On September 24, 2020 aProof of Servicewas filedinvolving a dispute betweenRockland Trust Company,andRbi Construction Group, Inc.,for Contract / Business Casesin the District Court of Middlesex County.
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79/27/2021 IC4B | FRIDAY, AUGUST 27, 2021 | THE DAILY NEWS Legal Notices LegalNoticesOCTOBER 19 BARLOW MATTER LEGAL NOTICE LEGAL NOTICE WARRANT Commonwealth of Massachusetts FALL ANNUAL TOWN MEETING The Trial Court OCTOBER 19,2021 Middlesex Probate and Family Court THE COMMONWEATH OF THE MASSACHUSETTS 10-U Commerce Way Woburn. MA 01801Middlesex, ss (781) ¿65-4000To Any Constable of the Town of Natick in said County: Docket No. MI17P0101EAGreeting: CITATION ON PETITION FORIn the name of the Commonwealth of Massachusetts you are required to notify thequalified Town Meeting Members of the said Town of Natick to meet via remote ALLOWANCE OF ACCOUNT Weight Loss Centerparticipation on Tuesday Evening October 19, 2021 at 7:30 PM, then and there to In the matter of: Ruth Charlotteact on the following Articles: BarlowArticle 1 Committee Article Date of Death: 08/11/2014Article 2 Fiscal 2022 Omnibus BudgetArticle 3 Rescind Authorized, Unissued Debt To al interested persons:Article 4 Unpaid BillsArticle 5 Stabilization Fund A Petition has been filed by: Joan M. VoteArticle 6 Operational/Rainy Day Stabilization Fund McAnulty of Franklin, MA requestingArticle 7 Other Post-Employment Benefits (OPEB) Appropriation or Transfer of allowance of the 1st Trust account(s)Funds as Trustee and any other relieft asArticle 8 PEG Access and Cable Related Fund requested in the Petition.Article 9 Acceptance of M.G.L. Chapter 200A, Section 9A: Disposition ofAbandoned Funds You have the right to obtain a copyArticle 10 Create a Natick Town Bylaw to provide for Tax Payment Agreements of the Petition from the Petitioner orpursuant to M.G.L c.60 section 62A at the Court. You have a right toArticle 11 Capital Stabilization Fund object to this proceeding. To do so,Article 12 Capital Equipment and Improvement you or your attorney must file aArticle 13 Collective Bargaining written appearance and objection atArticle 14 Amend By-Laws: Dates of Spring Annual Town Meeting & Submission this Court before 10:00 a.m. onof Fiscal DocumentsArticle 15 Establish and Authorize Revolving Fund for Community GardensArticle 16 Amend Bylaws: Personnel Bylaw Amendments 09/07/2021. This is NOT a hearing date, but a deadline by which you must file a FOR US FORArticle 17 Personnel Board Classification and Pay Plan written appearance and objection ifArticle 18 Parks & Recreation Wage Increase Subsidy (Cody Jacobs) you object to this proceeding. IfArticle 19 Diversity Officer you fail to file a timely writtenArticle 20 Street Acceptance - Collins Avenue. Fairview Avenue, Fern Street, appearance and objection followedGreen Street, Lakeview Avenue, Moore Street, Whitcomb Street, Windsor Avenue by an Affidavit of Objections within BESTArticle 21 Easem*nt at 21 Overbrook Terrace (David Locke Hawthorne) thirty (30) days of the return date,Article 22 South Natick Dam Mitigation Alternatives (Brad Peterson) action may be taken without furtherArticle 23 Amend Home Rule Petition, Home Rule Petition, and/or Authorize Sale notice to you.of Property at 5 Auburn StreetArticle 24 Acquire 60 Harwood Road WITNESS, Hon. Maureen H Monks,Article 25 Appropriate Funds for New Zoning and Capital Improvement Planning First Justice of this Court.for the Golden Triangle AreaArticle 26 Amend Zoning By-Laws: Agri-Tourism Accessory UseArticle 27 Amend Zoning By-Laws: Livestock Accessory Use Date: August 09, 2021Article 28 Amend Zoning By-Laws: Cluster Bylaw Amendments IDEALArtic|e 29 Amend Zoning By-Laws: Limited Salesroom for Motor Vehicles Tara E. DeCristofaroArticle 30 Amend Zoning By-Laws: Special Permit Lapse Register of ProbateArticle 31 Hoop I District Near West Natick Commuter Rail (George L. Richards)Article 32 Re-Zoning of Portions of East Central Street, Wilson Street, Grant AD# 13979878Street and Union Street (George L, Richards) MWDN 8/27/21Article 33 Rezone the Natick Highway Overlay District (Peter Golden)Article 34 Amend Home Rule Charter, Article 3 CABLE LICENSE RENEWAL WEIGHTArticle 35 Hybrid Town Meeting LEGAL NOTICEArticle 36 Town Seal Report and Design Services TOWN OF HOLLISTONArticle 37 Committee Report, Handbook, and TermArticle 38 Fiscal Information CABLE TELEVISIONArticle 39 Amend Article 3 Procedure at Town Meeting of the Town of Natick LICENSE RENEWAL PROCEEDINGByLaw The Town of Holliston Cable Advisory Committee, as delegated by the LOSSAn attested copy of said Warrant to be posted in the Post Office in said Natick; Holliston Board of Selectmen, will holdand at the following public places seven days at least before October 19, 2021; a public hearing on September 9.also by causing the titles of the articles on 2021, 6:00 p.m., To ascertain Holistonthe Warrant for the 2021 Fal Annual Town Meeting to be published once in ‘The cable license renewal needs as part ofMetrowest Daily News" with notice of availability of an attested copy of said the Town's Comcast cable televisionWarrant, said Newspaper published in license renewal process. Pursuant tothe Town of Natick and said publication to be August 26, 2021, in said Natick, to the state law regarding the holding ofwit: Precinct 1, Reliable Cleaners, 214 West Central Street; Precinct 2, Cole on-line or virtual public hearings in lieuRecreation Center, 179 Boden Lane; of in-person meetings as a result of thePrecinct 3, Kennedy Middle School, 165 Mill St.; Precinct 4, 2 Summer St.; Covio-19 pandemic the cable licensePrecinct 5, Wilson Middle School, 22 Rutledge Road; Precinct 6, East Natick FireStation, 2 Rhode Island Avenue;Precinct 7, Lilja Elementary School 41 Bacon Street; Precinct 8, Natick HighSchool, 15 West Street: Precinct 9, Community Senior Center, 117 West CentralStreet and Precinct 10, Memorial Elementary School, 107 Eliot Street. renewal hearing will be an on-line, vir tual meeting and can be attended by ,), laptop, tablet or phone by vis iting the following Zoom link or by tele- CENTER phone access as follows:Certified copies of the Warrant are available at the Office of the Town Clerk, Link to Holliston meeting via Zoom:Natick Town Hall. 13 East Central SL, Natick, MA between the hours of 8:00 a.m. https://us02web.zoom.us/i/885581481- 5:00 p.m. on Monday through Wednesday: 8:00 a.m. - 7:00 p.m. on Thursday;and 8:00 a.m. - 12:30 p.m. on Friday. The Warrant may also be accessed fromthe Town web site www.natickma.gov. Meeting ID: 885 5814 8158 and Passcode: 13579Michael J. Hickey, Jr., Clerk Acces to joint meeting via telephone:AD# 13980339 To participate by telephone, dial 1-MWDN 9/03/2021 646-558-8656 If legislation regulations or governmentCURVE STREET & HIGH STREET ---------------------------------------------------------------------- orders modify and rescina applicable AWARDS LEGAL NOTICE provisions of the open meeting law PUBLIC HEARING this topic. enabling online, virtual meetings, this SELECT BOARD meeting will be held in Holliston Town TOWN OF NATICK In accordance with Section 14D of the Zoning Bylaw, the Wellesley Historic Hall, 703 Washington Street, Holliston, District Commission will hold a public in room 014 at the date and time specThe Select Board will conduct a public ified above.hearing on Wednesday, September 8, hearing on the application HDC 21-06 of 2021, at 6:30PM in the ¿dward H. Dlott Warren Borgen for a project located at property known as 29 Cottage Street to The Comcast license is due to expire Meeting room, 2nd floor of the Natick ctober 31, 2023. and the federal B 1092 Town Hall, 13 East Central Street, replace an existing 4'(foot) fence to aNatick, MA, upon the request to dedi 6’(foot) cedar stockade fence. able Act, 47 USC 546, requires a public proceeding to ascertain thecate the square at the intersection of community's cable-related needs andCurve Street and High Street in honor Persons interested in this matter are encouraged to call the Planning interests as part of the license renewalof the Bellofatto Family. Anyone wish process. Public comment is invited oning to be heard can attend in person or Department for more information: 781- 431-1019 x 2230, or 2232. The applica cable license renewal needs of theparticipate via the following virtual Town and the general public. For furmeeting link: tion plans, and other materials may be reviewed on the Planning Department ther information and copies of renewal records available for public inspection,¡jffiMSiii w e QStil b s i t contact Barry Sims, Cable Advisory si s-UnderReview. Committee, c/o Office of the Town Administrator, Town Hall, 703Michael J. Hickey, Jr., Clerk Washington St. Holliston, MA 01746.AD# 13980187 Jake R. Collins Planner If and when Comcast files a license renewal application, a copy shall be BffiliShinaton Street, Norwell, MA 02061MWDN 8/27/2021 available for public inspection at the AD#13980331 MWDN 8/27/21 Office of the Town Clerk. By order ofHUNNEWELL PARK FENCE the Board of Selectmen as Cable LEGAL NOTICE Television License Issuing Authority. NW-CM3974695 TOWN OF NATICK NATICK, MASSACHUSETTS 01760 AD#13978822 NOflCE TO RESPONDERS ITB/ HVAC LEGAL NOTICE MWDN 8/20, 8/27/21The Town of Natick, Natick Town Hall, hqpkintqn public schq.qls13 East Central Street, Natick. Ma Leaf^Filter01760 (“the Town"), acting through the August 25. 2021Natick Select Board (Board ofSelectmen), invites the submission of INVITATION TO BIDresponses for repair of the Hunnewell NOTICE OF BIDS FOR: I CWPark Fence. The Request forResponses (“RFR”) may be obtained 5 Whether GUTTERfrom the Procurement Office, c/o » MA1NTEN PROTECTIONNatick Public Works Building, byemailing bleblanc@natickma.org, INTERESTED PARTIES: you're lookingbetween 8:00 A.M. and 4:00 P.M.local time, Monday through Thursday,and between 8:00 A.M. and 12:00 Bidders are invited to furnish the Hopkinton Public Schools with bids for for the rightP.M. (noon) local time, Friday, begin Hffic IPREVENTIVEning on September 1, 2021. No Pre-1-1----------->Conference n!ng^n^S^temper i) 202], and n- job or lookingResponse Co~‘-------------**■ shall be held. tmumc^for three years ending AugustResponses will be received until 11:00A.M. local time, September 16, 2021, to fill a jobby email to bleblanc@natickma.org.All Responses shall comply with theRFR issued by the Town of Natick, Specifications may be obtained begin ning August 25, 2021, at 9:00 AM and Wickedincluding, without limitation, Section 1 bids will be accepted at the Office of the Director of Finance, SchoolInstructions to Responders,Submission Requirements. The Town and Administration Building, 89 Hayden Rowe Street, Hopkinton, MA 01748, Local «lobsreserves the right to waive any infor Monday through Friday, until 12:00mality in or to reject any, any part of, Noon on September 8, 2021, at which al Responses in the best interest ofthe Town. Contract award is subject to time they will be publicly opened and read aloud. Bids will be accepted onlyappropriation and award by the NatickSelect Board (Board of Ser if sent Certified Mail, Return Receipt will get theAny Response submitted will be bim Requested, or delivered by handing for thirty (30) days subsequent to between the hours of 8:00 a.m. and 4:00 p.m., and in either case must be job done.the time of opening. Award shall be sealed and clearly marked:subject to vote of The Natick SelectBoard (Board of Selectmen) and HOPKINTON PUBLIC SCHOOLS INSTALLS ON NEWappropriation. & EXISTING GUTTERSAD# 13980126MWDN 8/27/2021 ««MsCRONIN ESTATE DUE; 12;QQ Noon September 8>2Q21 . LEGAL NOTICE The contract will be awarded to the Commonwealth of Massachusetts The Trial Court Probate and Family Court lowest responsible and responsive bidder. However, the town reserves BACKED BY A YEAR-ROUND the right to accept or reject any or all 10-U Commerce Way Woburn, MA 01801 Docket No. MI21P3823EA bids, if it is deemed to be in the best interest of the Town of Hopkinton. ies and further on may CLOG-FREE GUARANTEE INFORMAL PROBATE P-3 btained by..c.QQiaQ.üng the Busn _ .-jiness Office via email at PUBLICATION NOTICE srothermich @ hopkinton.kl 2.ma.us.Estate of: Lisa Ann Cronin AD# 13979538 MWDN 8/25, 8/27, 891, 9/3, 9/8/21 EXCLUSIVE LIMITED TIME OFFERDate of Death: April 30, 2021To all persons interested in the above % OFF 10 % OFFcaptioned estate, by Petition of RBI CONSTRUCTION GROUP, INC.Petitioner John Dzindolet of Ashland LEGAL NOTICEMA COMMONWEALTH OF MASSACHUSETTS YOUR ENTIRE SENIORS & MILITARYJohn Dzindolet of Ashland MA hasbeen informally appointed as the PURCHASE* ON TOP OF THE 15%! Middlesex, ss.Personal Representative of the estateto serve without surety on the bond. Superior Court No.The estate is being administered underinformal procedure by the PersonalRepresentative under the 2081CV-2309 To: RBI Construction Group, Inc., of parts unknown 5% OFF TOTHEFIRST 50 CALLERS ONLY"Massachusetts Uniform Probate Codewithout supervision by the Court. •trif-Cr Whereas a complaint has beenInventory and accounts are not FINANCING THAT FITS YOUR BUDGET!1 brought against you in our Superiorrequired to be filed with the Court, but Court within and for the County ofinterested parties are entitled to notice Middlesex, wherein the plaintiff,regarding the administration from the Rockland Trust Company SuccessorPersonal Representative and can peti by Merger Blue Hills Bank, is a bank Promo Code: 364tion the Court in any matter relating to ing institution with a principal place ofthe estate, including distribution of business in Rockland, Massachusetts.assets and expenses of administration. 1Subject to credit approval. Call for details. Whereas the plaintiff, Rockland TrustInterested parties are entitled to peti Company Successor by Merger Bluetion the Court to institute formal pro Hills Bank, requests the Court to deterceedings and to obtain orders termi mine that judgment enter for the plainnating or restricting the powers of tiff against the defendant RBIPersonal Representatives appointed Construction Group, Inc., as set forthunder informal procedure. A copy of in the Complaint filed in said court onthe Petition and Will, if any, can be September 24,2020.obtained from the Petitioner. Upon the foregoing Complaint, it is MicromeshAD# 13980330 ordered by the Court that the plaintiffMWDN 8/27/21 notify the said Defendant, that on tember 27, 2021 or within twentyHDC/29 COTTAGE STREET LEGAL NOTICE WELLESLEY HISTORIC DISTRICT M days from the said day cause their en appearance and written answer .. _________ of othe_r lawfulI | pleadings to be served uPVC Frame COMMISSION upon Ronald Dunbar, Jru Esquire, Doy LL . ... ___ __ NOTICE OF PUBLIC HEARING ON A Street, Boston, MA 02114, and defend CERTIFICATE OF against said complaint according to APPROPRIATENESS FOR law, if said corporation intends to make 29 COTTAGE STREET a defense, otherwise the said com- Hanger TUESDAY, SEPTEMBER 14, 2021 plaint may be adjudged and orders and AT 6:45 PM Judgments may be entered therein in its aosence by publication of an attest New or Existing To be held by the Historic District ed copy hereof in the Metro West Daily News, newspaper circulating in Gutters Commission as an online virtual meeting. Framingham, Middlesex County Massachusetts, for one week, the last h tt p s: //www. wel le s le y m e d i a. or q/1publication i v e- to be at least twenty days I MADE IN ÜHsl—- LIFETIME r/ilTlCrstreaminq.html (TV^cnannel a/Verizon before the said September 27, 2Ö21. 1 THE USA WARRANTY vJJLHS By the Court, (Buxton, J.)If you would like to participate on this ► ^ CALL US TODAY FOR topic, an agenda will be posted prior to the meeting with the remote information. Joseph J. Blackburn Deputy Assistant Clerk Entered: July 29, 2021 k A FREE ESTIMATE 774-375-0298 -The leading consumer reporting agen gutter guard system In America.' -F Please email Don McCauley at AD# 13980183 Representative for ful warranty details. Manufactured in Pto-iweR Michigan and processed at LMT Mercer Group in Ohio. dmccauley® wellesleyma.gov If you MWDN 8/27, 8/28, 8/29, 8/30, 8/31, C5LB* 103S79S DOPL 01O7836S8-SSO1 License« 76S6 License« 50145 license* 41354 License* 99338 License* 128344 License* 218294 would like to speak on 9/1,9/2/21 License* 603 233 977 License* 2102212986 License* 2106212946 License* 2705132153A License* LEACFNW822JZ License* WV0S6912 license* WC-2999 Registration* 36692 License# 2705169445 License* 2620000226A | SATURDAY, AUGUST 28, 2021 | THE DAILY NEWSBail They went to Charlottesville and ar- rested him with the assistance of the Virginia State Police. It is not knownContinued from Page 1A what Tetreault’s connection to Virginia is. No home address was listed in court Authorities said Weaver had been documents.living in the storage unit and was initia- Authorities are trying to track Te-lly discovered by someone who had treault’s recent movements. They askbeen in another storage unit. The Dis- anyone with information about thetrict Attorney’s Office has not said case or Tetreault to call Massachusettswhether it has been determined how State Police detectives at 508-832-long Weaver was dead before he was 9124 or the Milford Police Departmentfound. Authorities also do not know at 508-473-1113.how long he was living there or whether Norman Miller can be reached athe lived with anyone else. 508-626-3823 or nmiller@wickedlo- State Police detectives assigned to cal.com. For up-to-date public safetythe District Attorney’s Office conduct- news, follow Norman Miller on Twittered an investigation and applied for a @Norman_MillerMW or on Facebookwarrant after they said they discovered at facebook.com/NormanMillerCrime.Tetreault was involved. Waitress Cristina Reyes fixes a Grand Margarita at Lalo's Mexican Restaurant in Hudson on Thursday. Ingredients include tequila, sour mix and grand marnier upside down. KEN MCGAGH/ DAILY NEWS AND WICKED LOCAL Lalo’s said. Even details such as how they cook rice and beans are derived from mater- nal family members. Continued from Page 1A Both Vanessa and Gerardo’s grand- mothers still live in Mexico, but Vanes- cording to Vanessa Guzman, who co- sa’s mother now lives in Marlborough owns the restaurants with her hus- and Gerardo’s mother lives with the band, Gerardo. couple in Stoneham. The couple originally wanted to The menu includes a range of popular open in Hudson, she said, as they pre- Mexican cuisine, including tacos, faji- viously lived in town. So when the op- tas, tostadas, enchiladas, quesadillas, portunity arose at the Sofia’s location, huevos rancheros, tamales, churros and they pounced on the chance, she said. fried ice cream. Bottled and draft beer is “We’re really grateful for the people sold, along with wine, sangria and mar- in Marlborough and Hudson that have garitas. supported us to help open,” Guzman One of most popular menu items is said. “If it wasn’t for them, we wouldn’t tacos, especially crispy birria tacos, said be here, or even have survived through Vanessa Guzman, adding that they have COVID.” exploded in popularity in the last year. The couple, who live in Stoneham, Tacos range from $2.50 to $4.25 with 12 have Mexican roots — Vanessa’s fam- fillings offered, including al pastor, car- ily is from Guadalajara and Gerardo’s nitas, barbacoa, salmon, shrimp and is from Mexico City. Vanessa has lived veggies. in the United States all her life, while Lalo’s $16 birria taco plate was added Gerardo immigrated 20 years ago. to the menu last November, and in- The couple have worked in the res- cludes three tacos. taurant industry for many years in a When it comes to drinks, Lalo’s most variety of roles, including as cooks, popular are palomas — tequila-based waiters and bartenders. Coming from co*cktails with lime juice and a grape- different parts of Mexico adds a fruit-flavored soda, like Jarritos served unique twist to their food, said Vanes- on the rocks with a lime wedge. Flavored sa Guzman, who has also worked at lo- margaritas are next, with flavors like cal restaurants like Aztec Mexican guava and watermelon offered. Restaurant in Framingham. The restaurant is open from 11 a.m. to Dishes are inspired by Mexico, with 9 p.m. Monday through Thursday; 11 recipes notably influenced by their a.m. to 10:30 p.m. Friday and Saturday; mothers and grandmothers, Vanessa and 11 a.m. to 8 p.m. Sunday. THE DAILY NEWS | SUNDAY, AUGUST 29, 2021 | 3BNotes John Stefanini, currently the District 8 city councilor, to win a four-year term as Baker routinely takes part in the an- nual telethon. Framingham’s first mayor.Continued from Page 2B Her term ends Dec. 31. They said it... On Monday night, Warren will meet –Warren backing Spicer in person – with constituents on the “I find that really disgusting that Franklin Town Common. we’re imposing on families from the Framingham Mayor Yvonne Spicer, southside schools but not one of thewho faces two challengers in her bid for Baker chips in at cancer telethon northside schools.” – Tiffanie Maskell,re-election this fall, has friends in high vice chairwoman of the Framinghamplaces. Baker pulled out the plastic and School Committee, after hearing that a Specifically, U.S. Sen. Elizabeth War- made a $1,000 donation to the Jimmy shortage of bus drivers for the upcom- ren is joining Spicer at 6 Fund on Wednesday morning, appear- ing school year has – so far – affected p.m. Tuesday for a “virtu- ing live on WEEI to help raise money for only children living in the city’s south- al conversation and As the education sector gears up for cancer research. side. fundraiser” to support fall, the Baker administration this week Baker joined The Greg Hill Show to “I couldn’t in good conscience sit here Spicer’s re-election ef- implemented a universal masking take part in WEEI and NESN’s annual and potentially reject someone I haven’t fort. mandate for K-12 schools. POOL telethon to raise money for the Dana even had an opportunity to meet. That “Mayor Spicer under- PHOTO/NANCY LANE, BOSTON HERALD STAFF Farber Cancer Institute, talking every- just didn’t seem fair to me.” – MilfordSpicer stands the importance of thing from COVID-19 vaccines to Tom School Committee Chairwoman Megh- big, structural change to Brady, dogs and the passing of Rolling an Hornberger, who proposed that thelead the community through the pan- Massachusetts Primary in March 2020, Stones drummer Charlie Watts. Select Board and School Committee in-demic, dismantle systemic racism, and when the senator was seeking the Dem- “You guys are on the cusp of having terview each of five candidates seeking build a Framingham that
Case Info
Judge
Kristen BuxtonTrack Judge’s New Case
Case No.
(Subscribe to View)
Document Filed Date
September 27, 2021
Case Filing Date
September 24, 2020
County
Category
Contract / Business Cases
Status
09/24/2020
Parties
Dunbar, Jr., Esq., Ronald WAttorney for the Plaintiff
RBI Construction Group, Inc.Defendant
Rockland Trust CompanyPlaintiff
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Case Number: 23NWCV02238 Hearing Date: August 6, 2024 Dept: C Fabian Allen Lacey vs SSM Dealer, Inc., et al. Case No.: 23NWCV02238 Hearing Date: August 6, 2024 @ 9:30 a.m. #4 Tentative Ruling Defendant SSM Dealer, Inc.s Motion to Compel Arbitration and to Stay Action is GRANTED as to the First, Second, Third, and Fourth Causes of Action and DENIED as to the Fifth Cause of Action. Defendant to give notice. Background This is a breach of contract lawsuit regarding the sale of a used 2010 Dodge Challenger VIN # 2B3CJ5DT6AH220012. On July 19, 2023, Plaintiff Fabian Allen Lacey (Plaintiff) filed a Complaint against Defendant SSM Dealer, Inc. and Merchants Bonding Company Mutual alleging: (1) Intentional Misrepresentation; (2) Negligent Misrepresentation; (3) Violation of Business and Profession Code § 17200; (4) Bond Claim; (5) Violation of the Consumer Legal Remedies Act. Defendant SSM Dealer, Inc. (Defendant) moves to compel arbitration and stay proceedings. Legal Standard Defendant moves to compel arbitration pursuant to an Arbitration Agreement entered into between Defendant and Plaintiff when Plaintiff purchased the vehicle. California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, California Code of Civil Procedure section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues. (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967 [citations omitted]; Code Civ. Proc. § 1281.2.) In deciding a petition to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The party seeking arbitration has the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842.)¿The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination. (Id.) General principles of contract law govern whether parties have entered a binding agreement to arbitrate. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; see also Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.)¿ Discussion As a preliminary matter, Plaintiff does not dispute that the First, Second, Third, and Fourth causes of action are subject to arbitration. It follows that Plaintiff submits that there is a valid and enforceable arbitration agreement as to these causes of action. Accordingly, the Motion Compel Arbitration as to the First, Second, Third, and Fourth causes of action is GRANTED. The Court now turns its attention to the CLRA claim. In opposition, Plaintiff contends that the CLRA claim is inarbitirable and therefore should not be subject to arbitration. In reply, Defendant contends that there is no claim for injunctive relief. Defendant points to the fact that the word injunction appears only in paragraph 84 which states Plaintiff seeks to obtain an injunction against Dealer which enjoins Dealer from continuing to make false and misleading statements to consumers regarding the sale of motor vehicles. (Complaint, ¶ 84.) Defendant further argues that Plaintiff has not filed a motion for a preliminary injunction. CLRA and UCL claims for injunctive relief are not subject to arbitration as they are inarbitrable. (See Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 316; Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1082-84.) This was recently confirmed in Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 917. The court in Sanchez raised, but declined to address, whether the U.S. Supreme Courts ruling in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 (finding federal preemption of a California case holding unconscionability of class arbitration waivers in consumer contracts) would also result in preemption of the California rule against arbitration of UCL and CLRA injunctive claims. As such, Broughton and Cruz remain good law and Plaintiffs UCL and CLRA claims for injunctive relief are not arbitrable. Absent the parties' commitment of the arbitrability decision to an arbitrator, disagreements over whether a particular dispute is within the scope of an arbitration provision are ordinarily the responsibility of a court. (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 765.) As the Court held in Cruz, claims seeking injunctive relief designed to protect the public by stopping unlawful practices under the CLRA and UCL are not arbitrable. Here, Plaintiff seeks injunctive relief under both the CLRA and UCL. Accordingly, the Motion to Compel Arbitration as to the Fifth Cause of Action is DENIED.
Ruling
Aug 07, 2024 |23NWCV00844
Case Number: 23NWCV00844 Hearing Date: August 7, 2024 Dept: C LINDA IKEDA VS. THE JEN & MI LU FAMILY, LLC CASE NO.: 23NWCV0844 HEARING: 8/7/24 @ 10:30 A.M. #8 TENTATIVE ORDER Defendants demurrer to Plaintiffs complaint is OVERRULED. Defendant to answer in 5 days. Moving Party to give NOTICE. Background The operative First Amended Complaint (FAC) was filed on November 15, 2023, by Linda Ikeda (Plaintiff) against The Jen & Mi Lu Family, LLC (Defendant). The FAC alleges that on February 8, 2017, Plaintiff entered a commercial lease on behalf of her LLC, Jumpstart Bodyfuel. (FAC, ¶ 4.) Several months later, she dissolved the corporation and formed a new LLC called Way Beyond Cake Bakery. (FAC, ¶ 6.) In 2021, she started to feel ill while she was on the premises. (FAC, ¶ 7.) She had occupied the premises during workdays from February 8, 2017 until 2021. (FAC, ¶ 7.) Plaintiff sought medical treatment, which revealed that she had contracted lead poisoning. (FAC, ¶ 11.) She hired a lead contamination company to inspect the leased premises, and the inspection revealed that there was lead emanating from the interior of the leased premises and had probably been there for many years. (FAC, ¶¶ 12 and 13.) In May 2021, she realized she had contracted lead poisoning from the Defendants leased premises as the result of her continued occupation of the premises from February 2017 until she vacated in June 2021. (FAC, ¶19.) She filed a lawsuit on March 20, 2023, alleging causes of action for breach of contract and premises liability. She filed her first amended complaint on November 15, 2023. She sues for negligence and premises liability. Defendant demurs to all causes of action in the complaint on the grounds that they do not state facts sufficient to constitute a cause of action. Legal Standard The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) A party may demur to an entire complaint, or to any causes of action stated therein. (Code Civ. Proc., § 430.50, subd. (a).) The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Flynn v. Higham (1983) 149 Cal.App.3d 677, 679.) The burden is on the complainant to show the court that a pleading can be amended successfully, to obtain an order allowing leave to amend. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78.) Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.) Meet-and-Confer Defendant satisfied the meet-and-confer requirements. (Decl. Lewis, ¶ 1; Code Civ. Proc., § 430.41, subd. (a)(3).) First Cause of Action Negligence To state a claim for negligence, Plaintiff must allege the elements of (1) the existence of a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in an injury. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Defendant demurs to the negligence cause of action on the grounds that Plaintiff does not allege any duty; Plaintiff is not a named party to the agreement; California does not recognize a warranty of habitability for commercial leases; any duty is contractual; and Jumpstart Bodyfuel, LLC lacks capacity to sue. Plaintiff alleges that Defendant had a duty to rent a habitable, safe, work environment and they failed to do so. They either knew, or should have known, that the leasehold premises was contaminated with lead, which ultimately lead to the sickness of the Plaintiff. (FAC, ¶ 17.) Defendant argues that California does not recognize a warranty of habitability for commercial leases, and any such duty is contractual. Assuming that is true, the parties to the lease, as Defendant points out, were Defendant and Jumpstart. Plaintiff is suing as an individual. Thus, the Court cannot determine, at this stage of the proceedings, that the lease agreement bars Defendants liability. As noted in the Courts October 19, 2023 ruling on the previous demurrer, the issue of whether Jumpstart Bodyfuel has standing/capacity to institute this lawsuit is not before this Court. Jumpstart Bodyfuel is not a party to this action, and Plaintiff Ikeda does not allege that she is bringing derivative claims on behalf of the corporate entity. Accordingly, the demurrer to the first cause of action is OVERRULED. Second Cause of Action Premises Liability The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Defendants argue that the statute of limitations bars the premises liability claim because Plaintiff entered the lease on or about February 8, 2017. Because the premises liability claim is a negligence claim, the two-year statute of limitations applies. (Code Civ. Proc., § 335.1; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) A limitations period does not begin until a cause of action accrues, i.e. all essential elements are present, and a claim becomes legally actionable. (Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th, 1018, 1029.) This does not occur until the last element essential to the cause of action happens. (Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 323.) The running of the statute must appear clearly and affirmatively from the face of the complaint; it is not enough that the complaint might be time-barred. (Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 321.) Here, Plaintiff states that in May 2021, she realized she had contracted lead poisoning from the Defendants leased premises as the result of her continued occupation of the premises from February 2017 until she vacated in June 2021. (FAC, ¶19.) She does not state when she sustained the harm. To the extent it can be determined, the date Plaintiff sustained the harm determines when the cause of action accrued and when the statute of limitations began to run. Because the running of the statute of limitations does not appear clearly and affirmatively from the face of the FAC, the statute of limitations does not bar the action. Accordingly, the demurrer to the second cause of action is OVERRULED.
Ruling
FARHAD MOOSSAZADEH, ET AL. VS HERSEL MANGOLI, ET AL.
Aug 07, 2024 |20SMCV00452
Case Number: 20SMCV00452 Hearing Date: August 7, 2024 Dept: 205
Ruling
Francisco Flores vs Atwater Auto World
Aug 08, 2024 |22CV-00449
22CV-00449 Francisco Flores v. Atwater Auto WorldOrder to Show Cause re SanctionsAppearance 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. Appearto address the failure to appear at the July 8, 2024 Case Management Conference.Case Management ConferenceAppearance 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. Appearto address the status of the Case.
Ruling
SUNWOO LEE, ET AL. VS COM2US HOLDINGS, A KOREAN CORPORATION, ET AL.
Aug 06, 2024 |23STCV10395
Case Number: 23STCV10395 Hearing Date: August 6, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING SUNWOO LEE, et al., Plaintiffs, v. COM2US HOLDINGS, A KOREAN CORPORATION, et al., Defendants. Case No: 23STCV10395 Hearing Date: August 6, 2024 Calendar Number: 7 Defendants Com2us USA, Inc. (Com2us USA) and Kyu Chang Lee (collectively, Moving Defendants) demur to the Second Amended Complaint (SAC) filed by Plaintiffs Sunwoo Lee and Myunga Cho (collectively, Plaintiffs). The Court OVERRULES the demurrer. The Court, sua sponte, strikes Plaintiffs claims under their first cause of action relating to purchases which occurred prior to May 9, 2022. The Court emphasizes that this document is a tentative order only. The Court solicits arguments in particular on: (1) whether there is a legal requirement at the pleading stage to do more than allege that Defendants sold the securities to plaintiff; and (2) whether there are legal principles that the Court can apply at the pleading stage that securities sold on a foreign exchange may not be subject to certain claims. In making their arguments, Moving Defendants are reminded of the California pleading rules that require the Court to accept as true the allegations of the SAC. Background This is a securities fraud case. The following facts are taken from the allegations of the SAC, which the Court accepts as true for the purposes of the demurrer. Defendant Com2us Holdings is a corporation organized under the laws of the Republic of Korea. Defendant Com2us Corp. is a subsidiary of Com2us Holdings. Defendant Com2us USA is a subsidiary of Com2us Holdings. Defendant Lee is the CEO of Com2us. The Com2us companies developed C2X tokens, which are a type of cryptocurrency. The Com2us companies developed C2X to interact with videogames, where C2X would function as a currency in the video game. Plaintiffs allege that Defendants offered and sold C2X tokens through an initial exchange offering (IEO) on the FTX exchange. The IEO took place on March 18, 2022. Plaintiffs allege that Defendants marketed and sold C2X tokens in California. Although Moving Defendants present evidence that they excluded the United States from their marketing efforts, the Court is not able to consider such evidence at the pleading stage. Plaintiffs allege that Defendants made a number of misrepresentations about how C2X would function, including representations that C2X would be part of a virtual ecosystem where it was the sole cryptocurrency and that C2X would have multiple associated videogames. Many of these representations allegedly occurred in a C2X Whitepaper, which Plaintiffs allege that Moving Defendants shared publicly on Twitter. Plaintiffs are California residents. Plaintiffs allege that they purchased shares of C2X in California via the FTX exchange. Between April and May 2022, Defendants provided a staking program to owners of C2X, wherein customers staked their existing C2X tokens by purchasing a separate digital asset and then used their C2X tokens to gain additional LP tokens from Defendants. (SAC ¶¶ 4, 60.) Plaintiffs allege that they staked all of their C2X tokens. Plaintiffs allege that, as a result of their investment in C2X, they suffered economic losses. Plaintiff filed this action on May 9, 2023. The operative complaint is now the SAC, which raises claims for (1) violations of sections 5 and 12(a)(1) of the Securities Act of 1933; (2) violations of sections 5 and 12(a)(2) of the Securities Act of 1933; (3) violation of section 15 of the Securities Act of 1933; (4) violation of Corporations Code, sections 25110 and 25503; (5) violations of Corporations Code, sections 25401 and 25501; (6) violation of Corporations Code, section 25504; (7) violation of Corporations Code, section 25504.1; (8) intentional misrepresentation; (9) negligent misrepresentation; and (10) conversion. Moving Defendants demurred to the SAC on April 2, 2024. Plaintiffs filed an opposition and Moving Defendants filed a reply. Request for Judicial Notice The Court grants Moving Defendants request for judicial notice. The Court takes notice of the existence of Exhibits B and C as public records. The Court takes notice of Exhibit A as a document referenced in Plaintiffs SAC. The Court takes judicial notice of the existence of these documents, but not of the truth of their contents. Legal Standard As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Discussion Length of Demurrer On November 20, 2023, the Court ordered that Moving Defendants demurrer may be up to 25 pages in length. Moving Defendants demurrer is 23 pages long, and therefore is not improperly long. (1) Violations of Sections 5 and 12(a)(1) of the Securities Act of 1933 15 U.S.C., section 77l, also known as Securities Act, section 12, imposes liability to purchasers on any person who offers or sells a security in violation of 15 U.S.C., section 77e (also known as Securities Act, section 5). (15 U.S.C., § 77l, subd. (a)(1).) Extraterritoriality The Securities Act applies only to transactions made within the United States. (Morrison v. National Australia Bank Ltd. (2010) 561 U.S. 247, 268-269.) Moving Defendants argue that Plaintiffs do not allege a domestic transaction. Plaintiffs allege that Defendants solicited purchases of CTX throughout the world, including in California. (SAC ¶ 1.) Plaintiffs allege that Defendants sold CTX tokens to Plaintiffs in California. (SAC ¶ 107.) Plaintiffs claims, as alleged, are therefore not extraterritorial. Statute of Limitations Section 77l has a 1-year statute of limitations. (15 U.S.C., § 77m.) Plaintiffs filed this action on May 9, 2023. Moving Defendants argue that Plaintiffs cannot state claims for purchases prior to May 9, 2022. Plaintiffs allege that they purchased unregistered C2X tokens from Defendants from March 23, 2022 to August 18, 2022. The purchases prior to May 9, 2022 therefore do not form the basis for a timely claim. The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike. (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385, disapproved of on other grounds by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.) In Caliber Bodyworks, the Court of Appeal directed the trial court to strike, sua sponte, portions of the plaintiffs claims for which the plaintiff had not exhausted its administrative remedies. (Ibid.) To the extent that Moving Defendants argue that Caliber Bodyworks compels the Court to strike Plaintiffs untimely allegations here, the Court disagrees. The ability to strike portions of a pleading sua sponte is discretionary. (Code Civ. Proc., § 436.) However, because the parties have fully briefed the issue of timeliness, the Court finds that it would be appropriate to strike Plaintiffs claims under this cause of action which predate May 9, 2022. Allegations that Moving Defendants sold tokens to Plaintiffs Plaintiffs allege that they purchased shares from all Defendants (SAC ¶¶ 56, 57, 60.) Moving Defendants argue that Plaintiffs do not specifically name Moving Defendants in these allegations. The Court disagrees. Plaintiffs allegation that they purchased shares from all Defendants provides adequate notice to moving Defendants of the claim against them. The Court overrules the demurrer to this claim. (2) Violations of Sections 5 and 12(a)(2) of the Securities Act of 1933; 15 U.S.C., section 77l, subd. (a)(2) provides for the same remedies as subdivision (a)(1), against any person who offers or sells a security in interstate commerce by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circ*mstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission. (15 U.S.C., § 77l, subd. (a)(2).) Allegations that Moving Defendants sold tokens to Plaintiffs As discussed above, the Court finds that Plaintiffs have adequately alleged that Defendants sold shares to Plaintiffs. Allegations of Prospectus Defendants argue that Plaintiffs have not alleged the existence of a prospectus. [T]he word prospectus is a term of art referring to a document that describes a public offering of securities by an issuer or controlling shareholder. (Gustafson v. Alloyd Co., Inc. (1995) 513 U.S. 561, 584.) Plaintiffs allege that on February 7, 2022, Defendants published a C2X Whitepaper for investors to learn more about C2X tokens and the C2X ecosystem. Plaintiffs allege that the C2X Whitepaper was made to provide information about the public offering of C2X by Defendants, who issued C2X. Plaintiffs have therefore alleged that the C2X Whitepaper is a prospectus. Plaintiffs allege that the Twitter account of XPLA Games tweeted the C2X Whitepaper. Plaintiffs alleges that Com2us USA and Defendant Lee retweeted the Whitepaper on or around the same day. Plaintiffs specifically allege a number of misrepresentations in the Whitepaper, including manipulated data (SAC ¶ 31), that there would be a single NFT marketplace with C2X tokens as its primary currency (SAC ¶ 37), that C2X tokens would be the primary token used in the associated video games (SAC ¶ 40), and that several video games would be part of the C2X ecosystem (SAC ¶ 41). Plaintiffs have therefore adequately alleged that Moving Defendants made misrepresentations in a prospectus. Particularity Plaintiffs allege with particularity that Defendants Com2us and Lee retweeted the C2X Whitepaper around February 7, 2022. They also allege specific misrepresentations about C2X in the C2X Whitepaper. Plaintiffs have therefore pled this claim with adequate particularity. The Court overrules the demurrer to this claim. (3) Violation of Section 15 of the Securities Act of 1933 Every person who, by or through stock ownership, agency, or otherwise, or who, pursuant to or in connection with an agreement or understanding with one or more other persons by or through stock ownership, agency, or otherwise, controls any person liable under sections 77k or 77l of this title, shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable, unless the controlling person had no knowledge of or reasonable ground to believe in the existence of the facts by reason of which the liability of the controlled person is alleged to exist. (15 U.S.C., § 77o.) Moving Defendants argue that Plaintiffs have not pled that Moving Defendants are controlling persons. Plaintiffs allege that Defendant Lee is the CEO of Com2us USA. Plaintiffs allege that Defendants possessed the power to direct the management and policies of Com2us Holdings, Com2us Corp., and Com2us USA. Furthermore, Com2us USA necessarily controlled its members, who would be the people who actually took the actions involved in making the C2X offerings. Plaintiffs have therefore pled that Moving Defendants are controlling persons. As discussed above, the Plaintiffs have adequately alleged that Defendants, including, Moving Defendants sold C2X tokens to Plaintiffs. The Court therefore overrules the demurrer to this claim. (4) Violation of Corporations Code, Sections 25110 and 25503 It is unlawful for any person to offer or sell in this state any security in an issuer transaction (other than in a transaction subject to Section 25120), whether or not by or through underwriters, unless such sale has been qualified under Section 25111, 25112 or 25113 (and no order under Section 25140 or subdivision (a) of Section 25143 is in effect with respect to such qualification) or unless such security or transaction is exempted or not subject to qualification under Chapter 1 (commencing with Section 25100) of this part. The offer or sale of such a security in a manner that varies or differs from, exceeds the scope of, or fails to conform with either a material term or material condition of qualification of the offering as set forth in the permit or qualification order, or a material representation as to the manner of offering which is set forth in the application for qualification, shall be an unqualified offer or sale. (Corp. Code, § 25110.) Corporations Code, section 25503, provides for the remedies available against a defendant who violates section 25110. (Corp. Code, § 25503.) Privity between Plaintiffs and Moving Defendants Moving Defendants argue that Plaintiffs Corporations Code claims fail for lack of privity based on their argument that Plaintiffs have not alleged that Plaintiffs purchased CTX tokens from Moving Defendants. As discussed above, the Court finds that Plaintiffs have adequately alleged that they purchased unregistered CTX tokens from Moving Defendants. The Court therefore finds that lack of privity is not a basis to dismiss any of Plaintiffs Corporations Code claims. Purchases in California Moving Defendants argue that Plaintiffs have not alleged purchases made in California. As discussed above, Plaintiffs have alleged that Moving Defendants sold them CTX tokens in California. (SAC ¶ 107.) The Court therefore overrules the demurrer to this claim. (5) Violations of Corporations Code, Sections 25401 and 25501 It is unlawful for any person to offer or sell a security in this state, or to buy or offer to buy a security in this state, by means of any written or oral communication that includes an untrue statement of a material fact or omits to state a material fact necessary to make the statements made, in the light of the circ*mstances under which the statements were made, not misleading. (Corp. Code, § 25401.) Corporations Code, section 25501, provides for the remedies available against a defendant who violates section 25401. (Corp. Code, § 25501.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Privity between Plaintiffs and Moving Defendants As discussed above, Plaintiffs have adequately alleged privity. Particularity Moving Defendants argue that Plaintiffs have not alleged this claim with adequate particularity for a fraud claim. As discussed above, Plaintiffs have adequately alleged that Moving Defendants disseminated the C2X Whitepaper on Twitter around February 7, 2022, and have alleged specific ways in which the C2X Whitepaper was misleading. Plaintiffs have therefore stated their claim with adequate particularity. These allegations also rebut Moving Defendants argument that Plaintiffs have not alleged that Moving Defendants materially assisted in the violation. The Court overrules the demurrer to this claim. (6) Violation of Corporations Code, Section 25504 Every person who directly or indirectly controls a person liable under Section 25501 or 25503, every partner in a firm so liable, every principal executive officer or director of a corporation so liable, every person occupying a similar status or performing similar functions, every employee of a person so liable who materially aids in the act or transaction constituting the violation, and every broker-dealer or agent who materially aids in the act or transaction constituting the violation, are also liable jointly and severally with and to the same extent as such person, unless the other person who is so liable had no knowledge of or reasonable grounds to believe in the existence of the facts by reason of which the liability is alleged to exist. (Corp. Code, § 25504.) Allegations of control-person liability Moving Defendants argue that Plaintiffs have not adequately alleged the either of Moving Defendants was a controlling person. As discussed above, Plaintiffs have adequately alleged control-person liability as to Moving Defendants. Material Assistance As discussed above, Plaintiffs have adequately alleged material assistance by alleging the Moving Defendants disseminated the C2X Whitepaper on Twitter. Moving Defendants argue that Plaintiffs have not alleged sufficiently specific facts showing knowledge of falsity. [Frauds] particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.] (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Plaintiffs have alleged that Defendants knew that the representations they made were false (Complaint ¶ 137); it is difficult to see how a Plaintiff could allege further evidentiary facts absent an admission by Defendants or later conduct showing that they knew the representations to be false. The Court therefore overrules the demurrer to this claim. (7) Violation of Corporations Code, Section 25504.1 Any person who materially assists in any violation of Section 25110, 25120, 25130, 25133, or 25401, or a condition of qualification under Chapter 2 (commencing with Section 25110) of Part 2 of this division imposed pursuant to Section 25141, or a condition of qualification under Chapter 3 (commencing with Section 25120) of Part 2 of this division imposed pursuant to Section 25141, or an order suspending trading issued pursuant to Section 25219, with intent to deceive or defraud, is jointly and severally liable with any other person liable under this chapter for such violation. (Corp. Code, 25504.1.) Moving Defendants group their arguments against this claim with their arguments against Plaintiffs section 25504 claim. For the same reason that the Court rejects those arguments, the Court overrules the demurrer to this claim. (8) Intentional Misrepresentation The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce anothers reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) Particularity Moving Defendants argue that Plaintiffs have not alleged this claim with sufficient particularity. As discussed above, the Court finds that Plaintiffs have stated their fraud claims with adequate particularity. The Court overrules the demurrer to this claim. (9) Negligent Misrepresentation The elements of a cause of action for negligent misrepresentation include [m]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce anothers reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage. (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1154, quotation marks omitted.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiff must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) California courts have recognized a cause of action for negligent misrepresentation, i.e., a duty to communicate accurate information, in two circ*mstances. The first situation arises where providing false information poses a risk of and results in physical harm to person or property. The second situation arises where information is conveyed in a commercial setting for a business purpose. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 477.) Particularity Moving Defendants argue that Plaintiffs have not alleged this claim with sufficient particularity. As discussed above, the Court finds that Plaintiffs have stated their fraud claims with adequate particularity. The Court overrules the demurrer to this claim. (10) Conversion Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiffs ownership or right to possession of the property; (2) the defendants conversion by a wrongful act or disposition of property rights; and (3) damages. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to [their] own use. (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 544.) Conversion requires the defendant to take some affirmative action to exercise dominion over or deprive a plaintiff of his or her property. (Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th 266, 276.) Defendants argue that it is FTXs cessation of withdrawals that is responsible for Plaintiffs loss of access to their C2X tokens. However, Plaintiffs allege that Defendants wrongfully withheld access to Plaintiffs C2X tokens from October 21, 2022 to November 8, 2022, prior to the FTX cessation of withdrawals on November 8, 2022, which adequately alleges an interference with Plaintiffs ownership during that time period. The Court overrules the demurrer to this claim.
Ruling
FCS053772 - KUDSK, SUSAN V YEAH, HALLORAN (DMS)
Aug 10, 2024 |FCS053772
FCS053772Application for Sale of Dwelling Page 3 of 4TENTATIVE RULINGCounsel for Judgment Creditor to appear. There is no indication in the court’s fileestablishing that counsel prepared and submitted an order to show cause as ordered bythis court. There is also no proof of service demonstrating timely and proper service ofany order to show cause, a copy of the application, and a copy of the notice of hearingon Judgment Creditor and any occupant of the dwelling to be sold. Page 4 of 4
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