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This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 00:53:42 (UTC).

JAIME FARIAS VS GUILERMO CUERVO RAMIREZ ET AL

Case Summary

On 03/29/2017 JAIME FARIAS filed a Contract - Other Contract lawsuit against GUILERMO CUERVO RAMIREZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY KEOSIAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6254

  • Filing Date:

    03/29/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY KEOSIAN

 

Party Details

Plaintiffs and Petitioners

FARIAS JAIME

JF MOTORS

Defendants and Respondents

CUERVO MOTORS

BONILLA JOSE MIGUEL

DOES 1 TO 10

UPEQUIE VALENTINA ESCAMILLA

RAMIREZ GUILLERMO CUERVO

CUERVO ANDRES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

HUMPHREY J. SCOTT

Defendant and Respondent Attorneys

BRENDON BARTON

BARTON BRENDON KAY

SKLAR JULIA

 

Court Documents

STIPULATION SHORTENING NOTICE PERIOD REQUIRED FOR MOTION FOR SUMMARY JUDGMENT BROUGHT BY DEFENDANT ANDRES CUERVO; ORDER

9/7/2018: STIPULATION SHORTENING NOTICE PERIOD REQUIRED FOR MOTION FOR SUMMARY JUDGMENT BROUGHT BY DEFENDANT ANDRES CUERVO; ORDER

Substitution of Attorney

11/28/2018: Substitution of Attorney

Notice of Ruling

12/3/2018: Notice of Ruling

Stipulation and Order

12/18/2018: Stipulation and Order

REQUEST FOR ENTRY OF DEFAULT OF COURT JUDGMENT

11/13/2017: REQUEST FOR ENTRY OF DEFAULT OF COURT JUDGMENT

REQUEST FOR ENTRY OF DEFAULT OF COURT JUDGMENT

11/13/2017: REQUEST FOR ENTRY OF DEFAULT OF COURT JUDGMENT

PROOF OF SERVICE SUMMONS

12/8/2017: PROOF OF SERVICE SUMMONS

SUMMONS

3/29/2017: SUMMONS

PROOF OF SERVICE SUMMONS

5/22/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

5/22/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

5/22/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

5/22/2017: PROOF OF SERVICE SUMMONS

POINT AND AUTHORITIES IN SUPPORT DEFENDANT'S DEMURRER AND NOTICE OF DEMURRER AND GENERAL AND SPECIAL DEMURRER TO PLAINTIFFS' COMPLAINT

6/1/2017: POINT AND AUTHORITIES IN SUPPORT DEFENDANT'S DEMURRER AND NOTICE OF DEMURRER AND GENERAL AND SPECIAL DEMURRER TO PLAINTIFFS' COMPLAINT

Unknown

6/1/2017: Unknown

DEFENDANT ANDRES CUERVO'S ANSWER TO UNVERIFIED COMPLAINT

6/21/2017: DEFENDANT ANDRES CUERVO'S ANSWER TO UNVERIFIED COMPLAINT

Unknown

6/23/2017: Unknown

OPPOSITION TO DEMURRER

8/18/2017: OPPOSITION TO DEMURRER

Minute Order

9/6/2017: Minute Order

36 More Documents Available

 

Docket Entries

  • 01/24/2019
  • Request for Refund / Order; Filed by Guillermo Cuervo Ramirez (Defendant); Valentina Escamilla Upequie (Defendant); Jose Miguel Bonilla (Defendant)

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  • 01/15/2019
  • at 09:00 AM in Department 61; Jury Trial - Not Held - Continued - Stipulation

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  • 01/07/2019
  • at 09:00 AM in Department 61; Final Status Conference - Not Held - Continued - Stipulation

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  • 01/02/2019
  • at 3:00 PM in Department 61; Court Order

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  • 01/02/2019
  • Order (Order Approving the Stipulation for Continuance of the Date Set for Trial); Filed by Guillermo Cuervo Ramirez (Defendant); Valentina Escamilla Upequie (Defendant); Jose Miguel Bonilla (Defendant)

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  • 01/02/2019
  • Minute Order ((Court Order)); Filed by Clerk

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  • 12/18/2018
  • Stipulation and Order (for Continuance of the Date set for Trial); Filed by Guillermo Cuervo Ramirez (Defendant); Valentina Escamilla Upequie (Defendant); Jose Miguel Bonilla (Defendant)

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  • 12/03/2018
  • at 09:00 AM in Department 61; Hearing on Motion to Deem Request for Admissions Admitted - Held

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  • 12/03/2018
  • Notice of Ruling (Ruling Re Defendant Andres Cuervo's Motion for Order Deeming Admitted Truth of Matters Specified in First Set of Requests for Admission Served on Plaintiff Jaime Farias); Filed by Clerk

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  • 12/03/2018
  • Minute Order ((Hearing on Defendant Andres Cuervo's Motion for Order Deeming...)); Filed by Clerk

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61 More Docket Entries
  • 05/22/2017
  • PROOF OF SERVICE SUMMONS

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  • 05/22/2017
  • PROOF OF SERVICE SUMMONS

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  • 05/22/2017
  • PROOF OF SERVICE SUMMONS

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  • 04/12/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 04/12/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/12/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 04/12/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 03/29/2017
  • SUMMONS

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  • 03/29/2017
  • Complaint; Filed by Jaime Farias (Plaintiff)

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  • 03/29/2017
  • COMPLAINT: 1) FRAUD ;ETC

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Tentative Rulings

Case Number: BC656254    Hearing Date: August 03, 2020    Dept: 61

Defendant Andres Cuervo’s Motion for Judgment on the Pleadings is GRANTED with leave to amend as to the third cause of action for conversion and DENIED as to all other causes of action.

MOTION FOR JUDGMENT ON THE PLEADINGS

A party may move for a judgment on the pleadings as to an entire complaint or as to a particular cause of action in a complaint. (Code Civ. Proc. § 438 subd. (c)(2)(A).) If a defendant moves for a judgment on the pleadings and argues that a complaint does not state facts sufficient to constitute a cause of action against that defendant, then the court should grant a defendant’s motion only if the court finds as a matter of law that the complaint fails to allege facts sufficient to constitute the cause of action. (See id., § 438 subd. (c)(1)(B)(ii); see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.)

“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.” (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321.) When considering a motion for judgment on the pleadings, the court not only should assume that all facts alleged in the SAC are true but also should give those alleged facts a liberal construction. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516, 101 Cal.Rptr.2d 470, 12 P.3d 720.) In particular, the court should liberally construe the alleged facts “‘with a view to attaining substantial justice among the parties.’ [Citation.]” (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232, 44 Cal.Rptr.2d 352, 900 P.2d 601.)

FRAUD

Cuervo argues that the Complaint pleads liability against him on the grounds that Cuervo Motors is merely a fictitious name under which Cuervo conducts business. (Complaint ¶ 5.) In fact, Cuervo argues, Cuervo Motors is the dba of Ankevina Brothers Inc. (Demurrer at p. 7.) Thus Cuervo argues that because the factual predicate for the claim against him is factually false, no claims have been stated against him. (Demurrer at p. 7.)

This argument is unpersuasive. The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is not necessary for Andres Cuervo to be associated with Cuervo Motors for the fraud claim to survive. The elements of fraud are still pleaded even if Cuervo is unaffiliated with Cuervo motors: Ramirez misrepresented facts to Farias concerning their agreement, knowing they were false, intending to induce Farias’s reliance and execution of the agreement, causing Farias to so rely, and taking money from him — pursuant to an alleged conspiracy involving Cuervo. The precise identity of the dba at issue is not an essential element of the claim.

Cuervo also argues that the fraud claim is not pleaded with particularity. (Demurrer at pp. 7–8.) Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) But the allegations are pleaded with specificity here: They were made by Ramirez in 2013 at the Cuervo Motors facility. (Complaint ¶ 10.) It is further alleged that Ramirez made these representations on behalf of other defendants, including Cuervo, who also knew the representations to be false. (Complaint ¶¶ 11–13.) Where the representations themselves are well-pleaded, further allegations regarding conspiracy need not be delineated specifically, as the behind-the-scenes motivations and dealings of defendants lie more properly in their knowledge than a plaintiff’s. (See Tarmann v. State Farm. Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.)

The motion is therefore DENIED to this cause of action.

BREACH OF CONTRACT

Cuervo argues that no claim for breach of contract has been stated because Cuervo is not affiliated with Cuervo Motors, and as such no contracts entered into on behalf of that business are connected to him. (Motion at p. 8.)

No demurrer is proper on this basis. It is true that Cuervo Motors is pleaded as the dba of defendants, including Cuervo. But the viability of the contract claim is not predicated upon Defendants’ having officially registered the name under which they allegedly conducted their business. A dba is not the only way for two or more individuals to carry on business together. (See Eng v. Brown (2018) 21 Cal.App.5th 675, 693–94 [describing partnerships], internal quotation marks omitted.) And it is indeed pleaded that Cuervo Motors was a joint venture, and as such members of the venture may be liable for the contracts of other venturers. (Complaint ¶ 17; See Medak v. Cox (1970) 12 Cal.App.3d 70, 76–77 [upholding contract claim against members of joint venture where executed by one of the members].)

Cuervo also argues that the statute of limitations has run on this contract claim, citing the two-year limitations period for an oral contract. (Motion at p. 6.) But they base their argument on the date of contract formation, rather than the dates of the respective breaches, which are alleged to have occurred thereafter, albeit at an unspecified time. (Complaint ¶ 19.)

Accordingly the motion to this cause of action is DENIED.

CONVERSION

Cuervo argues that no conversion claim has been stated because the Complaint alleges nothing more than a contractual right of payment. (Demurrer at p. 8.)

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451.) “[A] mere contractual right of payment, without more, will not suffice” to state a claim for conversion. (Id. at p. 452.) Farias levies no argument in opposition.

Accordingly the motion is GRANTED with leave to amend as to the third cause of action.

CHECK FRAUD

Cuervo argues that the Complaint states no facts to establish the violation of Civil Code § 1719 as to him, as there are no allegations that Cuervo wrote any checks or participated in same. (Demurrer at p. 9.) But this is once again to ignore that Cuervo acted as part of a joint venture (and fraudulent scheme) with Ramirez and other defendants, and that the joint venture in question passed unfunded checks to Farias. (Complaint ¶ 11.) As an alleged participant in this joint venture, Cuervo may be liable under Civil Code § 1719.

The motion is DENIED as to the fourth cause of action.

UNFAIR COMPETITION

Cuervo finally argues that Farias’s UCL cause of action fails because it is derivative of the other causes of action, which are defective for the reasons stated. (Demurrer at p. 9.) The motion is DENIED as to this cause of action.

Case Number: BC656254    Hearing Date: December 10, 2019    Dept: 61

Defendants Ramirez and Jose Miguel Bonilla’s Motions to Compel Responses to Special Interrogatories and Requests for Production, Set One, form Plaintiff Jaime Farias are GRANTED. Sanctions are awarded against Farias and his counsel in the amount of $1,240.

  1. MOTIONS TO COMPEL

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Ramirez and Bonilla argue that they served Special Interrogatories and Requests for Production upon Farias on May 7, 2019, and that despite their efforts to secure responses, no responses have been served. (Sklar Decl. ¶¶ 3–5.)

In opposition, Farias contends that he will provide responses before hearing in this matter. (Opposition at p. 2.)

If code-compliant and objection-free responses are not provided by the hearing on this motion, the motions will be GRANTED.

  1. SANCTIONS

The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).)

Ramirez and Bonilla ask for $1,560.00 in sanctions with each motion, representing six hours of work at $250 per hour plus a $60 filing fee for each motion, or a total request of $6,240.00. The court awards $1,240 in sanctions against Farias and his counsel.

Defendants to provide notice.

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