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BAF ASSETS 6 LLC vs MAIKEL LUIS PEREZ
Aug 06, 2024 |LEGLER, KENNEDY B. |Evictions Residential Non-Monetary |Evictions Residential Non-Monetary |2024 CC 005227 NC
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Aug 09, 2024 |UZABEL, MARYANN OLSON |Evictions Residential Non-Monetary |Evictions Residential Non-Monetary |2024 CC 005297 NC
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MIGHTY DOG ROOFING A DIVISION OF CAMBER GROUP LLC vs WRIGHT, RACHEL LYNN
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TEGA HOLDINGS LLC vs KATSIMBRAKIS, GIRO
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Case
ALL SORTS OF SERVICES OF AMERICA INC vs MORALES, MICHAEL J
Aug 07, 2024 |BREWER, DANIELLE |REAL PROPERTY $0-$50,000 2010 (SOUTH COUNTY) |REAL PROPERTY $0-$50,000 2010 (SOUTH COUNTY) |2024 CA 004075 SC
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DUNHAM, NATHAN vs FAFARD, JEREMY
Aug 08, 2024 |QUARTERMAINE, ERIKA N. |Evictions Residential $0 TO $15,000 (South County) |Evictions Residential $0 TO $15,000 (South County) |2024 CC 005256 SC
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GRAND PALM NEIGHBORHOOD ASSOCIATION #2 INC vs GRECO, SARAH ELIZABETH
Aug 07, 2024 |LEGLER, KENNEDY B. |COUNTY FORECLOSURE $30,001 to $50,000 |COUNTY FORECLOSURE $30,001 to $50,000 |2024 CC 005245 NC
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GRAND PALM NEIGHBORHOOD ASSOCIATION #2 INC vs LOVERIN, AARON P
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EDWARDS, SARAH vs GAINES, RICKY
Aug 07, 2024 |UZABEL, MARYANN OLSON |Evictions Residential Non-Monetary |Evictions Residential Non-Monetary |2024 CC 005189 NC
Ruling
MEKHAIL vs BASKARON
Aug 08, 2024 |CVRI2401554
Motion to Expunge Lis Pendens byCVRI2401554 MEKHAIL vs BASKARONPAUL BASKARONTentative Ruling: No tentative ruling.
Ruling
SM 10000 PROPERTY LLC VS DARIUS JOHNSON
Aug 12, 2024 |22SMCV00251
Case Number: 22SMCV00251 Hearing Date: August 12, 2024 Dept: P Tentative Ruling SM 10000 Property LLC v. Darius Johnson, Case No. 22SMCV00251 Hearing date: August 12, 2024 Plaintiff SM 10000 Property LLCs Motion to Compel Responses to 1) Special Interrogatories and 2) Request for Production; Request for Sanctions Landlord plaintiff SM 10000 Property alleges breach-of-contract against tenant defendant Johnson for failure to pay rent. The court entered default on September 14, 2022. SM 10000 moves to compel responses to special interrogatories and request for production as well as $1,650 in sanctions. SM 10000 propounded discovery on April 25, 2023, asking for Defendants financial assets, employment history, real property, income, etc. Ishu Decl. ¶4; Exh. 1. More than 30 days have lapsed without response. No opposition has been filed. SM 10000 seeks an order compelling responses and $1,650 in sanctions for three hours at $300 per hour spent drafting each motion, with an additional three hours anticipated for opposition and reply. Id. ¶ 2, 4. This is excessive, given the simplicity of the motions and lack of opposition. The court awards four hours total for preparation and appearance ($1,200). GRANTED. Sanctions payable within 30 days.
Ruling
Phillips vs. Murphy, et al.
Aug 06, 2024 |22CV-0201197
PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197Tentative Ruling on Motion for Court Order Appointing Real Estate Appraiser: KathrynPhillips, as successor trustee of the Ronald Leroy Smith Living Trust, seeks an order appointing areal estate appraiser pursuant to CCP § 874.311 et seq. Phillips, in her capacity as Trustee of theTrust, has a 50% interest in real property commonly known as 9786 Old Oregon Trail (“Property”)in Redding. The remaining 50% interest is held by Darlene Clark, who is deceased. Clark’s knownheirs are her four sons: Jim Murphy, Johnny Murphy, Terry Murphy, and Roger Murphy. Thefour sons as well as the unknown testate and intestate successors, as well as any other unknownparties claiming any interest in the property, have been served notice of this suit either personallyor by publication, pursuant to this Court’s order. Default was entered as to all Defendants on April29, 2024.The Court finds that the appropriate manner to determine the value of the real property under thecirc*mstances presented is to order an appraisal by a “disinterested real estate appraiser.” CCP §874.316(a) & (d). The Court appoints Sprenkel Appraisals as proposed by the Plaintiff.The motion is GRANTED. A proposed order was lodged with the Court and will be executed.This matter is set for Monday, September 9, 2024, at 9:00 a.m. in Department 64 forconfirmation of filing of the Appraisal.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************
Ruling
MOHAMMAD AKBARI, AN INDIVIDUAL VS ESSEX WARNER CENTER, L.P., A CALIFORNIA LIMITED PARTNERSHIP, ET AL.
Aug 08, 2024 |23STCV22207
Case Number: 23STCV22207 Hearing Date: August 8, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: August 8, 2024 TRIAL DATE: June 10, 2025 CASE: Mohammad Akbari, et al. v. Essex Warner Center, L.P., et al. CASE NO.: 23STCV22207 MOTION TO BE RELIEVED AS COUNSEL (x2) MOVING PARTY: Attorney Dan B. Yakobian, Counsel for Plaintiffs (1) Angela Willms and (2) Najlah Muhammad-Ringgold RESPONDING PARTY(S): No response on eCourt as of 08/08/24 CASE HISTORY: · 09/14/23: Complaint filed. · 04/25/24: First Amended Complaint filed. · 05/22/24: Second Amended Complaint filed. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is a habitability defect action on behalf of 21 Plaintiffs alleging that the apartment building owned and operated by Defendants in which the Plaintiffs reside contains extensive deficiencies. Plaintiffs allege that these deficiencies include widespread leaks, chronic mold, vermin infestations, physical dilapidation, inadequate sanitation and accumulation of garbage, inadequate security, and incessant fire alarms. Attorney Dan B. Yakobian, Counsel for Plaintiffs Angela Willms and Najlah Muhammad-Ringgold, moves to be relieved as counsel. TENTATIVE RULING: Attorney Dan B. Yakobians Motion to Be Relieved as Counsel for Plaintiff Angela Willms is GRANTED, contingent on Moving Counsel serving notice on all parties within 10 days of this order. Attorney Dan B. Yakobians Motion to Be Relieved as Counsel for Plaintiff Najlah Muhammad-Ringgold is GRANTED, contingent on Moving Counsel serving notice on all parties within 10 days of this order. DISCUSSION: Attorney Dan B. Yakobian, Counsel for Plaintiffs Angela Willms and Najlah Muhammad-Ringgold, moves to be relieved as counsel. Moving counsel filed all three required forms (MC-051, -052, and -053) and filed proofs of service with the Court. Moving counsel served the motions on the Plaintiffs by mail and confirmed that the addresses were current by email. (MC-052 ¶ 3(b).) In general, an attorney may withdraw with or without cause so long as the withdrawal would not result in undue prejudice to the clients interest i.e., counsel cannot withdraw at a critical point in the litigation, because that would prejudice client, but can withdraw otherwise. (Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.) The court has discretion to deny an attorneys request to withdraw where the withdrawal would work an injustice or cause undue delay in the proceeding, but the courts discretion in this area is one to be exercised reasonably. (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.) Here, trial in this matter is set for June 10, 2025. The only other hearings in this matter are a Status Conference re: Alternative Dispute Resolution set for January 3, 2025 at 8:30 AM, and a Final Status Conference on May 28, 2025 at 9:00 AM. The risk of prejudice to these Plaintiffs is therefore low. Moving Counsel states that withdrawal is necessary because there has been an irreparable breakdown of the attorney-client relationship that makes continuing representation impossible. (MC-052 ¶ 2.) In light of the low risk of prejudice to the parties at this juncture, the Court finds that Moving Counsel has demonstrated good cause for withdrawal. Accordingly, Attorney Dan B. Yakobians Motion to Be Relieved as Counsel for Plaintiff Angela Willms is GRANTED, contingent on Moving Counsel serving notice on all parties within 10 days of this order. Attorney Dan B. Yakobians Motion to Be Relieved as Counsel for Plaintiff Najlah Muhammad-Ringgold is GRANTED, contingent on Moving Counsel serving notice on all parties within 10 days of this order. IT IS SO ORDERED. Dated: August 8, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
BMW BANK OF NORTH AMERICA, A UTAH INDUSTRIAL BANK, BY AND THROUGH ITS SERVICER, BMW FINANCIAL SERVICES NA, LLC, A DELAWARE LI VS CLASSIC HARDWOOD FLOORING, INC., A CALIFORNIA CORPORATION, ET AL.
Aug 09, 2024 |24NNCV01645
Case Number: 24NNCV01645 Hearing Date: August 9, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A TENTATIVE RULING AUGUST 9, 2024 APPLICATION FOR WRIT OF POSSESSION Los Angeles Superior Court Case # 24NNCV01645 MP: BMW Bank of North America (Plaintiff) RP: Classic Hardwood Flooring, Inc. & Azat Stepanyan (Defendants) [No Response] NOTICE: The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received. Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. ALLEGATIONS: BMW Bank of North America (Plaintiff) brings this action against Classic Hardwood Flooring, Inc. & Azat Stepanyan (Defendants) in connection with a Motor Vehicle Retail Installment Contract. Plaintiff alleges that Defendants agreed to purchase over time a 2022 BMW X5 Serial No. 5YMJUOCO5N9M64142 and subsequently defaulted on payments. On May 15, 2024, Plaintiff filed its Complaint stating four causes of action for (1) Breach of Contract, (2) Common Count, (3) Claim and Delivery, and (4) Conversion. Before the Court are two Applications made by Plaintiff for a Writ of Possession as against Classic Hardwood Inc. (Classic) and Azat Stepanyan (Azat) separately. Plaintiff seeks to recover the vehicle so that it may recoup funds toward the defaulted agreement. Defendants have filed no response to these applications. ANALYSIS: I. LEGAL STANDARD C.C.P. § 512.010 requires that the application for writ of possession be executed under oath and include affidavits showing the following: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. (3) A particular description of the property and a statement of its value. (4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there. (5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure. C.C.P. § 512.030 provides that before the hearing on the Writ of Possession, the defendant must be served with: (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. C.C.P. § 512.060 permits the Court to issue a writ of possession when the Court finds the following: (1) the plaintiff has established the probable validity of the plaintiff's claim to possession of the property; and (2) the undertaking requirements of C.C.P. § 515.010 are satisfied. C.C.P. § 515.010 provides: The undertaking shall be in an amount not less than twice the value of¿the¿defendant's interest in the property or in a greater amount. Before issuance of a writ of attachment & the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. (C.C.P. § 489.210.) But when a defendant does not have any interest in the property, C.C.P. § 515.010(b) permits the Court to waive the requirement of the plaintiff's undertaking and set an undertaking for the defendant to keep possession or regain possession. II. MERITS C.C.P. § 512.030 requires personal service of an application for writ of possession in instances where the defendant has not appeared in the action. Here neither Classic nor Azat have appeared in this matter. The Proof of Service for both Classic and Azat shows that notice of this motion was served via substitute service. It appears the paperwork was left with Svetlana Stepanyan on June 15, 2024 at 7834 Laurel Canyon Blvd North Hollywood, CA 91605-2422 To effectively sub-serve an individual, the plaintiff must first demonstrate that he cannot with reasonable diligence effectuate personal service. C.C.P. §415.20(b). The term reasonable diligence denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. (Watts v. Crawford (1995) 10 Cal.App.4th 743, 749.) Ordinarily, three attempts at personal service at an address known to be associated with the defendants is sufficient to graduate to sub-service. (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 185.) Thereafter, the plaintiff may leave the summons and complaint at the person's home with a competent adult member of the household whose relationship with the person to be served makes it more likely than not that they will deliver process to the named party. (C.C.P. §§ 415.20(b) and 416.90; Ellard v. Conway (2001) 94 Cal.App.4th 540, 546.) The Court finds that Plaintiff appropriate served Defendants in this matter. The address of substitute service is the same that appears on the Motor Vehicle Retail Installment signed by Aza on behalf of Classic. (Phillips Decl. Exh. 1.) This address also appears on the vehicles title document. (Phillips Decl. Exh. 2.) The proof of service is accompanied by a statement of due diligence, showing the process server attempted three times to personally serve Azat but was unable. Further, substitute service was made on someone identified as a co-resident and sharing Azats last name, making it more likely than not Azat received the papers. Plaintiff also provides the declaration of Sarah Phillips, a Collections Legal and Replevin Analyst with BMW Financial Services NA, LLC, to establish the facts relevant to the writ application. Plaintiff has demonstrated an entitlement to possession of the property claimed due to Defendants default under a written Motor Vehicle Retail Installment and the probable validity of Plaintiff's claims for breach of contract. (Phillips Decl. ¶¶ 14-17.) The evidence demonstrates the existence of the Agreement between Plaintiff and Defendants. (Phillips Decl. ¶ 9, Exh. 1.) Additionally, Plaintiff has shown it has the right to take possession of the vehicle conditioned upon Defendants default. (Phillips Decl. ¶ 16, Exh. 1.) Plaintiff attests it has performed all the conditions, covenants, and promises required under the terms of the Agreement and Defendants defaulted in the terms, conditions, and covenants of the Agreement by failing to make payment. (Phillips Decl. ¶¶ 13-14.) Plaintiff demanded Defendants return the vehicle, however Defendants refused. (Phillips Decl. ¶ 15.) Plaintiff believes the vehicle is in the control and possession of Defendants at 7834 Laurel Canyon Boulevard, North Hollywood, CA 91605. (Phillips Decl. ¶ 21.) Plaintiff has also provided a particular description of the property and the value of the property. (Phillips Decl. ¶¶ 8, 22, Exh. 4.) Plaintiff has provided that the vehicle has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff. (App. ¶ 8.) Plaintiff has met its burden in demonstrating their entitlement to a writ of possession. As a result, Plaintiff must file an undertaking in an amount not less than twice the value of the defendant's interest in the property or in a greater amount unless the court finds the defendant has no interest in the property. (C.C.P. §§ 515.010(a) & (b).) The value of the defendant's interest in the property is determined by the market value of the property less the amount due and owing on any conditional sales contract or security agreement and all liens and encumbrances on the property, and any other factors necessary to determine the defendant's interest in the property. (Id.) The approximate wholesale value of the vehicle is $79,126.00. (Phillips Decl. Exh. 4.) Plaintiff contends Defendant owes $136,411.94. (Phillips Decl. Exh. 3.) Since Defendant owes more than the market value of the vehicle, they have no interest pursuant to C.C.P. § 515.010. The Court thus waives the requirement to file an undertaking for Defendants interest. In the event that a defendant has no interest in the property, C.C.P. § 515.010(b) requires the Court include in the writ the amount of Defendants undertaking sufficient to satisfy C.C.P. § 515.020(b). C.C.P. § 515.020(b) permits the Court to determine the amount to be posted for re-delivery when a defendant is found to have no interest in the property. Here, the Court finds a re-delivery bond of $80,000 to be reasonable as that is the wholesale value of the vehicle, the bond may be from one defendant or both defendants provided the total value of all re-delivery bonds are at least $80,000. --- RULING: In the event a party requests a signed order or the Court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the courts records. ORDER BMW Bank of North Americas Applications for Writ of Possession came on regularly for hearing on August 9, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows: THE APPLICATIONS FOR WRIT OF POSSESSION ARE GRANTED. A RE-DELIVERY BOND OF $80,000 IS SET FOR DEFENDANTS. PLAINTIFF TO GIVE NOTICE. IT IS SO ORDERED. DATE: August 9, 2024 _______________________________ F.M. TAVELMAN, Judge Superior Court of California County of Los Angeles
Ruling
PACIFIC PANORAMA LLC, A NEVADA LIMITED LIABILITY COMPANY VS KWALA LLC, A NEVADA LIMITED LIABILITY COMPANY, ET AL.
Aug 08, 2024 |24SMCV02338
Case Number: 24SMCV02338 Hearing Date: August 8, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 PACIFIC PANORAMA, LLC, Plaintiff, v. KWALA, LLC, et al., Defendants. Case No.: 24SMCV02338 Hearing Date: August 8, 2024 [TENTATIVE] ORDER RE: DEFENDANT KWALA, LLCS MOTION TO EXPUNGE LIS PENDENS BACKGROUND This case arises from protracted litigation relating to the foreclosure of a residential property located at 17000 W Sunset Blvd in Pacific Palisades (the Property). The relevant facts are as follows. Gregg Corlyn (Corlyn) acquired title to the Property pursuant to a Grant Deed recorded on June 29, 2001 (the Grant Deed). (Request for Judicial Notice (RJN) No. 1; Dicecca Decl. ¶ 5, Exh. 1.) In 2007, Corlyn borrowed and promised to repay the amount of $3,697,500 pursuant to an Adjustable Rate Note dated April 6, 2007 (the Note) secured by a Deed of Trust dated April 6, 2007 (the 1st Deed of Trust) against the Property. (RJN Nos. 3-5; Dicecca Decl. ¶ 6, Exh. 2; Compl. ¶ 14.a, Exh. 3.) He also entered into a revolving credit agreement secured by a Deed of Trust and Assignment of Rents dated April 6, 2007 (the 2nd Deed of Trust). (RJN No. 9; Compl. ¶ 14.b, Exh. 4.) The Deeds of Trust have the same legal description as the Grant Deed. (RJN Nos. 6 & 9.) In 2009, the 1st Deed of Trust was assigned to Wells Fargo Bank, National Association as Trustee for the Certificate holders of Structured Asset Mortgage Investments II Inc. Trust 2007-AR4, Mortgage Pass-Through Certificates, Series 2007-AR-4 (WF Bank). (RJN No. 10; Dicecca Decl. ¶ 7, Exh. 3; Compl. ¶ 15.) Corlyn quitclaimed title of the Property to Plaintiff Pacific Panorama LLC on October 10, 2008 by way of a Quitclaim Deed that sets forth the same exact legal description as the Grant Deed. (RJN No. 11; Dicecca Decl. ¶ 8, Exh. 4; Compl. ¶ 11, Exh. 1.) The Quitclaim Deed identifies that title was quitclaimed to Pacific as a GIFT. The Quitclaim Deed did not include any provision for the assumption of the Note or 1st Deed of Trust by Pacific. (RJN No. 12.) Two days after recording the Quitclaim Deed, on January 29, 2010, Pacific filed its first Chapter 11 bankruptcy in Nevada, with Case No. BK-S-10-11464-MKN, to delay WF Banks foreclosure. In that case, the court granted WF Banks motion for relief from the automatic stay. The court eventually dismissed the case on April 19, 2012. (RJN No. 13; Dicecca Decl. ¶ 35, Exh. 30 (Memorandum Decision, at p. 3).) On June 12, 2014, a notice of default and then, on October 3, 2014, a notice of trustees sale, each identifying only Corlyn as the borrower, were recorded against the Property based on the 1st Deed of Trust. (RJN Nos. 14-15; Dicecca Decl. ¶¶ 9-10, Exhs. 5-6.) On October 17, 2014, Corlyn filed a lawsuit against WF Bank and its loan servicer Select Portfolio Servicing, Inc. (SPS), with Case No. SC123281, to enjoin the foreclosure. (RJN No. 16; Dicecca Decl. ¶ 11, Exh. 7.) Corlyns complaint asserted claims based on the borrower-protection statutes and alleged he submitted several loan modification applications between February 2013 and July 2014, but they were repeatedly denied or ignored by WF Bank and SPS. (RJN No. 17; Dicecca Decl. ¶ 11, Exh. 7 (Corlyns 2014 Compl. ¶¶ 17-50).) Then, on June 28, 2019, Corlyn filed another lawsuit against WF Bank and SPS, with Case No. 19SMCV01180, to again enjoin the foreclosure, in which he asserted: Gregg Corlyn was and is an individual and the borrower on all liens on the property and Mr. Corlyn has standing to sue because, though he does not live at the subject property, he is still the borrower on the loan. (RJN Nos. 18-19; Dicecca Decl. ¶ 12, Exh. 8 (Corlyns FAC ¶¶ 1 & 36).) After another notice of default and sale were published, Pacific filed its second Chapter 11 bankruptcy on June 28, 2021, with Case No. 2:21-bk-15239, to again stop the foreclosure. The U.S. Trustee moved to dismiss the case for bad faith, as evidenced by the filing on the eve of a foreclosure sale and Pacific having only one asset and no income. The court granted the lenders motion for relief from stay and the U.S. Trustees motion to dismiss, with a 180-day bar to refiling, finding the case was filed in bad faith just to delay the secured creditor from enforcing its rights. (RJN Nos. 21-23; Dicecca Decl. ¶¶ 13-14 & 35, Exhs. 9-10 & 30 (Memorandum Decision, at p. 5).) On April 4, 2022, the 1st and 2nd Deeds of Trust were assigned to Defendant KWALA LLC (Kwala). (RJN Nos. 24-26; Dicecca Decl. ¶¶ 15-16, Exhs. 11-12; Compl. ¶ 16, Exh. 7.) Five months later, in September 2022, Plaintiff and Corlyn sought Kwalas consent for Pacific to assume Corlyns loans. (Doss Decl. ¶¶ 4-5.) Kwala denied the request. (Doss Decl. ¶ 5, Exh. A.) Thus, Corlyn remained the sole borrower on the loans. On October 3, 2022, a notice of default (NOD) was recorded against the Property based on the 1st Deed of Trust. (RJN No. 28; Dicecca Decl. ¶ 18, Exh. 14; Compl. ¶ 18, Exh. 9 (NOD).) On December 2, 2022, Pacific filed an action against Kwala entitled Pacific Panorama, LLC v. KWALA, LLC et al., with Case No. 22STCV37755 (the Prior Action), seeking to enjoin foreclosure, despite the fact that Plaintiff had never assumed the loan. (RJN No. 29; Dicecca Decl. ¶¶ 19-20, Exhs. 15-16.) That complaint asserted the same legal description for the Property as set forth in the Grant Deed and Quitclaim Deed. (RJN No. 30; Dicecca Decl. ¶ 20, Exh. 16.) In response to a demurrer, Pacific filed a first amended complaint (FAC) alleging the NOD falsely represents that as of September 30, 2022 there were unpaid payments due Defendants and each of them in the sum of $208,394.55, when in fact that representation was materially false and misleading and was burdened with claims which were not due and not supported. (RJN No. 32; Dicecca Decl. ¶ 22, Exh. 18; see Compl. ¶ 25.b, at 10:6-9.) On or about January 4, 2023, Kwala caused its foreclosure trustee California TD Specialists to record a notice of trustees sale and scheduled the sale for January 31, 2023. (RJN No. 31; Dicecca Decl. ¶ 21, Exh. 17.) Following an ex parte application, the court issued a temporary restraining order (TRO) on January 23, 2023 enjoining the sale and setting an OSC Re Preliminary Injunction. On March 29, 2023, the preliminary injunction hearing went forward, and on April 17, 2023, the court denied Pacifics request for preliminary injunction and dissolved the TRO, finding that Pacific had no standing to challenge the amounts owed under the 1st Deed of Trust and that Kwalas accounting as to the default amount owed was otherwise accurate. (RJN No. 33; Dicecca Decl. ¶ 24, Exh. 19 (Order Denying Request for Preliminary Injunction, 04-17-23).) Kwala filed a motion for judgment on the pleadings arguing that Pacific lacked standing to assert any cause of action in the FAC because it was not the borrower on the loans and had not assumed the loans in any writing approved by the lenders. (Dicecca Decl. ¶ 23.) On April 25, 2023, the court granted Kwalas motion for judgment on the pleadings on Pacifics FAC with leave to amend, finding that Pacific has no standing to assert any of the contractual or statutory claims in the First Amended Complaint (FAC) because Pacific is not a borrower under the two security interests held by Kwala. (RJN Nos. 36-37; Dicecca Decl. ¶ 25, Exh. 20 (04-25-23 Minute Order, p. 1).) On May 12, 2023, Pacific filed its second amended complaint (SAC) and Kwala filed another demurrer challenging standing. (RJN Nos. 39-40; Dicecca Decl. ¶¶ 19 & 26, Exh. 15.) Pacific did not file an opposition, and instead filed a notice of withdrawal of the SAC and then dismissed the action on June 8, 2023. (RJN Nos. 41-42; Dicecca Decl. ¶ 26, Exhs. 21-22.) The very next day after the court dissolved the TRO, on April 18, 2023, Pacific filed its third Chapter 11 bankruptcy, with Case No. 23-11599-mkn, seeking to stop the foreclosure. (RJN No. 38; Dicecca Decl. ¶¶ 27-28, Exhs. 23-24.) Then, the day after the voluntary dismissal of the Prior Action, on June 9, 2024, Pacific removed the Prior Action to the bankruptcy court. (RJN No. 43; Dicecca Decl. ¶¶ 19 & 27, Exhs. 15 (Civil Docket, at p. 1) & 23 (BK Docket, Doc 35 at p. 5).) Kwala filed a motion for relief from stay and a motion to remand the Prior Action back to the state court, which were both granted. (RJN Nos. 44-48; Dicecca Decl. ¶¶ 29-31, Exhs. 25-27.) In its ruling on the motions, the bankruptcy court found that Pacific engaged in quintessential forum shopping to avoid the adverse rulings from the Prior Action and that Pacific would be unable to effect a reorganization with Kwalas loans because its not their debt and because they have no money. (RJN No. 46; Dicecca Decl. ¶ 29, Exh. 25 (Transcript at pp. 59-60 & 62-64, italics added).) The bankruptcy courts order granted Kwala leave to foreclose on the Property and to enforce the security under the First Deed of Trust. (RJN No. 47; Dicecca Decl. ¶ 30, Exh. 26.) Kwalas trustee then scheduled the foreclosure sale for October 17, 2023. (Dicecca Decl. ¶ 32). The day before the sale, however, a notice of a new bankruptcy case filed by 17K West Sunset, LLC (17K West), with Case No. 23-15559-GS, was served on Kwalas counsel. (RJN No. 51; Dicecca Decl. ¶¶ 32 & 34, Exh. 29.) 17K West was formed after Kwala was granted relief from stay and was assigned the junior deeds of trust before filing bankruptcy. (RJN Nos. 49-50; Dicecca Decl. ¶ 33, Exh. 28.) In response, Kwala moved for in rem bar relief in the Pacific bankruptcy and to dismiss the 17K West bankruptcy. Both motions were granted, and the bankruptcies were dismissed. (RJN Nos. 52-58; Dicecca Decl. ¶¶ 35-39, Exh. 30-34.) In granting in rem bar relief, the court found that Pacific and 17K West engaged in a scheme to hinder, delay or defraud Kwala and thwart its efforts to foreclose. (RJN No. 53; Dicecca Decl. ¶ 35, Exh. 30 (Memorandum Decision, at p. 16).) After this ruling, the foreclosure sale was scheduled for March 27, 2024 pursuant to a newly-issued Notice of Trustees Sale. (RJN No. 59; Dicecca Decl. ¶ 40, Exh. 35.) On March 4, 2024, Pacific filed an appeal in the bankruptcy and, on March 18, 2024, filed an emergency motion to stay the foreclosure sale, which was denied on March 19, 2024. (RJN Nos. 60-61; Dicecca Decl. ¶¶ 41-42, Exh. 36-37.) The next day, on March 20, 2024, Pacific filed another emergency motion for stay in the district court, and on March 26, 2024, the district court denied that motion and instructed the foreclosure sale that is set for tomorrow may proceed. (RJN No. 62; Lin Decl. ¶ 5, Exh. B (Transcript at p. 19:18-19).) In its ruling, the court noted: It is, Ill say, troubling to this Court that this proceeding is being held here today after what appears to be over 12 years of abuse of process and an attempt to manipulate court proceedings. (RJN No. 63; Lin Decl. ¶ 5, Exh. B (Transcript at p. 18:17-25).) The foreclosure sale took place the next day on March 27, 2024. The opening bid amount was $5,403,655.84. Kwala made a full credit bid for that amount plus an additional $1,174,577.24 for the highest bid of $6,578,233.08. No one for Pacific appeared at the sale or bid. No one other than Kwala bid at the sale. Kwala was the winning bidder. (RJN No. 64; Snyder Decl. ¶ 8; Dicecca Decl. ¶ 43, Exh. 38.) After the sale, the trustee received notices of intent to bid pursuant to Civil Code § 2924m. Pacific did not submit a notice. Ultimately, no bids were received, and the sale became final on May 13, 2024. (Snyder Decl. ¶ 8.) A Trustees Deed Upon Sale was recorded on May 20, 2024 in favor of Kwala. (RJN No. 68; Snyder Decl. ¶ 8; Dicecca Decl. ¶ 44, Exh. 39.) On April 17, 2024, 17K West filed a civil action with Case No. 24SMCV01839, which alleged that Kwala had rejected its tender of all amounts due and owing under the 1st Deed of Trust. On April 30, 2024, the court denied 17K Wests ex parte application for a TRO to enjoin the recording of the Trustees Deed Upon Sale, and on May 14, 2024, 17K West dismissed the action. (RJN Nos. 65-67; Dicecca Decl. ¶¶ 46-49, Exhs. 41-44.) Two days later, on May 16, 2024, Pacific filed the present action, asserting wrongful foreclosure and related causes of action all based on the same alleged statutory violations as the Prior Action. Pacific also recorded a lis pendens on the Property. This hearing is on Kwalas motion to expunge lis pendens. Kwala argues Pacific cannot establish the probable validity of any claim in the Complaint because it lacks standing. Kwala also seeks attorneys fees and costs in the amount of $35,810. There was no opposition filed as of the posting of this tentative ruling. LEGAL STANDARD Any party¿or a non-party having an interest in the property affected by a notice of lis pendens¿may move for expungement¿any time after the lis pendens is recorded.¿ (Code Civ. Proc., § 405.30.)¿ A lis pendens must be removed for being improper on account of the claimant not being able to establish by a preponderance of the evidence the probable validity of the real property claim.¿ (Code Civ. Proc., §§ 405.31, 405.32;¿Ziello v. Superior Court¿(1995) 36 Cal.App.4th¿321, 331-32; Urez Corp. v. Superior Court¿(1987) 190 Cal.App.3d 1141, 1149.)¿¿¿ When questioning the evidentiary merit of a claim, the claimant who filed the lis pendens bears the burden of proof.¿ (Code Civ. Proc., § 405.30.)¿ Thus, that claimant, in opposing the motion to expunge the lis pendens, must demonstrate the probable validity of the real property claim by a preponderance of the evidence.¿ (Hunting World, Inc. v. Superior Court (1994) 22 Cal.App.4th 67, 70; see also Code Civ. Proc., §405.30, et seq.)¿ Only admissible evidence is permitted on the motion.¿ (Burger v. Superior Court¿(1984) 151 Cal.App.3d 1013, 1019.)¿¿ Code Civ. Proc. § 405.38 provides [t]he court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorneys fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circ*mstances make the imposition of attorneys fees and costs unjust.¿ (Code Civ. Proc., § 405.38.)¿ REQUEST FOR JUDICIAL NOTICE Kwala requests judicial notice of recorded instruments, facts that can be adduced from the recorded instruments, and orders, findings of fact and conclusions of law in court records. There is no opposition to the request for judicial notice. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c), 452(d), 452(h), and 453. DISCUSSION Defendants argue that Pacifics first claim for violation of Cal. Bus. & Prof. Code §§ 10130 and 10131.1 fails because WF Bank is expressly exempt from the licensing requirements of the statute. The Court agrees. Bus. & Prof. Code § 10130 provides that It is unlawful for any person to engage in the business of . . . a real estate broker . . . within this state without first obtaining a real estate license from the department . . . . Section 10131.1(a) defines real estate broker to include a person in the business of . . . selling to, or exchanging with the public, . . . promissory notes secured directly or collaterally by liens on real property. The Complaint alleges Corylns loan was sold in violation of those provisions because WF Bank did not have a real estate broker license. (Compl. ¶¶ 16 & 25.a). As a result, the Complaint alleges the assignment should be declared void pursuant to Finance Code § 22750(b). (Compl. ¶ 25.a). Under Bus. & Prof. Code § 10133.1(a)(1), WF Bank is expressly exempt from the licensing requirements of Section 10130. (Bus. & Prof. Code § 10133.1(a) (Subdivisions (d) and (e) of Section 10131 . . . do not apply to any of the following: (1) Any person or employee thereof doing business under any law of this state . . . relating to banks.) & § 10006 (Person includes corporation, company or firm.); see also Arzamedi v. Wells Fargo Bank, N.A., (E.D. Cal. March 8, 2018) 2018 WL 1210978, at *4 (Federal banks are explicitly excluded from the definition of real estate licensee . . . . (citing Section 10133.1(a)(1))). And if it was not exempt, then the claim would be preempted by federal law, which governs banks rights to sell mortgages. (See 12 U.S.C. § 371(a) (Any national banking association may make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate.); 12 C.F.R. § 34.4(a) (A national bank may make real estate loans under 12 U.S.C. § 371 and § 34.3 without regard to state law limitations concerning: (1) Licensing . . . (10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.); see also Akopyan v. Wells Fargo Home Mortg., Inc. (2013) 215 Cal. App. 4th 120, 151-158 (state law claims against WF Bank based on violations of Bus. & Prof. Code were preempted by the National Bank Act, 12 U.S.C. § 21 et seq.).) Moreover, no authority supports that the sale or assignment is void because it was made by a non-licensed party in violation of Section 10130. Rather, the consequences for violating Section 10130 simply subject the non-licensed party to fines or citations (Sections 10139 & 10080.9) and bars that party from recovering compensation from the transaction (Section 10136). While the Complaint alleges the assignment should be declared void under Finance Code § 22750(b), no violation of the Finance Code is alleged based on the assignment, nor could there be since WF Bank is expressly exempt from its provisions pursuant to Finance Code § 22050(a). In relevant part, § 22050(a) states this division [Finance Code §§ 22000-22780.1] does not apply to any person doing business under¿any law of any state . . . relating to banks. Aside from the claim that the assignment is void, the Complaints eight causes of action are all based on alleged statutory violations relating to the Note and 1st Deed of Trust. However, as the court in the Prior Action repeatedly ruled, Plaintiff lacks standing to assert those claims because it is not the borrower and never assumed the loan in any writing approved by the lender, as required by both the 1st Deed of Trust and the statute of frauds (Civ. Code §§ 1624(a)(6) & 2922). (RJN Nos. 3-5; Doss Decl. ¶ 5, Exh. A; see also Green v. Cent. Mortg. Co. (N.D. Cal. Sept. 2, 2015) 2015 WL 5157479, at *5 ([A] successor in interest does not assume a borrowers obligations simply upon obtaining title to property when the deed of trust requires an assumption be made in writing and approved by the lender.); Anolik v. Bank of Am. Loans (E.D. Cal. Apr. 21, 2011) 2011 WL 1549291, at *1, *3 (property owner lacked standing as he was not the borrower on the loan and had not assumed the obligations under the loan in writing and with lenders consent, as required by the Deed of Trust).) As such, Pacific will not be able to establish the probable validity of any of its claims. (See Green, 2015 WL 5157479, at *4 (Courts thus have dismissed foreclosure-based claimslike Ms. Greens negligent misrepresentation, fraud, wrongful foreclosure, UCL, cancellation of deed, and declaratory relief claimsby persons who were not parties to mortgage loans.).) Moreover, even if Pacific has standing, its claims must otherwise fail based on the tender rule. In a wrongful foreclosure action, the plaintiff must plead and prove that it tendered the amount of the secured indebtedness or was excused from tendering. (Chavez v. Indymac Mortg. Servs. (2013) 219 Cal. App. 4th 1052, 1062.) [T]he rationale behind the tender rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the [borrower]. (Turner v. Seterus, Inc. (2018) 27 Cal. App. 5th 516, 528.) While no tender is required as to a challenge that an assignment is void, the rule applies to challenges based on other alleged irregularities, as here. (See Yvanova v. New Century Morg. Corp. (2016) 62 Cal.4th 919, 929 n.4.) The Complaint seeks an equitable declaration that the foreclosure sale is void as a result of a number of alleged irregularities beyond the claim that the alleged assignment is void, and as to each of those claims, the tender rule applies. (Compl. ¶ 25.b-f). But the Complaint does not allege that Pacific tendered the total indebtedness or that it was excused from doing so based on a recognized exception to the rule. Pacific never tendered, or offered to tender, any amount to Kwala prior to the sale. (Dicecca Decl. ¶ 50). Thus, even assuming Pacific has standing, its claims otherwise fail based on the tender rule. The Court next considers Kwalas request for attorneys fees. The award of attorneys fees is mandatory when a party prevails on a motion to expunge lis pendens unless the court finds that the other party acted with substantial justification or that other circ*mstances make the imposition of attorneys fees and costs unjust.¿ (Code Civ. Proc. § 405.38.) The Court concludes there is no substantial justification for Pacifics opposition, and indeed, Pacific has manipulated court proceedings to initially forestall foreclosure of the Property and now to set aside the assignment of the Property. As to the amount of fees expended, the Court starts with the lodestar which is the reasonable hourly rate multiplied by reasonable hours spent. Here, counsel has been practicing for 17 years, and his hourly rate of $650 is comparable to rates of attorneys with similar experience in the prevailing legal market. Counsel has also spent 45 hours in researching the relevant authority, reviewing the filings and rulings from all of the prior lawsuits and bankruptcies involving these parties, preparing and assembling the relevant documents, and drafting this motion, the request for judicial notice, and the corresponding declarations. Further, counsel projected he would spend an additional 10 hours to review the opposition, prepare a reply and prepare for the hearing on the motion. However, there is no opposition filed, and so the Court reduces the number of hours Kwala expects to spend by 8 hours, leaving 2 hours to prepare for and attend the hearing. Court concludes these hours are reasonable given the protracted nature of the litigation between the parties and the extensive record it produced. Kwala has also paid a $60 filing fee for this motion. Accordingly, in total, the Court awards $34,510. CONCLUSION Based on the foregoing, the Court GRANTS Defendant Kwala LLCs motion to expunge lis pendens and for attorneys fees. Plaintiff is directed to pay attorneys fees in the amount of $34,510 to Kwala within 30 days of this Order. IT IS SO ORDERED. DATED: August 8, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Ruling
EJA ASSOCIATES, L.P., A CALIFORNIA LIMITED PARTNERSHIP VS MUHAMMAD ALI, ET AL.
Aug 09, 2024 |6/18/2022 |21SMCV01421
Case Number: 21SMCV01421 Hearing Date: August 9, 2024 Dept: I The court is inclined to GRANT the application and ask the parties to meet and confer on an acceptable date.
Ruling
CYRUS V. GODFREY, AS TRUSTEE OF THE CYRUS VINCENT GODFREY LIVING TRUST, ET AL. VS ERIN LAREAU, ET AL.
Aug 06, 2024 |21STCV11951
Case Number: 21STCV11951 Hearing Date: August 6, 2024 Dept: 54 Superior Court of California County of Los Angeles Cyrus V. Godfrey, et al., Plaintiffs, Case No.: 21STCV11951 vs. Tentative Ruling Erin Lareau, et al., Defendants. Hearing Date: August 6, 2024 Department 54, Judge Maurice A. Leiter Motion for Judgment on the Pleadings Moving Parties: Defendants Erin Lareau, Eric H. Ahola, and Sisu Construction, Inc. Responding Parties: Plaintiffs Cyrus V. Godfrey, individually and as Trustee of the Cyrus Vincent Godfrey Living Trust T/R: DEFENDANTS MOTION IS GRANTED WITHOUT LEAVE TO AMEND AS TO DEFENDANTS ERIC H. AHOLA AND SISU CONSTRUCTION, INC. THE MOTION IS DENIED AS TO DEFENDANT ERIN LAREAU. DEFENDANTS TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. The Court considers the moving papers, opposition, and reply. BACKGROUND On March 15, 2022, Plaintiffs Cyrus V. Godfrey and Cyrus V. Godfrey as Trustee of the Cyrus Vincent Godfrey Living Trust filed the operative First Amended Complaint (FAC) against Defendants Erin Lareau, Eric H. Ahola, and Sisu Construction, Inc., asserting causes of action for (1) nuisance, (2) negligence, (3) nuisance parties, and (4) covenants, conditions, and restrictions (CC&Rs). The FAC alleges that Defendants operate a construction business out of Plaintiffs neighbor Lareaus residence and use that residence in such a manner that extremely loud and excessive noise and construction work occurs there, and vibration, including the use of electric saws, electric drills, electric grinding, mechanized equipment, and the like. (FAC. ¶¶ 8, 9.) At the Final Status Conference on April 12, 2024, the Court ordered a jury trial as to the first cause of action for nuisance, second cause of action for negligence, and third cause of action of nuisance, and decided the fourth cause of action would be addressed in a separate bench trial after the jury trial. On May 3, 2024, the jury rendered a verdict in favor of Defendants on causes of action one through three. Defendants Lareau, Ahola, and Sisu Construction, Inc. now move for judgment on the pleadings and/or to dismiss as to the fourth cause of action. REQUEST FOR JUDICIAL NOTICE Defendants ask the Court to take judicial notice of these facts: 1. On April 12, 2024, the Court issued an order limiting the bench trial to the CC&R cause of action and equitable relief flowing therefrom; and 2. To the extent that the CC&Rs apply and were enforceable, the CC&Rs have been revoked and are no longer enforceable. Defendants argue that those facts were established through (A) the Minute Order dated April 12, 2024, and (B) the Revocation of Declaration of Covenants and Restrictions, recorded at the Los Angeles County Recorders Office on May 24, 2024, a copy of which is attached as Exhibit B to the Declaration of Nikhil P. Pole. Although a court cannot take judicial notice of hearsay allegations in a court record, it can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014.) Similarly, [c]ourts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents. [Citation.] (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.) The Court grants the request to take judicial notice of the Minute Order dated April 12, 2024, and the recorded documents. But the Court cannot take judicial notice of the asserted fact that the CC&Rs have been revoked. Plaintiffs hearsay objection to facts asserted in the recorded documents is sustained. ANALYSIS A defendant may move for judgment on the pleadings when the complaint does not state facts sufficient to constitute a cause of action against that defendant. (CCP § §§ 438(b)(1) and (c)(1)(B)(ii).) The grounds shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (CCP § 438(d).) Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) The Court finds that the motion is timely. It was served and filed on June 27, 2024, more than 30 days before the second phase of trial scheduled for August 26, 2024. (See CCP § 1005.5 [A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled.]) Defendants argue that the fourth cause of action is moot because the CC&Rs have been revoked. According to the CC&Rs, a note of a majority of the then owners of the lots & [could] agree[] to change said covenants, conditions and restrictions in whole or in part. (Exhibit A to the FAC, p. 4, ¶ 10.) On May 19, 2024, a majority (i.e., eight out of thirteen) owners signed an agreement to revoke the CC&Rs. On May 24, 2024, the revocation agreement was recorded in the Los Angeles County Recorders Office (Exh. B to the Pole Dec.) As discussed above the Court cannot take judicial notice of these facts and cannot grant the motion on this ground. Defendants next argue that Defendants Ahola and Sisu Construction, Inc. cannot be bound by the CC&Rs because Lareau is the sole owner and in possession of the property, and the CC&Rs bind only the property owners and their heirs, personal representatives, or assigns.[1] As Defendants argue, [w]hat is bound by an equitable servitude enforceable under CC&Rs is a parcel, a lot, in a subdivided tract, not an individual who has no ownership interest in the lot. [Citation.] [W]hen the owner of a subdivided tract conveys the various parcels in the tract by deeds containing appropriate language imposing restrictions on each parcel as part of a general plan of restrictions common to all the parcels and designed for their mutual benefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the others. [Citation.] [Citation.] (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1036.) The FAC alleges that Defendant ERIN LAREAU & is the sole owner, and in possession and control of, real property consisting of land and improvements constituting a single family residence at the address commonly known as 2645 Desmond Estates Rd., Los Angeles, CA 90046. (FAC, ¶ 2; Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, 100 [The complaints allegations are a judicial admission that concede the truth of [the] matter and have the effect of removing it from the issues. [Citations]].) The CC&Rs also state: NOW THEREFORE, THE UNDERSIGNED DO HEREBY, as owners of the aforementioned real property, impose on such property, and each and every parcel thereof, the following provisions, restrictions and covenants, hereinafter referred to as covenants, which shall apply to and bind the undersigned and all parties hereafter acquiring title to any of said parcels, their heirs, personal representatives and assigns. (Exhibit A to the FAC, p. 4, ¶ 10.) The FAC does not allege that Ahola and Sisu Corporation are owners of the property, or heirs, personal representatives, or assigns of Lareau. Plaintiffs have not shown they can amend the FAC to allege facts sufficient to show a claim for breach of the CC&Rs against Ahola and Sisu Corporation. The Court grants the motion as to Defendants Ahola and Sisu Corporation without leave to amend. The Court denies the motion as to Defendant Lareau. The parties briefs also address the issue of what relief can be awarded at the bench trial. The fourth cause of action alleges that Defendants breached the CC&Rs by engaging in a business on the Lareau property, which is aggravated by the facts&that the business is noisy, disruptive, and a nuisance. Plaintiffs also allege Defendants breached the CC&Rs by constructing structures not built and maintained exclusively for private residence purposes. (FAC ¶ 40.) In paragraph 41, Plaintiffs seek an injunction stopping this alleged wrongful conduct because there is no adequate remedy at law due to the difficulty of determining the precise amount of damages& In paragraph 42, Plaintiffs seek emotional distress damages for interference with their enjoyment of the property. A party who is damaged by a violation of the CC&R's may seek money damages. (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1385.) Here, however, all of Plaintiffs emotional distress claims arise from alleged interference with their enjoyment of the property caused by noise and disruption. The jury rejected these claims for emotional distress damages in Phase 1 of this trial. Plaintiffs do not allege separate or distinct emotional distress arising solely from the claimed violation of the CC&Rs. The Court will adopt the jurys conclusion on the issue of emotional distress damages; that will not be relitigated at the bench trial. "Issues adjudicated in earlier phases of a bifurcated trial are binding in later phases of that trial and need not be relitigated." (Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 487.) "Where legal claims are first tried by a jury and equitable claims later tried by a judge, the trial court must follow the jury's factual determinations on common issues of fact." (Hoopes v. Dolan (2008) 168 Cal.App.4th 146.) The bench trial will be limited to the issues of whether the CC&Rs were properly revoked, and if not, whether the Court should enjoin any ongoing breach of the CC&Rs. [1] The Court rejects Plaintiffs argument that Lareau may not make arguments on behalf of Ahola and Sisu. Their attorneys signed the motion.
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