Cape Conroe Property Owners Association, Inc. , filed a(n) Foreclosure - Property case represented by Bryan Patrick Fowler , against Josefina M Mendez A K A Josefina Mendez Mejia , in the jurisdiction of Montgomery County, TX, . Montgomery County, TX Superior Courts 284th Judicial District Court with Bays, Kristin presiding.
Foreclosure - Other Foreclosure
September 17, 2024
Montgomery County, TX
284th Judicial District Court
Cape Conroe Property Owners Association, Inc.
Bryan Patrick Fowler
Josefina M Mendez A K A Josefina Mendez Mejia
Return of Service
Request for Service
E-Filed Original Petition Document
Motion for Default Judgment
Request for Service
Abstract of Judgment
Request For Service
Request For Service
Judge: Bays, Kristin
Judge: Bays, Kristin
Judge: Bays, Kristin
Judge: Bays, Kristin
Judge: Bays, Kristin
Judge: Bays, Kristin
Judge: Bays, Kristin
Judge: Bays, Kristin
Judge: Bays, Kristin
Case Number: 22STCV36899 Hearing Date: September 16, 2024 Dept: 32 PHUONG LE THAI, et al., Plaintiffs, v. DIANA LEE, et al., Defendants. Case No.: 22STCV36899 Hearing Date: September 16, 2024 [ TENTATIVE] order RE: defendants motion for summary judgment or adjudication BACKGROUND This quiet title action was initiated in November 22, 2022. On December 28, 2022, Plaintiffs Phuong Le Thai and Edward Lee filed the operative Second Amended Complaint against Defendants Diana Lee, William Truong, and all persons claiming interest in the subject property located in El Monte (the Property). The SAC asserts causes of action for declaratory relief, quiet title, fraud, conversion, elder abuse, accounting, relief from voidable transaction, and conspiracy. According to the SAC, Plaintiff Phuong Le Thai (Phuong) wished to purchase the Property but failed to qualify for a loan. (SAC ¶ 11.) Around July or August 2017, Phuong proposed that her daughter, Defendant Diana Lee (Diana) purchase the Property in her name and hold legal title without assuming any obligations such as down payment, maintenance expenses, property taxes, and loan payments. ( Id. , ¶ 12.) Diana allegedly agreed to this arrangement and promised to convey title to Phuong once Phuong had paid all expenses related to the maintenance and preservation of the Property for a period of time sufficient to demonstrate her credit worthiness. ( Id. , ¶ 13.) Diana obtained title to the Property on September 14, 2017. ( Id. , ¶ 15.) The down payment was made using loans and gifts belonging to Phuong. ( Ibid. ) In June 2021, after Phuong had possessed the Property and paid the associated expenses for several years, Phuong demanded that Diana convey title to the Property to her in accordance with their agreement, but Diana refused. ( Id. , ¶¶ 16-17.) Phuong was married to John Shing Lee (John Lee or Decedent), who died in September 2022. Decedents son, Plaintiff Edward Lee, pursues this action as Decedents successor-in-interest. The FAC alleges that Diana stole the following property: (1) Decedents portion of proceeds from the sale of Plaintiffs other residences in Nevada and California; (2) Decedents cash; (3) proceeds from Decedents life insurance policy; (4) and a 2006 Honda Pilot. (SAC ¶¶ 18-37.) Defendant William Truong, Dianas husband, allegedly participated in the fraud and conversion. On June 25, 2024, Defendants filed the instant motion for summary judgment or adjudication in the alternative. Plaintiffs filed their opposition on August 28, 2024. Defendants filed their reply on September 6, 2024. LEGAL STANDARD The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ( Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. ( Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. ( Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. ( Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) EVIDENTIARY OBJECTIONS Plaintiffs Objections Plaintiffs objections nos. 1-2 are overruled. Defendants Objections Defendants objections no. 1-2 are overruled. DISCUSSION I. Quiet Title by Adverse Possession (Third COA) To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. ( Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054.) a. Adversity The rule is settled that title by adverse possession cannot be acquired where the occupant has entered into possession by permission or consent of the owner. ( Janes v. Le Deit (1964) 228 Cal.App.2d 474, 488-89.) Defendants argue that Phuongs possession of the Property was not adverse because Diana voluntarily allowed Phuong to reside at the Property, either through the oral agreement (as alleged by Plaintiffs) or as a personal favor (as claimed by Defendants). (See SAC ¶¶ 12-17; Def.s Stmnt. of Undisputed Facts (UF) 11-13.) Plaintiffs do not dispute that Phuong resided at the Property with Dianas consent. In fact, Plaintiffs allege that Diana acknowledged that Plaintiff Phuong would be taking sole possession of the Property. (SAC ¶ 14.) Phuong also testified that Diana bought the house but allowed the family to stay there rather than live there herself. (Fok Decl., Ex. 10 (Phuong Depo. Vol. I) 51:6-7.) Nonetheless, Plaintiffs argue that the possession was adverse because Phuong and Diana have opposing claims of ownership and title. However, the present dispute over ownership of the Property does not alter the fact that Phuong entered into possession by permission or consent of the owner. (See Janes, supra, 228 Cal.App.2d at pp. 488-89.) It is undisputed that at the time Phuong obtained possession of the Property, Diana was the owner of title and consented to Phuong residing at the Property. Therefore, Phuongs possession of the Property was not adverse as a matter of law. b. Payment of Taxes for Five Years For adverse possession based on a claim of right, the claimant must prove timely payment of all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. (Code Civ. Proc., § 325(b).) The taxes a claimant must pay are those levied and assessed during the period of possession. ( Smith v. Byer (1960) 179 Cal.App.2d 118, 121, emphasis added.) This means that all taxes levied and assessed during the period of possession must be paid even though more than five years is required. ( Id. at p. 120.) Here, Phuong did not occupy the Property until its purchase in September 2017 at the earliest. (See SAC ¶ 15.) However, taxes are assessed on January 1 of each year. (Rev. & Tax. Code, § 2192.) Thus, the taxes for 2017 would have been assessed on January 1, 2017, before Phuong came into possession. Accordingly, even if Phuong paid taxes in 2017, those could not have been taxes that were both levied and assessed during the period of possession. (See Smith, supra, 179 Cal.App.2d at p. 121.) For Phuong to satisfy the requirement to pay taxes levied and assessed for a five-year period, she would have had to pay the taxes for the five years after 2017, i.e. , 2018, 2019, 2020, 2021, and 2022. ( Ibid. ) Defendants argue that Phuong did not pay the taxes for 2022 because they were paid by Diana. (UF 19-20.) Diana avers in her sworn declaration that she paid the 2022 taxes on November 29, 2022 by personal check. (D. Lee Decl. ¶ 23.) Diana also attaches the receipt as proof of payment. ( Id. , Ex. B.) On the other hand, Phuong avers that she made two payments in November 2022, claiming that her Exhibit C proves it. (Phuong Decl. ¶ 20.) However, Exhibit C consists merely of two checks. (Plntf.s Ex. C.) Payment of taxes for purposes of adverse possession shall be established by certified records of the county tax collector. (Code Civ. Proc., § 325.) Therefore, Plaintiffs have failed to provide substantial responsive evidence that they paid the 2022 taxes. (See Sangster, supra, 68 Cal.App.4th at p. 163 [substantial responsive evidence required to raise triable issue on summary judgment].) Plaintiffs also do not dispute Defendants statement of fact that Diana paid the property tax payment for the assessed year of 2022 on November 29, 2022 by a personal check. (See UF 20.) Plaintiffs response is that they have [i]nsufficient information to dispute or not dispute whether Diana paid. (Plntf.s Resp. to UF 20.) This effectively leaves the fact undisputed. Because it is undisputed that Diana made the 2022 tax payment, and Plaintiffs have no substantial responsive evidence suggesting otherwise, Defendants have established as a matter of law that Plaintiffs did not pay taxes on the Property for five consecutive years. The adverse possession claim fails for this independent reason. The motion for summary adjudication is GRANTED as to the third cause of action. II. Edward Lees Standing (Sixth, Eighth, Tenth, and Eleventh through Fourteenth COAs) Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. (Code Civ. Proc., § 367.) A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedents successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedents personal representative or, if none, by the decedents successor in interest. ( Id. , § 377.30.) 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 containing certain information. ( Id. , § 377.32(a).) Defendants assert that the causes of action on behalf of Decedent John Lee fail as a matter of law because Plaintiff Edward Lee has not sufficiently established himself as Decedents successor-in-interest. Defendants repeat arguments that the Court has previously rejected in ruling on Defendants demurrer. Specifically, Defendants argue that because beneficiary is mentioned in the definition of successor-in-interest, Decedents beneficiaries i.e. , his children including Dianamust be joined in the action. However, as the Court stated previously, a successor in interest is defined as the beneficiary of the decedents estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action. (See Code Civ. Proc., § 377.11.) Thus, Decedents other beneficiaries are not indispensable parties. Edward Lee may sue as an other successor in interest. Defendants argue that Edward Lee is not an other successor in interest because Decedent did not sign any document assigning any interest in his assets to Edward Lee. (UF 25.) Defendants cite no authority suggesting that this is a requirement for Edward Lee to serve as a successor-in-interest. The requirements for serving as a successor-in-interest are set forth in Code of Civil Procedure section 377.32. Defendants do not contend that Edward Lee has failed to satisfy any of those requirements. Thus, Defendants have failed to show that Edward Lee lacks standing to pursue the claims as successor-in-interest. The motion for summary adjudication is DENIED as to the sixth, eighth, tenth, and eleventh through fourteenth causes of action. III. Payment for Cemetery Plots (Sixth COA) Plaintiffs sixth cause of action for fraudulent concealment is partially based on the fact that Diana overpaid for two cemetery plots even though Phuong had instructed her to buy cheaper plots. (See SAC ¶¶ 38-39, 73(h).) Defendants argue that Plaintiffs suffered no damages from this because Diana paid for the plots out of her own pocket. (UF 21-22.) As evidence, Defendants attach bank records showing the payments from Dianas account, as well as Phuongs responses to Requests for Admission and deposition testimony. (D. Lee Decl., Ex. C; Fok Decl., Ex. 5, 6, 8.) In particular, Phuong admitted in RFA No. 49 that she never paid any funds towards the purchase of the two cemetery plots as alleged in [the] FIRST AMENDED COMPLAINT. (Fok Decl., Ex. 5, 6.) Phuong also testified that after Diana purchased the plots, Diana demanded that Phuong repay her, but Phuong refused because she believed that the money Diana used was stolen from Decedent. ( Id. , Ex. 8 at 106:14-19, 109:4-7.) In opposition, Plaintiffs argue that there are damages because the money was stolen from Phuong. Plaintiffs also argue that financial loss was not the only damage because Dianas purchase of the wrong plots also caused emotional distress. Given the specific evidence that Diana paid for the plots, Phuongs speculation that Diana purchased the plots with money stolen from Phuong or Decedent is insufficient to raise a triable issue. (See Phuong Decl. ¶ 27; Fok Decl., Ex. 8 at 109:4-7.) Phuongs bare declaration that the wrong location of the plots caused [her] anguish and emotional distress is also insufficient to raise a factual dispute. (See Phuong Decl. ¶ 28.) The motion for summary adjudication is GRANTED as to the damages claim related to the purchase of the cemetery plots. IV. Claims Based on Purported Oral Agreement (First, Second, and Fourth through Ninth COAs) a. Statute of Frauds Certain contracts, including [a]n agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein, are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the partys agent. (Civ. Code, § 1624(a).) The alleged contract between Phuong and Diana concerns the sale or interest in real property. Because the contract is indisputably oral, Defendants argue that it is barred by the statute of frauds. However, it is well-established that partial performance or detrimental reliance takes a contract out of the statue of frauds. (See Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 555; Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1040, fn. 10.) The SAC alleges that in reliance on Dianas promise to reconvey the Property, Phuong paid all expenses for its maintenance and preservation, including the payment of the funds necessary to maintain, repair and insure it, as well as to pay the taxes imposed thereon and the installments on the purchase money loan secured by the Property, for more than five years. (SAC ¶ 16.) Defendants argue that the estoppel exception does not apply because the mere making of improvements is insufficient. However, the SAC does not allege that Phuong only made improvements. (See SAC ¶¶ 12-17.) Furthermore, the cited cases do not support Defendants position. Defendants cite to Shive v. Barrow (1948) 88 Cal.App.2d 838 and Palmer v. Phillips (1954) 123 Cal.App.2d 291, which held that quasi-specific performance of an oral agreement to devise property under a will is unavailable where the value of services performed by the plaintiff in reliance on the oral promise is readily calculable and therefore the plaintiff has a remedy at law. The present case does not involve a devise of property or a will. Furthermore, Plaintiffs do not have an adequate remedy at law for loss of the Property. (See Civ. Code, § 3387.) Thus, Defendants have failed to show that the alleged contract falls under the statute of frauds. Summary adjudication cannot be granted on this basis. b. Existence of an Agreement Defendants argue that no evidence of the agreement exists, citing the lack of written documentation. However, as discussed above, the oral nature of the contract does not invalidate the claim at this stage. Defendants also point out that Phuong admitted in deposition that Diana owns the Property, that Diana bought the Property and allowed the family to stay there, and that Phuongs relocation to the Property was only temporary. (Fok Decl., Ex. 10 (Phuong Depo. Vol. I) 16:12-17, 47:14-16, 51:6-22; Ex. 11 (Phuong Depo. Vol. II) 115:10-116:7.) However, none of this constitutes an admission that no contract was formed. Even crediting the prior testimony as true, it is still possible that Diana agreed to transfer title to Phuong once Phuong demonstrated her creditworthiness. Lastly, Defendants argue that they have rebutted Plaintiffs allegations that Phuong paid for the Property with evidence that Diana paid for the Property. (See UF 10.) Diana avers in her declaration that she paid the down payment using $174,000 of her personal funds and $300,000 gifted by her uncle (Phuongs brother), Thomas Thai. (D. Lee Decl. ¶ 14.) However, Thomas Thai denies that the $300,000 was a gift to Diana, averring instead that the money was a loan to Phuong. (T. Thai Decl. ¶¶ 5-7.) Thomas Thai avers that Phuong has repaid him the $300,000. ( Id. , ¶ 8.) This conflicting testimony creates a factual dispute. In sum, Defendants have not established as a matter of law that no agreement exists. Therefore, this is not a basis for summary adjudication. c. Indispensable Parties A party is indispensable if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. (Code Civ. Proc., § 389(a).) If such a person cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. ( Id ., § 389(b).) Here, a Deed of Trust has been recorded against the Property, evidencing a secured mortgage lien of $252,980 in favor of Stearns Lending, LLC (Stearns) as lender, Mortgage Electronic Registration Systems, Inc. (MERS) as beneficiary, and First American Title Company (FATC) as trustee. (UF 8.) Defendants argue that as a result, Stearns, MERS, and FATC are indispensable parties. However, the absence of these parties does not affect the current dispute over ownership that is between Phuong and Diana. Complete relief is possible as between the named parties despite the absence of Stearns, MERS, and FATC. Stearns, MERS, and FATC have not asserted an interest in the matter, and Defendants have not sufficiently established that their interests would be impeded or that their absence creates a substantial risk of inconsistent obligations. Thus, Stearns, MERS, and FATC are not indispensable parties, and their absence is not a basis for summary adjudication. However, because Defendants are concerned about the interests of Stearns, MERS, and FATC, Defendants are ordered to provide notice of this action to them. That way, Stearns, MERS, and FATC will have the opportunity to intervene in the action if they wish to assert their interests. The motion for summary adjudication is DENIED as to the first, second, and fourth through ninth causes of action. CONCLUSION Defendants motion for summary judgment is DENIED. Defendants alternative motion for summary adjudication is GRANTED in part as set forth above. Defendants are ordered to serve notice of the action to Stearns, MERS, and FATC.
CV-22-003529- AHLUWALIA, NIRMAL KUMAR vs KHACHO, ESAM – Plaintiff’s Motion to Deem Admitted Defendant Khacho’s Unverified Responses to Plaintiff’s Requests for Admissions – DENIED. The Court finds that in the absence of a stipulation between the parties to re-open discovery, based on the initial trial date of August 27, 2024, this motion ought to have been heard no later than August 12, 2024. (Civ. Proc. Code § 2024.020). Accordingly, this motion is untimely and cannot be heard by the Court. Plaintiff’s motion is therefore denied.
Case Number: 24VECV00518 Hearing Date: September 12, 2024 Dept: T 24VECV00518 Biggs v FCI Tentative ruling: Motions to withdraw The court needs to know if there is any outstanding discovery pending to plaintiffs and whether there has been communication with plaintiffs about the hearing by plaintiffs counsel. After orders are signed and proof of service of conformed orders is filed, then attorney is relieved as counsel. However, the orders do not have phone numbers and emails for the clients. Please provide those at the hearing. The court will continue the CMC for approx. 90 days.
Anti-SLAPP Motion (Special Motion to CVRI2401554 MEKHAIL vs BASKARON Strike) by PAUL BASKARON Tentative Ruling: This case arises from a property dispute between family members. Plaintiff Andrew Mekhail (“Andrew” because the parties are family members and share last names, first names are used for clarity) contends that he entered into to an agreement to purchase a 50% interest in property in Escondido from his mother Mona Baskaron (“Mona”) and his stepfather Paul Baskaron (“Paul”). Under the purchase agreement, Andrew made a $50,000 payment to Paul and Mona and was required to make additional payments to them. Andrew alleges that these parties also entered into a real estate partnership agreement, under which Andrew was to make monthly payments to Mona and Paul. Andrew and his father, Plaintiff Adel Mekhail (“Adel”) lived in the Escondido property. During the COVID-19 pandemic, Andrew fell behind on his payments to Mona and Paul. Andrew contends that he was entitled to tenant relief under new laws enacted due to the Covid-19 pandemic. The complaint states Andrew provided Paul with a Covid-19 Declaration of Financial Distress. Despite providing said declaration, Paul moved forward with evicting Andrew and Adel from the property. Via this lawsuit, they contend that the eviction is improper and seek monetary damages (not possession). The complaint asserts the following causes of action: (1) breach of contract, (2) breach of contract, (3) breach of covenant of good faith and fair dealing, (4) breach of covenant of quiet enjoyment of premises, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) negligence, and (8) wrongful eviction. Now, Paul specially moves to strike the entire complaint pursuant to CCP § 425.16 (“Anti-SLAPP motion”), arguing that Andrew and Adel’s claims arise from protected speech – that is, an unlawful detainer action filed in San Diego County by Paul titled Baskaron v. Mekhail, San Diego County Case No. 37-2021-00036667-CL-UD-CTL (“UD Action”). Paul argues the UD Action was adjudicated in his favor and Andrew was evicted from the house as a result. The moving papers state Paul meets his burden on the first prong of the anti-SLAPP analysis because the verified complaint shows that it solely based on statements or writings made before a judicial proceeding or made in connection with an issue under consideration or review by a judicial body relating to the UD Action. Paul argues the claims are also barred by res judicata, which satisfies the second prong of the anti-SLAPP analysis. In a late filed opposition, Andrew and Adel (in pro per) argue that Paul’s time to file the Anti- SLAPP motion has expired as more than 60 days have passed since service of the complaint. The opposition argues that the motion should also be denied because the court has entered default against “Defendants” Nagi Abo-Shadi and Mohamed Hassan. Neither of which are named defendants in this case. The opposition offers no further clarify as to who either of these people are. The opposition further argues the lawsuit is brough solely for the public interest or on behalf of the general public and that any protected activity is incidental to the unprotected activity involved in the allegations. The opposition ends with a general argument that Andrew and Adel are likely to prevail on the merits of their claims. There was no reply filed as of 9/6/2024. ANALYSIS A. Timeliness An anti-SLAPP motion must be filed within 60 days after service or of the complaint or amended complaint, or otherwise, in the court’s discretion. (CCP §425.16(f).) Andrew and Adel argue that the motion is not timely as it was filed more than 60 days after service of the complaint. In arguing as much, Andrew and Adel refer to service of the complaint on “Defendants” who are not named in this action. It is entirely unclear who Andrew and Adel are referring to. Nevertheless, the proof of service states the complaint was served on Paul by substituted service on May 24, 2024. Sixty days thereafter is Tuesday, July 23, 2024. Paul’s motion was filed on August 5, 2024 – which is untimely. A late-filed motion may be permitted in the court’s discretion “upon terms it deems proper.” (CCP § 425.16(f).) While the court has “considerable discretion” to allow a late-filed motion, “the court must exercise this discretion consistent with the purposes of the statute and must be mindful that the 60-day deadline is the general rule.” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624.) The purpose of the time limitation is to allow the defendant to challenge the action before expending resources to opposing a meritless litigation. (Ibid.) “In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute's purpose of examining the merits of covered lawsuits in the early stages of the proceedings. [Citations.] Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff.” (San Diegans for Open Government v. Har Construction, Inc., supra, 240 Cal.App.4th at 624 (abuse of discretion to hear motion more than 16 months after complaint filed, after substantial activity in the case and without any intervening material events).) Here, Paul failed to provide any reasonable explanation or even acknowledge the fact that the motion was filed late. However, the delay was only two weeks in time, Plaintiff made no showing of undue prejudice as a result of the delay, and the case is only six-months old. Therefore, the court will rule on the merits of the motion. B. Anti-SLAPP Standard As a general rule, when a cause of action arises out of the furtherance of a defendant’s right of petition or free speech in connection with a public issue, it is subject to a special motion to strike. (CCP § 425.16(b)(1).) Courts use a two-step evaluation to determine whether an action is a SLAPP suit subject to a special motion to strike. (Navellier v. Sletten, (2009) 29 Cal.4th 82, 88- 89.) The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Wilcox v. Superior Court (1994) 17 Cal.App.4th 809, 819.) “In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Once the defendant makes such a prima facie showing, the burden shifts to the plaintiff to establish a “probability” that he will prevail on whatever claims are asserted against the moving defendant. (CCP § 425.16(b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Navellier, supra, 29 Cal.4th at 89, 93.) C. Arising From Protected Activity Defendants have the burden of showing plaintiffs’ lawsuit arises from protected activity. (CCP §425.16(e); Equilon Enterprises v. Consumer Cause (2002) 29 Cal.4th 53, 67.) Statements and writings made during judicial proceedings are protected by the anti-SLAPP statute. (CCP § 425.16(e).) Filing a lawsuit is an exercise of a party’s constitutional right to petition for grievances. A claim for relief filed in court is “indisputably a statement of writing made before a judicial proceeding. (Navellier v. Sletten, supra, 29 Cal.4th at 90; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) “[I]n determining whether a cause of action arises from conduct protected by the anti-SLAPP law, the focus is on the wrongful, injurious acts or omissions identified in the complaint, and whether those acts or omissions come within the statute’s description of protected conduct.” (Old Republic Const. Program Group v. Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 862.) A defendant must show the conduct underlying the cause of action fits into one of the four categories set forth by the statute. (Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 7.) Here, Paul argues that each cause of action arises from filing of the notice to quit and the subsequent UD Action. (Special Motion to Strike, p.9, lines 13-15.) The filing of the UD action is unquestionably protected. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 282; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480.) To that end, it is clear from a plain reading of the complaint that the gravamen of each cause of action is the alleged wrongful eviction. The first and second causes of action specifically state that the written and oral contracts were breached by the filing of the UD Action and serving the notice to quit. (Complaint, ¶¶ 25, 26, 32, 34.) The third cause of action’s alleged breach of the covenant of good faith and fair dealing and fourth cause of action’s alleged breach of covenant of quiet enjoyment are again, the eviction via the UD Action and notice to quit. (Complaint, ¶¶ 37 and 40.) The fifth and sixth causes of action allege Paul inflicted emotional distress by wrongfully evicting Andrew and Adel via the UD Action. (Complaint ¶¶ 40-43, 46-47.) The complaint’s caption states these are the fifth and sixth causes of action, but the complaint itself skips the sixth cause of action and has negligent infliction of emotional distress as the “seventh” cause of action. Additionally, the complaint is improperly numbered, so there are paragraphs with the same numbers at times. The seventh cause of action for negligence alleges that Paul’s breach was specifically filing the UD action. (Complaint, ¶ 50.) Finally, the eight cause of action is literally wrongful eviction solely based on filing of the UD action. (Complaint, ¶ 52.) To that end, the complaint mentions “filing” (or “filed”) the UD action over thirty times. It is clear that the allegations in the complaint arise from the protected activity of filing a lawsuit – the UD action. Paul has met his burden on the first prong of the anti-SLAPP analysis. D. Probability of Prevailing The “probability of prevailing” is tested by the same standard governing a motion for summary judgment, i.e., in opposing an anti-SLAPP motion, and it is plaintiff’s burden to make a prima facie showing of facts that would support a judgment in plaintiff’s favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) Here, Andrew and Adel have not made any showing of facts that would support judgment in their favor. The opposition merely states, “The declaration filed in support of the special motion to strike makes only vague and conclusory allegations but contains no specific facts or evidence that would support the motion filed by [Paul].” (Opposition, p. 10, lines 21-24.) Andrew and Adel only summarily attack the declaration included with the moving papers and in doing so, offer no evidence of their own. Likewise, Andrew’s declaration only supports the argument that the motion was not filed timely – it does not contain evidence to meet their burden on the second prong. Therefore, Andrew and Adel have failed to meet their burden to prove a probability of success on any of their causes of action. The motion is granted in its entirety. Summary Deny the requests for judicial notice as moot. Grant the special motion to strike in its entirety and enter judgment in favor of Defendant.
Case Number: 24SMCV01172 Hearing Date: September 9, 2024 Dept: I The court is engaged in a jury trial today, but the trial will be over tomorrow. The court is prepared to call a venire tomorrow, September 10, 2024, at 10:45 am. Therefore, the trial is CONTINUED pursuant to the prior trailing order, to September 10, 2024, at 10:30.
Case Number: 23STCV08990 Hearing Date: September 11, 2024 Dept: 31 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT WILLOWBROOK HOME LLC, Plaintiff, vs. DAVID WOHLMAN, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23STCV08990 [TENTATIVE] ORDER RE: PLAINTIFFS MOTION FOR AN ORDER COMPELLING RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET NO. ONE, AND FOR MONETARY SANCTIONS Dept. 31 8:30 a.m. September 11, 2024 I. INTRODUCTION This action arises from the alleged breach of a lease agreement concerning real property including the land, improvements, and fixtures therein located at 11934-11940 Willowbrook Avenue, Los Angeles, California 90059, which consists of four units (the Premises). On April 21, 2023, Plaintiff Willowbrook Home LLC (Plaintiff) filed a Complaint against Defendants David Wohlman (Wohlman), Felicia Edelman (Edelman) (collectively Defendants), and DOES 1 to 25, inclusive, alleging causes of action for: (1) Past Due Rent Owed; (2) Breach of Lease for Failure to Pay Rent When Due; (3) Breach of Lease for Failure to Allow Inspection of and Repair to Premises; (4) Breach of Lease for Failure to Repair and Maintain Premises; (5) Breach of Lease for Pest Infestation; (6) Conversion; (7) Trespass; (8) Waste; and (9) Negligence. On July 31, 2023, Defendants filed a Cross-Complaint against Plaintiff, Susan Carpenter (Carpenter), Craig Caldwell (Caldwell), and ROES 1 to 10, inclusive, alleging the following causes of action: (1) Constructive Eviction; (2) Failure to Comply with Civ. Code § 1950.5; (3) Breach of Contract; (4) Breach of Good Faith and Fair Dealing; (5) Tortious Interference with Contractual Relationship; and (6) Harassment/Intentional Retaliation. On August 4, 2023, Defendants filed a joint Answer to the Complaint. On August 28, 2023, Plaintiff and Cross-Defendant Caldwell filed respective Answers to the Cross-Complaint. On August 29, 2023, Cross-Defendant Carpenter filed an Answer to the Cross-Complaint. On January 30, 2024, the court held an Informal Discovery Conference (IDC) and the court noted that the issues had not been resolved and ordered counsel to meet and confer. (01/30/24 Minute Order.) If the objections remained, the parties could request another IDC or file a motion to compel. (01/30/24 Minute Order.) On February 6, 2024, Plaintiff filed and served a Notice of Ruling indicating that, at the IDC, the court and parties agreed that Defendants would respond to Set One of Plaintiffs Requests for Production of Documents by February 20, 2024. (02/06/24 Notice of Ruling.) On February 29, 2024, Plaintiff filed and served these Motions to Compel Defendants Wohlman and Edelmans Responses to Plaintiffs Requests for Production of Documents, Set One, and for monetary sanctions against Wohlman and Edelman, and their counsel of record, Marc Lafer. [1] Plaintiffs motions are unopposed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) II. LEGAL STANDARD In California, discovery statutes must be construed liberally in favor of disclosure unless the request is clearly improper. ( Williams v. Superior Court (2017) 3 Cal.5th 531, 541.) Consequently, [a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. ( Ibid .) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (Code Civ. Proc. § 2031.010(a).) Where a party fails to timely respond to demand for inspection, copying, testing or sampling [t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product. (Code Civ. Proc. § 2031.300(a).) Code Civ. Proc. § 2031.300(b) provides that [t]he party making the demand may move for an order compelling response to the demand. [T]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2030.290(c).) A court has discretion to fix the amount of reasonable monetary sanctions. ( Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc . (2020) 56 Cal.App.5th 771, 791.) III. DISCUSSION Plaintiff served counsel for Defendants Wohlman and Edelman with Set One of Plaintiffs Requests for Production of Documents, Set One, on August 28, 2023. (Howard Decl., ¶ 4; Exh. A.) After defense counsel stated it had no record of being served with discovery, Plaintiffs counsel re-sent the discovery to defense counsel. (Howard Decl., ¶ 12; Exh. G.) Defendant Wohlman has failed to provide any responses to Set One of Plaintiffs Requests for Production of Documents. (Howard Decl., ¶ 17(b).) Defendants Wohlman and Edelman have not complied with the Notice of Ruling as to the IDC, which requires Defendant Wohlman and Edelman to provide responses to Set One of Plaintiffs Requests for Production of Documents by February 20, 2024. (Howard Decl., ¶ 17(a)-(b).) Ms. Howard declares that her hourly rate is $300.00 per hour and that she anticipates spending seven (7) hours total preparing the motion and appearing at the hearing thereon. (Howard Decl., ¶ 19(b).) A $60.00 filing fee was incurred for the motion. (Howard Decl., ¶ 19(a).) Ms. Howard states that she estimates spending an additional four (4) hours preparing a reply brief and preparing for oral argument and attending the hearing. (Howard Decl., ¶ 19(c).) Thus, she estimates additional fees of $1,200.00 will be incurred. (Howard Decl., ¶ 19(c).) Plaintiff requests total monetary sanctions in the amount of $3,360.00. (Howard Decl., ¶ 19.) The Court finds that Defendants Wohlman and Edelman have failed to respond to discovery and compelling their responses are appropriate. As to monetary sanctions, the Court finds that the total hours should be reduced given the relative brevity of the motion, its straightforward nature, and the lack of an opposition brief. The Court therefore GRANTS IN PART Plaintiffs request for monetary sanctions and AWARDS Plaintiff reasonable monetary sanctions against each defendant in the amount of $660.00 (which represents 2.0 hours of work on the motion at the rate of $300.00 per hour plus the $60.00 filing fee) for a total award of $1,320. Monetary sanctions are to be paid to Plaintiff by Defendants and their counsel of record, Marc Lafer, jointly and severally, within 30 days of the date of notice of this order. IV. CONCLUSION The Court GRANTS Plaintiffs motion to compel. The Court ORDERS Defendants Wohlman and Edelman to provide verified, complete, and code-compliant responses, without objections, to Set One of Plaintiffs Requests for Production of Documents within 30 days of the date of notice of this order. Plaintiffs request for monetary sanctions is GRANTED IN PART. Monetary sanctions in the amount of $660.00 are to be paid to Plaintiff by Defendant Wohlman and his counsel of record, Marc Lafer, jointly and severally, within 30 days of the date of notice of this order. Monetary sanctions in the amount of $660.00 are to be paid to Plaintiff by Defendant Edelman and her counsel of record, Marc Lafer, jointly and severally, within 30 days of the date of notice of this order. Plaintiff is ordered to give notice. Dated this 11th day of September 2024 Hon. Kerry Bensinger Judge of the Superior Court [1] The Court notes that the notice of motion contains a typographical error indicating that the motion is set for hearing in Department 37, which is incorrect. Plaintiffs Notice of Non-Opposition to the Motion, which was filed on May 28, 2024, also contains the same error. This action was never assigned to Department 37. While the notice of motion contains an error, given that the motion is unopposed, Defendant Wohlman has conceded to all arguments raised therein. ( Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) The Court does not find the typographical error to be prejudicial.
Case Number: 22STCV33659 Hearing Date: September 12, 2024 Dept: 78 GROVER HENRY COLIN NIX, IV, et al., Plaintiff(s), vs. JPMORGAN CHASE BANK, et al., Defendant(s). Case No.: 22STCV33659 Hearing Date: September 12, 2024 [TENTATIVE] ORDER GRANTING DEFENDANTS MOTION TO EXPUNGE LIS PENDENS I. BACKGROUND Plaintiffs Grover Henry Colin Nix IV, and Grover Henry Nix III, Trustee of Soames Lane Trust (collectively, Plaintiffs) filed their Second Amended Complaint (SAC) against defendants JPMorgan Chase Bank (Chase Bank), Wilmington Trust, N.A. (Wilmington), Structured Asset Mortgage Investment II Trust 2007-AR7, Inc. (SAMI), and Wells Fargo & Company (Wells Fargo) for allegations arising from a wrongful foreclosure of residential real property commonly known as 2651 Aberdeen Avenue, Los Angeles, California 90027. On June 26, 2024, Wilmington filed the instant motion to expunge lis pendens and for sanctions. Plaintiffs oppose the motion, and Wilmington filed a reply. II. REQUEST FOR JUDICIAL NOTICE Wilmingtons request for judicial notice of various recorded documents and court records is granted. (Evid. Code § 452; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.) III. LEGAL STANDARD Any party or a non-party having an interest in the property affected by a notice of lis pendens may move for expungement any time after the lis pendens is recorded. (Code Civ. Proc., § 405.30.) A lis pendens must be removed for being improper on account of (a) the pleading on which the notice is based not containing a real property claim, assuming the allegations to be true, or (b) the claimant not being able to establish by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32; Ziello v. Superior Court (1995) 36 Cal.App.4th 321, 331-32; Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149.) In a motion to expunge a notice of lis pendens, the claimant who filed the lis pendens has the burden of proof. (Code Civ. Proc., § 405.30.) Thus, that claimant, in opposing the motion to expunge the lis pendens, must demonstrate the following: (1) the action affects title to or right of possession of the real property described in the notice; (2) in so far as the said notice is concerned, the party recording the notice has commenced the action for a proper purpose and in good faith; and (3) the probable validity of the real property claim by a preponderance of the evidence. ( Hunting World, Inc. v. Superior Court (1994) 22 Cal.App.4th 67, 70; see also Code Civ. Proc., § 405.30, et seq.) Only admissible evidence is permitted on the motion. ( Burger v. Superior Court (1984) 151 Cal.App.3d 1013, 1019.) The prevailing party on a motion to expunge lis pendens is entitled to reasonable attorneys fees and costs, unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust. (Code Civ. Proc., § 405.38.) IV. DISCUSSION Wilmington moves to expunge the Notice of Pending Action against the real property located at 2651 Aberdeen Avenue, Los Angeles, CA 90027 (Property) recorded by Plaintiffs on October 18, 2022 in the L.A. County Recorders Office as Instrument Number 20220998312. In opposition, Plaintiffs argue that the motion is moot because they have voluntarily withdrawn the lis pendens following the Courts August 24, 2024 ruling on SAMIs motion to quash. They argue that up until the motion to quash ruling, the lis pendens was appropriate. Plaintiffs also filed a separate document stating that they released and withdrew the lis pendens. In reply, Wilmington argues that the motion is not moot because there has been no proof of recording of the withdrawal, and they did not meet their burden of proof to show a probable validity of a real property claim. Here, Plaintiffs do not provide evidence showing that their notice of withdrawal of lis pendens has been recorded. Therefore, even though the notice of withdrawal has been filed and served, there may be an outstanding notice of pendency on the Property in this action. Thus, based on the evidence provided, the motion to expunge lis pendens is not moot. Based on the representation that Plaintiffs have withdrawn the lis pendens, and Plaintiffs lack of argument as to the probable validity of the claim, the motion is GRANTED. Plaintiffs have failed to meet their burden of proof. As to sanctions, Plaintiffs only argue that sanctions should be denied because up until the motion to quash was granted, the lis pendens was appropriate. However, there is no argument as to the probable validity of the claim up until that point. Thus, Plaintiffs fail to meet their burden, and as such, Wilmington is the prevailing party and Plaintiffs do not show any circumstances making the imposition unjust. Wilmington requests sanctions in the amount of $4,721 based on 6.8 hours to meet and confer and draft the motion; another 5 hours to review the opposition, draft the reply, and attend the hearing all at the rate of $395 per hour; and a filing fee of $60. (Fink Decl., ¶6.) The Court finds the amount excessive and will award a total of 6 hours at the rate of $395 per hour plus the $60 filing fee for a total of $2,430.00. V. CONCLUSION Wilmingtons motion to expunge lis pendens and for sanctions in the amount of $2,430.00 is GRANTED. Sanctions are ordered against Plaintiffs counsel and must be paid within 10 days. Moving Party is ordered to give notice. DATED: September 12, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Case Number: 21SMCV01405 Hearing Date: September 11, 2024 Dept: I The application is DENIED WITHOUT PREJUDICE. There is no showing that proper notice was given. The declaration states that notice was given on September 10, 2024, but it does not state the time of day when notice was givensomething that matters under the rules. The matter may be brought again if notice is given. The court notes that the gist of the application is that Aghchay believes that there was no good cause for counsels withdrawal from representation. Aghchay states that on the day of the hearing, he was in the courthouse and was sitting outside the courtroom on the bench waiting to be called. When he came back inside the courtroom, he learned that the case had already been called. The court does not know whether Aghchay had checked in with court staff that morning, but likely he did not because if he had, it is likely the court would have been so informed. The court has sympathy for the situation, but sitting outside the courtroom is not sufficient generally speaking. It is a litigants duty to be in court when the matter is called or to alert someone who is in the court that the litigant is right outside. That said, upon proper notice the court would be inclined to at least consider the situation. The court warns Aghchay, though, that if the court were to delve into the merits of the motion to be relieved, it might require him or his counsel to disclose what would otherwise be privileged information to the court, albeit in camera .