SUMMONS + COMPLAINT July 25, 2014 (2024)

Case

HSBC BANK USA v. TABACCO, TODD

Mar 20, 2012 |Foreclosure Part Residential |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |130719/2011

Case

Ridgewood Savings Bank v. Claps, Daniel et al

Jan 11, 2024 |CONFERENCE (FCP) FORECLOSURE |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |135023/2024

Case

NYCTL 2019-A Trust, and The Bank of New York Mellon as Collateral Agent and Custodian for the NYCTL 2019-A Trust v. Johnsen, Kevin et al

Dec 07, 2020 |Ozzi, Hon. Wayne M. |RP-Tax Foreclosure |RP-Tax Foreclosure |152304/2020

Case

JPMORGAN CHASE BANK v. ALVES, JOELYN

Oct 26, 2012 |CONFERENCE (FCP) FORECLOSURE |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |130517/2012

Case

BANK OF NEW YORK MELLON v. KREISLER, RICHARD

May 02, 2014 |Foreclosure Part Residential |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |135287/2014

Case

MATRIX FINANCIAL SERVICES CORPORATION v. EBERLE, KRISTINA FERRARO et al

Apr 02, 2024 |CONFERENCE (FCP) FORECLOSURE |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |135163/2024

Case

MORTGAGE ASSETS MANAGEMENT, LLC v. SMITH, DOROTHY E. et al

Oct 21, 2022 |CONFERENCE (FCP) FORECLOSURE |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |135240/2022

Case

Towd Point Mortgage Trust 2021-Sj2, U.S. Bank National Association, As Indenture Trustee v. Habiba Muhammad, Mustafa Muhammad, New York City Parking Violations Bureau, New York City Transit Adjudication Bureau, John Doe #1 Through John Doe #12

Aug 28, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |135361/2024

Case

HSBC BANK USA, N.A. v. SCHIAZZA, JENNIFER R

Jul 16, 2014 |CONFERENCE (FCP) FORECLOSURE |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |135547/2014

Ruling

CHURCHILL FUNDING I LLC, A DELAWARE LIMITED LIABILITY COMPANY VS 732 INDIANA, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Aug 28, 2024 |24SMCV03940

Case Number: 24SMCV03940 Hearing Date: August 28, 2024 Dept: P Shockingly, there is no agreement. The court was hoping it could simply sign the order. But at this point, defendant does not appear to want to allow plaintiff to take speedy, but targeted, discovery so that the PI hearing can be a meaningful one, which is itself suspicious. Of course, broad discovery on an expedited basis is probably not proper, but limited discovery to find out what is really going on could help both parties. That said, the court will not order it. The court is also disappointed that plaintiff seems to want to file new opening papers. Plaintiff brought this motion. If plaintiff no longer wants to stand on these papers, that is fine, but the court is not likely to want to issue extraordinary relief like a TRO without adequate briefing when plaintiff does not stand by its papers. Given that Judge Mandel will be back next week, the court will ask the parties to stipulate to (1) keeping all funds secure until the next hearing and (2) a bar on any action by defendant that will impair plaintiffs collateral until the next hearing. The court will then set a status conference in Department P, and nothing more, for a date next week convenient to Judge Mandel. If plaintiff wants to submit a new TRO application, plaintiff can do so, as the current application will be deemed withdrawn. If plaintiff wants to take discovery, the normal statutes will apply until and unless the parties agree to something different or the court orders it in response to what the court presumes will be a new application. The court notes that it is setting the matter only for a status conference in Department P. Plaintiff, having indicated that it wants to withdraw the TRO application, will need to file a new one. All the court seeks now is an agreement to a standstill until Judge Mandel returns and can start to set the ground rules.

Ruling

Jason Neel vs United States Real Estate Corporation, et al

Aug 28, 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

HALCO MANAGEMENT, INC., A CALIFORNIA CORPORATION VS SINA KOKABI, ET AL.

Sep 03, 2024 |24SMCV02979

Case Number: 24SMCV02979 Hearing Date: September 3, 2024 Dept: M CASE NAME: Halco Management Inc. v. Kokabi, et al. CASE NO.: 24SMCV02979 MOTION: Motion for Summary Judgment HEARING DATE: 9/3/2024 Legal Standard A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189 Cal.App.3d 1542, 1544.)¿ [A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to subdivision (t). (CCP,¿§ 437c(t).)¿ To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, [a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment& (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion may not be denied on grounds of credibility, except when¿a material fact is the witnesss¿state of mind and that fact is sought to be established solely by the [witnesss] affirmation thereof. (CCP, § 437c(e).)¿ Once the moving party has met their burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP § 437c(p)(1).) [T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.¿(Consumer Cause, Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿ ¿ The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding. (Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (Ibid.)¿ EVIDENTIARY ISSUES Plaintiffs request for judicial notice is GRANTED. Analysis Plaintiff Halco Management Inc. (Plaintiff) moves for summary judgment for possession on its unlawful detainer cause of action against Defendants, Sina Kokabi and Sina Motors Corp. (Defendants). Unlawful detainer is a summary proceeding to determine the right of possession of real property. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal. App. 4th 744, 749.) In order to take advantage of this summary remedy, the landlord must demonstrate strict compliance with the statutory notice requirements. (Id.) Proper service on lessees of a valid three-day notice to pay or quit is essential to declaring lessors judgment for possession under Code of Civil Procedure section 1161. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425.) Code of Civil Procedure section 1161(2) provides that a tenant is guilty of unlawful detainer: When he or she continues in possession, in person or by subtenant, without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days notice, in writing, requiring its payment, stating the amount which is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment. . . Accordingly, the basic elements of unlawful detainer for nonpayment of rent are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed. (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16.) Plaintiff presents the following evidence in support of its unlawful detainer claim against Defendants. The subject premises is located at 1781-1783 Westwood Boulevard, Los Angeles, CA 90024 (the Premises). (Halavi Decl., ¶¶ 2, 16; Ex. C; RJN Ex. 1.) On June 1, 2022, Plaintiff and Defendants entered into a written lease for an initial term of five years for the Premises. (Halavi Decl., ¶ 16; Ex. C [Lease].) Plaintiff is the landlord under the Lease. (Halavi Decl., ¶ 17.) The Lease provides for rent of $14,000.00 per month on the first of each month, and an annual rent increase of 3.5% or LA CPI, which is greater. (Id., ¶¶ 18-19.) In June 2024, Tenant owed an outstanding balance of rent for the months of March 2024 through May 2024, totaling $43,554.00 ($14,518.00 per month). (Halavi Decl., ¶ 20.) On May 28, 2024, Plaintiffs counsel served on Tenants counsel a Demand for Payment of Rent (the Demand Notice) pursuant to the Lease. The Demand Notice advised that Tenant had failed to pay Rent between the months of March 2024 and May 2024 in the amount of $43,554.00, and that if Tenant did not pay the amount due within three (3) days of the Demand Notice, Tenant would be in default of the Lease, and Plaintiff would be entitled to proceed against Tenant. (Goodkin Decl., ¶ 2; Ex. D.) Tenant did not remit payment pursuant to the Demand Notice. (Halavi Decl., ¶ 24.) On June 4, 2024, Plaintiff served a Three-Day Notice to Pay Rent or Quit for then-current amount of rent due, $43,554.00 (the 3-Day Notice) on Defendant. (Id.; Lauve Decl., ¶¶ 3-5, Exs. E-F.) Tenant failed to pay the full amount of the $43,554.00 estimated balance set forth in the 3-Day Notice, and Defendant is presently in possession of the Premises. (Halavi Decl., ¶ 28; Lauve Decl., ¶ 6.) The daily damages are $477.30 per day. (Halavi Decl., ¶ 31.) Plaintiff also shows entitlement to attorneys fees. (Id., ¶ 22.) With the above evidence, Plaintiff demonstrates a prima facie case for unlawful detainer under section 1161(2). Plaintiff shows that Defendants have defaulted for nonpayment of rent, the default continues after the three-day notice period has elapsed following a valid written three-day notice, and that Defendants remain in possession of the Premises. This showing shifts the burden of production to Defendants to present a dispute of material fact concerning possession. If Defendants fail to show a dispute of material fact, the motion for summary judgment will be GRANTED.

Ruling

Evans vs. Nicholson, et al.

Sep 01, 2024 |23CV-0203519

EVANS VS. NICHOLSON, ET AL.Case Number: 23CV-0203519This matter is on calendar for review regarding status of default judgment. Defendants were defaulted January22, 2024. No Request for Entry of Default Judgment has been submitted. An appearance is necessary ontoday’s calendar to provide the Court with a status of the Request for Entry of Default Judgment.

Ruling

SEAN LAMONT DENT, SIR, ET AL. VS MIGUEL ANGEL VALLE

Aug 28, 2024 |21TRCV00381

Case Number: 21TRCV00381 Hearing Date: August 28, 2024 Dept: 8 Tentative Ruling HEARING DATE: August 28, 2024 CASE NUMBER: 21TRCV00381 CASE NAME: Sean Lamont Dent, et al. v. Miguel Angel Valle, et al. MOVING PARTY: Plaintiffs, Sean Lamont Dent and Sean Lamont Dent Jr. RESPONDING PARTY: Defendant, Miguel Angel Valle (No Opposition) MOTION: (1) Motion for Attorneys Fees Tentative Rulings: (1) GRANTED in the amount of $26,816.24. I. BACKGROUND A. Factual On May 20, 2021, Sean Lamont Dent, Sir, Sean Lamont Dent Jr, Icolin Joy Gayle, Talal Omar, and Musa Ali Eisa filed a complaint against Miguel Angel Valle for (1) self-help, (2) conversion, (3) trespass, (4) breach of warranty of habitability, (5) breach of covenant of quiet enjoyment, (6) nuisance, (7) negligence, (8) premises liability, (9) unfair competition/unfair business practice, and (10) IIED. Plaintiffs allege that defendant is the owner, agent, and manager of the apartment building located at 10507 S. Inglewood Avenue. Plaintiffs allege a rodent infestation, inadequate garbage facilities, defective stairs, inadequate gas facilities, no running hot water, inoperable heater, lack of utilities, no smoke detectors, defective wiring/outlets, defective plumbing, flooding, and mold/mildew. Plaintiffs also allege that on January 22, 2021, while plaintiffs Dent Sr. and Jr. were not at home, defendant entered the subject property, changed the locks, and locked the doors to the property with keys and lock preventing plaintiffs from entering the unit. Defendant carried away, misappropriated, or discarded plaintiffs personal property. Defendant unlawfully demanded rent. In December 2023, the Court received testimony and exhibits from the parties across four days, and the parties completed closing arguments on January 9, 2024. This Court found in favor of Plaintiffs, Dent and Junior. On March 8, 2024, this Court issued its preliminary statement of decision containing findings on material disputed issues of fact and the Courts intended conclusion of law. After receiving no objections or other responses to the preliminary statement of decision, this Court issued a Final Statement of Decision on June 7, 2024. Subsequently, this Court directed the Clerk to give Notice of Entry of Judgment in favor of Sean Lamont Dent, Sr. and against Miguel Angel Valle in the amount of $4,977, and in favor of Sean Dent Junior against Miguel Angel Valle in the amount of $2,150. Now, Plaintiffs, Sean Lamont Dent and Sean Lamont Dent Jr. (Dent Plaintiffs) file a Motion for Attorneys Fees in the amount of $27,105.25 to be awarded as a result of the entry of judgment in their favor and against Defendants. B. Procedural On July 16, 2024, Dent Plaintiffs filed a Motion for Attorneys Fees. To date, no opposition has been filed. II. ANALYSIS¿ A. Legal Standard Attorneys fees are recoverable when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) Pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10), attorney fees when authorized by contract, statute or law are allowable as costs and may be awarded upon a noticed motion pursuant to Code of Civil Procedure section 1033.5, subdivision (c)(5). Here, Plaintiffs assert that they were the prevailing parties in an action brought under a statute, Civil Code §789.3, the statute prohibiting, among other things, a landlord from engaging in self-help efforts to induce a tenant to vacate a rental unit without following the statutory eviction process, including the landlord interrupting or terminating the tenants utilities or lock out the tenant from the renal until such as by changing the locks, or by removing the tenants personal property from the rental unit without the tenants prior written consent. Where a contract specifically provides for attorneys fees and costs incurred to enforce the contract, attorneys fees and costs must be awarded to the party who is determined to be the prevailing party on the contract. (Civ. Code., § 1717, subd. (a).) Reasonable attorneys fees shall be fixed by the court and shall be an element of the costs of suit. (Ibid.) A prevailing party is defined to include the party with a net monetary recovery . . . . (Code Civ. Proc., § 1032, subd. (a)(4).) In determining what fees are reasonable, California courts apply the lodestar approach. (See, e.g., Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1332.) This inquiry begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (See PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the [t]he lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Ibid.) Relevant factors include: (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) The party seeking fees has the burden of documenting the appropriate hours expended and hourly rates. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 784.) This burden requires competent evidence as to the nature and value of the services rendered. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) A plaintiffs verified billing invoices are prima facie evidence that the costs, expenses, and services listed were necessarily incurred. (Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682.) B. Discussion Here, the Dent Plaintiffs moving papers indicate that they are seeking attorneys fees for prevailing at trial and as a result of the Judgment being entered in their favor. The Dent Plaintiffs argue that they are entitled to an award of reasonable attorneys fees because the Defendant/Landlord willfully caused, directly or indirectly, the interruption of termination of utility service furnished to the Plaintiffs/Tenants, including, but not limited to, water, heat, light, electricity, under the control of the landlord; and removed the tenants personal property, the furnishings, and other items without the prior written consent of the tenant in violation of California Civil Code section 789(3). After a four (4) day trial, the Court found in favor of Plaintiffs, awarding Plaintiff, Sean Lamont Dent damages in the sum of $4,977 and Sean Lamont Dent Jr. damages in the sum of $2,150. The Dent Plaintiffs now seek attorneys fees in the total amount of $40,657.87, and argue this amount is reasonable for approximately 2.5 years of contested litigation, which translated to a total of 73.55 hours, plus a requested multiplier of 1.5. Items Requested in Motion for Attorneys Fees Dent Plaintiffs note that the base lodestar award s the product of seventy hours and fifty-five minutes (70.55) of work by Macauley Ekpenisi at an hourly rate of $375 per hour for a total sum of $26,745.25, and three (3) hours for paralegals or office clerks at $120 per hour for a total sum of $360. The total of both amounts requested is $27,105.25, but Dent Plaintiffs also request a multiplier of 1.5 of the total fees of $27,105.25 for a total attorney fees award of $40,657.87. Preliminarily, this Court notes that 70.55 hours multiplied at a $375 hourly rate totals $26,456.24, not $26,745.25. As such, Mr. Ekpenisis math is slightly off for the total of his time spent on the case. Thus, the Court notes that the amount awarded to Plaintiff will be the re-calculated amount. Ekpenisis Hourly Rate is Reasonable Here, the Court finds that counsel for the Dent Plaintiffs, Macauley Ekpenisi, is reasonable. In support of his hourly rate, Ekpenisi has filed a declaration (Ekpenisi Decl.) outlining the basis for his hourly rate. Ekpenisi notes that he was admitted to practice law in Nigeria as a Barrister and Solicitor of the Supreme Court of Nigeria in 2000. (Ekpenisi Decl., ¶ 4.) Ekpenisi notes that he engaged in active law practice in Nigeria from December 2000 until he relocated to the United States of America in 2003. (Ekpenisi Decl., ¶ 5.) In 2014, Ekpenisi was admitted to the California Bar, and was subsequently admitted to the New York Bar in 2018. (Ekpenisi Decl., ¶ 5.) Ekpenisi notes that he is a sole practitioner, and that he has been representing consumers since he began to practice law when he opened his office in 2014 in California. (Ekpenisi Decl., ¶ 6.) Ekpenisi asserts that his primary practice area is civil claims and litigations, including personal injury, landlord/tenant disputes, employment law and civil rights cases. (Ekpenisi Decl., ¶ 6.) He further notes that he has handled over 500 cases in his area of practice that resulted in and out of court settlements and trials in California alone. (Ekpenisi Decl., ¶ 6.) Ekpenisi asserts that his requested rate of $375 is based on his experience as an attorney, the nature of the case, length of time expended, the complexity of the legal issues involved in this matter, challenges presented, and risk taken to prosecute his clients rights. (Ekpenisi Decl., ¶ 7.) Further, Ekpenisi notes that he had more than four (4) different legal assistants and support staff working on the case at bar at different times in his office and is requesting three (3) hours at the rate of $120 per hour for work performed by those clerks because he will necessarily pay them for their wages for working on this case by law and his office is entitled to recover the amount spent. (Ekpenisi Decl., ¶ 8.) Here, the Court finds that the hourly rate of both Ekpenisi and Ekpenisis paralegals are reasonable. Reasonableness of Time Spent Attached to Ekpenisis declaration as Exhibit 2 is the billing statement detailing the work Ekpenisi performed with time allotments on this case. In reviewing the billing record, the Court finds that most of the time spent on tasks was reasonable, and as to some other task such as the time claimed to attend various hearings, the Court has no contrary evidence from the Defense. Accordingly, the Court finds that the amount of time spent on the hearings and trial in this case to be reasonable. Thus, the Court finds that attorneys fees may be awarded in the adjusted lodestar amount of $26,456.24, plus $360 in paralegal time for a total of $26,816.24. The Request for a Multiplier of 1.5 is Not Appropriate This Court finds that a lodestar multiplier is not appropriate here. While the lodestar reflects the basic fee for comparable legal services in the community, it may be adjusted based on various factors, including (1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded other employment by the attorneys; (3) the contingent nature of the fee award and (4) the success achieved. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Nonetheless, the court must not consider extraordinary skill and the other Serrano factors to the extent these are already included with the lodestar. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138-1139.) [A] trial court should award a multiplier for exceptional representation only when the quality of representation far exceeds the quality of representation that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation. Otherwise, the fee award will result in unfair double counting and be unreasonable. (Id. at 1139.) Here, Plaintiff is requesting a lodestar multiplier of 1.5. The Court notes that this case involved a landlord-tenant dispute, and nothing before the Corut indicates that the case presented a particularly novel issue or that the quality of representation far exceeded the quality of representation that would have been provided by attorneys of comparable skill and experience billing at the same rates. Accordingly, this Court declines the award of a lodestar multiplier. III. CONCLUSION For the foregoing reasons, this Courts tentative ruling is to GRANT Plaintiffs Motion for Attorneys Fees in the amount of $26,816.24.which accounts for the hourly rate and time spent by both Ekpenisi and his paralegal(s). The request for a lodestar multiplier is denied. Dent Plaintiffs are ordered to provide notice.

Ruling

IDC MANAGING MEMBER TIC LLC, A DELAWARE LIMITED LIABILITY COMPANY VS PHU NGUYEN

Aug 30, 2024 |23STCV13571

Case Number: 23STCV13571 Hearing Date: August 30, 2024 Dept: 52 Tentative Ruling: Plaintiff IDC Managing Member TIC LLCs Motion for Terminating Sanctions Plaintiff IDC Managing Member TIC LLC moves for terminating sanctions against defendant Phu Nguyen, doing business as PN Diamond Repair. After a court issues an order compelling responses to interrogatories or requests for production, [i]f a party then fails to obey the order, the court may make those orders that are just, including imposing monetary, issue, evidence, or terminating sanctions. (CCP §§ 2030.290(c) [interrogatories], 2031.300(c) [requests for production].) On May 7, 2024, the court ordered Nguyen to serve responses without objections to plaintiffs document demands and form interrogatories general, set one, within 30 days. (Cohen Decl., ¶ 2, Ex. A.) For each of plaintiffs three discovery motions, the court also ordered Nguyen to pay plaintiff $455 in sanctions within 30 days. (Ibid.) Defendant disobeyed those orders. As of June 28, 2024, when plaintiff filed this motion, defendant had not served any responses to plaintiffs document demands or form interrogatories. (Cohen Decl., ¶ 3.) Terminating Sanctions Courts may impose a terminating sanction by striking out a defendants answer (CCP § 2023.030(d)(1)) or rendering a judgment by default against it (id., subd. (d)(4)). Discovery sanctions should be imposed incrementally, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) [A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Ibid.) Appropriate sanctions are those suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but [not] which are designed not to accomplish the objects of discovery but to impose punishment. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488.) Terminating sanctions are appropriate. Sanctions short of termination have been ineffective to curb Nguyens misuse of the discovery process. Monetary sanctions had no effect on Nguyen. Plaintiff has been completely unable to accomplish the objects of discovery. The purpose of discovery is to make trial less a game of blindmans bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 473.) Defendant has not complied with her discovery obligations. She disobeyed the courts order compelling her to do so. This misuse of the discovery process has prevented plaintiff from conducting any discovery. Absent terminating sanctions, plaintiff would face trial by surprise. Under these circ*mstances, the court finds terminating sanctions appropriate. The court therefore will strike Nguyens answer and enter her default. Disposition Plaintiff IDC Managing Member TIC LLCs motion for terminating sanctions against defendant Phu Nguyen, doing business as PN Diamond Repair is granted. The court hereby strikes the answer of defendant Phu Nguyen, doing business as PN Diamond Repair. The court hereby enters the default of defendant Phu Nguyen, doing business as PN Diamond Repair. The court hereby sets an order to show cause re: entry of default judgment for October 22, 2024, at 8:30 a.m.

Ruling

RISSMAN vs RISSMAN

Sep 01, 2024 |CVRI2202453

DEMURRER ON COMPLAINT FOROTHER REAL PROPERTY (OVERCVRI2202453 RISSMAN VS RISSMAN$25,000) OF HOWARD J RISSMAN BYMATTHEW RISSMANTentative Ruling: No tentative will be given. Counsel is required to appear and provide an updateto the court regarding the status of adding all necessary parties.5.DEMURRER ON COMPLAINT FORMEDICAL MALPRACTICE (OVERMCLAUGHLIN VS COUNTYCVRI2302520 $25,000) OF LINDA MCLAUGHLIN BYOF RIVERSIDEJOHNSON & JOHNSON SERVICES,INCTentative Ruling: The unopposed demurrer is sustained with 30 days leave to amend.

Ruling

Angeles Contractor, Inc., et al vs Santa Cruz Hotel, L.P, et al

Aug 30, 2024 |20CV01281

20CV01281ANGELES CONTRACTOR INC. v. SANTA CRUZ HOTEL LP CROSS-DEFENDANT ANGELES CONTRACTOR’S DEMURRER TO SANTA CRUZ HOTEL’S THIRD AMENDED COMPLAINT The demurrer is overruled. Page 1 of 2 Cross-defendant Angeles Contractor argues that Santa Cruz Hotel’s Third AmendedComplaint (TAC) fails to state facts to support these the causes of action for negligence, fraudand negligent misrepresentation and that these claims are barred by California law. However, Santa Cruz Hotel has pled facts indicating that an independent duty of careexists outside the contract for negligence (causing property damage). (TAC ¶¶ 72-79.) Further,Santa Cruz Hotel now specifically alleges the parties, their statements, and sufficient detailsrelated to their authority to speak, to whom they spoke, what they said or wrote, and when it wassaid or written for supporting its causes of action for fraud and negligent misrepresentation (TAC¶¶ 93-123.) (Kalnoki v. First Am. Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 35.) Angeles Contractor’s arguments go to the merits of the causes of action. At this point inthis four-year-old case, the pleadings in this matter must be set so the parties can proceed to trythis case on its merits. Angeles Contractor’s Request for Judicial Notice: Exhibits A and B: Stipulation for Entry of Judgment, Notice of Entry of Stipulated FinalJudgment in People v. Santa Cruz Hotel, LP, Santa Cruz Superior No. 19CV02338: Granted.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 2 of 2

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