), 2022 Cal.App.Unpub. LEXIS 5252 at *14 (citing Villanueva v. Fidelity National Title Co. (2021) 11 Cal.5th 104, 113). Plaintiffs reference the deposition of CDIs PMQ Douglas Barker, where he testified that CDI applied a file and use system to title insurance (allowing title companies to file rates and then use them without approval of the CDI).10[Motion at 4:12-14.] He also declared that CDI did not and does not approve filings by title insurers. [Plaintiffs RJN, Exh. 7, Barker Decl., ¶6.]Plaintiffs argue that while First American could characterize its filings as having been accepted by the CDI, to imply that the CDI approved the rate filings at issue would be false as a matter of law and fact. [Motion at 8:10-12.]The remaining claims in this litigation are for fraudulent and negligent misrepresentation. As Defendant First American argues, First Americans state of mind will be relevant in assessing potential affirmative defenses at trial. Therefore, evidence relied on by First American in effectuating its rate filings (including correspondence with the CDI and terminology used by CDI) may be relevant to these defenses.As examples, Defendant First American highlights the CDI Rate Analyst Worksheet, File No. 97-910 (created by CDI in Response to Defendants January 10, 1997 Rate Filing for the First Generation Eagle Policy); the CDI Rate Analyst Worksheet, File No. 98-7825 (created by CDI in Response to Defendants June 12, 1998 Rate Filing for the Second Generation Eagle Policy); and the June 24, 1998 Letter from CDI (Mr. D. Lawrence Buggage) to Defendants (Ms. Caroline OKelley). It would be inappropriate to issue a blanket order barring Defendant First American from arguing the CDI approves insurance rate filings. Such a determination would be for the trier of fact at trial. The trier of fact, of course, will be tasked with determining whether, in fact, CDI approved the rates (pursuant to the Insurance Code provisions governing rate filings, including §§12401.1 and 12401.7) or whether, as Plaintiffs argue, the rates were merely accepted (but not necessarily approved by CDI).The motion (as with Plaintiffs MIL #4) is overly broad. The effect of the CDIs actions with respect to the filed rates is a hotly disputed issue, and the Court cannot issue an order in limine as to non-specific evidence. The Court therefore generally defers any order in limine with respect to this motion, subject to Defendant First American making a proffer at trial with respect to the alleged approval by the CDI of its rates in question.VI.PLAINTIFFS MOTION IN LIMINE NO. 6 TO EXCLUDE REFERENCE TO RATES CHARGED BY OTHER TITLE INSURANCE COMPANIESTENTATIVE RULINGDefer an order Plaintiffs MIL #6, subject to a limiting instruction, that evidence of out of market rates may only be considered: 1) in assessing the calculation of Plaintiffs damages in this case (if any); and 2) as a measure of the fair market value of the insurance Plaintiffs purchased.DISCUSSIONI. Background11In their motion in limine #6, Plaintiffs move for an order in limine precluding Defendants from introducing any evidence regarding rates charged by title insurance companies other than First American or from discussing or questioning any witnesses about other companies rates.A. Legal standards[The Court incorporates by reference the standards for relevance and probative value vs. prejudice, discussed in its analysis of Plaintiffs MIL #3.]In their MIL#6, Plaintiffs seek an order in limine, precluding Defendants from seeking to introduce any evidence of rates charged by other insurance companies. Under Plaintiffs theory, these rates charged by other insurers is irrelevant to whether Defendant First Americans own charged rates were higher than its filed rates.Generally, the motion is well-taken. There is a significant danger that the jury may be confused, and Plaintiffs unduly prejudiced, by allowing evidence of the rates charged by other competing insurers into evidence.Defendant First American, though, argues that such evidence is relevant to damages (measured in this case by the difference between the purchase price and market value of property purchased see Gulke v. Brock (1963) 222 Cal.App.2d 459, 460). Here, according to Defendant First American, the value in question refers to its fair market value (CACI No. 1923), defined as the highest price that a willing buyer would have paid on the date of the transaction to a willing seller&. See CACI 1923; Restatement (Second) of Torts §549, comment, Clause 1(a).With that said, the Court may consider allowing such evidence, subject to a limiting instruction, that evidence of out of market rates may only be considered: 1) in assessing the calculation of Plaintiffs damages in this case (if any); and 2) as a measure of the fair market value of the insurance Plaintiffs purchased. The danger the Court foresees is permitting evidence of the rates charged by a litany of title insurers, and the jury being confused by these outside rates as a measure of what Defendant First American actually may owe in damages. This is, after all, not a case about outside insurers filed rates and the rates they charged it is a case about First Americans filed rates and the rates they charged for title insurance.The Court therefore defers an order on Plaintiffs MIL #6, subject to an appropriate limiting instruction.VII.PLAINTIFFS MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OR ARGUMENT THAT THE PURCHASERS OF EAGLE OWNERS POLICIES WERE UNDERCHARGEDTENTATIVE RULINGDeny Plaintiffs MIL #7DISCUSSION12I. BackgroundIn their motion in limine #7, Plaintiffs move for an order in limine precluding Defendants from suggesting through evidence or argument that if the Ratepayers position is correct, the purchasers of Eagle Owners policies were undercharged.A. Legal standards[The Court incorporates by reference the standards for relevance and probative value vs. prejudice, discussed in its analysis of Plaintiffs MIL #3.]In their MIL#7, Plaintiffs seek an order in limine, precluding Defendants from suggesting through evidence or argument that if the Ratepayers position is correct, the purchasers of Eagle Owners policies were undercharged. Plaintiffs have alleged in this case that because Defendants Eagle Owners Policy was an extended coverage policy during the class period, the lawful price for a lenders policy issued concurrently with an Eagle Owners policy was $125, and First American charged class members more than this amount. [Motion at 3:3-6.] Conversely, according to Plaintiffs, First American contends that because its Eagle Owners policy was a standard coverage policy for pricing purposes during the class period, it charged class members the lawful price for a lenders policy issued concurrently with an Eagle Owners policy, even if the price exceeded $125. [Motion at 3:6-9.] According to Plaintiffs, whether those who paid for Eagle Owners policies were undercharged by First American has no bearing on the nature of that policy; nor is it relevant to what the lawful price would have been for a lenders policy issued concurrently with an Eagle Owners policy. [Motion at 3:13-16.]Plaintiffs anticipate that First American will attempt to insinuate and argue that if First American overcharged class members for concurrently-issued lenders policies, then it necessarily undercharged for Eagle Owners policies in the same transactions. [Motion at 3:21-24.] Such evidence, Plaintiffs argue, has no probative value, especially to the critical determination of the nature of Eagle Owners policies, and would create a substantial danger of confusing the issues and misleading the jury. [Motion at 3:24-26.] This, Plaintiffs argue, is because owners policies and lenders policies are separate insurance policies, protecting different people or entities; there is no requirement they be purchased from the same company, or even in the same transaction.At bottom, Plaintiffs argue that any undercharges in class transactions were of First Americans own making and were a risk that First American assumed when issuing the subject policies. [Motion at 4:14-16.] Plaintiffs point to the Courts ruling and order granting the Kirk Cross-Defendants motion for summary judgment, finding that underpaying was of First Americans own making and that policy considerations dictate that First American assumed the risk of any error when it issued the policy to the Kirk Cross-Defendants. [Courts Ruling and Order granting Kirk Cross-Defendants Motion for Summary Judgment at 18.] The Court ruled that the Kirk Cross-Defendants were not, and could not have been, unjustly enriched and that First American is not entitled to restitution from the Kirk Cross-Defendants. [Id. at 25.] This rationale, according to Plaintiffs, applies in full force to the First American policies at issue here.13As such, Plaintiffs seek to preclude First American from suggesting that those who paid for Eagle Owners policies during the class period were undercharged.Thus, Plaintiffs argue that if, during the class period, an Eagle Owners policy provided extended coverage, then First American was required to charge class members $125 for a concurrently issued lenders policy, regardless of how much it charged for an Eagle Owners policy. [Motion at 5:11-13.] It would not matter if the price for the Eagle Owners policy were $100, $1,000, or $10,000 if an Eagle Owners policy was an extended coverage policy, then charging anything more than $125 for a concurrently issued lenders policy would be an unlawful rate, Plaintiffs argue. [Motion at 5:13-17.]Here, however, Defendant First American has an active cross-complaint and affirmative defenses, centered on an offset for any damages to which Plaintiffs may be entitled. Defendant First Americans theory is that if the Eagle Owners Policy falls within the defined term Extended Coverage for pricing purposes, evidence of the premium actually paid for Eagle Owners Policies and the premium that should have been paid [it] is necessary for the jury to determine what, if any, damages Sjobring and class members suffered when they purchased a concurrent loan policy. [Opposition at 5:1-4.] Thus, as Defendants theory goes, if the class is awarded damages, a portion of those same class members underpaid First American for the Eagle Owners policies. [Opposition at 5:7-9.] The jury will ultimately be entrusted with making these damages determinations, and the offset is a component of that. While the jury may be free to disregard it, such evidence is relevant, and it would be improper to summarily prevent First American from making the offset argument based on the amounts charged and paid for the Eagle Owners Policy. The probative value of this evidence otherwise would not result in undue prejudice to Plaintiffs.The instant motion essentially seeks to summarily adjudicate one of First Americans affirmative defenses. This is procedurally improper. Per LASC Local Rule 3.57(b), A motion in limine may not be used for the purpose of seeking summary judgment or the summary adjudication of an issue or issues.Further, while the Court recognizes its ruling and order on the Kirk Cross-Defendants motion for summary judgment on the cross-complaint, the Court explicitly stated in that order that it was making no determination on the main issue in the instant Sjobring case whether the policies are properly characterized as standard versus extended coverage. Nor was the Court deciding whether First Americans conduct was wrongful, or whether Plaintiff Sjobring (or the class) were entitled to damages or any amount of offset due.For these reasons, the Court denies motion in limine #7.14VIII.PLAINTIFFS MOTION IN LIMINE NO. 8 TO EXCLUDE REFERENCE TO PRIOR ORDERS, JUDICIAL STATEMENTS, OR DISMISSED CLAIMSTENTATIVE RULINGDefer order on Plaintiffs MIL #8 as overly broad, subject to renewal of objection to specific evidence First American may seek to introduce at trialDISCUSSIONI. BackgroundIn their motion in limine #8, Plaintiffs move for an order in limine precluding Defendants from referring to or discussing prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit.A.Legal standards[The Court incorporates by reference the standards for relevance, probative value vs. prejudice, and hearsay, discussed in its analysis of Plaintiffs MIL #3.]B. DiscussionIn their MIL#8, Plaintiffs seek an order in limine, precluding Defendants from referring to or discussing prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit.Conceptually, the Court agrees that statements by the Court in this case (or by prior judges in this case) about the merits of the claims, attorneys, witnesses, or dismissed claims in the lawsuit are generally not relevant, may constitute undue prejudice, and may constitute hearsay. However, MIL #8 is very broad, and the Court cannot anticipate what (if any) specific evidence First American may introduce that invokes such statements, but which may otherwise be admissible under Evidence Code §§350 and 352 and may not constitute hearsay (or satisfy one or more exceptions to the rule).In light of this, it is appropriate for the Court to defer an order on Plaintiffs MIL #8, subject to renewal by Plaintiffs objecting to specific evidence Defendants may introduce which encompasses the category of prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit. At the outset, the discovery orders are not evidence in this case. Nor is the discovery conduct of Defendant (or, for that matter, Plaintiffs). These orders are not relevant to any issue in 2 the case, and admission of the order(s) would result in undue prejudice. The Court disagrees with Plaintiffs that such orders are admissible to support the inference that First American knew the discovery at issue would prove its liability and therefore stonewalled and attempted to suppress the evidence. [Opposition at 5:14-16.] Admission of any such orders as evidence would be inappropriate, and the motion is granted. Plaintiffs, in their MIL #8, move for an order in limine precluding Defendants from referring to or discussing prior statements by judges in this or other cases about the merits of the claims, the attorneys, or the witnesses in this lawsuit, as well as any reference to claims that have been dismissed in this lawsuit. The Court, as discussed in its analysis of that motion, has deferred any such order, pending a showing that specific evidence falling within this category is relevant, non-hearsay, and whose admission would not be unduly prejudicial. However, the Plaintiffs MIL #8 is broader than what Defendants seek to preclude here - the actual discovery referees discovery orders, which, the Court finds, are not admissible.

Ruling

Antonio Asevedo, et al. vs Ernestina Mendoza, et al.

Aug 14, 2024 |23CV-04023

23CV-04023 Antonio Asevedo, et al. v. Ernestina Mendoza, et al.Court TrialAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance.

Ruling

JUSTIN SMITH VS ALLA ZORIKOVA, ET AL.

Aug 14, 2024 |24STCV04100

Case Number: 24STCV04100 Hearing Date: August 14, 2024 Dept: 32 JUSTIN SMITH, Plaintiff, v. ALLA ZORIKOVA, et al., Defendants. Case No.: 24STCV04100 Hearing Date: August 14, 2024 [TENTATIVE] order RE: defendant olivia jeongs motion to quash service of summons BACKGROUND On February 20, 2024, Plaintiff Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong, and Joycelyn Yew. The complaint asserts causes of action for (1) violation of the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition Law (UCL), and (3) fraud. Plaintiff alleges that Defendants run an illegal dog breeding operation and operate out of Defendant Lews home in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy from Defendants that turned out to be sick, dirty, and not properly socialized. Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to another buyer himself. On July 18, 2024, Defendant Jeong filed the instant motion to quash based on defective service of the summons and complaint. Plaintiff has not filed an opposition. LEGAL STANDARD [T]he court in which an action is pending has jurisdiction over a party from the time summons is served on him as provided by Chapter 4 (commencing with Section 413.10). (Code Civ. Proc, § 410.50(a).) [A] court acquires jurisdiction over a party by proper service of process or by that party's general appearance. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547.) Actual notice of a lawsuit is not a substitute for proper service of process. (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206.) A defendant may serve and file a notice of motion to quash service of summons on the ground that the court lacks jurisdiction. (Code Civ. Proc., § 418.10(a).) DISCUSSION A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. (Code Civ. Proc., § 415.10.) Alternatively, a summons may be served by leaving a copy of the summons and complaint at the persons dwelling house, usual place of abode, usual place of business, or usual mailing address, in the presence of a competent member of the household or a person apparently in charge, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and complaint to the same location. (Id., § 415.20.) According to a proof of service filed June 13, 2024, a registered process server effectuated substitute service on Defendant Lew at 3:22pm on February 29, 2024 by serving a John Doe standing outside the front door. According to the proof of service, John Doe confirmed that the defendants (other than Olivia Jeong) resided at the address but were unavailable at the moment. John Doe then allegedly refused to accept the summons and complaint, whereafter the server left the papers at the front door. Defendant Jeong denies residing at the address, and the process servers own account shows that he was informed Defendant Jeong did not reside at the address. Plaintiff cannot effectuate substitute service at an address where Defendant does not reside. Plaintiff does not oppose the motion and effectively concedes the service defect. CONCLUSION Defendant Jeongs motion to quash service of summons is GRANTED.

Ruling

Pritchard vs. Fisher's Decorative Concrete Design, et al.

Aug 14, 2024 |22CV-0200569

PRITCHARD VS. FISHER'S DECORATIVE CONCRETE DESIGN, ET AL.Case Number: 22CV-0200569Tentative Ruling on Motion for Protective Order: Plaintiff Glenn Pritchard moves for a protective orderpreventing a property inspection. Defendant Jeremia Fisher opposes the motion. The Court notes that theOpposition was untimely filed, however, the Court exercises its discretion to consider the Opposition. TheOpposition being one day late did not appear to affect Plaintiff’s ability to respond with a competent Reply.Meet and Confer. Meet and confer efforts were required prior to filing the motion. CCP § 2031.060(a). TheDeclaration of Dan Rowan Courtright provides adequate evidence of meet and confer efforts.Merits. CCP § 2031.010 reads, in part: (a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. … (d) A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it.Despite being listed as an exhibit to the Declaration of Dan Rowan Cortright Supporting Reply, the InspectionDemand was not attached. Therefore, the Court has not reviewed the Inspection Demand. From the declarations,it appears that the Inspection Demand was served on June 14, 2024 and noticed an inspection of the worksite(which is Plaintiff’s yard) on July 24, 2024. Defendant’s counsel also requests that Defendant be allowed to takea water sample from Plaintiff’s well water. It appears that the request to take a sample of well water was notincluded in the original Inspection Demand.Plaintiff moved for a protective order pursuant to CCP § 2031.060. For good cause shown the Court “may makeany order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment,or oppression, or undue burden and expense.” CCP § 2031.060(b). Plaintiff asserts that Defendant is intimidating,has stolen from Plaintiff, and has left trash on Plaintiff’s property. Plaintiff has failed to show how allowingDefendant and his attorney and potentially a photographer on his property to inspect the work that Defendant didthat remains and the work that was done by a subsequent contractor hired by Plaintiff would result in unwarrantedannoyance, embarrassment, oppression, or undue burden or expense. The areas at issue all appear to be outsidethe home. Plaintiff need not be present for the inspection. Defendant’s counsel has already indicated that he willbe there personally with Defendant. The Court finds the evidence sought to be relevant to the case and likely tolead to admissible evidence.“If the motion for a protective order is denied in whole or in part, the court may order that the party to whom thedemand was directed provide or permit the discovery against which protection was sought on terms and conditionsthat are just.” CCP § 2031.060(g). The Court orders that Plaintiff allow the inspection to take place on or beforeAugust 17, 2024. Defendant’s request to test well water is not properly before the Court and appears to have notbeen noticed until after the discovery deadline. The request to inspect well water is not included in the Court’sorder. Due to time constraints given the upcoming trial date, Defendant is ordered to provide Plaintiff with acopy of any photographs or video taken within 48 hours of the inspection.Sanctions. The Court shall impose sanctions against any party who unsuccessfully makes a motion for a protectiveorder unless it finds that the on subject to the sanction acted with substantial justification or that othercirc*mstances make the imposition of the sanction unjust. CCP § 2031.060(h). However, Defendant did not askfor sanctions and did not provide any evidence regarding attorney’s fees incurred in defending the motion.Sanctions should only be imposed for “reasonable” expenses. CCP § 2023.030. The Court does not haveinformation upon which to make a finding that any amount of sanctions were for reasonable expenses and willnot impose sanctions.The motion is DENIED. No sanctions will be awarded. The inspection is to take place at a mutually agreeabledate and time, no later than August 17, 2024. Plaintiff did not provide a proposed Order as required by LocalRule of Court 5.17(D). Plaintiff is to prepare the Order.

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