COMPLAINT January 23, 2024 (2024)

Case

VASQUEZ, JOEL vs. GIRARDI, JOEY

Aug 01, 2024 |M8 STACIE L KAYLOR |EVIC - EVICTION (RESIDENTIAL) |2024CC006310000000

Case

LEON, JOSE GUILLERMO vs. FLORES, MARIA

Aug 01, 2024 |M8 STACIE L KAYLOR |EVIC - EVICTION (RESIDENTIAL) |2024CC006308000000

Case

MILLER, STEVEN W vs. HALL, BERNESHA

Jul 30, 2024 |M8 STACIE L KAYLOR |EVIC - EVICTION (RESIDENTIAL) |2024CC0062000000WH

Case

HERNANDEZ, SANDRA vs. WESTMORELAND, JUSTIN

Aug 02, 2024 |M8 STACIE L KAYLOR |EVIC - EVICTION (RESIDENTIAL) |2024CC006330000000

Case

ORLANDO REALTY GROUP, LLC vs. OSBORNE, JOHN D

Jul 29, 2024 |M8 STACIE L KAYLOR |EVIC - EVICTION (RESIDENTIAL) |2024CC006178000000

Case

CHERISHOME LAKELAND LLC vs. ALONSO, DANIEL

Aug 01, 2024 |M8 STACIE L KAYLOR |EVIC - EVICTION (RESIDENTIAL) |2024CC006302000000

Case

FREEDOM MORTGAGE CORPORATION vs. FELDER LUKUS LEVI

Jul 30, 2024 |08 ELLEN S MASTERS |RPMFH - FORECLOSURE HOMESTEAD RESIDENTIAL |2024CA002930000000

Case

YES COMPANIES KEY LLC vs. DAVIS, JOSEPH EDWARD

Jul 29, 2024 |M8 STACIE L KAYLOR |EVIC - EVICTION (RESIDENTIAL) |2024CC006164000000

Case

CMG MORTGAGE INC vs. CHEVRY STEPHANIE

Jul 31, 2024 |07 REINALDO OJEDA |RPMFN - FORECLOSURE NON HOMESTEAD RESIDENT |2024CA002964000000

Ruling

WEST IDAHO LLC VS CATHERINE ZHANG

Aug 05, 2024 |21SMUD00229

Case Number: 21SMUD00229 Hearing Date: August 5, 2024 Dept: P Tentative Ruling West Idaho, LLC v. Zhang, Case No. 21SMUD00229 Hearing date June 12, 2024, continued to 08/05/2024 Cross-defendant West Idahos Motion for Summary Judgment and/or Summary Adjudication as to Cross-complainant Zhangs -- UNOPPOSED Cross-defendant West Idaho LLC moves for summary judgment as to Zhangs cross complaint. The motion is unopposed. West Idaho sued Zhang for unlawful detainer. Zhang cross-complained, alleging (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) forcible detainer and (4) conversion. The cross-complaint alleges a security guard employed by West Idaho pointed a gun towards her door, and West Idaho changed the locks on her apartment. A party is entitled to bring a motion for summary judgment where there are no triable issues of fact and moving party is entitled to judgment as a matter of law. Code Civ. Proc., § 437c(c). Defendant bears the initial burden of establishing one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Id. subd. (p)(2). Only when this initial burden is met does the burden shift to the opposing party to show a triable issue of material fact. Id. A party may move for summary adjudication as to one or more causes of action if the party contends the cause of action has no merit. Id. subd. (f)(1). A party may move for summary adjudication as an alternative to summary judgment and shall proceed in all procedural respects as a motion for summary judgment. Id. subd. (f)(2). Even though a motion for summary judgment is unopposed, the court cannot grant summary judgment unless defendant meets its initial burden. See Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305. The scope of the defendants initial burden is defined by the pleadings. See 580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal.App.3d 1, 18. Intentional Infliction of Emotional Distress The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted. West Idaho argues Zhang cannot establish the conduct was outrageous. Deciding whether conduct is outrageous is usually a question of fact. So v. Shin (2013) 212 Cal.App.4th 652, 672, as modified on denial of reh'g (Jan. 28, 2013). A defendants conduct is considered to be extreme and outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007; Hughes v. Pair (2009) 46 Cal.4th 1035, 1051. Defendants argue the video footage is undisputed evidence that the security guards conduct was not extreme or outrageous. Video of the incident shows the guard was holding a phone, not a gun (UMF No. 5). The guard Mohseni states when he was at the premises on March 5, 2021, he did not have a gun in his possession. Mohseni Decl. ¶5. Defendant meets the initial burden of showing there was no extreme or outrageous conduct; the burden shifts to plaintiff to show a triable issue of material fact. As no opposition has been filed, Zhang has not established a question of material fact as to any conduct that was extreme or outrageous. Negligent Infliction of Emotional Distress The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588-589. The emotional distress suffered by the plaintiff must be so severe and enduring that no reasonable person could be expected to endure it. Bogard v. Employers Causalty Co. (1985) 164 Cal.App.3d 602, 617-618. A landlord owes a tenant a duty of reasonable care in providing and maintaining the rented premises in a safe condition. Civ. Code §1714(a); Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1189. This means a landlord in caring for the property, must act toward the tenant as a reasonable person under all of the circ*mstances. Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779. West Idaho argues Zhang cannot establish that West Idaho breached any duty. West Idaho presents evidence that Mohseni went to Zhangs apartment to investigate a noise complaint. UMF No. 2. Video evidence demonstrates Mohsenis hand was holding a phone, not a gun. UMF No. 5. Mohseni states that he did not have a gun in possession during the incident. Mohseni Decl. ¶5. Mohseni acted reasonably in investigating the noise complaint by appearing in-person. Moving party meets its initial burden regarding the NIED claim. No opposition has been filed; Zhang has not raised a question of material fact as to the NIED claim. Forcible Detainer A person is guilty of a forcible detainer who either: (1) By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise. (2) Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. Cal. Code Civ. Proc. §1160 Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to retrieve her possessions make it guilty of forcible detainer. West Idaho argues the forcible detainer claim fails because Zhang voluntarily vacated the premises before the locks were changed. It presents evidence of her voluntarily vacating prior to West Idaho changing the locks. UMF No. 10. Zhang returned her key to West Idahos leasing office, and all of her belongings were vacated prior to West Idaho changing the Premises locks. UMF No. 11. Section 1160 does not apply unless the defendant who entered the property, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. West Idaho presents evidence that Zhang returned her key to its leasing office, and all her belongings were vacated before it changed the locks. Zhang was no longer occupying the apartment, and West Idaho did not unlawfully enter the property. Defendant meets its initial burden. As no opposition has been filed, Zhang has not raised a question of material fact as to forcible detainer. Conversion Zhang alleges West Idahos changing of the locks on the apartment and refusing to allow her to obtain her property constitute a wrongful act or disposition of property rights and makes it liable for conversion. The elements for conversion are: (1) the plaintiff owned or had the right to possess the personal property; (2) the defendant disposed of the property in a manner inconsistent with the plaintiffs property rights; and (3) resulting damages. Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 544, as modified on denial of reh'g (Apr. 10, 1996). West Idaho argues Zhang has not shown ownership or right to possession at the time of the alleged conversion, as per the above analysis. West Idaho meets its initial burden; Zhang has not shown any material facts in dispute. GRANTED.

Ruling

CHARLIE JORDAN, AN INDIVIDUAL, ET AL. VS DIKRAN KESKERIAN, AS TRUSTEE OF THE KESKERIAN FAMILY TRUST, ET AL.

Jul 31, 2024 |23STCV23852

Case Number: 23STCV23852 Hearing Date: July 31, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 CHARLIE JORDAN, et al., Plaintiffs, v. DIKRAN KESKERIAN, et al., Defendants. Case No.: 23STCV23852 Hearing Date: 7/31/24 Trial Date: 4/22/25 [TENTATIVE] RULING RE: Petitioner Erika Lopezs Petitions for Minors Compromise This action involves a breach of warranty of habitability action brought by tenant Plaintiffs Charlie Jordan, Erika Lopez, and minors, Eliezer Danilo Franco Lopez, and Massieli Adriana Franco Lopez, against Defendants Dikran Keskerian, and Anny Keskerian, as trustees of the Keskerian Family Trust. The Complaint alleges that the residential property leased by plaintiffs from defendants was plagued with vermin, insects and rodent infestations, had defective and deteriorated flooring, was improperly maintained, failed to conform to code regulations, did not have operable, clean and sanitary windows and doors, had loose plumbing fixtures, and lacked the required electrical lighting. Plaintiffs filed their complaint in October of 2023, and the first amended complaint alleges causes of action for: (1) Breach of Warranty of Habitability; (2) Breach of Covenant of Quiet Enjoyment; (3) Negligence; and (4) Breach of Contract. On July 1, 2024, Petitioner and Guardian Ad Litem Erika Lopez filed two unopposed Petitions for Approval of Compromise of Claim or Action for Minors (the Petitions) Eliezer Danilo Franco Lopez and Massieli Adriana Franco Lopez. The Petitions detail a gross $95,000 Settlement between the Parties, with a distribution of $60,000 to Charlie Jordan, and $25,000 to Erika Lopez, and $5,000 for each of Claimant, and a final net settlement of $3,438.35 for each Claimant. Petitions to Approve Compromise for Minor or Person with Disability: GRANTED Legal Standard: Under Code of Civil Procedure section 372, any settlement of a claim made by a minor or adult with a disability must be approved by the Court. (See also Prob. Code § 3600, subd. (b) [a compromise or covenant for a disputed claim or damages, money, or other property of a minor or person who lacks legal capacity is valid only after it has been approved by the superior court].) ¿A petition for court approval of a compromise of a minor or disabled adults compromise or settlement of a pending action or proceeding to which this person is a party must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition. (Cal. Rules of Court, rule 7.950; see also Cal. Rules of Court, rules 7.951-52.) The petition is generally submitted on a completed Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability (form MC-350). (Cal. Rules of Court, rule 7.950.) If the Court is satisfied that the settlement is in the best interest of the¿person, then the Court should approve the settlement.¿¿(See Pearson v. Superior Ct.¿(2012) 202 Cal.App.4th 1333, 1338.)¿¿¿¿ Procedural Requirements: A review of the instant Petition shows that it meets the requirements of California Rules of Court, rules 7.950 to 7.955. The Petitions satisfy California Rules of Court, rule 7.950. Petitioner submits a verified Civil Form MC-350 seeking approval of a settlement between Defendants and Claimants. (See Petitions, p. 10 [Petitioner verification].) Further, the Petition contains a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition, in satisfaction of California Rules of Court, rule 7.950. The Petition details $95,000 in gross settlement funds to be distributed to Plaintiffs. (Petitions, ¶¶ 11, 12.) Plaintiffs Jordan and Lopez are set to receive gross settlements of $60,000 and $25,000, respectively. (Petitions, Attach. 12.) Claimants are each to receive a gross settlement of $5,000 and net compromise of $3,438.35. (Petitions, ¶ 17(f), Attach. 12.) The remaining $1,250 of the Claimants net settlement will be used to pay attorneys fees, and $311.65 will be used for costs. (Petitions, ¶ 17(c), 17(e); see also Petitions, ¶ 14(b).) The Petitions satisfy California Rules of Court, rule 7.951. This requirement provides that where a petitioner that has been represented or assisted by an attorney in preparing the petition to compromise the claim or in any other respect with regard to the claim, the petition must disclose specific information, which the Petitions contain as follows: (1) The name, state bar number, law firm, if any, and business address of the attorney. (Petitions, ¶¿17(b)(1)-(3) [Daniel Gibalevich/Rachel Fishenfeld, 217116/270310, DAG LAW FIRM APC 12711 Ventura Blvd., Suite 220, Studio City, CA 91604].) (2) Whether the attorney has received any attorneys fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the Petitions, and, if so, the amounts and the identity of the person who paid the fees or other compensation. (Petitions, ¶¿17(c) [has not]). (3) Whether the attorney became involved with the Petitions, directly or indirectly, at the instance of any party against whom the claim is asserted or of any partys insurance carrier. (Petitions, ¶¿17(d) [did not so become involved]). (4) Whether the attorney represents or is employed by any other party or any insurance carrier involved in the matter. (Petition ¶¿17(e), Attach. 18(e) [is representing another party, i.e., both Macias-Vasquez Children and their parents, Plaintiffs Claudia Macias and Omar Vasquez]). (5) If the attorney has not received any attorneys fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the Petitions, whether the attorney expects to receive any fees or other compensation for these services, and, if so, the amounts and the identity of the person who is expected to pay the fees or other compensation. (Petitions, ¶¿17(f), is being compensated by another party, i.e., Defendants in the amount of $35,250.]). (6) The terms of any agreement between the petitioner and the attorney. (Petitions, Attach. 17a(2) [Attorney-Client Retainer Agreement].) The Guardian Ad Litem Petitioner and Plaintiffs satisfy California Rules of Court, rule 7.952. The Court presumes the Guardian will attend the hearing, and Claimants are excused for good cause given academic timing restrictions and their ages, i.e., eleven (11) years old (Massieli) and (14) years old (Eliezer). The Petitions need not satisfy California Rules of Court, rule 7.953 as the net settlement is being delivered to the parent. The Petitions need not satisfy California Rules of Court, rule 7.954. This rule provides the requirements for requesting the withdrawal of funds already deposited in favor of a minor or person with a disability pursuant to a prior compromise, which is not the case here. (See Petitions generally.) The Petitions satisfy California Rules of Court, rule 7.955. This rule requires that the Court determine whether the attorneys fees charged of a minor or a person with a disability are reasonable. Here, the Petitions contain a Declaration from Rachel Fishenfeld, Esq.the attorney who represents Plaintiffsindicating that Claimants will be paying 25% of their $5,000 gross settlementsi.e., $1,250toward legal services. (Petitions, Attach. 13(a).) The Court finds that a 25% recovery for the type of action at bar is reasonable. Substantive Requirements: The Court finds that the settlement is in the best interests of Claimants. (See Pearson, supra, 202 Cal.App.4th at p. 1338.) Claimants will each receive a gross settlement of $3,438.35, to be held by the parent in trust. The remaining $85,000 of the Settlement will be distributed to their parents, who are best positioned to care for their children and can use the remaining proceeds of the Settlement to further the economic welfare and physical wellbeing of Claimants. Conclusion: Accordingly, the Petitions for Approval of Compromise are GRANTED. Conclusion Petitioners Petitions for Approval of Compromise for Minor on behalf of Claimants are GRANTED because the Petitions meet all requirements set forth in California Rules of Court rules 7.590 to 7.595 and the Court is satisfied that the Settlement is in the best interests of Claimants.

Ruling

Montezuma Lodge No. 172, I.O.O.F., of California, a California Public Benefit Corporation vs. Connie Jean Lewis, Trustee, Lewis Family Trust

Aug 03, 2024 |CU23-05966

CU23-05966Demurrer by Defendant CONNIE LEWIS, Trustee of the Lewis Family Trust, toComplaintTENTATIVE RULINGThe papers filed in support of this demurrer include a declaration by counsel as to meetand confer efforts preceding the filing. That declaration purported to attach as anexhibit a copy of the meet and confer letter counsel claimed to have mailed to opposingcounsel. But no letter was attached.More importantly, the request for judicial notice also claimed to be attaching copies ofthe two documents for which judicial notice was being requested. These documentswere to be a copy of a page of the Assessors Map Book, “showing the propertiesalleged to be at issue in this matter”; and a copy of a Google Map page showing certainaddresses. But again, no documents were attached.The request for judicial notice was intended to support the uncertainty basis for thisdemurrer to the entirety of the complaint, and thus the court cannot find the complaint isuncertain.The demurrer to the trespass, nuisance and negligence causes of action is alsooverruled. Page 2 of 4One of the elements of trespass is satisfied by a negligent act of the defendant causingentry onto the plaintiff’s property.The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2)the defendant's intentional, reckless, or negligent entry onto the property; (3) lack ofpermission for the entry or acts in excess of permission; (4) harm; and (5) thedefendant's conduct was a substantial factor in causing the harm. (See CACI No. 2000.)Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.Likewise, an element of nuisance is met by negligent conduct causing interference withanother’s real property. Lussier v. San Lorenzo Valley Water Dist. (1988) 206Cal.App.3d 92, 102 [“a nuisance requires some sort of conduct, i.e. intentional andunreasonable, reckless, negligent, or ultrahazardous, that unreasonably interferes withanother's use and enjoyment of his property”].The complaint alleged that the Demurring Party “without approval by or permits from theCity of Dixon, personally directed an individual to pave the entire Parking Area byadding a layer of tar and gravel, (commonly called “blacktop”) [Complaint, ¶24]; that“The added layer did not maintain the previously existing grading but instead directssurface waters towards and onto the Oddfellow Property where it gathers and pools . . .[Complaint, ¶25], and causes damage [Complaint, ¶¶26-29].The court finds that the complaint gives the defendant “fair notice” of the nature, scopeand extent of the claims, by implying that the decision to pave the parking lot causedrainwater to be diverted from its historical path, to therefore pool in greater quantitiesnear the Oddfellow property. Edmon & Karnow (Weil & Brown), Civil Procedure BeforeTrial, §§6:128 and 6:129, p. 6-44.The court therefore overrules in its entirety the demurrer to complaint, and directs theDemurring Party to file and serve an answer within 30 days, to avoid the possibility ofdefault thereafter being entered.The parties are reminded to appear for the case management conference concurrentlyset for July 31 at 8:30 a.m., and the court will also conduct the OSC as to sanctions atthat time.PETITION OF ARTEFFECT XD, LLCCU24-04410Petition for Approval of Transfer of Structured Settlement Payment RightsTENTATIVE RULINGThe payee and counsel for the petitioning proposed transferee are to appear for hearingas scheduled. Zoom appearance is approved. Page 3 of 4

Ruling

Maria Castro vs. Orange Wood Plaza

Aug 01, 2024 |23CECG00945

Re: Maria Castro v. Orangewood Plaza, LLC Superior Court Case No. 23CECG00945Hearing Date: August 1, 2024 (Dept. 502)Motion: Demurrer by Defendants Boom Boom Properties LLC, B1-66ER LLC, and Orangewood Plaza LLC, to Plaintiffs’ First Amended ComplaintIF REQUESTED TIMELY, ORAL ARGUMENT WILL BE HEARD ON THURSDAY, AUGUST 8, 2024 AT 3:30PM IN DEPARTMENT 502.Tentative Ruling: To continue this motion to Thursday, August 29, 2024, at 3:30 p.m. in Department502. The parties are ordered to conduct a meet and confer session, in person or bytelephone, at least 20 days prior to the hearing, since defendants have presented adeclaration indicating that efforts to meet and confer have been insufficient. If the meetand confer resolves the issues, defendants shall call the calendar clerk to take themotions off calendar. If it does not resolve the issues, defendants shall file a declaration,on or before Thursday, August 15, 2024 at 5:00 p.m. stating the efforts made.Explanation: Code of Civil Procedure section 430.41 requires the party who is attacking thepleadings by way of demurrer to meet and confer in person or by telephone prior to filingthe motions in order to determine if the parties can reach an agreement that wouldresolve the objections and avoid having to file the motion. Then, if these efforts do notresult in reaching an agreement, the moving party must file a declaration, along with themoving papers, stating the means by which the parties met and conferred. The statutestates that if the plaintiff failed to respond to the meet and confer request or failed tomeet and confer in good faith, the declaration should state this, and this could excusethe defendant from the requirement. (Code Civ. Proc., § 430.41 subd. (a)(3).) Therefore,before the merits of demurrers or motions to strike are considered, the moving party mustfirst have demonstrated that they fulfilled the meet and confer duties. Here, defendants filed a declaration in which it is stated that their counselattempted to meet telephonically with plaintiffs’ counsel without success, and that hesent an e-mail requesting a telephonic meet and confer after leaving a voicemailrequesting the same. (Armo Decl., ¶ 2.) Plaintiffs’ failure to respond could potentiallyexcuse defendants from the meet and confer requirement. However, the declarationonly describes one attempt to meet and confer and indicates no representative wasreached, only a voicemail and an e-mail were left with plaintiffs’ counsel. Defensecounsel does not claim that plaintiffs’ counsel’s refusal to respond was not in good faithand does not describe multiple attempts to call. “A determination by the court that the meet and confer process was insufficientshall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41 subd.(a)(4), emphasis added.) The failure to meet and confer is not a reason to overrule thedemurrer, but also the failure to do so cannot then support that sustaining the demurreris the correct decision. It is not a plaintiff’s burden to meet and confer with a defendantprior to this motion, and the burden cannot be shifted to them if defendant’s efforts areinsufficient. It does not appear that defendants exerted sufficient efforts to meet andconfer with plaintiffs. The court’s normal practice in such instances is to take the motion off calendar,subject to being re-calendared once the parties have met and conferred. However,given the current congestion in the court’s calendar, the court will instead continue thehearing to allow the parties to meet and confer, and only if efforts are truly unsuccessfulwill it rule on the merits. After such good faith attempts, defendants shall file a declarationspecifically detailing the efforts made. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 07/31/24 . (Judge’s initials) (Date)

Ruling

Gamble, Pamela vs. Giffin, Dusty Leann et al

Aug 12, 2024 |S-CV-0050927

S-CV-0050927 Gamble, Pamela vs. Giffin, Dusty Leann et al** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue - Need responsive pleading,default or dismissal as to Defendant(s): Guerra, Luis; All Persons Unknownclaiming any legal or equitable right, title, estate, lien or interest in the propertydescribed in the complaint adverse to Plaintiff’s title thereto

Ruling

ALYOUSIFI, et al. vs SMIDT

Aug 01, 2024 |Civil Unlimited (Other Real Property (not emin...) |23CV034319

23CV034319: ALYOUSIFI, et al. vs SMIDT 08/01/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Ahmed Alyousifi (Plaintiff) + in Department 518Tentative Ruling - 07/29/2024 Victoria KolakowskiThe Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion filed byFatima Alyousifi, Ahmed Alyousifi on 07/05/2024 is Denied.I. BackgroundPlaintiffs Ahmed and Fatima Alyousifi sued their neighbor, Rebecca Smidt, for damages andinjunctive relief, alleging that Smidt has sought to coerce and intimidate Plaintiffs to drop theircomplaints against Smidt “by spraying Plaintiff Ahmed Alyousifi with a hose, attempting toknock a phone recording their interaction from his hand, throwing bagged dog waste inPlaintiff’s driveway, threatening to record Plaintiff’s children, intimidating Plaintiffs’ childrenand trying to bring them into the dispute, shining bright lights and cameras into the house,taunting Plaintiffs and their family, and playing music that far exceeded permissible decibellevels during quiet hours.” (Compl. ¶ 46, May 24, 2023 (unnecessary capitalization removed);see also id. ¶¶ 3–42, 47.) Plaintiffs filed a complaint against Smidt asserting causes of action forviolations of the Tom Banes Civil Rights Act, trespass, and nuisance. (Id. ¶¶ 43–64.) Smidt filedan answer generally denying the allegations and asserting several affirmative defenses. (Answer,Nov. 14, 2023.)In March 2024, Ahmed Alyousifi served upon Smidt a set of admission requests. (Corbit Decl. ¶2, July 5, 2024; see also id. Ex. 1 (copy of admission requests).) Smidt did not respond. (Id. ¶ 3;see also id. Ex. 2 (granting Smidt a two-week extension to respond to the admission requests).)Plaintiffs moved to compel responses and for a $459.02 sanction. (Mot., July 5, 2024.)Smidt opposed. (Opp’n Mem., July 25, 2024.) In it, Smidt represented that the parties had agreedto hold discovery obligations while exploring settlement options and that “[t]he discoveryresponses were provide [sic] to opposing counsel in conjunction with this opposition.” (Id. 1:26–27 (unnecessary capitalization removed).)II. DiscussionThe Court finds that the motion is moot as Smidt provided further responses. Further, the Courtfinds that imposing sanctions would be unjust given the parties’ apparent agreement concerningdiscovery.III. OrdersThe motion is DENIED. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV034319: ALYOUSIFI, et al. vs SMIDT 08/01/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Ahmed Alyousifi (Plaintiff) + in Department 518PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentativeruling will become the order of the Court unless it is contested before 4:00 PM on the court daypreceding the noticed hearing.To contest a tentative ruling, a party should do the following:First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov andcopy all counsel of record and self-represented parties. The contesting party must state in thesubject line of the email the case name, case number and motion.Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by casenumber), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest thisRuling" button, enter the party's name and a brief statement of the party's reason for contestingthe tentative, and click "Proceed."Parties may appear via videoconference, using the Zoom.com website or application.TO CONNECT TO ZOOM:Department 518 is inviting you to a scheduled ZoomGov meeting.Topic: Department 518's Personal Meeting RoomJoin ZoomGov Meetinghttps://alameda-courts-ca-gov.zoomgov.com/j/16054307984Meeting ID: 160 5430 7984One tap mobile+16692545252,,16054307984# US (San Jose)+14154494000,,16054307984# US (US Spanish Line)---Dial by your location• +1 669 254 5252 US (San Jose)

Ruling

Horacio Gutierrez vs. Shon Talley

Aug 01, 2024 |21CECG00967

Re: Gutierrez v. Talley, et al. Superior Court Case No. 21CECG00967Hearing Date: August 1, 2024 (Dept. 501)Motion: Default Prove-UpTentative Ruling: To deny without prejudice. Alternatively, should plaintiff’s counsel believe that thedefects identified below are curable, he is instructed to call for oral argument to presentadmissible evidence of plaintiff’s basis for the judgment requested and present proof thedefects have been cured.Explanation: Where a cause of action is stated in the complaint, plaintiff merely needs tointroduce evidence establishing a prima facie case for damages. (Johnson v. Stanhiser(1999) 72 Cal.App.4th 357, 361.) A defaulting defendant admits only facts well pleadedin the complaint. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.) It iserroneous to grant a default judgment where the complaint fails to state a cause ofaction. (Rose v. Lawton (1963) 215 Cal.App.2d 18, 19-20; Williams v. Foss (1924) 69 Cal.App. 705, 707-708.) In the case at bench, plaintiff Horatio Gutierrez is seeking a judgment of quiet titleas to the property located at 1835 E. Adams Ave., Fresno, California. Plaintiff filed hisComplaint on April 6, 2021, and subsequently filed his First Amended Complaint onJanuary 29, 2024, naming as defendants Shon Talley, All Persons Unknown Claiming AnyLegal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in theComplaint, or Any Cloud Upon Plaintiff’s Title Thereto, and Does 1 through 35. The firstamended complaint alleged causes of action for (1) Quiet Title, (2) Breach of OralContract, (3) False Promise, (4) Unjust Enrichment, (5) Constructive Trust, (6) DeclaratoryRelief, and (7) Equitable Estoppel. Defendant Talley was served with the First Amended Complaint by substituteservice on February 19, 2024. Defendant Talley’s default was entered April 22, 2024. Does1 through 35 have been dismissed from the action as of May 21, 2024. Defendants “AllPersons Unknown” have neither been served summons through publication nor dismissedfrom the first amended complaint. The request for default judgment presently before thecourt seeks judgment of quiet title against defendant Talley only. (Request for CourtJudgment, ¶ 1.d.) When two or more persons have adverse claims to the same property, any of theclaimants may initiate a quiet title action. The purpose of the action is to eliminate anadverse claim and to establish, perfect, or “quiet” the title of the property in one or moreof the claimants. A complaint to quiet title must be verified and must include: (1) a description ofthe property including both its legal description and its street address or commondesignation; (2) plaintiff's title and the basis upon which it is asserted; (3) the adverseclaims as against which a determination is sought; (4) the date as of which adetermination is sought and, if other than the date the complaint is filed, a statementwhy the determination is sought as of that date; and (5) a prayer for determination ofplaintiff's title against the adverse claims. (Code Civ. Proc., § 761.020.) Plaintiff’s First Amended Complaint includes allegations describing the property atissue (¶ 3), his claim to title (¶¶ 23-26, 31, 38-48), the adverse claims of all defendants (¶¶47, 50-51), the determination is sought as of the date of the filing of the complaint (¶ 49),and a prayer for the determination of plaintiff’s title against defendants’ claims (Prayer,¶ 1). The basis of plaintiff’s claim to title, as alleged, is an oral contract between himselfand defendant Talley in May 2013. (FAC, ¶ 23.) Pursuant to that agreement, Talley was totransfer title of the property to plaintiff if plaintiff prevented the foreclosure of theproperty. (Ibid.) Plaintiff performed on the oral contract by paying $46,053.07 to take theproperty out of foreclosure and has paid off the property’s mortgage and paid $754.58in back taxes. (Id. at ¶¶ 24-26.) Plaintiff thereafter moved into the home on the propertyand has paid for improvements, maintenance and property taxes up to the date of thefiling of the complaint. (Id. at ¶¶ 27-31.) Defendant Talley has lived on the property rent-free since 2013. (Id. at ¶ 32.) Following Talley’s August 2023 release from jail, defendantinformed plaintiff he was the rightful title holder after having inherited the property andtold plaintiff to remove his belonging s from the property. (Id. at ¶¶ 33-35.) DefendantTalley has since locked the property gates. (Id. at ¶ 36.) The allegations supporting plaintiff’s claim to title do not include that legal title wasever transferred to him pursuant to the oral contract with defendant Talley. Thus, anyclaim to title by plaintiff is equitable based on his performance of the oral contract asalleged. The allegations and evidence regarding defendant Talley’s claim to titleindicate he is presently the holder of legal title as the heir of Judy Merle Andrews, whocurrently holds legal title. (FAC, ¶¶ 4-8, Exh. A and B; RJN1 Exh. A-C.) The holder of an equitable interest cannot maintain an action to quiet title againstthe owner of legal title. (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 294-295.) Asplead, plaintiff does not have standing to quiet title of defendant Talley and thereforedoes not state a cause of action to quiet title to the property. Therefore, the requested judgment to quiet title of defendant Talley and nameplaintiff to be sole title holder is denied. Moreover, the proposed order submitted with plaintiff’s request for defaultjudgment includes the order that plaintiff be declared the sole title holder to the property.An in rem judgment quieting title against the whole world, is allowed where plaintiffnames “all persons unknown, claiming any legal or equitable right, title, estate, lien, or1 Plaintiffs Requests for Judicial Notice 1-6 are granted.interest in the property described in the complaint adverse to plaintiff's title, or any cloudupon plaintiff's title thereto.” (Code Civ. Proc., § 762.060, subd. (a).) This statutorylanguage is required if an in rem judgment is sought. However, in that case, plaintiff mustserve such defendant (or class of defendant) by publication of the summons, afterobtaining an order therefor. (Code Civ. Proc., §§ 763.010, subd. (b), 764.030.) Otherwise,any judgment obtained cannot include (cannot be rendered against) this class ofdefendant. Persons not made parties to the action are not bound by the judgment.(Gerhard v. Stephens (1968) 68 Cal.2d 864; Taliaferro v. Riddle (1958) 166 Cal.App.2d 124.) Plaintiff’s complaint includes as defendants “all persons” claiming an interest in thesubject property. To the extent plaintiff seeks in rem judgment against this class ofdefendants, proof of service by publication has not been sought and such judgmentcannot be granted. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 7/29/2024 . (Judge’s initials) (Date)

Ruling

Hull, et al. vs. The Cadle Company, et al.

Aug 01, 2024 |22CV-0200159

HULL, ET AL. VS. THE CADLE COMPANY, ET AL.Case Number: 22CV-0200159Tentative Ruling on Order to Show Cause Re Sanctions: An Order to Show Cause Re:Sanctions (“OSC”) issued on May 17, 2024, to Plaintiffs James Hull and Shirley Hull for failureto abide by California Rule of Court 3.110. Defendant Tri Counties Bank was amended into theComplaint on January 24, 2024. There has been no summons issued for Tri Counties Bank, andthey have not been served. The matter is not at issue. No response to the OSC has been filed.Plaintiff James Hull appeared at the most recent hearing on July 22, 2024, and informed the Courtthat he intended to dismiss this matter. The Court advised Mr. Hull that the Court would vacatethis OSC if the matter was properly dismissed prior to today’s hearing. No request for dismissalhas been filed. Plaintiff remains in violation of CRC 3.110. Sanctions will be imposed in theamount of $250. The clerk is instructed to prepare a separate Order of Sanctions.Tentative Ruling on Motion for Attorney Fees: This action alleging violations of the CaliforniaHomeowner Bill of Rights, wrongful foreclosure, and other causes of action was filed by PlaintiffJames and Shirley Hull on July 14, 2022. Plaintiffs purchased their home in 2006 with a loan fromTri-Counties Bank. BBR Investments LLC bought the loan and deed of trust in August 2016, andcurrently owns the mortgage note and deed of trust. The Cadle Company (“Cadle”) services theloan for BBR Investments LLC. The Cadle Company’s Motion for Summary Judgment wasgranted by this Court on April 15, 2024. Cadle moves now for attorney fees and costs. The motionfor fees and costs is unopposed.Merits: A prevailing party is entitled to costs. CCP § 1032. “Costs” may include attorney’s feesif they are provided by contract. CCP § 1033.5(a)(10). Civil Code § 1717 provides that on anyaction on a contract where the contract provides for attorney’s fees, the prevailing party on thecontract shall be entitled to attorney’s fees in addition to other costs. A prevailing party is definedas the party with a net recovery, a defendant in whose favor a dismissal is entered, a defendantwhen neither side obtained any relief and a defendant as against a plaintiff who do not recoveryany relief against defendant. CCP § 1032.Here, Cadle’s basis for recovery of attorney fees is contractual. The Deed of Trust betweenBorrower James and Shirley Hull, and Lender Tri Counties Bank, attached as Ex. A to the VerifiedAmended Compliant as Ex. 1, provides at p. 9 ¶ 14, for recovery of attorneys’ fees and costs relatedto the Borrower’s default for the purpose of protecting Lender’s interest in Property and Lender’srights under the Deed of Trust. A Loan Modification Agreement was entered into on December14, 2018, by The Cadle Company, servicing for BBR Investments, and James and Shirley Hull.The Agreement provides that it is a modification of the Loan Documents (the Note and Deed toTrust) to the extent it is inconsistent, and the remainder of the terms remain in full force and effect.(Decl. Coleman, Ex. 4, ¶ 15.) The attorney fees provision of the Deed of Trust therefore applieshere, entitling Cadle to attorney fees and costs. Cadle prevailed on a motion for summaryjudgment. Judgment was entered in favor of Cadle and Plaintiffs received no relief. The Courtfinds that Defendant is the prevailing party as defined by CCP § 1032.“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number ofhours reasonably expended multiplied by the reasonable hourly rate.” PLCM Group, Inc. v.Drexler (2000) 22 Cal.4th 1084, 1095. “A court assessing attorney fees begins with a touchstoneor lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourlycompensation of each attorney ... involved in the presentation of the case.’” Ketchum v. Moses(2001) 24 Cal.4th 1122, 1131-1132. In determining the amount of attorney's fees to which alitigant is entitled, an experienced trial judge is the best judge of the value of professional servicesrendered in his or her court. Granberry v. Islay Investments (1995) 9 Cal. 4th 738, 752.Cadle’s Counsel has provided a declaration and detailed billing records claiming 195.5 hoursdefending this suit, including time spent by two experienced attorneys at a rate of $340 per hour,and a less experienced attorney at a rate of $325 per hour. Two billing entries for paralegals at arate of $100 and $125 per hour are also included. Defendant seeks a total of $65,583.50 in attorneyfees. The Court finds Counsel’s time spent and rates are reasonable, with the following exception.The Court notes that the attorney billing records provided as Exhibit 6 to the Declaration of JuneColeman include time spent on The Cadle Company’s discovery motions filed August 11, 2023,and heard on September 11, 2023. The Court’s Order on those Motions, entered on September 14,2023, included an award of sanctions for time spent bringing the Motions and associated costs, toDefendant The Cadle Company against Plaintiffs in the amount of $4,100. The Court declines toaward attorney fees for this same work a second time. The current request for attorney fees willtherefore be reduced by $4,100.00 - the amount previously awarded as sanctions on the discoverymotions. The memorandum of costs details reasonable costs incurred of $6,154.46. TheDeclaration of June Coleman submitted in support of the Statement of Non-Opposition includes arequest for additional costs of $525.75 for filing fees and CourtCall, which appear reasonable andwill be awarded.The Motion for Attorney Fees and Costs is GRANTED. The total amount awarded to The CadleCompany is $$68,163.71 in fees and costs. No proposed order has been lodged as required byLocal Rule 5.17(D). Moving party shall prepare the order.

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