Related Contentin Suffolk County
Case
NEWREZ LLC v. ALLAMBY, LATASHA A. et al
Nov 10, 2023 |Heckman Torres, Hon. Susan B. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |628317/2023
Case
PS Funding, Inc. v. Islip 2 LLC et al
Nov 06, 2023 |Andrews J-Comm |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |627566/2023
Case
NATIONSTAR MORTGAGE LLC v. DAVIS, CARL C. et al
Sep 15, 2023 |Heckman Torres, Hon. Susan B. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |623013/2023
Case
THE BANK OF NEW YORK MELLON v. JAILAL-MANCINI, GAYLE et al
Sep 25, 2023 |Heckman Torres, Hon. Susan B. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |623858/2023
Case
US BANK TRUST NATIONAL ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR RCF 2 ACQUISITION TRUST v. EGNER, BRENDA et al
Oct 26, 2022 |Heckman Torres, Hon. Susan B. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |203973/2022
Case
DEUTSCHE BANK v. BATTAGLIA, DEAN
Sep 26, 2011 |Santorelli, Hon. Joseph A. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |011927/2011
Case
FREEDOM MORTGAGE CORPORATION v. LUDEMAN, PAUL et al
Feb 23, 2024 |Foreclosure Pending Justice, |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |604793/2024
Case
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR ARGENT SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-M1, v. BOTT, NANCY A. et al
Apr 11, 2024 |Quinlan, Hon. Robert |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |609281/2024
Case
BETHPAGE FEDERAL CREDIT UNION v. COOKE, EDWARD J. et al
Sep 19, 2023 |Whelan, Hon. Thomas F. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |623462/2023
Ruling
BASSETT UNIFIED SCHOOL DISTRICT VS DELTERRA REAL ESTATE SERVICES, INC. DBA DELTERRA GROUP
Sep 09, 2024 |21PSCV00399
Case Number: 21PSCV00399 Hearing Date: September 9, 2024 Dept: G Defendant Del Terra Real Estate Services, Inc.s Motion for Summary Judgment or Adjudication Respondent: Plaintiff Bassett Unified School District TENTATIVE RULING Defendant Del Terra Real Estate Services, Inc.s Motion for Summary Judgment or Adjudication is DENIED. BACKGROUND This is a breach of contract action arising from an agreement to provide construction management services. In April 2015, Plaintiff Bassett Unified School District (BUSD) entered into a written agreement with Defendant Del Terra Real Estate Services, Inc. (Del Terra) in which Del Terra agreed to provide construction management services for BUSDs new and existing construction projects. In 2018 and 2019, the agreement between BUSD and Del Terra was extended. Subsequently, BUSD alleges Del Terra breached the agreement by overbilling BUSD and failing to maintain proper records. On May 17, 2021, BUSD filed a complaint against Del Terra and Does 1-100, alleging the following causes of action: (1) breach of contract, (2) breach of fiduciary duty, (3) negligence, (4) intentional misrepresentation, (5) constructive fraud, and (6) negligent misrepresentation. On September 17, 2021, BUSD filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On January 4, 2022, the Court sustained a demurrer by Del Terra to BUSDs fourth and fifth causes of action without leave to amend. On February 3, 2022, Del Terra filed a cross-complaint against BUSD and Roes 1-100, alleging the following causes of action: (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, and (3) declaratory relief. On March 25, 2024, Del Terra filed the present motion for summary judgment or adjudication. A hearing on the motion is set for September 9, 2024, with a post-mediation status conference/trial setting conference on February 10, 2025. REQUESTS FOR JUDICIAL NOTICE BUSD requests the Court take judicial notice of a news release by the Los Angeles County District Attorneys Office and election results published by the Los Angeles County Registrar-Recorder/County Clerk. Because the Court may take judicial notice of the official acts of this state and its entities pursuant to Evidence Code section 452, subdivision (c), BUSDs requests are GRANTED. EVIDENTIARY OBJECTIONS BUSDs evidentiary objections are OVERRULED as to Nos. 1, 2, 3, 4, 5, and 6. The Court declines to considers Del Terras evidentiary objections as they have not been made in compliance with Rule 3.1354, subdivision (b) of the California Rules of Court. ANALYSIS Del Terra moves for summary judgment or adjudication on the grounds that BUSDs first cause of action for breach of contract, second cause of action for breach of fiduciary duty, third cause of action for negligence, and sixth cause of action for negligent misrepresentation are barred by the applicable statute of limitations. In the alternative, Del Terra claims the second cause of action, third cause of action, and sixth cause of action are barred as a matter of law by the economic loss rule. Last, Del Terra claims the second cause of action is also barred as a matter of law because Del Terra did not owe a fiduciary duty to BUSD. For the following reasons, the court DENIES Del Terras motion. Legal Standard A motion for summary judgment or adjudication provides courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It must be granted if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) Statutes of Limitations Del Terra argues they are entitled to summary judgment or adjudication of BUSDs first cause of action for breach of contract, second cause of action for breach of fiduciary duty, third cause of action for negligence, and sixth cause of action for negligent misrepresentation on the grounds that they are time-barred. The Court disagrees. Legal Standard The statute of limitations for a cause of action for breach of a written contract is four years. (Code Civ. Proc., § 337, subd. (a).) For a cause of action based on breach of fiduciary duties, the statute of limitations is also four years unless the breach involves fraud or professional negligence. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.) The statute of limitations for negligence is two years while the statute of limitations for fraud is three years (Code Civ. Proc., §§ 338, subd. (d); 339, subd. (1).) A statute of limitations generally begins to run at the time when the cause of action is complete with all of its elements. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) But an exception to this rule is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements. (Ibid, quoting Norgart, supra, 21 Cal.4th at p. 398.) Because [t]here are no hard and fast rules for determining what facts or circ*mstances will compel inquiry by the injured party and render him chargeable with knowledge, accrual of a statute of limitations is generally a question of fact. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 597; Fox, supra, 35 Cal.4th at p. 810 [Resolution of the statute of limitations issue is normally a question of fact.].) But whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law. (Snow v. A.H. Robbins Co. (1985) 165 Cal.App.3d 120, 128.) Discussion In the FAC, BUSD alleges the following. In April 2015, BUSD and Del Terra entered into an agreement in which Del Terra agreed to provide program and construction management services for BUSDs existing projects and new projects relating to BUSDs Measure V bond program. (FAC, ¶ 4.) In 2019, Del Terra amended the agreement to include additional fees. (FAC, ¶ 17.) In addition to generally alleging that Del Terra breached its professional obligations and legal obligations pursuant to the 2015 Agreement and 2019 Amendment (FAC, ¶ 25(a), (b)), BUSD alleges two types of breach or wrongdoing. First, BUSD alleges Del Terra breached its obligations pursuant to the 2015 Agreement and 2019 Amendment by (1) failing to properly bill and submit invoices for program and construction management services (FAC, ¶ 25(c)-(e)), (2) requesting the 2019 Amendment for additional compensation when Del Terra has failed to complete the projects required by the 2015 Agreement (FAC, ¶ 31(h)), (3) invoicing BUSD for services based on an unapproved 36-month schedule without regard for the actual level of work performed (FAC, ¶ 31(i)), (4) improperly invoicing project costs as construction costs to increase Del Terras fees (FAC, ¶ 31(j)), and (5) hiring consultants as additional services to perform unnecessary work or work that was to be completed by Del Terra (FAC, ¶ 31(k).) Second, BUSD alleges Del Terra breached its obligations pursuant to the 2015 Agreement and 2019 Amendment by (1) failing to obtain proper certification of its various projects from the Division of the State Architect (FAC, ¶ 25(f)), (2) failing to properly maintain records and documents for Del Terras projects (FAC, ¶ 25(g), 26), and (3) failing to provide documents for BUSDs review and audit (FAC, ¶ 25(h)). BUSD alleges Del Terras billing practices resulted in BUSD overpaying Del Terra for services provided and performed. (FAC, ¶ 27.) BUSD also alleges Del Terras handling of documents and failure to obtain certifications resulted in BUSD incurring additional costs to obtain the missing certificates, organize its records, and recreate missing documentation. (FAC, ¶ 27.) In this case, Del Terra argues BUSDs causes of action are time-barred because BUSD discovered or had reason to discover Del Terras alleged misconduct more than four years ago in 2016. (Motion, p. 13:15-28.) In support of this argument, Del Terra relies on the following facts. On May 11, 2016, Ian M. Guajardo, BUSDs director of facilities, development, and transportation, sent an email to Dr. Antoine Hawkins, BUSDs chief business officer, that raised concerns about Del Terras method of operations within the school district and how they are handling the business side of the modernization program. (Defendants Separate Statement (DSS), ¶ 22, 24, 27.) Guajardo recommended that BUSD review the procedures and practices for the control of bond funds and future modernization projects. (DSS, ¶ 28.) But while these facts suggest Guajardo was aware there were issues with Del Terras billing, a review of the actual email suggests otherwise. The email states as follows in its entirety: Antoine, I have a few concerns regarding Del Terras method of operation within the school district in how they are handling the business side of the modernization program. All bids, notices of completions, budget review, expenditures, purchase orders/requisitions, board agenda items, notice to proceed to come for the Facilities / Business office. In my opinion, theres no check-in-balance in how the bond project is being handled? For example, all sealed bids should be sent to the business office on the perspective due dates and opened in a public forum by the business staff (not the facilities or Del Terra). All reference checks and verifications of the bid packets must by handled by District staff not Del Terra. This can and will be a problem if one of the contractors makes an official protest regarding their bid packet or the handling of the bids. In my opinion, we must look over all of the procedures regarding the past practices that have taken place and install new practices for the best interest of the district. This will be the only way to control the bond funds and future modernization projects. This can be a problem if the auditors are reviewing the financial records and other documentation that could be a negative finding. Please let me know if you have any questions or comments. Thank you. Ian M. Guajardo. (MSJ, Ex. E, Depo Ex. 132.) Although the email discusses concerns with how Del Terra is handling the business side of BUSDs modernization programs, it appears the crux of the email is to suggest better oversight from BUSD to prevent any issues that may arise if there is an audit or challenge to bidding results by a contractor. Nowhere in the email does Guajardo claim BUSD is engaging in improper billing or mishandling records as alleged in the FAC. And while Dr. Hawkins and Guajardo subsequently discussed Guajardos concerns, neither the separate statement nor the evidence cited establishes the specifics of what they discussed. (DSS. ¶ 30; MSJ, Ex. E, p. 84:5-85:7.) On July 28, 2016, Guajardo sent an email to Dr. Hawkins that expressed concerns over billing issues with Del Terra. (DSS, ¶ 31.) Guajardo reported that BUSD received a request for payment from SVA Architects that lacked supporting documentation, including a previous contract or board-approved agenda item. (DSS, ¶ 32.) The text of the email reads as follows: Dr. Antoine, I need to bring a billing issue to your attention regarding SVA architects that we have received a request for payment. It appears that this work was performed at Bassett HS for the HVAC unit/equipment that was installed as part of the modernization program. The problem that we have discovered there is NO contract, board approved agenda item, addendum or anything else regarding the extra services that was provided or agreed upon for this work to proceed. Jerry has emails indicating the approval for this additional work but no signed agreement or board agenda supporting the topic. Barbara and I had a telephone conference discussion with Jerry regarding this topic. He has emails from the previous Superintendent agreeing with the additional work/equipment regarding this project. Barbara has checked her previous emails and there is no support information for the approved additional work? It is my opinion, the district should not pay the requested amount of $43,393.75 without supporting documentation from Del Terra and SVA architects. I have attached a copy of the statement from SVA Architect and highlighted the area in yellow for your review and comments. Until this matter has been resolved I asked Barbara not to encumber the requested amount of $43,393.75. Barbara may add additional information regarding this topic? We can discuss this topic next week. Thank you. Ian M. Guajardo. (MSJ, Ex. E, Depo Ex. 7.) Like the first email, the second email does not actually accuse Del Terra of any billing irregularities. Instead, it merely advises the delay of payment until Del Terra and SVA Architects provide additional documentation. Del Terra notably fails to provide any additional evidence that establishes if this billing issue was cleared up. This is an important omission as if Del Terra had subsequently provided the proper documentation for this payment request, this email would not have put BUSD on notice of Del Terras billing issues. These facts alone are barely sufficient to put a reasonable person on inquiry notice of the allegations that Del Terra was billing for uncompleted work and failing to properly maintain records. Ultimately, the Court finds whether they are sufficient to place BUSD on inquiry is question of fact on which reasonable minds may disagree and not appropriate for resolution in a motion for summary judgment. Furthermore, as noted above, the FAC alleges Del Terra also committed breaches of the 2019 Amendment and Del Terra fails to contradict or address these allegations with any facts and evidence. The failure to address a material allegation in the pleadings by a moving party defendant is fatal to a motion for summary judgment or adjudication on that cause of action or issue. (See Teselle v. McLoughlin¿(2009) 173 Cal.App.4th 156, 171.) This is because the allegations in the pleading frame the material facts at issue and the failure to address these allegations constitutes a failure to establish an absence of triable material facts. (Id., at p. 172-173.) And because the 2019 Amendment was enacted in June or July of 2019 (FAC, ¶ 17), any alleged breaches of it would be within two years of when this present action was filed in May 2021. Accordingly, Del Terra cannot establish BUSDs causes of action are time barred. Economic Loss Rule Del Terra next contends they are entitled to summary judgment or adjudication of BUSDs second cause of action for breach of fiduciary duty, third cause of action for negligence, and sixth cause of action for negligent misrepresentation on the grounds that they are barred by the economic loss rule. The court disagrees. Legal Standard Pursuant to the economic loss rule, there is no recovery in tort for negligently inflicted purely economic losses, meaning financial harm unaccompanied by physical or property damage. (Sheen v. Wells Fargo Bank. N.A. (2022) 12 Cal.5th 905, 922 (Sheen).) It functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties. (Id., at p. 922.) Tort damages have been permitted in contract cases where . . . the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551-552 (Erlich).) Discussion In this case, Del Terra contends BUSDs damages for breach of fiduciary duty, negligence, and negligent misrepresentations arise of BUSDs contract with Del Terra and involve nothing more than purely economic losses. (Motion, p. 18:5-16.) In opposition, BUSD contends Del Terras answer to the FAC fails to allege the economic loss rule as a defense to these causes of action with the exception of BUSDs cause of action for negligence. (Del Terra Answer to FAC, ¶ 22.) But this contention fails as the economic loss rule is not a defense to a cause of action. Rather, the existence of damages other than purely economic loss is an element of a plaintiff's common law cause of action. (Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1215.) As to the second cause of action for breach of fiduciary duty, BUSD contends the economic loss rule does not apply because the FAC alleges intentional conduct. (Opp., p. 28:10-14.) Notably, it alleges Del Terras breaches of fiduciary duty were committed willingly, fraudulently, and recklessly. (FAC, ¶ 31.) And Del Terra has failed to demonstrate an absence of triable material facts on this issue as its separate statement does not include any facts addressing this issue beyond pointing to the fact that the Court sustained their demurrer to BUSDs separate causes of action for fraud. (DSS, ¶ 14.) Thus, the economic loss rule does not bar BUSDs breach of fiduciary duty claim. With regards to the sixth cause of action for negligent misrepresentation, BUSD contends negligent misrepresentation is a distinct cause of action from negligence and not subject to the economic loss rule. (Opp., p. 28:15-19.) In support of this contention, BUSD cites to a federal district court case where the court found negligent misrepresentation was not barred by the economic loss rule because it was a species of fraud. (Whittington v. KidsEmbrace, LLC (C.D. Cal. July 19, 2021, No. CV 21-1830-JFW(JPRx)) 2021 WL 3076646, *6, citing Kalitta Air, L.L.C. v. Central Texas Airborne Systems, Inc. (9th Cir. 2008) 315 F3d.Appx. 603, 607 [We hold that California law classifies negligent misrepresentation as a species of fraud, [Citation], for which economic loss is recoverable.].) In reply, Del Terra fails to point to any contrary authority. Thus, the economic loss rule does not bar BUSDs negligent misrepresentation claim. Last, BUSD contends the economic loss rule does not apply because the 2015 Agreement and 2019 Amendment were contracts for professional services. (Opp., p. 28:24-29:9.) It is well established that the negligent failure to exercise reasonable care and skill in undertaking to perform a service contract of this type is a tort, as well as a breach of contract. (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1435; see also North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort.].) In reply, Del Terra fails to address or point to any contrary authority. Thus, the economic loss rule does not bar BUSDs negligence claim based on Del Terras allegedly negligent management of BUSDs bond programs. Accordingly, Del Terras motion is DENIED on these grounds. Breach of Fiduciary Duty (Second Cause of Action) Del Terra maintains BUSDs second cause of action for breach of fiduciary duty fails as a matter of law because Del Terra did not owe BUSD a fiduciary duty. The court disagrees. Legal Standard The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Discussion In the FAC, BUSD alleges Del Terra agreed to serve as BUSDs agent and fiduciary in Article 1.3.2 of the 2015 Agreement. (FAC, ¶ 7, 30.) BUSD also alleges the 2019 Amendment included the same provision. (FAC, ¶ 30.) In both agreements, Article 1.3.2 states as follows: Relationship. Manager serves as Districts agent and fiduciary in performing services under this Agreement. Manager shall, in this capacity, maintain confidences and provide professional services in a manner consistent with Districts economic, educational and governmental best interests. (FAC, Ex. 1, § 1.3.2; Ex. 4, § 1.3.2.) While the 2015 Agreement and 2019 Amendment state Del Terra serves as BUSDs fiduciary, Del Terra maintains the partys terms do not control because the agreements fail to establish the relationship is a fiduciary one. (Motion, p. 17:1-18:2.) A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is . . . duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent. A fiduciary relation in law is ordinarily synonymous with a confidential relation. (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 613-614, quoting Herbert v. Lankershim (1937) 9 Cal.2d 409, 483.) In the commercial context, traditional examples of fiduciary relationships include those of trustee/beneficiary, corporate directors and majority shareholders, business partners, joint adventurers, and agent/principal. (Id., at p. 614.) In this case, Del Terra maintains the agreements do not evidence an intent by Del Terra to undertake the obligations of a fiduciary and subordinate its interests to and for the benefit of BUSD. While the agreements require Del Terra to provide services in a manner consistent with the Districts economic, educational and governmental best interests (FAC, Ex. 1, § 1.3.2; Ex. 4, § 1.3.2.), Del Terra maintains the obligation to act consistently with BUSDs interests is not the same as the requirements imposed in fiduciary relationships. (Del Terra Suppl. Brief, p. 3:13-18.) Although this language alone is likely insufficient to create a fiduciary relationship, the court finds it does not contradict the agreements statement that Del Terra is BUSDs fiduciary. Furthermore, the agreements also establish a fiduciary relationship by creating an agency relationship which gives rise to fiduciary duties. In contesting the existence of an agency relationship, Del Terra points to Article 10.15 which states as follows: Manager is and shall at all times remain as to the District a wholly independent contractor. Neither the District nor any of its agents shall have control over the conduct of Manager or any of Managers officers, agents, or employees, except as herein set forth. Manager shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the District. (FAC, Ex. 1, § 10.15; Ex. 4, § 10.15.) Del Terra maintains this provision conflicts with Article 1.3.2. The court is not persuaded by this argument since Article 10.15 merely prevents Del Terra from representing to others that it is BUSDs agent, but does not prevent Del Terra from serving as BUSDs agent for the purposes of managing its bond projects. (See Porter v. Arthur Murray, Inc. (1967) 249 Cal.App.2d 410, 420 [It may be freely asserted that one may be the agent of another without holding himself out to be such agent.].) Because the 2015 Agreement and 2019 Amendment explicitly designate Del Terra as BUSDs fiduciary and establish Del Terra as BUSDs agent, the court finds that Del Terra owed fiduciary duties to BUSD. In supplemental briefing, Del Terra maintains California law does not recognize fiduciary relationships in project management and construction contract cases. (Del Terra Suppl. Brief, p. 1:22-2:28.) To support this contention, Del Terra cites Gonsalves v. Hodgson (1951) 38 Cal.2d 91 (Gonsalves) and McCauley v. Dennis (1963) 220 Cal.App.2d 627 (McCauley). In Gonsalves, the court held a shipbuilding contract did not give rise to a fiduciary relationship. (Gonsalves, supra, 38 Cal.2d at p. 98-99.) Del Terra states Gonsalves announced a general rule in California that no fiduciary relationship is created by or arises out of dealings pursuant to a construction contract. (Del Terra Suppl. Brief, p. 2:1-2, citing Id., at p. 97-98.) But Del Terra failed to quote the language that purportedly created such a rule, and the court finds such a rule does not exist in the Gonsalves opinion. Instead, the pages to which Del Terra cite discuss whether the shipbuilding contract created a trust relationship. (Ibid [The conclusion is inescapable that no trust relationship was created by the contract, or by the dealings of the parties under it.].) Contrary to Del Terras contention, the courts holding in Gonsalves was not based on the subject matter of the shipbuilding contract. Instead, the court held that the contractual promise to to construct the vessel in a workmanlike manner, in dependence upon the special knowledge and skill of [the shipbuilder] was insufficient to create a fiduciary relationship. (Id., at p. 98-99.) The court finds the Gonsalves case distinguishable from the present case since the agreements include specific language designating Del Terra as BUSDs fiduciary and agent. In McCauley, Del Terra maintains the court held a homeowners reliance on a contractors representations did not state a claim for breach of fiduciary duty. (Del Terra Suppl. Brief, p. 2:16-18, citing McCauley, supra, 220 Cal.App.2d at p. 635-636.) The McCauley holding, however, was based on the failure to properly support the argument with legal authority. (Id., at p. 635 [Defendants contend that merely because defendant relied upon the representations made by plaintiff a fiduciary relationship thereby arose. Defendants cite no authorities so holding.].) Furthermore, unlike the present case, the court in McCauley noted there was no agency relationship between the homeowner and the contractor. (Ibid.) Thus, court does not find persuasive Del Terras contentions. Accordingly, Del Terras motion is DENIED as to this cause of action. CONCLUSION Based on the analysis above, the court DENIES Del Terras motion for summary judgment or adjudication.
Ruling
Las Posas Valley Water Rights Coalition et al vs Fox Canyon Groundwater Management Agency et al
Sep 04, 2024 |Judge Thomas P. Anderle |VENCI00509700
For Plaintiffs Las Posas Basin Water Rights Coalition, et al.: Peter A. Goldenring, Mark R. Pachowicz, Pachowicz Goldenring; Kevin M. O’Brien, Kelly M. Breen, Brian E. Hamilton, Downey Brand LLP For Defendant Fox Canyon Groundwater Management Agency: Elizabeth P. Ewens, Michael B. Brown, Timothy M. Taylor, Janelle S.H. Krattiger, Stoel Rives LLP; Tiffany N. North, Jason T. Canger, Office of the Ventura County Counsel For Defendant Calleguas Municipal Water District: Eric L. Garner, Jeffrey V. Dunn, Wendy Y. Wang, Alison K. Toivola, Best Best & Krieger LLP For Defendants Leavens Ranches, LLC, et al. (Las Posas Farming Group): Matt Kline, Barton (Buzz) Thompson, Russell McGlothlin, Heather Welles, O’Melveny & Meyers LLP For Defendants Berylwood Heights Mutual Water Company, et al.: Keith Lemieux, Aleshire & Wynder, LLP For Defendant Zone Mutual Water Company: R. Jeffrey Warren, Klein, Denatale Goldner LLP For Defendants Samuel and Sylvia Alvarez Family Revocable Trust etc., et al.: Robert N. Kwong, Nossaman LLP For Defendants Culbert Farms LLC, et al.: Steven R. Hagemann, The Ventura Legacy Group, APC For Defendants Wonderful Citrus, LLC, and Lemon 500 LLC: Robert J. Saperstein, Brownstein Hyatt Farber Schreck, LLP For Defendants Broadway Road Moorpark, LLC, et al.: Robert Kuhs, Lebeau Thelen, LLP For Defendants Milligan Ranch Partnership LP and D&D Coastal LLC: Julia Graeser Mata, Barg Coffin Lewis & Trapp, LLP For Defendants Mahan Ranch, LLC, et al.: James Q. McDermott, Neal P. Maguire, Jessica M. Wan, Shane M. Maguire, Ferguson Case Orr Paterson LLP (For other appearances see list)RULINGAs set forth herein, the motion of defendant Fox Canyon Groundwater Management Agency to amend the Judgment is denied as framed, without prejudice to a later motion to amend upon issuance of all remittiturs in pending appellate matters. The court deems the motion as a motion to confirm the delay of deadlines by the Watermaster pursuant to section 5.2.8 of the Judgment. The court confirms the delay of deadlines set forth in sections 2.7.10 and 2.11 of the Watermaster Rules (exhibit A to the Judgment) to conform to the proposed amendments to those sections as set forth in exhibit 4 to the declaration of Arne Anslem submitted in support of the motion.BackgroundOn July 10, 2023, the court entered its final judgment in this comprehensive groundwater adjudication action (the Judgment). The judgment consists of 72 pages of principal text. The judgment appoints defendant Fox Canyon Groundwater Management Agency (FCGMA) as Watermaster to administer the Judgment. (Judgment, § 5.1.) The Judgment further provides:“5.2.1. Powers and Duties. Watermaster has the duty and authority toperform the tasks assigned to it by this Judgment consistent with the terms herein.“5.2.2. Watermaster Contracting. Watermaster may enter into contracts andagreements as necessary, appropriate, and in furtherance of the Physical Solution, provided that Watermaster maintains full oversight of the exercise of such powers. Watermaster shall have the discretion and authority to employ or contract with such administrative personnel, engineering, legal, accounting, or other specialty services and consulting assistants as may be deemed appropriate in carrying out the terms of the Judgment, including to employ or contract for its general manager, general counsel, or staff. Further, nothing in this Agreement modifies or amends existing authority for the FCGMA to contract for services it considers appropriate for Groundwater management, including under SGMA and/or deriving from the FCGMA’s enabling legislation.“5.2.3. Annual Report. The FCGMA shall prepare a draft of the Annual Report and refer it for Committee Consultation as provided in the Watermaster Rules. The Annual Report shall include the information set forth in Water Code section 10728, California Code of Regulations title 23, section 356.2, and all additional information required by the Watermaster Rules. The FCGMA shall, after considering any Recommendation Report issued by the PAC or TAC and issuing a Response Report, submit the Annual Report to DWR and file it with the Court no later than April 1 of each Water Year.“5.2.4. Watermaster Records Keeping. Watermaster shall annually prepare and publish on its website and in the Annual Report the following: “5.2.4.1. An updated Groundwater Allocation Schedule, which will include and present all necessary information to properly account for Permanent Transfers of Allocation Basis; “5.2.4.2. The Annual Allocations Calculation, which will accurately describe the amount of Allocated Groundwater each Water Right Holder is authorized to Use during the ensuing Water Year inclusive of all bases of Use (e.g., Annual Allocation, Leased Annual Allocation, and Carryover subtracting any cure for Overuse during the prior Water Year);and “5.2.4.3. The Annual Allocations Accounting which will accurately describe for each Water Right Holder the amount of Allocated Groundwater the Water Rights Holder was authorized to Use during the preceding Water Year, the amount of Allocated Groundwater the Water Rights Holder Used, and whether the Water Right Holder established Carryover as a result of under-Use (and the amount thereof) or incurred Overuse (and the amount thereof). “5.2.5. Basin Boundary Modification. If Watermaster determines that amodification of the boundaries of the Basin as defined by DWR’s Bulletin 118 is appropriate to further Sustainable Management of the Basin, then consistent with Code of Civil Procedure section 841, Watermaster shall file a motion for an order from the Court pursuant to the Court’s continuing jurisdiction under Section 9.1 directing the Watermaster to submit a request to DWR pursuant to Water Code section 10722.2 to revise the Basin’s boundaries.“5.2.6. Enforcement. Watermaster will have the authority to enforce the terms of the Judgment, which authority will include at a minimum, the investigation andenforcement authority granted to a GSA under Water Code section 10732 and authorities granted to the FCGMA under its enabling legislation. This includes but is not limited to the ability to enforce timely reporting of Extractions and Use and enforcement of penalties for failure to report or Overuse, and the ability to conduct site inspections to confirm compliance with metering requirements. Watermaster may petition the Court to issue enforcement orders, upon a motion and hearing, as necessary to remedy any non-compliance with the Judgment terms, including: (i)to seek a judgment lien from the Court pursuant to Code of Civil Procedure section 697.310 et seq.; or (ii) to foreclose an Allocation to be Transferred to Watermaster to either be retired or Transferred to another Party to satisfy any delinquent Basin Assessments, Overuse Assessments, or any associated fees related to the Allocation, as is necessary and equitable under the circ*mstances. Any Party may also petition the Court to issue enforcement orders, upon a motion and hearing, as necessary upon Watermaster’s failure or refusal to enforce the terms of the Judgment. The Watermaster may seek injunctive and monetary relief against any Party or Personviolating the Judgment.“5.2.7. Emergency and Injunctive Relief. Watermaster may petition the Court for emergency or injunctive relief to prevent imminent harm to the Basin.“5.2.8. Deadlines for Exigent Circ*mstances. Watermaster may shorten or extend any deadline set forth in this Judgment where appropriate for exigent circ*mstances.“5.2.9. Watermaster Rules. Watermaster shall implement the Judgment consistent with the Watermaster Rules attached to this Judgment as Exhibit A. Watermastermay, following Committee Consultation, file a noticed motion with the Court to amend Watermaster Rules, which shall be granted upon a showing of good cause.” (Judgment, §§ 5.2.1–5.2.9, bolding and underscoring omitted.)“9.1 Jurisdiction Reserved. Consistent with Code of Civil Procedure section 852, the Court will retain full jurisdiction, power, and authority to oversee and address matters relating to the implementation of the Judgment. This includes the authority to review Basin Management Actions, and to make such further or supplemental orders or directives as may be necessary or appropriate, upon the motion of any Party or Watermaster, or sua sponte, to address inter se disputes concerning rights and obligations arising from the Judgment, and achieve Sustainable Groundwater Management, including: (i) the operation of the Physical Solution established by the Judgment; (ii) interpretation, enforcement, or carrying out of the Judgment; (iii) the modification or amendment of the Judgment; and (iv) rights to utilize available storage in the Basin (other than Carryover and the Calleguas ASR Project as provided herein). The Court shall construe its authority to review Basin Management Actions broadly, consistent with its authority and duty to impose and oversee a physical solution where necessary and consistent with Article X, section 2 of the California Constitution. The Court shall exercise its continuing jurisdiction in this action in the manner it deems necessary and appropriate to ensure Adaptive Management to achieve Sustainable Groundwater Management consistent with the law and the rights adjudicated herein. The Court orders that this Judgment govern all aspects of the FCGMA’s management of theBasin, whether undertaken by the FCGMA in its role as a special act water management agency, the GSA under SGMA, or as Watermaster. The Court may appoint such other independent special masters or referees to advise the Court with respect to any dispute as the Court deems necessary or advisable.” (Judgment, § 9.1, bolding and underscoring omitted.)“9.4 Modification or Amendment of Judgment. Consistent with Code of Civil Procedure sections 851 and 852, any Party, landowner, or other persons claiming the right to Extract Groundwater from the Basin, whose claims have not been exempted and are covered by the notice provided in the Comprehensive Adjudication, may file a motion to modify or amend the Judgment in response to new information, changed circ*mstances, the interests of justice, or to ensure that the criteria of Code of Civil Procedure section 850, subdivision (a), are met. Absent a strong showing of good cause, the Court will not consider reopening this proceeding to account for new claims. Code of Civil Procedure section 851 and 852 are summarized here for the convenience of the Parties, and nothing in this Section is intended to modify, amend, or expand Code of Civil Procedure sections 851 and 852.” (Judgment, § 9.4, bolding and underscoring omitted.)The Watermaster Rules are attached as exhibit A to the Judgment and are part of the Judgment. (Judgment, § 12.7.)On August 7, 2023, defendants Mahan Ranch, LLC, Mahan Development Corporation, Ralph D. Mahan, trustee of the Ralph D. Mahan Separate Property Trust of June 12, 2003, Ralph D. Mahan and Georgia A. Mahan, as trustees of the Mahan Family Trust of June 12, 2003, Oro Del Norte, LLC, Leon Scott Stevens, Trustee of the Leon O. Stevens Trust dated November 19, 1997, RBV 2+5 LLC, RBV-Vanoni, LLC, Debra A. Whitson, Thomas E. Olson, and Thomas K. Strain, Trustees of the McGonigle Ranch Trust dated April 1, 2021, and US Horticulture Farmland, LLC (collectively, the Mahan Ranch Defendants) filed their notice of appeal of the Judgment.On August 10, 2023, FCGMA filed a motion to confirm stay pending appeal.On August 14, 2023, FCGMA filed its notice of appeal of the Judgment.On August 28, 2023, defendants Leavens Ranches, LLC, et al. (the Las Posas Farming Group), plaintiffs Las Posas Valley Water Rights Coalition, et al. (plaintiffs), defendants Wonderful Citrus LLC and Lemon 500 LLC, defendant Zone Mutual Water Company, defendants Berylwood Heights Mutual Water Company, et al., defendants Broadway Road Moorpark, LLC, et al., defendants D&D Coastal, LLC, et al., defendants Rancho Canada Water Company, LLC, et al., and defendants Culbert Farms LLC, et al., (collectively, the Settling Parties) filed their joint opposition to FCGMA’s motion to confirm stay pending appeal.On August 30, 2023, defendant Solano Verde Mutual Water Company (Solano Verde MWC) filed its notice of appeal of the Judgment. Also on August 30, the Mahan Ranch Defendants filed their joinder to FCGMA’s motion to confirm stay pending appeal.On September 1, 2023, defendant Del Norte Water Company (Del Norte WC) filed its notice of appeal of the Judgment. On September 5, Del Norte WC filed its joinder to FCGMA’s motion to confirm stay pending appeal.On September 13, 2023, the court issued its order denying FCGMA’s motion to confirm stay pending appeal. FCGMA filed a petition for writ of supersedeas in the Court of Appeal, which petition was denied on November 2, 2023. (Las Posas Valley Water Rights Coalition et al. v. Fox Canyon Groundwater Management Agency et al. (B330837) app. pending.)On July 15, 2024, FCGMA filed this motion to amend the Judgment and Watermaster Rules. The requested amendments are discussed below.On July 19, 2024, the Settling Parties filed their partial joinder to FCGMA’s motion to amend the Judgment. The Settling Parties support the requested relief in FCGMA’s motion, request that the court hold a status conference at the time of the hearing on the motion, and request that the court set a status conference for December 4, 2024. The Settling Parties disagree with certain claims made in the motion apart from the relief sought.On July 22, 2024, based on the unopposed motion of FCGMA filed on July 3, the Court of Appeal issued its order dismissing the appeal of FCGMA, and issued its partial remittitur as to FCGMA. (Las Posas Valley Water Rights Coalition et al. v. Fox Canyon Groundwater Management Agency et al. (B330837) app. pending.) The appeal remains pending as to all other parties who filed notices of appeal. (Ibid.) Also on July 22, the court set a status conference for this hearing date and set a second status conference for December 4, 2024.On July 25, 2024, defendant Calleguas Municipal Water District (Calleguas MWD) filed its joinder to FCGMA’s motion to amend the Judgment.On August 16, 2024, the Mahan Ranch Defendants filed opposition to FCGMA’s motion to amend the Judgment. The opposition is discussed below.Analysis(1) Requested Amendments to the JudgmentThe amendments sought by the motion are identified in the redlined version of the Watermaster Rules as exhibit 4 and in the redlined version of the principal text of the Judgment as exhibit 6, both attached to the declaration of Arne Anselm in support of the motion. (Anselm decl., ¶¶ 9, 10.) With respect to the proposed amendments to the Watermaster Rules, there are a number of minor procedural changes and corrections, such as filling in blanks with actual dates and clarifying language. (E.g., Anselm decl., exhibit 4, §§ 1.1, 1.2, 2.1, 2.5.5.) There are also numerous changes to “important dates” when tasks as to be completed or approved. The proposed changes to these dates delay the dates set forth in the Watermaster Rules. For example, the deadline for referral of the GSP Update is June 7, 2024, but the deadline for the PAC and TAC Recommendation Reports discussed by Watermaster is changed from September 6, 2024, to “77 Days from Receipt of Draft.” (Anselm decl., exhibit 4, § 2.11.) It is explained that complying with the original dates is infeasible because of various factors outside of the Watermaster’s control. (Anselm decl., ¶ 5.)The proposed changes were the result of consultation pursuant to the procedures of the Judgment for amendment. (Anselm decl., ¶¶ 5-9; Settling Parties’ Partial Joinder, at p. 1.) There are no objections specific to any particular proposal. (See generally Opposition, at p. 2.)(2) Opposition and ReplyThe Mahan Ranch Defendants oppose the motion on procedural grounds as follows:“The Mahan Ranch Parties do not dispute the practical difficulties of the Judgment’s current scheduling demands, and therefore understand the basis for the Fox Canyon Groundwater Management Agency’s request for proposed scheduling modifications to the Judgment. As Fox Canyon informed the Court last year, the proposed schedules were unrealistic. (6/6/2023 Fox Canyon Groundwater Management Agency’s Opposition to Proposed Watermaster Rules.) The Settling Parties dismissed Fox Canyon’s concerns, and as a result so did this Court. (Phase 3 Statement of Decision at 101-03 [‘The FCGMA details its concerns in a brief filed in the last moments of trial. None is persuasive. ].’) Since last year, Fox Canyon’s concerns have been validated.“Putting aside whether the schedules should be adjusted at some point, Fox Canyon’s motion should still be denied. As this Court is aware, there are pending appeals from the Judgment in this matter. While this Court opted not to stay the Judgment based on the appeals (9/13/2023 Amended Order Denying Fox Canyon Groundwater Management Agency’s Motion To Confirm Stay Pending Appeal), Fox Canyon’s motion now goes even further and seeks to have the Court amend the Judgment despite the pending appeals. This Court has no jurisdiction to amend the Judgment. (Code Civ. Proc., § 916, subd. (a); Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 (‘Varian’); Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629 [‘The trial court’s power to enforce, vacate or modify an appealed judgment or order is suspended while the appeal is pending.’].) ‘This is true even if the subsequent proceedings cure any purported defect in the judgment or order appealed from.’ (Varian, supra, 35 Cal.4th at 198 [citing Sacks v. Sup. Ct. (1948) 31 Cal.2d 537,20 541].)”FCGMA replies to this opposition by arguing that the court has already determined, and the Court of Appeal has impliedly agreed, that there is no automatic stay by virtue of the appeal and that opposition improperly seeks reconsideration of the court’s determination.As discussed below, the procedural situation is unfortunately not simple.(3) Amendments and Enforcement OrdersThere is a distinction between the jurisdiction of a trial court to amend a judgment on appeal and the jurisdiction of a trial court to make orders enforcing a judgment on appeal.“Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a)“The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).)“In general, ‘[t]imely filing of the notice of appeal vests jurisdiction in the appellate court and, subject to certain exceptions ..., terminates the lower court’s jurisdiction.’ [Citations.] As a result, a trial court has no jurisdiction to vacate, modify or otherwise change an order that is the subject of a pending appeal.” (Royals v. Lu (2022) 81 Cal.App.5th 328, 342.)“To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings ‘upon the matters embraced’ in or ‘affected’ by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ [Citation.]” (Varian, supra, 35 Cal.4th at p. 189.)These principles are addressed in the context of a groundwater adjudication in City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266 (Santa Maria). In Santa Maria, a water conservation district sued two cities, a water company, and Doe defendants to adjudicate rights in a groundwater basin. (Id. at pp. 281-282.) Subsequent complaints and cross-complaints bought in other public entities, water producers, and landowners who claimed a right to groundwater in the basin. (Id. at p. 282.) The matter was tried in five phases. (Ibid.) Before the phase IV trial commenced, the public water producers and most of the landowners entered into a stipulation as to certain of their respective water rights and contains a physical solution for the basin. (Ibid.) In light of the stipulation, the phase IV and phase V trial addressed only the rights and physical solution as between non-stipulating landowners and the public water producers. (Id. at pp. 283-284.) The trial court ultimately approved the terms of the stipulation as applying the non-stipulating landowners, which was incorporated into the judgment. (Id. at pp. 293-285.) Although the stipulation was not binding on the non-stipulating landowners, the judgment independently required the non-stipulating landowners to participate and be bound by the applicable monitoring program set forth in the stipulation. (Id. at pp. 285-286.) Each non-stipulating party was required by the judgment to monitor their water production, maintain records, and make the data available to the court or its designee as may be required by subsequent court order. (Id. at p. 286.) The judgment also provided that the trial court retained jurisdiction to make further or supplemental orders as may be necessary or appropriate regarding interpretation and enforcement of the judgment, as well as clarifications or amendments to the judgment consistent with law. (Ibid.)The non-stipulating landowners appealed. (Santa Maria, supra, 211 Cal.App.4th at p. 286.) After the notice of appeal was filed, the trial court approved certain groundwater monitoring plans and a water shortage and response plan submitted by Nipomo. (Id. at p. 310.) The non-stipulating landowners objected, arguing that the entire action was stayed pending resolution of the appeal. (Ibid.) The trial court rejected this argument, and the Santa Maria court denied their petition for writ of supersedeas to prevent the trial court from ruling on those motions for approval. (Ibid.) On appeal, the non-stipulating landowners argued that the trial court orders were void because the matter was stayed. (Ibid.)After stating the above standards regarding the scope of an automatic stay, the Santa Maria court rejected the non-stipulating landowners’ argument: “None of the possible outcomes of this appeal would have any effect upon the challenged postjudgment orders nor would those postjudgment orders make the appeal itself ineffective. Each of the postjudgment rulings would have or could have occurred regardless of the outcome here. The trial court made it quite clear that its orders approving the monitoring programs concerned only ‘those who have adopted’ those plans. The [non-stipulating landowners] do not challenge respondents’ right to establish monitoring programs. At best they argue that it was unnecessary for the trial court to make those programs part of this judgment. But even if we were to agree with that argument, the stipulating parties could nevertheless have sought judicial enforcement of the agreement as among themselves either via Code of Civil Procedure section 664.6 or a common law contract action. And as to the management plan submitted by Nipomo, the [non-stipulating landowners] have not contested any aspect of the Stipulation that applies to the Nipomo water management area. Whatever we were to decide about prescriptive rights, the Twitchell Yield, return flows, or the authority of the [Twitchell Management Authority], it would not have affected or been affected by approval of Nipomo’s Water Shortage Condition and Response Plan.” (Santa Maria, supra, 211 Cal.App.4th at p. 311.)Here, FCGMA does not merely seek orders approving plans or otherwise implementing the Judgment, but seek to amend the Judgment. As noted above, a trial court generally does not have jurisdiction to amend a judgment that is the subject of an appeal. There is therefore a substantial reason to believe that this court is without jurisdiction to amend the Judgment as requested. Moreover, the record with respect to this motion is not sufficient for this court to conclude authoritatively that the textual amendments sought, in whole or in part, could not have an effect upon the appeal. So, to avoid issues as to whether an order amending the Judgment would be void as outside the court’s jurisdiction, the better course now is not to disturb the Judgment by amending its text.This, however, does not fully resolve the issue because, as is conceded even by the Mahan Ranch Defendants, the deadlines included in the Judgment are not now workable. This court, as well as the Court of Appeal, has previously denied a stay of the Judgment. It is therefore incumbent upon the parties to implement the Judgment to the extent practicable in a manner that does not affect the matters on appeal and is otherwise consistent with law. The Judgment itself provides the solution, but not strictly in the manner argued by FCGMA.FCGMA points out that the Judgment, “[c]onsistent with Code of Civil Procedure section 851 and 852,” authorizes the court to modify or amend the Judgment “in response to new information, changed circ*mstances, the interests of justice, or to ensure that the criteria of Code of Civil Procedure section 850, subdivision (a), are met.” (Judgment, § 9.4.)However, neither sections 851 or 852 nor this provision of the Judgment authorize amending the Judgment while on appeal.“The judgment in a comprehensive adjudication conducted pursuant to this chapter shall be binding on the parties to the comprehensive adjudication and all their successors in interest, including, but not limited to, heirs, executors, administrators, assigns, lessees, licensees, the agents and employees of the parties to the comprehensive adjudication and all their successors in interest, and all landowners or other persons claiming rights to extract groundwater from the basin whose claims have not been exempted and are covered by the notice provided in the comprehensive adjudication.” (Code Civ. Proc., § 851.)“The court shall have continuing jurisdiction to modify or amend a final judgment in a comprehensive adjudication in response to new information, changed circ*mstances, the interests of justice, or to ensure that the criteria of subdivision (a) of Section 850 are met. If feasible, the judge who heard the original comprehensive adjudication shall preside over actions or motions to modify or amend the final judgment.” (Code Civ. Proc., § 852.)As a textual matter, the “final judgment” is final only as to non-appealing parties and, as to the appealing parties, only as to this court. The “final judgment” is not final for all purposes. “A judgment is the final determination of the rights of the parties [citation] ‘ “when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.” ’ [Citation.]” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) Here, the litigation continues in the Court of Appeal, leaving an open textual question as to whether the trial court has jurisdiction to modify or amend the judgment that is final for some purposes but not others. Given the jurisdictional transfer that occurs between a trial court and an appellate court by the filing of a notice of appeal, it would be peculiar that a trial court would have jurisdiction to modify a judgment so as to interfere with appellate review. Consequently, in the absence of clear statutory language, section 852 cannot reasonably be read to provide general authority for modification of judgments pending appeal.These provisions are best understood by analogy to an appeal of a preliminary injunction. The grant or denial of a preliminary injunction by a trial court is appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) “In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” (Code Civ. Proc., § 533.) Notwithstanding the statutory authority to modify or dissolve a preliminary injunction, a trial court does not have jurisdiction to modify or dissolve a preliminary injunction that is the subject of an appeal. (Varian, supra, 35 Cal.4th 180, 190, fn. 6; Environmental Coalition of Orange County, Inc. v. Avco Community Developers, Inc. (1974) 40 Cal.App.3d 513, 525.) Thus, as in the case of a preliminary injunction, although a trial court has statutory authority to modify an order, that authority is limited by the court’s jurisdiction to make such orders pending appeal.As discussed in Santa Maria, the court may nonetheless make implementing collateral orders that are not subject to an appellate stay. The requested amendments with respect to proposed deadlines can be framed as such orders separate and apart from amendments to the text of the Judgment.The Judgment itself provides that the “Watermaster may shorten or extend any deadline set forth in this Judgment where appropriate for exigent circ*mstances.” (Judgment, § 5.2.8.) “The rule has always been that ‘[i]f the judgment is self-executing and requires no process for enforcement, there is no statutory stay, and, as a general rule, supersedeas is equally inappropriate. [Citations.]’ [Citation.]” (Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146, 156.) As noted above, there is no factual dispute that FCGMA cannot reasonably comply with the deadlines as they now exist in the Judgment and that extending the deadlines as requested in this motion is appropriate under the circ*mstances. The court confirms that that the present circ*mstances are “exigent circ*mstances” by which the Watermaster may extend the deadlines to the extent requested in this motion. This confirmation is sufficient to permit compliance with the Judgment without the textual amendment of the Judgment and without its attendant jurisdictional questions.Accordingly, the court will confirm that the deadlines are properly delayed under the unamended terms of the Judgment. Until the appeals are resolved, the court will otherwise deny the motion to amend, but such denial is without prejudice to the filing of a motion to amend to include conforming amendments after the issuance of all remittiturs.
Ruling
THOMPSON, SHELDON L vs JAI JALARAM INVESTMENT LLC
Sep 03, 2024 |CV-23-006532
CV-23-006532 – THOMPSON, SHELDON L vs JAI JALARAM INVESTMENT LLC – Plaintiffs’ Motion to Appoint Receiver and for Related Preliminary Injunction – DENIED.The Court finds Defendant Jai Jalaram Investment LLC (JJI) acquired their 50% ownership interest in the real property at issue on December 21, 2021, prior to the expiry of JJI’s said lease on December 31, 2021. Thus, both leasehold and fee simple interests merged on December 21, 2021, and said leasehold interest was thereby extinguished. (Bailey v. Citibank, N.A., (2021) 66 Cal. App. 5th 335). D JJI is therefore not a holdover tenant herein.The Court also finds that Defendant JJI’s admitted refusal to grant Plaintiff’s, co -owners of the real property at issue access to same to operate their proposed housing venture constitutes “the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession by notice in the most open, notorious and unequivocal character” and amounts to an ouster of Plaintiffs. (Hacienda Ranch Homes, Inc. v. Superior Ct., 198 Cal. App. 4th 1122, (2011), as modified on denial of reh'g (Sept. 28, 2011); Miller v. Meyers, (1873) 46 Cal. 538 at 539).The Court additionally finds that a receiver may be appointed herein based on said ouster to preserve Plaintiffs’ rights in said property. (Civ. Proc. Code § 564(b)(9)).However, the appointment of a receiver is based on the facts of the case and lies within the Court’s controlled discretion. It also a very drastic, harsh and costly remedy, that is to be exercised sparingly and with caution (Medipro Medical Staffing LLC v. Certified Nursing Registry (2021) 60 Cal.App. 5th 622; Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869).Furthermore, the appointment of a receiver for a going concern such as JJI’s motel is a drastic remedy. (McRae v. Superior Court for Los Angeles County (1963) 221 Cal.App.2d 166). Therefore, in light of the foregoing, and given that JJI is operating a going concern on said premises, has acknowledged Plaintiff’s 50% ownership of the real property at issue and that the parties have reached an agreement regarding including Plaintiff’s as loss payees to JJI’s insurance on said property, the Court is of the view that appointing a receiver herein would be an unduly drastic measure pending the resolution of Plaintiffs’ substantive claims herein.Therefore, Plaintiff’s motion is hereby denied.
Ruling
34-2021-00295594-CU-OR-GDS
Sep 04, 2024 |Unlimited Civil (Other Real Property (not emin...) |34-2021-00295594-CU-OR-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00295594-CU-OR-GDS: AMNA, Limited Liability Company vs. Jerry Hinton 09/05/2024 Hearing on Motion - Other for Leave to File Verified First Amended Complaint for Declaratory Relief in Department 54Tentative RulingPlaintiff AMNA, LLC’s (“Plaintiff”) motion for leave to file a First Amended Complaint(“FAC”) is UNOPPOSED and GRANTED.The notice of motion does not provide notice of the Court’s tentative ruling system, as requiredby Local Rule 1.06. Moving counsel is directed to contact opposing counsel and advise of LocalRule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing. Ifmoving counsel is unable to contact opposing counsel prior to hearing, moving counsel isordered to appear at the hearing by Zoom or in person.This is a quiet title action against Defendant California Family Home Buyers, LLC (“CFHB”)and individuals Jerry Hinton, Scott R. Hinton, the Estate of Jesse J. Hinton, and Sherry Grimesaka Sherry Hinton, as Administrator of the Estate of Jesse J. Hinton (collectively, “the Hintons”).CFHB is the only Defendant who has appeared in this action. Default has been entered againstthe Hintons.Prior to the filing of this motion, counsel Plaintiff and CFHB stipulated to allowing Plaintiff tofile the proposed FAC. (See Bergstrom Decl., Exh. 2.) Trial has not been set in this matter andthe next case management conference is set for January 24, 2025. Accordingly, there is noindication that any party will be prejudiced by the filing of the FAC, so Plaintiff’s motion isGRANTED.Plaintiff shall file the proposed FAC attached as Exhibit 1 to the Bergstrom Declaration by nolater than September 12, 2024.This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc. § 1019.5; Cal. Rules of Court, rule 3.1312.)NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and that Page 1 of 2 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00295594-CU-OR-GDS: AMNA, Limited Liability Company vs. Jerry Hinton 09/05/2024 Hearing on Motion - Other for Leave to File Verified First Amended Complaint for Declaratory Relief in Department 54opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 2 of 2
Ruling
DENISE WHEELER, AN INDIVIDUAL VS CENTER STREET LENDING CORPORATION
Sep 04, 2024 |23STCV22953
Case Number: 23STCV22953 Hearing Date: September 4, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 DENISE WHEELER, Plaintiff, vs. CENTER STREET LENDING CORPORATION, et al., Defendants. Case No.: 23STCV22953 Hearing Date: September 4, 2024 Hearing Time: 2:00 p.m. [TENTATIVE] ORDER RE: DEMURRER OF DEFENDANTS CENTER STREET LENDING CORPORATION, CENTER STREET LENDING FUND IV SPE, LLC, AND CENTER STREET LENDING VIII SPE, LLC TO PLAINTIFFS SECOND AMENDED COMPLAINT; MOTION OF CENTER STREET LENDING CORPORATION, CENTER STREET LENDING FUND IV SPE, LLC, AND CENTER STREET LENDING VIII SPE, LLC, TO STRIKE PORTIONS OF PLAINTIFFS SECOND AMENDED COMPLAINT Background Plaintiff Denise Wheeler (Plaintiff) filed this action on September 21, 2023 against Defendant Center Street Lending Corporation. Plaintiff filed a First Amended Complaint (FAC) on January 8, 2024 against Defendants Center Street Lending Corporation and Center Street Lending Fund IV SPE, LLC. The FAC alleged causes of action for (1) violation of Civil Code section 2923.55 and (2) violation of Business and Professions Code section 17200, et seq. Center Street Lending Corporation and Center Street Lending Fund IV SPE, LLC demurred to both causes of action of the FAC and moved to strike portions of the FAC. On May 23, 2024, the Court issued an Order sustaining the demurrer to the first and second causes of action of the FAC, with leave to amend. The Court also granted the motion to strike, without leave to amend. On June 12, 2024, Plaintiff filed the operative Second Amended Complaint (SAC) against Defendants Center Street Lending Corporation and Center Street Lending VIII SPE, LLC. The SAC alleges causes of action for (1) violation of Civil Code section 2923.55 and (2) violation of Business and Professions Code section 17200, et seq. Center Street Lending Corporation, Center Street Lending Fund IV SPE, LLC, and Center Street Lending VIII SPE, LLC (collectively, the Center Street Parties) now demur to both of the causes of action of the SAC. The Center Street Parties also move to strike portions of the SAC. Plaintiff opposes both. Requests for Judicial Notice The Court grants the Center Street Parties request for judicial notice. The Court also grants Plaintiffs request for judicial notice. Demurrer A. Legal Standard A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) B. Allegations of the SAC In the SAC, Plaintiff alleges that at all relevant times, she owned the property located at 637 E 29th Street, Los Angeles California 90011 (the Property). (SAC, ¶ 8.) Plaintiff alleges that [t]he Property has been in Plaintiffs family since 1993, but she was not on title until August 2015. The property has served as her personal and principal residence for all times referenced herein. (SAC, ¶ 9.) In mid-2015, a fire virtually destroyed most of the Property and left it in severe disrepair. As a result, Plaintiff received insurance proceeds to fix the Property so that she and her family could continue residing therein. Thus, Plaintiff alleges that the Property is Security for a loan made for purposes of personal, family, or household purposes. This is also when Plaintiff was put on title to the Property. (SAC, ¶ 10.) On August 20, 2015, Plaintiff received a refinance from Defendant CENTER STREET in the amount of $350,000.00. (SAC, ¶ 12.) In the loan origination process and knowing Plaintiff lived in the Property, Plaintiff was told to use a different address for her personal residence. (SAC, ¶ 13, emphasis omitted.) Plaintiff alleges that CENTER STREET knew Plaintiffs only residence was the property but was told to use a different address to fund the loan. (SAC, ¶ 13.) Plaintiff, as an ordinary consumer, did not know the implications of doing so and executed the documents with a different address. (SAC, ¶ 14.) In February 2016, the loan came due, and Plaintiff was unable to pay the balloon amount. (SAC, ¶ 15.) In September 2017, CENTER STREET filed a Notice of Default. On December 26, 2017, CENTER STREET filed a Notice of Trustees Sale& (SAC, ¶ 16.) On January 18, 2018, Plaintiff filed for Chapter 11 Bankruptcy. Plaintiff made payments throughout the bankruptcy until early 2023 when CENTER STREET filed a Motion for Relief from stay. (SAC, ¶ 17.) The Bankruptcy court granted the Motion for Relief from stay and CENTER STREET recorded a new Notice of Default on May 31, 2023. (SAC, ¶ 18.) Plaintiff alleges that she lived in the Property as her principal residence when the Notice of Default was recoded [sic] on May 31, 2023. (SAC, ¶ 19.) Plaintiff alleges that [o]n September 5, 2023, Defendant recorded a Notice of Trustees Sale and set the property for auction on October 3, 2023. Despite the fact that Defendant failed to contact Plaintiff to assess her financial situation and explore options to avoid foreclosure as required by Civil Code 2923.55, Defendant intends to proceed the sale [sic]& (SAC, ¶ 21.) C. First and Second Causes of Action Pursuant to Civil Code section 2923.55, subdivision (a), [a] mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default pursuant to Section 2924 until all of the following: (1) The mortgage servicer has satisfied the requirements of paragraph (1) of subdivision (b). (2) Either 30 days after initial contact is made as required by paragraph (2) of subdivision (b) or 30 days after satisfying the due diligence requirements as described in subdivision (f). (3) The mortgage servicer complies with subdivision (c) of Section 2923.6, if the borrower has provided a complete application as defined in subdivision (h) of Section 2923.6. The Center Street Parties argue that, at the time the NOD was recorded, neither of the Defendants were the current mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent. Rather, Center Street VIII was the beneficiary at the time&As a result, Defendants are no longer the beneficiary of record and Plaintiff cannot pursue any claims against them based on an alleged violation of Section 2923.55. (Demurrer at p. 5:17-22, emphasis omitted.) The Center Street Parties cite to Exhibit G to their request for judicial notice, which is an Assignment of Beneficial Interest Under Deed of Trust recorded on recorded on September 4, 2019. (Center Street Parties RJN, ¶ 7, Ex. G.) This Assignment provides, inter alia, that BY THIS ASSIGNMENT OF BENEFICIAL INTEREST UNDER DEED OF TRUST&dated to be effective as of August 1, Center Street Lending Fund IV SPE, LLC, a Delaware Limited Liability Company (Assignor)&does by these presents grant, bargain, sell, assign, transfer and set over unto Center Street Lending VIII SPE, LLC&all of Assignors right, title and interest as Beneficiary under that certain Deed of Trust dated August 10, 2015 executed by Denise L. Wheeler& (Ibid.) As an initial matter, Center Street Lending VIII SPE, LLC is a defendant named in the SAC. Thus, it is unclear why the Center Street Parties contend that that neither of the Defendants were the current mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent. (Demurrer at p. 5:18-19.) The Center Street Parties acknowledge that Center Street VIII[1] was the beneficiary at the time. (Demurrer at p. 5:19, emphasis omitted.) However, as discussed below, the Court grants the Center Street Parties motion to strike Center Street Lending VIII SPE, LLC as a defendant from the SAC. In any event, the SAC further alleges that CENTER STREET LENDING CORPORATION&is a California stock corporation engaged primarily in residential mortgage banking and/or related business and was the beneficiary or servicer of Plaintiffs loan during the operative time period herein. (SAC, ¶ 6.) The Center Street Parties do not appear to make any argument that Center Street Lending Corporation was not the servicer of the loan. The Center Street Parties also assert that [b]ecause no facts are alleged against Center Street IV, the Demurrer should be sustained without leave to amend as to Center Street IV. (Demurrer at p. 5:27-28.) But as noted by Plaintiff, Center Street Lending Fund IV SPE, LLC is not a defendant named in the SAC. In addition, on August 21, 2024, Plaintiff filed a request for dismissal as to Center Street Lending Fund IV SPE, LLC, and dismissal was entered as requested on August 26, 2024. D. First Cause of Action for Violation of Civil Code Section 2923.55 In the first cause of action, Plaintiff alleges, inter alia, that Defendant recorded the NOD without sending the NOD to Plaintiff or contacting Plaintiff in person or by telephone to assess her financial situations and explore options to avoid foreclosure. Additionally, the Notice of Trustees Sale (NOTS) also fails to include the above required declaration and is not appropriately executed, thus Defendants violated Cal. Civ. Code§ 2923.55. (SAC, ¶ 26.) Plaintiff alleges that [s]ince Defendant also failed to notify or correspond with Plaintiff in writing concerning her options regarding the NOD and alleged default, Defendants recorded the NOD in violation of Cal. Civ. Code § 2923.55. (SAC, ¶ 27.) The Center Street Parties argue that HBOR does not apply to Plaintiffs business loan. (Demurrer at p. 6:5.) The Center Street Parties cite to Civil Code section 2923.55, subdivision (h), which provides that [t]his section shall apply only to mortgages or deeds of trust described in Section 2924.15. Pursuant to Civil Code section 2924.15, subdivision (a)(1), [u]nless otherwise provided, paragraph (5) of subdivision (a) of Section 2924 and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 shall apply only to a first lien mortgage or deed of trust that meets either of the following conditions: (1) (A) The first lien mortgage or deed of trust is secured by owner-occupied residential real property containing no more than four dwelling units. (B) For purposes of this paragraph, owner-occupied means that the property is the principal residence of the borrower and is security for a loan made for personal, family, or household purposes. (Emphasis added.) The Center Street Parties assert that [i]n the Bankruptcy, filed in 2018, Plaintiff certified under penalty of perjury that she rented out the Subject Property for profit. (Demurrer at p. 6:22-23.) The Center Street Parties cite to, inter alia, Exhibit I to their request for judicial notice, which is a Debtors Post Confirmation Status Conference Report No. 1; Declaration of Denise Wheeler in Support Thereof filed in the U.S. Bankruptcy Court for the Central District of California in the matter In re: Denise Wheeler, Case No. 2:18-bk-10597 (the Bankruptcy Matter), on April 30, 2020. (Center Street Parties RJN, ¶ 9, Ex. I.) Exhibit I provides, inter alia, that Debtor also generates rental income from rental property in the amount of $4,500 per month. The major assets of the estate are: Debtors rental property located at 637 E. 29th Street, Los Angeles, CA 90011 (the Rental Property/Real Property), two vehicles and other personal assets. (Center Street Parties RJN, ¶ 9, Ex. I, p. 2.) The Center Street Parties also cite to Exhibit F to their request for judicial notice, which is a Stipulation for Chapter 11 Plan Treatment and Order Dismissing Objection to Proof of Claim with Prejudice filed in Bankruptcy Matter on August 27, 2019. (Center Street Parties RJN, ¶ 6, Ex F.) Exhibit F provides, inter alia, that [o]n August 10, 2015, Debtor executed a Note secured by real property commonly known as 637 East 29th Street Los Angeles, CA 90011 (Property) pursuant to a Deed of Trust&On January 18, 2018, Debtor filed the current Chapter 11 bankruptcy case and alleging the value of the Property to be $500,000.00. The Debtor is continuing in possession of the Property, and operating and managing the Property as a rental income property, as debtor-in-possession pursuant to Bankruptcy Code Sections 1107 and 1108. (Center Street Parties RJN, ¶ 6, Ex F, pp. 1-2.) The Center Street Parties assert that [d]espite the opportunity to amend her allegations, Plaintiff fails to address her prior pleadings from the Bankruptcy wherein she repeatedly stated and represented in pleadings that the Subject Property was a rental property from which she earned rental income. Nothing in the SAC reconciles how these representations are consistent with her new position that the Loan, which she obtained to refinance the purchase of the Subject Property, was for personal, family, or household purposes. As such, the Court should disregard Plaintiffs inconsistent allegations in the SAC that inaccurately attempt to characterize the Loan as one that was used for personal, family, or household purposes. (Demurrer at p. 7:8-14, emphasis omitted.)[2] As an initial matter, as discussed above, the Center Street Parties cite to certain filings in the Bankruptcy Matter which reference the property at 637 East 29th Street Los Angeles, California 90011 as a rental property. However, this argument appears to concern whether the subject property is the principal residence of the borrower, not whether the property is security for a loan made for personal, family, or household purposes. (Civ. Code, § 2924.15, subd. (a)(1)(B).) The Center Street Parties do not appear to point to any filings in the Bankruptcy Matter stating that the subject loan was not made for personal, family, or household purposes. (Ibid.) Plaintiff notes that the SAC alleges that [t]he property has served as her personal and principal residence for all times referenced herein. Plaintiff lived in one unit, while her family members resided in the other unit, and that the Property is Security for a loan made for purposes of personal, family, or household purposes. (SAC, ¶¶ 9, 10.) Plaintiff alleges that [i]n mid-2015, a fire virtually destroyed most of the Property and left it in severe disrepair, and that Plaintiff received the loan as a refinance of her existing mortgage and after her insurance company paid out repairs to the fire-damaged property. (SAC, ¶¶ 10, 23.) The Center Street Parties also assert that the subject property was not owner-occupied. (Demurrer at p. 7:16.) As set forth above, Civil Code section 2924.15, subdivision (a)(1) provides that [u]nless otherwise provided, paragraph (5) of subdivision (a) of Section 2924 and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 shall apply only to a first lien mortgage or deed of trust that meets either of the following conditions: (1)(A) The first lien mortgage or deed of trust is secured by owner-occupied residential real property containing no more than four dwelling units. (B) For purposes of this paragraph, owner-occupied means that the property is the principal residence of the borrower and is security for a loan made for personal, family, or household purposes. (Emphasis added.) The Center Street Parties cite to, inter alia, Exhibit E to their request for judicial notice, which is a Voluntary Petition for Individuals Filing for Bankruptcy filed in the Bankruptcy Matter on January 18, 2018. (Center Street Parties RJN, ¶ 5, Ex. E.) The Center Street Parties note that page 2 of the Petition states, inter alia, 1191 1/2 West 38th Street Los Angeles, CA 90037 after Where you live. (Center Street Parties RJN, ¶ 5, Ex. E, p. 2.) The Center Street Parties also cite to Exhibit U to their request for judicial notice, which is a Declaration of Lionel E. Giron in Support of Application for Compensation for Law Offices of Lionel E. Giron Period January 2, 2019 through April 18, 2023 filed in the Bankruptcy Matter on May 23, 2023. (Center Street Parties RJN, ¶ 21, Ex. U.) The Center Street Parties note that Exhibit U states, inter alia, [o]n April 19, 2023 my office served a copy of the Application for Compensation to Mrs. Wheeler at 1191 1⁄2 West 38th Street, Los Angeles, CA 90037. (Center Street Parties RJN, ¶ 21, Ex. U, ¶ 5.) In the opposition to the demurrer, Plaintiff asserts that the property was owner occupied when the notice of default was recorded. (Oppn at p. 6:26-27.) As discussed, the SAC alleges [t]he Bankruptcy court granted the Motion for Relief from stay and CENTER STREET recorded a new Notice of Default on May 31, 2023. (SAC, ¶ 18.) Plaintiff now alleges that Plaintiff lived in the Property as her principal residence when the Notice of Default was recoded on May 31, 2023. (SAC, ¶ 19.) Next, the Center Street Parties assert that Plaintiff is unable to plead a material violation. (Demurrer at p. 8:19.) They cite to Civil Code section 2924.12, subdivision (b), which provides in pertinent part that [a]fter a trustees deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustees deed upon sale... The Center Street Parties cite to Billesbach v. Specialized Loan Servicing LLC (2021) 63 Cal.App.5th 830, 837, where the Court of Appeal noted that [f]irst, by its terms, the HBOR creates liability only for material violations that have not been remedied before the foreclosure sale is recorded. The Center Street Parties argue that here, the fact that Plaintiff and Center Street IV agreed to modify the terms of the Loan prior to the recording of the pending NOD satisfies the requirements under section 2923.55. (Demurrer at p. 9:16-17.) The Center Street Parties cite to Exhibit F to their request for judicial notice, which, as discussed, is a Stipulation for Chapter 11 Plan Treatment and Order Dismissing Objection to Proof of Claim with Prejudice filed in Bankruptcy Matter on August 27, 2019. (Center Street Parties RJN, ¶ 6, Ex. F.) The Center Street Parties appear to note that the Stipulation provides, inter alia, New Loan Terms. Monthly payments on the new secured loan of $500,000.00 shall be payable monthly, at the interest rate of 8.0% fixed, all due and payable 24 months after the date the first payment is due, with payments to commence November 1, 2019. (Center Street Parties RJN, ¶ 6, Ex F, p. 4.) The Stipulation provides that [t]he original loan amount was $350,000.00, and the Note provided for a non-default interest rate of 11% and a default interest rate of 30%. The original maturity date on the Note was February 8, 2016, which was later extended by mutual agreement to August 8, 2016. (Id. at p. 2.) The Center Street Parties cite to Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1121, where the Court of Appeal noted as follows: We further conclude that SPS complied with the requirements of former section 2923.55, subdivision (b)(2) by fully reviewing and processing the Schmidts loan modification application before recording the notice of default. (See, e.g., Hutchful v. Wells Fargo Bank, N.A. (9th Cir. 2012) 471 Fed. Appx. 693, 694 [trial court had properly construed the notice requirement of California Civil Code § 2923.5 as having been met by [the borrowers] extensive discussions with [the lender] regarding loan modification]; Bell v. Wells Fargo Bank, N.A. (C.D.Cal., Oct. 28, 2014, No. CV 14-4316-JFW(MRWx)) 2014 WL 12611283, p. *3 [loan modification review satisfies the requirement that the lender assess the borrowers financial situation and explore alternatives to foreclosure]; Keng Hee Paik v. Wells Fargo Bank, N.A. (N.D.Cal., Aug. 3, 2011, No. C 10-04016 WHA) 2011 WL 3359697, p. *3 [lenders review of two loan modification applications demonstrated conclusive[] compli[ance] with former § 2923.5, predecessor statute to former § 2923.55].). In the opposition, Plaintiff asserts that the undisputed evidence shows that Plaintiff was never considered for a loan workout option prior to Defendant recording the Notice of Default at issue, as the Notice of Default makes clear that Defendant believed it had no obligation to do so. (Oppn at p. 10:1-4, emphasis omitted.) But Plaintiff does not identify what undisputed evidence she is referring to. As discussed, the SAC alleges that [t]he Bankruptcy court granted the Motion for Relief from stay and CENTER STREET recorded a new Notice of Default on May 31, 2023, and that [o]n September 5, 2023, Defendant recorded a Notice of Trustees Sale and set the property for auction on October 3, 2023. (SAC, ¶¶ 18, 21, emphasis added.) The subject Stipulation for Chapter 11 Plan Treatment and Order Dismissing Objection to Proof of Claim with Prejudice was filed on August 27, 2019, before the alleged May 31, 2023 notice of default and September 5, 2023 notice of trustees sale. (Center Street Parties RJN, ¶ 6, Ex F.) In Billesbach v. Specialized Loan Servicing LLC, supra, 63 Cal.App.5th at pages 837-838, cited by Plaintiff, the Court of Appeal noted that as follows: First, by its terms, the HBOR creates liability only for material violations that have not been remedied before the foreclosure sale is recorded. A material violation is one that affected the borrowers loan obligations, disrupted the borrowers loan-modification process, or otherwise harmed the borrower. Based on these principles, we hold that where a mortgage servicer[]s violations stem from its failure to communicate with the borrower before recording a notice of default, the servicer may cure these violations by doing what respondent did here: postponing the foreclosure sale, communicating with the borrower about potential foreclosure alternatives, and fully considering any application by the borrower for a loan modification. Following these corrective measures, any remaining violation relating to the recording of the notice of default is immaterial, and a new notice of default is therefore not required to avoid liability. We do not endorse respondents conduct in failing to communicate with appellant before initiating foreclosure proceedings and failing to comply with other statutory requirements. Mortgage servicers should take care to comply with their statutory obligations in the first instance, rather than seek to cure violations after a borrower has sued them. We conclude only that appellant has provided no basis for liability under the HBOR. (Emphasis added.) Plaintiff also argues in the opposition that the Stipulation for Chapter 11 Plan Treatment and Order Dismissing Objection To Proof of Claim was not a formal foreclosure workout option. It was an agreement in bankruptcy governing how Defendants claim would be paid through Plaintiffs Chapter 11 Plan. (Oppn at p. 9:18-21.) But Plaintiff does not appear to cite any legal authority to support the proposition that the subject Stipulation was not a formal foreclosure workout option. (Oppn at p. 9:19.) Plaintiff does not appear to dispute that the terms of the subject loan were modified before the May 21, 2023 notice of default was recorded. (SAC, ¶ 18.) Based on the foregoing, the Court sustains the Center Street Parties demurrer to the first cause of action of the SAC. E. Second Cause of Action for Violation of Business and Professions Code Section 17200 et seq. The UCL does not proscribe specific activities, but broadly prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. The UCL governs anti-competitive business practices as well as injuries to consumers, and has as a major purpose the preservation of fair business competition. By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. Because§ion 17200 is written in the disjunctive, it establishes three varieties of unfair competitionacts or practices which are unlawful, or unfair, or fraudulent. (Puentes v. Wells Fargo Home Mortgage, Inc. (2008) 160 Cal.App.4th 638, 643-644 [internal quotations and citations omitted].) The Center Street Parties assert that [h]ere, Plaintiffs second cause of action is derivative of her first cause of action&For the reasons discussed above, the first cause of action fails and it follows that Plaintiffs derivative second cause of action also fails. (Demurrer at p. 10:7-9.) The Center Street Parties cite to paragraph 34 of the SAC, which alleges that Defendants violation of California Civil Code § 2923.55 constitute [sic] unfair business practices in violation of California Business and Professions Code § 17200 et seq. (SAC, ¶ 34.) In the opposition, Plaintiff asserts that [s]ince Plaintiff has sufficiently alleged their [sic] underlying claims, his [sic] claim for violation of Civil Code § 17200 is also sufficiently alleged. (Oppn at p. 11:15-16.) As set forth above, the Court sustains the Center Street Parties demurrer to the first cause of action of the SAC. The Center Street Parties also argue that Plaintiff must show that the allegedly wrongful conduct caused economic injury. While she provides a generic list of alleged injuries, she fails to allege facts showing how the alleged misconduct caused these purported injuries. (Demurrer at p. 10:24-26.) Plaintiff does not appear to respond to or dispute this argument in the opposition. The Center Street Parties cite to Business and Professions Code section 17204, which provides in pertinent part that [a]ctions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction&by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. The second cause of action alleges that Plaintiff was injured and suffered actual damages including but not limited to, loss of money and property, loss of reputation and goodwill, and severe emotional distress, according to proof at trial but within the jurisdiction of this Court[.] (SAC, ¶ 39.) However, as noted by the Center Street Parties, Plaintiff does not appear to allege facts showing how the alleged misconduct caused these purported injuries.[3] Based on the foregoing, the Court sustains the Center Street Parties demurrer to the second cause of action of the SAC.[4] Motion to Strike A court may strike any irrelevant, false, or improper matter inserted in any pleading or any part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437.) The Center Street Parties move to strike Center Street Lending VIII SPE, LLC as a defendant from the SAC. The Center Street Parties note that the FAC named defendants Center Street Lending Corporation and Center Street Lending Fund IV SPE, LLC. As discussed, on May 23, 2024, the Court issued an Order sustaining Center Street Lending Corporation and Center Street Lending Fund IV SPC, LLCs demurrer to the first and second causes of action of the FAC, with leave to amend. As noted by the Center Street Parties, in the May 23, 2024 Order, [t]he Court did not order or otherwise authorize Plaintiff to add a new party, such as Center Street VIII. (Mot. at p. 1:28.) The Center Street Parties cite to Taliaferro v. Davis (1963) 220 Cal.App.2d 793, 795, where the Court of Appeal noted that [l]eave of court is required under section 473 of the Code of Civil Procedure to add new parties defendant. (Internal quotations omitted.) The Taliaferro Court found that the trial court was correct in striking the amended complaint because of plaintiffs attempt, without permission of court, to add Dorothy Davis as a party defendant& (Ibid.) In the opposition, Plaintiff contends that in opposing the Demurrer to First Amended Complaint, Plaintiff plainly asked for leave to amend to add the current beneficiary into the loan&Therefore, Defendants motion to strike fails and should be overruled. (Oppn at p. 2:18-21.) But Plaintiff does not appear to dispute that the Court did not grant her leave to amend the FAC to add Center Street Lending VIII SPE, LLC as a defendant. Based on the foregoing, the Court grants the Center Street Parties motion to strike Center Street Lending VIII SPE, LLC as a defendant from the SAC, without leave to amend. Conclusion Based on the foregoing, the Court sustains the Center Street Parties demurrer to the first and second causes of action of the SAC. The Court is inclined to sustain the demurrer with leave to amend, because the Center Street Parties argument that Plaintiff is unable to plead a material violation (Demurrer at p. 8:19) was not addressed in the Courts May 23, 2024 Order on the previous demurrer to the FAC. The May 23, 2024 Order also did not address the Center Street Parties argument concerning economic injury as to the second cause of action. The Court grants the Center Street Parties motion to strike, without leave to amend. The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders the Center Street Parties to file and serve a proposed judgment of dismissal within 30 days of the date of this Order.¿¿¿ /// /// The Center Street Parties are ordered to give notice of this Order. DATED: September 4, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court [1]The Center Street Parties do not appear to include the full name of this entity, or argue that it is distinct from Center Street Lending VIII SPE, LLC. [2]The Center Street Parties cite to State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412, where the Court of Appeal noted that [t]he complaint should be read as containing the judicially noticeable facts, even when the pleading contains an express allegation to the contrary&A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false. (Internal quotations omitted.) [3]As to the second cause of action, the Center Street Parties also argue that Plaintiff must show that there is ongoing conduct in order to succeed&A violation under the UCL cannot remedy past conduct that is not ongoing. (Demurrer at p. 10:19-23.) However, the Center Street Parties do not appear to cite any legal authority to support this argument. [4]Plaintiff also asserts in the opposition that Defendants completely fail to demur to Plaintiffs claim for violation of Business and Professions Code § 17200. (Oppn at p. 11:17-18.) It is unclear why Plaintiff makes this argument. The Center Street Parties demurrer concerns both the first and second causes of action of the SAC. (See Demurrer at p. 3.) In addition, as discussed above, the memorandum of points and authorities in support of the demurrer discusses the second cause of action.
Ruling
TYLER RAYNE VS IGNAT STEPANENKO, ET AL.
Sep 04, 2024 |22CHCV00226
Case Number: 22CHCV00226 Hearing Date: September 4, 2024 Dept: F47 Dept. F47 Date: 9/4/24 TRIAL DATE: 8/18/25 Case #22CHCV00226 MOTION FOR ORDER TO SHOW CAUSE RE CONTEMPT & FOR SANCTIONS Motion filed on 7/24/24. MOVING PARTY: Defendant/Cross-Complainant Jack Shut RESPONDING PARTY: Defendant/Cross-Defendant Daria Stepanenko aka Darya Malomuzh (defaulted) NOTICE: ok RELIEF REQUESTED: An order to show cause re contempt and for sanctions against defaulted Defendant/Cross-Defendant Daria Stepanenko aka Darya Malomuzh for her refusal to comply with a Deposition Subpoena for Personal Appearance and Production of Documents and Things, and for an award of sanctions in the amount of $3,304.00 against Daria Stepanenko. RULING: The motion is granted as set forth below. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of Plaintiff Tyler Raynes (Plaintiff) claim that Defendants/Cross-Defendants Ignat (Ignat) and Daria (Daria) Stepanenko, husband and wife, forged a grant deed conveying Plaintiffs one-half interest in their deceased mothers residential property to Ignat. Thereafter, Ignat gave Defendant/Cross-Complainant Jack Shut (Shut) a deed of trust to secure a $247,000.00 mortgage against the property. In his complaint, Plaintiff alleges that his and Ignats mother, Yelena Stepanenko (Yelena) acquired the fee simple title interest in the subject residential real property in Canoga Park (commonly known as 23774 Burton Street, Los Angeles, California 91304) (the Property) via a Grant Deed recorded on 9/27/13. (Complaint ¶16; Shuts Request for Judicial Notice (RJN), Ex. 1, 9/27/13 Grant Deed). After a series of conveyances in 2019, title to the Property vested in Yelena, as Trustee of the Yelena Stepanenko Revocable Trust Dated September 17, 2015 (Yelena Trust) and Plaintiff by way of a Quitclaim Deed recorded on 9/25/19. (RJN, Ex.2-5, 9/18/15 Grant Deed, 5/10/19 Grant Deed, 7/19/19 Grant Deed, 9/24/19 Quitclaim Deed). Yelena died on 5/18/21. (RJN, Ex.6). Plaintiff alleges that Defendant IGNAT STEPANENKO unlawfully converted the Subject Property and the funds that he received as a result of the Trust Deed in the amount of two-hundred thousand dollars ($200,000) as the borrower without Plaintiffs knowledge, authorization or consent. (Complaint, ¶ 64). Plaintiff further alleges that Defendants caused a false Grant Deed to be recorded purporting to have been executed on November 19, 2021 by Plaintiff, a single man, and further purporting to grant all of his interest in the Real Property to Defendant IGNAT STEPANENKO, a married man as his sole and separate property. (Complaint ¶65). This Grant Deed, recorded on 11/23/21, conveyed the fee simple interest in the Property from both Ignat, as Successor Trustee of the Yelena Trust, and Plaintiff to Ignat alone. (RJN, Ex.7, 11/23/21 Grant Deed; Complaint ¶19). Plaintiff contends that his signature on this Grant Deed is a forgery. (Complaint ¶¶21-24). On 11/23/21, a Deed of Trust in favor of beneficiary Shut was recorded to secure a $200,000.00 loan from Shut to Ignat. (RJN, Ex.8, 11/23/21 Deed of Trust). By way of his complaint filed on 4/1/22, Plaintiff seeks to void the 11/23/21 Grant Deed and Deed of Trust. (Complaint ¶¶28-29). On 6/30/22, Shut filed an answer to Plaintiffs complaint and a cross-complaint which seeks to affirm the validity of the 11/23/21 Deed of Trust as a lien against the Property or in the alternative to establish an equitable lien for the amount Shuts loan proceeds paid off existing liens on the Property, as well as reforming an erroneous legal description in the 11/21/22 Grant Deed and Deed of Trust. (See 6/30/22 Cross-Complaint, generally). Having failed to respond to either the complaint or cross-complaint, Ignat and Darias defaults on both pleadings have been entered. (See Default entered 5/27/22 on Complaint; Default entered 11/23/22 on Cross-Complaint). On 8/7/23, Shut caused Daria to be personally served with a Deposition Subpoena For Personal Appearance And Production Of Documents And Things (Subpoena) at the Property which Shut contends is Ignat and Darias residence. (Leonhardt Decl., Ex.9, Subpoena). The Subpoena ordered Darias appearance for deposition on 9/1/23. Id. Pursuant to CCP 2025.220(b), on 8/15/23, Shuts counsel served a Notice of Deposition for the Subpoena served on Daria to the parties in the action. (Leonhardt Decl., Ex.10, Notice of Deposition). On 9/1/23, Daria failed to appear for her deposition. (Leonhardt Decl. ¶16, Ex.11, Affidavit Of Certified Shorthand Reporter Re Nonappearance Of Witness of Witness, dated 9/1/23). Daria failed to contact Shuts counsel to request rescheduling of the deposition. (Id. at ¶16). On 10/16/23, Shuts counsel sent Daria a meet and confer letter addressing her non-compliance with the Subpoena. (Leonhardt Decl., Ex.12, Letter to Daria, dated 10/16.23). Shuts counsel received no response. (Leonhardt Decl. ¶17). Therefore, on 2/13/24, Shut filed and served on the other parties who have appeared in this action a motion seeking an order to show cause re contempt and for sanctions against defaulted Defendant/Cross-Defendant Daria Stepanenko for her refusal to comply with a Deposition Subpoena for Personal Appearance and Production of Documents and Things, and for an award of sanctions in the amount of $3,304.00 against Daria Stepanenko. On 2/16/24, Shut filed a proof of service indicating the motion was served by U.S. Mail on Ignat and Daria on 2/16/24. On 7/19/24, the Court placed the motion filed on 2/13/24 off calendar due to insufficient notice. (See 7/19/24 Minute Order). On 7/24/24, Shut filed and served on the other parties who have appeared in this action the instant motion seeking an order to show cause re contempt and for sanctions against defaulted Defendant/Cross-Defendant Daria Stepanenko for her refusal to comply with a Deposition Subpoena for Personal Appearance and Production of Documents and Things, and for an award of sanctions in the amount of $3,304.00 against Daria Stepanenko. Specifically, Shut requests that the Court order Daria to immediately comply in appearing for deposition by a date certain or be subject to imprisonment. (See Motion, p.1:27-p.2:1). On 7/27/24, Shut personally served the above motion on Daria. (See Proof of Service filed 8/7/24). No opposition or other response to the motion has been filed. ANALYSIS Shuts Request for Judicial Notice (RJN) is granted. An indirect contempt proceeding is commenced by the filing of an affidavit and a request for an order to show cause. Cedars-Sinai Imaging Medical Group (2000) 83 CA4th 1281, 1286 citing CCP 1211(a). It has been held that after notice to the opposing partys counsel, if the court is satisfied with the sufficiency of the affidavit, it must sign an Order to Show Cause re Contempt in which the date and time of the hearing are set forth. Id. citing CCP 1212. Since Daria is in default and not represented by counsel, Shut properly personally served her with notice of the 9/4/24 hearing on this matter. (See Proof of Service filed 8/7/24). The attendance and testimony of a deponent who is not a party to the action, as well as the production by the deponent of any document, electronically stored information, or tangible thing for inspection and copying, requires the service on the deponent of a deposition subpoena. CCP 2025.280(b); See also Terry (2009) 175 CA4th 352, 357. A deponent who disobeys a deposition subpoena may be punished for contempt, without the necessity of a prior court order directing compliance by the witness or any showing of good cause. CCP 1209(a)(10), CCP 1991, CCP 1991.1, CCP 2020.240, CCP 2023.030(e). Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court issuing the subpoena. CCP 1991. Disobedience means a conscious refusal to attend the deposition. It must be shown that the witness had knowledge of the subpoena, the ability to comply with it, and deliberately failed to do so. Weil & Brown, California Practice Guide Civil Procedure Before Trial Ch. 8E-6, ¶ 8:535. A person found guilty of contempt is subject to a fine (up to $1,000) or imprisonment (up to 5 days), or both. CCP 1218(a); See People v. Gonzalez (1996) 12 C4th 804, 816. A court may also impose civil contempt sanctions: i.e., imprisonment until the party complies (or as a practical matter, agrees to comply). CCP 1219(a). Monetary sanctions may also be imposed on non-parties who disobey the discovery process. Temple Community Hospital (1999) 20 C4th 464, 476-477; Sears, Roebuck & Co. (2005) 131 CA4th 1342, 1350-1351; CCP 2023.010(d), (g), (i); CCP 2023.030(a). Here, Shut has incurred fees and costs in the amount of $3,304.00 in relation to Darias failed deposition and the instant motion. (Leonhardt Decl. ¶¶19-21). CONCLUSION The Court finds the declaration of attorney Donald E. Leonhardt sufficient to support the issuance of an Order to Show Cause Re Contempt and Sanctions against Daria. Therefore, the Court will issue/sign an Order to Show Cause as to why Daria Stepanenko aka Darya Malomuzh should not be held in contempt for failing to comply with the Deposition Subpoena for Personal Appearance served on 8/7/23 and why monetary sanctions should not be imposed against Daria Stepanenko aka Darya Malomuzh. Shut must personally serve Daria Stepanenko with the affidavit filed in support of this motion and the Order to Show Cause. See Cedars-Sinai Imaging Medical Group (2000) 83 CA4th 1281, 1286-1287
Ruling
COLEMAN vs. SANCHEZ, et al.
Sep 04, 2024 |CVCV21-0197682
COLEMAN VS. SANCHEZ, ET AL.Case Number: CVCV21-0197682This matter is on calendar for review regarding status of judgment. A Judgment was filed andexecuted on August 9, 2024. Notice of Entry of Judgment was filed August 20, 2024. Noappearance is necessary on today’s calendar.
Ruling
SUNDO HONG VS SU BE HONG
Sep 05, 2024 |23STCV12280
Case Number: 23STCV12280 Hearing Date: September 5, 2024 Dept: 73 09/05/2024 Dept. 73 Hon. Rolf Treu, Judge presiding SUNDO HONG v. SUN BE HONG (23STCV12280) Counsel for Plaintiff/moving party: Jacob Iloulian (Law Office of Jacob Illoulian) Counsel for Defendant: Justin Rodriguez (Justice Law Partners, Inc.) MOTION FOR RECONSIDERATION OF PRIOR ORDER FOR APPOINTMENT OF REFEREE (filed 5/09/2024) TENTATIVE RULING Defendants motion for reconsideration is DENIED. I. BACKGROUND On June 1, 2023, Plaintiff Sundo Hong (Plaintiff) filed the instant action against Defendant Sun Be Hong (Defendant). This is an action for partition by sale of the commercial property at 6840 S. Crenshaw Blvd., Los Angeles, CA 90043, held equally as joint tenants by Plaintiff and Defendant. (FAC, ¶ 1.) Plaintiff alleges Defendant refused to voluntarily sell the real property in question or buy out the share of Plaintiffs interest. (Ibid.) On March 4, 2023, Plaintiff filed the Motion for Interlocutory Judgment of Partition by Sale and Appointment of Partition Referee. Defendant did not file an opposition. On May 1, 2024, the Court granted Plaintiffs motion. II.DISCUSSION A. Judicial Notice Defendant requests judicial notice of the Complaint for Interpleader filed by Fenix Entrepreneur Inc., Case No. 24STCV17180. The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States, and [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subds. (c), (d), and (h).)¿¿ The Court grants Defendants request for judicial notice. B. Motion for Reconsideration Defendant moves for reconsideration of the Courts May 1, 2024 order granting Plaintiffs Motion for Interlocutory Judgment of Partition by Sale and Appointment of Partition Referee. The moving party must present new facts, circ*mstances or law in order to grant a motion for reconsideration. (See CCP § 1008(a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circ*mstances are claimed to be shown. (CCP § 1008(a).) Further, &the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added].) The legislative intent was to restrict motions for reconsideration to circ*mstances where a party offers the court some fact or circ*mstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Defendant asserts that new or different circ*mstances exist warranting reconsideration. Defendant contends that an interpleader was filed after the time of Plaintiffs Motion whereby a Buyer who previously entered into a Purchase Agreement with the Defendant, prior to the filing of the Complaint for Partition, declared a stake in the instant case. (Motion, p. 3.) Defendant also states that counsel for Defendant was limited in his ability to participate meaningfully in the May 1st hearing as he was engaged in a trial matter and Defendants opposition had not been effectively filed for the Courts consideration. (Motion, p. 4.) The Court does not find that Defendant has sufficiently established new or different circ*mstances that could not have been offered earlier. According to Defendant, Martin Fierro entered into a January 20, 2023 Purchase Agreement to buy Defendant's 1/2 Joint Tenant interest in the subject real property owned with Plaintiff Sun Do Hong, thereby severing the joint tenancy. (Motion, Ex. B.) Thus, Defendant had this information in January 2023, before Plaintiffs Motion was heard on May 1, 2024. Therefore, Defendant could have offered this information earlier at the time of Plaintiffs Motion. Yet, Defendant failed to file an opposition. Therefore, the Court does not find reconsideration is warranted. Accordingly, Defendants motion for reconsideration is DENIED. III. CONCLUSION Defendants motion for reconsideration is DENIED.
Document
Mario Tyson v. Andrew Tyson
Aug 29, 2024 |Real Property - Partition |Real Property - Partition |621559/2024
Document
Bank Of America, N.A., v. Luis Diaz, John Stockton, Deborah Stockton, Rlf Mortgage Corporation, Its Successors And Assigns, Jpmorgan Chase Bank, N.A., John Doe JOHN DOE 1-100
Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |621565/2024
Document
Wells Fargo Bank, N.A. v. Any Unknown Heirs, Devisees, Distributees Or Successors In Interest Of The Late John Searing, If Living, And If Any Be Dead, Any And All Persons Who Are Spouses, Widows, Grantees, Mortgagees, Lienors, Heirs, Devisees, Distributees, Executors, ADMINISTRATORS, OR SUCCESSORS IN INTEREST OF SUCH OF THEM AS MAY BE DEAD, AND THEIR SPOUSES, HEIRS, DEVISEES, DISTRIBUTEES AND SUCCESSORS IN INTEREST, ALL OF WHOM AND WHOSE NAMES AND PLACES OF RESIDENCE ARE UNKNOWN TO PLAINTIFF, Ann T. Searing, United States Of America By The Internal Revenue Service, New York State Department Of Taxation And Finance, John Doe
Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |621562/2024
Document
Towd Point Mortgage Trust 2018-2, U.S. Bank National Association, As Indenture Trustee v. Rafael J. Reyes A/K/A RAFAEL JOSE REYES AS HEIR AND DISTRIBUTEE OF THE ESTATE OF CARMEN REYES A/K/A CARMAN REYES, Rafael J. Reyes A/K/A RAFAEL JOSE REYES, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF RAFAEL REYES A/K/A RAFAEL G. REYES, Heirs And Distributees Of The Estate Of Carmen Reyes A/K/A Carman Reyes, Heirs And Distributees Of The Estate Of Rafael Reyes A/K/A Rafael G. Reyes, Clerk Of The Suffolk County Traffic And Parking Violations Agency, Midland Funding Llc, Lvnv Funding Llc, Nassau Operating Company Llc D/B/A Nassau Extended Care Facility, United States Of America, New York State Department Of Taxation And Finance, John Doe 1-JOHN DOE 12 THE LAST TWELVE NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF,THE PERSONS OR PARTIES INTENDED BEING THE TENANTS,OCCUPANTS,PERSONS OR CORPORATIONS,IF ANY,HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES,DESCRIBED IN THE COMPLAINT
Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |621563/2024
Document
U.S. Bank National Association, As Trustee For Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-Opt1 v. Diane Walpole a/k/a Diane Schweickert, Christopher Walpole Trustee, under the D.J. Walpole Irrevocable Trust dated July 17, 2019, Cypress Financial Recoveries Llc, Midland Funding Llc, Unifund Ccr Partners, Toyota Motor Credit Corporation, Clerk Of Suffolk County, John Doe #1 Through John Doe #12, The Last Twelve Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Subject Property described in the Complaint
Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |621616/2024
Document
Towd Point Mortgage Trust 2018-2, U.S. Bank National Association, As Indenture Trustee v. Rafael J. Reyes A/K/A RAFAEL JOSE REYES AS HEIR AND DISTRIBUTEE OF THE ESTATE OF CARMEN REYES A/K/A CARMAN REYES, Rafael J. Reyes A/K/A RAFAEL JOSE REYES, AS HEIR AND DISTRIBUTEE OF THE ESTATE OF RAFAEL REYES A/K/A RAFAEL G. REYES, Heirs And Distributees Of The Estate Of Carmen Reyes A/K/A Carman Reyes, Heirs And Distributees Of The Estate Of Rafael Reyes A/K/A Rafael G. Reyes, Clerk Of The Suffolk County Traffic And Parking Violations Agency, Midland Funding Llc, Lvnv Funding Llc, Nassau Operating Company Llc D/B/A Nassau Extended Care Facility, United States Of America, New York State Department Of Taxation And Finance, John Doe 1-JOHN DOE 12 THE LAST TWELVE NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF,THE PERSONS OR PARTIES INTENDED BEING THE TENANTS,OCCUPANTS,PERSONS OR CORPORATIONS,IF ANY,HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES,DESCRIBED IN THE COMPLAINT
Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |621563/2024
Document
Webster Bank, Na v. Blake Davies A/K/A BLAKE A. DAVIES, Lisle Davies A/K/A LISLE N. DAVIES, New York State Department Of Taxation And Finance, John Does, Jane Does SAID NAMES BEING FICTITIOUS, PARTIES INTENDED BEING POSSIBLE TENANTS OR OCCUPANTS OF PREMISES, AND CORPORATIONS, OTHER ENTITIES OR PERSONS WHO CLAIM, OR MAY CLAIM, A LIEN AGAINST THE PREMISES
Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |621610/2024
Document
Hsbc Bank Usa, N.A., As Indenture Trustee For The Registered Noteholders Of Renaissance Home Equity Loan Trust 2007-2, v. Susan Petrunti-Trnka A/K/A SUSAN TRNKA, Stanley Trnka A/K/A STANLEY L. TRNKA, JR., Huntington Community Development Agency, Clerk Of The Suffolk County Traffic And Parking Violations Agency, Midland Funding Of Delaware Llc Dba In New York As Midland Funding Llc, John Doe, Jane Doe
Aug 29, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |621614/2024
