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IN THE COURT OF COMMON PLEAs OF DELAWARE COUNTY PENNSYLVANIA COVER SHEET NOTICE OF FILING OF MOTION OR PETITION UNDER LOCAL RULES OF CIVIL PROCEDURECAVALRY SPVI LLC AS ASSIGNEE OF CITIBANK, )NA ) CIVIL CASE NO CV 2020 001559 Plaintiff ) vs )MICHAEL P CONNOR ) DefendantNATURE OF MATTER FILED (please check one)C] Petition Pursuant to Rule 206 1 El Response to Petition E] Motion for Judgment on the Pleadings Pursuant to Rule 1034(a) Motion Pmsuant to Rule 208 1 El Response to Motion El Summary Judgment Pursuant to 1035 2 FILING PARTY IS RESPONSIBLE FOR SERVICE OF THE RULE RETURNABLE DATE OR HEARING DATE UPON ALL PARTIESA motion or petitlon was filed in the above captioned matter on the day of , , whichE] Requires you, Respondent, to file an Answer within twenty (20) days of the above date to this notice, or n'skthe entry of an Older in favor of the Petitioner Answers must be filed and time stamped by the Office ofJudicial Support by 4 30 PM on the following dateE] Requires all parties, to appear at a hearing/conference on the day of , 2013,at in Courtroom , Delaware County Courthouse, Media, Pennsylvania At this hearing/conferenceyou must be prepared to present all testimony and/or argument, and must ensure that your witnesses will bepresentEl Was timely answered, thus requiring the scheduling of the following hearing in the above captioned matteron 2010 at 10 00 AM in CourtroomAt this hearing, all parties must be prepared to present all testimony and/or argument and must ensure thattheir witnesses will be presentEl Qualifies as an Uncontested Motion or Petition, and as such requires neither an answer from the Respondentnor the schedulmg of a hearing 1n this matterEl Has been assigned to Judge FOR OFFICE USE ONLYMailing date Processed by r: r CID &‘é a (K /Our File No 512483 / f9, ?Apothaker Scian P C k}; ‘2 4By Derek A Moatz, Esquire \ ‘ '2" \ EA)Attorney I D #205200 ‘j )3 f, v520 Fellowship Road Suite C306 PO Box 5496 g, (.9,Mt Laurel NJ 08054 5496 ” ‘3’,(800) 672 0215 '1'I‘Y 888 245 0243 5Attorneys for Plaintiff 5 LS ) COURT OF COMMON PLEAS OFCAVALRY SPV I LLC AS ASSIGNEE ) DELAWARE COUNTYOF CITIBANK, N A ) ) Plaintiff ) NO CV 2020 001559 vs ) ) Civil ActionMICHAEL P CONNOR ) ) Defendant PLAINTIFF S BRIEF IN RESPONSE TO DEFENDANT S PETITION TO OPEN AND/OR STRIKE DEFAULT JUDGMENT Legal Arggment Defendants petition ask either to strike or to open the default Judgment, predicated on a newaddress referenced on the sheriff‘s return of service, different from the address for the 10 daynotice sent pnor to default It is axiomatic that a motion to strike will not be granted unless a fatal defect in the judgment appears on the face of the record Malakojf v Zambar Inc , 446 Pa 503, 288 A 2d 819 (1972) Cameron v Great Atlantic and Paczfic Tea Co 439 Pa 374 266 A 2d 715 (1970) Hall v West Chester Publishmg Co 180 Pa 561 37 A 106 (1897) If the record is self sustaining, the judgment cannot be stricken Fleck v McHugh, 241 Pa Super 307 311 361 A 2d 410 412 (1976) Polzczno v Ehrlzch 236 Pa Super 19 345 A2d 224 (1975)Ad Bldg Servzces v F & M Schafi”er 252 Pa Superior Ct 579 582 384 A 2d 931 (1978) In the instant case, the alleged fatal defect IS the reference to a new address for thedefendant on the sheriffs return form While the address portion of the comment is generallylegible, the section appears to be struck out with several slash marks crossing over it As thissection appears to relate to what the sheriff determined on the failed attempt at service on July31, and was presumably struck out when Defendant appeared at the shedff’s department toreceive semce on August 3, 2020 Plaintiff proceeded and attested to the prior address asDefendant’s last known address as no other indication was given that the address was incorrectno mail retum, no contact from the Defendant The alleged defect does not invalidate the serviceitself or that Defendant was on notice of his duty to respond The ambiguity of the struck outsection is not sufficient to qualify as a fatal defect on the face of the record A petition to open a default Judgment is addressed to the equitable powers of the courtand is a matter of judicial discretion The court will only exercise this discretlon when (l) thepetition to open has been promptly filed; (2) a meritorious defense can be shown, and (3) thefailure to appear can be excused Schultz v Erie Ins Exchange 505 Pa 90, 477 A 2d 471 (1984) "The trial court cannot open a default judgment based upon the 'equities' of the case whenthe defendant has failed to establish all three of the required criteria " Flynn v Casa Dz Bet tacchtCorp , 449 Pa Super 606, 674 (1996), Castings Condommzum Assoczatwn Inc v Klem, 444 PaSuper 68, 77 (1995) If the court considers the three elements identified above, it need notconduct a separate inquiry regarding the alleged prejudice to the parties since the tripartite testconstitutes the governing equitable analysis Flynn v Amertcan West Azrlmes, 742 A 2d 695,699 700 (Pa Super 1999) If a petition to open default judgment is filed within 10 days the delay is held to beexcusable as a matter of law and no explanation is required Pa R C P §237 3, Cohen v Mzrm,729 A 2d 1236, 1238 (Pa Super 1999) If not, the court, in determining promptness, focuses on1) the length of delay between discovery of the default judgment entry and filing the petition toopen and 2) the reason for the delay Dumoffv Spencer 754 A 2d 1280 1281 82 (Pa Super2000) Allegheny Hydro No I v American Lme Buzlders Inc 722 A 2d 189 193 (Pa Super1998) Failure to timely file a petition to open default Judgment, by itself, may be grounds for itsdenial See Allegheny Hydro 722 A 2d at 194 (41 day delay between notice of default and filingof petit1on was deemed to be untimely), Castings Condommzum, 444 Pa Super at 73 (threemonth delay is not prompt) The Superior Court has "held that delays of as little as 21 days havebeen untimely " Dumofl, supra In the instant case, Defendant had notice of his duty respond on August 3, 2020, andappears to have taken no action whatsoever until appearing for arbitration on November 10,2020 There is no indication that the service did not include the proper notice to defend, or thatDefendant made any attempt to contact Plaintiff in regard to his change of address Likewise,there is no suggestion that Defendant followed up with the couxt in regard to his address or statusof the case Defendant’s position is presumably that the Plaintiff should have assumed the struckout address was correct and current, and that his failure to respond as described in the notice todefend is excused by lack of receipt of the 10 day notice advising of the same requirement Boththe initial failure to respond and delay in challengmg the judgment should not be excused whereDefendant was on notice of an active case requiring response for over three months before takingany action In order to satlsfy the meritorious defense requirement, the Defendant is required to pleada defense which (1) would Justify relief if proved at trial and (2) is set foxth in precise, specificand clear terms Penn Delco School Dzstrzct v Bell Atlantzc PA, 745 A 2d 14 19 (Pa Super1999) ABG Promotzons v Parkway Pub Inc 834 A 2d 613 618 (Pa Super 2003) In the instant petition, the proposed preliminary objections relate to lack of certainattachments to the Complaint, and an obj ect10n to the interpretation of the Complaint as anaccount stated claim The Complaint is sufficient to support either an account stated or breach ofcontract c1a1m Attached hereto as Exhibit A is the Card Agreement governing Defendant’saccount at the time of default Given that Plaintiff can sustain a breach of contract claim on thesefacts, the proposed preliminary objections are insufficient as a meritorious defense WHEREFORE, Plaintiff respectfully requests that this Court deny Defendant’s Petitionto Open and/or Strike Default Judgment Apothaker Scian P C Attorney for Plaintiff A Law Finn Engaged in Debt Collection BY W Derek A Moatz, Esquire ) COURT OF COMMON PLEAS OFCAVALRY SPVI LLC AS ASSIGNEE ) DELAWARE COUNTYOF CITIBANK, N A ) ) Plaintiff ) NO CV 2020 001559 vs ) ) ClviI ActionMICHAEL P CONNOR ) ) Defendant O RD ER AND NOW this day of 20 uponconsideration of Plaintiffs Brief in Response to defendant’s Petition to Open and/or StrikeDefault Judgment it is hereby ORDERED and DECREED that defendant 5 Petition to Openand/or Strike Default Judgment shall be DENIED BY THE COURT JOur File No 512483Apothaker Sciau P CBy Derek A Moatz, EsquireAttorney I D #205200520 Fellowship Road Suite C306 PO Box 5496Mt Laurel NJ 08054 5496(800) 672 0215 TTY 888 245 0243Attomeys for Plaintiff ) COURT OF COMMON PLEAS OFCAVALRY SPVI LLC AS ASSIGNEE ) DELAWARE COUNTYOF CITIBANK, N A ) ) Plaintiff ) NO CV 2020 001559 vs ) ) Civ11 ActionMICHAEL P CONNOR ) ) Defendant CERTIFICA'I ION OF SERVICE I, Derek A Moatz, Esquire, attorney for Plaintiff, certify that on 1 g ‘1 hp , I caused to be served a copy of Plaintiff’s Order and Brief in Responseto Defendant’s Petition to Open and/or Strike Defafilt Judgment by mail onERIK HELBING ESQUIRE1328 SECOND AVENUEBERWICK, PA 18603 Apothaker Scian P C Attorney for Plamtiff A Law Firm Engaged m Debt Collection Derek A Moatz, EsquireCard Numben _6276March 13 2019MICHAEL P CONNOR1024 OAKWOOD DRGLENOLDEN PA 19036 1513 MICHAEL P CONNOR Account ending 6276 Page 2 of 2 Fact Sheet Pricing Information Table Interest Rates and Interest Charges Annual Percentage Rate 24 24% (APR) for Pumhases This APR will vary with the market based on the ane Rate APR for Cash Advances 27 49% This APR will vary with the market based on the Prime Rate Penalty APR and When Up to 29 99% based on your creditworthiness This APR will vary with the market based it Applies on the Prime Rate This APR may be applied to your account if you (1) Make a late payment or (2) Make a payment that is returned How Long Will the Penalty APR Apply? If your APRs are increased for either ofu- these reasons the Penalty APR may apply indefinitelyg Paying Interest Your due date is at least 29 days afterthe close of each billing cycle We will not charger you Interest on purchases If you pay your entire balance by the due date each month Wea will begin charging interest on cash advances and balance transfers on the transaction date Minimum Interest If you are charged interest the charge will be no less than 50 cents Charge How We Calculate Your Daily Balance (including currenttransactions) Balance Transaction Fees $50 12 moms) Balance Transfer Either $5 or 3% of the amount of each transfer whichever is greater Cash Advance Either $10 or 5% of the amount of each cash advance whichever is greater Foreign Purchase 3% of each purchase transaction in US dollars Transaction Penalty Fees Late Payment Up to $35 Returned Payment Up to $35 Details About Your Interest Rates Periodic Rate as of 03/13/2019 For va_riable rates and Interest Calculations U S Pr'me Rate PMS 0066mm) 187% Cash Advances 0 07532% (D) 21 99% Penalty APR 0 08216% (D) Up to 26 74% (D) Daily periodic rate A daily periodic rate is the APR divided by 365 Variable APRs will not exceed 29 99% 54% Card Agreement Gurde This Guide will help you easily identify sections of the Card Agreement and give you a brief overview of the contents of each section This is not intended to be a complete summary of the Card Agreement 5 contents, and we encourage you to read your entire Card Agreement, including the arbitration provision. before you use your Account. Ll? DEFINITIONS ACCOUNT iNFORMATiON iNFORMATiON SHARING AND I Lists the meanings of particular phrases and terms used in the t 1; COMMUNICATIONS L Card Agreement Explains that your personal information we use to manage your Account should always be up to date Also notes that we share information about you and yourAcoounL in addition this section YOUR ACCOUNT descnbes how we may contact you 1 Descnbes some of your responsibilities for using your Account | TRANSACTIONS ANNUAL PERCENTAGE RATES & INTEREST CHARGES Provrdes Important information about merchant credits recurring . Transactions and card refusals Shows how we calculate Interest rates and how that affects your \ Account balance | r (“I ARBITRATION ‘ Explains that you cannot go to court have ajury tnai or initiate or FEES 8‘ FOREIGN CURRENCY CQNVERSION d I. participate in a class action if you have a dispute with us Instead Desenbes the fees that can be applied to yourAccount lnciu tng this provision tells you that the dispute must be resolved by a annual membership fees late fees as well as foreign transaction professional arbrtrator not a judge or jury This section alsoa. fees for Purchases not '" U S dollars explains how arbitration works and some of the differencesm between resolving a dispute in arbitration and resoiving one in*1 courtg PAYMENTSLU Shows how your monthly Minimum Payment Due is mlcuiated tells you how we apply your payments to balances and gives you AGREEMENT & BENEFIT CHANGES certain instructions for making payments (and M15 you the possrble r Explains that we can make changes to the Card Agreement and consequences of not followrng those Instructions) your card benefits and features AUTHORIZED USERS MISCELLANEOUS Describes an Authon'zed User's nghts a.“ your responsrbrlrty for Explains subjects that aren t included in prewous sections that user Also describes what rnfonnatron we can share about you and yourAuthorized User YOUR BILLING RIGHTS DEFAULT CLOSING 0R SUSPENDING YOUR ACCOUNT Explains your biiling rights which include how to address possible Tells you when we may require immediate payment of your total statement mistakes and your rights it you re not satisfied with a L Account balance and explains when we may close or suspend your Purchase Account and when you may close your Account 3 CREDIT REPORTING ‘2 f Describes what information we provide about you to credit ' reporting agencies and how to dispute items on your report This section also explains how we use information we get about you from those agencies 5 X This Card Agreement (Agreement) is your contract With us The Facts about Interest and Fees document (Fact Sheet) is part of this Agreement The Fact Sheet shows important infomation about your Account such as your annual percentage rates and certain tees Any amendments to this Agreement also are part of this Agreement Please read all parts at this Agreement, including the arbitration provision, and keep it for your records Note Throughout the Agreement are examples helpful tips and additional explanations that WI” make the Agreement easierlo understand fig— DEFINITIONS Account Your Citi® / AAdvantage® Gold World Elite” Mastercard® Account betting transactions Annual Percentage Rate (APR) A rate shown as a percentage used to calculate Consumer Reporting Agency An organization such as Experian Equitax and Interest °” the balance 0" yourAccounL TransUnion that compiles credit infomatlon tor the purpose of generating consumer credit re arts it's also known as a “credit bureau' and a 'credit re ortmE Authorized User Any person you allow to use yourAcoount with a Card we agency p p g-\.I provided with that person 5 namea- lnclude and includin These terms mean 'lnclude or Includln without4:]: Balance Transfer Use of a Balance Transfer otter including use of a check that limitation g I g] accesses your Account for any transaction or the transfer of a balance from anothercredlt account ‘0 VOL" Account Late Payment A payment is late ifyou don t pay at least an amount equal to the Minimum Payment Due minus any 0verlimit Amount by the payment due date Billing Period The penod of time between each date when we create a statement r°’Y°”’A°°°”m A Billing Penod i5 “3P3"Y 28 33 days F” 93°“ Billing Period New Balance The total amount you owe us at the end of each Billing Period This Y0” statement W'" 5m” any Transachons other charges payments and other amount is shown on each statement under the heading New Balance We explain credits 9°51“ during that Billing Period how we calculate the New Balance below Business Day Monday through Friday excluding federal holidays Overlimit Amount The amount by which yourAccount balance exceeds your credit limit in any Billing Period Card One or more cards or other devrces (Includan an account number) used to 300555 Y°”'A°°°”m ‘0 obtain “9M- Purchase Use of your Card to buy goods and services Balance Transfers and Cash Advances are not Purchases Card Networks Organizations such as Mastercard \fisa and Amenoan Express that factfltate the payment process between a cardmember merchants and a card Returned Payment A payment that isnt honored by your financial institution Issuer Transaction A Balance Transfer Cash Advance or Purchase as applicable Cash Advance Use of your Card to get fish including foreign currency or for what we consider a cash like transaction Examples include using your Card for we, ”5' and our Citibank NA ATM and teller withdrawals wire transfers money orders traveler‘s checks lottery d Th d b wh d th Aocou L tlckets gaming chips and other methods used forgambling wagers and other you an your e car mem er 0 Opens a n You ll find definitions of other terms Within this Agreement .‘ .3; ___—.—_—__—_—— Ens: ‘ 2 L 1? L: “m_— YOUR ACCOUNT YourAccount use is subject to this Agreement You must pay us for all amounts ACCOUNT USE due on youeroount. including Consumer Purposes You aren‘t permitted to use yourAcoount for business purposes If you do use your Account for business purposes this Agreement still 1 $ransagfltlon-s you make even If you dIdn t present your Card or Slgn for the applies and you must pay us for those Transactions You may also have to pay us ”“53 0“ for any damages and/or expenses resulting from that use In addition we may 2 Transactions an Authorized User makes close your Aooount 3 Trans‘actions mirth” people “13"“ny 0" an Authorized User let them use Unlawful Transactions You aren't permitted to use youeroounttor unlawful your ocount, an Transactions lfyou do use youercount tor unlawful Transactions this Agreement 4 Any fees and interest charges on the Account still applies and you must pay us tor those Transactions You also may have to pay Binding Agreement. This Agreement takes effect once you use your Card Even if :he gent Network and!or us f“ any damages and expenses resulting from that "59 you don t use your Card this Agreement will take effect unless you contact us to n a am" we may C ose youeroount cancel your Account MW“ 30 days after we sent you "“5 Agreement Mobile Phones or Other Devices Smart phones tablets and other electronic Credit Limit We assign a credit limit to yourAccount Part of this credit limit may denies can 5t“ V”??? (such as through a mefle wallet) ms means they be available for Cash Advances and there may be a limit on the amount of Cash can edugedrto 23 e urc ases or other Transactions Any sum Transactions are Advances you can take in a gwen penod We may authonze Transactions that 20"“ y tt '5‘ greement [W’s that use your Card to "13"? Traitsactrons may cause your balance to exceed your credit limit ave separa e arms 0 use e re not responsible I you VIO ate ose terms or for any consequences resulting from any Violation11" Note Its important to protect your devices the same way you protect your Card Anyone who can access your Card usmg your device also can make charges tog youercount using that devicea-:1U1 L \, '-\ U . , ANNUAL PERCENTAGE RATES & INTEREST CHARGES The following sections explain how we calculate the interest you owe each if the U 5 Prime Rate ohahges well apply the new variable APR starting from the Billing Period first day of the Billing Period when we take the U S ane Rate from the WSJ The new APR will a l to existin balances as well as balances added to our APRs We use APRs to calculate interest charges on your Aocount Different APRs Account after tlfgcyhange g y may apply to differentTransactIons See the listing of yourAPRs on the Fact Sheet. Penalty APR if you have a Late or Returned Payment. we may apply a penalty t d t l APR b d Variable APRs Avanable APR is an APR that can change each Billing Period We Qigtxggfiétgsoount We e enmne your pena W 358 on your calculate each vanable APR first by taking the U 8 Prime Rate from The Wall StreetJoumaI {WSJ) two Business Days before the last day of each Billing Period Penalty APR for new Transactions (less than 60 days late) If you make a (if the WSJ doesn t publish the U S ane Rate that day then we'll use another Late Payment and its less than 60 days late or you have a Retumed Payment publication ) Then we add to the U 8 Prime Rate a certain percentage amount the penalty APR only will apply to new Transactions We [1 review your Account which we call the Margin You can find the Margin we use for yourAccount in the from time to time to determine if a penalty APR should be reduced Details AbOUlYOUI' Interest Rate 5M0" ofthe F301 Sheet. - Penalty APR for existing balances and new Transactions (60 or more days late) It we havent received your Minimum Payment Due within 60 days after its How is a “flame APR calculated? due date we may apply the penalty APR to both the extstlng balances and new Transactions If you make your next six consecutive Minimum Payments Due If the U S Prime Rate published in the WSJ two Business Days on time we || stop applying the penalty APR to existing balances and new before the end of a Billing Period is 5%, and Transactions If you don t make your next SIX consecutive Minimum Payments It the Margin is 13 99%, then Due on time the penalty APR may continue to apply indefinitely to existing Add the two together to calculate a variable APR balances and new Transactions 0 a O 5/1439“: 1899/. DailyBalance We calculate interest on your Account each Billing Period first by calculahng your daily balances The following explains how we do that Your variable APRs will increase if the U S Prime Rate increases and decrease if Here s how and when Transactions. fees and credits are applied to the the U S Prime Rate decreases [f a variable APR increases then your interest balances on your Account chargu and Minimum Payment Due may increase 0 We add the amount of a Purchase or Balance Transler to the Purchase balance as of the post date on your statement - We add the amount of a Cash Advance to the Cash Advance balance as of the post date on your statement. - We add a Balance Transtertee to the Purchase balance as of the post date on promotional APR It a daily balance on yourAccount is subject to an APR we it your statement charge interest on that daily balance We use the daily balance method (which We add a Cash Advance fee to the Cash Advance balance as of the post date includes new TrahsactonS) If interest applies to a balance it will start applying on on yourstatement We’ll add any other fees to the balance of our choice if the day a charge Is added to that balance and continue until that balance is paid in you re charged interest in a Billing Period but the amount calculated is less full We consrder a credit balance as a balance of zero when calculating interest on than $0 50 we || add additional interest to the balance(s) of our choice so that that balance 1x: Extriigzgitioasn:meme??? mfatzBmmthTOdi‘ ‘ t t - We multiply each daily balance by its applicable daily penodic rates (each P Y?“ 5 ° 9 P°§ a 9 5 9“ °" Y0“ 5 § em?" applicable APR divided by 365) EaCh balance may have a differentAPR Certain categories otTransactIons ‘" We do this for each day in the Billing Period This gives us the daily interest a balance may have multiple APRs For example you may make a Purchase or amounts Balance Transfer that's subject to a promotional APR Your balances and their Then we total all the daily interest amounts for all the daily balances This gives corresponding APRS are shown on your statement us the total interest for the Billing Period ‘—_—— m:‘%r;1:::t?os; dill: imybznigt‘elrr statement m" usually be the date Of Note Your balances and their corresponding APRs are shown on your y statement EzgnscgsgnwifiilftléEWCh 0f the daily Purchase and Cash Advance Catculattng the New Balance To calculate the New Balance at the end of each y Billing Period we begin with the total Account balance at the start of that Billing - We start with the daily balance from the end of the previous day Period Then we add any Transactions that are new to the Account during that . We add any new Transactions fees and other charges including interest Billing Penod Then we subtract any credits applied or payments made during that accrued on the previous day’s balance This means that interest is compounded Billing Period Then we add any interest charges or fees incurred during that Billing daily Period and make any other adjustments as applicable (for example if you have We subtract any credits or payments credited as of that day disputed a charge)T We make additional adjustments as appropriate subject to applicable law (as Grace Period on Purchases You won t pay any interest on Purchases if you pay”J‘1 an example for a disputed charge) the New Balance including any Balance Transfers in full by the payment due date'1' This gives us the daily balance for that day shown on your statement each Billing Period We call this a grace penod on”:1 purchases If you don t pay your New Balance including any Balance Transfers in full by the payment due date in a Billing Period you ll pay interest on your D i b i f h fr th d Purchases from the date they re posted to yourAccount You also wont have a a y a ance or WC ases om e prevrous ay grace period on Purchases again unhi you pay the New Balance in full by the 1' New purchases a ment due date 2 Billin Periods in a row + Fees and interest accmed on the previous days Purchase balance p y g Eaments cred time“Wm ”15 05f d 1h Theres no grace period on Balance Transfers and Cash Advances This means NEW daily balance '0' PWChaSBS you ll pay interest on Balance Transfers and Cash Advances from the date these Transactions post to yourAccount. interest Calculation Each daily balance may have a different APR Certain categories of Transactions in a daily balance may have multiple APRs For example you may make a Purchase or Balance Transfer that‘s subject to a fl __—___—__—__—.__—_ tj .———.—E_——_ FEES & FOREIGN CURRENCY CONVERSION Fees Amount About the Fee Annual Membership Fee $50 every 12 month(s) YourAccount has an annual membership fee The Fact Sheet shows this fee You I] see this annual fee on yourfirst statement after opening youercount and each year after that We [I charge the fee if your Account is open even it you dont have a balance Late Fee Up to $35 We have the right to charge you a late fee if you don t pay at least an amount equal to the Minimum Payment Due minus any OverlimitAmount by the payment due date The late fee is $25 and if you make another Late Payment within the next 6 Billing Periods the late fee will be $35 The amount of your late fee will never be higher than your Minimum Payment Due Returned Payment Fee Up to $35 We have the right to charge you a Returned Payment fee of $25 if your bank doesn t honor your payment if that happens we || resubmit the payment request if your bank doesn t honor another payment within 6 consecutive Billing Periods the Returned Payment fee will go up to $35 Transaction Fee for Balance Transfers Either $5 or 3% of the amount of each We charge you a fee for each Balance Transfer transfer whichever is greaterEI‘ Transaction Fee for Cash Advances Either $10 or 5% of the amount of each We charge you a fee for each Cash Advance3 cash advance whichever is greatern-E! Transaction Fee for Purchases in 3% of the amount of the Transaction We charge you a fee for a Purchase made in a currency other than U S"-' Foreign Currency after conversion to U S dollars doiiars regardless of where the Transaction takes place or who the merchant is FOREIGN CURRENCY CONVERSION if a third party such as a merchant. converts the amount of a Purchase into U 3 dollars before sending the Purchase to a Card Network the third party chooses the Foreign Currency Conversion Purchases A Card Network converts the amount conversion rate instead of the Card Network of a Purchase in a foreign currency mto U S dollars EaCh Card Network follows its own procedures for conversion These procedures include how the Card Network hm?“ Currency c°“"er5'°“ Cash Advances If 3"“! Lake a 035“ Advance m chooses an exchange rate and when to do the conversion For example Visa a foreign currency at an ATM or branch of a financnal Institution It may not be the chooses either a govemment mandated exchange rate or chooses from a range of Card Network "1 3“ '"S'ances that ”me“. the Transaction "“0 U 5 dollars rates available on wholesale currency markets (and in either case the exchange Instead depending on where the Transaction takes Plims- another third FEW 5W3“ rate that it chooses may be less favorable than the rate that Wee itself receives 35 a financial Institution ATM ”9W0“ or ATM 09mm may d° the conversion when it makes foreign currency transactions) Depending on the policies of each WE d0 "0‘ control ”“5 “WSW rfyou use your Card for a 03511 “VFW? at a Card Network the exchange rate chosen may be the one in effect on the day the C'hbank ATM 0’ ”am" “19" W9 0’ our affiliates may do "'8 0°"Ve'510" Card Network does the conversion or on the day before The exchange rate that a The party that converts a Cash Advance to U S dollars Wt“ choose the exchange pard Network uses 1° convert the Purchase to U Sifiollars gray $1“??? "1: rate rate and when to do the conversion The exchange rate in effect on the date the '” effect 0" “19 date you made the PflChase or W 3 p05! ate 8’ a ‘3: :59 Cash Advance is converted to U 8 dollars may differ tram the rate in effect on the 5“?“ on your 5mm“ The ard etworks proce ures may c ange w' 0” date you took the Cash Advance or the post date for that Transaction shown on ”mm your statement The exchange rate may also differfrom any rate quoted to you when you made the Transaction £93.22 ——————-——— 5 t —J:!_——_—— PAYM ENTS Minimum Payment Due You may pay all or a part of your Account balance at any ttme You must pay at least the Minimum Payment Due by the payment due date each Billing perm Appltcatton of Payments We deade how to apply your payments up to the Minimum Payment Due to the balances on your Account We may apply the Your Minimum FaymentDue equals Minimum Payment Due first to interest charges then to the balance with the lowest APR and then to balances with higherAPRs It you pay more than the Minimum ' Any amount past due plus Payment Due we ll apply the amount over the Minimum Payment Due first to the ' Any Overtlmlt Amount plus balance with the highest APR then to the balance with the next highestAPR and The greater of so on except as otherwise required by applicable law 1 The New Balance If W5 less than 525 Payment Instructions You must follow the tnstmctions below when making a 2 $25 ”the New Balance IS 31l935t$25 payment It you do we ll credit the payment to your Account as of the day we 3 1% of the New Balance (rounded to the nearest dollar) plus any billed "3051““? it tntenrest or mtntmum Interest charge plus any late fee or 1 You must pay in U 5 dollars 4 1 I'M 0f the New Balance (rounded to the nearest dollar) 2 You must use a check or electronic debit issued by a bank in the United States The Mtntmum Payment Due '5 never more than the New Balance 3 You must not send us a check dated after the date that we receive it Note Your payment due date is typically the same day of the month 4 You must not enclose more than one check per envelope every month You may request a change to your monthly due date 5 You must not Include any restncttve endorsements on the checka- 6 You must fotlow the addittonat payment instructions shown on your statement3 If you dont pay in U 5 dollars and we accept your payment well select thetra H°W '5 “‘9 Mtntmum Payment Due calculated? currency conversion rate and you must pay our costs If you don t follow our payment tnstructtons we may not accept your payment or there may be a delay tnD" 32:???"(1’5"?Ssfians'ljle 8W9 Penod 3" Account WM no past due or creditth your Account Either may result in late fees and addittonaI int
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23CV057357: BARNER vs CAPPICO, LLC, et al. 07/25/2024 Hearing on Motion - Other Motion for Relief from Waiver of Jury Trial; filed by VANESSA BARNER (Plaintiff) in Department 17Tentative Ruling - 07/23/2024 Frank RoeschThe Motion re: Motion for Relief from Waiver of Jury Trial filed by VANESSA BARNER on07/01/2024 is Granted.Plaintiff Vanessa Barner’s (“Plaintiff”) Unopposed Motion for Relief from Jury Waiver isGRANTED. (Code Civ. Proc., § 631, subd. (g).)The pre-trial hearing requirements are modified to include the following:At least ten (10) days prior to the Conference, the parties are ORDERED to meet-and-conferregarding the following subjects:(1) the reservation of exhibit number ranges for each party;(2) which of the parties' exhibits can be admitted without objection and the elimination ofduplicative exhibits;(3) whether there are any evidentiary issues that will require pre-trial hearing;(4) whether any issue in the trial should be bifurcated;(5) the length of the trial;(6) any outstanding discovery and completion dates;(7) deposition designations and counter-designations and any objections thereto;(8) arranging for a court reporter if desired, and as set forth below.(9) the benefit of additional alternative dispute resolution prior to trial;(10) the need for an interpreter for any witness (Gov't Code §68560; Evid. Code §§750-755.5);and(11) any other trial readiness issues.The court may inquire of the date, time, method, and duration of the parties' meet and conferefforts.The parties must bring to the Pretrial Conference the following:(1) All motions in limine each party wishes to present.(2) The Trial Brief of each party who believes a trial brief is necessary or appropriate in thismatter.(3) A comprehensive list of all witnesses the parties intend to call in the case.(4) Each Party's List of Exhibits. The Exhibit List shall be styled in the following column format:Ex. No. Description Admit/Stip Witness Date(5) The Exhibits. They must be contained in a 3-ring binder and collated in the order the partywishes them to be marked and a second 3-ring binder containing a "bench copy" of the Exhibits.The motions in limine may be heard and determined at the Pretrial Conference.Note that the following in limine motions shall not be filed but will be deemed to have beenORDERED: SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV057357: BARNER vs CAPPICO, LLC, et al. 07/25/2024 Hearing on Motion - Other Motion for Relief from Waiver of Jury Trial; filed by VANESSA BARNER (Plaintiff) in Department 17(a) exclude all witnesses until testimony completed;(b) no reference to or evidence of settlement discussions or mediation;(c) no reference to or evidence of insurance;(d) no reference to or evidence of other claims/suits/actions against a party; and(e) no reference to or evidence of wealth or lack thereof of any party except in the punitivedamage phase of a case.Exceptions to the foregoing must be raised at the Pretrial Conference.It is further ordered that as of the first day of trial, all DOE parties will be dismissed.The parties are advised pursuant to Rule of Court 2.956(b) that a Court Reporter is not providedby the court for general civil proceedings, including the Pretrial Conference, motions in limine,specially set trial hearings, or any other proceedings. A party may arrange for the presence of acertified shorthand reporter to serve as an official pro tempore reporter. It will be theresponsibility of the litigant(s) to pay the reporter's fee for the attendance at the proceedings, butthe expense may be recoverable as part of the costs of suit. (See Cal. Rules of Court, Rule2.956(c).)A court reporter taking testimony during trial must be available during the entirety of the court'sschedule as set by the judge. For purposes of guidance only, this typically means that the courtreporter should be available at least 15 minutes prior to the scheduled start time for each trial dayor session. Generally trial will begin at 9:00 a.m. and conclude by 4:30 p.m. Court reportersshould be prepared to report for as long as 90 minutes without interruption. While longer breaksare sometimes provided, the court will provide at least two 15-minute breaks, one in themorning, and one in the afternoon, as well as a lunch break of one hour. If the parties requiredaily transcripts, counsel should consider whether two court reporters should be provided andavailable as defined above.Any court reporter working within the Alameda County Superior Court shall be patient,dignified, and courteous to litigants, witnesses, lawyers, the court and others with whom he orshe comes into contact, and shall also refrain from manifesting bias or prejudice based upon race,sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.The parties are expected to be ready for trial and ready to discuss these topics at the PretrialConference. Except in extraordinary circumstances, the actual trial counsel and self-representedparties must personally appear at the Conference. The court looks with disfavor on requests fortrial continuance.If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, theTentative Ruling will become the order of the court.HOW DO I CONTEST A TENTATIVE RULING? SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV057357: BARNER vs CAPPICO, LLC, et al. 07/25/2024 Hearing on Motion - Other Motion for Relief from Waiver of Jury Trial; filed by VANESSA BARNER (Plaintiff) in Department 17THROUGH ECOURTNotify the Court and all the other parties no later than 4:00 PM one court day before thescheduled hearing, and briefly identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal2. Case Search3. Enter the Case Number and select “Search”4. Select the Case Name5. Select the Tentative Rulings Tab6. Select “Click to Contest this Ruling”7. Enter your Name and Reason for Contesting8. Select “Proceed”BY EMAILSend an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM onecourt day before the scheduled hearing. This will permit the department clerk to send invitationsto counsel to appear remotely.BOTH ECOURT AND EMAIL notices are required.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 22, 2024 |CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETALCase Number: CVCV21-0197618This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitrationon February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes thatSubstitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’scalendar to discuss the status of arbitration.
Ruling
MORA vs DPEP, INC.
Jul 23, 2024 |CVSW2303245
MOTION TO COMPEL FURTHERRESPONSE TO SPECIALCVSW2303245 MORA VS DPEP, INC. INTERROGATORIES; REQUEST FORSANCTIONS BY JOSHUA MORA,SHANNON MORATentative Ruling: Take the hearing on the motion off calendar. The parties are ordered to meetand confer further. If the parties are unable to resolve their differences, then they should requestan IDC (Informal Discovery Conference). If after an IDC the court is unable to help the partiesresolve any remaining issues, then the court will re-calendar the hearing on the motion.A motion to compel further responses to SPROGs must be accompanied by a declarationdescribing in detail the reasonable and good-faith efforts that each party has made to resolveinformally each issue presented by the motion. (C.C.P. §§2016.040, C.C.P. § 2030.300(b)(1).)Each party must “confer in person, by telephone, or by letter with an opposing party or attorney,”and make a “reasonable and good faith attempt to resolve informally any dispute concerningdiscovery”; failure by any party to do so is a misuse of the discovery process. (C.C.P.2023.010(i).) The purpose of the meet and confer requirement is to force lawyers to reexaminetheir positions, and to narrow their discovery disputes to the irreducible minimum, before callingupon the court to resolve the matter. (Stewart v. Colonial Western Agency, Inc. (2001) 87Cal.App.4th 1006, 1016-17.) Evaluating whether a “reasonable and good faith attempt” to meetand confer was made requires an “evaluation of whether, from the perspective of a reasonableperson in the position of the discovering party, additional effort appears likely to bear fruit.”(Clement v. Alegra (2009) 177 Cal.App.4th 1277, 1294.) The level of effort that is reasonable isdifferent in different circumstances and may vary with the prospects for success, but the lawrequires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.(Ibid.)Plaintiffs’ counsel sent one letter to FCA’s counsel, who responded and also extended Plaintiffs’motion to compel deadline. (Decl. of Armando Lopez [“Lopez Decl.”] at ¶¶ 6-8.) Plaintiffs madeno other attempts to resolve these matters before filing the motion. Had the parties properly metand conferred, at least some of the issues in this motion likely could have been resolved.Therefore, the Court finds Plaintiffs did not meet their statutory obligation to make a good faithattempt to resolve the issues raised by the motion.
Ruling
GLOVER, BENNY ET AL V. FCA US LLC
Jul 24, 2024 |23CV01461
23CV01461 GLOVER, BENNY ET AL V. FCA US LLCEVENT: Motion for Order Deeming Admitted Truth of Facts and Imposing MonetarySanctionsPlaintiffs’ Motion for an Order Deeming Admitted Truth of Facts and Imposing MonetarySanctions is denied as moot, Plaintiffs having subsequently received Code compliantresponses. However, Plaintiffs’ request for sanctions is granted, the Court finding thatPlaintiffs were forced to seek this relief prior to Defendant providing such Code compliantresponses without substantial justification. The Court awards sanctions againstDefendant’s counsel of record, Clark Hill LLP, in the amount of $868.20, which are to bepaid within 30 days’ notice of this ruling. Counsel for the Plaintiffs shall submit a form oforder consistent with this ruling within two weeks.
Ruling
FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS
Jul 23, 2024 |FCS059237
FCS059237Motion to Compel ArbitrationTENTATIVE RULINGThe Court (Department Seven) self recuses pursuant to CCP Section 170.1(b)(6)(iii).Pursuant to the direction of Judge Stephen Gizzi, Supervising Judge of the CivilDivision, the matter is reassigned and continued to August 1, 2024 at 9:30 a.m.,Department Three.
Ruling
Alberto Valdez et al. vs General Motors, LLC, A Delaware Limited Liability Company et al.
Jul 24, 2024 |STK-CV-UBC-2022-0002551
Plaintiff filed a Motion to Compel the Deposition of Defendant’s Person(s) Most Knowledgeable With Production of Documents. As ordered by the Court, a Joint Statement regarding what remains in dispute as to this motion was filed by the parties on July 12, 2024. After the case did not resolve at the Mandatory Settlement Conference of July 15, 2024, the court set the Motion on shortened noticed to be heard on July 24, 2024. Defendant was to file an Opposition no later than July 19, 2024. After reading all the papers filed, the Court issues the following tentative ruling: The Court GRANTS Plaintiff’s Motion. Defendants are ordered to produce Person(s) Most Knowledgeable as to Category Nos. 1 through 15, 19 and 20. The Defendant is ORDERED to produce Person(s) Most Knowledgeable no later than August 9, 2024. For purposes of the deposition of the Person(s) Most Knowledgeable ONLY, discovery is extended through that date. The Court DENIES Plaintiff’s Motion as to the following Category Nos. 16 through 18. In regards to the Production of Documents, the Court GRANTS Plaintiff’s Motion as to Requests Nos. 1 through 11, 15 and 16. The Court DENIES Plaintiff’s Motion to as to Requests Nos. 12 through 14. Blanca A. Bañuelos Judge of the Superior Court of California Directions for Contesting or Arguing the Tentative Ruling Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org that they intend to appear remotely or in person in Dept. 10B no later than 4:00 PM on the day before the scheduled hearing. The Department, Case number, Case Name, and party’s name must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. Department 10B is open for in person appearances. For remote appearances, please call into the dedicated conference bridge line for Department 10B at the time set for the hearing. The conference bridge phone number is (209) 992-5590. Follow the prompts and dial 6939 (4-digit bridge line) and 3892 (4-digit pin number).
Ruling
SCHUSTER vs GENERAL MOTORS, LLC.
Jul 25, 2024 |CVRI2305472
Motion to Strike Complaint on 1stAmended Complaint for Breach ofSCHUSTER vs GENERALCVRI2305472 Contract/Warranty (Over $25,000) ofMOTORS, LLC.MARK SCHUSTER by GENERALMOTORS, LLC.Demurrer on 1st Amended Complaint forSCHUSTER vs GENERAL Breach of Contract/Warranty (OverCVRI2305472MOTORS, LLC. $25,000) of MARK SCHUSTER byGENERAL MOTORS, LLC.Tentative Ruling:Plaintiffs, Mark and Joanne Schuster, allege that on 5/20/20 they entered into a warranty contractwith Defendant, General Motors, LLC (GM) regarding a certified pre-owned 2019 ChevroletSilverado, which they purchased from Premier Chevrolet in Buena Park. Plaintiffs allege defectsand nonconformities manifested within the express warranty period that impair the use, value, orsafety of the vehicle including defects in the engine and transmission among others. Plaintiffsallege that GM and its representative were unable to repair the vehicle after a reasonable numberof repair attempts, and failed to replace or make restitution for the defective vehicle. Plaintiffs filedtheir operative First Amended Complaint (FAC) on 2/20/24 alleging six causes of action, someunder the Song Beverly Act (SBA): 1) violation of Civil Code (CC) § 1793.2(d); 2) violation of CC§ 1793.2(b); 3) violation of CC § 1793.2(a)(3); 4) breach of the implied warranty of merchantability(CC §§ 1791.1, 1794, 1795.5; 5) fraudulent inducement-concealment; and, 6) violation of theMagnuson-Moss Warranty Act.***Counsel for GM, Sandra Habib, filed a meet and confer declaration in compliance with CCP §§430.41, and 435.5. Specifically, on 4/15/24 Ms. Habib met and conferred by phone with Plaintiff’scounsel, but they were unable to resolve the dispute.Defendant, GM, brings this demurrer to the 5th cause of action in the FAC for failure to state factssufficient to constitute a cause of action. (CCP § 430.10(e).) GM argues that the 5th cause ofaction is barred by the applicable three-year statute of limitations (CCP § 338(d)); fails to allegespecific facts to support the elements – who, their authority, what, to whom, and when; and failsto allege a transactional relationship giving rise to a duty to disclose – Plaintiffs did not purchasethe vehicle directly from GM.Plaintiffs oppose the demurrer arguing that the fraud claim is timely; that the running of the statuteof limitations does not appear “clearly and affirmatively” on the face of the FAC; that GM failed todisclose the transmission defect each time Plaintiffs returned to the GM dealership for repairsthereby concealing the defect; that the discovery rule, fraudulent concealment, and the repair ruledoctrines apply to toll the running of the statute of limitations; that fraud is alleged with requisitespecificity; that specificity is relaxed where there was concealment and it is apparent thatdefendant necessarily has knowledge of the facts; and that a transactional relationship is notrequired where the manufacturer has a duty to disclose.The Reply re-asserts prior arguments.GM also brings this motion to strike punitive damages from the FAC on the ground that the fraudclaim fails so, the claim for punitive damages also fails. (CCP §§ 435, 436.)Plaintiffs oppose arguing that the demurrer to the fraud cause of action fails as it is sufficientlyalleged, and therefore, so is the claim for punitive damages. Also, Plaintiffs argue that punitivedamages are available under the SBA.The Reply re-asserts prior arguments and adds that punitive damages are not available to theSBA claims, which limits damages to a refund or replacement, and potential civil penalties.Analysis:DEMURRERIn evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it asa whole and all of its parts in their context. (Moore v. Regents of University of California (1990)51 Cal. 3d 120, 125). The court assumes the truth of all material facts which have been properlypleaded, of facts which may be inferred from those expressly pleaded, and of any material factsof which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8Cal. 4th 666, 672). However, a demurrer does not admit contentions, deductions or conclusionsof fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713). Facts appearing inexhibits attached to the complaint will also be accepted as true and, if contrary allegations appearin the complaint, will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981)123 Cal. App. 3d 593, 606). If the complaint fails to state a cause of action, the court must grantthe plaintiff leave to amend if there is a reasonable possibility that the defect can be cured byamendment. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318).5th Cause of Action for Fraudulent Inducement - ConcealmentStatute of LimitationsImportantly, a demurrer can be used only to challenge defects appearing on the face of thepleading under attack or from matters outside the pleading that are judicially noticeable (Blank v.Kirwan (1985) 39 Cal.3d 311, 318), and it is error for a court to consider facts asserted in asupporting memorandum. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Afusov. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other groundsin Moradi-Shalal v. Fireman’s Fund Ins. Co. (1988) 46 Cal.3d 287.) Thus, a demurrer based upona statute of limitations only lies where the running of the statute “clearly and affirmatively” appearson the face of the complaint. (Committee for Green Foothills v. Santa Clara County Bd. ofSupervisors (2010) 48 Cal.4th 32, 42.)Here, the FAC alleges that Plaintiffs entered into a warranty contract with GM on 3/5/19 regardingthe purchase of a 2019 Chevrolet Silverado. (FAC ¶ 6.) It is alleged that defects andnonconformities to warranty manifested within the express warranty period. (Id. ¶ 11.) It is alsoalleged that statutes of limitations were tolled under the doctrines of equitable tolling, thediscovery rule, equitable estoppel, the repair rule, and/or class action tolling including factualallegations. (Id. ¶¶ 22, 24-41.) Plaintiffs allege that they discovered GM’s wrongful conduct“shortly before the filing of the complaint, as the Vehicle continued to exhibit symptoms of defectsfollowing Defendant GM’s unsuccessful attempts to repair them.” (Id. ¶ 23.) These allegationswere incorporated into the fraud cause of action. (Id. ¶ 61.) The FAC alleges fraudulentinducement - concealment at the time of purchase (Id. ¶¶ 62-70) and continuing thereafter whenGM concealed the defect and its inability to repair it. (Id. ¶¶ 71-72.) Based on these allegations,it is not clear on the face of the FAC that the statute of limitations period bars the action.Therefore, on this ground, the demurrer is overruled.Requisite AllegationsThe elements of an action for fraud based on concealment are: (1) the defendant concealed amaterial fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the defendantintentionally concealed the fact with intent to defraud; (4) the plaintiff was unaware of the fact andwould not have acted had she or he had knowledge of the concealed fact; and (5) the plaintiffsustained damages as a result of the concealment. (Blickman Turkus, LP v. MF DowntownSunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) Fraud in the inducement is a subset of thefraud tort occurring when a promisor’s consent is induced by fraud. (Hinesley v. Oakshade TownCenter (2005) 135 Cal.App.4th 289, 294; see also Engalla v. Permanente Medical Group, Inc.(1997) 15 Cal.4th 951, 973-74.) In any event, each element of a claim for fraud must be pleadedwith specificity rather than with general and conclusory allegations. (Knox v. Dean (2012) 205Cal.App.4th 417, 433.)Duty to DiscloseHere, for pleading purposes, Plaintiffs have demonstrated that GM had a duty to disclose. A dutyto disclose arises under four circumstances in which nondisclosure or concealment may constituteactionable fraud: “(1) when the defendant is in a fiduciary relationship with the plaintiff; (2) whenthe defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when thedefendant actively conceals a material fact from the plaintiff; and (4) when the defendant makespartial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc.(2017) 7 Cal.App.5th 276, 311 [citation and internal quotation marks omitted].) Here, theallegations of the FAC do not indicate the existence of a fiduciary relationship between GM andPlaintiffs. The other three circumstances in which the duty may arise “presuppose the existenceof some other relationship between the plaintiff and defendant in which a duty to disclose canarise …. such as seller and buyer, employer and prospective employee, doctor and patient, orparties entering into any kind of contractual arrangement.” (Ibid. [citation and internal quotationmarks omitted].)Here, Plaintiffs identify GM as the manufacturer and/or distributor. (FAC ¶ 4.) They allege thatwhen they purchased the vehicle, they also purchased an express written warranty from GM (Id.¶ 6.) They do not allege that they purchased the subject vehicle directly from GM. Rather, it isalleged that Plaintiffs purchased the subject vehicle from a GM “authorized retail dealer” – PremierChevrolet in Buena Park. (Id. ¶ 6.) These allegations are incorporated into the 5th cause of actionfor fraudulent inducement - concealment. (Id. ¶ 61.) Plaintiffs have not specifically alleged theexistence of a direct relationship between them and GM, but they do allege an express writtenwarranty, which may give rise to a duty to disclose. Plaintiffs are not required at the pleading stageto prove the agency relationship between GM and its dealerships, and there is no question thatGM communicates to consumers, at least in part, through its authorized dealers. (See, e.g.,Daniel v. Ford Motor Co. (9th Cir. 2015) 806 F.3d 1217, 1226-27.)Plaintiffs also argue that they do not have to show a fiduciary or direct relationship because therewas an unreasonable safety hazard posed by the defect so that GM had an affirmative duty todisclose it. (see Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 835.)Plaintiffs allege and argue safety concerns regarding the vehicle’s transmission that GM wasaware of since at least 2014, but GM did not disclose the Transmission Defect or the safety issues.(FAC ¶¶ 12, 62-73.) GM allegedly marketed and sold a new eight-speed automatic transmissionas having “world-class performance” that was “lightning-fast and smooth shifting, along withimproved fuel efficiency.” (Id. ¶ 66.) But, the transmissions did not live up to the representationsmade, which Plaintiffs had no way of knowing about. (Id. ¶ 67.) The subject vehicle was deliveredwith serious defects. (Id. ¶¶ 61-63.) The vehicle has hard or harsh shifts, jerking, lurching,hesitation on acceleration, surging and/or inability to control the vehicle’s speed, acceleration, ordeceleration. (Id. ¶ 64.) The FAC alleges that GM and its agents knew the transmissions weredefective and “present a safety hazard and are unreasonably dangerous to consumers becausethey can suddenly and unexpectedly cause the driver to be unable to control the vehicle’s speed….” (Ibid.; see also ¶¶ 62-63 and 65-74.) Had Plaintiffs known about the Transmission defects,they would not have purchased the vehicle. (Id. ¶ 75.)Further, although not binding on this court, the fairly recent decision of Dhital v. Nissan NorthAmerica, Inc. (2022) 84 Cal.App.5th 828 is instructive with respect to the pleading requirementsfor fraudulent concealment. The Dhital court decided two distinct issues: (1) whether there is anexception to the economic loss rule for fraudulent inducement claims; and (2) whether theplaintiffs’ allegations in that case adequately set forth a claim for fraudulent inducement underCalifornia law. The court concluded both that the economic loss rule did not bar plaintiffs’ claimand that the claim had been adequately pleaded. (Id. at 839.) The California Supreme Courtrecently granted review but declined to order deduplication; thus, the case may be cited for itspersuasive value. (See Dhital v. Nissan North America (Cal. 2023) 304 Cal.Rptr.3d 82 [grantingpetition for review]; CRC 8.1105 and 8.1115(e).)In Dhital, the plaintiff alleged: (1) Nissan installed defective transmissions in numerous vehicles(including the plaintiffs’ vehicle); (2) Nissan was aware of the defects and hazards they posed; (3)Nissan had exclusive knowledge of the defects but intentionally concealed and failed to disclosethe information; (4) Nissan intended to deceive plaintiffs by concealing the transmission problems;(5) plaintiffs would not have purchased the car had they known of the defects; and (6) plaintiffsuffered damages in the form of money paid to purchase the car. (Id. at 843-844.) The Court heldthat the plaintiffs’ allegations sufficiently pleaded a claim for fraudulent inducement and that thesame was excepted from the economic loss rule. (Id. at 843-45.)Here, the FAC makes similar allegations to those set forth above in the Dhital case including aduty to disclose, and ongoing concealment of the Transmission Defect for years. (FAC ¶¶ 12, 61-75.) Plaintiffs’ allegations in the FAC are sufficient at the pleading stage to set forth a claim forfraudulent concealment. Accordingly, the demurrer to the 5th cause of action is overruled.MOTION TO STRIKECCP §435 and §436 authorize a motion to strike, and permit the court to strike out irrelevant, falseor improper matter, or “any part of any pleading not drawn or filed in conformity with the laws ofthis state, a court rule, or an order of the court.” (CCP §436.)Punitive DamagesTo support a demand for punitive damages under Civ. Code §3294, a plaintiff must plead andprove facts demonstrating malice, oppression or fraud as defined in Civ. Code §3294(c). Asdefined in the statute, malice is “conduct which is intended by the defendant to cause injury to theplaintiff or despicable conduct which is carried on by the defendant with a willful and consciousdisregard of the rights or safety of others,” while oppression is defined as “despicable conductthat subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”(Civ. Code § 3294(c)(1) and (2).) Thus, punitive damages may be recovered for a non-intentionaltort where a plaintiff pleads and proves that the defendant acted with “conscious disregard of therights and safety of others.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299[quoting Gawara v. United States Brass Corp. (1998) 63 Cal.App.4th 1341, 1361].)In the present case, Plaintiffs argue that they may recover punitive damages based on the 5thcause of action for fraudulent inducement - concealment. As discussed above, Plaintiffs havesufficiently set forth a cause of action for fraudulent inducement - concealment, which is sufficientto support the demand for punitive damages. Thus, the motion to strike is denied.Summary: Overrule the demurrer. The motion to strike is denied as moot.
Ruling
ANDREW SCHER VS. HENRY WYKOWSKI ET AL
Jul 22, 2024 |CGC23611026
Matter on the Law & Motion calendar for Monday, July 22, 2024, Line 6. DEFENDANT HENRY WYKOWSKI, AN INDIVIDUAL AND WYKOWSKI & WOOD, LLP's DEMURRER to 1ST Amended COMPLAINT. Overruled. (The Court's complete tentative ruling has been emailed to the parties.) For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/CK)
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