SUMMONS ISSUED - eservice@decubaslewis.com;corey.lewis@decubaslewis.com;ECCM-FL@provana.com AS TO KERI LASHELLE MURPH AKA KERI L MURPH E FILED July 01, 2024 (2024)

Case

WELLS FARGO BANK N A V MOCK, PATRICIA

Jul 10, 2024 |Gregory M. Keyser |HR FORECLOSURE = > $250K |50-2024-CA-006423-XXXA-MB

Case

MUNYAN, AMANDA J V LANNQUIST, ROSE

Jul 09, 2024 |G. Joseph Curley |OTHER RP ACTIONS > $50K, < $250K |50-2024-CA-006394-XXXA-MB

Case

PRESTON AT CENTURY VILLAGE CONDOMINIUM ASSOCIATION INC V SHIPE, EDWARD A

Jul 03, 2024 |Bradley G. Harper |OTHER RP ACTIONS = < $50K |50-2024-CA-006253-XXXA-MB

Case

HIEBERT, NOAH ASHTON V QUANTUM MED LLC

Jul 03, 2024 |Maxine D. Cheesman |OTHER RP ACTIONS = > $250K |50-2024-CA-006294-XXXA-MB

Case

WILMINGTON SAVINGS FUND SOCIETY V ELOISIN, EMMANUEL

Jul 05, 2024 |Maxine D. Cheesman |HR FORECLOSURE = < $50K |50-2024-CA-006293-XXXA-MB

Case

MIDFIRST BANK V PETERS, INGRID

Jul 08, 2024 |Gregory M. Keyser |HR FORECLOSURE > $50K, < $250K |50-2024-CA-006359-XXXA-MB

Case

US BANK TRUST COMPANY NATIONAL ASSOCIATION V WALTER-ALEXANDER LLC

Jul 08, 2024 |Jaimie R. Goodman |COMM FORECLOSURE = > $250K |50-2024-CA-006316-XXXA-MB

Case

WELLS FARGO BANK N A V CADET, MARIE MICHELLE

Jul 05, 2024 |Reid P. Scott, II |HR FORECLOSURE > $50K, < $250K |50-2024-CA-006313-XXXA-MB

Case

BARRETO CAPITAL LLC V JVB RESTAURANT GROUP LLC

Jul 08, 2024 |G. Joseph Curley |COMM FORECLOSURE = < $50K |50-2024-CA-006395-XXXA-MB

Ruling

330 NORTH BRAND, INC., A DELAWARE CORPORATION VS JOHNHART CORP., A CALIFORNIA CORPORATION

Jul 10, 2024 |24NNCV01081

Case Number: 24NNCV01081 Hearing Date: July 10, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B 330 north brand, inc., Plaintiff, v. johnhart corp., Defendant. Case No.: 24NNCV01081 Hearing Date: July 10, 2024 (cont. from July 5, 2024) [TENTATIVE] order RE: motion for summary judgment or, in the alternative, summary adjudication of issues BACKGROUND A. Allegations Plaintiff 330 North Brand, Inc. (Plaintiff) filed an unlawful detainer complaint against Defendant JohnHart Corp. (Defendant). The property at issue is located at 330 North Brand Blvd., Suite 130, Glendale, CA 91203. Plaintiff is the owner of the premises. On December 19, 2011, Plaintiff as landlord and Defendant as tenant entered into a written Office Lease (as amended by a First Amendment to Office Lease dated January 3, 2017, a Second Amendment to Office Lease dated May 31, 2017, a Third Amendment to Office Lease dated February 15, 2018, and a Fourth Amendment to Office Lease dated August 18, 2020; hereinafter, Lease) whereby Defendant leased the premises. Plaintiff alleges that additional space within the building containing the premises was also leased by Defendant under the Lease, but possession of such space has been resolved and is not at issue in this matter. Plaintiff alleges that the Lease expired on December 31, 2020 and that all times thereafter, Defendant remained in possession pursuant to Article 15 of the Lease (the holdover provision), except that the parties agreed that Defendant would not pay 200% of the rent as (a) the time period was in the midst of Covid and (b) the parties were attempting to negotiate an extension of the Lease. Plaintiff alleges that the Lease expired on December 31, 2020 and the Lease became a month-to-month holdover tenancy. Plaintiff alleges that on October 8, 2023, Plaintiff served a 30-Day Notice To Terminate Tenancy (the Notice) on Defendant in accordance with the provisions of the Lease by forwarding same according to the notice provisions of the Lease to Defendant at the Premises via FedEx. FedEx confirmed delivery as of October 11, 2023. Plaintiff alleges that the Notice required Defendant to quit the premises within 30 days after service of the Notice and also set forth Plaintiff's election to declare a forfeiture of the Lease. Plaintiff alleges that Defendant is still in possession of the premises despite more than 30 days passing since service of the Notice (the expiration of the 30-day period was November 10, 2023). On May 23, 2024, the default of all unnamed occupants in possession was entered. B. Motion on Calendar On May 23, 2024, Plaintiff filed a motion for summary judgment in its favor against Defendant in this case for possession of the premises and for damages in the amount of $61,090.70 (190 days at $321.53 per day for each day that Defendant remains at the premises from January 12, 2024 until judgment). Alternatively, Plaintiff seeks summary adjudication on the following issue: · Issue 1: The undisputed facts demonstrate that Plaintiff is entitled to an order summarily adjudicating the cause of action for unlawful detainer and granting possession of the premises because Defendants occupancy of the premises has been month-to-month for years. Plaintiff has served a 30-day notice to terminate the lease and Defendant failed to vacate the property. On July 3, 2024, Defendant filed an opposition brief. The Court held a hearing on the matter on July 5, 2024. The Court was informed that an opposition was filed and continued the hearing to July 10, 2024 in order to give Plaintiff an opportunity to file a reply brief by July 8, 2024. On July 8, 2024, Plaintiff filed a reply brief. DISCUSSION CCP § 1161 defines unlawful detainer in relevant part as follows: 1. When the tenant continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to the tenant; provided the expiration is of a nondefault nature however brought about without the permission of the landlord, or the successor in estate of the landlord, if applicable; including the case where the person to be removed became the occupant of the premises as a servant, employee, agent, or licensee and the relation of master and servant, or employer and employee, or principal and agent, or licensor and licensee, has been lawfully terminated or the time fixed for occupancy by the agreement between the parties has expired; but nothing in this subdivision shall be construed as preventing the removal of the occupant in any other lawful manner; but in case of a tenancy at will, it shall first be terminated by notice, as prescribed in the Civil Code. (CCP § 1161(1).) Plaintiff moves for summary judgment in its favor against Defendant. In support of its motion, Plaintiff provides the declaration of Spencer Wilson, the Vice President of Transwestern, the agent and property manager for Plaintiff. (Wilson Decl., ¶1.) Mr. Wilson states that on December 19, 2011, Plaintiff and Defendant entered into a written Office Lease for the premises, which was subsequently amended 4 times (Lease). (Id., ¶3, Ex. A [Lease].) He states that all relevant times, Plaintiff has owned the premises. (Id., ¶4.) He states that Defendant has been month-to-month since the Lease term expired on December 31, 2020 as shown in paragraph 4 of the last amendment to the Lease. (Id., ¶5.) He states that because the parties were unable to agree upon the terms of a new lease or for an extension of the Lease, Plaintiff sought to take back the space after entering into a new lease for the premises with a new tenant and that new lease provides for a rental amount of $9,796.00 per month. (Id., ¶6.) Mr. Wilson states that after letters were sent back and forth with Defendant concerning the need for the return of the premises, it became clear that Defendant was not going to vacate as requested. (Id., ¶7.) He states that on December 8, 2023, he served a 30-Day Notice to Terminate Tenancy (Notice) on Defendant in accordance with the provisions of the Lease by forwarding the same according to the notice provision of the Lease to Defendant at the premises via FedEx (delivery confirmed as of December 11, 2023). (Id.) He states that the Notice required Defendant to quit the premises within 30 days after service of the Notice. (Id., Ex. B [Notice with FedEx confirmation].) Mr. Wilson states that the action was not filed sooner than April 2024 because Plaintiff was trying to find a different space for the new tenant so that Defendant could possibly remain in the premises if the parties could reach an agreement on the terms; however, that did not happen. (Id., ¶8.) He states that while the parties have been negotiating an extension, they never reached an agreement on terms, there is no writing signed by the parties extending the Lease and no new lease between the parties for the premises. (Id., ¶10.) He states that Defendant has simply claimed to have some sort of agreement without any approval from Plaintiff. (Id.) Mr. Wilson states that Defendant is still in possession of the premises despite more than 30 days passing since service of the Notice and Plaintiff has not accepted any rent for the premises since the Notice was served. (Id., ¶9.) Mr. Wilson states that the rent called for in the new lease ($9,796.00 per month) is the reasonable rental value of the premises, as that is the most recent arms-length transaction for this exact space and based upon that monthly rent, the daily value of the premises is $322.06 (calculated by taking the monthly rent of $9,796.00 and multiplying it by 12 months and then dividing that by 365 days). (Id.) Mr. Wilson states, however, because Plaintiff asked for $321.53 in the complaint, Plaintiff will use that lower amount. (Id.) Here, Plaintiff has established its burden establishing that Defendant has continued in possession of the premises after the Lease expired. Paragraph 4 of the Fourth Amendment of the Lease states that the term respecting Suite 130 shall expire on December 31, 2020. After the tenancy became a holdover month-to-month tenancy, Plaintiff served the Notice on December 8, 2023 (confirmed delivery by FedEx on December 11, 2023). However, as stated by Mr. Wilson in his declaration, Defendant did not vacate the premises within 30 days and the parties were unable to agree upon a Lease extension or a new lease. Thus, Plaintiff has established the elements of an unlawful detainer claim for the real property at issue. As such, the burden shifts to Defendant to raise a triable issue of material fact. Defendant argues that Plaintiff is not entitled to summary judgment solely because the Lease expired. Defendant argues that it has partially performed the terms of a fully negotiated and agreed-to Fifth Amendment. (Schubert v. Lowe (1924) 193 Cal. 291, 295 [While the defendant was not entitled to a judgment in the present proceedings decreeing specific performance of the agreement to execute the lease, nevertheless the part performance of such an agreement can be interposed as an equitable defense to the plaintiff's attempt to wrest from him the possession of the premises by the summary proceedings in unlawful detainer.]; Pearsall v. Henry (1908) 153 Cal. 314, 318 [The question whether there has been a part performance of the oral agreement is necessarily one of fact to be determined by the trial court.].)[1] In support of the opposition, Defendant provides the declaration of Harout Keuroghlian, the owner of Defendant, and a copy of the unexecuted Fifth Amendment. Mr. Keuroghlian states that as of September 2021, Defendant was responsible for leasing: (a) Suite 130 (lease expired December 31, 2020), which was approximately 2,930 square feet; (b) Suite 660 (lease expired January 31, 2022), which was approximately 1,662 square feet; and (c) Suite 701 (lease to expire on August 31, 2023), which was approximately 2,241 square feet. (Keuroghlian Decl., ¶5.) He states that in September 2021, Anneke Greco, the Executive Vice President of Jones Lang LaSalle, the authorized agent of Plaintiff, proposed that Defendant surrender Suites 660 and 701 early as a part of negotiations for an extension of Suite 130. (Id., ¶6.) He states that in reliance on the terms being negotiated, Defendant voluntarily and prematurely surrendered possession of the Giveback Premises (Suites 660 and 701, set to expire 4 months and 2 years later, respectively) and Defendant ceased paying rent for those spaces. (Id., ¶7.) Mr. Keuroghlian states that on March 22, 2022, Ms. Greco sent Defendant a proposed Fifth Amendment to the Lease back dated to January 2022, honoring most of the mutually agreeable terms during the previous Suite 130 negotiations. (Id., ¶8.) On October 24, 2022, Ms. Greco sent a revised Fifth Amendment, which contained all of the terms needed for the Lease but had one mistake; Mr. Keuroghlian stated that he informed Ms. Greco that he was willing to execute the extension. (Id., ¶9, Ex. 1 [Fifth Amendment].) He states that in November and December 2022, Defendant continuously attempted to contact Plaintiff to finalize execution of the new Lease for Suite 130 and that Ms. Greco responded on December 21, 2022, stating that she needed an accounting reconciliation. (Id., ¶¶10-11.) He states that he attempted to contact Plaintiff until July 2023 and continued to pay monthly base rent which Plaintiff routinely accepted, believing that he was performing under the Fifth Amendment. (Id., ¶11.) Mr. Keuroghlian states that on July 21, 2023 (nearly a year later), Ms. Grecos associate responded to Defendants July 28, 2022 correspondence regarding reconciliations. (Id., ¶12.) On July 25, 2023, Defendant sent correspondent to Ms. Greco requesting an update on the Lease execution. (Id., ¶13.) He states that Ms. Greco responded on July 26, 2023, stating that Plaintiff leased Suite 130 to another tenant who agreed to a longer-term period. (Id., ¶14.) On September 12, 2023, Defendant received a Notice of Termination; on November 29, 2023, Plaintiff filed the complaint; and on December 14, 2023, Plaintiff issued the December 8, 2023 Notice. (Id., ¶¶15-17.) While Defendant argues that Plaintiff is not entitled to summary judgment because Defendant partially performed under the Fifth Amendment by surrendering the Give Back Space and paying rent, Defendant has failed to present evidence in support of its burden in opposition. At most, Defendant provides Mr. Keuroghlians declaration and the unsigned Fifth Amendment, but Defendant fails to provide any documentary evidence of the parties communications (emails, letters, etc.) and fails to state what amount of rent was paidwhether it was the rent under the last lease amendment or the Fifth Amendmentor provide documentary evidence through canceled checks or bank statements of the rental amounts paid. It is Defendants shifted burden to provide opposing evidence of a triable issue of material fact and Defendant has failed to do so here. In addition, as pointed out by Plaintiff in the reply brief, Defendant cannot rely on an oral modification, as the Lease at section 30.8 states that the terms cannot be modified orally. (Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1465 [Oral modifications of written agreements are precluded only if the written agreement provides for written modification.]; Mot., Ex. A [December 19, 2011 Office Lease at § 30.8].)[2] Plaintiff preemptively raised this in the motion papers on page 5 and again raised this in the reply brief, but Defendant did not address the integrated nature of the Lease (and its subsequent amendments) in the opposition brief. The cases cited by Defendant also fail to include a factually similar situation as this case. As such, the Court finds that Defendant has not raised a triable issue of material fact in its shifted burden on this motion for summary judgment. As such, Plaintiffs motion for summary judgment is granted. CONCLUSION AND ORDER Plaintiff 330 North Brand, Inc.s motion for summary judgment is granted. Plaintiff is ordered to lodge with the Court and serve on Defendant a proposed judgment within ten (10) days and to provide notice of this order. Plaintiff shall provide notice of this order. DATED: July 10, 2024 ___________________________ John Kralik Judge of the Superior Court [1] Defendant cites to various cases regarding partial performance of unexecuted agreements or oral agreements to argue that it has sufficiently raised a triable issue of material fact. However, the cases cited are factually distinguishable. For example, Schubert v. Lowe (1924) 193 Cal. 291 involved an oral agreement whereby the plaintiff agreed to execute a written lease. Unlike this case, Schubert did not involve an underlying written and executed agreement that required all subsequent amendments and modifications to be in writing. [2] Section 30.8, entitled Entire Agreement; Merger; Severability states that no provision of the Lease may be modified, waived or discharged except by an instrument in writing signed by the party against which enforcement of such modification, waiver or discharge is sought.

Ruling

HORTENSIA DELGADO VS JOSHUA SEGURA

Jul 09, 2024 |6/18/2022 |24SMCV00828

Case Number: 24SMCV00828 Hearing Date: July 9, 2024 Dept: I The court will discuss with the parties a date for the hearing, but would inquire whether plaintiff has reached out to the defense to try and get a date certain by which responses will be served. If so, the court is likely to GRANT the OSC. If not, that ought to be done.

Ruling

CARL BARNEY VS SIENNA CHARLES LLC, A FLORIDA LIMITED LIABILITY COMPANY, ET AL.

Jul 09, 2024 |23SMCV05304

Case Number: 23SMCV05304 Hearing Date: July 9, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 CARL BARNEY, Plaintiff, v. SIENNA CHARLES, LLC, et al., Defendants. Case No.: 23SMCV05304 Hearing Date: July 9, 2024 [TENTATIVE] ORDER RE: DEFENDANTS DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT BACKGROUND This is a breach of contract and fraud case. Defendants Sienna Charles LLC and Jaclyn Sienna India-Reinert (Ms. India) provide bespoke travel services for high-wealth individuals. (First Amended Complaint (FAC) ¶8.) In mid-2021, Plaintiff Carl Barney desired to obtain the services of a high level, full service VIP travel agency to arrange all of the details for his three-week trip to Europe. (Id. ¶9.) He therefore spoke with Defendants about their services. (Id. ¶10.) Ms. India assured Plaintiff that she knew how to get her clients access to exclusive experiences that would otherwise be unavailable to them. She claimed, in writing and orally, to be able to provide extraordinary private travel and the ability for Plaintiff to access top experts for his vacations. (Id. ¶10.) Relying on these oral representations, Plaintiff paid $75,000 for the Europe trip and multiple additional trips he desired to have planned over a one year period (July 1st Agreement). He describes the July 1st Agreement as a partially oral and partially written agreement to provide full service planning and implementation of travel itineraries over the course of one year from July 1, 2021 through June 20, 2022. (Id. ¶ 22.) Under the July 1st Agreement, Defendants were to provide Plaintiff access to the most exclusive luxury travel and lifestyle services available in the world and to comb[] the globe consistently procuring only the best in ultra-luxury living. (Id. ¶20.) Plaintiff claims Defendants breached the July 1st Agreement by their poor planning and lack of communication, and Plaintiffs staff was forced to clean up their messes. (Id. ¶13.) Specifically, Plaintiffs staff was forced to book VIP suites, arrange last minute flights that could have been scheduled weeks in advance and book other appointments for things such as required Covid-19 testing. (Id.) Pursuant to the July 1st Agreement, Plaintiff then sought to use Defendants services for a three-week trip to the Middle East. (Id. ¶14.) Plaintiff asked Defendants to prepare a proposed itinerary by September 7, 2021. (Id. ¶ 16.) Defendants ignored the request, instead providing a proposed agenda on September 14, 2021 which failed to include any specific dates (or even number of days) for visiting any of the countries and no details of available activities that Defendants could curate. (Id.) This action ensued. The operative first amended complaint (FAC) alleges claims for (1) breach of contract, (2) fraud, (3) unjust enrichment and imposition of constructive trust and (4) unfair business practices. This hearing is on Defendants demurrer to and motion to strike the complaint. Defendants demurrer is based on the grounds that (1) the FAC does not allege any actual contract or contractual terms; (2) Defendants alleged breach of contract doesnt equal fraud, and Plaintiff has not plead fraud with specificity; (3) unjust enrichment is a mere remedy, not a valid cause of action; (4) the FAC doesnt identify any specific funds on which to impose a constructive trust, and (5) Plaintiff has no valid claim for unfair business practices. Defendants also move to strike (1) Plaintiffs punitive damages allegations because Plaintiffs fraud claim fails, and (2) any claim for money damages in connection with Plaintiffs claim for unfair business practices because under the unfair competition law, a plaintiff is entitled only to restitution and injunctive relief. LEGAL STANDARD [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436, subd. (a).) The court may also strike 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. (Code Civ. Proc. § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) MEET AND CONFER Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) Defendants submit the Declaration of Kenneth Ruttenberg which attests the parties met and conferred by telephone on May 22, 2024, more than five days before the demurrer and motion to strike was filed (on May 28, 2024). This satisfies the meet and confer requirements of Code Civ. Proc. §§430.41 and 435.5. Plaintiff argues that Defendants have not complied with the meet and confer requirements. Plaintiff, however, fails to explain why that is so. In any event, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer. (Code Civ. Proc. §§430.41(a)(4) and 435.5(a)(4).) DISCUSSION Breach of Contract Defendants demur to the breach of contract claim on the ground that the contract terms are so vague that no one could judge whether Defendants supposedly breach those terms. The Court agrees. The Complaint alleges that in exchange for $75,000, Defendants were to provide full service planning and implementation of travel itineraries over the course of one year from July 1, 2021 through June 20, 2022. (FAC ¶ 22.) Defendants promised to provide access to the most exclusive luxury travel and lifestyle services available in the world and to comb the globe consistently, procuring only the best in ultra-luxury living for Plaintiff for one year. (Id. ¶ 22.) These terms are too vague to determine whether a breach has occurred. It is not clear what full service planning entails. And there is no basis to judge whether the luxury travel Defendants provided were the most exclusive or constituted the best in ultra luxury living. These promises are not definite enough to determine the scope of Defendants obligations or the limits of their performance. Accordingly, the Court sustains the demurrer to the breach of contract claim with leave to amend. Fraud Defendants demur to Plaintiffs fraud claim as duplicative of the contract claim, as insufficiently plead and as failing to allege an intent not to perform. The Court agrees on the last ground. To allege promissory fraud, Plaintiff must plead Defendants made promises that they had no intention of performing. (Lazar v. Super. Court (1996) 12 Cal.4th 631, 638.) The fact that a promise was made and not fulfilled is insufficient to establish fraud by false promise. (Tenzer v. Superscope (1985) 39 Cal.3d 18, 31.) Rather, something more than nonperformance is required to prove the defendants intent not to perform his promise. (Id.) Making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) Here, Plaintiff has not alleged facts to support a showing that Defendants did not intend to perform on their promises at the time they made them. In fact, the FAC alleges partial performance by Defendants. (FAC ¶¶ 16, 18.) The fact that Defendants partially performed undercuts any claim they did not intend to perform at the time they made their promises. (Castaic Village Ctr. LLC v. Gymcheer USA, Inc., 2021 Cal. Super. LEXIS 6377 at *5 (partial performance negates an intent not to perform).) Accordingly, the Court sustains the demurrer to Plaintiffs fraud claim withoug leave to amend. Unjust Enrichment Defendant demurs to the unjust enrichment claim on the ground it is a remedy and not a cause of action. Plaintiff argues it has not asserted an unjust enrichment claim. The caption to its complaint, however, characterizes its third cause of action as an unjust enrichment claim and imposition of constructive trust. This may have been a clerical error and a holdover from the prior complaint. As Plaintiff maintains he is not asserting an unjust enrichment claim, the demurrer to the unjust enrichment claim is moot. Constructive Trust Defendant demurs to the constructive trust claim on the ground Plaintiff does not allege a specific identifiable property interest because money is fungible. The Court agrees. A prerequisite to the imposition of a constructive trust is the identification of a specific property belonging to the claimant. (Korea Supply Co. V. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150.) A constructive trust requires money or property identified as belonging in good conscience to the plaintiff [which can] clearly be traced to particular funds or property in the defendants possession. (Id.) A constructive trust is available where the specific res or funds can be identified and attached, but not where the plaintiff seeks to impose general personal liability as a remedy for the defendants monetary obligations. (Honolulu Joint Apprenticeship and Training Committee of United Ass'n Local Union No. 675 v. Foster (9th Cir. 2003) 332 F.3d 1234, 1238.) In other words, a constructive trust is not an appropriate remedy for a claim that is essentially one for money damages, as is the case here. Further, constructive trust is not a cause of action per se, but an equitable remedy. (Batt v. City and County of San Francisco (2007) 155 Cal. App. 4th 65, 82; see also Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332 (constructive trust is an equitable remedy); PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 398 (constructive trust is a remedy); Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023 (constructive trust is a remedy). Accordingly, the Court sustains the demurrer to the constructive trust claim without leave to amend. Unfair Business Practices Defendants argue that Plaintiffs claim under Cal. Bus. & Prof. Code §17200 (UCL) fails because Plaintiff has not alleged the violation of any law. The Court agrees. UCL prohibits unfair competition, which is defined as any unlawful, unfair or fraudulent business act or practice. Here, the FAC alleges that Defendants violated the UCL prohibition against engaging in an unlawful act or practice by the conduct described above. (FAC ¶ 41.) To state a cause of action based on an unlawful business act or practice under the UCL, a plaintiff must allege facts sufficient to show a violation of some underlying law. (People v. McKale (1979) 25 Cal.3d 626, 635; Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.) Plaintiff has not identified any underlying law that was violated. In opposition, Plaintiff argues that Defendants conduct also constituted unfair and fraudulent business practices. While Plaintiff did not allege this theory in his Complaint, the Court is not¿limited to plaintiffs theory of recovery in testing the sufficiency of their¿complaint against a¿demurrer, but instead must determine if the¿factual¿allegations of the complaint are¿adequate to state a cause of action under any legal theory. (¿Barquis¿v.¿Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.)¿ Mistaken labels and confusion of legal theory are not fatal; if appellants complaint states a cause of action on any theory, he is entitled to introduce evidence thereon. (Porten¿v.¿University of San Francisco¿(1976) 64 Cal.App.3d 825, 833.) California courts have not uniformly settled on a single approach to defining 'unfair' business practices in a consumer action under the UCL. Prior to 1999, California courts applied what is known as the balancing test. Courts defined unfair business practices as those offend[ing] an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers, or where the utility of the defendants conduct does not outweigh the gravity of the harm to the victim. (Cel-Tech Commcns, Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 184.) Under the balancing test, a determination of unfairness involves an examination of [the practices] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. (McKell v. Washington Mut., Inc. (2006) 142 Cal. App. 4th 1457, 1473¿(internal citations omitted).) In 1999, the California Supreme Court rejected that test and held that a finding of unfairness must instead be tethered to some legislatively declared policy or proof of some actual or threatened impact on competition. ¿(Cel-Tech, 20 Cal. 4th at 186-87.) The¿Cel-Tech¿court, however, expressly declined to extend this¿standard to consumer actions.¿ (Id.¿at 187 n.12.) Here, Plaintiff has not alleged a threatened impact on competition and has not alleged facts that would meet the balancing test. For example, Plaintiff does not allege that Defendants conduct was not motivated by legitimate business or economic need or that the harm and adverse impact of Defendants conduct outweighed these needs. Accordingly, Plaintiff has not stated a UCL claim based on either test for unfairness. To state a claim under the fraudulent prong of the¿UCL, a plaintiff must show that members of the public are likely to be¿deceived.¿(Bank of the W. v. Superior Ct. (1992) 2 Cal. 4th 1254, 1267.) The determination as to whether a business practice is deceptive is based on the likely effect such [a] practice would have on a reasonable¿consumer. (McKell, 142 Cal.App.4th at 1471.) Here, Plaintiff has not alleged that members of the public were likely to be deceived by Defendants conduct. Accordingly, Plaintiff has not met the fraudulent prong of the UCL. Accordingly, the Court sustains the demurrer to Plaintiffs UCL claim with leave to amend. Punitive Damages Defendant argues that Plaintiff has not alleged fraud and therefore cannot seek punitive damages. As the Court concludes Plaintiff has not sufficiently alleged a fraud claim, punitive damages are unavailable. Money Damages for UCL Claim Defendant argues Plaintiff cannot recover damages for his UCL claim. The Court agrees. Under the UCL, a plaintiff is entitled only to restitution and injunctive relief; he may not recover damages. (Korea Supply Co., 29 Cal.4th at 1144.) Plaintiff seeks money damages for his UCL claim. (FAC at p.10 lines 16-19.) Accordingly, the Court will strike the prayer for money damages as to the UCL claim. CONCLUSION Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendants demurrer with 20 days leave to amend and DENIES IN PART and GRANTS IN PART their motion to strike without leave to amend. IT IS SO ORDERED. DATED: July 9, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Ruling

MATTHEW GRAHAM, ET AL. VS KERRI POMAROLLI, ET AL.

Jul 09, 2024 |23TRCV03072

Case Number: 23TRCV03072 Hearing Date: July 9, 2024 Dept: P Demurrer to Complaint Broker Defendants Demurrer is placed off calendar in light of the Courts ruling on Seller Defendants Petition to Compel Arbitration and the Courts order staying the entire action pending completion of arbitration of Plaintiffs claims against Seller Defendants. On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:& (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. (CCP §1281.2(c).) If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding. (CCP §1281.2, para. 4.) Seller Defendants are moving to compel arbitration of Plaintiffs claims pursuant to ¶31 of the Purchase Agreement. Broker Defendants are not a party to ¶31 of the Purchase Agreement. (Petition to Compel Arbitration, Ex. 2, ¶31(D)(Agents shall not be obligated nor compelled to mediate or arbitrate unless they agree to do so in writing.) Broker Defendants and Seller Defendants are named as joint tortfeasors in Plaintiffs tort causes of action and as co-defendants in the UCL cause of action. The claims against both Broker and Seller Defendants arise out of the same transaction and events and have overlapping factual and legal issues. Based on these facts, CCP §1281.2(c) applies and the Court has the discretion to choose from several options, including denial of the petition to compel arbitration. Here, it appears every issue of law and fact between Plaintiffs claims against Seller Defendants overlaps those as to Broker Defendants. There is therefore a danger of conflicting rulings if the Plaintiffs claims against Seller Defendants in arbitration and Broker Defendants in litigation are allowed to proceed simultaneously. The bulk of the wrongful conduct alleged in the complaint is against Seller Defendants. For these reasons, the Court orders arbitration of Plaintiffs claims against Seller Defendants and stays the entire action pending completion of the arbitration. As the court has GRANTED Seller Defendants Petition to Compel Arbitration pursuant to CCP §1281.2, the entire action is stayed pursuant to CCP §1281.2(c), para. 4, pending completion of the arbitration of Plaintiffs claims against Seller Defendants pursuant to ¶31 of the Purchase Agreement. As the entire action is stayed, the court takes the demurrer off calendar until such time as arbitration between the Plaintiffs and the Seller Defendants is completed.*** Motion for Monetary and Non-monetary Sanctions against Plaintiffs and Plaintiffs Counsel pursuant to CCP §128.7 The Court considered the moving papers, opposition and reply. RULING Defendants request for CCP §128.7 sanctions is DENIED. Defendants fail to establish compliance with the 21-day safe harbor requirement. Defendants also fail to establish any substantive violation of CCP §128.7. BACKGROUND Plaintiffs Matthew Graham and Regan Cole purchased a single family home from Defendants Kerri and Richard Pomarolli (Seller Defendants). Plaintiffs allege Seller Defendants remodeled the property without proper permitting and without a general contractor. Plaintiffs allege Seller Defendants listed the property for sale on May 6, 2022 through Defendants Cory Jane Mishelevich-Birkett and Matilla Realty, Inc. d/b/a ERA Matilla Realty (Broker Defendants). Defendants falsely stated in the listing that the property contained a permitted family room addition. In June 2022, Plaintiffs entered into a residential purchase agreement with Seller Defendants for the property. Plaintiffs allege Seller Defendants made multiple misrepresentations regarding the property in the purchase agreement, as well as in the listing. After purchasing the property, Plaintiffs discovered multiple defects in the home and ultimately discovered that the remodel work was improperly performed and unpermitted. Plaintiffs allege Broker Defendants also made alleged misrepresentations regarding the property. On September 18, 2023, Plaintiffs filed a complaint against Seller and Broker Defendants alleging (1) fraud; (2) constructive fraud; (3) negligent misrepresentation; (4) violation of Penal Code §496; (5) negligence; (6) negligence per se; (7) breach of contract; (8) violation of Bus. & Prof. C. §17200, et seq. LEGAL AUTHORITY By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circ*mstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (CCP §128.7(b).) Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [¶] A claim is factually frivolous if it is not well grounded in fact and is legally frivolous if it is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. A claim is objectively unreasonable if any reasonable attorney would agree that it is totally and completely without merit. (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189 (CCP 128.7 sanctions properly imposed where it was obvious that plaintiffs claims were barred by res judicata, judicial admissions and judicial estoppel).) An action that is not legally or factually frivolous cannot be presented for an improper purpose. Having concluded that the claims presented in the second amended complaint were nonfrivolous, we must also conclude that they were not presented for an improper purpose. (Ponce v. Wells Fargo Bank (2018) 21 Cal.App.5th 253, 265.) DISCUSSION Seller Defendants ask that CCP §128.7 sanctions be imposed against Plaintiffs and Plaintiffs counsel. Seller Defendants argue the complaint was filed for an improper purpose and to harass them. Seller Defendants argue parties entered into an arbitration agreement that clearly applies to this action. Seller Defendants argue Plaintiffs refused to withdraw their complaint despite knowledge of the applicable arbitration agreement. Seller Defendants ask that the Court impose $9,000 in monetary sanctions and that it strike Plaintiffs complaint and dismiss Seller Defendants from the action. In response, Plaintiffs filed a combined opposition to Seller Defendants Petition to Compel Arbitration and the instant Motion for 128.7 Sanctions. Plaintiffs argue the requested sanctions are excessive. Seller Defendants claim they satisfied the 21-day safe harbor requirement under CCP §128.7(c). However, based on the proof of service, Seller Defendants filed the motion on May 28, 2024, and served it on the same date. Seller Defendants were required to serve the motion at least 21 days before they filed it with the Court. (CCP § 128.7(c)(1) (Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion&the challenged paper&is not withdrawn or appropriately corrected.) Seller Defendants motion must therefore be denied for failure to establish that the 21-day safe harbor requirement was satisfied. Seller Defendants motion also fails substantively. Seller Defendants claim Plaintiffs complaint is frivolous and brought solely to harass them, because there is a clearly applicable arbitration agreement. However, a complaint is not totally and completely without merit merely because the alleged dispute is subject to an arbitration agreement. Even if there is an applicable arbitration agreement, the complaint is not dismissed. If a party successfully compels arbitration, the action would be stayed pending completion of arbitration and upon completion of arbitration, judgment would be entered on the arbitration award. Thus, existence of an applicable arbitration agreement does not affect the meritoriousness of a complaint. In addition, an arbitration agreement can be deemed unenforceable even if it is applicable to the dispute alleged in a complaint. For example, if CCP §1281.2(c) applies, as it does here, a court may decline to enforce an applicable arbitration agreement and force all parties to litigate their claims. In fact, a plaintiff does not waive the right to arbitrate by merely filing a complaint. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 185.) Thus, arbitration and filing of a complaint are not mutually exclusive. Moreover, a plaintiff may file a complaint in hopes that a defendant chooses not to exercise the right to arbitration. Arbitration can also fail, leading parties to agree to withdraw the matter from arbitration and reinstate the litigation. (See e.g. Titan/Value Equities Group, Inc. v. Sup. Ct. (1994) 29 Cal.App.4th 482, 487 (Absent an agreement to withdraw the controversy from arbitration, however, no judicial act is authorized.) For these reasons, Seller Defendants request for CCP §128.7 sanctions is DENIED. Defendants fail to establish compliance with the 21-day safe harbor requirement. Defendants also fail to establish any substantive violation of CCP §128.7. ORDER Seller Defendants request for CCP §128.7 sanctions is DENIED. Seller Defendants fail to establish compliance with the 21-day safe harbor requirement. Seller Defendants also fail to establish any substantive violation of CCP §128.7.*** (1) Petition to Compel Arbitration (2) Motion to Stay Legal Action Pending Arbitration In connection with the Petition to Compel Arbitration, the court considered the moving papers, opposition and reply. In connection with the Motion to Stay, the court considered the moving papers. No opposition or reply papers were filed. RULING Defendants Kerri Pomarolli and Richard S. Pomarollis Petition to Compel Arbitration is GRANTED pursuant to CCP §1281.2. The entire action is stayed pursuant to CCP §1281.2(c), paragraph 4 pending arbitration of Plaintiffs claims against Seller Defendants. Defendants Kerri Pomarolli and Richard S. Pomarollis Motion to Stay Legal Action Pending Arbitration is GRANTED. BACKGROUND Plaintiffs Matthew Graham and Regan Cole purchased a single family home from Defendants Kerri and Richard Pomarolli (Seller Defendants). Plaintiffs allege Seller Defendants remodeled the property without proper permitting and without a general contractor. Plaintiffs allege Seller Defendants listed the property for sale on May 6, 2022 through Defendants Cory Jane Mishelevich-Birkett and Matilla Realty, Inc. d/b/a ERA Matilla Realty (Broker Defendants). Defendants falsely stated in the listing that the property contained a permitted family room addition. In June 2022, Plaintiffs entered into a residential purchase agreement with Seller Defendants for the property. Plaintiffs allege Seller Defendants made multiple misrepresentations regarding the property in the purchase agreement, as well as in the listing. After purchasing the property, Plaintiffs discovered multiple defects in the home and ultimately discovered that the remodel work was improperly performed and unpermitted. On September 18, 2023, Plaintiffs filed a complaint against Seller and Broker Defendants alleging (1) fraud; (2) constructive fraud; (3) negligent misrepresentation; (4) violation of Penal Code §496; (5) negligence; (6) negligence per se; (7) breach of contract; (8) violation of Bus. & Prof. C. §17200, et seq. LEGAL AUTHORITY On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. (CCP §1281.2.) The trial court may resolve motions to compel arbitration in summary proceedings, in which the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. The party seeking arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability by a preponderance of the evidence. (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 776 (trial court properly decided plaintiffs challenge to arbitration agreement despite delegation clause where plaintiff attacked contract formation and very existence of agreement to arbitrate).) If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies. (CCP §1281.4 (para. 1).) DISCUSSION I. Petition to Compel Arbitration A. Seller Defendants Establish an Applicable Arbitration Agreement and Plaintiffs Fail to Raise any Defense Seller Defendants move to compel arbitration pursuant to the arbitration clause contained in the parties residential purchase agreement (Purchase Agreement). (Motion, Ex. 2.) Paragraph 31 of the Purchase Agreement states, [t]he Parties agree that any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration&The arbitration shall be conduct through any arbitration provider or service mutually agreed to by the Parties&. (Motion, Ex. 2, ¶31.) Plaintiffs claims undoubtedly arise out of the Purchase Agreement, as the complaint is based entirely on the misrepresentations made in the Purchase Agreement itself and in connection with Defendants sale of the property. (FAC, ¶¶24-40.) Seller Defendants therefore establish the existence of an applicable arbitration agreement to Plaintiffs dispute. Plaintiffs do not dispute that the arbitration agreement applies to their dispute. In response, Plaintiffs argue Seller Defendants failed to satisfy the condition precedent of selecting an arbitrator mutually agreed to by Plaintiffs and Seller Defendants and have thus waived their right to arbitrate. B. The Contract Does Not Contain a Condition Precedent A condition is an event which must occur or be excused before performance on a contract becomes due. Conditions precedent are not favored and contractual provisions will not be so construed in the absence of language plainly requiring such a construction. (In re Marriage of Hasso (1991) 229 Cal.App.3d 1174, 1181.) There is no language in ¶31 that would make the obligation to arbitrate contingent upon first selecting an arbitrator, e.g. subject to or conditioned on. Plaintiffs fail to point to any such language. Absent plain language requiring that parties first appoint a mutually agreeable arbitrator prior to complying with their obligation to arbitrate, the Court will not construe paragraph 31 as imposing such a condition precedent on the parties obligation to arbitrate. The Court rejects Plaintiffs contention that their obligation to arbitrate was contingent upon selection of a mutually agreeable arbitrator. C. Defendants Have Not Waived Their Right to Arbitration In the alternative, Plaintiffs argue Seller Defendants have waived any right to compel arbitration by refusing to name an acceptable arbitrator. A party opposing the petition bears the burden of proving by a preponderance of evidence any fact necessary to its defense. (Olvera v. El Pollo Loco, Inc. (2009) 173 Cal.App.4th 447, 453.) As the party asserting waiver, Plaintiff bears the heavy burden of proving by a preponderance of evidence any fact necessary to its defense. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) While there is no single test for establishing waiver, the relevant factors include: (1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps (e.g., taking advantage of judicial discovery procedures not available in arbitration) had taken place; and (5) whether the delay affected, misled, or prejudiced the opposing party. (Saint Agnes Med. Ctr., supra, 31 Cal.4th at 1203.) The presence or absence of prejudice from the litigation is a determinative issue. (Id. at 12031204.) Any claim that the right to arbitration has been waived is reviewed with close judicial scrutiny. (Id. at 1195.) Although a court may deny a petition to compel arbitration on the ground of waiver (§ 1281.2, subd. (a)), waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof. (Id.) Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 320.) Plaintiffs fail to carry the heavy burden of establishing waiver. Seller Defendants were under no obligation to name an acceptable arbitrator prior to exercising their right to demand arbitration. Plaintiffs fail to articulate how the failure to name an arbitrator during the parties discussions qualifies as waiver of the right to arbitrate. Moreover, Plaintiffs fail to cite to specific evidence of Seller Defendants absolute refusal to participate in the process to select a mutually agreed upon arbitrator. Given Plaintiffs refusal to voluntarily participate in arbitration, Seller Defendants understandably chose to obtain an order compelling arbitration before attempting to select a mutually agreeable arbitrator. Plaintiffs raise no other arguments in opposition to the request to compel arbitration. Defendants have established an applicable arbitration agreement and Plaintiffs have failed to raise any defense to arbitration. Therefore, the motion to compel arbitration is GRANTED. II. Motion to Stay Proceedings Pending Arbitration If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies&If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only. Seller Defendants also filed a separate motion to stay the action against them pending completion of arbitration pursuant to 1281.4. In light of the Courts order granting the petition to compel arbitration and staying the action pursuant to CCP §1281.2(c), Seller Defendants request to stay this action pending arbitration is GRANTED for those reasons. III. Selection of Neutral Arbitrator Should parties reach an impasse in selecting a neutral arbitrator, they may petition the Court to appoint the arbitrator pursuant to CCP §1281.6. If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator. ORDER Defendants Kerri Pomarolli and Richard S. Pomarollis Petition to Compel Arbitration is GRANTED pursuant to CCP §1281.2. The entire action is stayed pending arbitration of Plaintiffs claims against Seller Defendants. Defendants Kerri Pomarolli and Richard S. Pomarollis Motion to Stay Legal Action Pending Arbitration is GRANTED.

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Jul 11, 2024 |23NWCV02916

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