WRIT OF EXECUTION submitted by Case Management Staff May 04, 2017 (2024)

Case

Fintech Consulting L Lc, Vs Waddy Gene

Jul 05, 2024 |Joseph Rea |Contract/Commercial Transaction |MIDL003910-24

Case

Wells Fargo Bank, N. A. Vs Mcloughlin Gavin

Jul 08, 2024 |Alberto Rivas |Contract/Commercial Transaction |MIDL003938-24

Case

Wells Fargo Bank, N. A. Vs Ali Syad

Jul 08, 2024 |Benjamin S Bucca |Contract/Commercial Transaction |MIDL003943-24

Case

Wells Fargo Bank, N. A. Vs Sommer Jodi

Jul 09, 2024 |Benjamin S Bucca |Contract/Commercial Transaction |MIDL003945-24

Case

Diversitas Holdings Llc Vs Maf Trucking Llc

Jul 09, 2024 |J R Corman |Contract/Commercial Transaction |MIDL003957-24

Case

Real Estate, Educati On And Co Vs Russell Jesse

Jul 11, 2024 |Gary K Wolinetz |Contract/Commercial Transaction |MIDL004031-24

Case

Lorvin Technologies, Inc Vs Ittb

Jul 09, 2024 |Patrick Bradshaw |Contract/Commercial Transaction |MIDL003965-24

Case

214 Rivington Street , Llc Vs Statefarm Fire And

Jul 08, 2024 |Alberto Rivas |Contract/Commercial Transaction |MIDL003933-24

Case

Wells Fargo Bank, N. A. Vs Laczi Mihaly

Jul 08, 2024 |Alberto Rivas |Contract/Commercial Transaction |MIDL003940-24

Ruling

Oma Express, Inc. vs. Mid Group Transportation Inc.

Jul 22, 2024 |S-CV-0052423

S-CV-0052423 Oma Express, Inc. vs. Mid Group Transportation Inc.No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Mid Group Transportation Inc.Additionally, no proof of service has been filed as to Defendant(s): Mid GroupTransportation Inc

Ruling

ISAMAR CERVANTES, ET AL. VS KIA MOTORS AMERICA, INC.

Jul 11, 2024 |23STCV14015

Case Number: 23STCV14015 Hearing Date: July 11, 2024 Dept: 39 TENTATIVE RULING DEPT: 39 HEARING DATE: July 11, 2024 CASE NUMBER: 23STCV14015 MOTION: Motion to Compel Further Discovery Responses MOVING PARTY: Plaintiffs Isamar Cervantes and Yolanda Rodriguez OPPOSING PARTY: Defendant Kia America, Inc. MOTION Plaintiffs Isamar Cervantes and Yolanda Rodriguez (Plaintiffs) move to compel Defendant Kia America, Inc. (Defendant) to further respond to Requests for Production of Documents, set one (RPD), Nos. 1-3, 7, 18, 20, 22, 24, 30, 35, 38, 40, 41, 42, 43, 48, 54-56, 65, 73, 75-77, and 85-86. ANALYSIS If the propounding party deems responses to requests for production of documents unsatisfactory, the propounding party may move to compel further responses. (Code Civ. Proc., § 2031.310.) Plaintiffs allege their 2020 Kia Sorrento vehicle had defects Defendant was unable to repair within a reasonable number of attempts. Plaintiffs, therefore, contend Defendant is liable under the Song-Beverly Consumer Warranty Act (Song-Beverly Act). Plaintiffs demanded Defendant produce documents about Plaintiffs vehicle and concerning the same make and model of the vehicle. To date, Defendant has produced its sales file, repair orders, and CARFAX history report for Plaintiffs vehicle, copies of a recall and a technical service bulletin that applied to Plaintiffs vehicle, the warranty claim records for Plaintiffs vehicle, communications between Plaintiffs and Defendant, and relevant portions of Defendants service policies and procedures. (See Declaration of Sharon L. Stewart, Exhibits B, D.) Defendant refuses to produce documents about other 2020 Kia Sorrento vehicles. (See Opposition to Motion to Compel Further Responses, p. 1.) Plaintiffs are entitled to discovery regarding the alleged defects in other vehicles of the same year, make, and model as Plaintiffs vehicle. Likewise, Plaintiffs are entitled to evidence of Defendants conduct towards other purchasers of defective vehicles, which is pertinent to a finding the manufacturer willfully violated the Song-Beverly Act by failing to adequately repair a vehicle. (Johnson v. Ford Motor Co. (2005) 35 Cal. 4th 1191, 1204.) The court grants the motion to compel further responses. Defendant essentially contends the information Plaintiffs seek about defects in vehicles of the same make and model as Plaintiffs vehicle is irrelevant. In the context of discovery, evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence. (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) As set forth above, information about the same make and model as Plaintiffs vehicle is pertinent to this case. Defendant claims Plaintiffs definition of electrical defect(s) in the RPD is improper. Plaintiffs defined electrical defect(s) as one or more defect(s) within the electrical architecture of the Kia Sorento vehicles equipped with the same electrical architecture as the SUBJECT VEHICLE that can result in (1) loss of power, (2) battery draining, (3) lights dimming or flickering, (4) power windows, doors or locks not working, (5) failure to start, (6) malfunctioning of the instrument cluster, (7) malfunction or failure of the auto start-stop feature (8) malfunction or failure of the engine stop-start (ESS) feature (9) malfunctioning or failure of the fuses, modules, and/or relays; as well as, any other similar concerns identified in the repair history for the SUBJECT VEHICLE. (See Plaintiffs Separate Statement, p. 7.) This definition is reasonably particularized, as required: it specifies information about issues with the electrical architecture in Kia Sorrento vehicles. (See Code Civ. Proc., § 2031.030, subd. (c)(1).) Further, even if Defendant objects to this definition, Defendant must, at minimum, identify documents responsive to the RPD that incorporate the definition as Defendant understands it. (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 901, fn. 3.) The court declines to impose sanctions. The court notes, on February 7, 2024, Defendant responded to Plaintiffs letter regarding Defendants responses to the RPD. (Declaration of Sharon L. Stewart, Exhibit C.) Instead of further engaging with Defendant, Plaintiffs declared the parties at an impasse and filed this motion. Further efforts to informally resolve this dispute may have avoided the need for judicial intervention or, at the very least, may have narrowed the issues before the court, particularly as Defendant did produce some of the documents Plaintiffs seek in this motion, including the documents regarding Defendants policies and procedures. (See Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) Accordingly, a sanctions award would be unjust under the circ*mstances. (Code Civ. Proc., § 2031.310, subd. (h).) CONCLUSION AND ORDER Plaintiffs motion to compel further responses to the RPD is granted. Defendant is to produce responsive documents that pertain to vehicles of the same year, make, and model of Plaintiffs vehicle. Plaintiffs are ordered to give notice of this order and to file proof of service of same.

Ruling

EDWARD D fa*gAN VS ZHEJIANG SUNMARR INTERNATIONAL TRANSPORTATION CO, LTD., ET AL.

Jul 09, 2024 |20STCV41680

Case Number: 20STCV41680 Hearing Date: July 9, 2024 Dept: 47 Plaintiff purports to move for sanctions against Defendant Kenneth Corkum for spoliation of evidence. However, no memorandum of points and authorities nor supporting evidence was included with Plaintiffs notice of motion. Moreover, the Court would not be inclined to award sanctions for discovery violations where Plaintiff has secured default against this Defendant and is proceeding to default judgment, as discovery sanctions are to be tailored to the harm caused by the withheld discovery. (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-1619.) Here, because he has secured default and is moving to obtain default judgment, Plaintiff does not appear to have been injured in this respect. Plaintiffs Motion for Sanctions is therefore DENIED.

Ruling

Jul 13, 2024 |CVSW2305608

FLAGSTAR FINANCIAL &HEARING ON RIGHT TO ATTACHCVSW2305608 LEASING, LLC VSORDERMANQUEROSTentative Ruling:Hearing Required.

Ruling

Evelyn Obligdo vs General Motors, LLC

Jul 11, 2024 |STK-CV-UBC-2023-0005453

TENTATIVE RULING NOTICE Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department and Case Number 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. To attend the remote hearing with Judge Kronlund in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows: Bridge # 6940 Pin # 3782 Tentative Ruling Plaintiff's motion for order deeming RFA's admitted is Granted. CCP Sections 2033.280, 2023.010. No opposition filed. Court will sign the proposed Order submitted with this motion. Barbara A. Kronlund

Ruling

JOHN P BERNARD VS. BMW OF NORTH AMERICA, LLC ET AL

Jul 10, 2024 |CGC23608339

Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 8. PLAINTIFF JOHN BERNARD's Motion For Award Of Attorneys Fees, Costs, And Expenses. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. In meantime, counsel shall meet and confer to resolve their differences. 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. 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/RBU)

Ruling

Richard Bartel vs Chicago Title Insurance Company

Jul 10, 2024 |16CV02814

16CV02814BARTEL v. CHICAGO TITLE INSURANCE COMPANY (UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS Given the parties representation that they are finalizing a stipulation, no tentative will beposted. Page 3 of 3

Ruling

Fresno Community Hospital and Medical Center vs. Sante Physicians IPA Medical Corporation

Jul 10, 2024 |22CECG04105

Re: Fresno Community Hospital & Medical Center v. Santé Physicians IPA Medical Corporation Superior Court Case No. 22CECG04105Hearing Date: July 10, 2024 (Dept. 502)Motion: By Plaintiff for Summary Adjudication By Defendant for Summary JudgmentTentative Ruling: To deny plaintiff Fresno Community Hospital & Medical Center dba CommunityHealth System’s (“FCHMC” or “CHS”) motion for summary adjudication of the breach ofcontract cause of action. To grant summary adjudication of the following affirmativedefenses pled by Santé Physicians IPA Medical Corp.’s (“Santé”): unclean hands, waiver,estoppel, failure to state a cause of action, lack of specificity, and failure to mitigatedamages. To deny as to the statute of limitations, laches … affirmative defenses. (CodeCiv. Proc., § 437c, sud. (f)(1).) To deny Santé’s motion for summary judgment. (Code Civ. Proc., § 437c, subd.(c).)Explanation: In this action plaintiff Fresno Community Hospital & Medical Center sues to recoverover $2m for contracted reimbursem*nt for medical services provided to Santé’sinsureds. The contract at issue was initially entered into between Santé and CommunityHospitals of Central California (“CHCC”), and according to plaintiff the contract wassubsequently assigned by CHCC to CHC. The parties have filed competing motions forsummary judgment or adjudication. Santé’s Motion Santé moves for summary judgment on the ground that Paragraph 9(b) of theAgreement (to which the amendment relates) mandates that "[t]his Agreement shall notbe … assigned by either party without the express written consent of the other party."(UMF 3.) Santé contends that no such written consent was ever provided. While CHSalleges that CHCC "assigned its rights and obligations to the Agreement to CHS"(Complaint at 6:27-28, 2), Santé has never provided express written consent to theassignment by CHCC to CHS of the Agreement. (UMF 5.) The Exhibit I amendment, aswith the original Agreement and all amendments thereto, was drafted by CHCC and/orby CHS, not by Defendant. Exhibit I states that "the original Agreement was entered intoby and between CMC and SCP [a.k.a. Santé Community Physicians IPA MedicalCorporation], effective April 1, 1996 . . ." Thus, Santé argues, the new designation for thecontracting party, Community Medical Centers, was stated to be the party that enteredinto the original Agreement in April 1996. As a result, there was nothing in theamendments that alerted Defendant that a new separate corporate entity wasreplacing CHCC. Santé points out, nonassignability clauses in contracts are enforceable. (Parkinsonv. Caldwell (1954) 126 Cal. App. 2d 54; Benton v. Hofmann Plastering Co. (1962) 207Cal.App.2d 61, 69.) Paragraph 9(b) of the Agreement requires that, before theAgreement may be assigned, express written consent from the other party to thecontract must be obtained. CHS points out that Santé’s moving papers omit reference to two criticalamendments - in a 2005 amendment, Santé consented to assignment of the agreementfrom Community Hospitals of Central California (“CHCC”) to FCHMC and then, for goodmeasure, reiterated that consent in a 2022 amendment. After CHCC’s alleged assignment of its rights under the Agreement that is thesubject of this dispute to FCHMC pursuant to a 2005 amendment, Santé and CHSsubsequently amended the underlying agreement on numerous occasions. Each of theamendments after 2005 indicates the parties to the amendment are Santé and FCHMC(or one of its dbas). For example, the March 1, 2006 amendment contains the followingopening paragraph and signature block: Community Medical Centers (“CMC”) and Community Health Systems (“CHS”)are dbas of FCHMC. (CHS’s AMF 2.) The January 1, 2009, reflects the same: Given that Santé signed multiple amendments to the Agreement with plaintiff’sdba, there is a triable issue as to Santé’s intent to consent to the assignment, even if therewas no specific assignment document. Other than requiring written consent, theAgreement does not prescribe any specific form for it to be transferred, delegated, orassigned. At issue in this litigation is a 2015 amendment to the Agreement entered intobetween Santé and CHS, which Santé’s President de Soto executed on behalf of Santé. Moreover, on December 15, 2022, the parties amended the Agreement toterminate the 2015 amendment. This 2022 amendment acknowledged that CHCCpreviously assigned its rights and obligations under the agreement to CHS: De Soto denies signing the 2022 amendment, which creates a triable issue ofmaterial fact as to whether the assignment was consented to in writing as required bythe Agreement. Evidence that Santé signed amendments with plaintiff’s dba as the partyon the other side of the agreement, and the 2022 acknowledgement of the assignment,are at least enough to raise a triable issue. The court does not find persuasive Santé’s reply argument that use of the “presentperfect tense” verbiage “has assigned” means that the assignment was prospectiveonly, as opposed to recognizing that an assignment occurred in the past. Accordingly, the court intends to deny Santé’s motion, and overrule the threeobjections by plaintiff to the De Soto declaration. The court declines to impose sanctionspursuant to Code of Civil Procedure section 437c, subdivision (j), as the de Sotodeclaration does not appear to have been presented in “bad faith or solely for thepurpose of delay.” CHS’s Motion CHS moves for summary adjudication of its second cause of action for breach ofcontract, and for summary adjudication of each affirmative defense set forth in Santé’sAnswer. In order to prevail on a breach of contract claim, the moving party must establish(1) existence of the contract, (2) plaintiff’s performance thereon, (3) breach of thecontract, and (4) damages to plaintiff as a result of the breach. (CDF Firefighters v.Maldonado (2008) 158 Cal.App.4th 1226, 1239.) The 2015 amendment provides that Santé shall pay CMC (a dba for FCHMC) $4.69PMPM for every pediatric member for pediatric services rendered pursuant to theamendment. It is undisputed that Santé never made any pediatric capitation paymentsowed under the amendment. There is no dispute that the 2015 amendment was validlyexecuted. One of the primary grounds for Santé’s opposition is that, as argued in Santé’sown MSJ, it never consented to the assignment of the Agreement to CHS. Assignment As discussed above, there are triable issues as to whether Santé consented to theassignment. Plaintiff’s PMK witness concerning when the assignment between CHCC andCHS occurred, Brandon Burnett, testified that it was by way of the November 1, 2005amendment (De Soto Decl., Exh. C) that the assignment by CHCC to CHS of the ProviderAgreement was accomplished. But the 2005 amendment does not expressly mention anassignment between CHCC and CHS; rather, on its face, it only announces CHCC's namechange to Community Medical Center1. Santé’s contention that this language merelyannounces that CHCC has undergone a name change is not implausible. A namechange is not necessarily the same as an assignment of contractual rights from one entityto another. CHS relies heavily on the 2022 amendment, arguing that it establishes Santé’swritten consent to the assignment. There is a triable issue on this contention, as De Sototestified and maintains that he never reviewed and signed the December 2022amendment, that the preprinted stamp of his signature was never authorized by him tobe placed on the document, and the handwritten date next to his signature is not in hishandwriting. Whether this testimony is credible or not, it does raise a triable issue of fact.As this is the primary document that would constitute consent to the assignment, and itis disputed that it was executed by Santé, there exists a triable issue of material fact. Dueto the triable issues relating to the assignment, the motion should be denied as to thecause of action for breach of contract. It is unnecessary to address Santé’s contentionthat the amendment was never implemented (though the court notes that there is noimplementation language in the agreement). Plaintiff’s Breaches In the opposition, Santé contends that plaintiff’s own breaches of the Agreementraise a triable issue of fact concerning whether its non-performance excuses Santé’salleged non-performance. "When a party's failure to perform a contractual obligationconstitutes a material breach of the contract, the other party may be discharged fromits duty to perform under the contract. Normally the question of whether a breach of anobligation is a material breach, so as to excuse performance by the other party, is aquestion of fact." (Brown v. Grimes (2011) 192 Ca1.App.4th 265, 277-278.) Santé contends that CHS failed to perform several of its obligations under thecontract, including failure to disclose to Santé: 1) that malpractice lawsuits had beenfiled against it (Burnett Depo. 205:16 – 206:6, 205:4-15); 2) that a significant modificationin its liability insurance had occurred in 2018 (Burnett Depo. 209:16-25, 210:1-3); and 3)that it had been subjected to various disciplinary proceedings in before the Departmentof Public Health (Burnett Depo. 225:9-16, 221:11-16). Under paragraph (2)(f) of the1"WHEREAS, the parties have agreed to change the Provider name of Community Hospitals ofCentral California to Fresno Community Hospital & Medical Center d/b/a Community MedicalCenters."(De Soto Decl., Exh. C.)Provider Agreement, plaintiff was required to give notice within three days of any suchoccurrence. However, Santé fails to show that the parties’ respective obligations are notindependent of one another. (See Colaco v. Cavotec SA (2018) 25 Cal.App.5th 1172,1182-83 [“If the parties’ obligations are independent, the breach by one party does notexcuse the other party’s performance. Instead, the nonbreaching party still must performand its remedy is to seek damages from the other party based on its breach of thecontract.”]) Nothing in the Agreement conditions payment on CHS’s disclosureobligations. The parties’ respective alleged breaches do appear independent, andCHS’s breaches would not appear to excuse Santé’s own breaches. This issue does notcreate a triable issue of material fact. Damages Damages are an “essential element” of a breach of contract claim. (Belmke v.State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1468.) Plaintiff contends that the damages are undisputed and easily established byreference to documents produced by Santé in this action. Based on Defendant’s ownrecords of monthly pediatric member totals, as produced in this action, CHS’s damagesover the four-year limitation period total $2,023,350.42. Santé contends that the claim for $2,023,350.42 in contract damages fails to takeinto account the expenses that were saved when the parties decided not to implementthe 2015 Amendment. Santé contends that “a breach of contract plaintiff ‘must show loss of netpecuniary gain, not just loss of gross revenue.’ Kids' Universe v. In2Labs (2002) 95Cal.App.4th 870, 884.” However, Kids’ Universe was addressing the issue of lost profitsdamages. That is not what plaintiff is seeking here. It is simply seeking the moneys thatSanté was (allegedly) obligated to pay under the Agreement. Santé attempts to dispute the damages amount by arguing that CHS failed tomitigate its damages. “The doctrine of mitigation of damages holds that ‘[a] plaintiff who suffersdamage as a result of ... a breach of contract ... has a duty to take reasonable steps tomitigate those damages and will not be able to recover for any losses which could havebeen thus avoided.’ ” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691,32 Cal.Rptr.2d 329.) Under the doctrine, “[a] plaintiff may not recover for damagesavoidable through ordinary care and reasonable exertion.” (Ibid.) However, “[t]he dutyto mitigate damages does not require an injured party to do what is unreasonable orimpracticable.” (Ibid.) “Whether a plaintiff acted reasonably to mitigate damages ... is a factual matter to be determined by the trier of fact.” (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp. U.S.A. (2013) 221 Cal.App.4th 867, 884, 164 Cal.Rptr.3d 811.) The burden of proving a plaintiff failed to mitigate damages is on the defendant. (Ibid.) Here, the trial court concluded the Gavras did not carry that burden. Therefore, the question on appeal is whether there was “ ‘ “uncontradicted and unimpeached” [evidence] “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support” ’ ” the finding that Agam failed to mitigate his damages. (Sonic, supra, 196 Cal.App.4th at p. 466, 126 Cal.Rptr.3d 301.)(Agam v. Gavra (2015) 236 Cal.App.4th 91, 111.) Santé argues that plaintiff should have sought to mitigate its damages by, withina few months of not receiving payment, alerting Santé that it was in breach instead ofwaiting years to raise the issue. However, plaintiff submits that it did not discover that Santé was not paying thecapitation payments associated with pediatric enrollees (although it was paying forservices rendered to adult patients) until late 2022 (Burnett Decl., ¶ 26), and it promptlyfiled suit. Santé does not show that plaintiff should have discovered the lack of pediatriccapitation payments sooner. Given that Santé’s only argument is that it should havebeen notified sooner, without any evidence relating to the reasonableness of when theissue was in fact raised, the motion is not denied on this ground. Santé’s affirmativedefense of failure to mitigate damages is shown to lack merit, and Santé does not showthe existence of a triable issue of material fact. Summary Adjudication of Affirmative Defenses Plaintiff moves for summary adjudication of eight affirmative defenses. First Affirmative Defense: Statute of limitations The court cannot grant summary adjudication of the statute of limitationsaffirmative defense. As both parties point out, the applicable statute of limitations for anaction on a written contract is four years. (Code Civ. Proc., § 337, subd. (a).) But theaffirmative defense would also apply to the cause of action for accounting, which is notaddressed in the moving papers. Moreover, though in the motion for summary adjudication plaintiff only seeksdamages for the four years preceding filing this action, the operative complaint filed onDecember 21, 2022 seeks damages going back to January 2015, nearly eight years.(Complaint ¶ 39.) Accordingly, the court cannot find that no damages sought in theComplaint would be barred by the statute of limitations. Second Affirmative Defense: Laches CHS contends that the equitable defense of laches has no application to a suitfor damages for breach of contract. (See In re Marriage of Parker (2017) 14 Cal.App.5th681, 687 [“The doctrine of laches is to actions in equity what statutes of limitations are toactions in law.” (citation omitted)].) However, the case does not hold or show that thedefense has no application here. CHS argues that it could not have unreasonably delayed bringing suit given thatthis suit was brought within the applicable statute of limitations, citing David Welch Co.v. Erskine & Tulley (1988) 203 Cal.App.3d 884, 893. But as pointed out above, some of thedamages sought in the Complaint are beyond the statute of limitations. As these are the only arguments raised specifically as to the laches defense, themotion should be denied on this defense. Third Affirmative Defense: Unclean Hands The third affirmative defense alleges that the alleged unclean hands conduct"includes but is not limited to . . ." other unconscientious conduct that would support anunclean hands defense. Santé contends that this conduct includes CHS's "lying in wait"by intending to enforce a 2015 Amendment while otherwise acting like it did not intendto enforce the 2015 Amendment and by not performing all of the covenants required ofit under the Outpatient Provider Agreement. (See Response to UMF 25.) “Any conduct that violates conscience, or good faith, or other equitablestandards of conduct is sufficient cause to invoke the doctrine.” (Kendall-Jackson WineryLtd. v. Superior Court (1999) 76 Cal.App.4th 970, 979.) As the moving papers point out, a three-pronged test is used to determine whethera plaintiff’s unclean hands conduct is a bar to the claim for relief: (i) the existence ofanalogous case law, (ii) the nature of the misconduct, and (iii) the relationship of themisconduct to the claimed injuries. (East West Bank v. Rio School Dist. (2015) 235Cal.App.4th 742, 751.) CHS challenges the first prong of the test – the existence of analogous case law.(See, id. at pp. 751-52 [finding of no analogous case law “is sufficient to warrant the denialof the defense . . . as a matter of law”].) Though Santé acknowledges this argument, itcites to no analogous case law. (See Supp. Oppo. 6:9-16.) Accordingly, summaryadjudication of this defense should be granted. Fourth Affirmative Defense: Waiver Section 20 of the Agreement (“No Waiver”) provides: “No waiver, whether expressor implied, or [sic] any breach of a provision of this Agreement will be deemed to be awaiver of any other provision or waiver of a subsequent breach of the same provision.”(UMF 26.) However, as the opposition points out, “Even a waiver clause may be waivedby conduct.” (Bettelheim v. Hagstrom Food Stores, Inc. (1952) 113 Cal.App.2d 873, 878.) Accordingly, the “No Waiver” clause is not dispositive. The affirmative defense argues that CHS “voluntarily and knowingly waived its rightto assert the contract and accounting claims . . . by not asserting its alleged claims . . .for years without ever complaining about Defendant’s alleged non-performance.”However, Santé cites to no authority providing that simple delay in raising the issue of analleged breach of contract constitutes a knowing and intentional waiver. Such a delayin bringing a claim is appropriately raised in the context of a statute of limitations defense,which would operate to limit CHS’s damages. The court intends to grant summaryadjudication of this affirmative defense. Fifth Affirmative Defense: Estoppel The elements of equitable estoppel are “(i) the party to be estopped must beapprised of the facts; (ii) he must intend that his conduct shall be acted upon, or must soact that the party asserting the estoppel has a right to believe it was so intended; (iii) theother party must be ignorant of the true state of facts; and (iv) he must rely upon theconduct to his injury. The detrimental reliance must be reasonable.” (Schafer v. City ofL.A. (2015) 237 Cal.App.4th 1250, 1261.) Santé does not identify what “words or conduct” on the part of CHS causeddefendant to believe it need not fulfill its explicit contractual obligations under the 2015Amendment. Defendant must show that it relied “upon [plaintiff’s] conduct to his injury.”CHS points to evidence that it did not discover that Santé was not paying pediatriccapitation payments until late 2022, just before filing the Complaint. (UMF 16-19.) What the defense comes down to is Santé’s contention that CHS should haveinformed Santé of its own breach at a time earlier than it did. While, as pointed out above(and implicitly recognized by CHS), much of the damages alleged in the Complaintwould be barred by the statute of limitations, Santé points to no contractual provision orlegal authority requiring notification of the breach at any particular time. The courtintends to grant summary adjudication of the estoppel affirmative defense. Santéidentifies no actual action or communications from CHS that caused Santé to fail to takeaction on the issue of the capitation payments. Sixth and Seventh Affirmative Defenses: Failure to State a Cause of Action and Lack of Specificity However, the supplemental opposition states that these affirmative defenses “canbe eliminated.” (Supp. Oppo. p. 10, fn. 3.) Accordingly, the court intends to grantsummary adjudication of these defenses. Eighth Affirmative Defense: Failure to Mitigate Damages The court intends to grant summary adjudication of this affirmative defense for thereasons discussed above. Objections The court intends to rule as follows on CHS’s objections to the opposition evidence: Plaintiff’s objections to De Soto Declaration: overrule objections 1, 2 (parts of thematerial referenced may be objectionable, but the objection includes parts to which noobjection should be sustained), 3, 5, 6, 7, 8, 9; sustain objection 4. Plaintiff’s objections to Rafferty Declaration (Whelan Decl. Exh. A): overruleobjections 2, 3, 4; sustain objection 1. The court will not consider the extensive evidence submitted with the reply. (SeeNazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249, 252; San Diego Watercrafts,Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312-313, 316.) Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 07/05/24 . (Judge’s initials) (Date)

Document

Basf Corporation Vs Ace American Insuran Ce Com

Mar 13, 2024 |Gary K Wolinetz |Complex Commercial |MIDL001648-24

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Basf Corporation Vs Ace American Insuran Ce Com

Mar 13, 2024 |Gary K Wolinetz |Complex Commercial |MIDL001648-24

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Basf Corporation Vs Ace American Insuran Ce Com

Mar 13, 2024 |Gary K Wolinetz |Complex Commercial |MIDL001648-24

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Basf Corporation Vs Ace American Insuran Ce Com

Mar 13, 2024 |Gary K Wolinetz |Complex Commercial |MIDL001648-24

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Basf Corporation Vs Ace American Insuran Ce Com

Mar 13, 2024 |Gary K Wolinetz |Complex Commercial |MIDL001648-24

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Basf Corporation Vs Ace American Insuran Ce Com

Mar 13, 2024 |Gary K Wolinetz |Complex Commercial |MIDL001648-24

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Basf Corporation Vs Ace American Insuran Ce Com

Mar 13, 2024 |Gary K Wolinetz |Complex Commercial |MIDL001648-24

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Basf Corporation Vs Ace American Insuran Ce Com

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