This case was last updated from Los Angeles County Superior Courts on 03/28/2019 at 05:20:13 (UTC).

CESAR SOSA VS. PRECISE FIT LIMITED

Case Summary

On 12/23/2013 CESAR SOSA filed a Contract - Debt Collection lawsuit against PRECISE FIT LIMITED. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARGARET M. BERNAL, RAUL A. SAHAGUN, ROGER ITO, HOWARD L. HALM, LORI ANN FOURNIER, MASTER CALENDAR and MARGARET MILLER BERNAL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3719

  • Filing Date:

    12/23/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARGARET M. BERNAL

RAUL A. SAHAGUN

ROGER ITO

HOWARD L. HALM

LORI ANN FOURNIER

MASTER CALENDAR

MARGARET MILLER BERNAL

 

Party Details

Plaintiff

SOSA CESAR

Defendants

PRECISE FIT LIMITED-ONE AN LLC

ROE 7; TRUE NAME MICHELLE GALINDO

ROE 1; TRUE NAME MADISON RESOURCE FUNDING

ROE 3; TRUE NAME ELLIOT SPEISER

ROE 6; TRUE NAME ZOILA GALINDO

ROE 4; TRUE NAME CESAR SOSA SR.

ROE 8; TRUE NAME PRECISE FIT LIMITED ONE

Cross Plaintiffs and Cross Defendants

HERNANDEZ RICHARD AN INDIVIDUAL

THE SOSA CORPORATION A NEVADA

Cross Defendants

ZOILA GALINDO

HERNANDEZ RICHARD AN INDIVIDUAL

THE SOSA CORPORATION A NEVADA

ELLIOT SPIESER

PFI E-PROCUREMENT LLC A DELAWARE

SOSA CESAR SR. AN INDIVIDUAL

GALINDO TONY AN INDIVIDUAL

WORLD WIDE STAFFING AN UNKNOWN ENTITY

SOSA HECTOR

LITEHOSTING LLC DBA LHC SOLUTIONS A

LISA ZAMBA

MADISON RESOURCE FUNDING CORP

47 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

MALLEY GUINEVERE

WALTON LEWIS RICHARD JR

SINGLETARY JEFFREY M.

Defendant and Cross Defendant Attorneys

SNELL & WILMER

LAW MARC KATZMAN

LAW CONTI

MARC KATZMAN LAW

KIM JAE H. LAW OFFICES OF

MURPHY PEARSON BRADLEY & FEENEY

CONTI LAW

EINBINDER STUART J. LAW OFFICES OF

HERNANDEZ PRISCILLA

SINGLETARY JEFFREY MICHAEL

STANTON KATHRYN MICHELLE

TORP LYNDSEY A.

Cross Defendant and Cross Plaintiff Attorneys

EINBINDER STUART J. LAW OFFICES OF

SPALA GERALD A.

PRISCILLA HERNANDEZ ESQ.

SNELL & WILMER LLP

4 More Attorneys Available

 

Court Documents

Other -

11/12/2015: Other -

Request for Judicial Notice

11/12/2015: Request for Judicial Notice

Minute Order

1/12/2016: Minute Order

Unknown

1/12/2016: Unknown

Unknown

2/26/2016: Unknown

Substitution of Attorney

4/25/2017: Substitution of Attorney

Notice of Ruling

10/17/2017: Notice of Ruling

Request for Dismissal

11/13/2017: Request for Dismissal

Minute Order

11/16/2017: Minute Order

Unknown

1/4/2018: Unknown

Notice of Change of Address or Other Contact Information

3/2/2018: Notice of Change of Address or Other Contact Information

Complaint

7/3/2018: Complaint

Answer

9/19/2018: Answer

Request for Entry of Default / Judgment

9/25/2018: Request for Entry of Default / Judgment

Order

10/10/2018: Order

Order

11/13/2018: Order

Opposition

1/2/2019: Opposition

Reply

2/22/2019: Reply

181 More Documents Available

 

Docket Entries

  • 03/27/2019
  • Order (re: ex parte hearing of 3/27/19); Filed by CESAR, SOSA, Sr. (Cross-Defendant)

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  • 03/27/2019
  • Minute Order ( (Hearing on Ex Parte Application to Compel the Deposition of ...)); Filed by Clerk

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  • 03/26/2019
  • Ex Parte Application (Ex Parte Application to Compel the Deposition of Cross-Complainant Richard Hernandez); Filed by CESAR SOSA (Plaintiff)

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  • 03/19/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 03/18/2019
  • Request for Dismissal (Without Prejudice as to Hector Sosa, from Cross-Complaint filed by Precise Fit-One, LLC ONLY); Filed by PRECISE FIT LIMITED-ONE, LLC (Cross-Complainant)

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  • 03/06/2019
  • at 08:30 AM in Department C; Nunc Pro Tunc Order

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  • 03/06/2019
  • Certificate of Mailing for (Minute Order (Nunc Pro Tunc Order) of 03/06/2019); Filed by Clerk

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  • 03/06/2019
  • Minute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

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  • 03/05/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Mandatory Settlement Conference (MSC) - Not Held - Continued - Stipulation

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  • 03/05/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Order to Show Cause Re: (name extension) (hearing regarding sanctions to be imposed against Counsel who did not appear on 10/16/17 and verification that Case Number BC661261 is at issue) - Not Held - Continued - Court's Motion

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884 More Docket Entries
  • 02/18/2014
  • Cross-Compl fld - Summons Issued; Filed by PRECISE FIT LIMITED-ONE, LLC dba PFI (Defendant)

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  • 02/18/2014
  • Summons; Filed by PRECISE FIT LIMITED-ONE, LLC dba PFI (Defendant)

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  • 02/18/2014
  • Summons Filed; Filed by Attorney for Cross-Complainant

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  • 02/18/2014
  • Amended Answer (-FIRST AMENDED ANSWER TO CESAR SOSA'S COMPLAINT ); Filed by Attorney for Defendant

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  • 02/10/2014
  • Answer to Complaint Filed; Filed by Attorney for Defendant

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  • 02/10/2014
  • Answer; Filed by PRECISE FIT LIMITED-ONE, LLC dba PFI (Defendant)

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  • 12/23/2013
  • Complaint filed-Summons Issued; Filed by Attorney for Plaintiff

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  • 12/23/2013
  • Notice of Case Management Conference; Filed by Clerk

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  • 12/23/2013
  • Complaint filed-Summons Issued; Filed by CESAR SOSA (Plaintiff)

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  • 12/23/2013
  • Notice-Case Management Conference; Filed by Clerk

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Tentative Rulings

Case Number: VC063719    Hearing Date: July 29, 2020    Dept: G

VC063719

Cesar Sosa vs Precise Fit Limited

Ex Parte hearing July 29, 2020

TENTATIVE RULING

DENY.  

CRC 3.1113(e) provides, "A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit.

Hernandez already filed the MSJ, which is set for 8/13/20.  He did not seek leave PRIOR to filing an MSJ that exceeded the page limitations.  This request is procedurally defective.  

Case Number: VC063719    Hearing Date: March 05, 2020    Dept: SEC

SOSA v. PRECISE FIT LIMITED

CASE NO.: VC063719

HEARING: 03/05/2020

JUDGE: OLIVIA ROSALES

#9

TENTATIVE ORDER

Cross-Defendants CESAR SOSA JUNIOR; and THE SOSA CORPORATION’s Motion for Summary Judgment is DENIED. The alternative Motion for Summary Adjudication is GRANTED in part, MOOT in part, and DENIED in part.

Moving Party to give Notice.

On February 10, 2020, Cross-Complainant RICHARD HERNANDEZ (“Hernandez”) filed a document entitled “Cross-Complaint”, and his Answer to Sosa Jr.’s Cross-Complaint. Hernandez failed to obtain leave of court to file any new “Cross-Complaint”. If the cross-complaint is filed before or at the same time as the answer, it may be filed as a matter of right—i.e., without leave of court. (CCP §428.50(a).). However, here, Hernandez already filed a Cross-Complaint. In fact, Hernandez’s Sixth Amended Cross-Complaint is currently at issue before this Court. In the absence of stipulation, leave of Court must be obtained in order for Hernandez to file a Seventh Amended Cross-Complaint. As leave of Court was required, and Hernandez did not seek such leave, Hernandez’s Cross-Complaint FILED on February 10, 2020 is hereby STRICKEN.

Sosa Jr.’s Motion for Summary Judgment was originally scheduled to be heard on December 12, 2019. Hernandez’s Opposition papers were timely filed on December 2, 2019. As the parties are aware, this Court continued the subject Motion for Summary Judgment on two separate occasions. Notably, Hernandez has not sought or been given leave to file any Supplemental Opposition briefs.

Notwithstanding, on February 19, 2020, Hernandez filed the following documents: (1) Richard Hernandez’s Supplemental Opposition to Cesar Sosa, Jr. and Sosa Corporations’ Motion for Summary Judgment/Summary Adjudication on Richard Hernandez’s Cross-Complaint; (2) Richard Hernandez’s Supplemental Index and Supporting Exhibits in Opposition to the Sosa’s Motion for Summary Judgment/Summary Adjudication (which contains approximately 311 pages of “supplemental exhibits”); and (3) Richard Hernandez’s Supplemental Separate Statement of Disputed and Additional Material Facts in Opposition to Motion for Summary Judgment Filed by Cross-Complainants/Cross-Defendants Cesar Sosa, Jr. and the Sosa Corporation. Despite the continuances, this Court did not give the parties leave to file any supplemental briefs. The Court will not consider Hernandez’s arguments and evidence in his Supplemental Opposition papers. Cross-Defendants CESAR SOSA JUNIOR; and THE SOSA CORPORATION’s Objections to RICHARD HRENANDEZ’s: (1) Supplemental Memorandum in Opposition to MSJ; (2) Supplemental Separate Statement; and (30 Supplemental Compendium of Exhibits in Opposition to MSJ are SUSTAINED.

Hernandez’s request for a continuance of the instant Motion due to outstanding depositions is DENIED. Under CCP §437c(h), the party opposing summary judgment must provide declarations establishing that evidence essential to the Opposition may exist but cannot be currently presented. Counsel for Hernandez’s Declaration, submitted concurrently with the Opposition, fails to meet this burden. The Court finds that there is no basis for the requested continuance.

The Court reminds counsels of the terms of the General Order Re Mandatory Electronic Filing for Civil issued by Judge Daniel J. Buckley on November 5, 2018. The Order states, in pertinent part: “Regardless of the time of electronic filing, a printed courtesy copy (along with proof of electronic submission) is required for the following documents… G B. Pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more… F. Motions For Summary Judgment/Adjudication.” (Gen. Order (d)(4)(A -G).) As of March 3, 2020, no Courtesy Copy of the Opposition papers (or Supplemental Opposition Papers) have been received by this Court.

This action was filed on December 23, 2013. Cross-Defendants CESAR SOSA, JR. and THE SOSA CORPORATION (collectively “Sosa Jr.”) moves for summary judgment, or alternatively summary adjudication of each of the claims in Hernandez’s Sixth Amended Cross-Complaint (“6AXC”).

The 6AXC, filed on June 10, 2019, asserts the following causes of action: (1) Breach of Fiduciary Duties; (2) Fraud and Deceit; (3) Negligence; (4) Negligent Misrepresentation; and (5) Intentional Interference with Contractual Relations.

First Cause of Action – Breach of Fiduciary Duties

The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of a fiduciary duty; and (3) damage proximately resulting from the breach. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811., 820.)

Sosa Jr. argues that he is entitled to summary adjudication of the first cause of action where Hernandez fails to allege the existence of a fiduciary relationship between Sosa Jr. and Hernandez. Sosa Jr. argues specifically that the 6AXC alleges that Sosa Sr.—not Sosa Jr.—owed Hernandez the duty to prepare tax returns. This argument lacks merit. Having reviewed the allegations carefully, the Court finds that the 6AXC alleges that Hernandez hired Sosa Jr., Sosa Sr. and Hector Sosa to prepare Hernandez’s personal tax returns for the tax years 2006-2010. (FAXC ¶55.)

However, as argued by Sosa Jr., no fiduciary duty exists for tax preparer. In Opposition, Hernandez fails to submit any authority indicating that the relationship between a tax preparer and his client is fiduciary in nature when it comes to tax preparation. Where no fiduciary duty has been identified, this cause of action fails as a matter of law. The motion for summary adjudication of the first cause of action is granted.

Second and Fourth Causes of Action – Fraud and Deceit and Negligent Misrepresentation

“The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” [Citation.] The tort of negligent misrepresentation does not require scienter or intent to defraud. [Citation.] It encompasses ‘[t]he assertion, as a fact of that which is not true, by one who has no reasonable ground for believing it to be true.’ [Cite.], and ‘[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true.’ [Citations.]”(Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173-174.)

The motion for summary adjudication as to the second and fourth causes of action is denied. In Opposition, Hernandez submits evidence which shows that Sosa Jr. used Hernandez’s signature stamp and signed documents with Hernandez’s signature; posed as Hernandez using an email account with Hernandez’s name; and forged Hernandez’s name and signature on a purported Settlement Release Agreement. (See Hernandez’s RSSMF No. 23.) Moreover, Hernandez submits evidence to show that Sosa Jr. made certain misrepresentations about filing, amending, or reducing Hernandez’s returns. (Id.; Richard Hernandez Depo: p. 599.) In light of the liberality associated in construing evidence submitted in Opposition to a Motion for Summary Judgment, the Court finds that Hernandez has sufficiently raised triable issues of material fact as to whether Sosa Jr. made certain false representations with the intent to defraud Hernandez.

The Court notes that Hernandez indicates that he was unaware of any purported misrepresentations until 2013. (Hernandez Decl., ¶¶4-5.)

The Court also notes that The California Tax Preparation Act, Bus. & Prof. Code §22250 does not contain an express preemption clause. Moreover, the Court finds that there are other bases for Cesar Jr.’s fraud liability aside from the preparation of taxes.

Third Cause of Action – Negligence

On September 9, 2019, the demurrer to this cause of action was SUSTAINED without leave to amend as to THE SOSA CORPORATION . Therefore, the Motion for Summary Adjudication of the third cause of action as to THE SOSA CORPORATION is MOOT. (See Order, 09/09/19.)

The Court notes that the third cause of action is for common law negligence, not professional negligence. The 6AXC alleges an agreement between Hernandez and the SOSA DEFENDANTS for the preparation and filing of Hernandez’s personal tax returns. Sosa Jr. argues that this cause of action fails where he owed no duty of care to file Hernandez’s taxes.

It is well-established that the filing of tax returns is a non-delegable duty. “[T]he taxpayer has a personal, nondelegable duty to file the tax return when due.” (U.S. v. Kroll (1977) 547 F.2d 393, 396.)

Where the “duty” element has not been established, the motion for summary adjudication of the third cause of action is granted.

Fifth Cause of Action – Intentional Interference with Contractual Relations

In order to state a claim for intentional interference with contractual relations, a plaintiff or cross-complainant must allege the following elements: (1) plaintiff had a valid and existing contract with a third party; (2) defendant had knowledge of the contract; (3) defendant committed intentional acts designed to interfere with or disrupt the contract; (4) the defendant’s actions caused actual interference with or disruption of the relationship; and (5) damages resulted. (Pacific Gas & Elec. Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

In Opposition, Hernandez submits his declaration indicating that he had an existing employment contract with PFI, that Sosa Jr. used Hernandez’s name and credit to disrupt that employment contract, that Hernandez was investigated by PFI as a result, and that Hernandez has suffered damages. (See Hernandez Decl., ¶29.) In light of the liberality associated in construing evidence submitted in Opposition to a Motion for Summary Judgment, the Court finds that Hernandez has sufficiently raised triable issues of material fact to withstand summary adjudication. The motion for summary adjudication of the fifth cause of action is denied.

The Court notes that Hernandez indicates that he was unaware of any purported misrepresentations until 2013. (Hernandez Decl., ¶¶4-5.)

PFI Settlement

Lastly, the Court notes that Hernandez’s claims are not barred by the PFI Settlement Agreement. On April 20, 2016, PFI, Don Zamba; Carl Chadwell; Tony Galindo; Litehosting, LLC; Lisa Zamba; and Madison Resource Funding (collectively “PFI parties”) entered into a Settlement and Release Agreement with Richard Hernandez. The PFI parties agreed to dismiss and release its claims against Hernandez and pay Hernandez the total of $750,000, and Hernandez agreed to dismiss and release his claims against the PFI parties and relinquish his ownership interest in PFI back to PFI upon receipt of the $750,000. Cesar Sosa, Sr., Cesar Sosa, Jr., and The Sosa Corporation were NOT parties to the subject Settlement Agreement.

Hernandez’s Objections to the Separate Statement

“Objections to the separate statement are somewhat misplaced, as the statement itself is not evidence, nor is the counsel’s characterization of the underlying evidence cited therein.  Also, Hernandez’s objections are not in proper form (not a separate document). (C.R.C. 3.1354,)  

Sosa, Jr. and The Sosa Corporation’s Evidentiary Objections

1. Overruled

2. Overruled

3. Overruled

4. Overruled

5. Overruled

6. Overruled

7. Overruled

8. Overruled

9. Sustained as to “It was stated that because of my close relationship with the Sosa Parties…that I was involved in their dealings.” Otherwise overruled.

10. Overruled

11. Overruled

12. Sustained

13. Sustained

14. Sustained

15. Sustained

16. Overruled

17. Overruled

18. Overruled

19. Overruled

20. Overruled

21. Overruled

22. Sustained

23. Overruled

24. Overruled

25. Overruled

26. Overruled

27. Sustained

28. Sustained

29. Overruled

30. Overruled

31. Overruled

32. Overruled

33. Overruled

34. Sustained. “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” (CRC Rule 3.1113(l).) Here, Hernandez’s request for judicial notice is not made in a separate document as required by CRC Rule 3.1113(l).)

35. Overruled

36. Overruled

37. Overruled

38. Overruled

39. Overruled

Case Number: VC063719    Hearing Date: January 23, 2020    Dept: SEC

SOSA v. PRECISE FIT LIMITED

CASE NO.:  VC063719

HEARING:  01/23/2020

JUDGE: OLIVIA ROSALES

#10

TENTATIVE ORDER (AMENDED)

I. Cross-Defendants CESAR SOSA JUNIOR; and THE SOSA CORPORATION’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is CONTINUED to Thursday, March 5, 2020 at 1:30 p.m. in Dept. SE-C.

II. Cross-Complainant/Cross-Defendant RICHARD HERNANDEZ’s Motion to Enforce Settlement is DENIED.  CCP § 664.6.

Moving Party to give Notice.

CESAR SOSA, JR. and THE SOSA CORPORATION’s Request for Judicial Notice is GRANTED as to the existence of the documents, but not as to any hearsay statements contained therein. Cal. Ev. Code §452.

On April 20, 2016, PFI, Don Zamba; Carl Chadwell; Tony Galindo; Litehosting, LLC; Lisa Zamba; and Madison Resource Funding (collectively “PFI parties”) entered into a Settlement and Release Agreement with Richard Hernandez. (See Hernandez Decl., Ex. A.) The PFI parties agreed to dismiss and release its claims against Hernandez and pay Hernandez the total of $750,000, and Hernandez agreed to dismiss and release his claims against the PFI parties and relinquish his ownership interest in PFI back to PFI upon receipt of the $750,000. Importantly, Cesar Sosa, Sr., Cesar Sosa, Jr., and The Sosa Corporation were not parties to the subject Settlement Agreement.

In the instant Motion, Hernandez requests that the Court hold the PFI parties in breach of Paragraph 8(d) of the 2016 Settlement Agreement with Hernandez “by allowing the SOSAS to pursue their cross-action against HERNANDEZ.” (See Proposed Order 2, ¶1.)  Paragraph 8(d) states, “Effective upon Hernandez’s receipt of the Settlement Amount…PFI, D. Zamba, Chadwell, Galindo, LHC, and L. Zamba for themselves and on behalf of their respective current and former agents, representatives, attorneys, successors, assigns, shareholders, officers, directors, employees, parent, subsidiary, or affiliated corporations, and predecessors, and successors in interest, hereby fully and forever release and discharge Hernandez…from any and all Claims arising on or before the Effective Date or based upon any related to any acts, conduct, omissions, dealings, interactions, communications or representations made on or before the Effective Date….” (Hernandez Decl., Ex. A.) Hernandez contends that since Cesar Sosa, Jr. was a former employee of PFI and The Sosa Corporation was a former affiliated corporation of PFI, that the Sosa Parties were barred under the Settlement Agreement from pursuing any claims against Hernandez. Consequently, Hernandez is requesting this Court to compel the PFI parties to cause the dismissal and release of claims that the Sosa Parties have asserted against Hernandez.

Pursuant to CCP §664.6, the Court has authority to enforce the terms of a settlement agreement when the agreement is sufficiently definitive to enable the trial court to give it an exact meaning. (Weddington v. Flick (1998) 60 Cal.App.4th 793, 812.)

The motion to enforce the settlement agreement against PFI is denied.  Here, PFI has undisputedly fully performed under the terms of the Settlement Agreement. PFI is not in breach of the Settlement Agreement. It appears as though the party(s) in breach, if any, would be the Sosa Parties—not PFI. The Court notes that the PFI parties are not parties to the Settlement Agreement, and any basis for liability would be as a former employee/affiliated corporation of PFI. Hernandez has not identified any terms of the Settlement Agreement which would empower this Court to find that PFI breached its Settlement Agreement by failing to restrain separate third parties (the Sosas) from filing claims against Hernandez.

Case Number: VC063719    Hearing Date: December 26, 2019    Dept: SEC

SOSA v. PRECISE FIT LIMITED-ONE, LLC

CASE NO.:  VC063719

HEARING: 12/26/19

JUDGE MARGARET M. BERNAL

#4

TENTATIVE ORDER

I. Cross-Complainant RICHARD HERNANDEZ’s Demurrer to Cross-Defendants CESAR SOSA, JR. and the SOSA CORPORATION’s Cross-Complaint is OVERRULED.

II. Cross-Complainant RICHARD HERNANDEZ’s Motion for CCP §128.7 Sanctions is DENIED.

Opposing Party to give Notice

This action was filed on December 23, 2013. CESAR SOSA, JR. and The SOSA CORPORATION’s (collectively “Sosa”) Subject Cross-Complaint was filed against RICHARD HERNANDEZ on September 25, 2019.

The Cross-Complaint asserts the following causes of action: (1) Conversion; (2) Constructive Trust; (3) Accounting; (4) Breach of Fiduciary Duty; and (5) Resulting Trust.

Demurrer:

CCP §428.50 states: “(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of action.” CCP §426.50 states, “A party who fails to plead a cause of action…whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint…if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”

On September 25, 2019, CESAR SOSA, JR. and THE SOSA CORPORATION filed its Cross-Complaint against RICHARD HERNDANDEZ, on the same date that their Answer to RICHARD HERNANDEZ’s 6AXC was filed. Leave of Court was not required prior to the filing of CESAR SOSA, JR. and THE SOSA CORPORATION’s Cross-Complaint against RICHARD HERNANDEZ.

Cross-Complainant HERNANDEZ (“Hernandez”) demurs to each cause of action pursuant to CCP §430.10(e) and (f). Hernandez specifically argues that the Cross-Complaint fails to set forth cognizable claims because “the SOSAS ‘secretly’ settled with PFI for the same claims they are still trying to proceed against HERNANDEZ when the SOSAS no longer have standing, HERNANDEZ was a PFI member for all times relevant and should have been included in that ‘secret’ Confidential Settlement Agreement; [¶] The SOSAS new and remaining allegation against HERNANDEZ is based solely upon the SOSAS oral representation which is directly contradicted by the overwhelming evidence in this case already before this Court….SOSAS’ claims are frivolous and without merit.” (Notice 2:5-17.)

Uncertainty

Demurrers on grounds of uncertainty are strictly construed and will not be sustained unless the complaint is so bad that the defendant/moving party cannot reasonably respond. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Here, the Cross-Complaint is not so uncertain that Hernandez cannot reasonably respond. The demurrer is not sustained on the basis of uncertainty.

First Cause of Action – Conversion

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are: (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451-452.)

Here, SOSA adequately alleges as follows: “Cross-Complainants at all times relevant herein were the true and rightful owner of a forth (40) percent interest in PFI, which HERNANDEZ held in trust for them. [¶] HERNANDEZ packaged Cross-Complainants’ 40% voting interest as part of his agreement with PFI whereby he received $750,000, an amount t he was never entitled to and Cross-Complainants portion of which Hernandez, to this date, has never returned even with written demands to do so. [¶] Cross-Complainants at no time…provided any consent for this transfer, or for HERNANDEZ’s retention of the ill-gotten gains he received. [¶] To this date, Cross-Complainants have yet to recover from HERNANDEZ any of the money that he received from transferring their interest, and has been harmed through this withholding of their rightful use and enjoyment of the property.” (Cross-Complaint ¶¶23-26.) These factual allegations are sufficient to withstand demurrer.

The arguments raised by SOSA involve factual determinations inappropriately decided at this stage in the litigation. SOSA asks this Court to look beyond the four walls of the operative pleading at issue, and to weigh evidence. This is procedurally improper, and not the function of demurrer. The demurrer to the first cause of action is overruled.

Second Cause of Action – Constructive Trust

The elements for a cause of action of constructive trust are as follows: (1) a wrongful act; (2) specific, identifiable property or property interest, or excuse for inability to describe it; (3) plaintiff’s right to the property; and (4) defendant has title thereto. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76.)

SOSA adequately alleges a claim for constructive trust. (See Cross-Complaint ¶30.) In his demurrer, HERNANDEZ asks the Court to look at evidence outside the four walls of the operative complaint. The demurrer to the second cause of action is overruled.

Third Cause of Action – Breach of Fiduciary Duty

To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing the existence of a fiduciary duty owed to that plaintiff, a breach of that duty and resulting damage. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.)

The demurrer to the third cause of action is overruled. SOSA has adequately alleged a cause of action for breach of fiduciary duty. (Cross-Complaint ¶¶39-41.) The arguments raised by HERNANDEZ are inappropriately resolved at the demurrer stage.

Fourth Cause of Action – Resulting Trust

“…the relationship between resulting trustee and beneficiary arises where one, in good faith, acquires title to property belonging to another. The law implies an obligation on the part of the one in whom title has vested to hold the property for the owner’s benefit and eventually convey it to the owner. The trustee has no duties to perform, no trust to administer, and no purpose to pursue except the single purpose of holding or conveying the property according to the beneficiary’s demands.” (Bainbridge v. Stoner (1940) 16 Cal.2d 423, 428.)

In support of the instant demurrer, HERNANDEZ argues, “the SOSAS first amended cross complaint is fatally defective as the SOSAS will not be able to meet the burden by clear and convincing evidence. The evidence in this matter shows the contrary that HERNANDEZ property held his voting interest.” (Demurrer 10:25-27.) Once again, this argument does not attack any identifiable pleading deficiencies in the Cross-Complaint. The arguments raised by HERNANDEZ are inappropriately decided on a demurrer. The demurrer to the fourth cause of action is overruled.

Motion for CCP §128.7 Sanctions:

A party’s motion for sanctions may not be filed until 21 days after it is served. (CCP §128.7(c)(1).) This is known as the so-called safe harbor provision. If an offending pleading is not withdrawn during the CCP §128.7 “safe harbor” period, the motion for sanctions may then be filed. (Malovec v. Hamrell (1999) 70 Cal.App.4th 434, 440.)

CCP §128.7(c) provides: “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may…impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

Here, the instant motion was filed in compliance with CCP §128.7(c)(1).

On the merits, HERNANDEZ argues that SOSAS Cross-Complaint against HERNANDEZ was filed improperly for an improper purpose, to harass and/or cause delay, burden and increase expense and cost of litigation. HERNANDEZ argues that the Cross-Complaint contains claims and legal contentions that are not supported by the evidence or existing law.

By filing a pleading an attorney is certifying that “all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or cause unnecessary delay or needleless increase in the cost of litigation. (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. (4) The denials of factual contentions are warranted, or the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” (CCP §128.7(b).)

To the extent that the Motion for Sanctions asks the Court to strike the Cross-Complaint, the Motion is Moot, as the Demurrer to the Cross-Complaint is OVERRULED. The remaining issue is HERNANDEZ’s request for monetary sanctions. Here, the essential basis for the Motion for Sanctions is that the Cross-Complaint lacks evidentiary support, and is therefore frivolous or harassing. However, the Court finds that the current state of the evidence reflects the existence of triable issues of material fact that cannot be resolved on a CCP §128.7 Motion. The Court cannot conclude that the filing and litigation of SOSAS’ Cross-Complaint is frivolous or in bad faith. The Motion is denied.

If warranted, the Court may award to the party prevailing on the Motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. (CCP §128.7(c)(1).)

Cross-Complainant/Cross-Defendant RICHARD HERNANDEZ and his counsel of record are ORDERED to pay Defendants/Cross-Complainants CESAR SOSA, JR.; the SOSA CORPORATION; and their counsel of record sanctions in the amount of $2,250.00 ($450 x 5) no later than 30 days from the Court’s issuance of this Order. This date may be extended pursuant to agreement of the parties.

Case Number: VC063719    Hearing Date: December 24, 2019    Dept: SEC

SOSA v. PRECISE FIT LIMITED—ONE, LLC

CASE NO.: VC063719

HEARING: 12/24/19

TENTATIVE ORDER

Cross-Defendant Precise Fit Limited – One, LLC’s motion to compel Cesar Sosa Jr. and The Sosa Corporation’s compliance with agreement to produce documents is OFF-CALENDAR. Cross-Defendant was dismissed from the Cross-Complaints on 9/25/19.

Moving Party to give NOTICE.

Case Number: VC063719    Hearing Date: December 12, 2019    Dept: SEC

SOSA v. PRECISE FIT LIMITED-ONE, LLC

CASE NO.: VC063719

HEARING: 12/12/19

JUDGE OLIVIA ROSALES 

#8

TENTATIVE ORDER

Cross-Defendants CESAR SOSA JUNIOR; and THE SOSA CORPORATION’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is CONTINUED to Thursday, January 23, 2020 at 1:30 p.m. in Dept. SE-C.

Moving Party to give Notice.

On December 10, 2019, Counsel for Cross-Defendants called and informed the Clerk in Dept. SE-C that an untimely Reply was forthcoming. As of December 11, 2019, no such Reply has been filed or lodged with the Court. In the interests of justice, and in order to ensure that the Opposing Party has ample time to review any Reply, this matter is continued as indicated above.