Motion in Limine - PLAINTIFFS MOTION IN LIMINE TO PREVENT ADMISSION OF EVIDENCE OF PLAINTIFFS BANKRUPTCY February 06, 2017 (2024)

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Ruling

Elizabeth Alvarado vs Leta Vannest, et al.

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Ruling

POLE, NICHOLAS vs WALMART STORES INC

Aug 14, 2024 |CV-21-000751

CV-21-000751 – POLE, NICHOLAS vs WALMART STORES INC – Defendant Walmart, INC’s Motion for Terminating Sanctions – WITHDRAWN.

Ruling

DAVID KELLY VS TARA BARNHART, ET AL.

Aug 12, 2024 |22STCV26250

Case Number: 22STCV26250 Hearing Date: August 12, 2024 Dept: 34 Cross-Defendant Blaine Ikedas Demurrer to Cross-Complainant Razmik Abkarians Cross-Complaint is SUSTAINED. The court will inquire whether leave should be granted. Background Factual and Procedural Background On October 26, 2023, Blain Ikeda (Ikeda or Cross-Defendant) filed an initial Complaint on his own behalf and on behalf of PharmaRX Pharmaceutical, Inc. (PharmaRX) alleging four causes of action against Razmik Abkarians (Abkarians or Cross-Complainant): (1) fraud, (2) conversion, (3) breach of fiduciary duty, and (4) accounting. In October of 2003, Ikeda and Abkarians formed PharmaRX a company that manufactures and sells prescription pharmaceuticals. The causes of action stem from allegations that Abkarians gave himself an unauthorized salary increase and took unauthorized direct payments from PharmaRX. (Complaint, ¶¶10-13.) Ikeda alleges in his initial Complaint that Abkarians diverted $907,530.97 in corporate funds to himself. (Complaint, ¶15.) On April 29, 2024, Abkarians filed a Cross-Complaint in which he lists three causes of action in the caption of the Cross-Complaint but alleges nine in the body of the Cross-Complaint. Abkarians alleges that he brings the Cross-Complaint on behalf of himself, PharmaRX, and PharmaRX Hawaii, LLC (PharmaRX Hawaii). Abkarians alleges that both PharmaRX and PharmaRX Hawaii manufacture and sell prescription pharmaceuticals. (Cross-Complaint, ¶8.) The causes of action stem from allegations Ikeda refused to submit required forms or pay General Excise Taxes when due to the State of Hawaii, even after collecting General Excise Taxes from customers. (Cross-Complaint, ¶10.) Abkarians additionally alleges that that there is an account receivable from PharmaRX Hawaiis primary customer, Marian Medical Services, LLC in the amount of $1.5-2million. (Cross-Complaint, ¶12.) However, despite repeated demands to do so, Ikeda allegedly has refused to take actions to recover said amount. (Id.) Abkarians additionally alleges that although he is a 50% shareholder in both companies, Abkarians has not been compensated from PharmaRX Hawaii. (Cross-Complaint, ¶13.) Finally, Abkarians alleges there is some undisclosed nefarious deal between Ikeda and Marian Medical Services, LLC that has resulted in Ikedas failure to pursue the collection. The nine causes of action are: 1. Fraud (brought derivatively and on behalf of PharmaRX Hawaii) 2. Fraud (brought derivatively and on behalf of PharmaRX) 3. Fraud (brought derivatively and on behalf of Abkarians) 4. Breach of Fiduciary Duties (brought derivatively and on behalf of PharmaRX Hawaii) 5. Breach of Fiduciary Duties (brought derivatively and on behalf of PharmaRX) 6. Breach of Fiduciary Duties (brought derivatively and on behalf of Abkarians) 7. Accounting (brought derivatively and on behalf of PharmaRX Hawaii) 8. Accounting (brought derivatively and on behalf of PharmaRX) 9. Accounting (brought derivatively and on behalf of Abkarians) The motion now before the court is Cross-Defendant Blaine Ikedas Demurrer to Cross-Complainant Razmik Abkarians Cross-Complaint. Ikeda demurs to the first three causes of action, which allege fraud. Abkarians opposes the demurrer, Ikeda files a reply. Meet and Confer Before filing a demurrer&the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. §430.41(a).) Attached to the demurrer, Cross-Defendant submits the Declaration of Wendy L. Slavkin (Slavkin Decl.) which states that a meet and confer letter was sent to counsel on May 10, 2024, but that Cross-Complainants counsel never responded. (Slavkin Decl. ¶¶3-4.) Therefore, the requirements of Code Civ. Proc. §430.41(a) remain unsatisfied. However, per Code Civ. Proc. §430.41(a)(4), A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. Accordingly, the court will now turn its attention to the demurrer. Discussion Legal Standard [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Analysis The first three causes of action are all brought against Cross-Defendant and allege fraud because (a) Cross-Defendant failed to file Hawaii General Excise Tax forms (Cross-Complaint, ¶10), (b) failed to pursue any action to collect an open account with a customer for PharmaRX Hawaii (Cross-Complaint ¶12), and (c) failed to compensate Cross-Complainant for services to PharmaRX Hawaii. (Cross-Complaint, ¶13.) The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) 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.) Upon demurrer Cross-Defendant contends that the Cross-Complaint fails to allege fraud against Cross-Defendant with the proper specificity. The court agrees. The Cross-Complaint speaks in general and conclusive terms as to what acts occurred, for example the failure to file General Excise Tax forms and failure to collect on an open account. However, there is no allegation of a misrepresentation made by Cross-Defendant to Cross-Complainant. There is no allegation that any misrepresentation was known to be false, nor made to induce reliance. Upon opposition, Cross-Complainant argues that the Cross-Complaint alleges Cross-Defendant was committing theft from the state of Hawaii by failing to file General Excise Tax forms. Although both Cross-Defendant and Cross-Complainant could be liable for unremitted funds, without further specifics, it is unclear how this relates to the fraud claim, especially as there are no allegations that PharmaRX Hawaii is being investigated or pursued for tax fraud. Additionally, the allegation that Cross-Defendant failed to collect money owed lacks any relation to the fraud claim. No details are provided as to how there was a false representation, concealment, or nondisclosure of information that would constitute any element of fraud. Finally, Cross-Complainants allegation that he has not been compensated for his services to PharmaRX Hawaii is insufficient for the court to sustain a fraud allegation without more particulars. As such, Cross-Defendants demurrer to the Cross-Complaint is sustained in its entirety. Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment]. The court will inquire whether leave should be granted. Conclusion Accordingly, Cross-Defendant Blaine Ikedas Demurrer to Cross-Complainant Razmik Abkarians Cross-Complaint is SUSTAINED in its entirety.

Ruling

Pamela Cooper vs. Yaquelin Reyes

Aug 12, 2024 |C23-01112

C23-01112 CASE NAME: PAMELA COOPER VS. YAQUELIN REYES *HEARING ON MOTION IN RE: TO QUASH PLTFS SUBPOENA TO THIRD-PARTY MULTIPRO PROPERTY SOLUTIONS FILED BY: GUARDIAN-KW HILLTOP LLC *TENTATIVE RULING:*The hearing is continued to August 19, 2024, in Department 9 at 9:00 a.m. Plaintiff’s counsel issanctioned $250 for a failure to meet and confer. (See Code of Civil Procedure § 2023.010 (i).) Theparties are ordered to meet and confer, and then submit a joint written statement by August 15, 2024,summarizing any issues remaining in dispute and the efforts they have made to resolve those issues.

Ruling

HULBERT vs. CROSS

Aug 14, 2024 |CVPO18-0190446

HULBERT VS. CROSSCase Number: CVPO18-0190446This matter is on calendar for review regarding status of medical expert and Public Defender’sassistance. The Court has Ordered Darren Hulbert’s remote appearance for today’s hearing via aJune 26, 2024 Order, which has been submitted to the litigation coordinator at the inmate’s facilityas previously. The Court notes that Shasta County Counsel has filed a Motion on behalf of theShasta County Public Defender seeking relief from appointment. An appearance is necessaryon today’s calendar.PIT RIVER TRIBE, ET AL. VS. CALIFORNIA ENERGY

Ruling

LAM vs ROHR, INC.

Aug 14, 2024 |CVRI2305206

DEMURRER ON 2ND AMENDEDCOMPLAINT FORCVRI2305206 LAM VS ROHR, INC.ENVIRONMENTAL/TOXIC TORT OFDANIEL LAMTentative Ruling: Appearances requested; plaintiff’s counsel was to have filed a declaration byAugust 7 with potential additional facts to be alleged, but no declaration received.

Ruling

DAVID WILLIAMS vs JOHNATHAN WEBER, et al

Aug 12, 2024 |24CV00661

24CV00661WILLIAMS v. WEBER MOTION TO BE RELIEVED AS COUNSEL The unopposed motion to be relieved as counsel filed by Alivia Abreu is granted as itcomplies with California Rules of Court, Rule, 3.1362. Ms. Abreu is directed to submit anupdated proposed order for the court to sign with the correct upcoming hearing dates. Theproposed order before the court indicates a future date of July 5, 2024.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

NANETTE KINKADE, ET AL. VS ART BRAND STUDIOS, LLC, ET AL.

Aug 13, 2024 |24STCV06387

Case Number: 24STCV06387 Hearing Date: August 13, 2024 Dept: 34 The Motion to Stay Preliminary Injunction is GRANTED. BACKGROUND: On March 14, 2024, Plaintiff Nanette Kinkade (Plaintiff) filed her Complaint against Defendant Art Brand Studios, LLC (Defendant) for provisional remedies in aid of arbitration, pursuant to Code of Civil Procedure section 1281.8. On March 15, 2024, Plaintiff filed her Motion for Preliminary Injunction. On April 22, 2024, Defendant filed its Answer to the Complaint. On April 25, 2024, the court granted Plaintiffs Motion for Preliminary Injunction. On May 9, 2024, the court entered its Order Granting Preliminary Injunction. On May 9, 2024, Defendant filed its Notice of Appeal. On May 9, 2024, Defendant filed its Motion to Stay Preliminary Injunction (Motion to Stay). Defendant concurrently filed its Proposed Order. On May 22, 2024, Plaintiff filed her Opposition to the Motion to Stay. On May 29, 2024, Defendant filed its Reply in support of the Motion to Stay. Defendant concurrently filed Declaration of Myriah V. Jaworski. On May 30, 2024, Defendant filed Amended Exhibits to Reply. ANALYSIS: Legal Standard Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (Code Civ. Proc., § 916, subd. (a).) In California, a long-established set of rules governs stays of injunctive ordersthat is, orders to do something or to refrain from doing something. What rule applies depends on which kind of order it is. An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal. (Daly v. San Bernardino Cnty. Bd. of Supervisors (2021) 11 Cal.5th 1030, 1035.) The provisions of this chapter shall not limit the power of a reviewing court or of a judge thereof to stay proceedings during the pendency of an appeal or to issue a writ of supersedeas or to suspend or modify an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo, the effectiveness of the judgment subsequently to be entered, or otherwise in aid of its jurisdiction. (Code Civ. Proc., § 923.) Discussion The Parties Arguments Defendant moves the Court to either: (a) confirm the Order Granting Preliminary Injunction is stayed pursuant to Code of Civil Procedure section 916, subdivision (a); or, in the alternative, (b) exercise its discretion to stay the Order Granting Preliminary Injunction. (Motion to Stay, p. 5:1821.) Defendant argues: (1) that the preliminary injunction is mandatory and is therefore automatically stayed pending appellate review; and (2) that, alternatively, the Court should grant a discretionary stay because Defendant should not succeed on appeal only to have a pyrrhic victory. (Motion to Stay, pp. 2:1011, 4:1920.) Plaintiff disagrees, arguing: (1) that Defendant has waived its challenge to the preliminary injunction; (2) that this is not a mandatory injunction; and (3) that a discretionary stay is not appropriate because Defendant does not raise any difficult question of law, Plaintiff established a likelihood of success on the merits, and Plaintiff will suffer irreparable harm without the injunction. (Opposition, pp. 8:6, 8:26, 11:2324, 12:12, 13:21.) In its Reply, Defendant reiterates its arguments, and it argues that it did not waive its challenge to the preliminary injunction. (Reply, p. 7:12.) Invited Error Plaintiff points to a proposed order by Defendant that purportedly waived Defendants right to challenge the preliminary injunction. (Opposition, p. 8:710 and Exh. D.) Plaintiff argues that this conduct by Defendant was invited error, which should prevent Defendant from claiming it as a ground for reversal on appeal. (Id. at p. 8:1116, citations omitted.) The court disagrees with this argument. On April 25, 2024, the court granted Plaintiffs Motion for Preliminary Injunction. (Minute Order dated April 25, 2024, p. 13.) The court ordered Plaintiff to prepare the order for the Court. (Ibid.) The court also wrote: If the parties can not [sic] agree on the language to be used for the proposed Order, then all parties are ordered to submit a Joint Status Report by 05/02/2024. (Ibid.) The court has not been presented with any evidence that suggests Defendant supported a preliminary injunction prior to the court issuing a preliminary injunction. Rather, Defendant only submitted a proposed order on the preliminary injunction after the court already granted the preliminary injunction and urged the Parties to confer on language for a proposed order. Overall, this evidence does not support an argument that Defendant invited error or waived its challenge. The Preliminary Injunction is Mandatory and Automatically Stayed Upon and During Appeal The Order Granting Preliminary Injunction is a mandatory injunction that is automatically stayed upon the perfecting (and during the pendency) of an appeal. (Code Civ. Proc., § 916, subd. (a); Daly, supra, 11 Cal.5th at p. 1035.) This preliminary injunction is a mandatory injunction because it requires action that changes the status quo. Specifically, the Order Granting Preliminary Injunction: (1) immediately restrains and enjoins Defendant from exercising rights and performing activities that it was exercising and performing immediately before the injunction was entered; and (2) requires (within seven business days of the entry of the Order) Defendant to provide Plaintiff with certain information that Plaintiff did not have before the injunction was entered. (Order Granting Preliminary Injunction, pp. 2:13:25, 3:274:23.) The court confirms that the Order Granting Preliminary Injunction is STAYED. A Discretionary Stay Would be Appropriate if the Preliminary Injunction were Prohibitory Even if the Order Granting Preliminary Injunction were prohibitory in nature, a discretionary stay would still be appropriate here. Plaintiffs prayer is for an injunction, costs, and attorneys fees. (Complaint, pp. 8:229:3.) Given that the Order Granting Preliminary Injunctionand thus, the entire merits of the case up to this pointis currently in front of the Court of Appeal, it is wholly appropriate for the court to stay the preliminary injunction and allow the Court of Appeal to proceed unimpeded with its review of this matter. In addition, the court recognizes its prior determination that the balance of the harms tips in favor of issuing a preliminary injunction. (Minute Order dated April 25, 2024, p. 13.) However, the court has also been persuaded that it would be prudent to allow the Court of Appeal to finish its review before the status quo is changed. Otherwise, as Defendant argues, Defendant might be irreparably harmed (for example, by having to terminate its employees, and by having to terminate its ongoing commercial relationships related to the intellectual property at issue) during appellate review, which would be meaningless even if Defendant won above. (Id. at p. 12.) Conclusion The Motion to Stay Preliminary Injunction is GRANTED.

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