SUMMONS + COMPLAINT June 19, 2013 (2024)

Case

Joseph Dunn v. Mount Pleasant Town

Sep 19, 2023 |SMALL CLAIMS ASSESMENT JUDGE |Other Real Property - SCAR |Other Real Property - SCAR |80856/2023

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Sharon Watkis-Lewis as agent for BALTON L. WARREN v. Devon Watkis

Aug 19, 2024 |Real Property - Other (DEED THEFT) |Real Property - Other (DEED THEFT) |67484/2024

Case

Daniel Lituma v. Peekskill City

Aug 21, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |91396/2024

Case

Pearl Jacobs v. New Rochelle City

Aug 21, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |91386/2024

Case

Beverly Finlay v. Mount Vernon City

Aug 21, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |91316/2024

Case

Joel Levinson v. Mount Pleasant Town

Sep 19, 2023 |SMALL CLAIMS ASSESMENT JUDGE |Other Real Property - SCAR |Other Real Property - SCAR |80878/2023

Case

U.S. Bank National Association, As Trustee For Lehman Xs Trust Mortgage Pass-Through Certificates, Series 2005-9n v. Heirs And Distributees OF THE ESTATE OF ROBERT BARBIERI AKA ROBERT BARBIERI,SR, Debra Barbieri , AS HEIR AND DISTRIBUTEE OF THE ESTATE OF ROBERT BARBIERI AKA ROBERT BARBIERI, SR, Robert Barbieri Jr , AS HEIR AND DISTRIBUTEE OF THE ESTATE OF ROBERT BARBIERI AKA ROBERT BARBIERI, SR, Dana Barbieri , AS HEIR AND DISTRIBUTEE OF THE ESTATE OF ROBERT BARBIERI AKA ROBERT BARBIERI, SR, Jpmorgan Chase Bank, National Association S/B/M/T Chase Bank Usa, National Association, Fia Card Services, N.A., Portfolio Recovery Associates, Llc, Midland Funding Lcc, Discover Bank, New York State Department Of Taxation And Finance, United States Of America, Jane Doe -name refused, John Doe

Aug 27, 2020 |William J. Giacomo |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |59332/2020

Case

Mortgage Assets Management, Llc v. Dorothy Swinton INDIVIDUALLY AND AS SURVIVING SPOUSE OF HAROLD SWINTON, United States Of America On Behalf Of The Secretary Of Housing And Urban Development, John Doe

Mar 03, 2023 |Linda S. Jamieson |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |57455/2023

Case

Mark Gooden v. New Rochelle City

Aug 20, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |91286/2024

Ruling

FRANCESCA FUENTES, ET AL. VS ARMEN AMBARACHYAN, ET AL.

Aug 27, 2024 |22STCV02561

Case Number: 22STCV02561 Hearing Date: August 27, 2024 Dept: 51 Tentative Ruling Judge Upinder S. Kalra, Department 51 HEARING DATE: August 27, 2024 CASE NAME: Francesca Fuentes, et al. v. Armen Ambarachyan, et al. CASE NO.: 22STCV02561 MOTION FOR JUDGMENT ON THE PLEADINGS MOVING PARTY: Defendant K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Associates LLC dba Western Fidelity Trustees RESPONDING PARTY(S): Plaintiff Sebastian Rucci REQUESTED RELIEF: 1. Motion for Judgment on the Pleadings as to the First Amended Complaint. TENTATIVE RULING: 1. Motion for Judgment on the Pleadings is GRANTED as to the second and third causes of action and MOOT as to the first cause of action. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: On January 21, 2022, Plaintiffs Francesca Fuentes and Sebastian Rucci (Plaintiffs) filed a Complaint against Defendants Armen Ambarachyan, K.A.R. Properties, Inc. which also operates as Western Fidelity Trustees, and Kathleen Herrera (Defendants) with twelve (12) causes of action for: (1) Set Aside Notice of Default for Wrongful Foreclosure; (2) Failed to Present Options to Avoid Foreclosure (CCC § 2923.5); (3) Failed to Present Options (CCC § 2923.55); (4) Failed to Provide Single Point of Contact (CCC § 2923.7); (5) Foreclosure Prevention Alternative (CCC § 2924.9); (6) Prohibition Against Recording Notice of Default (CCC § 2924.11); (7) Prohibition Against Recording NOD (CCC § 2924.18); (8) Violation of COVID-19 Homeowner Relief Act (CCC § 3273.1); (9) Quiet Title (CCP § 760.020); (10) Slander of Title; (11) Violation of Home Ownership Equity Protection Act (15 USC § 1639); and (12) Violation of Usury (Cal. Const., art. XV, § 1). According to the Complaint, Defendants wrongfully instituted foreclosure proceedings against Plaintiffs property located at 42506 Bellagio Drive, Bermuda Dunes, California 92203 (the Property). Plaintiff Rucci owns the Property and Plaintiff Fuentes rents at the Property. On April 28, 2022, Defendant Armen Ambarachyan filed an Answer. On July 12, 2022, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Associates LLC dba Western Fidelity Trustees filed an Answer. On May 31, 2023, Plaintiff Francesca Fuentes filed a request for dismissal as to her complaint only. On June 20, 2023, Plaintiff Rucci filed a Motion for Reconsideration which was granted in part. On July 19, 2023, the parties filed a stipulation and order to file an amended complaint. On July 19, 2023, Plaintiff filed a First Amended Complaint (FAC) with three causes of action for: (1) Damages for Violating Usury; (2) Damages for Violating California Homeowner Bill of Rights; and (3) Quiet Title. On August 2, 2023, Defendants K.A.R. Properties, Inc. and Kathleen Herrera filed an Answer. On October 17, 2023, Defendant Armen Ambarachyan filed an Answer and a Demurrer to the FAC which the court SUSTAINED. On October 18, 2023, Defendant Armen Ambarachyan filed a Motion for Sanctions which the court DENIED. On March 14, 2024, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Trustees file a Motion for Judgment on the Pleadings which they withdrew. On May 13, 2024, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Trustees file a Motion for Judgment on the Pleadings. On May 15, 2024, Plaintiff filed a Challenge to Judicial Officer which was granted. On June 4, 2024, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Trustees file a Motion for Judgment on the Pleadings. On August 13, 2024, Plaintiff filed an opposition. LEGAL STANDARD: Motion for Judgment on the Pleadings A defendant may move for judgment on the pleadings on the grounds that (1) the court has no jurisdiction of the cause of action alleged in the complaint, or (2) the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Pro. § 438, subd. (c)(1)(B).) The grounds for a motion for judgment on the pleadings shall appear on the face of the challenged pleading or from any matter which the court has judicially noticed. (Code Civ. Proc., §¿438, subd. (d).) A motion may be made even though the movant has already demurred to the complaint or answer, on the same ground as is the basis for the motion for judgment on the pleadings, and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer. (Code Civ. Proc., § 438, subd. (g)(1).) In reviewing a motion for judgment on the pleadings, the court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.) Meet and Confer Prior to filing a motion for judgment on the pleadings, the moving party must meet and confer in person, via telephone, or by video conference. (Code Civ. Proc., § 439, subd. (a).) Insufficient meet and confer is not grounds to grant or deny a motion for judgment on the pleadings. (Code Civ. Proc., § 439, subd. (a)(4).) Here, the parties met and conferred via telephone. (Schachter Decl. lines 9-18.) ANALYSIS: First Cause of Action Damages for Violating Usury Moving Parties contend that judgement on the pleadings is appropriate because they are not parties to the alleged Promissory Note and there are no claims they own a money interest in the Promissory Note. Upon reviewing the FAC, it appears Moving Parties are not subject to the first cause of action. (FAC ¶ 22 [This cause of action is applicable to defendant Armen Abrarachyan.]) As such, the motion for judgment on the pleadings is not applicable to the first cause of action. Second Cause of Action Damages for Violating California Homeowner Bill of Rights Moving Parties contend that the court should enter judgment on the pleadings in their favor because it previously sustained a demurrer without leave to amend as to co-defendant Armen Ambarachyan. As the parties indicate, the court previously sustained co-defendant Abrarachyans demurrer to the second and third causes of action without leave to amend because the allegedly impermissible recorded Notice of Default was rescinded. (Ruling on Demurrer 12/07/23.[1]) The court previously reasoned that Plaintiff may not obtain either injunctive relief or damages for [Defendant Abrarachyan]s alleged violations of HBOR because there is nothing to enjoin, and in the absence of a sale, there are no damages to award. (Ibid.) Plaintiff does not dispute that the Notice of Default was rescinded. Instead, he argues that he still has damages because it was not rescinded until 629 days later. (Opp. 5:16-27.) However, Plaintiff fails to state how he was damaged by the delay and fails to provide authority supporting his position that there are still damages despite the rescission.[2] Indeed, as the court also previously indicated, there is no live controversy under HBOR for this court to adjudicate. (Ruling on Demurrer 12/07/23.) The court sees no reason why it should deviate from the reasoning applied to Defendant Abrarchayn. Accordingly, the court GRANTS Moving Parties motion for judgment on the pleadings as to the second cause of action. Third Cause of Action Quiet Title As indicated in the prior ruling, this claim rests on the allegedly void notice of default. (Ruling on Demurrer 12/07/23.) Since it was rescinded, this claim fails. Accordingly, the court GRANTS Moving Parties motion for judgment on the pleadings as to the third cause of action. CONCLUSION: For the foregoing reasons, the Court decides the pending motion as follows: 1. Motion for Judgment on the Pleadings is GRANTED as to the second and third causes of action and MOOT as to the first cause of action without leave to amend. Moving party is file a proposed judgment within 10 day and to give notice. IT IS SO ORDERED. Dated: August 27, 2024 __________________________________ Upinder S. Kalra Judge of the Superior Court [1] Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014 [Although a court cannot take judicial notice of hearsay allegations in a court record, it can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.]

Ruling

CARRIE A. DODSON, INDIVIDUALLY AND AS TRUSTEE OF THE CARRIE A...

Aug 20, 2024 |Unlimited Civil (Other Real Property (not emin...) |23CV009514

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009514: CARRIE A. DODSON, INDIVIDUALLY AND AS TRUSTEE OF THE CARRIE A. DODSON REVOCABLE TRUST vs BEER, et al. 08/21/2024 Hearing on Motion to Compel Responses and a Complete Production to Inspection Demands (Bradley Beer) in Department 54Tentative RulingTENTATIVE RULING:Defendant Bradley Beer’s (“Bradley”) motion to compel Plaintiff Carrie A. Dodson, individuallyand as trustee of the Carrie A. Dodson Revocable Trust (“Dodson”) to provide verifiedresponses and a complete production of documents to Bradley’s first set of InspectionDemands, and for monetary sanctions, is ruled upon as follows.Dodson’s filed her complaint on October 5, 2023, seeking rescission and cancellation of a grantdeed based on claims of fraud. Ms. Dodson is the former owner of the real property located at14845 Lago Drive, Rancho Murieta California 95683 within Sacramento County (“theResidence”). During her time as the owner of the Residence, Ms. Dodson became engaged toPreston Beer, and the two resided together in the Residence. During the course of herrelationship with Preston, Ms. Dodson agreed to sell the Residence to the Bradley and PrestonBeer (collectively “the Beers”) and the parties entered into a Purchase and Sale Agreementwhereby Ms. Dodson sold the Residence to the Beers in return for a monetary sum. On or aboutJune 17, 2022, escrow closed and the Beers became the owners of the Residence. The twodefendants and cross-complainants in this action are father and son, each with the last name“Beer.” For the court’s clarity, Bradley Beer will be referred to in this Motion as “Bradley.”Thereafter, Preston and Ms. Dodson’s engagement ended and in August 2023 Bradley Beersought, and obtained, a court-ordered eviction through an unlawful detainer action to have Ms.Dodson removed from the Residence (Sacramento Superior Court, Case No. 23UD05444).Following her eviction, Ms. Dodson filed and served her Complaint against the Beers regardingthe Purchase and Sale Agreement executed between the parties.On February 14, 2024, Bradley served his first set of requests for inspection on Ms. Dodson.(Decl. Bransen, ¶ 3.)Ms. Dodson served unverified responses on March 19, 2024. (Decl. Bransen, ¶ 4.) Bradleyasserts these responses, in addition to being unverified, are also incomplete and asserts thatthe production was also incomplete. He requested verified and further responses, but Dodsondid not provide amended responses nor verification for her initial responses. (Decl. Bransen, ¶¶5-8.)Bradley filed this motion to compel on May 2, 2024.A party responding to special interrogatories must sign the responses under oath. (Code Civ.Proc., § 2030.250(a).) When a responding party fails to verify responses, the failure to do so istantamount to no response at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)In opposition, Dodson asserts many underlying facts that are not at issue on this motion.Dodson also asserts that Bradley failed to meet and confer in good faith. Dodson bases this Page 1 of 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009514: CARRIE A. DODSON, INDIVIDUALLY AND AS TRUSTEE OF THE CARRIE A. DODSON REVOCABLE TRUST vs BEER, et al. 08/21/2024 Hearing on Motion to Compel Responses and a Complete Production to Inspection Demands (Bradley Beer) in Department 54argument on the fact that Bradley did not send any additional meet and confer or warning afterhis meet and conferral letter of March 27, 2024.On reply, Bradley argues, “The defense sent multiple emails, supported by citation to authorityand fact, and invited a conference call to discuss, but Ms. Dodson's counsel declined. Further,after Ms. Dodson produced additional documents - without specifying what the documents wererelated to, why they were being produced, and whether amended responses and verificationswere forthcoming - the defense followed-up seeking clarification. Ms. Dodson's counsel did notrespond.”As unverified responses are tantamount to no response at all, meet and confer efforts are notnecessary here. However, the Court concludes that Bradley did meet and confer in good faith,and had good cause to file this motion to compel.Bradley’s motion to compel complete verified responses, without objection, and completeproduction of responsive documents to Bradley’s request for inspection, set one, is GRANTED.Bradley’s request for sanctions is denied as unreasonable in addition to the sanctions alreadyrequested and awarded in concurrent motions filed in this action.Dodson is ordered to serve Bradley with complete verified responses, without objection, andcomplete production to Bradley’s request for inspection, set one, no later than September 20,2024.This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc. §1019.5; CRC Rule 3.1312.)NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely either Page 2 of 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 23CV009514: CARRIE A. DODSON, INDIVIDUALLY AND AS TRUSTEE OF THE CARRIE A. DODSON REVOCABLE TRUST vs BEER, et al. 08/21/2024 Hearing on Motion to Compel Responses and a Complete Production to Inspection Demands (Bradley Beer) in Department 54telephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 3 of 3

Ruling

PALM COURT PROPERTIES, INC., A CALIFORNIA CORPORATION VS 427 SOUTH ELM LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Aug 20, 2024 |24STCV18012

Case Number: 24STCV18012 Hearing Date: August 20, 2024 Dept: 85 Palm Court Properties, Inc.. v. 427 South Elm LLC, et al., 24STCV18012 Tentative decision on application for preliminary injunction: granted Plaintiff Palm Court Properties, Inc. (Palm Court) seeks a preliminary injunction against Defendant Bank of America, N.A. (Bank of America) to freeze the bank account held in the name of Defendant 427 South Elm, LLC (Elm LLC) such that the funds are not accessible to 427 South or its agents. The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision. A. Statement of the Case 1. Complaint On July 19, 2024, Plaintiff Palm Court filed a Complaint against Defendants Elm LLC, Zhan Hairong aka Zhan Hai Rong aka Hai Rong Zhan (Hai Rong), Bank of America, Eric Gallego (Gallego), and Merchants Bonding Company (Merchants) alleging causes of action for (1) declaratory relief, (2) conversion, (3) unjust enrichment, and (4) negligence of notary public and for recovery on notary bond. The Complaint alleges in pertinent part as follows. The real property which is the subject of this action is located at 427 S. Elm Drive, Beverly Hills, CA 90212 (Elm Drive Property). Compl., ¶10. On May 26, 2016, Ming Lu acquired title to the Elm Drive Property pursuant to the recordation of a grant deed in the Recorders Office of Los Angeles County (County). Compl., ¶11. A deed of trust between Ming Lu, as borrower, and BOFI Federal Bank, as lender, was also recorded (BOFI Deed of Trust). Compl., ¶12. The BOFI Deed of Trust secured Ming Lus repayment of a $1,400,000 promissory note (BOFI Note) with the Elm Drive Property. Compl., ¶12. On January 17, 2023, Elm LLC was created by David Turner with Defendant Hai Rong as its manager. Compl., ¶13. Elm LLC was organized for the sole purpose of fraudulently acquiring title to the Elm Drive Property and unlawfully converting proceeds from its sale. Compl., ¶15. The Statement of Information filed with the California Secretary of State listed the registered members of Defendant Elm LLC as Ming Lu and David Turner. Compl., ¶14. On February 26, 2024, a grant deed was recorded purporting to convey title to the Elm Drive Property from Ming Lu to Elm LLC (Fraudulent Grant Deed). Compl., ¶16. The Fraudulent Grant Deed contains the notarial acknowledgement of Defendant Gallego, a California notary public. Compl., ¶17. The Fraudulent Grant Deed states that it merely confirms title to the grantee [Elm LLC] who continues to hold the same interest acquired [by Ming Lu] on 5/26/2016, Document No. 20160606114. Compl., ¶18. On March 20, 2024, a Statement of Information for Elm LLC removed David Turner and Ming Lu as members and replaced them with Defendant Hai Rong as the sole member and Chief Executive Officer. Compl., ¶19. On or about March 2024, Palm Court entered into a purchase agreement with Elm LLC to purchase the Elm Drive Property for $1,950,000. Compl., ¶¶ 20-21. Escrow was first opened with Pacific Escrow before being moved to Escrow Hub, and a title order was opened with Fidelity National Title Company (FNTC). Compl., ¶22. Palm Court deposited a down payment in the amount of $60,000 with Escrow Hub for its purchase of the Elm Drive Property. Compl., ¶23. During the transaction, Palm Court asked Escrow Hub about Ming Lus prior conveyance of the Elm Drive Property to Elm LLC. Palm Court was informed that Hai Rong provided Escrow Hub with (a) a statement from Ming Lus husband, Long Jia, (b) an agreement between Ming Lu and Hai Rong, and (c) an email from Hai Rong to Escrow Hub and FNTC indicating that Ming Lu wanted to sell the Elm Drive Property because she is in default on her debts. Compl., ¶¶24-25. Palm Court agreed to purchase the Elm Drive Property primarily based on the marketable fee simple title purportedly held by Elm LLC, Hai Rongs representations that Elm LLC legally acquired title from Ming Lu, and the signatures and documents it received for the transaction. Compl., ¶27. On June 21, 2024, in anticipation of the closing, Palm Court deposited additional funds with FNTC via wire transfer in the amount of $1,893,333.21. Compl., ¶28. The same day, FNTC wired the sum of $1,199,401.75 to Axos Bank to pay off the balance due on the BOFI Note and cause a reconveyance of the BOFI Deed of Trust. Compl., ¶29. FNTC also wired the sum of $687,691.46 to Escrow Hubs bank, Wells Fargo Bank, for further disbursem*nt. Compl., ¶30. Pursuant to wire instructions previously made by Hai Rong and Elm LLC, Escrow Hub then wired the sum of $743,704.51 to Elm LLCs Bank of America bank account number ending in 7346 (Deposit). Compl., ¶31. All or a portion of the Deposit remains in the possession of Bank of America for the benefit of Hai Rong and Elm LLC. Compl., ¶32. A grant deed was recorded in the County Recorders Office with Elm LLC as grantor and Palm Court as grantee. Compl., ¶33. On June 23, 2024, Ming Lu visited the Elm Drive Property to check on the progress of improvements to the home and discovered a three-day notice to vacate posted on the home notifying all occupants that Palm Court was the new owner. Compl., ¶34. The next day, Ming Lu filed a police report with the Beverly Hills Police Department reporting fraud and contacted Escrow Hub concerning the same. Compl., ¶35. Ming Lu denies ever signing the Fraudulent Grant Deed or appearing before Gallego to sign the Fraudulent Grant Deed and asserts that her signature was forged. She was not even in the United States when it was purportedly signed on February 13, 2024. She contends that she did not participate in the sale transaction and did not receive any of the Deposit. Compl., ¶36. That same day, Palm Court was informed of Ming Lus claims that the sale was fraudulent. Compl., ¶37. If Ming Lus assertions are true, Hai Rong and Elm LLC fraudulently stole title to the Elm Drive Property from Ming Lu via the Fraudulent Grant Deed and unlawfully converted a portion of Palm Courts purchase money in the form of the Deposit. Compl., ¶38. Ming Lu remains the lawful fee simple title holder of the Elm Drive Property because the Fraudulent Grant Deed is void. Compl., ¶39. Bank of America has refused to voluntarily freeze the bank account and the Deposit from withdrawal or disbursem*nt and will only do so upon receipt of a court order instructing it to do so. Compl., ¶40. Palm Court seeks an order and judicial declaration that it is the owner in fee of the Elm Drive Property or alternatively, in the event Ming Lus claim of fraud is verified, that Palm Court be deemed the owner of the Deposit and for an order that the balance of the Deposit be disbursed to Palm Court. Palm Court also seeks damages for conversion in the amount of $743,704.51, pre-judgment interest, and compensatory damages for the lost use of money and for the time expended of no less than $250,000. Palm Court further seeks costs of suit incurred herein and other and further relief the court deems proper and just. Compl., at 14-16. 2. Course of Proceedings On July 29, 2024, the court issued a temporary restraining order (TRO) and issued an order to show cause (OSC) against Defendants Elm LLC, Hai Rong, Bank of America, Gallego, and Mutual. Proofs of service on file show that Defendant Bank of America was served with Summons, Complaint, and the TRO/OSC on July 31 and August 2, 2024. Proofs of service on file show that Defendant 427 South Elm LLC was served with Summons, Complaint, and the TRO/OSC on July 31 and August 2, 2024. A proof of service on file show that Defendant Merchants was served with Summons and Complaint on August 2, 2024. B. Applicable Law An injunction is a writ or order requiring a person to refrain from a particular act; it may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court. CCP §525. An injunction may be more completely defined as a writ or order commanding a person either to perform or to refrain from performing a particular act. See Comfort v. Comfort, (1941) 17 Cal.2d 736, 741. McDowell v. Watson, (1997) 59 Cal.App.4th 1155, 1160.[1] It is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. Meridian, Ltd. v. City and County of San Francisco, et al., (1939) 13 Cal.2d 424. The purpose of a preliminary injunction is to preserve the status quo pending final resolution upon a trial. See Scaringe v. J.C.C. Enterprises, Inc., (1988) 205 Cal.App.3d 1536. Grothe v. Cortlandt Corp., (1992) 11 Cal.App.4th 1313, 1316; Major v. Miraverde Homeowners Assn., (1992) 7 Cal.App.4th 618, 623. The status quo has been defined to mean the last actual peaceable, uncontested status which preceded the pending controversy. Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995, quoting United Railroads v. Superior Court, (1916) 172 Cal. 80, 87. 14859 Moorpark Homeowners Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402. A preliminary injunction is issued after hearing on a noticed motion. The complaint normally must plead injunctive relief. CCP §526(a)(1)-(2).[2] Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. See e.g. Ancora-Citronelle Corp. v. Green, (1974) 41 Cal.App.3d 146, 150. Injunctive relief may be granted based on a verified complaint only if it contains sufficient evidentiary, not ultimate, facts. See CCP §527(a). For this reason, a pleading alone rarely suffices. Weil & Brown, California Procedure Before Trial, 9:579, 9(ll)-21 (The Rutter Group 2007). The burden of proof is on the plaintiff as moving party. OConnell v. Superior Court, (2006) 141 Cal.App.4th 1452, 1481. A plaintiff seeking injunctive relief must show the absence of an adequate damages remedy at law. CCP §526(4); Thayer Plymouth Center, Inc. v. Chrysler Motors, (1967) 255 Cal.App.2d 300, 307; Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. The concept of inadequacy of the legal remedy or inadequacy of damages dates from the time of the early courts of chancery, the idea being that an injunction is an unusual or extraordinary equitable remedy which will not be granted if the remedy at law (usually damages) will adequately compensate the injured plaintiff. Department of Fish & Game v. Anderson-Cottonwood Irrigation Dist., (1992) 8 Cal.App.4th 1554, 1565. In determining whether to issue a preliminary injunction, the trial court considers two factors: (1) the reasonable probability that the plaintiff will prevail on the merits at trial (CCP §526(a)(1)), and (2) a balancing of the irreparable harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. CCP §526(a)(2); 14859 Moorpark Homeowners Assn. v. VRT Corp., (1998) 63 Cal.App.4th 1396. 1402; Pillsbury, Madison & Sutro v. Schectman, (1997) 55 Cal.App.4th 1279, 1283; Davenport v. Blue Cross of California, (1997) 52 Cal.App.4th 435, 446; Abrams v. St. Johns Hospital, (1994) 25 Cal.App.4th 628, 636. Thus, a preliminary injunction may not issue without some showing of potential entitlement to such relief. Doe v. Wilson, (1997) 57 Cal.App.4th 296, 304. The decision to grant a preliminary injunction generally lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Thornton v. Carlson, (1992) 4 Cal.App.4th 1249, 1255. A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. See CCP §529(a); City of South San Francisco v. Cypress Lawn Cemetery Assn., (1992) 11 Cal.App.4th 916, 920. C. Statement of Facts 1. Moving Plaintiffs Evidence a. Fassai Declaration Plaintiff Palm Court is a real estate investment corporation in Torrance, CA, which invests in real estate, manages properties, buys and holds, and fixes and flips properties. Fassai Decl., ¶¶1, 3. Ebrahim Fassai (Fassai) is the Chief Executive Officer, Chief Financial Officer, and Director of Palm Court. Fassai Decl., ¶1. At all relevant times, Fassai was acting as the authorized representative of Palm Court. Fassai Decl., ¶2. In March 2024, Fassai was introduced to the Elm Drive Property by a friend who informed him that the property was abandoned and the seller wanted to sell. Fassai Decl., ¶3. Upon Fassais physical inspection, the Elm Drive Property appeared to be suffering from deferred maintenance. Fassai Decl., ¶3. After some discussion with a woman who Fassai was told represented the seller, Palm Court offered to purchase the Elm Drive Property for $1,950,000. An escrow for the purchase was opened with Pacific Escrow, and a title order was opened with Lawyers Title Company. Fassai Decl., ¶4. Palm Court could not find a suitable lender to fund its purchase of the Elm Drive Property and the title company did not want to insure Palm Court's purchase. Fassai Decl., ¶5. It was then suggested to Fassai by a friend that the transaction be moved to Escrow Hub, as the new escrow company, and FNTC as the new title company. Fassai Decl., ¶6. Following the opening of the escrow with Escrow Hub, Palm Court made a good faith deposit in the amount of $60,000 towards the purchase of the Elm Drive Property. Fassai Decl., ¶7. Fassai received a Preliminary Report which identified Elm LLC as the owner of the Elm Drive Property. Fassai Decl., ¶8. Fassai received from both Escrow Hub and FNTC typical documents on which Palm Court relied in deciding to purchase the Elm Drive Property, including that Hai Rong represented that Elm LLC owned the Elm Drive Property and that the prior owner, Ming Lu, no longer held any interest in the Elm Drive Property and was consenting to the sale. Fassai Decl., ¶9. Fassai was also made aware that Hai Rong had deposited an executed grant deed in favor of Palm Court which was to be recorded when all the conditions to the sale had been satisfied. Fassai Decl., ¶10. Palm Court agreed to purchase the Elm Drive Property based upon Elm LLCs representations that it was the owner of the Elm Drive Property. Fassai Decl., ¶11. On or about June 19, Palm Court wired to FNTC the balance of its purchase-money funds in the amount of $1,893,333.21. Fassai Decl., ¶12. On or about June 21, 2024, Fassai was informed that the transaction had closed and that the grant deed executed by Hai Rong on behalf of Elm LLC was out for recording. Fassai Decl., ¶13. On June 23, 2024, Fassai caused a three-day notice to vacate to be posted on the Elm Drive Property. Fassai Decl., ¶15. The following day, a grant deed between Elm LLC, as grantor, and Palm Court, as grantee, was recorded as Document No. 20240405883 in the County Recorders Office. Fassai Decl., ¶16, Ex. 1. Fassai received a call from FNTC, who told him that there was someone living in the Elm Drive Property who claimed to be the owner of the property. Fassai Decl., ¶17. Fassai has since learned through his lawyers and the title insurance company that Ming Lu, a prior owner and the grantor of title to Elm LLC, was claiming that her signature had been forged on a recorded deed purportedly vesting title to the Elm Drive Property in Elm LLC. She asserted that she did not know about the sale, had not participated in it, had not agreed to sell the Elm Drive Property, did not convey title to Elm LLC, and did not receive any proceeds of sale. Fassai Decl., ¶18. b. Declaration of Diego Salazar Diego Salazar (Salazar) is an escrow officer with Escrow Hub, the escrow company which was engaged to handle the sale between Elm LLC and Palm Court. Salazar Decl., ¶1. On or about June 17, 2024, Escrow Hub was engaged to act as the escrow holder for Palm Courts purchase of the Elm Drive Property. Salazar Decl., ¶3. A file was opened and assigned the escrow file number 100649-DS, with the DS representing Salazars initials as the escrow officer assigned. Salazar Decl., ¶3. Palm Court made an initial good faith deposit of $60,000 upon the opening of the escrow. Salazar Decl., ¶4. During the course of the transaction, Elm LLC, by and through its purported manager, Hai Rong, deposited several items concerning how and why it acquired its interest in the Elm Drive Property from Ming Lu, including: (a) a statement by Long Jia, the husband of Ming Lu, who stated that Ming Lu knew the property on Elm was being sold and agrees to the sale of it; (b) an agreement between Ming Lu and Hai Rong; and (3) an email from Hai Rong to Escrow Hub and FNTC wherein Hai Rong attempted to justify the low sales price by attesting that Ming Lu is on the Chinese Government watchlist and was selling the Elm Drive Property because she is in default of her debts. Salazar Decl., ¶5. On June 21, 2024, Escrow Hub received Palm Courts purchase money funds from FNTC. Salazar Decl., ¶6. Subsequently, the escrow closed. After the payment of customary costs and fees, Escrow Hub disbursed via wire transfer the amount of $743,704.51 to a bank account at Bank of America for the benefit of Elm LLC, with the last four digits of the bank account number ending in 7346. Salazar Decl., ¶7. On June 24, 2024, Escrow Hub was notified by Richard Stine that Ming Lu was claiming the transaction was fraudulent, that she did not participate in it, and that she had not signed the grant deed that purportedly vested title in Elm LLC. Salazar Decl., ¶8. Escrow Hub attempted to recall the wire transfer of the proceeds, but the request was not honored by Bank of America. Salazar Decl., ¶9. c. Declaration of Ming Lu Ming Lu has owned the Elm Drive Property since April 2016. Lu Decl., ¶2, Ex. 1. Ming Lu briefly occupied the Elm Drive Property before using it as a rental property until around mid-2023. Lu Decl., ¶2. Subsequently, Ming Lu started some remodeling and improvements at the Elm Drive Property. Lu Decl., ¶2. On June 15, 2024, Ming Lu started living at the Elm Drive Property. Lu Decl., ¶3. On June 23, 2024, Ming Lu left the Elm Drive Property in the morning. When she returned in the afternoon, she saw a notice on the door that Palm Court was the new owner and instructing all occupants to vacate within three days. Lu Decl., ¶3. Upon further investigation, Ming Lu discovered that her name and signature appeared on a grant deed recorded on February 26, 2024, pursuant to which she purportedly transferred title and ownership of the Elm Drive Property to Elm LLC. Lu Decl., ¶4, Ex. 2. Ming Lu filed a police report with the Beverly Hills Police Department later that day. Lu Decl., ¶4, Ex. 2. The signature on that grant deed is not Ming Lus signature and she did not appear before the notary public to have her signature acknowledged. Lu Decl., ¶6. In fact, Ming Lu was not in the United States on February 13, 2024, the date on which she purportedly signed the grant deed; she was in Thailand with her family on vacation. Lu Decl., ¶6. Ming Lu did not authorize anyone to sign her name to the grant deed and did not know that it had been recorded. Lu Decl., ¶7. Ming Lu also did not know that a sale occurred until the week of June 23, 2024. Lu Decl., ¶7. Ming Lu has never held an interest in Elm LLC, does not know anyone associated with that entity, never sold her property, and did not receive any proceeds from the attempted sale of the Elm Drive Property. Lu Decl., ¶7. 2. Bank of Americas Evidence On June 27, 2024, Bank of America closed and immediately froze all funds in Elm LLCs account ending in 7346, which total $331,721.57. Watkins Decl., ¶4. Bank of America continues to hold these funds and intends to do so pending further court order, including possibly via interpleader. Watkins Decl., ¶4. Bank of America is a mere stakeholder and claims no interest in or right to the frozen funds. It is ready, willing, and able to pay these monies to the person or persons legally entitled to them. Watkins Decl., ¶5. Bank of Americas own investigation regarding the origin and disposition of the funds is ongoing. Watkins Decl., ¶5. D. Analysis Plaintiff Palm Court seeks a preliminary injunction against Defendants Elm LLC, Hai Rong, Bank of America, Gallego, and Merchants to prevent them from accessing $743,704.51 in Bank of America account number XXXXXX7346, owned by 427 South Elm, LLC. As only Defendants Elm LLC and Bank of America have been served with the TRO/OSC, the court has jurisdiction only over those two Defendants and their agents. Palm Court presents evidence that it entered into a purchase agreement with Elm LLC to buy the Elm Drive Property on or about March of 2024. The parties agreed on a $1,950,000 purchase price. An escrow was opened with Pacific Escrow but later moved to Escrow Hub. In connection with Palm Court's anticipated purchase of the Elm Drive Property, Palm Court deposited an initial $60,000 with Escrow Hub. During the course of the transaction, questions were asked by Escrow Hub concerning Ming Lu's prior conveyance of the Elm Drive Property to Elm LLC and of her interest, if any, in Elm LLC. Hai Rong provided Escrow Hub with the following items, all of which are claimed by Ming Lu to be fraudulent: (a) A statement by Long Jia, the husband of Ming Lu, in which Long Jia states that Ming Lu "knows that the property on Elm is being sold and agrees to the sale of it." (b) An "Agreement Between Lu Ming and Zhan Hai Rong" which, inter alia, states that "Lu Ming wishes to sell her house at 427 South Elm Drive.... Lu Ming wishes to sell her house through her company (427 South Elm, LLC) and wishes to use the services of Zhan Hai Rong to do this." (c) an email from Escrow Hub and FNTC in which Hai Rong attempts to justify the low sales price on the basis that Ming Lu is on Chinese government watch list, and that she is selling the Elm Drive Property because she is in default of her debts. Hai Rong deposited a grant deed in favor of Palm Court with Escrow Hub. On June 2I,2024, and in anticipation of closing, Palm Court caused additional purchase money funds to be deposited in the amount of $1,893,333.21. On June 21, 2024, FNTC wired the sum of $687,691.46 to Escrow Hub's bank, Wells Fargo Bank, for further disbursem*nt. Escrow Hub thereafter wired $743,704.51 to Elm LLC's Bank of America account. On June 21, 2024, a grant deed was recorded with Palm Court as grantee. On June 23, 2024, Ming Lu visited the Elm Drive Property to check in on the progress of improvements she was making to the home and discovered a notice on the home that Palm Court was the new owner of the Elm Drive Property and that any and all occupants had three days to vacate the premises. The next day, she filed a police report with the Beverly Hills Police Department reporting the alleged fraud. Ming Lu denies that she ever signed the Fraudulent Grant Deed, denies that she appeared before Gallego to sign the Fraudulent Grant Deed, asserts that her signature was forged thereon, and that she was not in the United States on the February 13, 2024 date the Fraudulent Grant Deed was purportedly signed by her in front of Gallego. She contends that she did not participate in the sale and did not receive any of the sale proceeds. Palm Court has presented a prima facie case of fraud by at least Defendants Elm LLC and Hai Rong in the purported acquisition and then sale of the Elm Drive Property. The result is that Palm Court has shown a probability of success on its claim for conversion of $743,704.51 that was sent to the Elm LLC account at Bank of America.[3] Bank of America opposes, but only to the extent that Palm Court asks that it hold more than the $331,721.57 currently in the account or seeks additional relief from it. The preliminary injunction will prevent access to funds in the account up to the $743,704.51 amount that is part of the sale. If there is less than that in the account, Bank of America is not required by the preliminary injunction to retrieve funds; it can only freeze the funds that are there. As for the issue of Palm Courts potential further relief against Bank of America, that is not an issue in this application. E. Conclusion The preliminary injunction is granted against Bank of America and their agents. Palm Court will be required to post a nominal bond of $100. [1] The courts look to the substance of an injunction to determine whether it is prohibitory or mandatory. Agricultural Labor Relations Bd. v. Superior Court, (1983) 149 Cal.App.3d 709, 713. A mandatory injunction one that mandates a party to affirmatively act, carries a heavy burden: [t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established. Teachers Ins. & Annuity Assoc. v. Furlotti, (1999) 70 Cal.App.4th 187, 1493. [2] However, a court may issue an injunction to maintain the status quo without a cause of action in the complaint. CCP §526(a)(3). [3] Palm Court does not address the issue of irreparable harm, but obviously a party which has been defrauded of money will suffer irreparable harm if the fraudster accesses those funds in its bank account.

Ruling

JEAN S. YANG, TRUSTEE OF THE LIVING TRUST OF JEAN S. YANG, DATED JULY 27, 2018 VS DEUK LEE

Aug 26, 2024 |21TRCV00693

Case Number: 21TRCV00693 Hearing Date: August 26, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B JEAN S. YANG, trustee of the Living Trust of Jean S. Yang, Dated July 27, 2018, Plaintiff, Case No.: 21TRCV00693 vs. [Tentative] RULING DEUK LEE, et al., Defendants. Hearing Date: August 26, 2024 Moving Parties: Plaintiff Jean S. Yang Responding Party: Defendant Deuk Lee Motion to Fix Attorneys Fees The Court considered the moving and opposition papers. RULING The motion is GRANTED. Plaintiff is awarded reasonable attorneys fees in the amount of $17,490 as against defendant Deuk Lee. BACKGROUND On September 23, 2021, plaintiff Jean S. Yang, trustee of the Living Trust of Jean S. Yang, Dated July 27, 2018, filed a complaint against Deuk Lee and all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property for (1) quiet title, (2) cancellation of cloud on title, and (3) declaratory relief. On December 3, 2021, Deuk Lee filed a cross-complaint against Mark Yang for indemnity, apportionment of fault, declaratory relief, and contribution. On February 4, 2022, a default was entered against Mark Yang on the cross-complaint. On January 27, 2024, the Court granted plaintiffs motion for summary judgment. On March 22, 2024, a default prove up hearing on the cross-complaint was scheduled but cross-complainant and counsel failed to appear and the cross-complaint was dismissed. On May 6, 2024, judgment was entered in favor of plaintiff and against defendant. On May 10, 2024, plaintiff filed a memorandum of costs. On July 1, 2024, defendant filed a notice of appeal. On July 2, 2024, plaintiff filed the herein motion for attorneys fees. LEGAL AUTHORITY CCP §1021 states: Except as attorneys fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; . . . CCP §1032(b) states: Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding. CCP §1033.5(a)(10)(A) states that attorney fees when authorized by contract are allowable as costs and may be awarded upon a noticed motion pursuant to CCP §1033.5(c)(5). The trial court has broad authority to determine the amount of a reasonable attorneys fees. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095. [T]he fee setting inquiry in California ordinarily begins with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Id. [California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.].) DISCUSSION Plaintiff Jean S. Yang, trustee of The Living Trust of Jean S. Yang, Dated July 27, 2018 requests an order fixing the amount of attorneys fees to which plaintiff is entitled as the prevailing party. Plaintiff requests $17,490 in attorneys fees. The complaint asserts three causes of action(1) quiet title, (2) cancellation of cloud on title, and (3) declaratory relief. The complaint alleges that the Trust is the owner of the real property at 2409 Ives Lane, Redondo Beach, CA 90278. Complaint, ¶6. On March 15, 2012, Mark Yang executed a promissory note (2012 Note) in the amount of $150,000, with defendant Lee as the payee. Plaintiff did not execute the 2012 Note. Id., ¶7. On April 11, 2012, defendant Lee caused to be recorded against the property a Deed of Trust with Assignment of Rents. The Trust Deed was executed by plaintiff and Mark. The Trust Deed expressly states that plaintiff and Mark granted the property to Lee in trust for the purpose of securing the payment of the 2012 Note. The preprinted form included language regarding a power of sale being granted, but the language was crossed off and thereby removed from the Trust Deed. Id., ¶8. The complaint further alleges that as of the respective dates that the 2012 Note and the Trust Deed were executed in 2012, title to the property was in the name of plaintiff as an individual. Mark was not on title to the property at that time and held no legal interest in the property. The property was considered plaintiffs separate property. Title to the property was subsequently conveyed by plaintiff to the Trust. Mark was never on title to the property, and did not hold any legal interest in the property at any time. Id., ¶9. On March 25, 2016, Mark executed another promissory note (2016 Note) in the amount of $200,000 with defendant Lee as the payee. Plaintiff did not execute the 2016 Note. Id., ¶10. The 2016 Note was intended to and did legally supersede the 2012 Note, rending the 2012 Note a nullity and no longer enforceable. The parties intended the 2016 Note to constitute a novation, thereby effectively terminating the 2012 Note. Because the Trust Deed expressly stated that it secured the 2012 Note, which was no longer enforceable, the Trust Deed was also rendered a nullity and was no longer enforceable after the parties entered into the 2016 Note. Id., ¶11. The complaint further alleges that on June 17, 2019, Lee filed a complaint against Mark (case no. 19STCV21302) for breach of contract based on Marks default under the 2016 Note. Id., ¶12. On March 11, 2020, a default judgment was entered against Mark in the amount of $240,162.21. Id., ¶13. Despite the 2012 Note having been superseded and terminated, and that Note and Deed of Trust having both been rendered invalid by the 2016 Note, Lee never reconveyed the Trust Deed. Id., ¶14. Pursuant to the one judgment rule and other legal authorities, by filing a lawsuit against Mark based solely on the 2016 Note and pursuing it to judgment, Lee irrevocably made an election to exclusively pursue his contractual remedies under the 2016 Note. Lee is therefore legally precluded from pursuing any remedy pertaining to the Trust Deed. Id., ¶15. Entitlement The Court granted plaintiffs motion for summary judgment and judgment was entered in favor of plaintiff and against defendant. The cross-complaint was dismissed. The judgment provided that: 1. The Deed of Trust with Assignment of Rents dated April 11, 2012 is deemed cancelled and no further effect; 2. The address of the property is 2409 Ives Lane, Redondo Beach, CA 90278 along with the legal description; and 3. All legal and equitable right, title, estate, and interest in the property at 2409 Ives Lane, Redondo Beach is declared to be quieted in and to The Living Trust of Jean S. Yang, Dated July 27, 2018 as to any claim by defendant. Plaintiff argues that she is the prevailing party and that the Deed of Trust with Assignment of Rents upon which she sued to cancel contains an attorneys fees clause. It states: A. To protect the security of this Deed of Trust, Trustor agrees: . . . 3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and expenses, including cost of evidence of title and attorneys fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed. In opposition, defendant argues that there is no contractual agreement or statutory authority providing for award of attorneys fees. Defendant asserts that paragraph A.3) in the Deed of Trust is not applicable because defendant did not bring the suit, and even if he did, plaintiff would have been the one to pay all costs and attorneys fees. Defendant further argues that plaintiffs reliance on reciprocity of Civil Code §1717 is misplaced in that the defendant beneficiary did not bring suit to foreclose the deed. Defendant also disputes that plaintiff is the prevailing party because she did not obtain a net monetary recovery. The Court rules as follows: The Court finds that plaintiff is the prevailing party. Further, there is an attorneys fees provision in the Deed of Trust that plaintiff sought to cancel and thus plaintiffs claims were on a contract. Further, the reciprocity clause under Civil Code §1717 applies. Civil Code §1717 (a) states: (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the prevailing party, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees. Section 1717 imposes reciprocity when a contract only authorizes attorney fees for one of the two parties to an agreement. If the other party wins a lawsuit, he or she is entitled to an attorney fee award just as if the contract term applied expressly to both. . . . Covenant Mutual Ins. Co. v. Young (1986) 179 Cal. App. 3d 318, 323. Here, plaintiff is a party to the Deed of Trust, which she signed as Trustor and the case involved security as to the Deed of Trust. Defendant did not cite to any authority that a quiet title action based on a deed of trust is not an action on a contract. Accordingly, plaintiff is entitled to reasonable attorneys fees. Reasonableness Plaintiff requests $17,490 in attorneys fees based on a $300 hourly rate. The Court reviewed plaintiffs counsels billing records at Exhibit 3 and finds that the amount requested is reasonable. The Court notes that there were several tasks where there was no charge amounting to 15.60 hours. The records also indicate that counsel spent 50.3 billable hours plus four additional hours as to the motion for attorneys fees. The motion is GRANTED. ORDER The motion is GRANTED. Plaintiff is awarded attorneys fees in the amount of $17,490 as against defendant Deuk Lee. Plaintiff is ordered to give notice of the ruling.

Ruling

Darrell Monroe, et al. vs Jesusa Fortich

Aug 22, 2024 |23CV-01829

23CV-01829 Darrell Monroe, et al. v. Jesusa FortichCase Management ConferenceAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance. Appearto address the status of the case.

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

Cheryl Baca vs. Dave Martin

Aug 19, 2024 |C23-01474

C23-01474CASE NAME: CHERYL BACA VS. DAVE MARTIN *HEARING ON MOTION IN RE: FOR PROTECTIVE ORDERFILED BY:*TENTATIVE RULING:*Off-calendar pursuant to Joint Statement filed August 9, 2024.

Ruling

GEORGETTE SHARP, AN INDIVIDUAL, ET AL. VS CLARK RESIDENCE LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.

Aug 27, 2024 |23STCV28912

Case Number: 23STCV28912 Hearing Date: August 27, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT GEORGETTE SHARP, et al., Plaintiffs, vs. CLARK RESIDENCE LIMITED PARTNERSHIP, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23STCV28912 [TENTATIVE] ORDER OVERRULING DEMURRER; DENYING MOTION TO STRIKE Dept. 48 8:30 a.m. August 27, 2024 On January 22, 2024, Plaintiffs Georgette Sharp, Isabella Smith, Afework Tesfatsion, Ronnie Sims, James Owens, Roger Woodard, Harold Dyson, and Anthony Stillwell filed a first amended complaint (FAC) against Defendants Clark Residence Limited Partnership, Abode Communities LLC, and Abode Communities. The FAC alleges (1) breach of contract; (2) breach of implied warranty of habitability; (3) breach of covenant of quiet enjoyment; (4) violation of Civil Code section 1942.4; (5) private nuisance; (6) negligence; (7) intentional infliction of emotional distress (IIED), and (8) violation of Californias Unfair Competition Law (UCL). On February 23, 2024, Defendants filed a demurrer and motion to strike. REQUEST FOR JUDICIAL NOTICE Defendants request that the Court take judicial notice of court records in three other cases (Items 1-3); settlement agreements from four other cases, including the previously identified three cases (Item 4/Exhibit A); and a settlement agreement in another case (Item 5/Exhibit B). Defendants do not provide copies of the docket or any documents in the three cases (Items 1-3). Defendants do not show the relevance of these records. The request is DENIED for Items 1-3. The request is also DENIED for Items 4-5/Exhibits A-B. The five settlement agreements are not judicially noticeable exhibits and cannot be considered on demurrer. If the FAC referred to the settlement agreements, they may be appropriate matters for judicial notice, but that is not the case here. (See Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 956 fn. 6.) Additionally, Plaintiffs dispute the validity of some signatures and dates on the settlement agreements. (See Opposition to RJN at p. 6.) Defendants own cited cases do not support taking judicial notice. (See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666 fn. 2 [taking judicial notice of settlement agreements when the complaint alleged violation of those agreements]; Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 571-573 [taking judicial notice of a settlement agreement where there was no opposition and no factual dispute that the document was genuine and accurate].) DEMURRER A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice. (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.) A. The Court Cannot Determine That Claims are Barred by Settlement Agreements or Res Judicata (Entire FAC). Defendants argue that the claims of Plaintiffs Sharp, Smith, Sims, and Stillwell are barred by prior settlement agreements. (Demurrer at pp. 2-4.) This cannot be decided without reference to external documents that are not subject to judicial notice. Defendants also argue that the FAC is uncertain as to time and some claims may be barred by the statute of limitations or res judicata due to prior settlement agreements. (Demurrer at pp. 4-5.) The FAC clearly alleges at least the years in which Plaintiffs became tenants and dates on which the housing department served Defendants with notices. (FAC ¶¶ 5, 43-45.) For the undated allegations, Plaintiffs still allege uninhabitable conditions [d]uring their respective tenancies and within the last four years. (FAC ¶¶ 30, 56.) These allegations are not so uncertain as to prevent Defendants from responding to them. The demurrer is overruled on this ground. B. Plaintiffs Sufficiently Allege IIED (Seventh Cause of Action). The seventh cause of action alleges IIED based on the conditions of the property and Defendants failure to respond to complaints. [T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendants intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendants outrageous conduct. [Citation.] Conduct, to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. [Citation.] (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259 (Huntingdon).) Liability under the rule attaches only if the actor intended or should have recognized his conduct is likely to cause the resultant harm. (Spackman v. Good (1966) 245 Cal.App.2d 518, 529.) This state has long recognized the right to recover damages for the intentional and unreasonable infliction of mental or emotional distress which results in foreseeable physical injury to plaintiff. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497 (Alcorn).) When a plaintiff does not suffer physical injury, the conduct must involve extreme and outrageous intentional invasions of ones mental and emotional tranquility. (Id. at p. 498.) Defendants argue the FAC does not allege intentional conduct. (Demurrer at pp. 5-6.) Plaintiffs allege that Defendants failed to repair habitability and safety issues after Plaintiffs complaints, and they ignored notices from the Housing Department in reckless disregard for Plaintiffs health, safety and welfare, including with respect to Plaintiffs emotional and physical distress. (FAC ¶¶ 43-44, 102.) Reckless disregard of the probability of causing emotional distress is sufficient. (Huntingdon, supra, 129 Cal.App.4th at p. 1259.) The demurrer is overruled on this ground. Defendants also argue that Plaintiffs do not allege facts for outrageous conduct or severe emotional distress. (Demurrer at pp. 6-7.) Plaintiffs allege that they suffered humiliation, mental anguish, and emotional and physical distress, and physical injuries and/or manifestations of stress caused by the above allegations and living conditions. (FAC ¶ 48, 99, 101, 103.) As a result, Plaintiffs were required to and did employ physicians and surgeons, and incurred medical expenses. (FAC ¶ 104.) The physical consequences of shock or other disturbance to the nervous system are sufficient to satisfy the requirement that plaintiff has suffered physical injury from defendants conduct. (Alcorn, supra, 2 Cal.3d at p. 498.) Plaintiffs physical injuries and/or manifestations of stress caused by Defendants conduct are sufficient physical injuries arising from emotional distress to allege a basis for IIED. The demurrer is overruled on this ground. The demurrer to the seventh cause of action is overruled. C. Plaintiffs Sufficiently Allege Unfair Business Practices (Eighth Cause of Action). Californias UCL includes any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code, § 17200.) The UCL embraces anything that can properly be called a business practice and that at the same time is forbidden by law. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable. (Ibid.; see Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969 [Virtually any law can serve as the predicate for a section 17200 action.].) Defendants argue that Plaintiffs fail to allege any specific unlawful business acts or practices by Defendants. (Demurrer at pp. 7-8.) In addition to their common law claims, Plaintiffs allege that Defendants violated Civil Code section 1942.4 by demanding and collecting rent while the property was uninhabitable (fourth cause of action). Plaintiffs alleges specific facts supporting this alleged violation. (See FAC ¶¶ 30-40, 46, 110, 112.) This sufficiently alleges a basis for unfair business practices. The demurrer is overruled on this ground. Defendants also argue that damages are not available, and Plaintiffs do not request injunctive relief. (Demurrer at p. 8.) A UCL claim is an equitable in nature. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144; Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) Plaintiffs seek disgorgement of profits as a result of the unfair business practices. (FAC ¶ 116.) [D]isgorgement is ordinarily viewed as an equitable remedy. (Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239 Cal.App.4th 882, 915.) The demurrer is overruled on this ground. The demurrer to the eighth cause of action is overruled. D. Plaintiffs Sufficiently Allege Nuisance (Fifth Cause of Action). Defendants argue that Plaintiffs nuisance cause of action is redundant of the negligence cause of action because it does not seek injunctive relief. (Demurrer at p. 9.) Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. (El Escorial Owners Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) [C]ourts have allowed plaintiffs to litigate nuisance causes of action in cases involving housing conditions. But because of the broad definition of nuisance, whether a cause of action is viable depends on the facts of each case. (Id. at p. 1348.) In the nuisance cause of action, Plaintiffs seek damages for the deprivation of the use and enjoyment of their units caused by Defendants failure to carry out necessary repairs. (FAC ¶¶ 86-87.) In the separate negligence cause of action, Plaintiffs seek damages for their emotional/physical distress, property, reputation and person caused by Defendants negligent ownership, maintenance, and compliance with codes for the property. (FAC ¶¶ 95-96.) At this stage, the Court cannot find that the nuisance and negligence causes of action are identical and duplicative. The demurrer to the fifth cause of action is overruled. MOTION TO STRIKE The court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).) Defendants seek to strike paragraphs 72, 73, 82, 89, and 106, which relate to punitive damages. Defendants argue that the FAC does not allege specific intentional conduct that rises to the level of malice. (Motion at pp. 2-5.) A plaintiff can recover punitive damages in tort cases where the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).) The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circ*mstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.] (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) Plaintiffs allege that they repeatedly notified Defendants and their agents of the uninhabitable conditions, or the conditions were obvious to Defendant[s] upon reasonable inspection, but Defendants failed to respond or adequately respond in a reasonable amount of time. (FAC ¶¶ 31, 39.) The uninhabitable conditions included co*ckroaches, flea, mite, bedbug, or other vermin infestation; windows without screens; poorly maintained bathrooms, sinks, and plumbing; inadequate and poorly maintained lighting; and lack of smoke detectors; poorly maintained electrical equipment. (FAC ¶¶ 30.) Defendants were notified of code violations after investigations by the Housing Department, but Defendants ignored the notices and did not remedy the defects. (FAC ¶¶ 43-44, 62, 77-78.) These facts, if proven, would support a finding of oppression or malice. Defendants also seek to strike the prayer for attorney fees because Plaintiffs fail to attach any such lease which evidences that either Moving Defendant is a party to this lease/contract agreement or that includes recovery for attorneys fees. (Motion at p. 5.) If the leases do not actually contain attorney fees provisions, then attorney fees cannot be awarded under contract, regardless what is pleaded. Moreover, Plaintiffs also request attorney fees under Civil Code sections 1942.4 and 1942.5, which provide a statutory basis for attorney fees. The motion to strike is denied. CONCLUSION The demurrer is OVERRULED. The motion to strike is DENIED. Defendants are ordered to file an answer within 10 days. (See California Rules of Court, rule 3.1320(j).) Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 27th day of August 2024 Hon. Thomas D. Long Judge of the Superior Court

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