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WAGNER VS. LLOYD
Aug 11, 2024 |CVCV21-0198602
WAGNER VS. LLOYDCase Number: CVCV21-0198602This matter is on calendar for review regarding trial setting. The previous trial date was vacated by the Court’sorder dated April 2, 2024. The Court previously designated this matter exempt from plan designation. Neitherside has posted jury fees. The parties are granted 10 days leave to post jury fees. A failure to post jury fees inthat time will be deemed a waiver of the right to a jury. The parties are ordered to appear to provide theCourt with available trial dates.
Ruling
NORMA SALCEDA VS KELLY B. PELTON, SUCCESSOR TRUSTEE OF THE BRANDENBURG FAMILY TRUST DATED OCTOBER 28, 2019, ET AL.
Aug 12, 2024 |23STCV24643
Case Number: 23STCV24643 Hearing Date: August 12, 2024 Dept: 68 Dept. 68 Date: 8-12-24 Case #: 23STCV24643 Trial Date: Not Set DEMURRER TO THE SECOND AMENDED COMPLAINT MOVING PARTY: Defendant, Kelly Pelton, et al. RESPONDING PARTY: Plaintiff, Norma Salceda RELIEF REQUESTED Demurrer to the Second Amended Complaint · 1st Cause of Action: Quasi Specific Performance/Constructive Trust · 2nd Cause of Action: Promissory Estoppel SUMMARY OF ACTION In October, 2001, Plaintiff Norma Salceda, commenced leasing 13672 Van Nuys Blvd., Pacoima, for operation of an OB/GYN medical practice on the premises. The premises were owned by Nance Malmrose. Plaintiff and Malmrose were also personal friends. In 2010, Plaintiff offered to purchase the property from Malmrose. Two weeks later, Malmrose rejected the purchase offer, and instead promised to bequeath the property to Salceda at the time of death in to be reflected in an updated will/estate plan. Following the promise, Plaintiff suggested conversion of the property into a community healthcare center instead of continuing as an OB/GYN clinic. Malmrose agreed. Plaintiff subsequently engaged in plans to convert the premises, and began investing funds for the remodel plus working with government agencies. On January 23, 2019, passed away intestate with no spouse or offspring. No will was ever found, and Plaintiff suspects a private nurse to Malmrose, Ken Preston, absconding it. A probate proceeding commenced (19STPB09601). On October 12, 2022, Ginger Brandenburg (Ginger), child of decedents late husband Earl Malmrose (stepdaughter of Ginger?) was awarded 100% of Malmroses estate valued at approximately 11 million dollars. Ginger, however, passed away on September 24, 2022, two weeks before the award. Gingers surviving husband, Joe Brandenburg, was designated trustee. Joe subsequently resigned as trustee, thereby leading to the designation of Kelly Brandenburg Pelton (Pelton) as successor trustee. A later probate proceeding (23STPB00795) facilitated the transfer of all assets into the Brandenburg family trust. Plaintiff alleges that prior to Ginger being awarded the estate, Plaintiff nevertheless informed Ginger Brandenburg about the purported agreement to leave the commercial premises for the community clinic. Ginger purportedly assured Plaintiff that the property would be transferred in accordance with Malmroses wishes upon appointment as administrator. The purported promise was also confirmed by a third party attorney, Richard Hoefflin, representing the Malmrose estate. Plaintiff elected to forego making any claim with the probate court (presumably in the 19STPB09601 action), though the operative complaint lacks any actual forbearance agreement with any identified person. Hoefflin in fact specifically disclaimed any and all representation of Plaintiff in any capacity, and confirmed with the Estate attorney of the lapse to present any claim. Plaintiff also confirmed the lapse of any claim with Plaintiffs own attorney. On February 6, 2021, Ginger demanded a rental payment from Plaintiff. Plaintiff subsequently began paying rent. Following other communications, the parties entered into a seven month lease for the premises beginning on May 1, 2022, and ending November 30, 2022. On October 12, 2022, Brandenburg was awarded 100% of Estate in Malmrose Probate Proceeding (19STPB09601). [Sec. Amend. Comp., ¶ 79.] Following the death of Ginger, and assumption of trustee duties by Pelton, a notice of termination of the lease was later delivered stating that a month to month tenancy now existed on the property as of June 30, 2023 (notwithstanding the lapse of the actual lease on November 30, 2022). On August 4, 2023, Pelton filed an unlawful detainer action against Plaintiff. On October 10, 2023, Plaintiff filed a complaint for Quasi Specific Performance/Constructive Trust, Promissory Estoppel, and Unjust Enrichment, and Elder Financial Abuse. On October 23, 2023, Plaintiff filed a Notice of Related Cases for the instant action with Pasadena unlawful detainer action, 23PDUD02724. On October 24, 2023, the court declined to find the complaints related. On October 31, 2023, Plaintiff filed a first amended complaint for Quasi Specific Performance/Constructive Trust, Promissory Estoppel, and Unjust Enrichment. On December 14, 2023, Department 1 deemed the unlawful detainer action related to the instant complaint. On February 15, 2024, the court consolidated the cases. On February 15, 2024, the court sustained the demurrer to the first amended complaint with leave to amend. On March 18, 2024, Plaintiff filed a verified second amended complaint for Quasi Specific Performance/Constructive Trust, and Promissory Estoppel. RULING: Sustained with Leave to Amend. Request for Judicial Notice & Supplement Request for Judicial Notice: Granted in Part/Denied in Part. · A court can normally only take judicial notice of orders for the existence of the orders, but not any factual findings. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) The subject orders both address the represented disposition of the claims directly referenced in the complaint. The court therefore considers the content due to incorporation. Defendant Kelly B. Pelton, Trustee of the Brandenburg Family Trust Dated October 28, 2019, brings the subject demurer to the entire second amended complaint for Quasi Specific Performance/Constructive Trust and Promissory Estoppel, on grounds that all claims are barred by the one year statute of limitations, and lacks facts in support of the claims. Plaintiff counters that the causes of action were both timely filed and sufficiently pled based on the filing of the August 4, 2024, filed unlawful detainer action. The now consolidated unlawful detainer action was filed within one year of the September 24, 2022, death of Ginger Brandenburg. Plaintiff also denies any loss of a successor liability claim based on the dismissal against Ginger Brandenburg. Defendant in reply reiterates the statute of limitations bar, and lack of factual basis. Defendant in reply challenges any effort to relate the subject action back to the date of the unlawful detainer action. Defendant also describes the opposition as meandering, maintains the action remains barred under Code of Civil Procedure section 366.2 and 366.3, and argues against the void judgment argument. The claims are directed on the alleged representations of Ginger, which fall under the one year statute of limitations. Defendant also reiterates the substantive defects with the individual causes of action. A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . . (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.] Statute of Limitations Defendant maintains the subject action is governed by Code of Civil Procedure sections 366.2 and 366.3, which both provide in relevant part. If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. (Code Civ. Proc., § 366.2, subd. (a).) If a person has a claim that arises from a promise or agreement with a decedent to distribution from an estate or trust or under another instrument, whether the promise or agreement was made orally or in writing, an action to enforce the claim to distribution may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. (Code Civ. Proc., § 366.3, subd. (a).) Defendant interprets the statute of limitations as accruing on the date of death of the promisor. Defendant cites to the order sustaining the demurrer to the first amended complaint, whereby the court found a more than one year gap from the date of Gingers passing (September 24, 2022) and the October 10, 2023, filing of the instant complaint. The court continues to adhere to this position. Plaintiff offers no specific challenge to the reliance on sections 366.2 and 366.3 or the interpretation of the one year statute of limitations from the date of death against the person responsible and necessarily named to enforce the claim. Plaintiff instead contends the August 4, 2023, unlawful detainer action brought by the Trustee, preserved the one year statute of limitations, when the action consolidated with the subject action. Plaintiff relies on the interpretation of Code of Civil Procedure section 1048, as converting the cases into a single filing, thereby apparently also retroactively establishing the statute of limitations. (Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1053.) While the court agrees that at a minimum one judgment will the result as an outcome of the consolidation order, consolidation of an unlawful detainer action rendered necessary because of an intertwined legal question regarding possession, lacks an articulated nexus for purposes of finding the issues relate back to a certain statute of limitations date. (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.) The unlawful detainer action itself constitutes a summary proceeding. [I]t is sufficient to note that the proceeding is summary in character; that, ordinarily, only claims bearing directly upon the right of immediate possession are cognizable (Vella v. Hudgins (1977) 20 Cal.3d 251, 255; See Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049; Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159.) Nothing in the unlawful detainer proceeding in and of itself apparently raised any of the unfiled claims regarding the purported oral promises of Ginger. The unlawful detainer action itself sought to initiate a summary proceeding for possession as provided in the statutes. Plaintiff, in pro per, at the time filed an answer to the unlawful detainer proceeding, regarding the subject promise of Ginger, but the court finds no support for preservation of the issue for purposes of establishing timely compliance with the statute of limitations. Plaintiff presents no legally supported argument in opposition establishing a basis for relation back to the unlawful detainer for purposes of deeming the action timely under Code of Civil Procedure sections 366.2 and 366.3. Given the summary nature of the unlawful detainer, the court finds nothing in the unlawful detainer complaint and answer in any way contemplated the claims governed by Code of Civil Procedure section 366.2 and 366.3. (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 391-393.) The subsequent effort to raise said new claims more than one year after the death of Ginger in a properly filed complaint before the superior court and subsequent consolidation of the unlawful detainer action in no way establishes a timely filed action. Plaintiff acknowledges this possibility, and offers an alternative position that the statute of limitations only arose on April 11, 2023, when the court awarded Defendant Pelton the property. This view relies on a challenge to any award of property to a dead person, which the court finds inapposite. (In re Parsell's Estate (1923) 190 Cal. 454, 456; Liberty Mut. Fire Ins. Co. v. McKenzie (2001) 88 Cal.App.4th 681, 688.) No property was ever ordered to Ginger following her passing. The operative complaint specifically states that because Ginger pre-deceased the October 12, 2022, hearing, and Joe was appointed trustee until his resignation on September 26, 2022, with Kelly Pelton ultimately named trustee. The unchallenged statutes require submission of the claim against the promisor, which a party submits through the naming of the operative trustee during the relevant time frame. It has been the law in California for over a century that a new trustee succeed[s] to all the rights, duties, and responsibilities of his predecessors. (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1131.) There is no meaningful distinction between the liability of the decedent trustee who committed a tort as trustee and the successor trustee in her capacity as trustee, except that the decedent trustee's estate might also be liable. Plaintiffs attempt to draw a distinction between the decedent trustee, on the one hand, and the trust (which, as noted, is not an entity or proper party) and successor trustee, on the other hand, for purposes of the application of section 366.2. The authorities do not support such a distinction. [¶][¶] There is a one-year statute of limitations for all actions against the decedent for which the statute of limitations has not run at the time of the decedent's death. (Code Civ. Proc., § 366.2.) This statute applies to claims against a living trust. (See Code Civ. Proc., § 366.2(b)(3).) (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 294.) Furthermore, the operative complaint lacks any allegations in support of a void order as to Ginger, even if the argument held weight. Regardless, even if the court considered the alternative void order, such a situation would effectively eviscerate the entire complaint in that Plaintiff improperly named Ginger as a defendant, and should have named a different party. The result improperly disregards the language of sections 366.2 and 366.3. Plaintiff somewhat acknowledges this potential in the legally unsupported successor liability section. Plaintiff suggests Pelton somehow stepped into Gingers position and therefore assumed all claims, thereby extending the statute of limitations. The court declines to find the legal support for this position on behalf of Plaintiff, and again, otherwise cites back to the trustee liability and statute of limitations argument grounding consideration of the validity of the action. Plaintiff also circles back to Ginger on grounds of estoppel. Plaintiff cites to the assurances of Ginger to leave the property, without actually addressing the statute of limitations argument. Plaintiff only depends on citation to the substantive allegation standard of review as a means of suggesting a potential reversal on an otherwise presumptively properly pled estoppel claim. The court acknowledges the argument (and addresses the estoppel claim further below), but again, without any actual legally supported argument regarding the statute of limitations, the court finds any potentially properly pled estoppel claim lacks support on this basis. Given the pled date of death as September 24, 2022, and the filing date of the complaint on October 10, 2023, the more than one year gap between the date of death and the original complaint filing date establishes an untimely filed action as against Ginger, subsequently becoming a claim against the estate. The court therefore sustains the demurrer on statute of limitations grounds. (Code of Civ. Proc., §§ 366.2, subd. (a) 366.3, subd. (a); Davies v. Krasna (1975) 14 Cal.3d 502, 508; Dacey v. Taraday (2011) 196 Cal.App.4th 962, 983; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 554.) 1st Cause of Action: Quasi Specific Performance/Constructive Trust 2nd Cause of Action: Promissory Estoppel Defendant also challenges the substantive individual causes of action. Although the court finds no supporting argument excusing the statute of limitations, the court considers the issues presented in the demurrer. An action to make performance of a contract part of a will can be identified as quasi specific performance. Since the making of a will cannot be compelled, there can be no specific performance of such a contract in the strict sense, but under certain circ*mstances equity will give relief equivalent to specific performance by impressing a constructive trust upon the property which decedent had promised to leave to plaintiff. (Citations.) ... A contract to make a will is breached only if it has not been complied with at the time of the promisor's death, and for this reason the cause of action for the breach does not ordinarily accrue or the period of limitation commence to run until the promisor dies. (Citations.) (Ludwicki v. Guerin (1961) 57 Cal.2d 127, 130.) A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1485.) Promissory estoppel constitutes the second cause of action. The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 225 (internal quotation marks omitted).) The elements of equitable estoppel are (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury. [Citation.] [Citation.] The detrimental reliance must be reasonable. [Citations.] [¶] An additional requirement applies in cases involving equitable estoppel against the government. In such a case, the court must weigh the policy concerns to determine whether the avoidance of injustice in the particular case justifies any adverse impact on public policy or the public interest. (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.) The quasi specific performance claim in no way relieve Plaintiff of the statute of limitations challenges. (Ludwicki v. Guerin (1961) 57 Cal.2d 127, 130.) In the statute of limitations context, equitable estoppel may be appropriate where the defendant's act or omission actually and reasonably induced the plaintiff to refrain from filing a timely suit. (Citation.) The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit. (Citation.) (Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.) While the subject claim may excuse the late filed action, the court finds no factual basis for a finding of any misrepresentation or reasonable basis of detrimental reliance. The court therefore finds under the currently alleged version of the complaint and arguments, Plaintiff alternatively to pled a basis around the statute of limitations. The demurrer is sustained on this basis as well. In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed. (Code Civ. Proc., § 430.41, subd. (e)(1).) The first amended complaint was filed 21 days after the original complaint, and without any judicial review. The court has therefore now twice reviewed the action, and elects to sustain the demurrer with 20 days leave to amend under statutory guidelines. The court grants leave to amend in order to allow Plaintiff the opportunity to address the statute of limitations issues, including potential relation back doctrine. Again, Plaintiff may not add any new causes of action without leave of court, but the court will allow further clarification regarding any and all terms material to stating a claim. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Any new causes of action added without leave of court may be subject to a motion to strike. Material changes to the operative complaint seeking to alter or omit the material terms of the purported agreement may also be subject to a demurrer under the sham pleading standard. Defendant to give notice.
Ruling
EAST WEST BANK VS VALENTINA PAPAZIAN, ET AL.
Aug 12, 2024 |24STCV09146
Case Number: 24STCV09146 Hearing Date: August 12, 2024 Dept: 17 Superior Court of California County of Los Angeles DEPARTMENT 17 TENTATIVE RULING EAST WEST BANK vs. VALENTINA PAPAZIAN, et al. Case No.: 24STCV09146 Hearing Date: August 12, 2024 Plaintiffs motion to have its RFAs deemed admitted as to Defendant Valentina Papazian is GRANTED. On 4/11/2024, Plaintiff East West Bank (Plaintiff) filed suit against Valentina Papazian, Takuhi Papazian, Arshavir Khachikian, Gevork Papazian, and Hagop Papazian (collectively, Defendants) filed a complaint for unlawful detainer. On 7/12/2024, Plaintiff moved for an order that its Requests for Admission (RFAs) (Set One) served on Defendant Valentina Papazian (Defendant) be deemed admitted. The motion is unopposed. Discussion Plaintiff served Defendant with RFAs on 6/14/2024. To date, no responses have been received. Defendant failed to oppose this motion, and thus has not set forth any substantial justification for this failure. Based on the foregoing, Plaintiffs motion to have its RFAs deemed admitted as to Defendant Valentina Papazian is granted. It is so ordered. Dated: August , 2024 Hon. Jon R. Takasugi Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. For more information, please contact the court clerk at (213) 633-0517.
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
MEKHAIL vs BASKARON
Aug 09, 2024 |CVRI2401554
Motion to Expunge Lis Pendens byCVRI2401554 MEKHAIL vs BASKARONPAUL BASKARONTentative Ruling: GrantFactual / Procedural Context:This case involves a property dispute between family members. Plaintiffs Andrew and AdelMekhail (“Plaintiffs”) allege that on March 13, 2019, they entered into a purchase agreement(“Agreement”) with Defendant Paul Baskaron (“Defendant”) and his wife, Mona Baskaron, who isthe mother of Plaintiff Andrew Mekhail. Plaintiffs allege that, pursuant to the Agreement, Plaintiffsagreed to pay $400,000 for a one-half interest in real property in Escondido, California (“SubjectProperty”), which was previously owned by Paul and Mona. Andrew was to make a $50,000 downpayment, $20,000 of which was through a loan from the sellers, and monthly payments of $2,798.Plaintiffs were also responsible for maintenance and property taxes.Plaintiffs allege that they made all payments from 2018 (before the Agreement was signed)through 2019, but experienced financial hardship in 2020 as a result of the COVID-19 pandemic.Plaintiffs assert that despite emergency orders prohibiting evictions and unlawful detainer actionsfor those experiencing pandemic-related financial hardship, in June 2021, Defendant served a15-Day Notice to Pay Rent or Quit seeking arrears for March 2020 through June 2021 totaling$16,788.00. On August 26, 2021, Defendant filed an unlawful detainer action in San DiegoCounty, Baskaron v. Mekhail, San Diego County Case No. 37-2021-00036667-CL-UD-CTL (“UDAction”).On March 25, 2024, Plaintiffs filed their Complaint in the present action. They assert eight causesof action for: (1) Breach of Contract, Count 1; (2) Breach of Contract, Count 2; (3) Breach ofCovenant of Good Faith and Fair Dealing; (4) Breach of Covenant of Quiet Enjoyment; (5)Intentional Infliction of Emotional Distress; (6) Negligent Infliction of Emotional Distress; (7)Negligence; and (8) Wrongful Eviction (Civil Code § 789.3.) 1 On March 26, 2024, Plaintiffs filed aNotice of Pendency of Action (“lis pendens”), which was recorded against the Subject Property.Defendant now moves to expunge the lis pendens. Defendant argues that the lis pendens isimproper because Plaintiffs do not assert a real property claim that could affect title of possessionof the Subject Property. Defendant argues that all of Plaintiffs’ claims seek only money damages.1The Prayer indicates that there are 11 causes of action, while the body of the Complaint misnumbers the causes ofaction starting with the sixth so that the Wrongful Eviction cause of action is labeled as the ninth.Defendant argues that Plaintiffs cannot establish a probably of prevailing because all claims arebarred by res judicata since the issues were fully adjudicated in the UD Action or a prior civilaction filed by Andrew in the Superior Court of San Diego County, Mekhail v. Baskaron, et. al.,San Diego Superior Court Case No.: 37-2022-00021702-CU-OR-NC (“Quiet Title Action”).Defendant argues that Plaintiffs’ claims based on the Notice to Quit or filing of the UD Action aresubject to the anti-SLAPP statute. Defendant requests $8,000 in attorneys’ fees.Plaintiffs argue that their claims affect title and right to possession to the Subject Property becausethey have a substantial interest in the Subject Property. Plaintiffs argue that they have standingto record the lis pendens because they are 25 percent owners of the Subject Property based onthe Purchase Agreement. Plaintiffs argue that Defendant failed to meet and confer. Plaintiffsargue that sanctions are not warranted.In his Reply, Defendant argues that the Opposition was untimely. Defendant argues that thePrayer for Relief shows that title is not at issue and all claims seek monetary damages. Defendantargues that the legal effect of the Purchase Agreement has already been adjudicated inDefendant’s favor and all claims were, or should have been raised as claims or defenses in theQuiet Title Action or UD Action. Defendant argues that sanctions are warranted because the lispendens was recorded without substantial justification and there is no meet and conferrequirement.AnalysisRequest for Judicial Notice:Defendant requests judicial notice of the lis pendens filed in the present action, as well as theComplaint, Answer, MJOP, order granting MJOP and Judgment in the UD Action, and theComplaint, Third Amended Complaint, orders sustaining the demurrers of Defendant and MonaBaskaron and Judgment in the Quiet Title Action. These documents may be judicially noticedpursuant to Cal. Evid. Code §452(d), which permits judicial notice of court records. Although acourt may take judicial notice of the existence of each document in a court file, it can only takejudicial notice of the truth of facts asserted in documents such as orders, findings of fact andconclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879.)Plaintiffs object to judicial notice on several grounds, none which have merit. Primarily, Plaintiffsargue that the documents are irrelevant. However, the earlier proceedings are directly relevant toDefendant’s argument that Plaintiffs’ claims are barred by res judicata. Judicial notice is granted.Motion to Expunge Lis Pendens:A lis pendens/notice of pendency of action gives constructive notice of a pending lawsuit affectingtitle to described real property and is recorded in the office of the county recorder where land islocated. (See Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (TRG 2013) Ch. 9, Part I:Law and Motion, §9:421, p. 9(I)-164.) A lis pendens may be filed in any action in which a realproperty claim is alleged. (Cal. Code Civ. Pro. §405.2.) A lis pendens may be expunged if plaintiffcannot establish by a preponderance of the evidence the probable validity of a real property claim.(Cal. Code Civ. Pro. § 405.31, § 405.32.) The burden of proof is on the party opposing the motionto expunge to establish the existence of a “real property claim” and that it is “probably valid.” (Cal.Code Civ. Pro. § 405.3.) A lis pendens is a provision remedy that should be applied narrowly.(Urez Corp. v. Superior Court (1987) 190 Cal. App. 3d 1141, 1145.)Defendant argues that Plaintiffs do not assert a real property claim. This means that the causesof actions pled in the complaint would, if meritorious, affect title to or the right to possession of,specific real property. (BGJ Associates v. Superior Court (1999) 75 Cal. App. 4th 952, 956.) Anaction for money damages alone will not support a lis pendens. (Palmer v. Zaklama (2003) 109Cal. App. 4th 1367, 1381; citing Allied Eastern Financial v. Goheen Enterprises (1968) 265 Cal.App. 2d 131, 133-134.) Because of the due process concerns raised by the filing of a lis pendensprior to judgment, an action affecting title or right of possession should be narrowly defined toprevent abuse. (Burger v. Superior Court (1984) 151 Cal. App. 3d 1013, 1018.) The claim mustappear in the pleadings, rather than extrinsic evidence. (BGJ Associates, supra, 75 Cal. App. 4that 956.) To determine whether the pleadings contain a real property claim, the court’s examinationof the complaint is similar to the analysis for a demurrer. (Ibid.)On March 26, 2024, Plaintiffs have filed a Notice of Release of Pendency of Action against theSubject Property on grounds that Plaintiff Andrew Mekhail is an untitled owner with a one-halfinterest in the Subject Property. (RJN, Ex. A.) The Complaint alleges that, pursuant to the termsof the Purchase Agreement, Andrew had a 50 percent ownership interest in the Subject Property.(Comp., 24.) Plaintiffs allege that Defendant breached the Purchase Agreement by filing the UDAction to evict Andrew. (Id at ¶ 25.) Pursuant to the first cause of action for breach of the PurchaseAgreement, Plaintiffs seek damages in an amount not yet ascertained. (Id at ¶ 28.) The secondcause of action for breach of an alleged oral partnership agreement for the Subject Property,pursuant to which Andrew made monthly payments until he experienced financial hardship dueto the COVID-19 pandemic. (Id at ¶30 and 31.) This cause of action also seeks damages. Neithercontract cause of action seeks specific performance.The Complaint also includes several torts claims, including breach of covenants and negligentand intentional infliction of emotional distress, also based on the filing of the UD Action and failureto comply with the emergency moratorium on evictions during the pandemic. None of thesecauses of action are real property claims that would affect title or right to possession of the SubjectProperty.Finally, the Complaint includes causes of action for Breach of Implied Covenant of QuietEnjoyment and Wrongful Eviction. Such claims are generally subject to monetary damages afterthe tenant has been actually or constructively evicted from the premises. (Ginsberg v. Gamson(2012) 205 Cal. App. 4th 873, 898.) The Complaint seeks only monetary damages and Plaintiffshave not cited any authority that they may recover possession of the Subject Property ifsuccessful.Overall, the Complaint does not assert a real property claim that would affect title to or possessionof the Subject Property. Therefore, the lis pendens is improper and should be expunged. Becausethere is no real property claim, it is not necessary to determine the probable validity of the claims.
Ruling
GLENN MAN CHING FONG, ET AL. VS ZHU LING PENG
Aug 06, 2024 |22PSCV00749
Case Number: 22PSCV00749 Hearing Date: August 6, 2024 Dept: 6 CASE NAME: Glenn Man Ching Fong, et al. v. Zhu Ling Peng Motion of Partition Referee for Discharge and for Instructions Regarding Disposition of Sale Proceeds TENTATIVE RULING The Court GRANTS the motion of partition referee for discharge and for instructions regarding disposition of sale proceeds. The Court will sign the proposed order submitted with the motion. Partition Referee is ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a partition action. On July 21, 2022, plaintiffs Glenn Man Ching Fong, an individual and as Trustee of the G and D Fong Family Trust, and Diana Man Ling Fong, an individual and as Trustee of the G and D Fong Family Trust (collectively, Plaintiffs), filed this action against defendant Zhu Ling Peng (Defendant) and Does 1 to 10, alleging the sole cause of action for partition. On July 1, 2024, Matthew L. Taylor (Partition Referee) moved to be discharged and for instructions regarding the disposition of sale proceeds. The motion is unopposed. LEGAL STANDARD The referee or any party may, on noticed motion, petition the court for instructions concerning the referee's duties under this title. (Code Civ. Proc., § 873.070.) DISCUSSION Summary of Motion Partition Referee seeks to be discharged as Partition Referee, and seeks instructions regarding disposition of the remaining sales proceeds held by Partition Referee. Partition Referee indicates that he closed escrow on the sale of the subject property for $720,000.00 in December 2023, and that following payment by the escrow officer of customary sale costs, such as broker commissions, title insurance, and property taxes, Partition Referee received a total of $656,386.64, which includes the buyers initial deposit of $21,900.00 paid outside of escrow. Partition Referee then paid various administrative costs incurred by Partition Referee, such as court filing fees, bank fees, bond charges, publication charges, messenger fees, and property maintenance costs, including gardening, interior repairs, and utilities. Partition Referee is now currently holding $648,854.49 and seeks further instructions from the Court as to the distribution of these remaining proceeds. Partition Referee seeks the Courts approval of the distribution of the sale proceeds as follows: - $25,421 for Partition Referees services rendered in this matter; - $330,970.98 to Plaintiffs; and - $292,462.51 to Defendant. Analysis The Court finds Partition Referees motion to be well taken. Partition Referees fees of $25,421 appear reasonable in light of Partition Referees work over the past two years since this action was filed. First, Partition Referees rate of $300 an hour is reasonable for the relevant legal community. The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom [citation], and this includes the determination of the hourly rate that will be used in the lodestar calculus. [Citation.] (569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437.) Second, Partition Referee provided a cost bill that supports the amount requested. (Taylor Decl., Ex. 3.) [I]tems on a verified cost bill are prima facie evidence the costs, expenses and services listed were necessarily incurred& (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) The Court next finds the proposed distribution of sale proceeds between the parties to be fair and reasonable. (Report and Recommendation of Partition Referee in Connection with Real Property Partition Sale Proceeds and Claims (Report), Final Calculations, 23:1-15.) Partition Referees report makes clear that only Plaintiffs submitted claims for reimbursem*nts, the majority of which were properly supported by evidence. (Report, 10:1-11:20.) The report also makes clear that Plaintiffs request for award of attorney fees and costs is proper with respect to the attorney fees, but $5,000.00 of the costs sought were improper. (Report, 11:23-15:13.) Accordingly, Plaintiffs are to be reimbursed $43,849.91. (Report, 21:10-19.) The Court further agrees with Partition Referee that there is insufficient evidence to support Plaintiffs argument that Defendant should bear responsibility for 100% of Partition Referees fees. (Report, 15:15-16:23.) But, the $6,646.56 attributable solely to Defendant, i.e., eviction related costs and fees, should be borne by Defendant. (Report, 16:24-17:23.) The Court also agrees with Partition Referee that $5,994.00 should be reallocated to Defendant as compensation for the Franchise Tax Board fees deducted from the gross sales proceeds, which fees were attributable solely to Plaintiffs. (Report, 18:1-26.) Finally, the Court construes the lack of opposition from the parties as a tacit approval of the proposed distribution of sales proceeds here. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motionand Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]) Based on the foregoing, the Court GRANTS Partition Referees motion as follows: 1. Partition Referee is DISCHARGED upon payment of the remaining sale proceeds as specified herein; 2. Partition Referee is to receive $25,421.00 for his professional fees from the remaining sale proceeds; 3. Plaintiffs are to receive $330,970.98 from the remaining sale proceeds; and 4. Defendant is to receive $292,462.51 from the remaining sale proceeds. The Court will sign the proposed order submitted with the motion. CONCLUSION The Court GRANTS the motion of partition referee for discharge and for instructions regarding disposition of sale proceeds. The Court will sign the proposed order submitted with the motion. Partition Referee is ordered to give notice of the Courts ruling within five calendar days of this order.
Ruling
LUCY BROADBENT, ET AL. VS 3585 MULTIVIEW, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Aug 08, 2024 |23STCV11134
Case Number: 23STCV11134 Hearing Date: August 8, 2024 Dept: 37 HEARING DATE: Thursday, August 8, 2024 CASE NUMBER: 23STCV11134 CASE NAME: Lucy Broadbent, et al. v. 3585 Multiview, LLC, et al. MOVING PARTY: Defendants 3585 Multiview, LLC; Ruben Sangalang, and Virginia Kho Ting OPPOSING PARTY: Plaintiffs Lucy Broadbent, et al. TRIAL DATE: Not Set PROOF OF SERVICE: OK PROCEEDING: Demurrer with Motion to Strike First Amended Complaint OPPOSITION: 30 July 2024 REPLY: None filed. TENTATIVE: Defendants demurrer to the FAC is overruled in its entirety. Defendants motion to strike is denied. Defendants must file an Answer by August 19, 2024. The Court schedules an OSC Re: Filing of Answer August 28, 2024, and continues the CMC to the same date and time. Defendants to give notice. Background On May 17, 2023, Lucy Broadbent; David Norland; Steven, Shirley, and Eriq Quat; Julia Ganis; Scott Leslie; Denise and Jeff Turzo; Pouri Fox and Brandon Fox, and Anthony Ivanich (collectively Plaintiffs) filed a Complaint against 3585 Multiview, LLC (Defendant) and Does 1 to 50. Plaintiffs allege that Defendants construction efforts in an upslope property caused mudslides and damages to Plaintiffs respective properties. The Complaint alleges three causes of action: (1) Negligence, (2) Nuisance, and (3) Trespass. On July 20, 2023, Defendant filed a demurrer to the Plaintiffs Complaint. On October 31, 2023, the court overruled the demurrer in its entirety. On March 28, 2024, Plaintiffs filed the operative First Amended Complaint (FAC) alleging the same three causes of action and adding Defendants Ruben Sangalang and Virginia Kho Ting Casabar to this action. Defendants now demurrer to the FAC and move to strike the FAC. Plaintiffs oppose the motions. The matter is now before the court. Demurrer[1] I. Legal Standard A. Demurrer A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged.¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) ¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer does not admit contentions, deductions or conclusions of fact or law.¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ B. Motion to Strike ¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded].)¿¿¿¿ C. Leave to Amend Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ II. Discussion Defendants demur to the first, second, and third causes of action on the basis that Defendants actions did not cause the landslide, hence Plaintiffs claims for negligence, nuisance, and trespass fail. In support of their contention that Defendants are not responsible for the mudslide/landslide, Defendants attach the Declarations of Ricky Dela Cruz and Theida Salazar. Instead of challenging the sufficiency of the FAC, Defendants challenge the fact that they are responsible for the mudslide/landslide by introducing evidence that is outside the pleadings and reciting facts as Defendants perceive them to be. [D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144 citing Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422423.) Nevertheless, Defendants demurrer states: In this Demurrer, Defendants will provide declarations and records establishing that the allegations are blatantly false and fail to state any claim against Defendants. Defendants refutes Plaintiffs erroneous assertions and statements. (Demurrer, at p. 7:27-8:2.) Defendants has demonstrated and evidence that it has no liability issues in this matter as well as the fact that there is no evidence that can change the fact that there is no evidence supporting Plaintiffs causes of action thereby destroying all allegations stated within the FAC. (Demurrer, at p. 13:18-21.) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114 .) By submitting declarations and evidence, Defendants are asking the court to look beyond the allegations in the FAC and take the Defendants' facts true. For purposes of a demurrer, the material facts alleged in the pleadings are taken as true, regardless of whether Plaintiffs will be able to prove the pleaded facts. (See Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) The truth of the facts and evidence presented in Defendants declarations remains subject to dispute. The proper forum to challenge Plaintiffs evidence is not via demurrer but via a motion for summary judgment after all discovery has been completed. Lastly, Defendants assert that in amending the Complaint, Plaintiffs made minor, seemingly, name changes, erred description and adding parties rather than editing the claims within the original complaint. (Demurrer, at p. 4:7-8.) The court notes that on October 31, 2023, the court overruled the Defendants demurrer to the Complaint as to all three causes of action. The court sees no reason to sustain Defendants demurrer because Defendants failed to show that the pleadings are legally deficient. The demurrer is overruled. Plaintiffs request for sanctions under CCP § 177.5 is also denied. motion to strike Defendants seek to strike the term undercapitalization from the FAC on the basis that the term is misleading and false. Defendants allege that the use of the term undercapitalization constitutes slander and defamation. (Motion, at p. 7:21-15.) Defendants fail to explain how the use of the word undercapitalized results in Defendants are being described as impoverished and mediocre who are ostracized from the community. (Motion, at p. 8:1-2.) Plaintiffs assert the allegation Defendant 3585 N. Multiview, LLC is undercapitalized is necessary to pierce the corporate veil. Plaintiffs further assert that the allegations in the FAC must be taken as true for purposes of a motion to strike. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The motion to strike is denied. Conclusion Defendants demurrer to the FAC is overruled in its entirety. Defendants motion to strike is denied. Defendants must file an Answer by August 19, 2024. The Court schedules an OSC Re: Filing of Answer August 28, 2024, and continues the CMC to the same date and time. Defendants to give notice. [1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. (Salazar Decl., ¶¶ 6-9.)
Ruling
ORI BLUMENFELD VS BROOKE MASON
Aug 09, 2024 |23STCV05240
Case Number: 23STCV05240 Hearing Date: August 9, 2024 Dept: 57 At today's hearing on the OSC re appointment of a partition referee, the Court will appoint Kevin Singer and John Rachlin. To memorialize the appointment, the Court will direct Defendants' counsel Mr. Seeley to prepare the proposed order, using his redlined version of Mr. Singer's "termplate" order. The Court will spend no time today reviewing with Mr. Seeley and Plaintiffs counsel Ms. Rosenthal why one joint status report was not submitted, and their tiresome and tedious sniping at each other in the non-joint reports that were filed.
Document
AVIATOR PROPERTIES LLC V SULLIVAN, CHRISTOPHER P
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Sep 01, 2023 |Luis Delgado |HR FORECLOSURE = > $250K |3 |50-2023-CA-013426-XXXA-MB
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Jul 30, 2024 |Maxine D. Cheesman |OTHER RP ACTIONS > $50K, < $250K |50-2024-CA-007189-XXXA-MB
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Aug 05, 2024 |G. Joseph Curley |HR FORECLOSURE = > $250K |50-2024-CA-007346-XXXA-MB
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STERN, DAVID V WELLNESS RESORTS LLC
Aug 02, 2024 |Bradley G. Harper |CONDOMINIUM |50-2024-CA-007320-XXXA-MB
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