Praecipe - Praecipe Service by Process Server - KRT Services LLC (20240822152917163.5) August 22, 2024 (2024)

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Ruling

NYDIA MCFADDEN VS PUBLIC STORAGE A MARYLAND ASSOCIATION

Aug 28, 2024 |24STCV12395

Case Number: 24STCV12395 Hearing Date: August 28, 2024 Dept: 58 Judge Bruce G. Iwasaki Department 58 Hearing Date: August 28, 2024 Case Name: Nydia McFadden v. Public Storage. et al. Case No.: 22STCV07387 Motion: (1) Demurrer and Motion to Strike; and (2) Motion for Attorney Fees Moving Party: (1) Defendant Public Storage (2) Plaintiff Nydia McFadden Opposing Party: (1) Plaintiff Nydia McFadden (2) Defendant Public Storage Tentative Ruling: (1) Defendant Public Storages Demurrer is overruled in its entirety and Motion to Strike is denied in its entirety; (2) Plaintiff Nydia McFaddens Motion for Attorney Fees is continued. Plaintiff is instructed to submit a supplemental declaration that includes either unredacted billing records or forgoes the request for fees as to such entries. This case arises out of Plaintiff Nydia McFaddens lease of a storage unit at a facility belonging to Defendant Public Storage (Defendant) in Montclair, California. Plaintiff Nydia McFadden (Plaintiff) alleges that her storage unit was burglarized twice on February 6, 2021 and March 5, 2021 by transients who stayed overnight at Defendants Montclair facility without any supervision. Pursuant to the arbitration provision stated within the storage rental agreement, Plaintiff initiated consumer arbitration before JAMS on March 1, 2022. Plaintiff was required to pay the initial arbitration fees to initiate the proceedings, and Defendant was responsible for paying all other fees in order to maintain arbitration. On August 21, 2023, JAMS issued an invoice to Defendant for $27,000 for its services, which was due upon receipt. By October 4, 2023, the arbitration fees remained unpaid. Consequently, on October 1, 2023, Plaintiff withdrew from arbitration pursuant to Code of Civil Procedure § 1281.97 and JAMS Rule 10 because Defendant was in material breach of its obligations under the arbitration provision. Arbitration closed on October 13, 2023. Plaintiff filed this action on May 15, 2023 against Defendant for fraud, battery, and negligence. On June 5, 2024, Plaintiff filed a motion for attorney fees pursuant to Code of Civil Procedure § 1281.98. Defendant opposes the motion for attorney fees, and Plaintiff replied. On June 20, 2024, Defendant demurred to each cause of action raised in the Complaint on the grounds that the claims are time-barred and that insufficient facts have been alleged. Defendant separately moves to strike the entirety or portions of Paragraphs 24-28, 30, 37, 44 in the body of the Complaint and portions of the Prayer for Relief. Plaintiff opposes the demurrer and motion to strike, and Defendant replied. The declaration of Defendants counsel, Craig L. Dunkin, satisfies the meet-and-confer requirement. The Court shall first address Defendants demurrer and motion to strike before considering Plaintiffs motion for attorney fees. Legal Standard A. Demurrer A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . .. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) B. Motion to Strike The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436.) C. Attorneys Fees Pursuant to Code of Civil Procedure § 1281.98 Attorneys fees are recoverable as costs when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).) If an employee or consumer withdraws a claim from arbitration and proceeds in a court of appropriate jurisdiction pursuant to Code of Civil Procedure § 1281.98(b)(1): (1) the employee or consumer may bring a motion, or a separate action, to recover all attorneys fees and all costs associated with the abandoned arbitration proceeding, without regard to any findings on the merits in the underlying action or arbitration; and (2) the court shall impose sanctions on the drafting party in accordance with Section 1281.99. (Code Civ. Proc., §§ 1281.98, subds. (c)(1)-(2).) The Court must impose a monetary sanction against the drafting party that materially breached the arbitration agreement by ordering the drafting party to pay the reasonable expenses, including attorneys fees and costs, incurred by the employee or consumer as a result of the material breach. (Code Civ. Proc., § 1281.99.) Judicial Notice Defendant requests the Court to take judicial notice of Rule 8 of the JAMS Streamlined Arbitration Rules, entitled Interpretation of Rules and Jurisdiction Challenges. The Court takes judicial notice of the existence of this document only because the interpretation of these rules would likely be a source of dispute. (Evid. Code § 452(h).) Discussion A. Demurrer i. Statute of Limitations In assessing a demurrer challenging the complaint based on a statute of limitations defense, the Court must determine whether such a defense is plain on the face of the complaint. A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred. [Citations omitted.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. [Citations omitted.] This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [citations omitted].) Defendant first argues that the entire action is barred by the one-year contractual limitations contained within an agreement attached to the Complaint. (Demurrer at pg. 6.) In particular, Defendant relies on a provision found within the storage agreement that Plaintiff had alleged it entered into with Defendant in 2014 when Plaintiff moved her belongings from Defendants facility in Sherman Oaks, California to Defendants facility in Montclair, California (2014 Agreement). (See Compl. ¶ 5, Exh. A at ¶ 4.) This argument presumes that the 2014 Agreement is the controlling agreement between the parties. However, the Complaint further alleges that Plaintiff entered into a third agreement with Defendant on April 13, 2021 (2021 Agreement). (Compl. ¶ 12, Exh. B.) Pursuant to the 2021 Agreement, there is no indication that it contains a contractual statute of limitations provision, and in fact, it dispels such an assertion by stating unequivocally that the 2021 Agreement is subject to the laws of the State of California, which would encompass statutes of limitations prescribed by California law. (Id. at ¶ 17.) Furthermore, it covers claims that occurred prior to its signing and contemplates that this agreement supersedes all prior agreements. (Id. at ¶¶ 6.2, 21.) Therefore, because a superseding contract has been alleged, Defendants reliance on the 2014 Agreement lacks merit. Accordingly, because the Complaint on its face does not indicate that Plaintiffs claims are time-barred, the Court overrules the demurrer on this ground. ii. First Cause of Action Fraud Defendant also argues that the first cause of action for fraud is subject to demurrer because Plaintiff entered into 2021 Agreement after knowing that the alleged burglary had occurred, causing her to waive any claim for damages linked to fraud. (Demurrer at pg. 8, relying on Schied v. Bodinson Mfg. Co. (1947) 79 Cal.App.2d 134, 142-143.) The question of waiver or nonwaiver [is] one of fact for the trial court to pass upon, and the acts or conduct which the defendant claims constituted said waiver [are] the evidence to be considered by in determining the ultimate fact of waiver or nonwaiver. (French v. Freeman (1923) 191 Cal. 579, 590.) Because the issue of waiver is a question of fact, Defendant improperly requests the Court to adjudicate this issue at the pleading stage through the instant demurrer. Furthermore, there is nothing within the Complaint that would indicate on its face that Plaintiffs fraud claim has not been sufficiently pleaded. While it is alleged that Plaintiff entered into a new contract following the discovery of the alleged burglaries, there is no indication that Plaintiff accepted substantial payments, property or the performance of work or labor not required by the original contract to have waived her right to damages arising from fraud. (Schied, supra, 79 Cal.App.2d 134, 142-143.) Accordingly, because the first cause of action has been sufficiently alleged, the demurrer is overruled. iii. Second Cause of Action Breach of Contract Next, Defendant argues that the second cause of action for breach of contract has not been sufficiently alleged based on the exculpatory clause found within the 2014 Agreement. (Demurrer at pp. 8-9.) As stated above, Defendants reliance on the 2014 Agreement lacks merit because it was superseded by the 2021 Agreement. Also, regardless of which agreement controls, both agreements include provisions stating that Defendant could still be liable in instances of fraud, which has been sufficiently alleged. (Compl., Exh. A at ¶ 7; Exh. B at ¶ 4.1.) Accordingly, the demurrer to the second cause of action is overruled on this ground. iv. Third Cause of Action Negligence Defendant also demurs to the third cause of action for negligence, but it has failed to raise any specific arguments as to why the demurrer should be sustained. Those arguments are presumed abandoned because they were not raised within its memorandum of points and authorities. (Cal. Rules of Court, Rule 3.1113.) To the extent that Defendant relies on the exculpatory clause found within the agreements between the parties, this is not persuasive because the Complaint alleges that Defendant had continued to rent storage units to transient individuals despite knowing that those individuals were committing burglaries of other storage units within the facility. (Compl. ¶ 47.) Therefore, it can be inferred that Defendants conduct was willful and reckless, which falls under an exception to the agreements exculpatory clause. (Compl., Exh A at ¶ 7, Exh. B at ¶ 4.1.) Accordingly, the demurrer to the third cause of action is overruled. B. Motion to Strike Defendant moves to strike the entirety or portions of Paragraphs 24-28, 30, 37, 44 in the body of the Complaint and portions of the Prayer for Relief. These points of the complaint refer to an allegation of fraud as well as Plaintiffs claim for attorneys fees, compensatory damages, and punitive damages. The Court shall address these in turn. i. Contradictory Allegation re: Fraud Defendant argues that the Complaint includes a false allegation that the subject unit was safe and secure because the 2014 Agreement expressly disclaimed any representation of safety or security. (Motion re: Strike at pp. 10-11; Compl. ¶ 30, Exh. A at ¶ 16.) However, this argument lacks merit because Plaintiff has sufficiently alleged a cause of action of fraud. (McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 794 [a party to a contract who committed fraud in the inducement cannot absolve himself or herself from fraud by any stipulation in the contract, either that no representations were made or that any right that might be grounded upon them was waived.].) Accordingly, the motion to strike is denied on this ground. ii. Punitive Damages Defendant also moves to strike Plaintiffs claim for punitive damages. (Motion re: Strike at pg. 11.) The basis for punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent, or malicious. (Civ. Code, § 3294, subd. (a).) A¿plaintiffs conclusory characterization of defendants conduct as intentional, willful and fraudulent is a patently insufficient statement of oppression, fraud,¿or malice, express or implied,¿within the meaning of section 3294.¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864, 872.) Here, because Plaintiffs fraud claim has been sufficiently alleged, it follows that the Complaint has sufficiently alleged a claim for punitive damages. Therefore, the motion to strike is denied on this ground. iii. Compensatory Damages Defendant also argues that Plaintiffs compensatory damages are limited to $5,000 based on a provision found within the 2014 Agreement. (Motion re: Strike at pp. 8-9; Compl., Exh. A at ¶ 4.) However, as stated above in connection with Defendants demurrer, there is a question of fact concerning whether the 2014 Agreement or the 2021 Agreement controls in this case. Therefore, it would be improper to strike the amount of compensatory damages sought within the Complaint. Accordingly, the motion to strike is denied on this ground. iv. Attorney Fees Defendant argues that Plaintiffs claim for attorney fees arising from a material breach of the arbitration agreement should be stricken because any such claim is pre-empted by the Federal Arbitration Act and questions of arbitrability are reserved for the arbitrator. (Motion re: Strike at pp. 5-8.) As to the former argument, Defendant relies on Hernandez v. Sohnen Enterprises, Inc. (2024) 102 Cal. App. 5th 222, 244 for the proposition that section 1281.97 violates the equal-treatment principle because it mandates findings of material breach and waiver for late payment that do not apply generally to all contracts or even to all arbitrations. Thus, it is reasoned that the same preemption should apply to Code of Civil Procedure section 1281.98. In opposition, Plaintiff argues that Hernandez should not be followed because a more recent appellate court decision is more persuasive. (Opposition at pg. 3.) In Keeton v. Tesla, Inc. (2024) 103 Cal.App.5th 26, the appellate court acknowledged that California case law has established that the Code of Civil Procedure sections 1281.97 and 1281.98 are not preempted by the FAA based on the legislative history surrounding these statutes. (Id. at pp. 33, 36.) Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, Espinoza v. Sup. Ct. (2022) The Court agrees because it has been repeated upheld that Code of Civil Procedure § 1281.97 and 1281.98 have furthered the goals of the FAA. (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, Espinoza v. Sup. Ct. (2022) 83 Cal.App.5th 761, De Leon v. Juanitas Foods (2022) 85 Cal.App.5th 740) Also, Hernandez is distinguishable from the instance case because the arbitration there was solely governed by federal law, and in this instance, the arbitration provision states that California law applies. (Hernandez, supra, 102 Cal.App.5th at 242; Compl., Exh. B at ¶ 17.) The weight of authority indicates that Hernandez should not be adopted; the Keeton and Gallo line of cases concluding that sections 1281.97 and 1281.98 are not preempted better serve the policy that arbitration proceedings should be expeditious. Thus, while the 2021 Agreement states that arbitration is governed by the FAA (Compl., Exh. B at ¶ 6), it cannot be ignored that the parties agreed to also apply California law. Thus, Code of Civil Procedure sections 1281.97 and 1281.98 would have equal application. The Court rejects the contention that it lacks jurisdiction to adjudicate Plaintiffs claim for attorneys fees pursuant to Code of Civil Procedure § 1281.98 because the statute intended for the Court to exercise jurisdiction as a matter of law once a party has unilaterally withdrawn from arbitration. (Williams, v. West Coast Hospitals, Inc. (2022) 86 Cal.App.5th 1054, 1069.) Therefore, the issue of whether Plaintiff is entitled to attorneys fees pursuant to Code of Civil Procedure § 1281.98 is within the jurisdiction of this Court. This result is appropriate because Defendant, by its conduct, forfeited the right to arbitrate. It cannot insist that an arbitrator decide any issue when there is no longer any arbitration proceeding. Accordingly, because Plaintiffs claim for attorneys fees pursuant to Code of Civil Procedure § 1281.98 is not preempted by the FAA and the Court has jurisdiction to consider that issue, the motion to strike is denied on this ground. C. Motion for Attorney Fees Plaintiff moves for award of $72,712.50 in attorneys fees and $250 in JAMS arbitration fees and costs pursuant to Code of Civil Procedure sections 1281.98 and 1281.99. As a preliminary matter, Defendants arguments of preemption and lack of jurisdiction have no merit based on the analysis above relating to those same issues. Also, Defendants contention that Plaintiff claim for attorney fees is barred by the one-year contractual limit imposed by the 2014 Agreement is unpersuasive. Irrespective of whether the 2014 Agreement or 2021 Agreement controls, a plaintiff may initiate an action in court, separate from the claims raised during arbitration, to be awarded their attorney fees associated with the abandonment of the arbitration process. (Code Civ. Proc., § 1281.98(c)(1).) i. Reasonableness of Requested Fees The Court begins this inquiry with the lodestar, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) From there, the lodestar figure may then be adjusted [according to a multiplier enhancement] based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Ibid.) Relevant multiplier factors include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) No specific findings reflecting the courts calculations for attorneys fees are required; the record need only show that the attorneys fees were awarded according to the lodestar or touchstone approach. (Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349.) The Court has broad discretion to determine the amount of a reasonable attorneys fee award, which will not be overturned absent a manifest abuse of discretion, a prejudicial error of law, or necessary findings not supported by substantial evidence. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1393-94.) Here, Plaintiffs counsels Charles M. Coate and Michael M. Plotkin attest that their hourly rates are each $525 per hour. (Motion re: Attorney Fees at pg. 9; Coate Decl. ¶ 12; Plotkin Decl. ¶ 7.) In opposition, Defendant argues that these hourly rates are excessive considering that the claimed property loss is less than $100,000 and that the case did not require two seasoned attorneys to work on it. (Opposition re: Attorney Fees at pp. 4-5, 14.) However, based on the attorneys experience and the Courts knowledge of the legal market, the claimed hourly rates are reasonable. Defendant has failed to present any opposing evidence that would undermine the reasonableness of these rates. As to claimed hours of the work performed, Defendant points out that numerous entries are entirely redacted. This prevents the Court from adjudicating whether the time spent on those tasks were reasonable or whether they amounted to duplicative or excessive work. For this reason, before Court can adjudicate the issues of whether the claimed hours of work performed was reasonable and to what amount Plaintiff is entitled to recover her attorney fees, Plaintiff is instructed to submit a supplemental declaration that includes either unredacted billing records or forgoes the time spent for such work. Accordingly, the motion for attorney fees is granted as to entitlement to fees. The Court continues the hearing to determine the appropriate amount of fees to be awarded. Plaintiff shall submit a supplemental attorney fee declaration with a revised exhibit of time entries. Conclusion Defendants demurrer and motion to strike are denied in their entirety. Plaintiffs motion for attorney fees is continued for supplemental briefing. Plaintiff is instructed to submit a supplemental declaration that either includes unredacted billing records or foregos seeking fees for such entries.

Ruling

INVESTORS TRUST REALTY GROUP, INC. A CALIFORNIA CORPORATION VS XIONG LI, ET AL.

Aug 29, 2024 |23PSCV01544

Case Number: 23PSCV01544 Hearing Date: August 29, 2024 Dept: 6 Plaintiff Investors Trust Realty Group, Inc.s Request for Entry of Default Judgment Defendants: Xiong Li and Long M. Chen TENTATIVE RULING Plaintiffs request for entry of default judgment is DENIED without prejudice. BACKGROUND This is a commercial rental property dispute. On May 22, 2023, plaintiff Investors Trust Realty Group, Inc. (Plaintiff) filed this action against defendants Xiong Li, Long M. Chen (collectively, Defendants), and Does 1 through 20, alleging causes of action for breach of contract, intentional misrepresentation, negligent misrepresentation, waste, and declaratory relief. On April 17, 2024, default was entered against Defendants. On August 13, 2024, Plaintiff submitted a default judgment package. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursem*nts; (5) declaration of nonmilitary status; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.) ANALYSIS Plaintiff seeks default judgment against Defendants in the total amount of $4,251,880.36, including $4,251,880.36 in damages, $10,938.60 in interest, $11,160.00 in attorney fees, and $3,128.70 in costs. The Court finds multiple issues with Plaintiffs default judgment package. First, Plaintiffs damage request exceeds the amount demanded in the complaint. The only monetary damages specified in the complaint are $200,000.00. (Compl., ¶¶ 16, 23; Becker v. S.P.V. Constr. Co. (1980) 27 Cal.3d 489, 494 [[A] prayer for damages according to proof passes muster under section 580 only if a specific amount of damages is alleged in the body of the complaint. [Citation.]].) As for Plaintiffs statement of damages, that is permissible only for Plaintiffs punitive damages claim; Plaintiffs other damages listed in its statement of damages are improper. (See Code Civ. Proc., §§ 425.11, 425.115; Dhawan v. Biring (2015) 241 Cal.App.4th 963, 968 [service of a statement of damages in an action not involving personal injury or wrongful death does not satisfy Code Civ. Proc., § 580].) Thus, Plaintiffs compensatory damages are limited to $200,000.00. Second, for Plaintiff to recover punitive damages, Plaintiff must provide evidence showing that the punitive damages requested is not excessive in light of Defendants financial condition or ability to pay. (See Cummings Medical Corp v. Occupational Medical Corp. (1992) 10 Cal.App.4th 1291, 1298.) Plaintiff does not provide any evidence of Defendants financial condition. The Court also notes that it is not inclined to award both punitive damages and treble damages. (Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559, 568 [whether the damages should be trebled is left to the court's discretion. [Citation.]]) Third, the evidence Plaintiff has submitted does not fully support the amounts requested. Many of the cancelled checks submitted show Plaintiff paying itself. (E.g., Cirrito Decl., Ex. G, pp. 121-122, 126, 128.) Finally, Plaintiff requests inconsistent amounts in different parts of its default judgment package. The request for entry of default judgment specifies $11,160.00 in attorney fees, (Request for Entry of Default Judgment, ¶ 2, subd. (e)), while the declarations of Michael Kim and Michael Cirrito state $13,388.70 in attorney fees and costs, (Kim Decl., ¶ 10; Cirrito Decl., ¶ 27, subd. (c).) The declaration of Michael Cirrito states $441,086.56 in treble damages, (Cirrito Decl., ¶ 27, subd. (d)), while the declaration of Michael Kim states $661,629.84 in treble damages, (Kim Decl., ¶ 13). CONCLUSION Based on the foregoing, Plaintiffs request for entry of default judgment is DENIED without prejudice.

Ruling

CEDRIC L PRICE VS JARRELL D DAVIS

Aug 27, 2024 |19STCV24054

Case Number: 19STCV24054 Hearing Date: August 27, 2024 Dept: 61 CEDRIC L PRICE vs JARRELL D DAVIS TENTATIVEDefendant Precision Dental, Inc.s Motion to Stay Proceedings is DENIED. Plaintiff to provide notice.DISCUSSION [T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (Code Civ. Proc., § 916, subd. (a).) Defendant and Cross-Complainant Precision Dental, Inc. (Precision) argues that this court must stay proceedings in this case, including the pending phase 2 of a bifurcated trial on Precisions and Plaintiff Cedric Prices (Price) legal claims, based on Precisions filing of a notice of appeal as to the judgment on equitable issues entered after phase 1 of trial. (Motion at pp. 1316.) Precision argues that the appeal concerns issues interrelated with issues to be determined in phase 2 of trial, including Prices standing to challenge the fraudulent Llano property transaction, whether he is equitably estopped from challenging it, or whether Precisions deed of trust on the property is enforceable. (Motion at p. 15.) [T]he purpose of the rule depriving the trial court of jurisdiction during the pending appeal is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering the appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. [Citation.] Accordingly, whether a matter is embraced in or affected by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the effectiveness' of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted. (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1173.) Defendant is correct that phase 2 of trial is embraced or affected by the judgment following phase 1 of trial, for the reasons described. In phase 2, the trier of fact shall be asked to determine whether Precision negligently approved the loan that encumbered Plaintiffs property (and another property fraudulently purchased in Plaintiffs name), and such proceedings, if permitted, shall be bound by this courts earlier findings as the equitable phase of trial, during which it determined that Precisions deed of trust was void, and its loan obtained by fraudulent use of Prices identity and signature. (See Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156157 [discussing effect of bifurcated equitable and legal issues].) This determination is unaffected by the courts prior order granting Price a trial preference under Code of Civil Procedure § 36, based on his age. The stay effected by the perfecting of an appeal is described in jurisdictional terms, as depriving the trial court of jurisdiction pending appeal. (Franklin & Franklin, supra, 85 CalApp.4th at p. 1173.) This court has found little authority discussing the interaction of Code of Civil Procedure § 36 and the appellate stay provisions. But the absolute and substantive right to trial preference conferred by section 36, elsewhere described as mandatory and absolute in its application in civil cases (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1086), can only apply where the trial court possesses jurisdiction to try the matter. But this court nonetheless retains jurisdiction over this matter, and may proceed with phase 2 of trial, despite Precisions appeal, because Precision has appealed a non-appealable order. An appeal may be taken [f]rom a judgment, except an interlocutory judgment. (Code of Civil Procedure § 904.1, subd. (a)(1).) And there is no legislation which creates appellate jurisdiction over a mere ruling on a bifurcated issue. (In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638.) Even if a judgment is entered on a bifurcated issue before full resolution of the case, it is nonetheless nonappealable. (City of Huntington Beach v. Superior Court (1978) 78 Cal.App.3d 333, 339; see also Baker v. Castaldi (2015) 235 Cal.app.4th 218, 226 [holding no appeal permitted from an interim bifurcated judgment that left unresolved an issue essential to the final determination of the rights of the parties].) Although there are certain excepted judgments or orders that are appealable, none apply to the ruling and judgment entered on the first phase of trial. (See Code Civ. Proc. § 904.1) Because the courts rulings after phase 1 of trial are not appealable, Precisions appeal was never perfected and the trial court retain[s] jurisdiction over the issue. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 666.) The motion to stay is therefore DENIED.

Ruling

RUSSELL M FRANDSEN, ET AL. VS ALEX FOXMAN, ET AL.

Aug 28, 2024 |24VECV00579

Case Number: 24VECV00579 Hearing Date: August 28, 2024 Dept: T 24VECV00579 RUSSELL M FRANDSEN, et al. vs ALEX FOXMANThe application to post rent is denied. Defendant's opposition indicates that they have vacated the premises. Therefore, possession is no longer in issue. Accordingly, the case is no longer entitled to trial priority. Defendants have consented to the entry of a judgment for possession.

Ruling

OATES PENA vs. OATES LUCAS, et al.

Aug 31, 2024 |CVCV21-0197372

OATES PENA VS. OATES LUCAS, ET AL.Case Number: CVCV21-0197372Tentative Ruling on Motion & Request for Expungement of Lis Pendens and Award of Attorneys’ Feesand Costs: Defendant/Cross-Complainant Rachel Oates Lucas moves for an Order expunging the Lis Pendensfiled by Plaintiff/Cross-Defendant Sharon Oates Pena on May 21, 2021, for the real property located at 1703Ridge Drive, Redding, CA 96001. Despite being properly served, Sharon Oates Pena did not file an Opposition.Procedural Defect. On August 23, 2024, Defendant/Cross-Complainant filed a “Notice ofSupplemental/Amended Motion & Supplemental/Amended Motion for Order….” The new document was notfiled in compliance with CCP § 1005(b) which requires service on a motion at least 16 court days before thehearing date. Consideration of the late filed document would violate CCP § 1005 and Plaintiff/Cross-Defendant’sdue process rights. Accordingly, the Court did not review nor did it consider the late filing in ruling on merits ofthis motion.Merits of Motion. “At any time after notice of pendency of action has been recorded, any party, or any nonpartywith an interest in the real property affected thereby, may apply to the court in which the action is pending toexpunge the notice.” CCP § 405.30. “[T]he court shall order that the notice be expunged if the court finds thatthe claimant has not established by a preponderance of the evidence the probable validity of the real propertyclaim. The court shall not order an undertaking to be given as a condition of expunging the notice if the courtfinds the claimant has not established the probable validity of the real property claim.” CCP § 405.32. “Theclaimant shall have the burden of proof under Sections 405.31 and 405.32.” CCP § 405.30.In this matter, the Complaint filed by Sharon Oates Pena on May 21, 2021, has been dismissed in its entirety. Ajury trial was held on the Cross-Complaint filed by Rachel Oates Lucas and the portion tried to the Court iscurrently under submission. As the party who filed the lis pendens, Sharon Oates Pena bears the burden ofestablishing the validity of her real property claim. There are currently no real property claims filed by SharonOates Pena. Additionally, Sharon Oates Pena did not file an Opposition to the motion and did not provide anyevidence. Accordingly, the Court GRANTS the motion for expungement of the lis pendens. No undertaking isrequired. No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, until the time within which a petition for writ of mandate may be filed pursuant to Section 405.39 has expired. No order expunging a notice of pendency of action shall be effective, nor shall it be recorded in the office of any county recorder, after a petition for writ of mandate has been timely filed pursuant to Section 405.39, until the proceeding commenced by the petition is finally adjudicated. This section imposes no duty on the county recorder to determine whether the requirements of this section or of any order expunging a notice of pendency of action have been met.CCP § 405.35 No order or other action of the court under this chapter shall be appealable. Any party aggrieved by an order made on a motion under this chapter may petition the proper reviewing court to review the order by writ of mandate. The petition for writ of mandate shall be filed and served within 20 days of service of written notice of the order by the court or any party. The court which issued the order may, within the initial 20-day period, extend the initial 20-day period for one additional period not to exceed 10 days. A copy of the petition for writ of mandate shall be delivered to the clerk of the court which issued the order with a request that it be placed in the court file.CCP § 405.39.Therefore, while the Court intends to issue the Order forthwith, Rachel Oates Lucas is not permitted to record theOrder until twenty days after service of the written order. The Court notes that the prayer for relief requests theCourt provide notice to the Shasta County Recorder’s Office. That is not ordered. Rachel Oates Lucas can recordthe Order after properly serving the Order and after the waiting time has passed, assuming that no petition forwrit of mandate is filed as noted above.“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonableattorney’s fees and costs of making or opposing the motion unless the court finds that the other party acted withsubstantial justification or that other circ*mstances make the imposition of attorney’s fees and costs unjust.” CCP§ 405.38. Rachel Oates Lucas is the prevailing party on this motion and has provided evidence of attorney’s feesincurred in bringing the motion in the amount of $2,625. This is evidenced by the Declaration of Mark C. Lucasin which he attaches a billing sheet reflecting 12.5 hours either spent or anticipated to be spent at the rate of $200per hour. The Court finds both the hours spent and the $200 hourly fee to be reasonable. The Court does not findthat Sharon Oates Pena acted with substantial justification or that the circ*mstances make the imposition ofattorney’s fees unjust. The Court awards attorney’s fees to Rachel Oates Lucas in the amount of $2,625.In summary, the motion is GRANTED. The lis pendens is ordered expunged. No undertaking is required. RachelOates Lucas is the prevailing party on the motion and is awarded attorney’s fees in the amount of $2,625. Aproposed Order was provided, however, it will need to be modified to reflect the Court’s ruling.Tentative Ruling on Motion to Deem Plaintiff/Cross-Defendant a Vexatious Litigant Per CCP § 391, et seq.and Probate Code § 1970, et seq.: Defendant/Cross-Complainant Rachel Oates Lucas moves for an orderdeeming Plaintiff/Cross-Defendant Sharon Oates Pena a vexatious litigant along with several other prayers forrelief. Despite being properly served, Plaintiff/Cross-Defendant Sharon Oates Lucas did not file an Opposition.The Court notes that the hearing was originally supposed to occur on August 26, 2024. However, the hearingwas continued to today’s date, September 3, 2024, due to the court calendar. The Court provided notice of thecontinued hearing date to both parties in its Order dated July 31, 2024.A vexatious litigant is a person who does any of the following: (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. (2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. (3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. (4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence. (5) After being restrained pursuant to a restraining order issued after a hearing pursuant to Chapter 1 (commencing with Section 6300) of Part 4 of Division 10 of the Family Code, and while the restraining order is still in place, they commenced, prosecuted, or maintained one or more litigations against a person protected by the restraining order in this or any other court or jurisdiction that are determined to be meritless and caused the person protected by the order to be harassed or intimidated.CCP § 391(b).A Defendant can move for an order requiring the Plaintiff who is a vexatious litigant to furnish security or for anorder dismissing the litigation. CCP § 391.1. A hearing is required and evidence must be provided for the Courtto impose the requirement that surety be posted. CCP § 391.3(a). Per CCP § 391.7, a party may request thatthe Court issue prefiling order, but again, evidence would need to be presented.Rachel Oates Lucas did not provide any evidence to support the motion. There is no declaration providingevidentiary support for the assertions made in the moving papers. There is no request for judicial notice.As no evidence has been presented upon which the Court can make the requested findings, the motion is DENIEDwithout prejudice. A proposed Order was not provided as required per Local Rule 5.17(D). Rachel Oates Lucasis to prepare the Order.

Ruling

BRUCE DWAIN COPELAND VS AMY PHAM

Aug 28, 2024 |22STCV10036

Case Number: 22STCV10036 Hearing Date: August 28, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: August 28, 2024 TRIAL DATE: NOT SET CASE: Bruce Dwain Copeland v. Amy Pham CASE NO.: 22STCV10036 (1)MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION; REQUEST FOR SANCTIONS (2) MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSION; REQUEST FOR SANCTIONS MOVING PARTY: (1)(2) Defendant Amy Pham RESPONDING PARTY(S): No response on eCourt as of 08/23/24 CASE HISTORY: · 03/23/22: Complaint filed. · 03/14/23: First Amended Complaint filed. · 05/24/23: Plaintiff deemed vexatious litigant. · 07/05/23: Notice of Appeal filed. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is an action for quiet title and injunctive relief. Plaintiff contends that Defendant is fraudulently claiming ownership of the property in which Plaintiff resides and which he contends that he owns. Plaintiff moves to compel responses to requests for production propounded to Defendant Amy Pham. TENTATIVE RULING: Defendants Motion to Compel Responses to Requests for Production is DENIED. Defendants Motion to Compel Responses to Requests for Admissions is DENIED. Defendants Motion to Compel Responses to Form Interrogatories is DENIED. Defendant request for sanctions is DENIED. This ruling is conditioned on the payment of $120 in filing fees within 10 days of this order. DISCUSSION: Defendant moves to compel responses to requests for production and also purports to move to compel responses to form interrogatories and requests for admissions. Improper Service of Motion Defendants proof of service states that this motion was served by electronic service on February 14, 2024. Under Code of Civil Procedure section 1010.6, an unrepresented party may only be served by electronic service when express consent has been manifested by either (1) serving notice on all parties and filing the notice with the Court, or (2) by manifesting affirmative consent through electronic means with the Court or its electronic filing service provider and providing the partys electronic address with that consent for the purpose of receiving electronic service. (Code Civ. Proc. § 1010.6(c).) Plaintiff never submitted any notice or manifestation of affirmative consent to receive electronic service to the Court. Were this the only defect in the motion, the Court would be inclined to continue the matter and order proper service on Plaintiff. However, other deficiencies in the motion are so severe that outright denial is warranted for the reasons stated below. Multiple Motions Defendant purports to move to compel responses to three sets of discovery: one set of requests for productions, one set of form interrogatories, and one set of requests for admissions. Multiple motions should not be combined into a single filing.¿(See¿Govt. Code,¿§ 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing];¿see¿also¿Weil & Brown, Civil Procedure Before Trial, [8:1140.1] at 8F-60 (The Rutter Group 2011)¿[Motions to compel compliance with separate discovery requests ordinarily should be filed separately.].) Plaintiff should have reserved three separate hearings for three motions to compel. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect. This ruling is therefore conditioned on the payment of $120 in additional filing fees. Requests for Production Defendant moves to compel responses to requests for production, but admits that Plaintiff responded to the requests for production propounded upon him, albeit only with objections. (Defendants Exh. 1.) A motion to compel responses is only available when the party to whom the inspection demand is propounded fails to respond. (Code Civ. Proc. § 2031.300(b).) As Plaintiff objected, he did not fail to respond to discovery, notwithstanding the merit of those objections. Defendant is therefore not entitled to an order compelling responses. Requests for Admissions Defendant purports to move to compel responses to requests for admissions. No such motion is authorized by the Discovery Act, which only permits motions to either deem the truth of matters stated in requests for admissions when no response has been received, or to compel further responses when the response is inadequate. (Code Civ. Proc. §§ 2033.280; 2033.290.) Defendant is therefore not entitled to compel responses to requests for admissions. Form Interrogatories Defendant also purports to move to compel responses to form interrogatories. However, no form interrogatories were included in the exhibit containing the discovery requests purportedly served on Plaintiff. Defendant has therefore failed to demonstrate that she served discovery for which a response may be compelled. (See Code Civ. Proc. § 2030.080.) Sanctions Defendant also requests sanctions in connection with this motion. However, as Defendant is not the prevailing party, Defendant is not entitled to sanctions. CONCLUSION Accordingly, Defendants Motion to Compel Responses to Requests for Production is DENIED. Defendants Motion to Compel Responses to Requests for Admissions is DENIED. Defendants Motion to Compel Responses to Form Interrogatories is DENIED. Defendant request for sanctions is DENIED. This ruling is conditioned on the payment of $120 in filing fees within 10 days of this order. Moving Party to give notice. IT IS SO ORDERED. Dated August 28, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Ruling

GUADALUPE HARO vs. YEZENIA HARO

Aug 21, 2024 |C23-02878

C23-02878CASE NAME: GUADALUPE HARO VS. YEZENIA HARO*HEARING ON MOTION IN RE: FOR LEAVE TO INTERVENE IN ACTIONFILED BY: ZCA HOMES LLC, A CALIFORNIA LIMITED LIABILITY COMPANY*TENTATIVE RULING:*Third party ZCA Homes, LLC filed this motion to intervene on July 1, 2024. The plaintiffs filed a noticeof non-opposition on August 7, 2024. ZCA Homes’ motion to intervene is appropriate under Code ofCivil Procedure 387(d) and is granted.

Ruling

MARIAM PANANYAN VS VERNAL EQUINOX, LTD, ET AL.

Aug 30, 2024 |23BBCV03035

Case Number: 23BBCV03035 Hearing Date: August 30, 2024 Dept: A LOS ANGELES SUPERIOR COURT NORTH CENTRAL DISTRICT - BURBANK DEPARTMENT A TENTATIVE RULING AUGUST 30, 2024 DISCOVERY MOTIONS Los Angeles Superior Court Case # 23BBCV03035 NOTICE: The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received. Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. ALLEGATIONS: Mariam Pananyan (Plaintiff) brings this action against Vernal Equinox, LTD (Equinox), Morteza Bharloo, Lori Cresswell, Elvis Keshishyan (Keshishyan), Apex Home Loans, LLC (Apex), & ESA Investment Group, LLC (ESA) (collectively Defendants). Plaintiff alleges that Defendants secured a fraudulent home loan against the property located at 6239 Riverton Ave., North Hollywood, CA 91606. Plaintiff further alleges that she has resided at the Riverton address since 2004 and that she only became aware of the fraudulent loan after an NOD and Election to Sell Under Deed of Trust was recorded against the property. Before the Court is a total of 13 Motions, all concerning discovery in the matter. The majority of these motions are brought by Plaintiff, seeking further responses to discovery demands from Equinox and initial discovery responses from Apex, ESA, and Keshishyan. Equinox has also moved to compel Plaintiffs further response to their own discovery demands. Each of these motions has been opposed by the party to be compelled. ANALYSIS: Given the exceptional volume of discovery motions pending in this matter, and the underlying discovery disputes upon which they are based, the Court is considering the appointment of a discovery referee in this matter pursuant to C.C.P. § 639. This code section permits the Court to appoint a discovery referee in a matter sua sponte [w]hen the court&determines that it is necessary&to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. (C.C.P. § 639(a)(5).) Although the Court does not routinely refer discovery matters to a referee, it finds the circ*mstances here exceptional. The filing of 13 discovery motions is indicative of ongoing discovery disputes which would result is a significant amount of court time to resolve. The Court is guided by the California Court of Appeal decision in Taggares v. Superior Court, which held: Unless both parties have agreed to a reference, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105) The Court finds that many of the factors outlined in Taggares are present here. Here, there is a multiplicity of issues involving several parties, all of which have resulted in a sizeable amount of discovery motions being placed on the Courts calendar. Further, the Court has already adjudicated one discovery motion, a motion to deem Request for Admissions Matters admitted, which in turn is the subject of another motion scheduled for the Courts September 13, 2024 calendar. Given the substantial nature of many of these motions (each separate statement exceeds 100 pages in length), the review of these motions would be inordinately time consuming and unduly impact the Court's limited time and resources. Furthermore, a timely review of these matters is impacted by the Courts expanded case load due to the disbanding of the Personal Injury Hub Courts. In accordance with the above, the Court orders the August 30, 2024 hearings vacated. The Court also orders the September 13, 2024 hearing advanced to this date and vacated. Each party is ordered to submit the names of three potential discovery referees for the Court to consider. The names should be provided within ten court days of the date of this order. The Court will also set an OSC re: Discovery Referee Appointment for September 20, 2024 at 9:00 a.m. As concerns costs, C.C.P. § 645.1 provides that the court may order the parties to pay the fees of referees who are not employees or officers of the court at the time of appointment, as fixed pursuant to Section 1023, in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. (C.C.P. § 645.1(b).) Here, the Court finds the cost of any discovery referee should be born half by Plaintiff, with the remaining half being divided evenly among all involved Defendants as to motions concerning that defendant. The Court reserves the right to impose the full costs of a discovery referee as a discovery sanction should this be appropriate under the standards set forth in C.C.P. § 2023.030. --- RULING: In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the courts records. ORDER Mariam Pananyans Discovery Motions came on regularly for hearing on August 30, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: THE HEARINGS FOR THE MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES AND THE MOTIONS TO COMPEL INITIAL DISCOVERY RESPONSES SCHEDULED TO BE HEARD AUGUST 30, 2024 ARE HEREBY VACATED. THE HEARING FOR THE MOTION FOR RELIEF FROM ADMISSIONS SCHEDULED TO BE HEARD SEPTEMBER 13, 2024 IS ADVANCED TO THIS DATE AND VACATED. EACH PARTY IS TO SUBMIT THE NAMES OF THREE PROPOSED DISCOVERY REFEREES TO THE COURT WITHIN 10 COURT DAYS. THE COURT SETS AN OSC RE: DISCOVERY REFEREE APPOINTMENT FOR SEPTEMBER 20, 2024 AT 9:00 A.M. ALL OTHER DATES REMAIN. UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF IS TO GIVE NOTICE. IT IS SO ORDERED. DATE: August 30, 2024 _______________________________ F.M. Tavelman, Judge Superior Court of California County of Los Angeles

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