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Received and E-Filed for Record 1/24/2020 12:52 PM Melisa Miller, District Clerk Montgomery County, Texas 20-01-01165 Deputy Clerk, Jeff Fiore *F0044925 Cause No. FORD MOTOR CREDIT COMPANY g IN THE DISTRICT COURT LLC Montgomery County - 284th Judicial District Court Plaintiff § § __ JUDICIAL DISTRICT SANTIAGO CIENFUEGOS § Defendant(s) § MONTGOMERY COUNTY, TEXAS PLAINTIFF’S ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the Plaintiff, FORD MOTOR CREDIT COMPANY LLC, by and through its attorneys, Hosto & Buchan, P.L.L.C., complaining of Defendant, SANTIAGO CIENFUEGOS, and for this cause of action would Show the Court the following: 1. Monetary Relief and Discovery Level. Plaintiff seeks $100,000 or less including damages of any kind, penalties, costs, expenses, and attorney’s fees, and the damages sought are within the jurisdictional limits of the court. Accordingly, discovery in this case is intended to be conducted under Level 1 of the Texas Rules of Civil Procedure. 2. Parties. Plaintiff is FORD MOTOR CREDIT COMPANY LLC. Defendant, SANTIAGO CIENFUEGOS, can be served with a citation at 2406 STILLER RIDGE WAY, SPRING TX 773 86. 3. Written Documents. Attached to this petition are written documents, which are true and accurate records, and which Plaintiff or the custodian of records for Plaintiff, keep. Among other things, the written documents include documents executed by Defendant; indicate Plaintiff is the assignee of an agreement with Defendant; and Plaintiff is entitled to receive all money due under the written documents3 terms. To secure the debt created by the written documents, Defendant executed a security agreement granting Plaintiff or its assignors a security interest in the vehicle referenced in the agreement. 4. Default. The Defendant defaulted in paying the obligation it owed to Plaintiff. Plaintiff accelerated the debt according to the terms of the written documents. Plaintiff foreclosed its security interest in the collateral, which was sold in accordance with Texas law. There is currently due the sum of $15,415.28. The relief sought in this Petition is owed, just, true, and due, Defendant is obligated to pay it, and all payments, offsets or credits due to the Defendant have been accounted for. 5. Conditions Precedent. All conditions precedent have been performed or have occurred. 6. Attorney Fees, Costs, Interest. The default of the Defendant has made it necessary for the Plaintiff to employ the undersigned attorney to file suit. This claim was timely presented to the Defendant and remains unpaid. Pursuant to Section 38.001 of Tex. Civ. Prac. & Rein. Code, Plaintiff is entitled to recover its reasonable and necessary attorney fees and costs associated with prosecuting this action. Pursuant to Section 304.002 of the Finance Code, Plaintiff is entitled to recover post-j udgment interest at the contract rate or at 18% whichever is less. 7. Prayer. Plaintiff prays for the following: EL Defendant be cited to appear and answer; b. Plaintiff be granted judgment in the amount of $15,415.28 as the principal amount due on the account; Plaintiff be granted post-j udgment interest at the contract rate or at 18% whichever is less; Plaintiff be granted Judgment for reasonable attorneys' fees, with additional contingent amounts in the event of appellate proceedings; Plaintiff be granted Judgment for all costs of court; Plaintiff demands it be granted a judgment for all other relief to which it deems itself entitled. Respectfully submitted, Charles J. Buchan, Texas Bar No. 240383 77 Kevm T. Me ire Texas Bar No. 13664200 Mark A. Sex on Texas Bar No. 24108462 PO. Box 3397 tune Rock, Arkansas 72203 Telephone: (866)530—7442 Fax: (501)375-3670 kmcgu1re@hosto.com F0044925 AFFIDAVIT I, the undersigned Afflant, do hereby state: 1. My name is Stgphanlg Q! instan I am over 18 years of age, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct. 2. I am an Account Service Representative of Ford Motor Credit Company, LLC, the Plaintiff. 3. Attached to this affidavit is a true and accurate copy of the written document, which is a record from Ford Motor Credit Company, LLC and is signed by SANTIAGO CIENFUEGOS ("Defendant") or their authorized agent, and whose terms Defendant breached. 4. This record is kept by Ford Motor Credit Company, LLC in the regular course of business, and it was the regular course of business of Ford Motor Credit Company, LLC for an employee or representative of Ford Motor Credit Company, LLC, with knowledge of the act, event, condition, opinion, or diagnosis that was recorded. The records attached to this affidavit are the originals or exact duplicates of the originals. 5. The relief sought in the Petition, which this affidavit accompanies, is owed, and all payments, offsets or credits due to the Defendant have been accounted for. The relief sought, which Defendant owes is $15,415.28. 6. As is indicated in the written document(s), which are attached to this affidavit and sworn statement as exhibits, an assignor assigned its rights to Plaintiff. FURTHER AFFIANT SAITH NAUGHT. Stephanie Dunstan Affia e (Print) Affiant Signature STATE OF ARIZONA § COUNTY OF MARICOPA § Subscribed and Sworn to before me, a Notary Public, on this a day of Dgfigmbe/Y 20|_"]_ r‘i' :1 " Notary M Public . . . _ on}... lil-t'lilllllil‘flllOl'i l H g‘ 7..., it y Fubtu. y comrmssmn expires. txfiancopa ‘ unity, Arizona , ' EXP‘HPE‘ Client RefNo. XXXXXXXXXXXXXXXX7474 | ; i. '31um...» Customer Completed Copy - TEXAS MOTOR VEHICLE RETAIL INSTALLMENT SALES CONTRACT Date 101'0512015 BUYER SANTIAGO CIENFUEGOS SEI |FWCREDITOR AUTOTAINMENT PARTNERS LIMITED ADDRESS 2406 STILLER RIDGR WAY CITY Spring STATETX ZIP 77385 ADDRESS 20403 IINTERSTATE HIGHWAY 45 NORTH PHONE CITY SPRING CO-BUYER NI'A STATE TX ZIP 77388 ADDRESS WA CITY NlA STATENIA ZIP NfA PHONE (281) 719—3700 PHONE Ni’A The Buyer is referred to as "you" or "your". The Seller/Creditor is referred to as "we , us" or "Creditor". This contract may be transferred by the Seller. PROMISE TO PAY The credit price is shown below as the "Total Sale Price". The "Cash Price" is also shown below.By signing this contract, you choose to purchase the motor vehicle on credit according to the termsof this contract.You agree to pay us the Amount Financed, Finance Charge and any other charges in this contract. You agree to make payments according to the Payment Schedule in this contract. If rides angeiuoutnv-UON QQn - lidog pereldwog eieinoov pue am; more than one person signs as a buyer, you agree to keep all of the promises in this agreement even if the others do not. True and Accurate Completed Copy - UCC Non-Authoritative Copy You have thoroughly inspected, accepted andapproved the motor vehicle'In all respects. ANNUAL FINANCE Amount Totalrof J ' Total Sale PERCENTAGE CHARGE Financed Payments Price RATE The dollar amount The amount of The amount The total cost The cost of your the creditwill credit provided you will have of your purchase on credit as a yearly rate. cost you. to you or on paid when you credit, your behalf. have made all including your scheduled downpayment payments. 1-800-727-7000 of$ 2,865.12 $ 55,214.50 $ 71,439.52 $ 74,354.64 | FORD CREDIT Amount a:Payments ‘h‘eh PaymentsareDe , .gi. www.fordcredit.com ”H{Monthly |:} Semi-AnnuallyDAnnualI 9 ",risszsif‘” ,.starting11119212015 - Prepayment: If you pay oft your debt early, you will not have to pay a penalty. Late Payment: You must pay a late charge on each payment received more than fifteen days late. The charge is 5% of the scheduled payment. Security Interest: You are giving a security interest in the motor vehicle being purchased. Contract: Please see this contract for additional information on security interest, nonpayment, default, the right to require repayment of your debt in full before the scheduled date. and prepayment penalty. BALLOON CONTRACT PROVISIONS I:] Your last installment payment under this contract is a balloon payment. EXCESS WEAR, USE AND MILEAGE CHARGES If the box directly above is checked, this section, Paragraph B, and Paragraph C of this contract apply. You may be charged for excessive wear based upon our standards for normal use. If you exercise the option to sell the vehicle back to Creditor under Paragraph B, you must pay the Creditor $0. NIA per miie for each mile in excess of MA miles shown on the odometer. EXTRA MILEAGE OPTION CREDIT If this contract contains a balloon payment (as indicated above), and you have exercised your Option to sell the vehicle to the Creditor under Paragraph B, this paragraph applies to your contract. At the scheduled end of this contract, You will receive a credit of $0. NIA per unused mile for the number of unused miles between NIA and NIA miles, less any amounts You owe under this contract.You will not receive any credit if the vehicle is destroyed, this contract ends early, or you are in default. You will not receive any credit if the credit is less than $1.00. The Annual Percentage Rate may be negotiated with the Seller. The Seller may assign this contract and may retain its right to receive a portion of the Finance Charge. e-17642-Sl JUN 15) e-17642-B l Page 1 of 8 Customer Completed Copy - Customer Completed Copy - MOTOR VEHICLE INDENTIFICATION New/Used Mileage Year and Make Model Vehicle Identification Number W PURCHASED PERSONAL, FAMILY OR HOUSEHOLD New 822 2015 Ford F-150 I:I BUSINESS OR COMMERCIAL I:I AGRICULTURAL Trade-In: Year: 2006 Make Chevrolet Model Silverado 1500 VIN No. 1 1. Cash Sale Price (including any accessories, services, and taxes N/A 5 NIAI MIA 3; N/A Ni'A $ MA, and MA 5 MA) $ 49,091.00 (1) 2. Total Downpayment = (if negative, enter "0" and see Line 4A. below) Gross trade-in..........................................................................................5 6300-00 - payoff by seller........................................................................................ $ 8188438 = net trade—in .............................................................................................. $ '2384-55 + cash ............................................................................- ............................. $ N’A + Third Party Rebate Assigned to Creditor................................................ $ 5.75000 peiaidtuoo aieJnooV pue eml Copy - UCC Non-Authoritative Copy + NfA ................................................................ $ WA Total downpayment........................................................................................................................................... $ 2.855-12 (2) 3. Unpaid balance of cash price (1 minus 2) ....................................................................................................... $ M (3) 4. Other charges including amounts paid to others on your behalf (Seller may keep part of these amounts): A. Net trade—in payoff to WA 5; N/A B. Cost of optional credit insurance paid to insurance company or companies ' Life 35 WA Disability $ NIA $ N’A C. Other insurance paid to the insurance company.................................................................................... 5 WA D. Official fees paid to government agencies ............................................................................................. $w E. Debt Cancellation Agreement Fee Paid to Seller................................................................................... $A F. Dealer's inventory tax (if not included in cash price) ............................................................................ $ 35-55 QQn - Adoo (3. Sales tax (if not included in cash price)...................................................................................... $ 21333-81 H. Other taxes (if not included in cash price) .................................................................................. $ —NIA |. Government license and/or registration fees .......................................................................................... $ ___L052 True and Acourate Completed J. Government certificate of title fee........................................................................................................... $A K. Government vehicle inspection fees.................................................................................................... $ 23-75 Adoo eniieiuouinv-UON L. Deputy Service fee paid to dealer........................................................................................................... $ 5-00 M. Documentary Fee. A documentary fee is not an official fee. A documentary fee is not required by law, but may be charged to buyers for handling documents relating to the sale. A documentary fee may not exceed a reasonable amount agreed to by the parties. This notice is required by law. Spanish Translation: Un cargo documental no es un cargo oficial. La iey no exige que se imponga un cargo documental. Pero este podria cobrarse a Ios compradores por el manejo de la documentacion en relacion con la venta. Un cargo documental no puede exceder una cantidad razonable acordada por las partes. Esta notificacién se exige por ley. ToAUTOTAINMENT PARTNERS LIMITED for Documentary Fee ............................................. $ 149.00 N. Other charges (Seller must identify who is paid and describe purpose) . to Ford Extended Service Coverage for Service Plan $ 3,975.00 to Ford Extended Service Coverage for Maintenance Plan $ 1,515.00 to N/A for NI'A $ NIA to N/A for NIA $ NIA to N/A for NI'A $ NI'A to NI'A far N/A $ Ni’A to NIA for N/A 55 WA to N/A for NI'A $ NJ'A to NIA for N/A 3 WA to WA for MA 3 NIA Total other charges and amounts paid to others on your behalf............................................................... $ w (4) 5. Amount Financed (3 + 4) ................................................................................................................................... $ ____W551214-50 (5) LIABILITY INSURANCE THIS CONTRACT DOES NOT INCLUDE INSURANCE COVERAGE FOR PERSONAL LIABILITY AND PROPERTY DAMAGE CAUSED TO OTHERS. e-17642-SléJUN 15) e-17642-B I Page 2 of 8 Customer Completed Copy - Customer Completed Copy - PROPERTY INSURANCE: You must keep the collateral insured against damage or loss in the amount you owe. You must keep this insurance until you have paid all that you owe under this contract. You may obtain property insurance from anyone you want or provide proof of insurance you already have. The insurer must be authorized to do business in Texas. You agree to give us proof of property insurance. You must name us as the person to be paid under the policy in the event of damage of loss. If any insurance isincluded below, policiesor certificatesfrom the insurance company willdescribe the terms, conditions and deductibles. Optional credit life and credit disability insurance. Credit life insurance and credit disability insurance are not required to obtain credit. They will not be provided unless you sign and agree to pay the extra cost. Your decision to buy or not buy these insurance coverages will not be a factor in the credit approval process. {3 Credit Life, one buyer 35 MIA Term NA [:1Credit Life, both buyers 3 WA Term NIA |:|Credit Disability, one buyer $ NIA Term NIA |:|Credit Disability, both buyers 3 WA Term NiA 33m - Adog peteidwoo eteJnooV pue amt True and Accurate Completed Copy — UCC Non-Authoritative Copy NI‘A (Insurance Company) Credit life insurance pays only the amount you would owe if youpaid all your payments on time. Credit disability insurance does not cover any increase in your payment or in the number of payments. If the term of the insurance is 121 months or longer, the premium is not fixed or approved by the Texas insurance Commissioner. Balloon payment contracts: Credit Life Insurance is for the scheduled term of this contract. Credit Disability Insurance covers the first NlA payments and does not cover the last scheduled payment. You want the insurance indicated above. Buyer's Signature:A NIA Co-Buyer‘s Signature:A NIA Debt cancellation agreement. The granting of credit will not be dependent on the purchase of the debt cancellation agreement described below. It will not be provided unless you sign and agree to pay the extra cost. The credit approval process will not be affected by whether or not you buy the debt cancellation agreement. Debt Cancellation Agreement“( 72 $ 735-00 Adoo anlletlJOtlan-UON Term in Months Premium or Fee NiA (Insurance Company) “WE WILL CANCEL CERTAIN AMOUNTS YOU OWE UNDER THIS CONTRACT IN THE CASE OF A TOTAL LOSS OR THEFT OF THE VEHICLE AS STATED IN THE DEBT CANCELLATION AGREEMENT. You can cancel the debt cancellation agreement without charge for a period of 30 days from the date of this contract, or for the period stated in the debt cancellation agreement, whichever period ends later. A debt cancellation agreement is not insurance and is regulated by the Office of Consumer Credit Commissioner. You want the debt cancellation agreement for which the premium or fee is included above. Buyer‘s Signature:B ,d” Co-Buyer‘s Signature:B NIA Anti-Theft Product (Optional) DThe purchase of anti—theft product(s) is optional and not required to obtaincredit, even if the product(s) is already installed on the vehicle you selected.You may purchase anti-theft productts) from the person of your choice. By signing below, you agree to purchase the anti-theft product(s) at the price disclosed. NlA $ NlA Term NlA NIA $ NiA Term NlA WA 35 WA Term NlA Buyer Signs e~17642~5| (JUN 15) e-17642-B-SI Page 3 of 8 Customer Completed Copy - ‘ Customer Completed Copy - A. Payments: You must make all payments in US. funds when they are due. If you pay off your contract early, you will not have to pay a penalty. This is a simple finance charge contract. 1. How Finance Charge is Calculated: Creditor figures the Finance Charge using the true daily earnings method as designed by the Texas Finance Code. Under the true daily earnings method, the Finance Charge will be figuredby applying the dailyrate to the unpaid portion of the Amount Financed for the number of days the unpaid portion of the Amount Financed is outstanding. The daily rate is11365th of the Annual Percentage Rate. The unpaid portion of the Amount Financed does not include late charges or return check charges. ' 2. How Your Payments will be Applied: Creditor will apply your payments in the following order: 1. earned but unpaid finance charge; and 2. to anything else you owe under this contract. 3. How Late or Early Payments Change What You Must Pay: The Finance Charge, Total of Payments, and Total Sale Price are based on the assumption that you will make all payments as scheduled. If you do not timely make all your payments in at least the correct amount, you will have to pay more Finance Charge and your last payment will be more than your last scheduledpayment. If you make scheduled payments early, your Finance Charge will be reduced (less).If you make your scheduled payments late, your Finance Charge will increase. 4. Interest After Maturity:If you don't pay all that you owe when the final payment becomes due, or you do not pay all that you owe it Creditor demands payment in fulE under this contract, you will pay an interest charge on the amount that is still unpaid. That interest charge willbe the lower of the rate disclosed in this contract per year or the maximum rate allowed by law.The interest charge for True and Accurate Completed Copy - .UCC Non-Authoritative Copy peteldtuog GJBJI‘IOOV pue enil this amount will begin the day after the final payment becomes due. B. Balloon Payment Contracts: If your last installment payment under this contract is a balloon payment, you may handle the last installment payment in one of three ways. w, you may pay all that you owe when the last installment payment is due and keep your motor vehicle. Second, you may refinance the last installment payment unless you are in default under this contract. If the Creditor has advanced funds to cure any default,you must pay back the Creditor before the refinancing. You must also provide proof of insurance acceptable to Creditor beforethe refinancing. The terms of the refinancing will be as follows: (i)If the vehicle is described inthis contract as new, you can refinance at an annual percentage rate up to 5 points greater than the Annual Percentage Rate shown in this contract.The rate will not be more than applicable law allows. The new agreement will allow you to refinance the last installment for at least 24 months with equal monthly payments. Creditor and you can also agree to refinance the last installment over another time period or on a different payment schedule. (ii) If the vehicleisdescribed in this contract as used, you can enter into anew written agreement to refinance the last installment Adoo eniieiuoutnv-uoN 30m - Adoo payment when due without a refinancing fee. If you refinance the last installment payment, your periodic payment will not be larger or more often than the payments in this contract.The annual percentage rate in the new agreement will not be more than the Annual Percentage Rate inthis contract.The provision does not apply if your Payment Schedule has been adjusted to your seasonal or irregular income. If you wish to refinance, you must notify the Creditor in writing. Except as discussed in this section, the notice must be received no later than 30 days prior to the last installment payment due date. Third, you may sell the vehicle to the Creditor for an amount equal to the last installment payment less a $250 disposal fee. You must pay to the Creditor the $250 and any other amount owed under this contract. Creditor will waive the disposal fee if youlease or financea new vehicle to replace this vehicle and the contract isassigned to Assignee. You also must pay to the Creditor an excess mileage charge, if any, as set forth in this contract. You also must pay to the Creditor thecost of allrepairs to the vehicle that are the result of excess wear and use, as set forthin Paragraph C. You must take the vehicle toa place selected by the Creditor for inspection no later than15 days prior to the final payment due date. After the inspection, if you decide to sell the vehicle to the Creditor, you must give the vehicle to the Creditor no later thanthe finalpayment due date. At that time,you must also give the Creditor a title, which shows no liens other than the Creditor‘s lien, transferring ownership to the Creditor or a person selected by the Creditor. After the inspection, it you decide not to sell the vehicle to the Creditor, you must immediately contact the Creditor and inform the Creditor whether you want torefinance the last installment payment. C. Damage Repair: If your last installment payment under this contract is a balloon payment and you sell the vehicle back to the Creditor under Paragraph B, you are responsible for repairs of all damage to the vehicle that are not theresult of normal wear and use. These repairs include, but are not limited to, those necessary to: (i) replace any tire not part of a matching set of four or any tire which has less than 118 inch of remaining tread; (ii) repair all mechanical defects; (iii) repairor replace alldented, scratched, chipped, rusted or mismatched body panels, paint or vehicle identification items; all dented, scratched, rusted, pitted, broken or missing trim and grill work; all scratched, cracked, pitted or broken glass; all faulty window mechanisms; all broken or burned out lights; ail electrical malfunctions; allinterior rips, stains,burns or worn areas; and all damage which would be covered by collision or comprehensive insurance whether or not such insurance is actually in force. It you have not made the repairsbefore inspection of the vehicleunder Paragraph B, you willowe the estimated costs of such repairs. evenif the repairs are not made prior to your sale of the vehicle to the Creditor. If you disagree with the estimated costs of repairs, you may have the repairs made at your expense prior to your sale of the vehicle to the Creditor. e-17642-Sl (JUN 15) e-17642-BSI Page 4 of 8 Customer Completed Copy - ! Customer Completed Copy - D. Security Interest: To secure all that you owe on this contract and all your promises in it, you give Creditor a security interest in: o the motor vehicle including all accessories and parts now or later attached and any other goods financed in this contract. I all insurance proceeds and other proceeds received for the motor vehicle; , 0 any insurance policy, service contract or other contract financed by Creditor and any proceeds of those contracts; and 0 any refund of charges included in this contract for insurance, or service contracts. The security interest also secures any extension or modification of this contract. The certificate of title must show Creditor's security interest in the motor vehicle. E. WAIVER lF NOTICE IF INTENT TO ACCELERATE AND NOTICE OF ACCELERATION: You give up (waive) your common law rightsto receive notice of intent to accelerate and notice of acceleration. This means that you give up the right to receive notice that we intend to demand that you pay all that you owe on the contract at once (accelerate), and notice that we have accelerated. F. Use and Care of Motor Vehicle: You must take care of the vehicle and obey all laws in using it,You will not sell or transfer the motor vehicle without Creditor's written permission. if you do sellor transfer the motor vehicle, this will not release your from your obligationsunder this contract, and Creditor may charge you a transfer of equity fee of $25.00 ($50 for a heavy commercial vehicle). You must keep it free from the claims of others. If athird party takes alien or claimagainst or possession of the motor vehicle, Creditor may pay the third party any cost required to free the motor vehicle from all liens or claims. Any amount paid by Creditor to the third party will be added to the amount you owe.You will not use or permit the use of the vehicle outside of the United States, except for up to 30 days in Canada or Mexico, without the prior written consent of the Creditor. G. Seller's Disclaimer's of Warranties: If the vehicle is of a type normally used for personal use and the Creditor, or the peteldtuog eielnocv pue emi Copy — UCC Non—Authoritative Copy vehicle's manufacturer, extends a written warranty or service contract covering the vehicle within 90 days from the date of this contract, you get implied warranties of merchantability and fitness for a particular purpose covering the vehicle. Otherwise, you understand and agree that there are no such implied warranties, except as provided by state law. H. Agreement to Keep Motor Vehicle Insured: You must insure yourself and the Creditor against loss or damage to the vehicle. The insurance must cover loss due to collision, fire, and theft.The insurance must be for the actual cash value of the vehicle.A $100 deductible is required unless the Creditor approves another amount. The type and amount of insurance must be approved by the Creditor.Whether of not the vehicle is insured, you must pay for it if it is lost, damaged, or destroyed. ' I.Physical Damage Insurance Proceeds: You must use physicaldamage insurance proceeds to repair themotor vehicle,unless Creditor agrees otherwise in writing. However, if the motor vehicle is a total less, you must use the insurance proceeds to pay what you owe the Creditor. You agree that the Creditor can use any proceeds from insurance to repair the motor vehicle, or the Creditor may reduce what you owe under this contract. If your insurance on the motor vehicle or credit i
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Ruling
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.
Aug 30, 2024 |CVG21-0000494
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.Case Number: CVG21-0000494Tentative Ruling: Plaintiff Members 1st Credit Union moves for an award of attorney’s fees in the amount of$23,666.00 pursuant to Civil Code Section 1717. In reviewing the file, the Court previously noted defects withthe pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, theCourt requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefingwhich has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees areaddressed below.Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, theEstate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of theEstate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicatethe sum of assets and liabilities of a decedent. Bright’s Estate v. Western Air Lines (1951) 104 Cal.App.2d 827,828. An estate can neither sue nor be sued. Id. at 829. For these reasons, Plaintiff was required to file suit againstthe Personal Representative of the Estate but did not do so.Additionally, the Estate was purportedly served on May 3, 2021 on Virgina E. Smith as the “Registered Agent”of the Estate. Estates do not have Registered Agents. The Court takes judicial notice of the filing in the Estateof Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of theEstate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the PersonalRepresentative at the time of service and had no authority to act on behalf of the Estate. A fact made clear byVirgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as PersonalRepresentative. The answer was made on behalf of herself as “an individual.” It also pointed out on multipleoccasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yetbeen appointed.Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smithas the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personaljurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improperservice of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus anyensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representativewas never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity asthe Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf andas the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, asan individual, and as against the Estate. Generally, one who is not named in the complaint is not a properdefendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in thecomplaint. Id. at 1146. A voluntary appearance is a waiver of any failure to name that party in the complaint.Farmers & Merchants Nat. Bank of Los Angeles v. Peterson (1936) 5 Cal.2d 601, 606. The Court finds that Ms.Smith voluntarily appeared as the Personal Representative at the trial on October 11, 2023, and therefore waivedany defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for thelack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived anydefects in service. A general appearance is the equivalent to service of the summons. Dial 800 v. Fesbinder(2004) 118 Cal.App.4th 32, 52. “A general appearance operates as a consent to jurisdiction of the person,dispensing with the requirement of service of process, and curing defects in service.” Id.; citing 2 Witkin, Cal.Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756). “A general appearance occurs when the defendant takespart in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates inan action in some manner which recognizes the authority of the court to proceed. It does not require any formalor technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry ofa judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Courtto proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, theCourt finds that Ms. Smith appeared as the personal representative and made a general appearance excusing theneed for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as thePersonal Representative as the Estate. The judgment is valid.Attorney’s Fees: By stipulation of the parties, the Court has already issued a judgment that attorney’s fees arerecoverable by Plaintiff. The attorney’s fees are based on a contract which was executed by the Decedent.Therefore, attorney’s fees will only be awarded against the Estate.Civil Code § 1717 entitles a prevailing party on a contract to “reasonable attorney’s fees” as fixed by the court.Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP § 1033.5(c)(5). “[T]he feesetting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expendedmultiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A courtassessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” (Ketchumv. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward bythe court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factorsthat may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved,2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) thecontingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324,348. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is thebest judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995)9 Cal.4th 738, 752.Here, the Declaration of Laurel Adams provides the evidentiary basis for the attorney’s fees. Ms. Adamsidentifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for thiscommunity and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that areasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and areview appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, theCourt finds the number of hours requested to be reasonable.
Ruling
TJG/Summitt Development Corporation vs. North State Grocery, Inc.
Aug 28, 2024 |22CV-0200775
TJG/SUMMITT DEVELOPMENT CORPORATION VS. NORTH STATE GROCERY, INC.Case Number: 22CV-0200775This matter is on calendar for review regarding trial re-setting. The litigation is at issue. The Court designatesthis matter as EXEMPT from the case disposition time standards. The matter is ready to be re-set for a court trial.An appearance is necessary on today’s calendar to provide the Court with available trial dates.
Ruling
DOWNARD VS. GOLDMAN
Aug 28, 2024 |CVCV20-0195408
DOWNARD VS. GOLDMANCase Number: CVCV20-0195408This matter is on calendar for review regarding status of sale. The Court notes that Defendant filed a Motion forEntry of Final Judgment on Accounting and for Distribution of Proceeds of Sale that was denied without prejudiceon August 5, 2024 due to a lack of notice. The Court is therefore aware that the property has sold. Defendanthas not refiled the motion with proper notice, but it appears from the Petitioner’s Status Report filed August 22,2024 that a stipulation for entry of judgment is being considered by the parties. The matter is continued toMonday, October 28, 2024 at 9:00 a.m. in Department 63 for status of the case. No appearance is necessaryon today’s calendar.
Ruling
SYSLEE SCHAEL RAWLINSON, ET AL. VS AMERICAN HONDA MOTOR COMPANY, INC., ET AL.
Aug 27, 2024 |24TRCV00280
Case Number: 24TRCV00280 Hearing Date: August 27, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B SYSLEE SCHAEL RAWLINSON, et al., Plaintiffs, Case No.: 24TRCV00280 vs. [Tentative] RULING AMERICAN HONDA MOTOR CO., INC., Defendant. Hearing Date: August 27, 2024 Moving Parties: Defendant American Honda Motor Co., Inc. Responding Party: Plaintiffs Syslee Schael Rawlinson and Taiyo Nakama Rawlinson (1) Demurrer to First Amended Complaint (2) Motion to Strike The Court considered the moving, opposition, and reply papers. RULING The demurrer is SUSTAINED WITH TWENTY DAYS LEAVE TO AMEND as to the fifth cause of action for fraudulent concealment in the FAC. The motion to strike is GRANTED WITH TWENTY DAYS LEAVE TO AMEND as to claim for punitive damages. BACKGROUND On January 26, 2024, Syslee Schael Rawlinson and Taiyo Nakama Rawlinson filed a complaint against American Honda Motor Co., Inc. for (1) violation of Civil Code §1793.2(d), (2) violation of Civil Code §1793.2(b); (3) violation of Civil Code §1793.2(a)(3); (4) breach of implied warranty of merchantability; and (5) fraudulent inducement concealment. On May 14, 2024, plaintiffs filed a FAC. LEGAL AUTHORITY Demurrer When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747. Strike The court may, upon a motion . . . , or at any time in its discretion, and upon terms it deems proper: (a) Strike any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP §436(b). CCP §431.10 states: (a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense. (b) An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (c) An immaterial allegation means irrelevant matter as that term is used in Section 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437. DISCUSSION Demurrer Defendant American Honda demurs to the fifth cause of action for fraudulent inducement-concealment in the FAC on the ground that it fails to allege sufficient facts to constitute a cause of action. The FAC alleges that on May 30, 2020, plaintiffs entered into a warranty contract with defendant Honda regarding a 2020 Honda Odyssey. FAC, ¶6. The warranty contract contained various warranties, including bumper-to-bumper warranty, powertrain warranty, emission warranty. Id., ¶7. As to repair history, plaintiffs allege that on May 1, 2023, with 30,000 miles on the odometer, plaintiffs presented the subject vehicle to defendants authorized repair facility with various concerns, including the sensing system, electrical system, and/or the engine with the vehicles rearview camera malfunctioning with a cloudy display and/or rearview camera not available message will display and the radio randomly switches stations. Also the gauge model goes blank and/or randomly reboots on its own when driving on the freeway with nothing in front or near the vehicle. Id., ¶23. On December 21, 2023, with 39,825 miles, plaintiffs presented the vehicle to defendants authorized repair facility with various concerns, including the engine, transmission, and/or sensing system with the vehicles lane departure turns on when plaintiffs is driving on the freeway in their own lane and pulled out of the correct lane. The vehicle also intermittently displays brake on dash when driving or parking when plaintiff has their foot on the brake and makes a loud grinding noise. Id., ¶24. Thereafter, the vehicle continued to experience symptoms of the sensing defects despite defendants representation that the defects were repaired. Id., ¶25. 5th cause of action for fraudulent inducement - concealment The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of fact. Hambridge v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162 (citation omitted). [T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant was under a legal duty to disclose them. OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835, 845. Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal. App. 4th 803, 831. Rules of specifically pleading how, when, where, to whom, and by what means, misrepresentations were communicated, is intended to apply to affirmative misrepresentations, and not to concealment. See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal. App. 4th 1356, 1384. Under this cause of action, the FAC alleges that the subject vehicle contains a defective computerized driver-assisting safety system, which includes adaptive cruise control, lane departure warnings and steering inputs, and autonomous braking (meant to avoid front-end collisions by detecting vehicle speed and the speed of other vehicles and objects on the road and can automatically deploy the brakes to avoid a front-end collision). Honda calls this computerized driver-assisting safety system, Honda Sensing. It relies on a radar sensor, an interior camera, along with computers and other technology. The autonomous braking system within Honda Sensing is called Collision Mitigation Braking System (or CMBS). FAC, ¶63. The Sensing system suffers from a defect that causes the various subsystems within it to malfunction dangerously while the vehicles are driven. This defect impedes the systems ability to reliably and accurately detect and appropriately respond to conditions on the roadway, causing malfunctions of the adaptive cruise control, the lane-departure system, and CMBS. Id., ¶64. As a result of the Sensing defect, Honda vehicles brake abruptly even though there is nothing around that risks a collision, warning lights display without explanation, brakes deploy seemingly randomly, and parts of the system malfunction. These malfunctions pose a safety risk. Additionally, the speed of the vehicle may abruptly change and warnings may distract the driver. Id., ¶65. Hondas response has been that no repairs are available. Id., ¶66. Defendant argues that plaintiffs fail to plead that it concealed or suppressed a material fact regarding the Sensing Defect that plaintiffs relied on in purchasing the subject vehicle. Also, defendant argues, plaintiffs fail to establish a duty to disclose, as no fiduciary relationship exists, and defendant did not have exclusive knowledge nor engage in active concealment. Defendant further argues that plaintiffs fail to plead defendants intent to deceive plaintiffs. Also, defendant contends, plaintiffs cannot plausibly claim to be unaware of the concealed fact as the operative facts underlying the alleged sensing defect were publicly available through multiple sources. Defendant further asserts that the claim is barred by the economic loss doctrine and that the claim is preempted by federal law. Defendant further argues that the claim is barred by the three-year statute of limitations, asserting that the statute of limitations began to run when plaintiffs acquired the vehicle in May 2020 and expired three years later in May 2023. Defendant also argues that plaintiffs have not sufficiently pled delayed discovery or tolling, In opposition, plaintiffs argue that they have pled all the elements sufficiently. Plaintiffs further contend that the Sensing Defect is a material fact, which poses safety risks and arose during the warranty period. Also, plaintiffs assert, defendant had exclusive knowledge of material facts. Plaintiffs further argue that a transactional relationship is not required under California law for the manufacturer to have a duty to disclose. Plaintiffs also argue that the claim is not preempted by federal law. Plaintiffs further assert that the FAC does not affirmatively show a statute of limitations defense as to the first through fourth causes of action. The Court rules as follows: The Court finds that the allegations are sufficient to support the elements at the pleading stage for fraudulent concealment but, as addressed below, the cause of action appears to be barred by the statute of limitations. Plaintiffs allege that defendant concealed or suppressed a material fact. See FAC, ¶¶71, 74, 81, 82. Plaintiffs allege that defendant had a duty to disclose the fact. See FAC, ¶80. See OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835, 859 (Under California law, a vendor has a duty to disclose material facts not only to immediate purchasers, but also to subsequent purchasers when the vendor has reason to expect that the item will be resold.); see also Khan v. Shiley Inc. (1990) 217 Cal. App. 3d 848, 858 ([A] manufacturer of a product may be liable for fraud when it conceals material product information from potential users.). Plaintiff alleges that defendant intentionally concealed the fact with an intent to defraud. See FAC, ¶81. The Court can infer that defendant placed the vehicle into the stream of commerce, presumably for profit. Plaintiffs were unaware of the fact and they would not have purchased the vehicle, had they known of such defects and sustained damages. See FAC, ¶82. It appears though that the three-year statute of limitation has run on the fifth cause of action and plaintiffs have not sufficiently alleged delayed discovery or tolling as argued by defendant. In their opposition, plaintiffs do not address the statute of limitations as to the fifth cause of action. Accordingly, the demurrer is SUSTAINED WITH LEAVE TO AMEND. Motion to Strike Defendant requests that the Court strike the prayer for punitive damages. The motion is GRANTED WITH LEAVE TO AMEND in light of the ruling on the demurrer to the fraudulent concealment cause of action. ORDER The demurrer is SUSTAINED WITH TWENTY DAYS LEAVE TO AMEND as to the fifth cause of action for fraudulent concealment in the FAC. The motion to strike is GRANTED WITH TWENTY DAYS LEAVE TO AMEND as to claim for punitive damages. Plaintiff is ordered to keep adequate time records to reflect time devoted to addressing the fraudulent concealment claim, as it is not time devoted to a Song-Beverly claim and hence attorney fees attributable to this non-Song-Beverly cause of action is not compensable under that act. Defendant is ordered to give notice of ruling.
Ruling
XUAN HU, AN INDIVIDUAL VS RBL HOLDING LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Aug 28, 2024 |24STCV06373
Case Number: 24STCV06373 Hearing Date: August 28, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: August 28, 2024 TRIAL DATE: NOT SET CASE: Xuan Hu v. RBL Holding LLC et al. CASE NO.: 24STCV06373 MOTION TO BE RELIEVED AS COUNSEL MOVING PARTY: Attorney Alexander Chen, counsel for Plaintiff. RESPONDING PARTY(S): No response on eCourt as of 08/23/24 STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is a lemon law action filed on March 14, 2024. Plaintiff purchased a 2020 McLaren 720S on September 16, 2023 which Plaintiff alleges contained numerous electrical and engine defects as the result of previous after-market modifications. Attorney Alexander Chen moves to be relieved as counsel for Plaintiff. TENTATIVE RULING: Attorney Alexander Chen moves to be relieved as counsel for Plaintiff. Moving counsel filed all three required forms (MC-051, -052, and -053) and filed proofs of service with the Court. Moving counsel served the motion on Defendant by mail and confirmed the address is current by conversation (MC-052 ¶ 3(b).) In general, an attorney may withdraw with or without cause as long as the withdrawal would not result in undue prejudice to the clients interest i.e., counsel cannot withdraw at a critical point in the litigation, because that would prejudice client, but can withdraw otherwise. (Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.) The court has discretion to deny an attorneys request to withdraw where the withdrawal would work an injustice or cause undue delay in the proceeding, but the courts discretion in this area is one to be exercised reasonably. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.) Here, trial in this matter is not yet set, and the only other hearing on calendar is a case management conference set to coincide with this hearing. The risk of prejudice to Plaintiff is therefore low. Moving Counsel states that withdrawal is necessary because Plaintiff has ceased responding to counsel. (MC-052 ¶ 2.) Given the low risk of prejudice to the parties at this juncture, the Court finds that Moving Counsel has demonstrated good cause for withdrawal. Accordingly, Attorney Alexander Chens Motion to be Relieved as Counsel for Plaintiff is GRANTED. This ruling is conditioned on Moving Counsel serving notice of the ruling on all parties and filing proof of service with the Court. IT IS SO ORDERED. Dated: August 28, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
Duran, Jack Jr. et al vs. Magee, Peter J et al
Sep 09, 2024 |S-CV-0050785
S-CV-0050785 Duran, Jack Jr. et al vs. Magee, Peter J et al** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue. Need responsive pleading,default or dismissal as to Defendant(s): Pete Magee & Associates; TSG SystemsAdditionally, no proof of service has been filed as to Defendant(s): Pete Magee &Associates; TSG Systems
Ruling
Wm compactor Solutions, Inc., a corporation and successor in interest by merge with greenlead compaction Inc vs. Hidden Creek, a KF LP, a limited partnership et al
Aug 29, 2024 |CU23-03007
CU23-03007Motion CompelTENTATIVE RULINGIf Discovery has been complied with, Plaintiff, the moving party, may request that themotion to compel be taken off calendar.If Discovery has not been complied with, the parties are to appear.
Ruling
Regions Bank, an Alabama State Bank Successor by merger to Ascentium Capital LLC vs. Shrinka Investments LLC, a California Limited Liability Co. et al
Aug 31, 2024 |CU23-00998
CU23-00998Plaintiff’s Motion for Summary JudgmentTENTATIVE RULINGPlaintiff’s proof of service indicates that notice of the instant motion was mailed to thelaw firm Chassman & Seelig, LLP at 1250 Sixth Street, Santa Monica, CA 90401 onApril 24, 2024. Chassman & Seelig was relieved as defense counsel on September 27,2023 upon the filing of proof of service on Defendants of the court’s order grantingwithdrawal. Service on Defendants’ former counsel is not effective service onDefendants.Plaintiff’s motion is denied without prejudice. Page 1 of 3
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