SUMMONS + COMPLAINT *Corrected* July 18, 2012 (2024)

Case

TIAA, FSB D/B/A EVERBANK, N.A. v. BRYAN, CORRINE et al

Sep 25, 2023 |Torrent, Hon. Damaris E. |RP-Mortgage Foreclosure-Residential-Ineligible |RP-Mortgage Foreclosure-Residential-Ineligible |67364/2023

Case

WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS OWNER TRUSTEE FOR DEEPHAVEN RESIDENTIAL MORTGAGE TRUST 2021-2 v. BISMILLAH REALTY HOLDINGS LLC et al

Jan 22, 2024 |Quinones, Hon. Thomas |RP-Mortgage Foreclosure-Commercial |RP-Mortgage Foreclosure-Commercial |56046/2024

Case

Deutsche Bank National Trust Company, As Trustee For Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2006- W1 v. Librado Tejada, Timepayment Corp., Goodleap, Llc, New York State Department Of Taxation And Finance, John Doe #1 Through John Doe #12, The Last Twelve Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, persons or corporations, if any, having or claiming an interest in or lien upon the Subject Property described in the Complaint

Aug 27, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |68257/2024

Case

WELLS FARGO BANK, NA v. WEBB, MAUREEN

Nov 14, 2012 |Walker, Hon. Sam D. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |8450/2011

Case

BANK NATIONAL ASSN. v. SHAW, LEROY et al

Nov 04, 2020 |Jamieson, Hon. Linda S. |RP-Mortgage Foreclosure-Residential-FSC Complete |RP-Mortgage Foreclosure-Residential-FSC Complete |64059/2020

Case

Russell Fayer v. New Rochelle City

Aug 29, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |80172/2024

Case

Hsbc Bank Usa, N.A., As Indenture Trustee For The Registered Noteholders Of Renaissance Home Equity Loan Trust 2007-1, v. Donald Stevens, Sharon Stevens, The City Of White Plains, New York State Affordable Housing Corporation, John Doe, Jane Doe

Aug 26, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |68233/2024

Case

Mortgage Assets Management, Llc v. Ida Spagnoli A/K/A IDA A. SPAGNOLI AS EXECUTRIX AND BENEFICIARY OF THE ESTATE OF EMMA SPAGNOLI, Lena Oneill AS BENEFICIARY OF THE ESTATE OF EMMA SPAGNOLI, New York State Department Of Taxation And Finance, United States Of America Internal Revenue Service, Secretary Of Housing And Urban Development, John Doe And Jane Doe #1 Through #7, The Last Seven (7) Names Being Fictitious And Unknown To The Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Parties, If Any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint

Aug 26, 2024 |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |68138/2024

Case

NEWREZ LLC v. VARGAS, FRANK et al

Jan 22, 2024 |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |56039/2024

Ruling

K-RA Y PROPERTIES, LLC VS HARBOR CITY ENTERPRISES, INC., A CALIFORNIA CORPORATION, ET AL.

Sep 03, 2024 |23LBCV02382

Case Number: 23LBCV02382 Hearing Date: September 3, 2024 Dept: S27 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - SOUTH DISTRICT K-RAY PROPERTIES, LLC, Plaintiff(s), vs. HARBOR CITY ENTERPRISES, INC., ET AL., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO: 23LBCV02382 [TENTATIVE] ORDER RE: MOTION TO VACTE JUDGMENT, QUASH SERVICE OF SUMMONS AND COMPLAINT, ETC. Dept. S27 8:30 a.m. September 3, 2024 Moving Party: Defendant, Harbor City Enterprises, Inc. Responding Party: Plaintiff, K-Ray Properties, LLC Notice: OK 1. Background Facts Plaintiff, K-Ray Properties, LLC filed this unlawful detainer action against Defendant, Harbor City Enterprises, Inc. on 12/06/23. On 12/14/23, Plaintiff filed proof of service of the summons, complaint, and related papers on Defendant by service on Deanna L. Jones, Defendants agent of service of process, by and through substitute service on Gilbert Lucero, Manager. On 1/03/24, Defendant having failed to respond, the Court entered Judgment in favor of Plaintiff and against Defendant. On 1/17/24, the Court issued a writ of possession re: the subject property. 2. Motion to Quash, Vacate, and Dismiss Prior Hearing The Court was originally scheduled to hear this motion on 8/13/24. Prior to the hearing, the Court issued a tentative ruling continuing the hearing to 9/03/24 and permitting further briefing on the issue of whether Defendant was properly served with the summons, complaint, and related papers. The Court did so because Defendant only meaningfully raised this issue, and provided evidence, for the first time with its reply papers. The Court incorporates its 8/13/24 ruling into this ruling by reference. The most important part of the prior ruling was as follows: Defendant, in reply, argues that, even if Plaintiff did serve the papers on Jones by substitute service on Lucero, Lucero never gave the papers to Jones, and therefore default must be set aside. Defendant does not make clear that this argument applies to §473.5, but it appears that is the case. Again, Defendants evidence and argument are made for the first time in reply, which is not appropriate. These arguments should have been made in the moving papers, and the evidence should have been presented with the moving papers. Additionally, Defendant does not make clear that this argument applies to §473.5, and instead simply includes the information in the introduction section of the reply papers. Plaintiff objects to the Jones Declaration, filed with the reply, correctly noting that the evidence should have been included with the moving papers. Defendant filed a response to the objection, wherein Defendant argues Plaintiff had time to file a sur-reply per Code, Plaintiff refused to stipulate to continue the hearing to give Plaintiff time to respond to the declarations filed with the reply papers, the declarations were made necessary due to the opposition papers and were therefore the proper subject of reply, and Defendant did not have time to prepare all the declarations on the tight briefing schedule ordered by the Court. The Court finds the declarations most certainly should have been filed with the moving papers, as they go to the moving, not reply, burden on the motion. The Code does not permit a sur-reply, and Defendants argument that Plaintiff was permitted, per CCP §1005(b), to file a sur-reply until five days prior to the hearing is not supported by the cited portion of the Code itself, which refers to a reply and not to a sur-reply. That said, any prejudice to Plaintiff can be remedied by a brief continuance of the hearing to permit Plaintiff to substantively respond. The Court will briefly continue the hearing, as set forth below, to permit Plaintiff to substantively respond to the §473.5 argument and declarations submitted with the reply papers. Supplemental Papers On 8/15/24. Defendant filed a notice of intention to introduce oral testimony at the hearing. On 8/20/24, Plaintiff filed a supplemental opposition, wherein Plaintiff provides the Declarations of Henry Flores and Gilbert Lucero. Flores was the process server who served the summons, complaint, and related documents. He declares he served the papers on Lucero, who identified himself as the sales manager, and to whom he identified all papers being served. Lucero declares he was formerly employed by Defendant as its director of sales, he received the documents from Flores, and he gave the documents to the office manager, Deanna Jones; he declares he told Jones the nature of the documents. The Courts concern with Defendants request to introduce Joness oral testimony is that Plaintiff may be unable to present oral testimony from Flores and/or Lucero. Defendant made a proper request per CRC 3.1306(b). The Court, however, has discretion to grant or deny the request. See Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. It is difficult to make a credibility determination when one witnesss testimony is oral and the other witnesses testimony is written. The Court is inclined to allow Jones to testify, but will hear from Counsel at the hearing on this issue and will make a final decision on whether to allow Jones to testify after hearing from Counsel. The Court asks Counsel to make arrangements to appear remotely at the hearing on the above motion. Dated this 3rd day of September, 2024 Hon. Mark Kim Judge of the Superior Court

Ruling

KELLY WINE, ET AL. VS DEBORAH HAKMAN, ET AL.

Aug 30, 2024 |6/18/2022 |21SMCV01747

Case Number: 21SMCV01747 Hearing Date: August 30, 2024 Dept: I The matter is here for an FSC. The FSC order was given on June 20, 2022. No FSC materials have been filed other than one motion in limine by plaintiff (to which there was no opposition). The court is hopeful that this is because the parties have settled the matter. If so, that would be an excellent reason for the lack of FSC materials. But if not, the court is troubled. In either event, the case is NOT READY FOR TRIAL and the trial date is VACATED. The court will discuss that with counsel and if the case has not settled, the court will discuss the appropriate actions.

Ruling

SHELON DOUGLAS VS MOLLY WAGGONER, ET AL.

Aug 30, 2024 |23STCV01989

Case Number: 23STCV01989 Hearing Date: August 30, 2024 Dept: 55 Background Plaintiff Shelon Douglas brought this case against Defendants Molly Waggoner, Jason Waggoner, Keller Williams, Inc. (KW), and Doe defendants 1 to 50 alleging that they misrepresented the condition of a rental property. The Court granted KWs unopposed motion for summary judgment after a hearing in which Plaintiff failed to appear. Plaintiff moves for relief from judgment. Legal Standard Code of Civil Procedure section 473, subdivision (b), states in pertinent part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Generally, any neglect of the attorney is imputed to the client, who has the burden on the motion of showing this neglect was excusable. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682. 1. Whether Plaintiff Acted Diligently in Seeking Relief A motion for relief from judgment, shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Code Civ. Proc., § 473(b). [A] threshold requirement for relief is the moving party's diligence. Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420. Numerous courts have found no abuse of discretion in granting relief where the section 473 motions at issue were filed seven to 10 weeks after entry of judgment. A delay is unreasonable as a matter of law only when it exceeds three months and there is no evidence to explain the delay. Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34. Plaintiffs counsel provides in a declaration that he learned of the judgment on May 22, 2024. Burt Decl. ¶ 7. Plaintiff filed the instant motion on July 15, 2024. The Court concludes that this delay is not unreasonable, and that Plaintiff has demonstrated adequate diligence in seeking relief. 2. Whether Plaintiffs Counsels Failure to File an Opposition Constitutes Excusable Neglect In determining whether the attorney's mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circ*mstances might have made the same error. Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132 (quoting, Zamora v. Clayborn Contracting Group, Inc.¿(2002) 28 Cal.4th 249, 258) (internal quotation marks omitted). In Huh v. Wang (2007) 158 Cal.App.4th 1406, 1412 (Huh), the court found inexcusable an attorneys error in failing to oppose a motion for summary judgment due to a calendaring error. There, the attorney misfiled the summary judgment motion among completed work and did not calendar the hearing date or the due date of the opposition. Id. at 432. In contrast, the court in Comunidad en Accion, supra, 219 Cal.App.4th at 437. granted relief from dismissal based on single a calendaring error, distinguishing Huh by noting that the attorney in Huh made a series of errors resulting from disorganization. Here, Plaintiff argues its counsel failed to see the email notice of Defendants motion for summary judgment because he was in the process of onboarding a new paralegal to assist with new case management system. Burt Decl. ¶ 6. To assist with the calendaring process Plaintiffs counsel gave the paralegal temporary access to counsels email. Burt Decl. ¶ 6. Because Plaintiffs counsel did not see the email, he failed to file an opposition or appear at the summary judgment hearing. Because the record does not show Plaintiffs counsel engaged in a pattern of such neglect, the Court finds counsels failure to notice the email excusable. See Comunidad en Accion, supra, 219 Cal.App.4th at 437. A reasonably prudent person may fail to notice an email under any number of circ*mstances, including the ones present here. See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 137-138 (holding email warning of impending default inadequate because email communication is unreliable). Plaintiff has also attached a copy of his opposition to the motion for summary judgment, as required under Code of Civil Procedure Section 473(b). Accordingly, the Court grants Plaintiffs motion to set aside summary judgment. Conclusion For the reasons stated above, the Court grants the motion to set aside summary judgment. Plaintiffs opposition, separate statement, and supporting declaration shall be filed and served within 5 days of this order. The Court will set a new hearing date on Defendants motion for summary judgment at the hearing on this motion.

Ruling

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

Sep 03, 2024 |24SMCV02979

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

Ruling

RJRP FAMILY TRUST DATED 5/8/1995, ET AL. VS MARGARITA E. ROSIAK, ET AL.

Sep 03, 2024 |24STCV16648

Case Number: 24STCV16648 Hearing Date: September 3, 2024 Dept: 55 Background Plaintiffs RJRP Family Trust Dates 5/8/1995 and Richard J. Rosiak Settlor/Trustee (collectively, Plaintiff) brought this action against Defendant Margarita Rosiak and unknown defendants seeking to quiet title to the following properties: 1308 Campbell Drive, Las Vegas, NV 89102 1805 Villa De Conde Way, Las Vegas, NV 891021 1901 Villa De Conde Way, Las Vegas, NV 89102 1913 Villa De Conde Way, Las Vegas, NV 89102 Defendant demurs to the complaint. Rosiak filed a late declaration contesting the service of the demurrer and that the trust has been revoked and requesting a continuance of the demurrer and for sanctions. Plaintiff does not otherwise oppose the merits of the demurrer. The demurrer is granted. Judicial Notice The Court grants Defendants motion for judicial notice of the April 28, 2020, Notice of Revocation of the Trust (RJN #1) and the September 11, 2022, Nevada District Courts Findings of Fact and Conclusions of Law (RJN #2). Meet and Confer With the demurrer, Defendant filed a declaration of counsel attaching an email from defense counsel to Plaintiffs counsel. In the email, defense counsel explains the basis for the demurrer and requests to meet and confer with Plaintiffs counsel. Rosenthal Decl. and Ex. The declaration states that defense counsel received no response to the email. Id. Rosiak complains that defense counsel did not meet and confer with him about the demurrer, but of course, he is represented by counsel and thus defense counsel correctly sought to meet and confer with Rosiaks counsel, not Rosiak. Notably, Plaintiffs counsel does not dispute that defense counsel attempted to meet and confer with him about the demurrer or that Defendant served a copy of the demurrer to Plaintiffs counsel. The Court thus finds that Defendant has complied with the meet and confer requirement set forth under Code of Civil Procedure Section 430.41. Legal Standard When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. A demurrer tests the pleading alone, and not on the evidence or facts alleged. E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. Id. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538. Analysis 1. Whether Plaintiff has Standing To Sue Unlike a corporation, a trust is not a legal entity and lacks standing to sue or be sued. Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1343. Where a cause of action is prosecuted on behalf of an express trust, the trustee is the real party in interest because the trustee has legal title to the cause. Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427. When an action is mistakenly brought in the name of a trust, courts liberally allow amendments to permit substitution of the trustee as plaintiff. Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 149. A trust terminates when it is revoked. On termination of the trust, the trustee continues to have the powers reasonably necessary under the circ*mstances to wind up the affairs of the trust. The winding up process involves distribution and conveyance of the trust property to those entitled to it. Sterling v. Sterling (2015) 242 Cal.App.4th 185, 200 (citations omitted) (internal quotation marks omitted). Here, the complaint names both RJRP Family Trust Dated 5/8/1995 (the trust) and Richard J. Rosiak, as settlor and trustee, as plaintiffs. However, because a trust is not a legal entity and lacks the capacity to sue and be sued, Richard is the only plaintiff in this action. See Galdjie v. Darwish supra, 113 Cal.App.4th at 1343. The Court judicially notices the revocation of the trust. RJN #1; RJN #2 at p. 99 ¶ 54.2 This judicially noticed fact completely contradicts Rosiaks bald assertion that the trust was not revoked. However, just because the trust was revoked does not necessarily mean that Plaintiff lacks standing to sue as trustee. To the extent the suit is reasonably necessary to distribute trust property, Plaintiff has standing as trustee to bring it. 2. Whether Plaintiffs Cause of Action is Barred by Collateral Estoppel Where all of the facts necessary to show that an action is barred by [collateral estoppel] are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. Shine v. Williams-Sonoma, Inc. (2018) 23 Cal.App.5th 1070, 1076-1077. Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings. Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556 (quoting, Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896). Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82, 70 Cal.Rptr.3d 817. [A] decree of divorce which does not adjudicate or dispose of property interests does not bar a subsequent suit. On the other hand, a decree which does adjudicate property rights and makes a division is final as to the property which is actually divided. Lewis v. Superior Court (1978) 77 Cal.App.3d 844, 847. All requirements for collateral estoppel are present here. The four properties Plaintiff seeks to quiet title to were previously the subject of divorce proceedings between Plaintiff and Defendant in Nevada. RJN #2. The ownership of the properties, as between Plaintiff, both individually and as trustee, and Defendant was actually litigated and necessarily decided. RJN #2 p. 96-99, ¶¶ 44-54, p. 124. As determined by the Nevada court, the 2012 transfer of the three properties on Villa De Conde Way to the trust was void. RJN #2 p. 99, ¶ 54. In dividing the marital assets, the Nevada court awarded Defendant a 100% interest in each of the four properties at issue here. RJN #2 p.124. Because the Nevada divorce proceeding is final, on the merits, and Plaintiff was a party to that proceeding he is precluded from relitigating the issue here. Accordingly, the Court sustains Defendants demurrer. Rosiaks declaration does not dispute that the Nevada court already adjudicated the ownership of the properties he seeks to relitigate in this action. He instead asserts that Defendant did not serve the demurrer on him. As noted above, Plaintiff is represented by counsel and thus Defendant properly served Plaintiffs counsel with the demurrer. The proof of service attached to the demurrer demonstrates proper service and the Court does not find credible Rosiaks assertion that defense counsel fabricated the service of the demurrer and attempt to meet and confer. The Court declines both parties requests for sanctions. Conclusion Defendants demurrer is sustained without leave to amend.

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

HELEN GEZALAYAN, AN INDIVIDUAL VS BMW NORTH AMERICAN, LLC, ET AL.

Aug 30, 2024 |23STCV28112

Case Number: 23STCV28112 Hearing Date: August 30, 2024 Dept: 52 Tentative Ruling: Plaintiff Helen Gezalyans Motion to Compel Defendant BMW North American, LLCs Compliance with Responses to Request for Production Plaintiff Helen Gezalyan moves to compel defendant BMW of North America, LLC (BMW, erroneously sued as BMW North American, LLC) to respond to requests for production, set one. When the responding party fails to serve a timely response to requests for production, the requesting party may move for an order compelling a response. (CCP § 2031.300(b).) Failing to serve a timely response also results in waiving any objections. (Id., subd. (a).) BMW failed to serve a timely response to plaintiffs requests for production. Plaintiff served requests for production, set one, on BMW on March 20, 2024. (Simons Decl., ¶ 5, Ex. A.) On June 6, after BMWs deadline to respond, plaintiff sent a meet and confer letter to BMW. (Id., ¶ 6, Ex. B.) As July 18, when plaintiff filed this motion, BMW had not served any response to the requests for production. (Id., ¶ 8.) Plaintiff is therefore entitled to an order compelling responses without objections. Sanctions Plaintiff moves for $1,972.50 in sanctions against BMW and its counsel of record, Clark Hill LLP. Failing to respond to an authorized method of discovery is a misuse of the discovery process subject to monetary sanctions. (CCP § 2023.010(d).) BMW failed to respond to plaintiffs requests for production. BMW did not act with substantial justification. Sanctions are just under the circ*mstances. Plaintiff reasonably incurred $1,972.50 in expenses for this motion. Disposition Plaintiff Helen Gezalyans motion to compel responses to requests for production is granted. Defendant BMW of North America, LLC is ordered to serve verified responses without objections to plaintiffs requests for production, set one, within 30 days. Defendant shall produce all responsive documents in its possession, custody, or control concurrently with its written responses to the requests for production. Defendant BMW of North America, LLC and its counsel Clark Hill LLP are ordered to pay plaintiff Helen Gezalyan $1,972.50 in sanctions within 30 days. Defendant and its counsel are jointly and severally liable for the sanctions.

Ruling

HANAA ZLALI, ET AL. VS CHUNGCHUAN JOSEPH LEE, ET AL.

Aug 29, 2024 |23PSCV03132

Case Number: 23PSCV03132 Hearing Date: August 29, 2024 Dept: O Tentative Ruling DEFENDANT DIAMOND BAR VILLAGE ASSOCIATIONS DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT is SUSTAINED with leave to amend. Background This is a habitability case. Plaintiffs HANAA ZLALI, an individual; KARIM ZLALI, an individual; RITA SAYOUTY, a minor by and through their Guardian ad Litem Hanaa Zlali; and SULAIMAN ZLALI, a minor by and through their Guardian ad Litem, Hanaa Zlali allege the following against Defendants CHUNGCHUAN JOSEPH LEE (Lee); CHARLIE NANCHING (Nanching), an individual; THE AVALON MANAGEMENT GROUP, INC., a California corporation; DIAMOND BAR VILLAGE ASSOCIATION (DBV or the HOA): On February 1, 2021, Plaintiffs entered into a written lease agreement with Lee. Then, Nanching purchased the property from Lee and became the owner of the property; thus, on May 18, 2021, Plaintiffs entered into a lease agreement with Nanching. The unit was infested with water damage, termites, mold, mites, and other related allergens, all things which both Lee (and Nanching) knew about from Khatri Internationals 2017 report. On October 10, 2023, Plaintiffs filed suit asserting the following nine causes of action (COAs): 1. Tortious Breach Of Implied Warranty Of Habitability 2. Breach Of Contract 3. Negligence 4. Violation Of Business & Professions Code Section 17200 5. Fraud 6. Negligent Misrepresentation 7. Violation Of Civil Code Section 1942.4 8. Violation Of California Civil Code Section 1941.1 9. Constructive Eviction On March 6, 2024, Plaintiffs filed their first amended complaint (FAC) asserting the same COAs against the same defendants. On June 3, 2024, Plaintiffs dismissed Avalon. On June 6, 2024, Plaintiffs and DBV filed a JOINT STIPULATION TO STRIKE PLAINTIFFS FOURTH CAUSE OF ACTION AS TO DEFENDANT DIAMOND BAR VILLAGE ASSOCIATION. On July 8, 2024, DBV filed the instant demurrer. On August 16, 2024, Plaintiffs filed their opposition. On August 22, 2024, DBV filed its reply. On August 27, 2024, Nanching filed his answer. Discussion[1] Defendant DBV demurs to the 3rd COA for negligence. The negligence COA alleges that DBV had a duty to maintain and repair the subject property& As owners, operators and manager of the Subject Property, the [DBV] owed PLAINTIFFS the duty to exercise reasonable care in the ownership, management and control of the Subject Property& [DBV] breached their duty of care by negligently and carelessly failing to maintain and/or provide a safe and habitable unit, or in the alternative, completely covering the cost of reasonable alternate living accommodations until the ongoing habitability issues were fully remediated. (FAC p. 13.)[2] DBV demurs on the grounds that (1) Plaintiffs lack standing and (2) the action is time barred. (Demurrer p. 4:21-24.) Here, for reasons to be discussed below, the court agrees with DBV that Plaintiffs lack standing. 1. Whether a Third-Party (i.e., Lessor) Has Standing to Sue the HOA?[3] According to the HOA, in accordance with California Civil Code section 5975(a) and the CC&Rs, the HOA does not owe any duties to non-members/non-owners. California Civil Code §5975(a) (Enforcement of Governing Documents) provides: The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. (California Civil Code §§5975(a), emphasis added.) On page 7, Section 2.03 titled Membership, the CC&Rs state in relevant part the following: Ownership of a Condominium shall be the sole qualification for Membership in the Association. Section 2.04 titled Transfer, states the following in relevant part, The Membership held by any Unit Owner shall not be transferred, pledged or alienated in any way, except upon the sale or encumbrance of such Unit Owners Condominium, and then only to the purchaser or Beneficiary of such Condominium. (emphasis added.) Here, as Plaintiffs are not owners and thus not members of the HOA, they may not enforce the equitable servitude to maintain the premises in a safe, healthy, and habitable condition. (FAC ¶61.) To the extent that Plaintiffs argue they are required to sue the HOA instead of the individual owner of the property (Opp. p. 5:8-10), not so. Plaintiffs cite to Civil Code 5805. The statute provides the following: (a) It is the intent of the Legislature to offer civil liability protection to owners of the separate interests in a common interest development that have common area owned in tenancy-in-common if the association carries a certain level of prescribed insurance that covers a cause of action in tort. (b) Any cause of action in tort against any owner of a separate interest arising solely by reason of an ownership interest as a tenant-in-common in the common area of a common interest development shall be brought only against the association and not against the individual owners of the separate interests&.(emphasis added.) Effectively, that statute is inapplicable as both the plain language and legislative history behind the statute pertains to liability of individual condominium unit owners when a third party is injured in the common area; here, the purported duties are as to the unit itself.[4] To the extent that Plaintiffs argue they are alleging duties to maintain the common areas like the roof of the project (Opp. p. 6:6-7), the negligence COA is not limited to certain substandard conditions in the common area. (See Reply p. 3.) As explained by Defendant, Plaintiffs allege that they have suffered personal injuries related to serious adverse reactions to mold growth including rashes, itching, redness, swelling, and other allergy related symptoms. (Complaint ¶27). They alleged that these injuries were due to a water leak at the subject property and that a visible lack substance was discovered in the closet wall abutting the restroom, carpet, and under the kitchen sink. (Complaint ¶27). This area has nothing to do with Defendant HOA. Ultimately, as articulated by DBV, the Plaintiffs have failed to correlate their alleged personal injuries with any area in which Defendant HOA had a duty to maintain, and a negligence COA requires that any breach(es) be the proximate or legal cause of the resulting injury. (Demurrer p. 6, citing Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Therefore, the court agrees with DBV that the 3rd COA is uncertain and fail to state facts sufficient to constitute a negligence COA. Conclusion Based on the foregoing, the demurrer is SUSTAINED with leave to amend. At this juncture, the court need not address the SOL argument. [1] DBVs unopposed request for judicial notice (RJN) is granted. [2] As the complaint largely incorporates previous allegations by reference (and it is not the courts duty to determine what purported breaches are at issue), the court focuses on the specific allegations pled in the negligence COA to determine the relevant allegations. [3] Plaintiffs concede they are third parties. (See Opp. p. 5:7-8 [That Section 5975 permits owners to sue the Association does not somehow imply a prohibition on third parties suing the Association.]; 9-10 [third parties to sue a common interest development through its homeowners association rather than every individual owner of the property]; p. 6, fn. 1.) [4] In fact, this purpose is evidenced by Plaintiffs citation to Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, which was a case wherein a resident fell downstairs in the common area.

Document

U.S. Bank National Association, Not In Its Individual Capacity But Solely As Trustee For The Rmac Trust, Series 2016-Ctt v. Cassandra Dussek AKA CASSANDRA F. DUSSEK, Toyota Motor Credit Corporation, John Doe

Oct 21, 2019 |Sam D. Walker |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |67486/2019

Document

U.S. Bank National Association As Trustee, Successor In Interest To Bank Of America, National Association As Successor By Merger To Lasalle Bank Na As Trustee For Washington Mutual Mortgage Pass-Through Certificates Wmalt Series 2007-Oc2 Trust v. Geraldina M. Pagnotta AKA GERALDINA PAGNOTTA, Donato Pagnotta, Mortgage Electronic Registration Systems, Inc., As Nominee For Rbs Citizens, N.A., Marin Riveros, Freddie Lopez, Patricia Lopez

Jun 22, 2018 |Nancy Quinn Koba |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |59783/2018

Document

Dec 29, 2022 |Joan B. Lefkowitz |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |69764/2022

Document

U.S. Bank Trust National Association -NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR RCAF ACQUISITION TRUST v. Michelle B. Torrente, Ursel Torrente, New York State Department Of Taxation And Finance, Mario Rojas

May 01, 2023 |David F. Everett |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |60456/2023

Document

Flagstar Bank, Fsb v. Dulce Santana A/K/A DULCE M. SANTANA A/K/A DULCE MARQUEZ, Mortgage Electronic Registration Systems, Inc., As Nominee For Flagstar Bank, Fsb, Doe aka dulce santana aka dulce m santana aka dulce marquez dba dulce's family day care

May 01, 2019 |Charles D. Wood |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |56849/2019

Document

U.S. Bank Trust, N.A., As Trustee For Lsf1 1 Master Participation Trust v. Maria A. Vanderlinde, Sustainable Neighborhoods, Llc, Lvnv Funding, Llc, John Doe #1-5 And Jane Doe #1-5 Said Names Being Fictitious, It Being The Intention Of Plaintiff To Designate Any And All Occupants, Tenants, Persons Or Corporations, If Any, Having Or Claiming An Interest In Or Lien Upon The Premises Being Foreclosed herein

Jan 03, 2020 |_ D FORECLOSURE JU |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |50074/2020

Document

The Bank Of New York Mellon Fka The Bank Of New York , AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWABS, INV., ASSET-BACKED CERTIFICATES, SERIES 2007-10 v. Andrea Samuels, John Doe -S/H/A John Doe #1, Jane Doe -S/H/A John Doe #2

Jul 25, 2022 |Nancy Quinn Koba |Real Property - Mortgage Foreclosure - Residential |Real Property - Mortgage Foreclosure - Residential |62746/2022

Document

Board Of Managers Of Stone Ridge At Rye Condominium v. James R. Schoeller, Gwendolyn Schoeller

Aug 30, 2022 |David F. Everett |Real Property - Other (Condominium Foreclosure) |Real Property - Other (Condominium Foreclosure) |64182/2022