What is the meaning of affidavit of service?

An Affidavit of Service, meaning the sworn statement of the process server testifying that the legal papers were delivered, how they were delivered, to whom, and when, is a detailed statement of how the documents were served .

How long do you have to file an affidavit of service in NY?

If substituted or nail and mail service were used, the affidavit of service must be filed with the County Clerk within 20 days of the date of service .

How do I file an affidavit of service in Maryland?

The court requires proof of service. The person who served the documents should fill out an affidavit of service . An affidavit is a sworn statement. They should attach the return receipt with the other party's signature if served by mail.

How do I fill out an affidavit form?

How to write a general affidavit? Title your affidavit. Don't forget to list any relevant contact or identification information that you may need to include in the heading. Write your statement. ... Verify that your information is true. ... Finalize and notarize.

What is a proof of service?

This concept is called "Proof of Service." A "Proof of Service" is a one-page document that must be attached at the back of every document filed in bankruptcy court , whether the document was filed on a docket in a bankruptcy case or in an adversary proceeding. The "Proof of Service" document is a mandatory form.

What does it mean to submit an affidavit?

Affidavit definition. An affidavit is a sworn statement put in writing . When you use an affidavit, you're claiming that the information within the document is true and correct to the best of your knowledge. Like taking an oath in court, an affidavit is only valid when you make it voluntarily and without any coercion.

Affidavit of Service with Correct Ind. No. June 30, 2021 (2024)

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Ruling

STEVEN POWERS VS MARCOS VIVIAN, ET AL.

Sep 05, 2024 |19STCV40987

Case Number: 19STCV40987 Hearing Date: September 5, 2024 Dept: 37 HEARING DATE: Thursday, September 5, 2024 CASE NUMBER: 19STCV40987 CASE NAME: Steven Powers v. Marcos Vivian, et al. MOVING PARTY: Defendants Marcos Vivian; Marquez Pacific View LLC; and US Realty Holdings, LLC OPPOSING PARTY: Plaintiff Steven Powers as Trustee under Amended and Restated Trust Agreement for R.E.I. 401(k) Trust entered into December 29, 2009 and effective as of January 1, 2009. TRIAL DATE: 8 October 2024 PROOF OF SERVICE: OK PROCEEDING: Motion for Judgment on the Pleadings OPPOSITION: 22 August 2024 REPLY: 28 August 2024 TENTATIVE: The motion for judgment on the pleadings as to the tenth cause of action is granted with leave to amend. The motion to strike is granted and denied in part. The request to strike Page 61, lines 1: 10. Reasonable attorneys fees is denied. The motion to strike the tenth cause of action is denied as moot. The request to strike the 18th cause of action beginning at page 56 (line 5 through page 59, line 12) and Paragraph 353 of the 19th cause of action is granted without leave to amend. The request to strike the following is granted without leave to amend: · Page 60, lines 20-22: 3. Non-Economic damages, including, but not limited to mental anguish, pain and suffering, and emotional distress; · Page 60, lines 23-24: 6. Injunctive Relief; · Page 61, line 2: 11. Attachment; · Page 61, line 3: 12. Appointment of a receiver; · Page 61, line 4: 13. Specific performance, including return of the real property to Plaintiff; · Page 61, line 5: 14. Equitable relief; and · Page 61, line 7: 16. Enhanced remedies under the Welfare & Institutions Code. Defendants to give notice. Background This action arises out of real estate development projects in Los Angeles, California concerning properties with assessor parcel numbers 4419-015-196, 4419-015-907, 4419-015-026, 4419-015- 022 and 4378-002-032 (the Parcels). Steven Powers, as trustee under Amended and Restated Trust Agreement for R.E.I. 401(k) Trust entered into December 29, 2009, and effective as of January 1, 2009 (Plaintiff), alleges that he is an elderly man and was fraudulently induced into entering a contract for the sale of land by Defendant Marcos Vivian (Vivian). Specifically, Plaintiff alleges that he signed a contract with Marquez Pacific View, LLC (MPV) based on Vivians misrepresentations. According to Plaintiff, this contract provided he would receive a 15% stake in the development project and land for APN 4419- 015-026, a 15% stake in the development project and land for APN 4419-015-022, and $300,000 for APN 4378-022-032. Plaintiff further alleges that contrary to MPVs and Vivians representations, the property interests were instead transferred to the defendant, Vicino Limited Partnership (Vicino). The Fourth Amended Complaint (4AC) states the following nineteen causes of action: 1) Breach of written contract against Pacific View; 2) Breach of contract against Pacific View: 3) Breach of contract against Vivian; 4) Breach of contract against Vivian: 5) Breach of contract against Asia Top City LTD (Asia Top City); 6) Breach of written contract against Vivian, Pacific View; 7) Breach of written contract against Pacific View; 8) Breach of written contract against Pacific View; 9) Breach of written contract against Vivian and Pacific View; 10) Breach of written contract against Vivian; 11) Breach of written contract against Pacific View; 12) Declaratory Relief against Asia Top City, Vivian, and Pacific View; 13) Intentional Misrepresentation against Vivian, Pacific View, and Asia Top City; 14) Concealment; against Vivian, Pacific View, Air I, LLC, and US Realty Holdings, LLC; 15) Fifteenth Cause of Action against Vivian, Pacific View, and Asia Top City; 16) Seventeenth Cause of Action against Vivian and Pacific View; 17) Fraudulent Transfer against Vivian, Bel Air I; US Realty Holdings, LLC; 18) Elder Abuse against Vivian, Pacific View and Asia Top City; and 19) Restitution from Transferee Based on Quasi-Contract or Unjust Enrichment against Vivian, Pacific Vivie, Bel Air 1, LLC, and US Realty, LLC; On February 23, 2022, the court sustained the demurrer to the 18th cause of action in the 4AC without leave to amend. On April 6, 2022, Defendant MPV filed a Cross-Complaint against Plaintiff/Cross-Defendant alleging two causes of action for Declaratory Relief. On October 15, 2024, Plaintiff filed the operative Fifth Amended Complaint (5AC) alleging the same 19 causes of action as the 4AC. Defendants now demurrer to the tenth cause of action and move to strike the 5AC. Plaintiff opposes the Motion. For the reasons stated below, the court treats the demurrer as a motion for judgment on the pleadings. motion for judgment on the pleadings[1] I. Legal Standard A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿¿ II. Request for Judicial Notice The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States, and [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code, § 452, subds. (c), (d), and (h).) Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) Defendants request judicial notice of the following: 1) The Courts July 9, 2021 Final Order on Defendants Demurrer to Plaintiffs First Amended Complaint and Motion to Strike Portions of Plaintiffs First Amended Complaint, a true and correct copy of which is attached hereto as Exhibit A. 2) The Courts January 27, 2021 Final Order on Defendants Demurrer to Plaintiffs Second Amended Complaint and Motion to Strike Portions of Plaintiffs Second Amended Complaint, a true and correct copy of which is attached hereto as Exhibit B. 3) The Courts September 30, 2021 Final Order on Defendants Demurrer to Plaintiffs Third Amended Complaint and Motion to Strike Portions of Plaintiffs Third Amended Complaint, a true and correct copy of which is attached hereto as Exhibit C. 4) The Courts February 23, 2022 Final Order on Defendants Demurrer to Plaintiffs Fourth Amended Complaint and Motion to Strike Portions of Plaintiffs Fourth Amended Complaint, a true and correct copy of which is attached hereto as Exhibit D. 5) The Tax Deed to Purchaser of Tax-Defaulted Property, executed on June 14, 2023, for the sum of $270,301.00, with respect to Assessors Parcel Number 4378-002-032 and recorded with Los Angeles County Recorder on July 6, 2023 as Document No. 20230441292, a true and correct copy of which is attached hereto as Exhibit E. 6) The Grant Deed from VWY Thermal, Inc., a Nevada corporation to Marcos Vivian, an individual, executed by VWY Thermal, Inc. on December 4, 2013 with respect to Assessors Parcel Number 4378-002-032 (as described in Schedule 1 thereto), and recorded with the Los Angeles County Recorder on January 16, 2014 as Document No. 20140052311, a true and correct copy of which is attached hereto as Exhibit F. Defendants request for judicial notice is granted. III. Discussion A. Prior Demurrer to Tenth Cause of Action was Overruled Plaintiff asserts that because on September 30, 2021 Judge Burdge overruled the demurrer to the tenth cause of action as raised in this demurrer, Defendants may not demurrer again to the tenth cause of action. (Ds RJN Ex. C [Order 09/21/2021 at p. 9 of 25].) If the demurrer is erroneously overruled, [the demurring party] is acting properly in raising the point again, at his next opportunity. If the trial judge made the former ruling himself, he is not bound by it. [Citation.] And, if the demurrer was overruled by a different judge, the trial judge is equally free to reexamine the sufficiency of the pleading. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877.) In September 2021, Defendants demurred to the tenth cause of action not on the basis that it was uncertain or insufficiently pled but on the basis that the tenth cause of action is time-barred because consideration under the October 22, 2013 OTP was due by October 31, 2013, more than four years prior to the filing of this action. (Ds RJN Ex. C at p. 7 of 25.) The previous demurrer focused on whether the 10th cause of action was time-barred, not whether it was sufficiently pled. Therefore, Defendant cannot demurrer to the 10th cause of action on similar grounds. B. CCP § 430.41(b)s Prohibition on Successive Demurrers Plaintiff also objects to the demurrer to the tenth cause of action because it violates section 430.41: A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer. (CCP § 430.41(b).) Plaintiff asserts that Defendants could have demurred to the tenth cause of action in a prior demurrer but failed to do so, thus barring this demurrer. The court agrees that Defendants are statutorily barred from demurring to the 10th cause of action on a new basis because Defendants failed to raise it in a prior demurrer. Defendants can object to the 10th cause of action by seeking a motion for judgment on the pleading because a motion for judgment on the pleading may be made on a ground not raised in an earlier demurrer. (CCP § 438(g)(2).) Although Defendants did not seek a motion for judgment on the pleading, section 438 allows the court to consider Defendants argument in a sua sponte motion for judgment on the pleadings. The court may upon its own motion grant a motion for judgment on the pleadings. (CCP § 438(b)(2).) Like a demurrer, a motion for judgment on the pleadings attacks defects disclosed on the face of the pleadings or by matters that may be judicially noticed. (Alameda County Waste Management Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5th 1162, 1174.) Therefore, the court treats the Defendants demurrer as a motion for judgment on the pleadings and considers the arguments raised on the merits. C. Tenth Cause of Action - Breach of Written Contract Entitled Offer to Purchase Dated October 22, 2012 The elements of a claim for breach of contract are: (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.) Furthermore, the complaint must [also] indicate on its face whether the contract is written, oral, or implied by conduct. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-59 citing CCP § 430.10(g).) If the action is based on alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 308.) Alternatively, a plaintiff may plead the legal effect of the contract rather than its precise language.¿ (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)¿¿[A]ll essential elements of a breach of contract cause of action [] must be pleaded with specificity.¿(Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5.) Defendants demur to the 10th cause of action for breach of contract on the basis that it is factually deficient and uncertain. The tenth cause of action alleges that Plaintiff is the successor and assign of Pierpont Investment, Inc. (5AC, ¶ 187.) Pierpont Investment, Inc. signed a contract with Defendant Vivian and his designees or assigns (Buyer) entitled OFFER TO PURCHASE on or about October 22, 2013 (hereinafter 10/22/13 Offer to Purchase) a real estate parcel having APN 4378-002-032 and known as the Bel Air Lot. (Id., ¶ 187, Ex. J.) Exhibit J of the 5AC purports to be the 10/22/13 Offer to Purchase but Exhibit J contains three contracts with varying terms. Plaintiff presents three different versions of the 10/22/13 Offer to Purchase. The first two versions of the agreement are between Defendant Vivian, an individual, and his designees or assigns as Buyer and VWY Thermal, Inc. as Seller. (5AC, Ex. J.) The third version is between Defendant Vivian, an individual, and his designees or assigns as Buyer and Pierpont Investment, Inc. as Seller. (5AC, Ex. J.) The 5AC states that Plaintiff is the assignee, successor, and transferee of the company named Pierpont Investments, Inc. and VWY Thermal Inc. regarding the rights under any contracts signed by the respective entities. (5AC, ¶¶ 8, 10.) Plaintiff states despite three contracts being attached to Exhibit J, there are only two contract versions, two contracts with version SMRH:401507419.3 which list VWY Thermal, Inc. as the Seller and one contract with version SMRH:401507419.2 which lists Pierpont Investment, Inc. as the Seller. (5AC, Ex. J.) Plaintiff explains that the reason there are two versions of the contract is because the parties wanted to ensure that there was no title break in the record history, hence the reason for the two contracts. (Opp., at p. 2:24-25.) However, this explanation is missing from the 5AC. Instead, Plaintiff points to Section 8 of SMRH:401507419.3 which clarifies the reason for the updated form of contract is to close title break but the contract itself states that the purpose is to close the title break: 8. CONDITION OF Title; Title Policy [] In connection therewith, Seller shall provide to the Title Company . . . (c) a Grant Deed, fully executed and the properly acknowledged by Pierfront Investment, Inc. a Cayman Island corporation (Pierfront), in favor of Buyer, in order to close the title break created by certain Grant Deed executed on May 21, 1998, by Home Food Services, Incorporated, a Nevada corporation, in favor of Pierfront, recorded on December 10, 1998 in the Official Records of Los Angeles Count, California . . . (5AC, Ex. J [SMRH:401507419.3]) Regardless of which version of the 10/22/13 Offer to Purchase Defendant Vivian signed, Plaintiff fails to point to the provisions of the agreement Vivian breached as the Buyer. The 5AC fails to point to or recite what provision in Exhibit J, required Defendant Vivian to develop the Bel Air Lot within a reasonable time and sell it, entitling Plaintiff to proceeds of approximately $300.000. (5AC, ¶¶ 191, 194.) The 5AC fails to point to or recite the provisions of the agreement that prohibited Vivian from transferring to the property. (5AC, ¶ 198.) Plaintiffs opposition asserts that Defendant Vivian breached Section 2 of the contract (Ex. J [SMRH:401507419.3]) which states: 2. Kicker Within thirty (30) days after the sale by Buyer of the Property for a purchase price in excess of Five Hundred Thousand Dollars ($500,000), and provided that Seller has complied with all of its post-closing obligations hereunder, Buyer shall pay to Seller an amount (the Participation Payment) equal to the difference between Three Hundred Thousand Dollars ($300,000) and the amount of property taxes and assessments outstanding as of the Closing Date, including all penalties and interests accrued on such amounts through the Closing Date. (Ex. J [SMRH:401507419.3]) In contract law, a condition precedent is either an act of a party that must be performed or an uncertain event that must happen before the contractual right accrues or the contractual duty arises. [Citations.] (Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal.App.4th 1001, 1009.) The 5AC is devoid of any allegation stating that the condition was triggered, meaning Buyer/Vivian sold the property in excess of $500,000. On the contrary, the allegations in the 5AC suggest that the condition was never triggered because Vivian transferred the property to a third party, Bel Air I, LLC, and then to US Realty LLC, constituting breaches of contract. (5AC, ¶ 198.) Accordingly, Vivians obligation to pay the Participation Payment/Kicker was never triggered. Plaintiff fails to point to or recite the provisions in Exhibit J that prohibited Vivian from transferring title to the Bel Air Property or obligated Vivian to sell the property, let alone to develop it within a reasonable time. (5AC, ¶ 191.) Moreover, Plaintiff cannot allege that sale of the Bel Air Lot to Vivian was done with the understanding that Vivian would develop the Lot and sell it within a reasonable time because the 10/22/13 Offer to Purchase states: This Agreement supersedes all prior discussions, agreements and understandings between Seller and Buyer and constitutes the entire agreement between Seller and Buyer with respect to the transaction herein contemplated. (5AC, Ex. J, § 14.) Therefore, Plaintiff fails to show that Defendant Vivian breached the 10/22/13 Offer to Purchase by transferring the Bel Air Lot to another entity. In opposition, Plaintiff asserts that Defendant Vivian triggered the Participant Payment obligation by using the Bel Air property to take out loans in excess of $500,000 and that these loans constituted sales. (Aalaei Decl., Ex. A.) Yet this allegation is not present in the 5AC. [F]acts not alleged are presumed not to exist. (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327.) Therefore, the 5AC is devoid of allegations showing that Defendant Vivian triggered the obligation to pay Plaintiff the Participation Payment and breached the agreement by failing to do so. Lastly, Plaintiff seeks to add a claim for breach of the implied covenant of good faith and fair dealing without having obtain permission to do so. Cal. Rules of Court, rule 2.112 requires that each cause of action or count be separately stated but Plaintiff impermissibly seeks to allege a breach of contract claim and a breach of the implied covenant of good faith and fair dealing in the same count based on the same facts. (See Davis v. Fresno Unified School District (2020) 57 Cal.App.5th 911, 921, fn. 5.) Therefore, to the extent that Plaintiff asserts a cause of action for breach of the implied covenant of good faith and fair dealing, the court finds the claim is improperly pled. Based on the facts above, the court agrees that the tenth cause of action is insufficiently pled and grants the motion for judgment on the pleadings with leave to amend. MOTION TO STRIKE I. Legal Standard A. Motion to Strike ¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded].)¿¿¿¿ Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ II. Discussion Defendants seek to strike portions of the tenth cause of action. Because the court grants the motion for judgment on the pleadings, the motion to strike is moot as to the tenth cause of action. Defendants also seek to strike the 18th cause of action for elder abuse (beginning at page 56, line 5 through page 59, line 12) and the 19th cause of action for unjust enrichment: Paragraph 353: Accordingly, Plaintiff seeks an order establishing Defendants as constructive trustees of the profits and property which they have unjustly received& Lastly, Defendants also seek to strike the following portions of the 5ACs Prayer for Relief: Page 60, lines 20-22: 3. Non-Economic damages, including, but not limited to mental anguish, pain and suffering, and emotional distress; Page 60, lines 23-24: 6. Injunctive Relief; Page 61, lines 1: 10. Reasonable attorneys fees; Page 61, line 2: 11. Attachment; Page 61, line 3: 12. Appointment of a receiver; Page 61, line 4: 13. Specific performance, including return of the real property to Plaintiff; Page 61, line 5: 14. Equitable relief; Page 61, line 7: 16. Enhanced remedies under the Welfare & Institutions Code. The court analyses each request to strike in turn. A. Request to Strike 18th Cause of Action: Elder Abuse Defendants move to strike the eighteenth cause of action in its entirety because the court previously sustained the demurrer to the eighteenth cause of action without leave to amend. (See Order 02/23/2022; Ds RJN Ex. D.) Plaintiffs opposition asserts that the 2/23/2022 Order is correct, and that the eighteenth cause of action should be stricken but not the request to strike attorneys fees as various contracts attached to the 4AC provide for attorneys fees. (Opp. at p. 3-22.) The eighteenth cause of action is stricken in its entirety. B. Request to Strike Portions of the 19th Cause of Action Defendants fail to explain why they seek to strike the following Paragraph for the 19th cause of action for unjust enrichment: Paragraph 353: Accordingly, Plaintiff seeks an order establishing Defendants as constructive trustees of the profits and property which they have unjustly received& Unjust enrichment is synonymous with restitution. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.) Restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but the express contract is void because it was procured by fraud or is unenforceable or ineffective for some reason. (Id.) A claim for restitution is permitted even if the party inconsistently pleads a breach of contract claim that alleges the existence of an enforceable agreement. (Id.) A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) Civ. Code sections 2223 and 2224 set forth the circ*mstances under which a constructive trust may be imposed. (Id.) Plaintiff fails to plead facts showing that the fact that Defendants obtained the Bel Air Lot without paying any consideration constitutes wrongful detention by Defendants such that they became an involuntary trustee (Civ. Code § 2223) or that Defendants wrongfully gained the property by by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act (Civ. Code § 2224.) Therefore, the court agrees that paragraph 353 should be stricken without leave to amend. C. Request to Strike Portions of the Prayer for Relief Page 61, line 5: 14. Equitable relief; Defendants assert that Plaintiffs request for equitable relief should be stricken because the court previously struck the request, finding, [t]he 4AC does not allege facts demonstrating why any of the requested equitable remedies are necessary. (Ds RJN Ex. D [02/23/2022 Order at p. 15.) The court finds that Plaintiff's 19th cause of action pleads an unjust enrichment and quasi-contract claim that remains unchallenged by Defendant and reflects Plaintiffs entitlement to equitable relief. Therefore, the request to strike Page 61, line 5: 14. Equitable relief is denied. Page 60, lines 20-22: 3. Non-Economic damages, including, but not limited to mental anguish, pain and suffering, and emotional distress; Page 61, line 7: 16. Enhanced remedies under the Welfare & Institutions Code. As stated above, Plaintiff does not challenge the correctness of the February 23, 2022 Order. On February 23, 2022, this court stated: No California case has allowed recovery for emotional distress arising solely out of property damage. (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.) [M]oreover, a preexisting contractual relationship, without more, will not support a recovery for mental suffering where the defendants tortious conduct has resulted only in economic injury to the plaintiff. (Elrich v. Menezes (1999) 21 Cal.4th 543, 544-555.) Here, the 4AC does not allege that Plaintiff suffered more than economic injury resulting from the various defendants breach of agreements between them pertaining to real estate development projects. (Order 02/23/2022.) As the cause of action for elder abuse is stricken without leave to amend, the court also strikes without leave to amend Plaintiffs request for noneconomic damages due to mental anguish as there is no cause of action supporting such a claim for relief or for the request for enhanced damages under the Welfare & Inst Code. Page 60, lines 23-24: 6. Injunctive Relief; In its February 23, 2022 Order, the court struck Plaintiffs request for injunctive relief and noted that Plaintiff failed to identify what kind of claim for injunctive relief was sought. (Ds RJN, Ex. D at p. 15 of 16.) Despite Plaintiff filing a fourth and fifth amended complaint, Plaintiff failed to allege a cause of action for injunctive relief. Therefore, the request to strike Plaintiffs request for injunctive relief is granted without leave to amend. Page 61, lines 1: 10. Reasonable attorneys fees; The court denies Defendants request to strike Plaintiffs request for attorneys fees because Defendants fail to show that none of the contracts at issue provide for attorneys fees to the prevailing party. Page 61, line 2: 11. Attachment; Page 61, line 3: 12. Appointment of a receiver; Page 61, line 4: 13. Specific performance, including return of the real property to Plaintiff; Defendants point out that on February 23, 2022, the court struck Plaintiffs request for attachment, appointment of receiver, and specific performance. (Ds RJN Ex. D.) The court noted: The FAC includes no basis for awarding any of these equitable remedies and neither does Plaintiffs opposition, which does not directly address this issue. (Id.) Despite several amendments to the pleadings, Plaintiff failed to articulate a basis for the remedies sought and Plaintiffs opposition fails to show that further amendments would be successful. Therefore, the request to strike the request for attachment, appointment of a receiver, and specific performance is granted without leave to amend. Conclusion The motion for judgment on the pleadings as to the tenth cause of action is granted with leave to amend. The motion to strike is granted and denied in part. The request to strike Page 61, lines 1: 10. Reasonable attorneys fees is denied. The motion to strike the tenth cause of action is denied as moot. The request to strike the 18th cause of action (beginning at page 56, line 5 through page 59, line 12) and Paragraph 353 of the 19th cause of action is granted without leave to amend. The request to strike the following is granted without leave to amend: · Page 60, lines 20-22: 3. Non-Economic damages, including, but not limited to mental anguish, pain and suffering, and emotional distress; · Page 60, lines 23-24: 6. Injunctive Relief; · Page 61, line 2: 11. Attachment; · Page 61, line 3: 12. Appointment of a receiver; · Page 61, line 4: 13. Specific performance, including return of the real property to Plaintiff; · Page 61, line 5: 14. Equitable relief; and · Page 61, line 7: 16. Enhanced remedies under the Welfare & Institutions Code. Defendants to give notice. [1] Pursuant to CCP § 439, the met and confer requirement has been met. (Tragish Decl., ¶ 2.)

Ruling

Sep 02, 2024 |CVPS2200696

DONALD G. FRIEDRICHSEN, II ASTRUSTEES OF THE D&L FRIEDRICHSEN Motion: Referee's FinalCVPS2200696TRUST, ESTABLISHED NOVEMBER Accounting Motion13,2020 vs RENDATentative Ruling: Granted as to recommendation by referee Singer in his May 17, 2024 report.Court to provide notice.This is a real estate partition action by Plaintiffs Donald G. Friedrichsen II and Lois Freidrichsen, asTrustees of the Don and Lois Freidrichsen Trust against Defendant Craig Renda. On September 13,2023, the parties stipulated to partition by sale pursuant to CCP §872.820. The stipulation included theagreement that a referee from Receivership Specialists would be appointed as referee with full powerto sell the real property as soon as possible for the highest available price that the market will bear, andto deposit the proceeds from sale with the court, less reasonable expenses incurred by referee, so thatthe court can then adjudicate the allocation of attorneys’ fees and costs between the respective parties,and in all respects to do those things necessary to carry out the orders of this court that have beenpreviously entered and those yet to be entered, and to make a report of his or her proceedings to thecourt.Based on the parties ‘stipulation the court entered an interlocutory judgment of partition on September15, 2023. On September 20, 2023, Kevin Singer took his oath as referee. Thereafter, on September25, 2023, the parties entered into a stipulation for an order further clarifying the partition referee KevinSinger’s duties. The stipulation, signed into order by the court, provides the following:1. Except as modified herein, the Appointing Order shall remain in full force and effect.2. Pursuant to Code of Civil Procedure section 873.010, et seq., the Referee shall have fullauthority to manage and partition by sale the Property.3. The Referee shall immediately execute and file a Referee's oath, and file the undertaking orbond required by Code of Civil Procedure section 873.0l0(b)(l) in the amount of $10,000.4. The Referee may immediately take control of the Property, together with all relateddocuments, books, records, papers, and accounts of the Parties relating to the Property, andshall manage the Property until such time as it is sold, or further order of this Court.5. Pursuant to Code of Civil procedure Section 873.510, the Referee is directed to submit areport to the Court recommending his proposed method of sale for the Property, taking intoaccount what method will be the most beneficial to the Parties (the "Sale Report"). The SaleReport shall be filed with the Court and served on the Parties. Any Party objecting to the SaleReport shall file such objections with Court and serve them on the Referee and the Parties withinten ( 10) days of service of the Sale Report. If no objections are filed, then the Referee shallproceed with partitioning the Property according to the Sale Report. If a Party objects to the SaleReport and the Referee cannot reach a mutually agreeable resolution with the Parties, then theReferee shall file a noticed motion seeking instructions from the Court as to how to proceedwith the partition.6. The Referee shall also include in the Sale Report an estimated operating budget to carry outthe partition of the Property. The Referee will consult with the Parties regarding funding theReferee Estate and provide the Parties an opportunity to provide or advance funding, ifnecessary. The Parties will be given the opportunity to fund the Referee Estate and be paid tenpercent (10%) simple interest with three (3) points for their loan. If the Parties decline to advancefunds, then the Referee may borrow funds for the Referee Estate and pay ten percent (10%)simple interest and three (3) points on the loan. This loan shall be secured by a priority Referee'sCertificate which can be recorded on the title of the Property and paid through close of escrowfor the sale of the Property.7. The Referee shall operate, manage, hire and/or terminate employees or contractors, andcontrol the Property and incur the expenses necessary in such operation, management, andcontrol in the ordinary and usual course of business, and shall do all things and incur the risksand14 obligations ordinarily incurred by owners, managers, and operators of similar properties, andno such risks or obligations so incurred shall be the personal risk or obligation of the Referee,but shall be a risk or obligation of the Property. The Referee may seek recommendations fromthe Parties regarding contractors and/or other licensed professionals who may provide servicesrelating to the Property.8. The Referee shall have the authority to enter the Property upon providing proper notice toany occupants and to evict any tenant or occupant of the Property to facilitate the sale of theProperty. Upon ex parte application and showing of good cause, including the refusal or failureof any tenant or occupant of the Property to cooperate with the Referee, a Writ of Possessionfor the Property shall be issued in favor of the Referee.9. If there is a financial hardship, the Referee is authorized, but not required, to advance fundsto relocate any Party or tenant that may be residing on the Property. Any such advance(s) willbe reimbursed through the closing of the sale.10. The Referee is authorized to place the Property for sale on the market, engage brokers andreal estate professionals, retain any marketing analysis or advertisers, and undertake any andall other duties associated with selling the Property, including executing documents necessaryfor consummation of a sale, with such sale being subject to overbid and court approval on propernotice. Based upon the Referee's evaluation of the market data, the Referee shall set an initiallisting price. The Referee shall be authorized to reduce the listing price for the Property as hedetermines is advisable to generate interest in the Property. The Property shall be sold on thebest terms and price.11. The Referee shall thereafter sell the Property in the form and manner approved by the Court,in accordance with Code of Civil Procedure Section 873.510 et seq., and shall seek Courtconfirmation of the sale. Notice of sale shall be given in the manner required for notice of saleof like properties on execution, pursuant to Code of Civil Procedure section 701.540, and shallbe given to the persons described in Code of Civil Procedure Section 873.640. In all otherrespects, notice of and procedure for sale shall be as provided in Code of Civil ProcedureSections 873.600-873.690.12. To receive the highest price for the Property, the Referee is hereby authorized to offer theProperty for sale vacant at closing by taking all actions necessary to deliver the Property clearof all occupants and/or tenants currently occupying the Property, including requesting a writ ofpossession from this Court to remove any occupants of the Property.13. On confirmation of the sale of the Property by this Court and the payment of the purchaseprice thereof, the Referee is hereby authorized and directed to execute and deliver a deed ofthe real property sold to the purchaser thereof.14. All reasonable expenses incurred in connection with the hiring and retention of authorizedpersonnel, professionals and/or counsel shall be expenses of the Property and shall be paidfrom the proceeds from the sale of the Property.15. Unless modified by subsequent order of this Court, the proceeds from the sale of theProperty shall be applied, after confirmation of the sale, as follows:a. To pay the expenses of the sale including the Referee's fees and costs.b. To pay all known lien holders, including Defendant PNC Bank, N.A., which holds a first-position lien on the Property based on a Deed of Trust recorded on September 24, 2023, in theCounty of Riverside, Instrument No. 2012-0455562, in the principal amount of $194,000.c. To pay other costs of partition incurred by either Party, to secure any cost of partition laterallowed, or to reimburse any Party for other expenses incurred relating to the Property or thepartition process, as appropriate.d. The residue shall be distributed between the Parties in proportion to their ownership interestsas follows: 50% to Plaintiff, 50% to Defendants.16. The Referee is authorized to hire, employ, retain, and terminate consultants, propertymanagers, brokers, professionals and any other personnel or employees who the Refereedeems necessary to assist him in discharging his duties. The Referee is authorized to enter intoand execute listing and brokerage agreements necessary for the management, listing, and saleof the Property.17. The Court hereby approves the following hourly billing rates: $350 for the services of KevinSinger as Referee and for principals of Receivership Specialists; $295 for Senior ProjectManagers; $250 for accountants; $185 for Project Managers; $95 for Bookkeepers; $85 forAdministrative Staff; and $55 for Messengers. In addition, the Referee shall be reimbursed forall expenses incurred by the Referee on behalf of the Property.18. The Referee, his consultants, agents, employees, and professionals may be paid from anyrents from the Property or upon closing of the sale of the Property. To be paid on such a basis,the Referee shall prepare a monthly report, beginning thirty (30) days after his appointment andfor so long as the Property shall remain in his possession or care, setting forth all receipts anddisbursem*nts, cash flows, changes in the assets in his charge, claims against the assets in hischarge, and other relevant operational issues that have occurred during the preceding month.This Referee's Report will be filed with the Court and served on all parties. Once the Referee'sReport has been filed and served, the Referee may pay his monthly invoice. Objections to eachof the Referee's statements of account, if any, shall be made within ten (10) days of notice ofthe statement. Any objection shall be made on a line-item basis with a statement of the reasonfor such objection. Failure of a Party to object within this 10-day period shall constitute a waiverof that party's objection(s) to the fees for that period.19. The Referee is authorized and empowered to use the Parties' tax identification numbers orsocial security numbers to establish a bank account at any bank the Referee deems appropriatefor the deposit of monies and funds collected and received in connection with his administrationof the Property, provided that all funds on deposit are insured by an agency of the United Statesgovernment. The Referee shall deposit any rental income from the Property into such account,and shall use the monies deposited therein to pay only those bills which are reasonable andnecessary for the operation of the Property, including the property taxes, utility bills andinsurance relating to the Property. The Referee shall obtain court approval prior to making anycapital expenditure or payment of any unsecured debt, or any payment other than thoseordinarily and necessarily incurred in the operation of the Property.20. The Referee may demand, collect, and receive any and all rents, revenues, and profits forthe Property or any part of it that are owed, unpaid, and uncollected as of the effective date ofthis order, or hereafter to become due. Any security or other deposits which any tenants havepaid to the Parties or their agents, and which are not paid to the Referee and over which theReferee has no control, shall be obligations of the Parties and may be refunded by the Refereewithout a prior order of the court if funds are available; however, the Referee is not responsiblefor refunding security deposits that are not in his possession21. The Referee shall be able to take control of all rents, deposits and funds that belong to theProperty at any bank or financial institution. If a bank or financial institution is presented with thisOrder, it shall turn over any funds to the Referee and not held liable for such actions.22. The Referee shall have no responsibility for filing federal and/or state income tax returns orfederal or state payroll tax returns and shall not be responsible for paying any unpaid federaland state payroll taxes and/or expenses of the Parties. The responsibility for such filings andpayments lies exclusively with the Parties and their agents, employees, and representatives.23. Subject to further order of this Court, the Referee may institute and prosecute all suits asmay be reasonably necessary in the Referee's judgment to protect the Property, and to defendall such suits and actions as may be instituted against the Referee.24. The Referee shall maintain adequate insurance coverage for the Property to the same extentand in the same manner as the Property has been insured, or as in the judgment of the Refereemay seem fit and proper, and to cause all presently existing policies to be amended by addingthe Referee as an additional insured within thirty (30) days of the entry of this Court Order. Ifthere is inadequate insurance, or insufficient funds to procure adequate insurance, the Refereeis directed to immediately take appropriate action to remedy the deficiency and to seek furtherinstructions from this Court regarding such deficiency. During the period in which the Propertyis uninsured or underinsured, the Referee shall not be personally responsible for any claimsarising therefrom.25. The Referee and any Party that has appeared in this action may from time to time, on an exparte basis or noticed motion on shortened time, petition this court for instructions in furtheranceof this Order and any further orders this Court may hereafter make.26. No individual or entity may sue the Referee without first obtaining the permission of 9 thisCourt. The Referee shall have judicial immunity to the fullest extent permitted under statutory10 and case law.27. The Referee shall hold the Property's net sale proceeds in his trust account. If the Partiescannot stipulate to the distribution of proceeds, the Referee shall file a regularly noticed motionwith his recommended distribution of proceeds. No later than sixty (60) days after the Referee'sduties hereunder terminate, the Referee shall file and serve the motion for approval of theReferee's final report and account and exoneration of the Referee's bond. The Referee shallgive notice of such motion to all persons known to the Referee who have potential claims againstthe Property. The motion to approve the final report and account and for discharge of theReferee shall contain a declaration or declarations:(i) stating what was done during the period of the Referee's appointment;(ii) certifying the accuracy of the final accounting;(iii) stating the basis for the termination of the Referee's appointment (such as sale of theProperty); and(iv) stating the basis for an order for the distribution of any surplus or payment of any deficit. Inaddition, the motion shall contain a summary of the accounting for the Property, which shallinclude (i) the total revenues received;(ii) the total expenditures identified and enumerated by major categories; (iii) the net amount ofany surplus or deficit; and(iv) evidence of necessary supporting facts.28. This Court's final order for distribution of the proceeds from the sale of the Property and themonies received by the Referee from the Parties and the Property during the Refereeappointment, shall include allowances for the costs of partition (including attorney's fees incurredby either Party) and for costs and attorney's fees necessarily incurred by a Party for the commonbenefit in prosecuting or defending other actions or other proceedings for the protection,confirmation, or perfection of title, setting the boundaries, or making a survey of the Property,with interest thereon from the date of making such expenditures.29. The Parties shall fully cooperate with the Referee including completing and executingdocuments as requested by the Referee.On October 6, 2023, Referee Singer filed a $10,000 bond with the court as an undertaking in this matter.On October 13, 2023, Referee Singer filed a report with the court recommending the method of sale forthe property. Thereafter, he filed reports with the court on October 26, 2023, November 29, 2023. OnDecember 14, 2023, the parties submitted a stipulation and order confirming sale of the property for$345,000, with a broker commission of 5% of $17,250 and terms and conditions of closing costs. Thestipulation was signed by the court and made an order on December 14, 2023.Thereafter, the referee filed reports on December 28, 2023, January 26, 2024, February 27, 2024 andMarch 28, 2024. On May 17, 2024, Referee Singer filed this motion for a final accounting, seekingapproval and settling of the Referee’s Final Report and Accounting, approving the final compensationand reimbursem*nt of expenses, and approving the Referee’s recommended distribution of funds.In opposition, Plaintiffs oppose the Referee’s motion to apportion attorney’s fees. The Refereerecommended an offset of fifty percent (50%), or $20,586.51 in Plaintiffs’ favor due to Defendants’conduct during the litigation. The Referee noted that Plaintiffs’ claim that Defendants’ unreasonablerefusal to engage in pre-litigation settlement negotiations was “facially plausible,” but was hesitant tofully offset Plaintiffs attorneys’ fees because much of the obstructionist conduct occurred prior to hisinvolvement. He did, however, acknowledge that this Court was better positioned to evaluate Plaintiffs’arguments. Consequently, Plaintiffs have repurposed their Motion to Apportion Attorneys’ Fees, addingadditional facts, into their opposition to support the court making a 100% offset in their favor, whichPlaintiffs assert is a fair and just result under the circ*mstances.Plaintiffs assert that this is a straightforward partition action. Defendants knew the Court was going toeventually partition the Property by sale according to Plaintiffs’ Complaint because Plaintiffs and theircounsel repeatedly explained that fact to them before this litigation commenced. Plaintiffs had anabsolute right to partition pursuant to Code of Civil Procedure section 872.010 et seq. Plaintiffs’ formercounsel made Defendants aware of this and proposed multiple options for the parties to sell the propertyand avoid litigation. Defendants failed to realistically engage in pre-litigation discussions with Plaintiffs’counsel, leaving Plaintiffs with no option but to file and prosecute the Complaint. Once litigationcommenced, Defendants retained counsel. Defendants forced both parties to incur substantialattorneys’ fees by dragging this litigation to the brink of trial despite having no defense to Plaintiffs’Complaint or any other claim against Plaintiffs.In support of their opposition, Plaintiffs submitted the declaration of Attorney Daniel Stouder whodeclares in pertinent part that 1) On May 24, 2024, he emailed counsel for Defendants to inform themthat Plaintiffs would stipulate to the Referee’s proposed distribution if Defendants were in agreement,otherwise, Plaintiffs would oppose and seek all of their attorneys’ fees. Counsel for Defendants refusedto stipulate. 2) By February 14, 2024, the deadline provided by the Referee for the parties to submitclaims for costs of partition, Plaintiffs had incurred a total of $24,945.60 in attorneys’ fees and costsfrom his firm’s representation. Since then, Plaintiffs have incurred an additional $1,445.50 in fees andcosts to prepare the opposition to the Referee’s Motion for an Order Confirming the Final Accounting.Since February 14, 2024, he has spent 0.5 hours working on and revising this Opposition andcorresponding with opposing counsel, for a total of $257.50. Danielle M. Patterson spent 3.6 hoursdrafting this Opposition, for a total of $1,188.00. 3) Plaintiffs have therefore incurred, to date, $26,391.10in attorneys’ fees and costs from his firm’s representation.Defendant Renda filed a reply to Plaintiffs’ opposition stating pointing out that while Plaintiffs’ counsel’sdeclaration set forth that Plaintiffs had incurred $24,945.60 in attorneys fees and costs as of February14, 2024, Plaintiffs submitted a claim of $41,173.02 to the receiver--$16,227.42 of which was allegedlyincurred or paid to Plaintiffs’ previous counsel without an original declaration from prior counsel.Therefore, Renda asserts that $16,227.42 of Plaintiffs’ claim should be disallowed. In addition, Rendaasserts that Plaintiffs request that the court offset 100%, or $41,173.02, in attorney’s fees and costs isnot reasonable. Renda asserts that the matter was barely litigated. There were no depositions. Theparties mutually agreed to the trial date, and neither party did anything to affect or delay the trial date.There was no settlement conference. The Defendants stipulated to the appointment of the refereewithout the need for a settlement conference, and they cooperated fully with the sale of the property.There was no trial. As the referee notes in his motion and proposed distribution, most of Plaintiffs' claimfor attorneys relates to matters before they filed their complaint. None of those fees or costs were forthe common benefit of the parties. Further, Renda asserts that Plaintiffs claim for fees incurred afterFebruary 14, 2024, is neither reasonable nor for the common benefit of the parties. Defendants’ failureto stipulate to an unfair division of the sale proceeds before the referee filed his motion does not justifyPlaintiffs filing a 15-page motion seeking additional attorneys. Defendants had no influence or controlover the referee's filing of the present motion or setting the hearing.Procedural IssuesPlaintiffs filed an objection to Defendant’s reply to their opposition, asserting that it constitutes a latefiled opposition and Defendants’ arguments should have been represented in opposition. However, it isnot an opposition, as it does not oppose the Referee’s motion in any form, but rather only opposesPlaintiffs’ opposition to the Referee’s recommendation regarding the allocation of attorney’s fees andcosts. The court will consider the reply.Evidentiary IssuesDefendant asserts that the court should strike portions of Plaintiffs’ opposition, which includesinappropriate and inadmissible evidence under Evid. Code §1152 and §1154. Renda asserts that if thecourt denies Defendants' motion to strike then the court must consider numerous additional reasons forrejecting Plaintiffs' requests. Chief among them is the fact that beginning years before they filed theircomplaint Plaintiffs had complete and exclusive control of the subject property, and all its income. Theyrefused and refuse to provide any accounting whatsoever for their management. While the case waspending, they even had the locks on the unit changed and instructed the properly manager to denyDefendants access to the property.Plaintiffs assert that Defendants’ motion to strike is improper. However, there is no proper noticedmotion before the court, and more importantly none of these “facts” were presented to the court asproper evidence for consideration, but rather only amount to unsupported argument by both parties.Accordingly, the court will only consider the “evidence” before the court in terms of the court record andfacts properly supported by declaration. The only declaration submitted merely relates to attorney’s feesincurred by Plaintiffs by their current counsel in this action.Approval of Final Report and Accounting by RefereeDefendant did not oppose any portion of the Referee’s motion. Plaintiffs oppose only the Referee’srecommendation that Plaintiffs receive a $20,586.51 offset due to attorney’s fees and costs incurred.Plaintiffs assert that they should receive an offset of all of their attorney’s fees in the amount of$42,618.52 (which includes $1,445.41 in filing its opposition to this motion).The Referee’s recommendation for the offset of attorney’s fees in the amount of $20,586.51 was basedon a proposed “Motion for Attorney’s Fees”, dated February 14, 2024, which was served on all parties,but not set as a noticed motion but rather simply presented to for the Referee’s consideration regardinga recommendation on the ultimate distribution of funds from the sale of the property.Pursuant to the clarifying stipulation of the parties regarding the Referee’s powers, the Referee wasgiven the power set forth in paragraph 28, which provides that the Referee in presenting the “final orderfor distribution of the proceeds from the sale of the Property and the monies received by the Refereefrom the Parties and the Property during the Referee appointment, shall include allowances for thecosts of partition (including attorney's fees incurred by either Party) and for costs and attorney's feesnecessarily incurred by a Party for the common benefit in prosecuting or defending other actions orother proceedings for the protection, confirmation, or perfection of title, setting the boundaries, ormaking a survey of the Property, with interest thereon from the date of making such expenditures.”(emphasis added.) Pursuant to those powers granted by both parties, the Referee has presented tothe court for final order of distribution his recommendation for allowance for attorney’s fees and coststo either party based on his assessment of what fees and costs were necessarily incurred by eitherparty for the common benefit in prosecuting or defending this action.However, while the parties granted the Referee the power (which power the court consented to andentered as part of an order) to make a recommended allocation within his final approval order regardingapportionment of attorney’s fees, ultimately such apportionment is for the court’s determination. Thecourt cannot assign to the referee its responsibility to determine the proper apportionment of fees.Further, the referee notes that the court is in the best position to determine the proper allocation ofreasonable attorney’s fees incurred for the common benefit and address any equitable basis toapportion those fees. The Referee further notes that Defendant and the opportunity to submit a claim,but failed to submit any claims against the net sale proceeds, therefore the Referee made norecommendation regarding offsets in Defendants’ favor. That being said, Referee noted that hadDefendant submitted a claim for reimbursem*nt of attorney fees and costs incurred during the partition,there would be a reasonable basis to award 50% of those fees and costs to Defendants based on theattorney’s fees incurred, but had he done so, the Referee would have found all those amounts incurredfor the common benefit and would have included those sums in the amounts to be reimbursed as a costof partition.CCP §873.810 provides that “[t]he court shall order the proceeds of sale and any security therefor to bepaid, transferred, deposited in court, placed in trust, or invested in State of California or United Statesgovernment obligations or interest-bearing accounts in an institution whose accounts are insured by anagency of the federal government, to or for the benefit of the persons in interest entitled thereto, as maybe appropriate or as specifically provided in this article.” (CCP §873.810.) The funds are currently in anEstate trust account set up by the Referee for the purposes of handling this matter. Once properlydeposited, “[t]he proceeds of sale for any property sold shall be applied in the following order: (a)Payment of the expenses of sale. (b) Payment of the other costs of partition in whole or in part or tosecure any cost of partition later allowed. (c) Payment of any liens on the property in their order ofpriority except liens which under the terms of sale are to remain on the property. (d) Distribution of theresidue among the parties in proportion to their shares as determined by the court.” (CCP §873.820.)CCP §874.010 provides that the costs of partition include: “(a) Reasonable attorney’s fees incurred orpaid by a party for the common benefit. (b) The fee and expenses of the referee. (c) The compensationprovided by contract for services of a surveyor or other person employed by the referee in the action.(d) The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon atthe legal rate from the time of payment or, if paid before commencement of the action, from the time ofcommencement of the action. (e) Other disbursem*nts or expenses determined by the court to havebeen incurred or paid for the common benefit.” (CCP §874.010.) The court is required to apportion thesecosts of partition among the parties in proportion to their interests or make such other apportionmentas may be equitable. (CCP §874.040.) “The statute's [CCP §874.040] broad language does not limitthe trial court's equitable discretion” to apportion fees based on any equitable considerations. (Lin v.Jeng (2012) 203 Cal.App.4th 1008, 1025.)“[T]he trial court may exercise its discretion in allocating fees, including setting the fee amounts anddetermining the appropriate allocation. …[I]n making these determinations the court should considerthe fees incurred by defendants as well as plaintiff, and allocate them appropriately to the extent theyare reasonable and incurred for the common benefit.” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967-968.) Appellate courts review “the trial court's orders regarding attorney fees for abuse of discretion,and its ‘decision will only be disturbed when there is no substantial evidence to support the trial court'sfindings or when there has been a miscarriage of justice.’ [Citation.]” (Orien v. Lutz (2017) 16Cal.App.5th 957, 966.)“Sections 874.010 and 874.040 provide numerous avenues for trial courts to adjust the allocation ofcosts if, for example, fees are incurred for purposes that unduly exacerbate the dispute or do not providea common benefit to all parties. For instance, under section 874.010 a court may find that fees incurred‘advocat[ing] a position of limited merit” are not for the common benefit and should be borne by theparty “pressing” such “spurious matters.” [Citation] [proper to reduce fees to plaintiff who presented “atime consuming and meritless contention that he should receive some amount greater than that to whichhe [was] legally entitled”].) Or, a court may achieve a similar result through an exercise of its equitablediscretion under section 874.040 and require a party to bear its own fees. [Citation] [equitable for plaintiffin partition action to bear her own attorney fees when she sought to prevent her siblings from obtaininginterests to which they were entitled, herself claimed an interest to which she “was well aware that shewas not entitled,” and created unnecessary procedural hurdles].) A court also can adjust the allocationof fees incurred by a party to the extent they are not “reasonable” as required by section 874.010,subdivision (a). [Citation] [reversing fee award in partition action when trial court made no determinationof reasonableness].)” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 968.)In addition, the “common benefit” in a partition action, under the statute allowing attorney's fees incurredor paid “for the common benefit,” is the proper distribution of the respective shares and interests in thesubject property by the ultimate judgment of the court; this sometimes requires that controversies belitigated to correctly determine those shares and interests, but this ultimately can be for the commonbenefit as well, and the fact that a party resists the partition does not change this. (Orien v. Lutz (2017)16 Cal.App.5th 957, 967-968.)In sum, the court approves the final report and accounting and the final compensation andreimbursem*nt of expenses to the Referee totaling $11,810.37. However, all other requests in thismotion are denied. Fees and costs to be allocated 50/50 based on the interest in the subject propertysale as recommended by the referee.

Ruling

WILSHIRE WEST MEDICAL TOWER, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS KIAN KARIMI MD, INC., ET AL.

Sep 05, 2024 |22STCV09549

Case Number: 22STCV09549 Hearing Date: September 5, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING WILSHIRE WEST MEDICAL TOWER, LLC, Plaintiff, v. KIAN KARIMI MD, INC., et al., Defendants. Case No: 22STCV09549 Hearing Date: September 5, 2024 Calendar Number: 4 Plaintiff and Cross-Defendant Wilshire West Medical tower, LLC (Wilshire) and Cross-Defendant Boulevard Investment Group (Boulevard) (collectively, Cross-Defendants) have filed this demurrer. Cross-Defendants demur to the first four causes of action in the First Amended Cross-Complaint (FACC) asserted against them by Defendants and Cross-Complainants Kian Karimi MD, Inc. (KKM) and Kian Karimi, M.D. (Dr. Karimi) (collectively, the Karimi Parties). Cross-Defendants additionally move to strike certain portions of the FACC. The Court SUSTAINS the demurrer WITHOUT LEAVE TO AMEND. The Court GRANTS the motion to strike. Background This is a real estate case. The following facts are taken from the allegations of the FACC and from Cross-Complainants summary judgment motion which they filed in their capacity as defendants and on which they prevailed. On May 1, 2021, KKM entered a lease agreement (the Lease) with Wilshire to rent the premises located at 11645 Wilshire Blvd, Suite 1100, Los Angeles, CA 90025 (the Property). Dr. Karimi is a guarantor for KKM under the Lease. Boulevard is Wilshires property manager. Wilshire alleged in its complaint that KKM breached the lease by abandoning the premises; Wilshire alleged Dr. Karimi breached the guarantee agreement. The Court previously granted summary judgment in favor of the Karimi Parties on the complaint on the basis that the Lease had been terminated. The Lease provides that [t]his Lease contains the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any previous negotiations &. [t]his Lease may not be modified except by a written document executed by the parties hereto. (Lease, pp. 16-17, Sections 37.17-37.18.) The Karimi Parties intended to operate an ambulatory surgery center at the Property where surgery could be performed on patients. Construction work on the Property was necessary to attain this function. (Undisputed Material Fact (UMF) 1; Karimi Decl., Exh. A (Lease) Exhibit C (Work Agreement), Section 1.5.) The Lease included a Work Agreement (Lease, Exh. C) which is incorporated into the Lease. (UMF 1; Lease, Section 7.1, Exh. C.) Under the Work Agreement, Wilshire was obligated to construct tenant improvements to the Property at a cost of up to $299,355.00 (the Tenant Improvement Allowance). (Work Agreement, Section 1.1.) Before entering into the Lease, on around February 19, 2021, Wilshire provided Dr. Karimi with plans and a 2018 construction bid for a prior prospective tenant of the Property, Murtaza Rizvi, M.D. (UMF 3.) The bid for Dr. Rizvis planned improvements for the entire Property was $367,947. (UMF 3.) The Work Agreement provided that Wilshires interior architect, the Borsuk Company (Borsuk) would submit a Preliminary Space Plan (PSP) to KKM and Wilshire for review. (Work Agreement, Sections 2.2, 2.4.) The PSP was required to itemize the work to be done by each party, including a cost excess of any work that Wilshire would conduct in excess of the Tenant Improvement Allowance. (Work Agreement, Section 2.3.) KKM was then obligated to either approve the PSP and preliminary cost estimate or specify its objections thereto within 10 days of its receipt of the PSP. (Work Agreement, Section 2.5.) Under the Work Agreement, if KKM rejected any part of the PSP, the parties would have 10 days to attempt in good faith to modify the PSP to their mutual satisfaction. (Work Agreement, Section 2.6) If the PSP could not be modified to Wilshire and KKMs mutual satisfaction, the Lease [would] terminate and neither party [would] thereafter be obligated to the other party for any reason whatsoever having to do with [the] Lease. (Work Agreement, Section 2.6.) According to the plan, the construction would be carried out in two phases, Phase 1 and Phase 2. Wilshire submitted a declaration stating that during the summer of 2021, Dr. Karimi requested that the scope of the PSP be limited to only Phase 1 so that The Karimi Parties could occupy the Property more quickly and begin treating patients sooner. On December 8, 2021, Wilshire provided the Karimi Parties with (1) Mancilla Construction Contract No. 3045-B for Tenant Improvement (the Mancilla Bid); (2) Mancillas Bid Addendum #1 for Phase 1 (Addendum #1); and (3) Boruks plan drawings for Phase 1 (the Borsuk Drawings) (collectively, the December 8 Documents). The Mancilla Bid estimated a total price of $585,207.05. The Mancilla Bid contained a clause stating as follows: NOTICE OF CANCELLATION: CONTRACT CANCELABLE FOR 72 HOURS FOLLOWING DATE OF ACCEPTANCE BY CONTRACT BUYER[.] Wilshire contends that the December 8 Documents constituted a PSP under the Lease; Defendants contend that they do not. On December 8, 2021, Dr. Karimi initialed each page of the Mancilla Bid and signed the last page. Cross-complainants contend that Dr. Karimi initially mistakenly believed that the Mancilla Bid, for $585,207.05, was for the entire project, but later realized that it was for Phase 1 only. On December 10, 2021, Dr. Karimi sent an email to Edward Hudson and Cody Powers, individuals associated with Wilshire, stating that due to the unexpectedly high cost, he decided not to approve the bids for the buildout of [the Property] and stating that the bids and the plans are not approved. On December 11, 2021, Dr. Karimi sent another email to Martha Garcia, Wilshires manager of the property, with copies to Powers and Borsuk, stating his intent pause everything and for Gracia to disregard the signed bids and plans that Karimi had sent. On February 1, 2022, Dr. Karimi sent Wilshire a formal Rejection, Cancellation and Notice of Termination, stating the position that the Lease had been terminated. The Karimi Parties never moved into the premises and never paid rent on the Lease. Wilshire filed the Complaint against the Karimi Parties on March 18, 2022, stating claims for (1) breach of contract; (2) abandoning the premises; and (3) breach of guarantee agreement. The Karimi Parties moved for summary judgment as to the Complaint on August 31, 2023. On November 7, 2023, the Karimi Parties filed the Cross-Complaint, raising claims for (1) breach of contract; (2) negligence; (3) intentional misrepresentation; (4) breach of fiduciary duty; and (5) declaratory relief. On December 28, 2023, the Court granted the Karimi Parties motion for summary judgment as to Wilshires complaint. The Court explicitly found that the Lease was cancelled by December 11, 2021 because Dr. Karimi sent two emails, one on December 10, 2021 and one on December 11, 2021, indicating to Wilshire that he was cancelling the Lease. The Court found that, because the Lease had been cancelled, the Karimi Parties were entitled to summary judgment. (The summary judgment order contains a typographical error recording these dates as 2023 instead of 2021; the Court expects to correct that error.) The Court originally set trial in this matter for September 25, 2023, and continued it to June 3, 2024. On May 2, 2024, the Court continued trial again to December 9, 2024, but ordered that all deadlines remain based on the original trial dates. On May 21, 2024, the Court granted judgment on the pleadings for Cross-Defendants on the Karimi Parties Cross-Complaint with leave to amend as to the first three claims, and without leave to amend as to the fourth claim for breach of fiduciary duty. On June 20, 2024, the Karimi Parties filed the FACC, raising claims for (1) breach of contract; (2) negligent misrepresentation; (3) intentional misrepresentation; (4) breach of fiduciary duty; and (5) declaratory relief. Legal Standard The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of action. (d) There is a defect or misjoinder of parties. (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (h) No certificate was filed as required by Section 411.35. (Code Civ. Proc., § 430.10.) As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Discussion Judicial Estoppel As a preliminary matter, the Court makes the determination that it is appropriate to rely on the Karimi Parties position, taken in their summary judgment motion, that the Lease was terminated by either the December 10, 2021 or December 11, 2021 emails to Wilshire stating that the lease was being terminated. Judicial estoppel applies when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 826827.) Because of its harsh consequences, the [judicial estoppel] doctrine should be applied with caution and limited to egregious circ*mstances. (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 47; see also Minish v. Hanuman Fellowship (2013) 214 Cal. App. 4th 437, 449 [because judicial estoppel is an extraordinary and equitable remedy that can impinge on the truth-seeking function of the court and produce harsh consequences, it must be applied with caution and limited to egregious circ*mstances&.].) The Karimi Parties prevailed on the summary judgment motion because the Court accepted their position that they had terminated the Lease. The Karimi Parties therefore cannot take the position that the Lease was not terminated by December 11, 2021. The Karimi Parties argue that judicial estoppel is not proper at the pleading stage. They provide no authority in support of this assertion. Judicial Admissions Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746, as modified (Nov. 20, 2009).) Facts established by pleadings as judicial admissions are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her. [Citation.] (Ibid.) The Court therefore treats the factual allegations of the Cross-Complaint as judicial admissions. The Karimi Parties may not contradict those allegations in the FACC. Breach of Contract First Cause of Action To state a cause of action for breach of contract, a plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The Karimi Parties allege that Cross-Defendants breached the Lease by failing to provide a proper PSP. The Karimi Parties allege that the documents that Cross-Defendants provided on December 8 were not a proper PSP. The Court agreed in its order on the Karimi Parties motion for summary judgment that Cross-Defendants had not provided a proper PSP. However, the Court finds that Cross-Defendants did not breach the lease because the Karimi Parties canceled the Lease without giving Cross-Defendants an opportunity to cure. The Lease is attached to the FACC as Exhibit A. Under the Lease, Wilshire may not be deemed to be in default unless it is provided written notice of any failure to perform and given 30 days to cure. (Lease § 20.1.) The original Cross-Complaint alleged that Dr. Karimi gave Wilshire notice of the default on December 10, 2021. (Cross Complaint at p. 8:18-20.) However, the Cross-Complaint also states that [o]n December 10, 2021 & Dr. Karimi immediately notified [Wilshire] in writing that Karimi & was exercising its rights under paragraph 2.5 of Exhibit C to the Lease to terminate the Lease and Guaranty. (Cross-Complaint at pp. 7:26-8:3.) If the PSP could not be modified to Wilshire and KKMs mutual satisfaction, the Lease [would] terminate and neither party [would] thereafter be obligated to the other party for any reason whatsoever having to do with [the] Lease. (Work Agreement, Section 2.6.) Because they plead that the Lease was terminated on December 10, 2021, the unavoidable inference that follows is that Wilshire had no further obligation under the lease including no obligation to cure default. The Court previously granted leave to amend because the Karimi Parties argued that they could clarify their allegations as to the termination in a manner that allows them to plead the breach of contract claim. They have not done so. They now contend that they may allege the Cross-Defendants breached the Lease as an alternative theory to the theory that Dr. Karimi terminated the Lease by December 11, 2023. The problem is that this requires not just an alternative legal theory, but alternative facts. The Karimi Parties cannot use the concept of pleading alternative legal theories to get around the very factual contentions that won them their summary judgment motion. An opportunity to amend has failed to cure the defects in this claim. The Court determines the further amendment would be futile. Accordingly, the Court sustains the demurrer to this claim without leave to amend. Negligent Misrepresentation Second Cause of Action As the Court explained in its order on the motion for judgment on the pleadings, the Karimi Parties did not raise a claim for negligent misrepresentation in the original Cross-Complaint. The Courts grant of leave to amend did not include leave to raise a new claim for negligent misrepresentation. A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading. (Code Civ. Proc., § 472, subd. (a).) The Karimi Parties amendment to include this new claim was not timely and was not authorized by the Court. The Court therefore grants the motion to strike as to this claim. This claim is based on the same alleged misrepresentations as the Karimi Parties intentional misrepresentation claim. As discussed below, the Karimi Parties have failed to adequately plead the misrepresentations in question despite the opportunity for amendment. The Court therefore determines that granting leave to amend for this claim would be futile. The Court, as a second basis for its ruling on this claim, sustains the demurrer to this claim without leave to amend. Intentional Misrepresentation Third Cause of Action The elements of a cause of action for intentional misrepresentation are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce anothers reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of liberal construction of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) The Karimi Parties have specifically pleaded who made the representations in question, when and where they were made, and to whom the representations were made. (Cross Complaint pp. 3:3-4:14.) However, the representations themselves that the Property was suitable for a surgery center and that the necessary upgrades would fall within a certain price range do not support a fraud claim. Cost Projections Cost projections generally cannot form a basis for a fraud claim. Statements of opinion and future projections generally cannot constitute fraud. (Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 211.) Cross-Defendants alleged representations do not even constitute a bid on Defendants own construction plans Defendants merely allege that Cross-Defendants told Defendants a bid price that a previous prospective tenant had obtained and stated that Defendants upgrade costs would be similar. (FACC ¶ 55.) The Karimi Parties contend that grossly inaccurate estimates can form the basis for a fraud claim. (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1241-1242.) However, in Thrifty Payless, Inc., the defendant landlord had issued a Letter of Intent to the plaintiff business detailing specific property tax values, insurance premiums, and common area maintenance fee amounts that the plaintiff would have to pay. (Id. at pp. 1234-1235.) The actual amounts that the defendant charged to the plaintiff were well in excess of what the defendant had stated it expected to charge. (Id. at p. 1235.) Here, Cross-Defendants did not formulate the example bid. The example bids were formulated by third-party construction companies contacted by previous potential tenants, none of whom are parties to this action. Cross-Defendants merely pointed Defendants to those bids as examples. This is not the type of grossly inaccurate estimate that can form the basis for fraud. Furthermore, the Lease had a built-in escape valve for precisely such a situation as this one where the actual costs exceeded expectations. Defendants were permitted to cancel the Lease, a right which they exercised. Similarly, Cross-Defendants alleged representations that the Karimi Parties intended improvements would go smoothly are not actionable. Statements of opinion and future projections generally cannot constitute fraud. (Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 211.) Defects in the Premises The representation that the Property was suitable for the kind of surgery center Dr. Karimi wanted to build is not specific enough. The Karimi Parties must plead the specific representations about the state of the property e.g. its size, amenities, etc. that were untrue. Suitability for a surgery center could refer to any number of things, and does not give Cross-Defendants adequate notice of the representations at issue. The Karimi Parties do allege specific defects which existed leaking water tanks, HVAC problems, electrical problems, fumes seeping in from a nearby dental office, and an ongoing investigation by the County Department of Health. However, they do not adequately allege that Cross-Defendants made representations about either of these facts. The Karimi Parties allege that two previous potential tenants declined to move forward with renting the Property due to these reasons, but that Cross-Defendants instead represented that the reasons the potential tenants had not gone forward were unrelated and innocuous reasons. the Karimi Parties allege no facts indicating that Cross-Defendants would have known the potential tenants reasons for choosing other locations. The Karimi Parties do not allege that the potential tenants told Cross-Defendants why they chose not to lease the Property, nor do they allege any other reason why Cross-Defendants would have known the potential tenants true motivations. The Court previously granted leave to amend this claim. Amendment has not cured the claims defects. The Court sustains the demurrer without leave to amend with respect to this claim. Breach of Fiduciary Duty Fourth Cause of Action The Court previously granted judgment on the pleadings as to this claim without leave to amend. The Court grants the motion to strike this claim.

Ruling

Olsen, Erik K. vs. Cooper, Craig

Sep 16, 2024 |S-CV-0049554

S-CV-0049554 Olsen, Erik K. vs. Cooper, Craig** NOTE: telephonic appearances are strongly encouragedAppearance required. Cross Complaint of Cooper [filed 2/24/23] is not atissue. Need responsive pleading, default or dismissal as to Cross Defendant(s):Eric K. Olsen; Eugenie L. Olsen

Ruling

P.J. McAuliffe Family Partnership, L.P. vs. The Testate or Intestate Successors of Nora McAuliffe, et al.

Sep 03, 2024 |23CV-0202994

SUCCESSORS OF NORA MCAULIFFE, ET AL.Case Number: 23CV-0202994Tentative Ruling on Motion for Judgment on the Pleadings: This is an action to quiet title todormant mineral rights. Plaintiff P.J. McAuliffe Family Partnership, LP brings this motion forjudgment on the pleadings against Defendant John P. “Jack” McAuliffe pursuant to Code of CivilProcedure section 43(c)(1)(A). Plaintiff argues that the First Amended Complaint (FAC) statesfacts sufficient to constitute a cause or causes of action against the Defendant and the Answer doesnot state facts sufficient to constitute a defense to the complaint. The motion is unopposed.Meet and Confer: “The moving party shall file and serve with the motion for judgment on thepleadings a declaration stating” the attempts made to meet and confer. CCP § 439(a)(3). TheDeclaration of Michael Ricks provides sufficient evidence of Plaintiff’s meet and confer efforts.Request for Judicial Notice: The Court GRANTS Plaintiff’s request for judicial notice of the priorOrders in this case, and that certain requests were deemed admitted pursuant to this Court’s Order,pursuant to Evid. Code § 452(d) and 453.Merits of Motion: CCP § 438(c)(1)(A) provides a plaintiff may move for judgment on thepleadings if the complaint states sufficient facts to constitute a cause of action and the answer doesnot state facts sufficient to constitute a defense to the complaint. The grounds for the motion shallappear on the face of the challenged pleading or from any other matter of which the court may takejudicial notice. CCP § 438(d). The Court may take judicial notice of responses to discoveryrecords pursuant to Evidence Code §§ 452(d) and 453. Arce v. Kaiser Foundation Health Plan,Inc. (2010) 181 Cal.App.4th 471, 485. A motion for judgment on the pleadings has the samefunction as a general demurrer but is made after the time for demurrer has expired. Except asprovided by CCP § 438, the rules governing demurrers apply. Cloud v. Northrop Grumman Corp.(1998) 67 CA4th 995, 999.Plaintiff’s First Amended Complaint is the operative pleading. It alleges causes of action for: 1)Quiet Title Against or Termination of Dormant Mineral rights Pursuant to Civ. Code 883.110, etseq., 2) Common Law Abandonment of Mineral Rights, 3) Declaratory Relief.First Cause of Action: Quiet Title or Termination of Dormant Mineral Rights. The owner of realproperty subject to a mineral right may bring an action to terminate the mineral right pursuant tothis article if the mineral right is dormant. Cal. Civ. Code § 883.210. A mineral right is dormantif all of the following conditions are satisfied for a period of 20 years immediately precedingcommencement of the action to terminate the mineral right: (a) There is no production of theminerals and no exploration, drilling, mining, development, or other operations that affect theminerals, whether on or below the surface of the real property or on other property, whether or notunitized or pooled with the real property; (b) No separate property tax assessment is made of themineral right or, if made, no taxes are paid on the assessment; (c) No instrument creating,reserving, transferring, or otherwise evidencing the mineral right is recorded. Cal. Civ. Code §883.220. Plaintiff’s FAC alleges the required conditions have been satisfied. (FAC ¶¶2, 36-39.)Defendant filed a document entitled “Request for Dismissal” on September 20, 2023. The partiesstipulated orally before the Court on March 24, 2024, that this document is deemed the Answerfor both the Original Complaint and the First Amended Complaint. The Answer acknowledgeselement Cal. Civ. Code § 883.220(a) is true and does not address elements (b) or (c). No defensehas been raised. Plaintiff is therefore entitled to judgment on the pleadings as to the First Causeof Action.Second Cause of Action: Common Law Abandonment of Mineral Rights. “Actions to quiet title,like true declaratory relief actions, are generally equitable in nature. A quiet title action is astatutory action that seeks to declare the rights of the parties in realty. The object of the action isto finally settle and determine, as between the parties, all conflicting claims to the property incontroversy, and to decree to each such interest or estate therein as he may be entitled to. Thepurpose of a quiet title action is to determine any adverse claim to the property that the defendantmay assert, and to declare and define any interest held by the defendant, so that the plaintiff mayhave a decree finally adjudicating the extent of his own interest in the property in controversy.”Weeden v. Hoffman (2021) 70 Cal. App. 5th 269, 291 (internal citations omitted).The Supreme Court of California has held that mineral rights are a type of perpetual profit aprendre, which, like easem*nts, are subject to abandonment. Gerhard v. Stephens (1968) 68 Cal.2d 864, 880. “If interests in real property can be and are abandoned, they do not become, as in thecase of personal property, the property of the first appropriator, but instead return to the estate outof which they were carved. The abandonment of a profit a prendre, therefore, because the profitin essence is an easem*nt, does not become subject to the void in ownership that the common lawof land title sought to avoid. If a perpetual right of way or other easem*nt is abandoned, theproperty interest reverts to the servient estate. Similarly, a perpetual right to remove oil and gaswould ordinarily revert to the surface estate, thereby freeing that estate of its burden and permittingits owner more complete utilization and enjoyment of his property.” Id. at 887 (internal citationsomitted).Plaintiff’s FAC alleges Defendants have not produced or attempted to produce the mineral rightsor recorded any instrument evidencing their intention to retain the rights since the 1972 Deed wasrecorded. (FAC ¶ 41.) Plaintiff’s FAC alleges that due to the nonuse and failure to evidence anyintention of retaining the mineral rights, Defendants intended to abandon them. (FAC ¶ 42.)Defendant’s Answer indicates an intent to maintain the mineral rights. (Answer ln.16-18.)However, in its January 25, 2024 Order, this Court deemed admitted Plaintiffs Requests forAdmission, Set One. These admissions establish that Plaintiff conveyed any rights or interestsincluding but not limited to mineral rights in the real property at issue on April 4, 2012. Theadmissions further establish that since April 4, 2012, Defendant has not acquired any rights orinterests, including but not limited to mineral rights, to the real property at issue. These admissionsestablish that Defendant has conveyed any claimed interest in the disputed mineral rights at issue.This does not squarely establish a claim for common law abandonment. Nonetheless, theadmissions do establish that the equitable relief sought by Plaintiff is appropriate.Third Cause of Action: Declaratory Relief. Plaintiffs allege a cause of action for declaratory relief.Declaratory relief is an equitable remedy, not a cause of action. Faunce v. Cate (2013) 222 Cal.App. 4th 166, 173. Plaintiff seeks this Court’s determination that Defendant’s mineral rights inthe subject property have terminated, and have been abandoned, and have therefore merged withthe fee interest in the Property. Based on the foregoing discussion of Plaintiff’s First Cause ofAction for Termination of Dormant Mineral Rights, as well as the Second Cause of Action forAbandonment, the Court finds that Plaintiff is entitled to the relief sought. Additionally, the Courtnotes that its prior Order, dated July 8, 2024, imposed an issue sanction establishing that Defendantindividually and as Trustee of the Leonore McAuliffe 1993 Trust, has no interest in any mineralrights in the Property identified in ¶ 2 of the First Amended Complaint.Where a motion for judgment on the pleadings is granted as to the complaint, the Court normallygrants the opposing side leave to amend its answer unless it appears from the pleadings thatamendment is incapable of otherwise affecting the outcome. Given not just the deficiencies ofMcAuliffe’s answer, but also the Court’s judicially noticed prior orders confirming McAuliffe hasno mineral rights in the property, the Court finds that no amendment will affect the Court’s rulingon this Motion for Judgment on the Pleadings. Leave to amend is therefore not indicated.Plaintiff’s Motion for Judgment on the pleadings is GRANTED without leave to amend. Aproposed order has been lodged with the Court and will be executed.

Ruling

HARRY GINOZA VS INVESTOR PARTNERS, INC.

Sep 04, 2024 |23STCV08246

Case Number: 23STCV08246 Hearing Date: September 4, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING HARRY GINOZA, vs. INVESTMENT PARTNERS, INC. Case No.: 23STCV08246 Hearing Date: September 4, 2024 Plaintiff Harry Ginozas unopposed motion for an order to substitute Plaintiffs niece, Linda Ginoza-Grovier, in place and stead of Plaintiff Harry Ginoza is continued to September 25, 2024, at 8:30 a.m. Plaintiff is to file Exhibit A to the Declaration of Ginoza-Grovier by September 6, 2024. Plaintiff Harry Ginoza (Ginoza) (Plaintiff) moves unopposed for an order granting his niece, Linda Ginoza-Grovier (Ginoza-Grovier), who is the trustee of the Harry Ginoza Trust, be substituted in as Plaintiff in place and stead of Ginoza. (Notice Motion, pgs. 1-2; C.C.P. §377.32.) Plaintiff moves on the grounds that Ginoza died during the pendency of this action and Ginoza-Grovier is Ginozas successor-in-interest as trustee of the Harry Ginoza Trust. (Notice Motion, pg. 2.) Procedural History Plaintiff filed his operative Complaint on April 13, 2023, against Defendant Investor Partners, Inc. (Investor Partners) (Defendant) for five causes of action: (1) cancellation of written instruments; (2) declaratory relief; (3) quiet title; (4) fraud; and (5) breach of fiduciary duty. Plaintiff died on October 15, 2023. (Decl. of Ginoza-Grovier ¶2.) Plaintiff filed the instant motion on May 16, 2024. As of the date of this hearing no opposition has been filed. Legal Standard C.C.P. §377.32 provides the following information is required for a statement from a successor in interest: (a) The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedents successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following: (1) The decedents name. (2) The date and place of the decedents death. (3) No proceeding is now pending in California for administration of the decedents estate. (4) If the decedents estate was administered, a copy of the final order showing the distribution of the decedents cause of action to the successor in interest. (5) Either of the following, as appropriate, with facts in support thereof: (A) The affiant or declarant is the decedents successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedents interest in the action or proceeding. (B) The affiant or declarant is authorized to act on behalf of the decedents successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent's interest in the action or proceeding. (6) No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding. (7) The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact. (c) A certified copy of the decedents death certificate shall be attached to the affidavit or declaration. (C.C.P. §377.32.) Discussion Ginoza-Grovier executed and filed an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following: (1) the decedents name (Decl. of Ginoza-Grovier ¶2); (2) the date and place of the decedents death (id.); (3) No proceeding is now pending in California for administration of the decedents estate (id. at ¶3); (5A) The affiant or declarant is the decedents successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedents interest in the action or proceeding (id. at ¶¶4-5); (6) No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding (id. at ¶6); and (7) The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct (id. at pg. 3). However, Plaintiff fails to attach a certified copy of the decedents death certificate to her declaration in violation of C.C.P. §377.32(c). (See Decl. of Ginoza-Grovier ¶7) Plaintiffs motion is continued to September 25, 2024, at 8:30 a.m. to allow Plaintiff to attach Exhibit A to the Declaration of Ginoza-Grovier. Plaintiff is to file Exhibit A to the Declaration of Ginoza-Grovier by September 6, 2024. Conclusion Plaintiffs unopposed motion is continued to September 25, 2024, at 8:30 a.m. to allow Plaintiff to attach Exhibit A to the Declaration of Ginoza-Grovier. Plaintiff is to file Exhibit A to the Declaration of Ginoza-Grovier by September 6, 2024. Moving Party to give notice. Dated: September _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

Ruling

Anne Elyse Selzer vs Max A Selzer et al

Sep 12, 2024 |Judge Colleen K. Sterne |24CV01365

Appearances are required to update the court. This case will be heard concurrently with 24PR00124.

Ruling

FCS059299 - SHARMA, R V GOMEZ, LUIS R, ET AL (DMS)

Sep 04, 2024 |FCS059299

FCS059299SHARMA’s Demurrer to GOMEZ’s First Amended Cross-ComplaintTENTATIVE RULINGPlaintiff and Cross-Defendant RAJ SHARMA (“SHARMA”) demurs to Defendant andCross-Complainant LUIS R. GOMEZ’s (“GOMEZ”) first amended cross-complaint(“GOMEZ 1ACC”) asserting causes of action for indemnity under Labor Code section2802, failure to provide itemized wage statements under Labor Code section 226, andcommon law indemnity. Summarized, SHARMA’s first amended complaint in this casealleges that GOMEZ refuses to remove his construction equipment and debris presenton and damaging SHARMA’s agricultural land; the GOMEZ 1ACC alleges that GOMEZwas SHARMA’s employee by oral agreement and SHARMA committed labor lawviolations.Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency ofthe complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather thanevidentiary facts, but the plaintiff must set forth the essential facts of his or her case“with reasonable precision and with particularity sufficient to acquaint [the] defendantwith the nature, source and extent” of the plaintiff’s claim. (Doheny Park TerraceHomeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007)42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The court “assume[s] the truth ofthe allegations in the complaint, but do[es] not assume the truth of contentions,deductions, or conclusions of law.” (California Logistics, Inc. v. State of California(2008) 161 Cal.App.4th 242, 247.)Labor Code Section 2802 Indemnification. The GOMEZ 1ACC’s first cause of actionis for indemnification pursuant to Labor Code section 2802. The elements of such acause of action are (1) the employee made expenditures or suffered losses, (2) theexpenditures or losses were incurred in direct consequence of the employee’sdischarge of his duties or obedience to the directions of his employer, and (3) theexpenditures or losses were necessary. (Lab. Code, § 2802, subd. (a); Cassady v.Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220, 231.)GOMEZ does not sufficiently allege this cause of action. The GOMEZ 1ACC containsonly a conclusory allegation that he was SHARMA’s employee, without sufficient factualdetail to demonstrate in what way SHARMA functioned as an employer. (Martinez v.Combs (2010) 49 Cal.4th 35 [to employ for wage & hour purposes is to control work,permit to work, or engage for work].) Further, to maintain this cause of action anemployee must show that expenditures were incurred in consequence of work dutiesand/or directions and were necessary. Without information as to what GOMEZ’s workduties and/or directions were these elements are not sufficiently alleged. Nor doesGOMEZ clearly state expenditures or losses. He states only that he “suffered and/orwill suffer damages.” (GOMEZ 1ACC at ¶ 9.)Itemized Wage Statements. Labor Code section 226, subdivision (a) requiresemployers to furnish their employees with itemized wage statements showing details ofwages such as hours worked and pay rates for those hours. (Furry v. East BayPublishing, LLC (2018) 30 Cal.App.5th 1072, 1083.) As stated, GOMEZ’s allegations ofemployment under SHARMA are insufficient.Common Law Indemnification. The GOMEZ 1ACC states neither a loss to beindemnified against nor an agreement under which SHARMA must contractuallyindemnify GOMEZ or a situation wherein the two are joint tortfeasors entitled toequitable indemnity as regards each other. (Great Western Drywall, Inc. v. InterstateFire & Casualty Co. (2008) 161 Cal.App.4th 1033, 1041 [requirements for indemnity].)Leave to Amend. Leave to amend is proper where identified defects are amenable tocure. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) It is the pleading party’sburden to show the trial court that a reasonable possibility exists that amendment cancure identified defects in that party’s pleading. (Murphy v. Twitter, Inc. (2018) 60Cal.App.5th 12, 42.) GOMEZ’s filings demonstrate a reasonable possibility thatamendment can cure the identified defects in the GOMEZ 1ACC.Conclusion. SHARMA’s demurrer is sustained with leave to amend. GOMEZ is to fileany amended pleading within thirty days of the date of this order.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)

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Affidavit of Service with Correct Ind. No. June 30, 2021 (2024)

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