EXHIBIT(S) - G (Motion #2) - Affidavit of Merit and Amount Due July 22, 2022 (2024)

Case

U.S. Bank Trust National Association, Not In Its Individual Capacity, But Solely As Trustee Of Citigroup Mortgage Loan Trust 2021-A v. Mary L Gereau A/K/A MARY L. DECESARE, John Doe Number One Through John Doe Number Ten

Aug 23, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |CV24-0465

Case

Nationstar Mortgage Llc D/B/A Mr. Cooper, Nationstar Mortgage L L C Dba, Mr Cooper, Cooper Mr v. Michael Diskin TREASURER OF ESSEX COUNTY, AS ADMINISTRATOR OF THE ESTATE OF EVERETT E. BOWEN, WHO WAS THE SURVIVING SPOUSE OF SUSAN A. BOWEN, Jenny Hillman AKA JENNINE HILLMAN AS HEIR TO THE ESTATE OF EVERETT E. BOWEN, WHO WAS THE SURVIVING SPOUSE OF SUSAN A. BOWEN, John Callahan AS HEIR TO THE ESTATE OF EVERETT E. BOWEN, WHO WAS THE SURVIVING SPOUSE OF SUSAN A. BOWEN, Melaney Bowen AS HEIR TO THE ESTATE OF EVERETT E. BOWEN, WHO WAS THE SURVIVING SPOUSE OF SUSAN A. BOWEN, Katey Lanphear AS HEIR TO THE ESTATE OF EVERETT E. BOWEN, WHO WAS THE SURVIVING SPOUSE OF SUSAN A. BOWEN, People Of The State Of New York, Steven Bowen AS HEIR TO THE ESTATE OF EVERETT E. BOWEN, WHO WAS THE SURVIVING SPOUSE OF SUSAN A. BOWEN, MELANEY BOWEN AS HEIR TO THE ESTATE OF EVERETT E. BOWEN, WHO WAS THE SURVIVING SPOUSE OF SUSAN A. BOWEN, John Doe, John Callahan Hr, Melaney Bowen Hr, Katey Lanphear Hr, New York State People Of, Steven Bowen Hr, Bowen Everett E Estate Of (The), Susan A Bowen Decd, Bowen Everett E Surv Spouse, Jenny Hillman Aka Hr, Jennine Hillman Aka Hr, Everett E Bowen Decd, Diskin Michael Treasurer/Adm

Jan 30, 2020 |Glen Bruening |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |CV20-0058

Case

Aug 21, 2019 |Glen Bruening |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |CV19-0421

Case

U.S. Bank Trust National Association, Not In Its Individual Capacity But Solely As Owner Trustee For Rcaf Acquisition Trust v. Jack E. Green, Dawn M. Green, Us Bank National Association, Not In Its Individual Capacity, But Solely As Trustee Of Nrz Recovery Trust, St. Peter'S Healthcare Services, New York State Department Of Taxation And Finance, Citimortgage, Inc. Successor By Merger With Citifinancial Mortgage Company, Inc., John Doe 1-JOHN DOE 12 THE LAST TWELVE NAMES BEING FICTITIOUS AND UNKNOWN TO PLAINTIFF,THE PERSONS OR PARTIES INTENDED BEING THE TENANTS,OCCUPANTS,PERSONS OR CORPORATIONS,IF ANY,HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES,DESCRIBED IN THE COMPLAINT

Aug 26, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |CV24-0469

Case

Marjory L. Landole, Christopher P. Burke v. Donald Drasye

Aug 21, 2024 |Real Property - Other (Article 15) |Real Property - Other (Article 15) |CV24-0460

Case

BAYVIEW LOAN SERVICING, LLC et al v. ROMANO, MATTHEW J et al

Jan 15, 2020 |Bruening, Hon. Glen T. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |CV20-0026

Case

Wells Fargo Bank,N.A. Successor By Merger To Wells Fargo Bank Minnesota, National Association, As Trustee For First Franklin Mortgage Loan Trust 2003-Ffh2 Asset-Backed Certificates Series 2003-Ffh2 v. John P. Fifield, Jennifer Fregoe-Fifield, New York State Department Of Taxation And Finance, John Doe And Jane Doe #1 Through #7

Jun 20, 2016 |Glen Bruening |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |CV16-0269

Case

Aug 26, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |CV24-0468

Case

Christiana Trust, A Division Of Wilmington Savings Fund Society, Fsb, As Indenture Trustee, For The Csmc 2014-Rpl3 Trust, Mortgage-Backed Notes, Series 2014-Rpl3 v. Neal R Larkin, John Doe #1 Through John Doe #12, The Last Twelve Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Premises, described in the complaint,

Dec 14, 2016 |Glen Bruening |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |CV16-0586

Ruling

R. BRUCE KEINER, ET AL. VS TREVOR DAMYAN, ET AL.

Aug 22, 2024 |Echo Dawn Ryan |22STCV06126

Case Number: 22STCV06126 Hearing Date: August 22, 2024 Dept: 26 8/22/2024 Dept. 26 Hon. Rolf Treu, Judge presiding KEINER, et al. v. DAMYAN, et al. (22STCV06126) Counsel for Plaintiffs/Cross-Defendants/moving party: James Hepworth (Fidelity National Law Group) Counsel for Defendant/Cross-Complainant/opposing party: David Loe (Loe Law Group) MOTION FOR AN ORDER IMPOSING EVIDENTIARY SANCTIONS AGAINST DEFENDANT AND CROSS-COMPLAINANT TREVOR DAMYAN FOR WILLFUL REFUSAL TO APPEAR FOR COURT-ORDERED DEPOSITION AND REQUEST FOR MONETARY SANCTIONS (filed 07/12/2024) TENTATIVE RULING The Court GRANTS Plaintiffs request for evidentiary sanctions against Defendant Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims. The Court GRANTS Plaintiffs request for monetary sanctions in the reduced sum of $1,800. Defendant is ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,800, within thirty (30) days. I. BACKGROUND On February 17, 2022, Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner (collectively Plaintiffs) filed the instant quiet title action against Defendants Trevor Damyan (Defendant) and Done Right Home Remodeling, Inc. On April 7, 2022, Plaintiffs filed a Doe Amendment naming Urban Professional Builders, Inc. as Doe 1. The Second Amended Complaint alleges causes of action for: 1. Quiet Title; 2. Damages for Trespass and Injunctive Relief; 3. Nuisance; 4. Negligence; and 5. Prescriptive Easem*nt. Plaintiffs allege the following. Plaintiffs are owners of a duplex at 1235 S. Orange Drive, Los Angeles 90019-1545 (Keiner Property). (SAC ¶¶ 1-4.) Plaintiffs have owned the Keiner Property since 2008. (SAC ¶ 10.) Defendant is Plaintiffs neighbor and owns 1229 S. Orange Drive Los Angeles 90019-1545 (Damyan Property). (SAC ¶¶ 1-11.) The Damyan Property consists of a primary house and an accessory dwelling unit. (Ibid.) Defendant has owned the Damyan Property since 2015. (Ibid.) The Keiner Property and Damyan Property share a common north/south border that extends approximately 125 feet. (SAC ¶ 14.) On or about January 4, 2022, Defendant and Urban Professional Builders, Inc., without obtaining prior permission or consent from the Plaintiffs, began digging a long trench along the common boundary between the Keiner Property and the Damyan Property, as well as, installed rebar on which to pour concrete for footings for a fence. (SAC ¶ 25.) Defendants have also reinstalled a driveway gate which encroaches, in part, on the Keiner Property. (Ibid.) The portions of the driveway gate, the rebar, and the footings on the Keiner Property, and the fence itself (to the extent it is built on the Keiner Property), are referred to herein as the Encroachments. The Encroachments interfere with the Keiners use and enjoyment of the Keiner Property, and this problem will worsen if the fence is fully constructed. (SAC ¶ 28.) Plaintiffs have demanded that Defendant remove the Encroachments, build the fence entirely on the Damyan Property (but in accordance with the HPOZ / Miracle Mile Preservation Plan and all applicable building codes), and restore the Keiner Property to its original condition. Defendant, however, has refused to remove all of the Encroachments. (Ibid.) On April 8, 2022, Defendant Damyan filed a Cross-Complaint against Plaintiffs and Guaranteed Rate, Inc., alleging causes of action for: 1. Quiet Title; 2. Nuisance; 3. Equitable Easem*nt For Access to ADU; 4. Prescriptive Easem*nt For Garbage Cans; 5. Prescriptive Easem*nt For Portion of Driveway; and 6. Negligence On July 12, 2024, Plaintiffs filed a Motion for an Order Imposing Evidentiary Sanctions and Monetary Sanctions, arguing: · Plaintiffs move for an order imposing evidentiary sanctions against Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims, and imposing monetary sanctions against Damyan, and in favor of the Keiners, in the amount of $2,700.00 · In the alternative, Plaintiffs move for a second order compelling Damyan to appear for his deposition prior to the September 3, 2024 trial date, at a date and time convenient to the Keiners and the counsel that is on or before July 31, 2024, and imposing monetary sanctions against Damyan, and in favor of the Keiners, in the amount of $2,700.00. · This motion is made on the grounds that Damyan failed to comply with this Courts February 29, 2024 order requiring him to appear for his deposition and has refused to appear for any deposition before the September 3, 2024 trial date. Defendants did not file an opposition. On August 16, 2024, Plaintiffs filed a notice of non-opposition. II. ANALYSIS A. Legal Standard A misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) A misuse of the discovery process also includes disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g).) A court may impose issue sanctions, evidence sanctions, or monetary sanctions against a party engaging in misuse of the discovery process. (Code Civ. Proc. § 2023.030.) Where an issue sanction is imposed, designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (b).) An issue sanction may also involve any party engaging in misuse of the discovery process from supporting or opposing designated claims or defenses. (Code Civ. Proc., § 2023.030, subd. (b).) An evidence sanction involves an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).) The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Ibid.) [C]ontinuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Ibid.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. (Ibid.) B. Evidentiary Sanctions Plaintiffs request evidentiary sanctions against Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims, and imposing monetary sanctions against Damyan, and in favor of the Plaintiffs, in the amount of $2,700.00. In the alternative, Plaintiffs move for a second order compelling Damyan to appear for his deposition prior to the September 3, 2024 trial date, at a date and time convenient to Plaintiffs and the that is on or before July 31, 2024, and imposing monetary sanctions against Damyan, and in favor of the Plaintiffs, in the amount of $2,700.00. Plaintiffs assert that Damyan has violated this Courts February 29, 2024 order requiring him to appear for his deposition. (Hepworth Decl., Ex. B.) Plaintiffs served an Amended Notice of Deposition on Defendant prior to the scheduled deposition date of May 30, 2024. (Hepworth Decl., Ex. E.) Plaintiffs did not receive any objections to the Amended Notice of Deposition. (Hepworth Decl., ¶ 8.) Thereafter, Damyan failed to appear for his deposition. (Hepworth Decl., ¶ 9, Ex. F.) Plaintiffs counsel states in his declaration that following Damyans failure to appear for his deposition on May 30, 2024, I met and conferred with Damyans counsel in an effort to secure his appearance at a deposition at a future date. Counsel for Damyan informed me that Damyan refused to provide an alternative date for his deposition that was before the September 3, 2024, trial date. (Hepworth Decl., ¶ 10.) The Court finds that imposition of evidentiary sanctions is warranted due to Damyans failure to appear for his court ordered deposition. The Court notes that Damyan did not file an opposition. A party who has not timely filed written opposition to a motion&may not be afforded an opportunity to offer oral argument at the hearing. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The failure to file opposition creates an inference that the motion or demurrer is meritorious.¿ (Id.) Damyan does not establish that lesser sanctions would not prevent further discovery abuse. Based on the foregoing, the Court GRANTS Plaintiffs request for evidentiary sanctions against Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims. C. Monetary Sanctions Plaintiffs also seek monetary sanctions against Defendant for bringing the instant motion. California Code of Civil Procedure, Section 2023.030 provides that [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) Counsels declaration in support of the instant motion sets forth counsels hourly rate of $450 per hour and the time spent on the instant motions. Counsel attests that Plaintiff will and has incurred attorneys fees and costs totaling $2,700 in bringing the instant motion. The Court finds sanctions are warranted, but not to the full extent requested. A court has discretion to award sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks but they should not be punitive in nature or levied for the purposes of punishing an offending party. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) Since no opposition was filed, the Court does not grant the 2 hours counsel anticipated it would spend on reviewing the opposition and preparing the reply brief. Therefore, the Court reduces the requested monetary sanctions to $1,800. Accordingly, Plaintiffs are awarded $1,800 collectively as attorneys fees. Sanctions are imposed against Defendant. Defendant is ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,800, within thirty (30) days. III. CONCLUSION The Court GRANTS Plaintiffs request for evidentiary sanctions against Defendant Damyan precluding him from providing any testimony or introducing any documents in support of his defenses and/or cross-claims. The Court GRANTS Plaintiffs request for monetary sanctions in the reduced sum of $1,800. Defendant is ordered to pay sanctions to Plaintiffs, by and through counsel of record, in the total amount of $1,800, within thirty (30) days. 8/22/2024 Dept. 73 Hon. Rolf Treu, Judge presiding KEINER, et al. v. DAMYAN, et al. (22STCV06126) Counsel for Plaintiffs/Cross-Defendants/moving party: James Hepworth (Fidelity National Law Group) Counsel for Defendant/Cross-Complainant/opposing party: David Loe (Loe Law Group) MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (filed 07/11/2024) TENTATIVE RULING Plaintiffs Motion for Leave to File Third Amended Complaint is DENIED without prejudice. I. BACKGROUND On February 17, 2022, Plaintiffs R. Bruce Keiner, Suellen T. Keiner, William G. Keiner, Alexis M. Keiner (collectively Plaintiffs) filed the instant quiet title action against Defendants Trevor Damyan (Defendant) and Done Right Home Remodeling, Inc. On April 7, 2022, Plaintiffs filed a Doe Amendment naming Urban Professional Builders, Inc. as Doe 1. The Second Amended Complaint alleges causes of action for: 1. Quiet Title; 2. Damages for Trespass and Injunctive Relief; 3. Nuisance; 4. Negligence; and 5. Prescriptive Easem*nt. Plaintiffs allege the following. Plaintiffs are owners of a duplex at 1235 S. Orange Drive, Los Angeles 90019-1545 (Keiner Property). (SAC ¶¶ 1-4.) Plaintiffs have owned the Keiner Property since 2008. (SAC ¶ 10.) Defendant is Plaintiffs neighbor and owns 1229 S. Orange Drive Los Angeles 90019-1545 (Damyan Property). (SAC ¶¶ 1-11.) The Damyan Property consists of a primary house and an accessory dwelling unit. (Ibid.) Defendant has owned the Damyan Property since 2015. (Ibid.) The Keiner Property and Damyan Property share a common north/south border that extends approximately 125 feet. (SAC ¶ 14.) On or about January 4, 2022, Defendant and Urban Professional Builders, Inc., without obtaining prior permission or consent from the Plaintiffs, began digging a long trench along the common boundary between the Keiner Property and the Damyan Property, as well as, installed rebar on which to pour concrete for footings for a fence. (SAC ¶ 25.) Defendants have also reinstalled a driveway gate which encroaches, in part, on the Keiner Property. (Ibid.) The portions of the driveway gate, the rebar, and the footings on the Keiner Property, and the fence itself (to the extent it is built on the Keiner Property), are referred to herein as the Encroachments. The Encroachments interfere with the Keiners use and enjoyment of the Keiner Property, and this problem will worsen if the fence is fully constructed. (SAC ¶ 28.) Plaintiffs have demanded that Defendant remove the Encroachments, build the fence entirely on the Damyan Property (but in accordance with the HPOZ / Miracle Mile Preservation Plan and all applicable building codes), and restore the Keiner Property to its original condition. Defendant, however, has refused to remove all of the Encroachments. (Ibid.) On April 8, 2022, Defendant Damyan filed a Cross-Complaint against Plaintiffs and Guaranteed Rate, Inc., alleging causes of action for: 1. Quiet Title; 2. Nuisance; 3. Equitable Easem*nt For Access to ADU; 4. Prescriptive Easem*nt For Garbage Cans; 5. Prescriptive Easem*nt For Portion of Driveway; and 6. Negligence On July 11, 2024, Plaintiffs filed a Motion for Leave to File Third Amended Complaint, arguing: · The proposed third amended complaint adds 1229 S ORANGE LLC (1229 LLC) as a defendant to the first cause of action (for Quiet Title), second cause of action (for Damages for Trespass and Injunctive Relief), third cause of action (for Nuisance), and fifth cause of action (for Prescriptive Easem*nt). · Defendant Trevor Damyan (Damyan) recently transferred ownership of the property at issue in this action to 1229 S. Orange LLC, a Delaware limited liability company. The Grant Deed reflecting the transfer is attached hereto as Exhibit B. The grant deed is dated March 21, 2024, after the original trial date in this action of March 4, 2024. The grant deed was recorded with the Los Angeles County Recorders Office on April 3, 2024. · No notice was provided by Damyan (or his counsel) to the Keiners (or their counsel) of this transfer. The Keiners recently discovered the transfer through their own investigation. · Including 1229 LLC as a defendant is essential in order to ensure that any and all rulings, orders, determinations and judgments concerning the property are binding on the current owner of the property. · There has been no undue delay, bad faith or prejudice created by the Keiners. They acted promptly upon discovering the transfer of ownership. Defendants did not file an opposition. On August 16, 2024, Plaintiff filed a notice of non-opposition. II. ANALYSIS A. Legal Standard The trial court has discretion to allow amendments to pleadings in the furtherance of justice. (Code Civ. Proc., § 473, subd. (a)(1).) Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading. (Code Civ. Proc., § 576.) There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) An application to amend a pleading is addressed to the trial judges sound discretion. (Ibid.) B. Discussion Here, Plaintiffs proposed TAC adds 1229 S ORANGE LLC (1229 LLC) as a defendant to the first cause of action (for Quiet Title), second cause of action (for Damages for Trespass and Injunctive Relief), third cause of action (for Nuisance), and fifth cause of action (for Prescriptive Easem*nt). (Wootton Decl. ¶ 2, Ex. A.) Plaintiffs have attached a copy of the proposed TAC. (Ibid.) Plaintiffs assert that Defendant Damyan recently transferred ownership of the property at issue in this action to 1229 S. Orange LLC, a Delaware limited liability company. (Wootton Decl., Ex. B.) Plaintiffs contend they recently discovered the transfer through their own investigation. Plaintiffs further argue that including 1229 LLC as a defendant is essential in order to ensure that any and all rulings, orders, determinations and judgments concerning the property are binding on the current owner of the property. However, Plaintiffs have not complied with all the requirements of Rules of Court, rule 3.1324. Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany a motion for leave to amend and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b).) A party seeking leave to amend must attach a copy of the proposed pleading to the motion for leave to amend. (Cal. Rules of Court, rule 3.1324, subd. (a).) While Plaintiffs counsel submitted a declaration in support, the declaration does not contain the information required by Rule 3.1324. For example, the declaration does not specify when the facts giving rise to the amended allegations were discovered, or why the request for amendment was not made earlier. Defendant did not file an opposition. A party who has not timely filed written opposition to a motion&may not be afforded an opportunity to offer oral argument at the hearing. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The failure to file opposition creates an inference that the motion or demurrer is meritorious.¿ (Id.)¿ In such cases, the court may hear argument limited to a request for a continuance of the hearing in order to afford an opportunity for written opposition. (Id.) [T]he rule is patently intended to prevent the introduction of legal theories without prior notice to opposing counsel and the court. (Id.) Since Plaintiffs have not complied with all requirements of Rule 3.1324, Plaintiffs Motion for Leave to File Third Amended Complaint is DENIED without prejudice. III. CONCLUSION Plaintiffs Motion for Leave to File Third Amended Complaint is DENIED without prejudice.

Ruling

EDITH LIBERATORE VS THE 4455 FULTON HOMEOWNERS' ASSOCIATION, INC., ET AL.

Aug 22, 2024 |22VECV00768

Case Number: 22VECV00768 Hearing Date: August 22, 2024 Dept: T 22VECV00768 Liberatore v The 4455 Fulton Tentative ruling: Ex parte to intervene is granted. The answer in intervention shall be served and filed within 20 days. The court will continue the trial and FSC for approximately 60-90 days but will not allow any extension of the discovery cutoff.

Ruling

Jason Neel vs United States Real Estate Corporation, et al

Aug 26, 2024 |22CV01758

22CV01758NEEL v. SUPERIOR LOAN SERVICING, et al CROSS-DEFENDANT DONALD SCHWARTZ’S SPECIAL MOTION TO STRIKE As discussed below, the motion is denied. I. BACKGROUND This is a convoluted fact pattern, which stems from plaintiff Neel’s efforts to forestall theforeclosure of his home and unwind allegedly fraudulent conveyances encumbering his home.Plaintiff’s allegations are as follows: Plaintiff owns property which was purchased “free and clear” in 2018, located at 144Palo Verde Terrace, Santa Cruz. Plaintiff has cognitive impairments. In January and March2018, plaintiff committed various criminal offenses. In March 2018, plaintiff hired DonaldSchwartz and Ed Russo to represent him. In addition to his criminal charges, plaintiff’s erraticbehavior also caused the HOA where his home is located to bring a civil suit against him.Schwartz was his attorney in that matter as well. (FAC ¶¶ 18-20.) According to the allegations in the FAC, from January 2018 to August 2020, plaintiff wasunable to manage his financial affairs, unable to contract with knowledge or understanding, andsusceptible to financial abuse. Between April 2019 and November 2019, plaintiff was declaredincompetent to stand trial for certain criminal offenses. During a portion of this period, plaintiffwas a patient at Napa State Mental Hospital. Plaintiff has been diagnosed with Psychotic orSchizoaffective Disorder, Bipolar II, Dissociative Disorder, and Social Anxiety. Attorney Schwartz raised the issue of plaintiff’s lack of capacity in the HOA civil actionand at one point, requested the court name a guardian ad litem. The guardian ad litemrecommended by Schwartz was Cody Molica. Plaintiff granted a power of attorney (“POA”) to Page 6 of 14Molica to pay his expenses while incarcerated. Molica, a law school graduate who had workedwith both Schwartz and Russo, agreed to serve as plaintiff’s attorney in fact. On 3/17/19,plaintiff executed a POA in favor of Molica. Plaintiff thought his powers were limited to payingbills. (FAC ¶ 21.) Prior to the execution of POA #1, Molica and co-conspirator Derek Wheat had alreadyarranged with defendant CNA Equities Group, LLC (“CNA”) to borrow money againstplaintiff’s residence, which was debt-free. This loan was taken out without either plaintiff’sconsent or knowledge. Molica engaged CNA to broker a loan of $367,500. The lender was Yeva,Inc. dba Saxe Mortgage Co. The escrow was handled by Fidelity Escrow Co. (FAC ¶ 23.) Molica allegedly orchestrated a fraudulent lease agreement between plaintiff and NathanPerry to characterize the loan as one for business purposes. The lease was dated retroactively forthe three-year period of 10/1/17-10/1/20 and called for $2,500/month rent. Neel does not knowPerry and Perry never lived at the residence and ultimately received $10,430 in checks from the2019 loan proceeds. The lease agreement predated Neel’s January 2018 purchase of the Property.(FAC ¶ 24.) Molica is alleged to have completed fraudulent and inaccurate Uniform ResidentialLoan Applications on behalf of Neel, which reported that Neel received $2,500/month in rentalincome from the property. (FAC ¶25.) The net proceeds of the loan were distributed to Schwartz’s Trust account on 3/27/19,where Molica directed Schwartz to distribute the funds. None of the funds were used forplaintiff’s benefit. One check of $60,000 was paid to Jeffrey Vieyre of Funding Solutions. (FAC¶ 26.) On 5/1/19, Schwartz drafted a new POA requiring both Schwartz’s and Molica’ssignatures and stated the POA was only for paying bills and HOA issues and not for aspects ofthe house. At the time the second POA was executed, plaintiff was unaware Molica already usedthe POA to affect his home via the new loan. (FAC ¶ 27.) Molica withdrew over $1,000,000 from plaintiff’s bank account, using the two POAs. Athird POA was executed on 5/28/20. On 9/9/20, Molica refinanced the property for $439,000which paid off the 2019 loan; two days later it was mortgaged for an additional $35,000. (FAC¶¶ 28-30.) Plaintiff contends the refinance was done for no valid financial reason and actuallycost Molica money to obtain. CNA’s files contain another Residential Loan Application signed by Molica withnumerous fraudulent statements. (FAC ¶ 32.) Defendants CNA and Rushmyfile (“RMF”) co-brokered the 2020 Loan. Defendants United States Real Estate Corporation (“USREC”), CNA,and RMF knew Molica had failed to make any of the payments on the 2019 loan, that the Page 7 of 14refinance was fraudulent, that none of the loans were for business purposes, and that the 2020loans were also fraudulently obtained. (FAC ¶34.) After Molica failed to make payments on the 2020 Loan, USREC instructed DefendantSuperior Loan Servicing to commence foreclosure proceedings. Neel has delivered notices ofrecission. USREC filed a Notice of Default and election to sell on 4/16/21. On 7/23/21, USRECfiled a Notice of Trustee’s Sale. II. PLEADINGS A. Complaint and amended complaint Plaintiff originally filed this action in Alameda County on 8/13/21 to halt USREC’spending non-judicial foreclosure. Scwhartz was plaintiff’s original attorney of record, butsubstituted out in favor of plaintiff’s current counsel on 11/19/22. The action was subsequentlytransferred to Santa Cruz Superior Court by stipulation, and thereafter, plaintiff filed hisoperative first amended complaint (“FAC”) on 10/11/22. The FAC added new causes of actionand new party defendants, among others, including the brokers involved in the USREC Loan,CNA Equities Group, LLC (“CNA”) and Rushmyfile, Inc. (“RMF”). The FAC alleges thatplaintiff is a dependent adult who lacks mental capacity, that plaintiff was fraudulently inducedto sign the subject powers of attorney, and that plaintiff had no knowledge of either of the loans.The FAC further alleges that the subject loans were part of an extended scheme to convert andsteal the equity in plaintiff’s property. (FAC ¶¶ 21-38.) The fraud scheme was allegedly directedby unnamed third parties and Molica, the attorney-in-fact appointed in the powers of attorney,who has been defaulted under USREC’s cross-complaint. (FAC ¶¶ 22-23, 28.) The FAC allegesthat the broker and lender defendants facilitated the fraud by accepting fraudulent loanapplications and documentation. (FAC ¶¶ 24-25, 29-35, 40-41.) B. Cross-complaint On 12/13/22, USREC cross-complained against Neel, CNA, RMF, and Molica fordeclaratory relief, reformation, quiet title, equitable subrogation, equitable lien, judicialforeclosure, implied contractual indemnity and equitable indemnity. USREC claims to be a bonafide encumbrancer who made the loan to plaintiff in good faith without knowledge of plaintiff’salleged lack of capacity or the scheme. The cross-complaint seeks to affirm the validity of theUSREC Deed of Trust or, alternatively, force judicial foreclosure of a lien by equitablesubrogation in the amount of at least $407,328, representing the amount of the USREC loanproceeds used to satisfy in full all prior liens against the property. USREC’s Cross-Complaintalso seeks indemnity against brokers CNA and RMF, Molica and Roes 25-50. (Cross-Complaint¶¶41-49.) Page 8 of 14 C. Doe amendment adding Schwartz as defendant On 11/20/23, plaintiff Neel named Schwartz as Doe 1 under his causes of action forabuse of a dependent adult, conversion, and aiding and abetting. Plaintiff alleges that Schwartz,who was plaintiff’s attorney from 2018 to 2022 and had raised plaintiff’s lack of mental capacityin various proceedings, caused Molica to be appointed plaintiff’s guardian ad litem, suggestedplaintiff give Molica the power of attorney for the 2019 loan, drafted at least one other power ofattorney plaintiff signed in favor of Molica and Schwartz, and facilitated distribution of loanproceeds for the benefit of third parties other than plaintiff. (FAC ¶¶ 19-23, 26-30.) Schwartzanswered on 11/27/23. D. Roe amendment adding Schwartz as cross-defendant On 1/26/24, USREC named Donald Schwartz as Roe 25 to the cross-complaint for theseventh cause of action for implied contractual indemnity and for the eighth cause of action forequitable indemnity. (Cross-Complaint, 12/13/22.) On 6/4/24, USREC voluntarily dismissed Schwartz from the implied contractualindemnity cause of action, leaving Schwartz as a Roe for equitable indemnity only. (Dismissal,6/4/24.) III. MOTION A. Moving papers Cross-defendant Schwartz moves to strike the cross-complaint for equitable indemnitypursuant to CCP § 425.16(b)(1), “A cause of action against a person arising from any act of thatperson in furtherance of the person’s right of petition or free speech under the United StatesConstitution or the California Constitution in connection with a public issue shall be subject to aspecial motion to strike, unless the court determines that the plaintiff has established that there isa probability that the plaintiff will prevail on the claim.” (Emphasis added.) Moving party fails to identify the type of free speech allegedly at issue here. Undersection 425.16(e), there are four types of petitioning or speech: (1) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, Page 9 of 14 (3) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) Any other conduct in furtherance of the exercise of constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (CCP §425.16(e).) The only protected activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)This would fall under categories (1) and (2), above. Schwartz contends that his filing of the underlying complaint on Neel’s behalf againstUSREC is petitioning or free speech activity and that USREC cannot succeed on its claim ofequitable indemnity against Schwartz since it is procedurally defective and cannot overcome thelitigation privilege or an attorney’s absolute immunity when acting as an agent. Schwartz relieson Navellier v. Sletten (2002) 29 Cal.4th 82, 89, to support his claim. Under Navellier, “thecritical consideration is whether the cause of action is based on the defendant’s protected freespeech or petitioning activity.” (Navellier v. Slettin, supra, 29 Cal.4th at 89.) Schwartz alsoargues the equitable indemnity cause of action “insinuates a conspiracy” between Neel andSchwartz and so must comply with CCP § 1714.10 which requires a showing of reasonableprobability of prevailing in the action with supporting affidavits. He contends no suchcompliance with section 1714.10 can be found in the cross-complaint and it is therefore “doomedto failure.” Schwartz contends that the cross-complaint is an end run around the attorney clientrelationship (between him and Neel) and USREC seeks to force him to testify against his client. B. Opposition USREC argues that Schwartz cannot meet the first prong of the anti-SLAPP analysissince the indemnity cross-complaint is not based on Schwartz’s right of petitioning or freespeech. It contends that Schwartz has been sued by plaintiff for the fraudulent scheme and byUSREC only for contribution as an alleged joint tortfeasor. It argues that an anti-SLAPP motionis justified only when the conduct upon which the claim is based is an act in furtherance of theright to petition. Merely because some protected activity may have occurred preceding thecomplaint is not enough; the conduct constituting the protected activity is itself the wrongcomplained of. (Park v. Board of Trustees of Calif. State Univ. (2017) 2 Cal.5th 1057, 1060.) Essentially, USREC argues that no petitioning activity is involved at all in its claim forindemnity in the event it is liable. The Cross-Complaint alleges: “In the event it is determined that the USREC Deed of Trust is invalid, in whole or inpart, such resulting loss to Cross-Complainant will arise solely by reasons of the cross-defendants’ intentional or negligent conduct,” and “if Cross-Complainant suffers loss or damages Page 10 of 14as a result of Plaintiff’s claims, such damages were caused entirely or partly by the breach ofcontract, violation of statutory duty, negligence, fraud, or other tortious conduct of the cross-defendants.” (Cross-Complaint ¶¶ 42, 46.) USREC argues these allegations fail to mention nor rely upon protected petitioning orfree speech activity by Schwartz and instead, they allege a straightforward claim for equitableindemnity against Schwartz and USREC’s other alleged joint tortfeasors based on plaintiff’sallegations of a fraudulent power of attorney and mortgage loan scheme. USREC points out this is Schwartz’s second anti-SLAPP motion in an apparent effort tostall discovery and prevent his deposition from proceeding. The first motion was brought justprior to Schwartz’s noticed deposition, then Schwartz filed for bankruptcy and withdrew the firstmotion. Once the bankruptcy was dismissed, meaning this case’s discovery could proceed,Schwartz filed this second anti-SLAPP motion, effectively staying this case’s discovery again. C. Reply Cross-defendant’s reply argues the cross-complaint against him was filed to gainadvantage and should be viewed with distrust. He contends he never owed any duty to USRECand actually secured restraining orders against it to stop the foreclosure of Mr. Neel’s home. Inshort, the reply does not persuade this Court that petitioning activity arises from USREC’s cross-complaint against Schwartz. III. LEGAL STANDARDS A. Anti-SLAPP The Legislature enacted Code of Civil Procedure section 425.16, known as the anti-SLAPP statute, to provide a procedural remedy to dispose of lawsuits and causes of action thatare brought to chill the valid exercise of the constitutional rights to free speech and to petition thegovernment for redress of grievances. (See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The court must engage in a two-prong analysis on an anti-SLAPP motion, with shiftingburdens of proof as to each prong. In prong one, the court determines whether the conductunderlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speechor petition. (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) This is a threshold issue; if moving partyfails to show the conduct is constitutionally protected, the court need not address prongtwo. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Under the second prong,the burden shifts to plaintiff to prove a legally sufficient claim and to prove with admissibleevidence a reasonable probability of prevailing. (Navellier v. Sletten (2002) 29 Cal.4th 82,88.) Plaintiff cannot rely on the allegations of the complaint but must produce evidence Page 11 of 14admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)To defeat the motion, plaintiff need only demonstrate a prima facie case as to either part of theclaim. (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570; Weil & Brown, CaliforniaProcedure Before Trial (The Rutter Group) §§ 7:1005, 7:1020.) If the anti-SLAPP is granted, the court may not grant leave to amend to allege or omitfacts demonstrating the complaint is not subject to the anti-SLAPP statute. (Simmons v.Allstate (2001) 92 Cal.App.4th 1068, 1073 [“Allowing a SLAPP plaintiff leave to amend thecomplaint once the court finds the prima facie showing has been met would completelyundermine the statute by providing the pleader a ready escape from [Code of Civil Procedure]section 425.16's quick dismissal remedy. Instead of having to show a probability of success onthe merits, the SLAPP plaintiff would be able to go back to the drawing board with a secondopportunity to disguise the vexatious nature of the suit through more artful pleading. This wouldtrigger a second round of pleadings, a fresh motion to strike, and inevitably another request forleave to amend.”]; Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992,1005.) A defendant party who prevails on an anti-SLAPP motion is entitled to recover his or herattorney’s fees and costs incurred on the motion, but not for the entire litigation. §425.16(c). Adefendant who prevails on only part of the motion may be entitled to an award of fees and costs(but only those associated with the successful part of the motion), unless the results of the motionwere so insignificant that the defendant did not achieve any practical benefit from the motion.The court has broad discretion in making this determination. (Weil & Brown, §7:1135.) B. Equitable indemnity A claim for equitable indemnity requires proof that the same harm for which plaintiffmay be held liable is properly attributable in whole or in part to the defendant. (Platt v. ColdwellBanker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn. 7.) IV. DISCUSSION A. Defendant Schwartz has not met his initial threshold burden – cross-complaint’s cause of action for equitable indemnity does not arise from protected activity Schwartz moves to strike the cross-complaint against him for equitable indemnity. Thatclaim seeks to shift liability from USREC to others (including Schwartz) if plaintiff succeedssince USREC alleges those other parties are really at fault, not it. The proper focus here is todetermine the cause of Schwartz’s potential damages in the cross-complaint, and if that causesprings from Schwartz’s protected activity. Page 12 of 14 Schwartz will only be liable to USREC if plaintiff succeeds in proving USREC is not abona fide encumbrancer and invalidates the deed of trust. To do that, plaintiff will havesucceeded in proving the fraudulent scheme – in which plaintiff alleges Schwartz was a part. Thegravamen of the indemnity claim then is the underlying allegations in plaintiff’s FAC – thescheme – and not in any protected speech by Schwartz. “In determining ‘whether the challenged claims arise from acts in furtherance of thedefendants’ right of free speech or right of petition under one of the categories set forthin section 425.16, subdivision (e). [Citation.] … ‘[w]e examine the principal thrustor gravamen of a plaintiff’s cause of action to determine whether the anti-SLAPP statuteapplies.’’[Citation.] The ‘gravamen is defined by the acts on which liability is based, not somephilosophical thrust or legal essence of the cause of action.’ [Citation.] In other words, ‘for anti-SLAPP purposes [the] gravamen [of plaintiff’s cause of action] is defined by the acts on whichliability is based.’ [Citation.]” (Optional Capital, Inc. v. Akin Gump Strauss, Hauer 8 Feld LLP(2017) 18 Cal.App.5th 95, 111.) As mentioned, Schwartz fails to identify the category of free speech at issue. “Thedefendant's burden is to identify what acts each challenged claim rests on and to show how thoseacts are protected under a statutorily defined category of protected activity. [Citation.]” (Bonni v.St. Joseph Health System (2021) 11 Cal.5th 995, 1009; Baral v. Schnitt (2016) 1 Cal.5th 376,396.) The court finds this failure significant since it prevents a full analysis of the allegedprotected activity for the first anti-SLAPP step. Again, the only activity identified by Schwartz is “the filing of this instant action ascounsel for Mr. Neel and handling a completely unrelated trust account transaction.” (MPA p. 8.)But analyzing the acts on which Schwartz’s potential liability is based, there is no protectedactivity at issue here. Schwartz is only liable under the cross-complaint if the USREC deed oftrust is invalidated. The deed is only invalidated if plaintiff proves the fraudulent scheme, inwhich Schwartz allegedly participated. Schwartz’s conduct creating liability under the cross-complaint is not in any way protected activity – it does not arise from his representation of Mr.Neel. Instead, it arises from his tortious conduct against Mr. Neel, likely in contravention to hisethical duty to Mr. Neel. Since Schwartz fails to establish the alleged conduct is protected activity, the court neednot move to the second prong of the anti-SLAPP analysis. B. Civil Code §1714.10 and agent’s immunity do not afford Schwartz any protection here Schwartz’s argument that cross-complainants failed to comply with the pre-filingrequirements of Civil Code § 1714.10 is meritless. “No cause of action against an attorney for a Page 13 of 14civil conspiracy with his or her client arising from any attempt to contest or compromise a claimor dispute, and which is based upon the attorney’s representation of the client, shall be includedin a complaint or other pleading unless the court enters an order allowing the pleading thatincludes the claim for civil conspiracy to be filed after the court determines that the party seekingto file the pleading has established that there is a reasonable probability that the party will prevailin the action….” (Civil Code §1714.10(a).) There are no conspiracy allegations in the cross-complaint; Schwartz concedes this whenhe admits “[t]he Cross-Complaint insinuates a conspiracy between Mr. Neel’s former attorney(Schwartz) and others….” (MPA p. 9, emphasis added.) Further, the FAC does not allegeconspiracy between Schwartz and his client – it alleges a conspiracy by Schwartz against hisclient. That is not covered by section 1714.10, and if somehow a conspiracy under the codesection had been alleged, it was Schwartz’s duty to bring a motion to strike when he was namedas a Doe, not when he was named as a Roe to a different pleading. Schwartz’s contention that attorney-agency immunity insulates him from liability underthe cross-complaint is also misplaced. As stated, Schwartz is only liable for equitable indemnityif he’s established as a bad actor under the FAC, and in that case, he will be found to have actedagainst his client’s interests, not for them. C. Sanctions against Schwartz Prevailing cross-complainant USREC shall be entitled to reasonable fees and costsincurred on the special motion to strike (not the entire litigation). (CCP §425.16(c); LafayetteMorehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) USREC seeks $9,490.00 ($7,300.00 for the prior withdrawn anti-SLAPP motion and$2,190.00 for the updated opposition to this motion). USREC’s counsel Edward Egan Smith’shourly rate is $365.00 and he declares he spent no less than 20 hours preparing USREC’sopposition to the initial motion and at least six hours updating and preparing this opposition. Thecourt finds that 13 hours of work is a reasonable duration of time preparing an opposition to thislatest motion and awards $4,745.00 in fees to USREC, payable by cross-defendant Schwartz nolater than 9/20/24.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 14 of 14

Ruling

ROYAL LEE LLC VS 1055 SHADOW HILL LLC, ET AL.

Aug 28, 2024 |22SMCV00854

Case Number: 22SMCV00854 Hearing Date: August 28, 2024 Dept: M CASE NAME: Royal Lee LLC v. 1055 Shadow Hill LLC et al. CASE NO.: 22SMCV00854 MOTION: Plaintiff Royal Lee LLC and Cross-Defendant Kimora Simmons Motion for Judgment on the Pleadings as to Defendant 1055 Shaw Hill LLC on First Amended Cross-Complaint Motion for an Order Requiring Mikhov to File an Undertaking of Costs and Attorneys Fees HEARING DATE: 08/28/2024 Background On June 8, 2022, Plaintiff Royal Lee LLC (Plaintiff) filed this action against Defendants 1055 Shadow Hill LLC (Shadow Hill) and Steve B. Mikhov (Mikhov) (collectively, Defendants) for breach of contract. Plaintiff alleges that Defendants failed to pay per a residential lease agreement for real property located at 1055 Shadow Hill Way, Beverly Hills, CA 90120 (the Property), and a corresponding personal guarantee. On June 14, 2023, Defendants filed a cross-complaint against Plaintiff and Cross-Defendant Kimora Simmons (Simmons). On June 26, 2023, after the Court sustained a demurrer to the cross-complaint, Defendants filed the operative First Amended Cross-Complaint (FACC), alleging causes of action for breach of written contract, failure to comply with Code of Civil Procedure section 1950.5, violation of the Business and Professions Code section 17200, and conversion. Defendants allege that they needed to vacate the Property, but Plaintiff improperly withheld a $110,000.00 security deposit and otherwise failed to mitigate its damages. On June 28, 2024, Plaintiff and Simmons (collectively, the Moving Parties) moved for judgment on the pleadings. Legal Standard Motion for Judgment on the Pleadings 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), (c)(1)(B)(ii).) A motion for judgment on the pleadings tests the legal sufficiency of the complaint and is analyzed in all material respects as though it were a demurrer. (Wise v. Pacific Gas & Electric Co. (2005) 132 Cal.App.4th 725, 738; Kapsimallis v. Allstate Insurance Co. (2002) 104 Cal.App.4th 667, 672.) A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [citations omitted].) Motion for an Undertaking Under Code of Civil Procedure section 1030, [w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorneys fees which may be awarded in the action or special proceeding. For the purposes of this section, attorneys fees means reasonable attorneys fees a party may be authorized to recover by a statute apart from this section or by contract. (Code Civ. Proc., § 1030(a) [emphasis added].) In order to prevail on a motion for undertaking under this code section, the moving party must file an affidavit and show plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding[.] (Code Civ. Proc., § 1030(b).) To fulfill these requirements, a defendant does not need to show its success is certain or even likely, but is only required to present evidence showing that success is reasonably possible. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1430.) The affidavit shall set forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding. (Code Civ. Proc., § 1030(b).) If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court's order as security for costs and attorney's fees. (Code Civ. Proc., § 1030(c).) REQUEST FOR JUDICIAL NOTICE The Court GRANTS Moving Parties request for judicial notice. (Evid. Code, § 452(c); Friends of Shingle Springs Interchange, Inc. v. Cnty. of El Dorado, 200 Cal.App.4th 1470, 1484 [court may take judicial notice of a certificate of corporate status].) However, the Court takes judicial notice only as to the existence, content, and authenticity of such documents; it does not take judicial notice of the truth of the factual matters asserted therein. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.) JUDGMENT ON THE PLEADINGS Moving Parties move for judgment on the pleadings on the grounds that Defendant Shadow Hill is not registered to transact intrastate business in California and therefore cannot maintain its cross-complaint under Corporations Code section 17708.07. Meet and Confer The Court finds Moving Parties efforts to meet and confer satisfy the requirements of Code of Civil Procedure section 439. (Boustani Decl., ¶ 3.) Foreign Business Entities A foreign limited liability company transacting intrastate business in this state shall not maintain an action or proceeding in this state unless it has a certificate of registration to transact intrastate business in this state. (Corp. Code, § 17708.07(a).) [A] plea in abatement such as lack of capacity to sue must be raised by defendant at the earliest opportunity or it is waived.... The proper time to raise a plea in abatement is in the original answer or by demurrer at the time of the answer. [Citation.] It is a technical objection and must be pleaded specifically. Thus an affirmative defense or demurrer which contains a general assertion that plaintiff has not stated a cause of action does not suffice to raise a plea in abatement. [Citations]. [Citation.] (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604 (Color-Vue).) Moving Parties move for judgment on the pleadings as to the entire FACC on the grounds that they recently discovered while preparing their motion for Mikhov to post an undertaking that Defendant Shadow Hill is not, and never has been, registered to transact intrastate business in California, despite the fact that Plaintiff has leased the Property, which is located in Los Angeles, for years. Moving Parties contend that Shadow Hill cannot maintain the FACC per Corporations Code section 17708.07. In opposition, Defendants do not dispute that Shadow Hill is not registered to transact intrastate business, but instead contend that Plaintiff waived the argument through delay. Defendants contend Plaintiff was on notice of this issue by virtue of the allegations in the FACC that Shadow Hill is a Delaware limited liability company, which could have easily been raised in a demurrer or answer, which Plaintiff did not do. In reply, Moving Parties contend that the motion is timely because they recently discovered Shadow Hill lacks capacity or inability to maintain the FACC, and they therefore brought this motion at the earliest opportunity. Moving Parties contend they asserted an affirmative defense of unclean hands, which includes this challenge regarding Shadow Hills lack of capacity. Moving Parties further contend that even if there was a waiver, the Court should grant relief from that waiver because in the two months since this motion was filed, Shadow Hill has failed to register with the California Secretary of State and pay its delinquent taxes, or even indicate that it intends to do so. Moving Parties also note that Shadow Hill is managed by many experience attorneys, which underscores the grievous nature of this issue. Here, the Court agrees with the Moving Parties. Moving Parties presented evidence that they only recently discovered Shadow Hill was not registered with the California Secretary of State to transact intrastate business. (Boustani Decl., ¶ 2; Request for Judicial Notice, Ex. 1.) Defendants did not dispute this argument, which the Court construes as a tacit admission that Moving Parties argument is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; 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.]]) The Court also finds the motion to be timely. The Court of Appeal in Color-Vue made clear that the time to seek a plea in abatement is at the earliest opportunity& (Color-Vue, supra, 44 Cal.App.4th at p. 1604.) While the Court of Appeal stated that the proper time to raise a plea in abatement is in a demurrer or in an answer, it did not say that was the only time a plea in abatement could be raised. (Id.) Moving Parties correctly note that the Court of Appeal in Color-Vue ruled against the respondents because they waited to raise the capacity issue at trial even though they had learned about it only a couple months before trial. (Id. at p. 1605.) Moving Parties make clear that they filed this motion within weeks of discovering that Shadow Hill is not and never has been registered with the California Secretary of State. (Boustani Decl., ¶ 2; Request for Judicial Notice, Ex. 1.) The Court finds this to be the earliest opportunity the motion could have been brought. (Color-Vue, supra, 44 Cal.App.4th at p. 1604.) To rule otherwise would effectively punish Moving Parties for having been reasonably ignorant of Shadow Hills legal status at the time they filed their responsive pleading, and would otherwise enable bad behavior. Additionally, the Court does not find the mere fact that Shadow Hill alleges it is a Delaware limited liability company constitutes adequate notice that Shadow Hill was not registered with the California Secretary of State. (See FACC ¶ 2.) Defendants cite no authority to support this argument, and the Court is unaware of any. Furthermore, even if Moving Parties had waived their right to raise this plea in abatement, they would arguably be entitled to relief from waiver, as Defendants have not provided any evidence of intent to register with the California Secretary of State. (See generally, Opp.; Color-Vue, supra, 44 Cal.App.4th at p. 1605 [statement of clear intention to pay delinquent taxes and file certificate of revivor with California Secretary of State found to be evidence against finding of waiver].) The Court notes, however, an issue that was not raised by the parties in their respective briefs, namely that Defendant Mikhov is an individual who is not subject to Corporations Code section 17708.07. (See Corp. Code, § 17708.07(a).) Both Shadow Hill and Mikhov assert the fourth cause of action for conversion in the FACC. (FACC ¶¶ 51-57.) Even if Shadow Hill is unable to maintain this action for the reasons set forth above, that has no bearing on Mikhovs ability to pursue that cause of action against Moving Parties. Based on the foregoing, the Court GRANTS the motion for judgment on the pleadings, but only as to Defendant Shadow Hill. UNDERTAKING Whether Mikhov is an out-of-state residents Cross-Defendant Simmons has established, and Cross-Complaint Mikhov does not dispute, that he is an out-of-state resident. (See FACC ¶ 3.) Whether Section 1030 Applies In Yao v. Superior Court (2022) 104 Cal. App. 4th 327, the Court of Appeal concluded that Section 1030 did not apply to cross-complainants. The court held that [t]he purpose of section 1030 is to protect California residents who are sued by out-of-state plaintiffs when there is no reasonable possibility the out-of-state plaintiff will prevail and [t]his purpose is attenuated when, as here, a California resident has initiated a lawsuit against an out-of-state defendant and that defendant has responded, in part, by filing a cross-complaint. (Id. at 333-34.) the court continued, noting that, [i]n that circ*mstance, requiring the posting of security by an out-of-state defendant does not further the statutes salutary goal. (Id.) This case, however, is factually distinguishable from Yao. Here, cross-complainant Mikhov filed a cross-complaint not only against Royal Lee, who is the plaintiff that initiated the lawsuit, but also sued Simmons, who is a California resident and not already a party to the action. The court would concur that Yao prohibits the application of section 1030 to Royal Lee, but disagrees with respect to Simmons. As the Yao court noted, the purpose of the statute is to prevent out-of-state residents from filing frivolous lawsuits against California residents. (Yao, 104 Cal. App. 4th at 331.) By adding Simmons to the cross-complaint, Mikhov, who is an out-of-state resident, has initiated a lawsuit against a California resident. Thus, section 1030s stated goal of protecting California residents who are sued by out-of-state plaintiffs when there is no reasonable possibility the out-of-state plaintiff will prevail would be served. Whether Simmons has shown a reasonable possibility of success The sole claim asserted by Mikhov against Simmons is for conversion. Mikhov alleges that Simmons converted (1) the security deposit for the subject lease by failing to return it to Shadow Hill, and (2) the personal property repairs and improvements made and compensated for by Tenants, including purported repairs and improvements to the pool and wi-fi. (FACC ¶¶ 19, 52-53.) Mikhov argues that Simmons cannot meet her burden on this issue because the only submitted evidence is self-serving and subjective. Mikhov does not submit any evidence in support of this position and in opposition to the motion. As to the security deposit, Mikhov lacks standing to assert causes of action under the Lease, such as conversion of the security deposit, because he is not a direct party to the lease and cannot enforce its terms. The security deposit was paid by Shadow Hill to Royal Lee, not by Mikhov. As to the improvements, cross-defendant Simmons has shown a reasonable possibility of success. The lease provides that [a]ll alterations/improvements made by or caused to be made by Tenant, with or without Landlords consent, become the property of Landlord upon termination. (Boustani Dec. ¶ 2, Ex. 1 [Complaint, Ex. 1 at ¶ 25(B)].) Furthermore, paragraph 17 of the lease also provides in relevant part that, without Landlords prior written consent & Tenant shall not make any repairs, alternations or improvements in or about the Premises & and Landlord shall not be responsible for the costs or alterations or repairs made by Tenant. Id. [Complaint, Ex. 1 at ¶ 17]. The Addendum to the Lease also provides in relevant part that (1) [i]n making repairs and replacements to the pool, pool equipment and/or related equipment & Tenant shall assign any warranty or other rights relative to the repairs and replacement to Landlord at the end of the Lease term, and (2) [t]o the extent that Tenant has made repairs, alterations or modifications to the Premises & without Landlords prior written consent, Tenant shall be responsible for restoring such items to their original, operable state& Id. [Complaint, Ex. 1 at Addendum ¶¶ 2 & 10].3 Accordingly, cross-defendant Simmons has a reasonable possibility of success based upon the plain language of the lease, and his lack of standing with respect to the security deposit. Finally, Simmons has established that she has incurred at least $193,313.40 in attorneys fees and costs in this action related to her defense of Mikhovs claims since their inception. (Boustani Decl. ¶ 6.) Simmons estimates that she will incur at least $200,000 to defend against Mikhovs claims through trial. (Id. at ¶ 7.) With discovery largely completed, and trial rapidly approaching, the Court believes that the $200,000 estimate is reasonable. Therefore, the Court orders an undertaking in the amount of $393,313.40. In light of the September 16, 2024, jury trial date, the Court will order the undertaking posted by September 9, 2024, or the cross-complaint of Mikhov shall be dismissed.

Ruling

OF THE MICHAEL AND KIMBERLY GUTHRIE LIVING TRUST MICHAEL GUTHRIE, AS CO-TRUSTEE, ET AL. VS ROBERT SHIRI, ET AL.

Aug 23, 2024 |6/18/2022 |22SMCV00510

Case Number: 22SMCV00510 Hearing Date: August 23, 2024 Dept: I This is yet another discovery dispute in this case. 629 Palisades seeks to compel further responses to form interrogatories and sanctions. Plaintiff opposes (sort of). At issue is form interrogatory 2.5, which is one of the form interrogatories that seeks identifying information. Specifically, it seeks plaintiffs address. The response was an objection on the basis of relevancy. After some meet and confer effort, 629 Palisades brought this motion to compel. Plaintiff, in response, has answered the interrogatory, but claims that sanctions should be imposed against 629 Palisades because the motion was out of time. On the timing front, it is a bit odd. Amended responses were served on April 30, 2024. 629 Palisades sent a meet and confer letter on May 15, 2024. On June 14, 2024the last day to file a motion to compel further responsesplaintiffs counsel served amended responses as to some, but not all, of the disputed discovery. Plaintiff contends that the 45 day clock started ticking on April 30, 2024, and never stopped because plaintiff never amended the response to this specific form interrogatory. 629 Palisades contends that the June 14, 2024, responses should start the clock running, and that this motion is timely on that basis. The court, frankly, is not sure whether plaintiff is correct on this one. But it is a sharp practice to indicate and then serve amended responses as to some discovery on the last possible day and then claim that the clock has run. It is one thing if there had been some warning to that effect, such as an earlier letter stating that plaintiff intended to stand on the response to 2.5, and warning 629 Palisades of that. But instead, at least so far as the court can see, it appears that plaintiff set a trap, noting that amended responses would be forthcoming, but not doing so as to 2.5. It turns out that the further response issue is MOOT because (after the motion was filed) plaintiff did respond. But that leaves the question of sanctions. The court agrees that it is at least arguable that the motion was out of time. While the court views plaintiffs conduct in taking that position to have been a sharp practice, the court cannot say plaintiff was wrong legally. Counsel for 629 Palisades may have been misledand potentially deliberately sobut that does not change the law. However, given that the matter is not fully free from doubt, the court will not say that there was no substantial justification in bringing, or opposing, the motion. Under the circ*mstances, both requests for sanctions are DENIED. The court also believes that Mr. Shiris time may not be subject to sanctions. While the court is aware that Trope was decided in the 1717 context, the court believes that the logic of that case would extend to the discovery context and the court believes that there is case law so stating. Further, while Mr. Shiri is no longer a named defendant, he is the owner and manager of 629 Palisades such that the same logic would apply at least potentially in terms of recovery of fees where the lawyer is a party. Having said that, the court reiterates that issue is moot given that no sanctions are being awarded in any event. Finally, the court suggestsstronglythat the parties not engage in gamesmanship in the discovery process. In this instance, it was plaintiffs counsel, Mr. Kassis, who engaged in the sharp practice. Even had sanctions been awarded against Mr. Shiri, the court suggests that plaintiffs counsel would have lost (and did lose) more than it gained by engaging in that kind of litigation tactic.

Ruling

Sol Selection, LLC vs. All persons unknown

Aug 26, 2024 |23CV-0203591

SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203591This matter is on calendar for review regarding status of default judgment. On June 5, 2024, thisCourt issued its Ruling after a June 3, 2024 Default Prove Up hearing. The Court denied therequest to enter default judgment without prejudice. Nothing further has been filed. Anappearance is necessary on today’s calendar to provide the Court with a status of defaultjudgment.

Ruling

MOHAMMED AMINUR RASHID VS BABUL MIAH, ET AL.

Aug 27, 2024 |23TRCV01598

Case Number: 23TRCV01598 Hearing Date: August 27, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B MOHAMMED AMINUR RASHID, Plaintiff, Case No.: 23TRCV01598 vs. [Tentative] RULING BABUL MIAH, et al., Defendants. Hearing Date: August 27, 2024 Moving Parties: Plaintiff Mohammed Aminur Rashid Responding Party: Defendants Babul Miah, Abul Miah, South Five, LLC, and Jupiter West, LLC Motion for Appointment of Receiver and Request for Attorney Fees and Costs The Court considered the moving, opposition, and reply papers. RULING The motion is DENIED. BACKGROUND On May 19, 2023, plaintiff Mohammed Aminur Rashid, as an individual and director of South Five, LLC and Jupiter West, LLC filed a complaint against Babul Miah and Abdul Mian, individually and as directors of South Five LLC and Jupiter West, LLC for (1) involuntary dissolution of LLC, (2) partition, (3) breach of fiduciary duty, (4) accounting, and (5) declaratory and injunctive relief. On January 9, 2023, plaintiff filed a FAC for (1) involuntary dissolution of LLC, (2) breach of fiduciary duty, (3) accounting, and (4) declaratory and injunctive relief and added South Five, LLC and Jupiter West, LLC as defendants. On March 13, 2024, the Court overruled defendants demurrer as to the first and second causes of action and granted the motion to strike with leave to amend. On April 2, 2024, plaintiff filed a SAC. On July 9, 2024, the Court denied plaintiffs motion to disqualify defendants counsel from representing Jupiter West, LLC and South Five, LLC. LEGAL AUTHORITY Under CCP §564, (a) A receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver. (b) A receiver may be appointed by the court in which an action or proceeding is pending, or by a judge of that court, in the following cases: (1) In an action . . . between partners or other jointly owning or interested in any property . . . on the application of the plaintiff, or of any party whose right to or interest in the property . . . , or the proceeds of the property . . . , is probable, and where it is shown that the property . . . is in danger of being lost, removed, or materially injured. . . . (9) In all other cases where necessary to preserve the property or rights of any party. Under Corporations Code §1803, If, at the time of the filing of a complaint for involuntary dissolution or at any time thereafter, the court has reasonable grounds to believe that unless a receiver of the corporation is appointed the interests of the corporation and its shareholders will suffer pending the hearing and determination of the complaint, upon the application of the plaintiff, and after a hearing upon such notice to the corporation as the court may direct and upon the giving of security pursuant to Sections 566 and 567 of the Code of Civil Procedure, the court may appoint a receiver to take over and manage the business and affairs of the corporation and to preserve its property pending the hearing and determination of the complaint for dissolution. DISCUSSION Pursuant to Corp. Code §1803 and CCP §564, plaintiff Mohammed Aminur Rashid request that the Court appoint a receiver of South Five, LLC and Jupiter West, LLC and order attorney fees and costs in the amount of $4,958.50 against defendants and/or their counsel incurred in bringing this motion. The SAC alleges that plaintiff and defendants Babul Miah and Abul Miah are siblings. SAC, ¶9. On September 10, 2007, defendants and plaintiff formed Jupiter West, Inc. On September 12, 2007, they formed South Five, Inc., both of which were converted into limited liability companies in October 2007. Id., ¶10. Defendants and plaintiff are all one third owners of the companies. Id., ¶11. Jupiter West is the sole owner of residential apartment buildings located at 4073 and 4075 West Rosecrans Ave., Lawndale. South Five is the sole owner of a residential apartment building located at 12919 Roselle Avenue, Hawthorne. Id., ¶12. Plaintiff and defendants jointly own the properties. Id., ¶13. Plaintiff wants to obtain full ownership for one of the properties. Defendants have refused to cooperate. Also, defendants have failed to provide bank records to allow plaintiff to perform an adequate accounting to determine the amounts owing to plaintiff. Id., ¶14. The parties have communicated multiple times to try to come to an agreement regarding a buyout or a sale of the properties but have been unable to come to an agreement. Id., ¶17. Due to these disagreements, the parties have a dispute and plaintiff seeks dissolution of the companies. Id., ¶18. Plaintiff contends that defendants have repeatedly shown their incompetence for legally operating the corporations. They have failed to create any operating agreements for the corporations to efficiently operate under, which means that the Corporations are governed by the Uniform Liability Company Act, and Defendants have made multiple violations under said act. Plaintiff asserts that defendants have failed to provide the six most recent fiscal years of tax returns and financial statements pursuant to Corp. Code §§17701.13(d)(4) and (6). Plaintiff also asserts that defendants have failed to call a vote for acts outside the corporations ordinary course of activities in violation of Corp. Code §17704.07(c)(4)(B), which requires the consent of all members, including as the to retaining Grant/Shenon as counsel for the subject litigation. Plaintiff argues that defendants breached fiduciary duties to plaintiff under Corp. Code §17704.9(b) and (c) by withholding amounts of money from plaintiff, which are estimated to exceed $45,000, and failing to account to plaintiff by providing adequate financial records to determine the amounts of money owing to plaintiff. Plaintiff also asserts that defendant Abul Miah breached his fiduciary duties on July 7, 2023, when he went to plaintiffs residence and tried to convince plaintiff to settle with defendants by making false representations. In opposition, defendants argue that, at most, the motion restates plaintiffs allegations in the SAC and the previously filed motion to disqualify. Defendants contend that plaintiffs allegations fail to identify any ongoing harm that could conceivably be corrected by appointment of a receiver. Defendants argue that although plaintiff has already subpoenaed the LLCs banking and tax records, plaintiff still cannot submit any documentation to support his claim that the LLCs are being mismanaged, that funds are being withheld from plaintiff, or any other reason. Defendants also argue that plaintiff fails to allege requisite harm and inadequacy of other remedies. Defendants also assert that the LLCs are not in a financial position to bear such expenses for a receiver although they maintain modest profit margins. In reply, plaintiff argues that he has alleged sufficient harms for appointing a receiver, reiterating that (1) defendants failed to provide complete accounting records and plaintiff did not get substantial documents until serving a subpoena to the LLCs accountant and defendants failed to adequately comply with plaintiffs multiple prior requests for the records; (2) defendants failed to provide sufficient reasons for not holding a vote for the decision to retain Grant/Shenon as counsel for the LLCs; (3) plaintiff has yet to discover the exact amounts of money withheld from plaintiff and that there are discrepancies; and (4) defendants have not produced any evidence to show that the LLCs do not have an independent position with respect to plaintiffs causes of action. Lastly, plaintiff refutes that the LLCs do not have adequate resources to fund a receiver. The Court rules as follows: The power to appoint a receiver for a going corporation should be exercised sparingly. It is a drastic remedy and one which should not be invoked unless there is a threatened injury to a corporation of a serious nature. Starbird v. Lane (1962) 203 Cal. App. 2d 247, 261. The appointment of a receiver is a drastic remedy and is one which should not be invoked unless there is an actual or threatened cessation or diminution of the business. In re Jamison Steel Corp. (1958) 158 Cal. App. 2d 27, 35. Because the appointment of a receiver transfers propertyor, in this case, a business'out of the hands of its owners and into the hands of a receiver, the appointment of a receiver is a very drastic, harsh, and costly remedy that is to be exercised sparingly and with caution. Medipro Medical Staffing LLC v. Certified Nursing Registry, Inc. (2021) 60 Cal. App. 5th 622, 628 (citations omitted). [A] trial court must consider the availability and efficacy of other remedies in determining whether to employ the extraordinary remedy of a receivership. City and County of San Francisco v. Daley (1993) 16 Cal. App. 4th 734, 745 (citation omitted). [C]ourts are strongly discouragedalthough not strictly prohibitedfrom appointing a receiver unless the more intrusive insight of a receiver is a necessity because other, less intrusive remedies are either inadequate or unavailable. Medipro Medical Staffing LLC, supra, at 628 (citations omitted). In order for plaintiff to invoke the power of the court under [CCP §564(b)(1)] it was necessary for it to show its joint interest with defendant in the property; that the same was in danger of being lost, removed or materially injured, and that plaintiffs right to possession was probable. Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1953) 116 Cal. App. 2d 869, 873. Plaintiff alleges that the LLCs are each an owner of residential apartment buildings. As stated above, appointing a receiver of a going company, such as the LLCs, is a drastic and extraordinary remedy and should be used sparingly. The Court finds that plaintiff has not met his burden under CCP §564(b)(1) or (b)(9) of showing that a receiver is necessary because either the LLCs property is in danger of being lost, removed, or materially injured or to preserve the property or rights of plaintiff. Further, the Court does not have reasonable grounds under Corp. Code §1803 to believe that unless a receiver of the LLCs is appointed the interests of the LLCs will suffer pending the hearing and determination of the complaint. The motion is DENIED. ORDER The motion is DENIED. Defendants are ordered to give notice of the ruling.

Ruling

BARRY MAITEN VS ANAT EBGI, ET AL.

Aug 28, 2024 |23STCV11238

Case Number: 23STCV11238 Hearing Date: August 28, 2024 Dept: 82 Barry Maiten Case No. 23STCV11238 v. Hearing: August 28, 2024 Location: Stanley Mosk Courthouse Department: 82 Anat Ebgi, et al. Judge: Stephen I. Goorvitch [Tentative] Order Granting Plaintiffs Application for Writ of Attachment INTRODUCTION Plaintiff Barry Maiten (Plaintiff) moves for writs of attachment against Defendants Anat Ebgi and Joshua Michael Rosenblatt (Defendants) in the amount of $63,074.42.[1] Defendants oppose the applications, which are granted. LEGAL STANDARD Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought. (Code Civ. Proc. § 484.010.) The Attachment Law statutes are subject to strict construction. (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) Except as otherwise provided by statute, an attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees. (Code Civ. Proc. § 483.010.) The court shall issue a right to attach order if the court finds all of the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (4) The amount to be secured by the attachment is greater than zero. (Code Civ. Proc. § 484.090.) A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc. § 481.190.) The application shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based. ¿(Code Civ. Proc. § 484.030.)¿In contested applications, the court must consider the relative merits of the positions of the respective parties and make a determination of¿the probable outcome of the litigation.¿ (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) Code of Civil Procedure section 482.040 states in pertinent part: The facts stated in each affidavit filed pursuant to this title shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein. As to matters shown by information and belief, the affidavit shall state the facts on which the affiant's belief is based, showing the nature of his information and the reliability of his informant. The affiant may be any person, whether or not a party to the action, who has knowledge of the facts. DISCUSSION A. Notice Plaintiff has provided sufficient notice, and Defendants filed oppositions to the applications. B. Probable Validity of Plaintiffs Claims The application is based on Plaintiffs cause of action for breach of written contract (lease). To establish a claim for breach of contract, a plaintiff must prove: (1) the existence of a contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendants breach of the contract; and (4) damages incurred by plaintiff as a result of the breach. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367.) Plaintiff submits evidence that he entered a commercial lease with Defendants in February 2017, and that Defendants ceased paying the monthly rent of $2,636.38 on April 1, 2020, after the Covid-19 pandemic commenced. (See Maiten Decl. ¶¶ 3-4 and Exh. A, including Option to Extend, and Exh. B.) Plaintiff also submits evidence of the following: Defendants provided a 30-day notice on October 5, 2020, but continued their occupancy of the premises after the 30 days had expired. In January 2021, Defendants sent an email to Plaintiffs representatives indicating that Defendants would vacate the premises in 30 days. When the 30 days had expired, Defendants did not surrender the keys or confirm that they had vacated the premises. They continued to keep the utilities in their name and pay the utility bills. Plaintiff discovered that Defendants had abandoned the premises on or about July 31, 2021. (Maiten Decl. ¶¶ 5-8.) Plaintiff seeks recovery of principal damages for 16 months (April 2020 to July 2021) of unpaid rent of $2,636.38, for a total of $42,182.08 in unpaid rent. Plaintiff also seeks recovery of late fees of $6,854.59; interest of $4,218.21; and attorneys fees and costs (pursuant to a fee provision in the lease) of either $13,644.8 or $15,000. Plaintiff also indicates that Defendants are entitled to a credit of $3,825.34 for their security deposit (after subtracting $1,000 in labor and material for water damage to the premises). (Id. ¶¶ 8-13.) The court cannot discern from Plaintiffs declaration how the interest was calculated. Further, Plaintiff appears to have confused the calculation of late charges pursuant to paragraph 13.4 (10% of overdue amount or $100, whichever is greater), with the calculation of interest under paragraph 13.5. (See Maiten Decl. ¶¶ 9-10.) The court will grant attachment of late charges of $4,218.21, as that amount is clear under the lease. ($42,182.08 x 10%). The court does not grant attachment of any interest, as Plaintiffs calculations are deficient. Further, Plaintiffs applications are unclear as to whether attorneys fees of $13,644.8 or $15,000 are requested. The court grants attachment of fees and costs in the lesser amount. Defendants have not persuasively opposed Plaintiffs evidence of a probably valid contract claim for unpaid rent from April 2020 to July 2021. Defendants concede that they failed to pay rent starting March 29, 2020, and retained possession of the premises until at least January 2021. (Ebgi Decl. ¶¶ 3-6.) Defendants concede that they served a 30-day notice in October 2020, but did not vacate. (Ibid.) They also implicitly concede that they did not return the keys until July 2021. (Id. ¶ 7.) Defendants do not submit evidence of any notice or written communications between January and July 2021 showing that they informed Plaintiff that they vacated. (See Ebgi Decl. ¶¶ 4-7 and Exh. A.) The court is not persuaded that the pandemic prevented Defendants from returning the keys in some fashion or giving notice that they were vacating. (See Maiten Decl. ¶ 7.) Based on the foregoing, Plaintiff shows a probably valid claim against Defendants in the reduced amount of $56,219.75 ($42,182.08 + $4,218.21 + $13,644.8 - $3,825.34). C. Basis of Attachment Probable Plaintiff establishes a sufficient basis for attachment. [A]n attachment will lie upon a cause of action for damages for a breach of contract where the damages are readily ascertainable by reference to the contract and the basis of the computation of damages appears to be reasonable and definite. The fact that the damages are unliquidated is not determinative. [Citations.] But the contract sued on must furnish a standard by which the amount due may be clearly ascertained and there must exist a basis upon which the damages can be determined by proof. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App. 4th 537, 541.) Here, Plaintiffs application for writ of attachment is based on a contract claim for which the total amount allegedly due is in excess of $500. The claim is not secured by real property. Plaintiffs claim arises from Defendants conduct of a trade or business, i.e. commercial art gallery. Defendants argue that Plaintiffs damages are not fixed and readily ascertainable because the number of months of unpaid rent, among other issues, are in dispute. (Oppo. 1.) Plaintiffs damages are fixed and readily ascertainable from the terms of the lease and Plaintiffs declaration. A dispute about the amount of damages does not mean that the damages cannot be readily ascertained and calculated from the lease terms. At heart, Defendants raise issues about the probable validity of Plaintiffs claim, not whether the damages are fixed and ascertainable. D. Purpose and Amount of Attachment The court finds that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachments is based and the amount to be secured by the attachment is greater than zero. E. Reduction of Amount to be Secured, and Exemptions Defendants do not argue, or show, that the amount of attachment should be reduced pursuant to Code of Civil Procedure section 483.015(b). Defendants have not claimed any exemptions. F. Subject Property Plaintiff requests attachments against Defendants, natural persons, of items listed in Code of Civil Procedure section 487.010(c) and (d). (Application ¶ 9c.) That request is proper. Plaintiff is not required by section 484.020(e) to describe the property sought for attachment with further specificity. (See Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal. App. 3d 260, 267-268 [all-inclusive application satisfies CCP section 484.020(e)].) G. Undertaking Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment. Section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000. Neither party has argued for a different amount of undertaking. CONCLUSION AND ORDER Based upon the foregoing, the court orders as follows: 1. The application for writ of attachment is granted in the reduced amount of $56,219.75 against each defendant. Although the court is issuing separate writs, Plaintiff shall not attach more than $56,219.75, i.e., the writs are intended to be joint and several. 2. Plaintiff shall post an undertaking in the amount of $10,000 for each writ. /// /// 3. Plaintiffs counsel shall prepare and lodge revised Right to Attach Order After Hearing and Order for Issuance of Writ of Attachment on Forms AT-120 reflecting the courts ruling. 4. Plaintiffs counsel shall provide notice and file proof of service with the court. IT IS SO ORDERED Dated: August 28, 2024 ______________________ Stephen I. Goorvitch Superior Court Judge [1] Plaintiff filed four applications for writ of attachment on May 22, 30, and 31, 2024, three against Rosenblatt and one against Ebgi. All four applications seek attachment of $63,074.42, albeit three seek attorneys fees of $13,644.88, while one (against Rosenblatt) seeks attorneys fees of $15,000. The court treats these applications as one application seeking attachment of $63,074.42 against both Rosenblatt and Ebgi, jointly and severally.

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