Pnc Bank, National Association V. The Frank Realty Company

U.S. BANK TRUST, N.A. VS. SELLS Case Number: 22CV-0200669 Tentative Ruling on Order to Show Cause Re Dismissal: An Order to Show Cause Re Dismissal (hereinafter “OSC”) issued May 31, 2024, to Plaintiff’s Counsel for failure to submit a proposed judgment as ordered on September 25, 2023. Counsel has submitted a response to the OSC Re: Dismissal, and a Request to Vacate an Order of Sanctions that was made by Judge Boeckman on May 28, 2024. The Court declines to vacate its May 31, 2024 Order imposing sanctions. That issue is not properly before the Court. That order was issued by another judge and Counsel failed to appear at the hearing on that matter. A proposed judgment was lodged with the Court on June 24, 2024. However, the Court notes that the proposed judgment identifies two street addresses for the subject property, each of which are different from the street address identified in the Request for Court Judgment by Default. The Court needs further clarification as to the correct address. The ‘correctness’ of the judgment is not at issue in the instant OSC. Only the failure to timely provide the Court with a proposed judgment is at issue in this hearing. Having reviewed counsel’s declaration, the Court finds good cause to vacate the instant OSCThe Court confirms today’s review hearing set for 9:00 a.m. ****************************************************************************** 9:00 a.m. Review Hearings ******************************************************************************

C24-00316 CASE NAME: CONTRA COSTA COUNTY FIRE PROTECTION DISTRICT VS. THE HEIRS AND DEVISEES OF P.J. MOODY, DECEASED, AND ALL PERSONS CLAIMING BY, THROUGH, OR UNDER THE DECEDENT *HEARING ON MOTION IN RE: FOR PREJUDGMENT POSSESSION OF PROPERTY FILED BY: CONTRA COSTA COUNTY FIRE PROTECTION DISTRICT *TENTATIVE RULING:* This motion for prejudgment possession is expressly unopposed, and it is granted.

C23-02391 CASE NAME: OLD REPUBLIC TITLE COMPANY VS. JEANNIE GREGORI HEARING ON DEMURRER TO: FIRST AMENDED CROSS-COMPLAINT OF JEANNIE M. GREGORI FILED BY: GREGORI, GILBERT J. *TENTATIVE RULING:* Vacated, the cross-complaint was dismissed on June 26, 2024. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/10/2024

Case Number: 21STCV43201 Hearing Date: July 16, 2024 Dept: 61 JILL GREENBERG 2019 TRUST vs ERNEST FINANCIAL, LLC, et al. (Commercial) TENTATIVE Plaintiff Jill Greenberg as Trustee of Jill Greenberg 2019 Trusts Motion to Compel Deposition of Defendant David Bogner is GRANTED. Sanctions are awarded against Bogner in the amount of $2,660.00, payable to Plaintiff within 30 days. DISCUSSION I. MOTION TO COMPEL DEPOSITION A party may make a motion compelling a witnesss deposition after service of a deposition notice if that witness fails to appear for examination, or to proceed with it. (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).) Plaintiff Jill Greenberg as Trustee of the 2019 Jill Greenberg Trust (Plaintiff) moves to compel the deposition of Defendant David Bogner (Bogner). Plaintiff presents evidence that Bogner was served with a deposition notice on April 4, 2024, noticing his deposition to take place on May 10, 2024. (Paya Decl. ¶ 3.) Bogner served objections on May 1, 2024, and did not appear. (Paya Decl. ¶ 8, Exh. 2.) Bogner in opposition argues that Plaintiff did not attempt to meet and confer before filing this motion, as required under Code of Civil Procedure § 2025.450, subd. (b)(2).) (Opposition at pp. 23.) However, Plaintiff presents email correspondence in which Plaintiff sought to confirm Bogners appearance for deposition, and addressed the objections thereto served by Bogner. (Paya Decl. Exh. 2.) This was sufficient prelude to the present motion. Bogner argues that there is no showing that the notice of deposition was served on him, based on the unsigned proof of service attached to the notice of deposition.(Opposition at p. 3; Paya Decl. Exh. 2.) But Plaintiffs counsel attests that it was served (Paya Decl. ¶ 3), and Bogner presents no evidence to the contrary. Indeed, Bogner served objections to the notice, indicating that it was indeed served upon him. (Paya Decl. Exh. 2.) Bogner argues that the motion has made no showing to rebut his objections to the notice. (Opposition at p. 3.) But it is not Plaintiffs burden to rebut Bogners objections; it is Bogners burden to support the objections he offers. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220 [[H]e who asserts the affirmative of an issue has the burden of proving it.].) Bogner argues that the motion includes no separate statement related to the document requests to which he offered objections, as required by California Rules of Court (CRC) Rule 3.1345, subd. (a). (Opposition at p. 4.) However, such a document would serve little purpose here, as Bogner presented the same boilerplate objection to each request for production. (Paya Decl. Exh. 2.) These 18 requests relate to the subject property and Bogners income therefrom, and relate to the subject matter of this action, which includes Bogners failure to pay rent on the property and alleged damages resulting from its re-rental to another party. (Paya Decl. Exh. 1.) Bogner has made no effort to support the objections here. The motion is therefore GRANTED. I. SANCTIONS If a motion to compel deposition is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).) Plaintiff seeks sanctions against Bogner and his counsel in the amount of $3,960.00, representing six hours of attorney work at $650 per hour, plus a $60 filing fee. (Paya Decl. ¶ 9.) Sanctions in this amount are warranted against Bogner. However, Bogners counsel has been attempting to secure leave from this court to be relieved as counsel for Bogner, based on his clients non-responsiveness. Such was made clear to Plaintiff in the parties meet-and-confer correspondence. (Paya Decl. Exhs. 1, 2.) It therefore appears that Bogner alone, rather than his counsel, is responsible for his failure to appear. Accordingly, sanctions are awarded against Bogner, and not his counsel. However, the Court finds that four hours of attorney time is reasonable and reduces the sanctions accordingly to $2660.00.

Real Property/Housing Court Law and Motion Calendar for July 15, 2024 line 1. DEFENDANT A-NHI LE INDIVIDUALLY AND AS TRUSTEE OF THE QU YAN KUANG AND A-NHI LE REVOCABLE TRUST Notice Of Motion And Motion To (1) Reopen Discovery For The Limited Purpose Of Compelling Plaintiffs Deposition; And (2) Compel Plaintiffs Deposition Request For Sanctions Of $10,495.00 Against Plaintiff Enkhdul Batsukh And Her Attorneys Of Record, Thomas W. J. Purtell, Esq. And The Law Offices Of Thomas W.J. Purtell; Memorandum Of Points And Authorities is granted in part. Plaintiff's deposition shall occur on a mutually agreeable date no later than July 19, 2024. Defendants are awarded sanctions against plaintiff and her attorney in the amount of $3,137.50, consisting of ten hours or reasonable attorney time at the reasonable rate of $225 per hour plus .3 hours of reasonable attorney time at the reasonable rate of $275 per hour plus costs of $805. Plaintiff's request in her conditional non-opposition papers for affirmative discovery relief is not considered in connection with defendants' motion because it was not properly raised in opposition papers and, in all events, now appears to be the subject of a separate noticed motion to be heard on August 1, 2024. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.

At the June 10, 2024, case management conference, the court noted that the court was not lifting the discovery stay at that time and without a Phase 1 discovery plan in place. The court required the parties to meet and confer as to such a discovery plan, including whether the participation of a discovery referee/ special master is appropriate in the formulation of such plan. This issue was identified as being a subject of discussion at this, the next CMC. The parties have filed numerous documents addressing the appointment of a discovery referee/ special master and made alternative proposals. The proposals address the following subjects: (1) Appointment of a special master or discovery referee; (2) The scope of the authority of the special master or discovery referee; (3) Discovery dispute procedures; (4) Who is to be appointed as a special master or discovery referee; and, (5) Allocation of fees and costs of the special master or discovery referee. (1) Appointment of a special master or discovery referee The first issue presented is whether the position to be appointed should be that of a special master under Code of Civil Procedure section 845 or a discovery referee pursuant to Code of Civil Procedure section 639. (Note: Insofar as the parties have filed papers in groups that are not easily identified by a common name, non-plaintiff party groups are identified herein for ease of writing by a shortened version of the name of the first named party in that group’s own list of parties.) Plaintiffs propose appointment of a special master, with the order specifically noting that the special master is not subject to disqualification pursuant to Code of Civil Procedure section 170.6. Defendants City of San Buenaventura, City of Oxnard, City of Camarillo, Calleguas Municipal Water District, The Proctor & Gamble Paper Products Company, R.N. Daily Ranch, LLC, Archdiocese of Los Angeles, The Roman Catholic Archbishop of Los Angeles, Archdiocese of Los Angeles Education & Welfare Corp., St. John’s Seminary in California, Camrosa Water District, California-American Water Company, United Water Conservation District, and the Marathon 100 defendants (consisting of Marathon Land Inc. and 99 other landowner defendants) filed a separate proposal for the appointment of a discovery referee rather than a special master (the San Buenaventura Response, and sometimes collectively, the Diverse Defendants Coalition). Defendant Fox Canyon Groundwater Management Agency (FCGMA) joins this proposal. Defendants Oxnard Union High School District, Rio School District, and Vineyard Mutual Water Company filed a partial joinder to the above-defendants’ proposal (the Oxnard Union Response). This partial joinder does not specifically take a position with respect to the issue of special master as opposed to discovery referee (although it uses the term “discovery referee throughout”). Defendant Intervenors Pleasant Valley County Water District, Guadalasca Mutual Water Company, and defendants John S. Broome and Rancho Guadalasca, LLC, filed a response to both proposals (the Pleasant Valley Response) in which they state that they do not oppose the description of the role and accompanying tasks as described in either proposal. Defendant Arnold H. Meyerstein, trustee of the Meyerstein Family Trust filed a partial joinder in the above-defendants’ proposal (the Meyerstein Trust Response), stating on this issue: “Whether titled ‘discovery referee’ or ‘special master’, the appointee should be given functions that include discovery referee and retaining a data consultant for the initial disclosures’ compilation, manipulation, analysis, and presentation. An appropriate title would insulate the appointee from disqualification challenges.” Defendant Deardoff-Jackson Company filed an opposition to plaintiffs’ proposal (the Deardoff-Jackson Response) focusing on cost allocation (discussed below) and not taking a position on the issue of special master or discovery referee. (Note: Deardoff-Jackson Company identifies itself as self-represented in its caption and is signed by an individual on its behalf. As plaintiffs note in their opposition, an entity may not appear in litigation without an attorney of record. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 [“[A] corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.”].) This representation issue is not now before the court, but needs to be addressed by Deardoff-Jackson Company.) Defendants Saticoy Properties, LLC, State Ready Mix, Inc., and State Ready Mix Recycling, Inc., filed a response (the Saticoy Response) stating their position with respect to the person to be appointed, particularly responding to the above-defendants’ proposal. Defendant United States filed a response (the United States Response) which generally supports the appointment of a third-party neutral, whether as a referee or special master. Defendants John W. Borchard, Jr., trustee, Suzanne Kelly, trustee, J. David Borchard, trustee, Marilyn Bachler Unruh, trustee, Edward B. Chamberlain, trustee, Hibbs Properties, LLC, Jacob J. Talbot, and Angelina C. Juaraz filed a response to both proposals (the Borchard Response). These defendants support appointing a special master. These parties have also filed responses to other parties’ contentions. The court has reviewed all of the papers filed by the parties. The difference between a special master under section 845 and a discovery referee under section 639 is one of breadth. A special master under section 845 may have broad authority under the direction of the court. “The court may appoint one or more special masters whose duties may include the following: “(1) Investigating technical and legal issues, as directed by the court. The special master shall compile a report of findings in accordance with Section 846. “(2) Conducting joint factfinding with the parties, their designees, or both. “(3) Investigating the need for, and developing a proposal for, a preliminary injunction pursuant to Article 13 (commencing with Section 847). “(4) Performing other tasks the court may deem appropriate.” (Code Civ. Proc., § 845, subd. (a).) “The special master shall make a draft report available to the parties and provide at least 60 days for the parties to submit written objections to the draft report.” (Code Civ. Proc., § 846, subd. (a).) “An objection to the draft report shall identify the specific grounds and evidence on which the objection is based.” (Code Civ. Proc., § 846, subd. (b).) “The special master may notice and hold hearings, as he or she deems appropriate, to gather information or address issues raised in the objections to the draft report.” (Code Civ. Proc., § 846, subd. (c).) “The special master shall consider the objections to the draft report and develop a final report that shall be filed with the court, together with supporting evidence.” (Code Civ. Proc., § 846, subd. (d).) By contrast, a discovery referee under section 639, where the appointment is not with the consent of all parties, has much narrower authority. “When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: “(1) When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein. “(2) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. “(3) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action. “(4) When it is necessary for the information of the court in a special proceeding. “(5) When the court in any pending action determines that it is necessary for the court 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.” (Code Civ. Proc., § 639, subd. (a).) “In a discovery matter, a motion to disqualify an appointed referee pursuant to Section 170.6 shall be made to the court by a party either: “(A) Within 10 days after notice of the appointment, or if the party has not yet appeared in the action, a motion shall be made within 10 days after the appearance, if a discovery referee has been appointed for all discovery purposes. “(B) At least five days before the date set for hearing, if the referee assigned is known at least 10 days before the date set for hearing and the discovery referee has been assigned only for limited discovery purposes.” (Code Civ. Proc., § 639, subd. (b).) “When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action.” (Code Civ. Proc., § 639, subd. (c).) Two issues are presented by the parties in their discussion of this issue. The first is the application, if any, of disqualification pursuant to section 170.6. Some parties have indicated their intent to exercise whatever rights they have under section 170.6 if the appointed discovery referee is not acceptable to them. (E.g., Saticoy Response, at p. 3.) Others have argued that section 170.6 disqualification absolutely does not apply to groundwater adjudications regardless of what section is used as the basis for appointment of a neutral. (See Code Civ. Proc., § 838, subd. (c).) The court agrees with the point made by the Meyerstein Trust that an appropriate title may obviate issues regarding the application of section 170.6—if indeed it has any application here. Moreover, as discussed below regarding scope, the tasks to be performed by the third-party neutral are now envisioned to be a bit broader than that typically assigned to a discovery referee under section 639. Accordingly, the court determines that the appropriate approach is to appoint a special master under section 845. (2) Scope of Authority and Discovery Dispute Resolution As the court indicated in its prior rulings, the initial stage of Phase 1 is to gather and exchange information necessary to address Phase 1 issues, whether by settlement or trial. In order to accomplish this effectively, a discovery plan is required before the parties commence discovery. The task of the special master will be to evaluate the scope of available information through initial disclosures and the discovery needs of the parties. The court expects this evaluation will lead to a reasonable and efficient discovery plan, including appropriate deadlines and guideposts. The court will leave it to the special master to take appropriate steps to see this occurs expeditiously. To the extent that discovery disputes arise in the course of discovery, the court will assign to the special master the resolution of all such disputes, subject to review by the court. Again, the special master may accomplish this in whatever manner is most appropriate and is consistent with law. The court will not constrain the special master to any specific briefing procedure or schedule. It is not now contemplated that that special master would act independently to investigate or to find facts. It is also not now contemplated that that the special master engage any third parties to collect, organize, or distribute data. It may, or may not, prove advisable to do so after the discovery plan is developed, but the court prefers a recommendation or proposal from the special master before authorizing such additional expense or expanding the scope of the special master’s commission. (3) Special Master Appointment Plaintiffs propose a special master to be appointed from among: (i) Hon. Patrick J. Walsh (ret.); or (ii) Hon. Mitchell Beckloff (ret.). The San Buenaventura Response proposes a special master to be appointed from among: (ii) Hon. Mitchell Beckloff (ret.); (iii) Hon. Jack Komar (ret.); or (iv) Hon. James Smith (ret.). This proposal is joined by FCGMA. Certain of those joining the San Buenaventura Response have expressed reservations as to the appointment of Judge Walsh. The Oxnard Union Response joins in the proposal of Judge Beckloff, but does not oppose the appointment of Judge Walsh. The Pleasant Valley Response also supports the appointment of either Judge Beckloff or Judge Walsh. The United States Response supports the appointment of Judge Beckloff, or if Judge Beckloff is not available, the appointment of Judge Walsh. The Borchard Response supports either Judge Beckloff or Judge Walsh. The Meyerstein Trust Response supports the appointment of Judge Beckloff. The Deardoff-Jackson Response does not take a position on who should be appointed, but disputes whether a special master is required (and more particularly how a special master should be compensated). The Saticoy Response supports the appointment of Judge Walsh and opposes the appointment of Judge Komar. Based upon the totality of these responses, it appears that Judge Beckloff is the best candidate, being both qualified and not subject to any party’s specific objection. At least as of May 23, 2024, Judge Beckloff has confirmed that he is available and willing to be considered for this appointment. (Newmark decl., dated July 12, 2024, ¶ 3.) Subject to confirmation that Judge Beckloff remains available, the court will appoint Judge Beckloff as special master. (4) Allocation of Special Master Fees and Costs The most contentious issue presented here is the manner is which the fees and costs of the special master are allocated among the parties to this litigation. (Note: A separate discussion of caps follows the allocation discussion, below.) There are several alternatives and qualifications proposed: (i) Plaintiffs propose a two-category approach to allocation. Category 1, work that impacts specific parties litigating specific issues, and category 2, work generally assisting all parties. Category 1 fees and costs would be allocated by the special master only to the parties litigating those issues, making recommendations as to the allocation among those parties. Category 2 fees would be allocated one-third pro-rata by law firm (or party if self-represented), and two-thirds pro-rata by each party’s average annual groundwater pumped from the OPV Basins between 2017 and 2019 as reported to FCGMA. The United States by statute is exempt from all such fees, and the United States’ share is not considered in determining pro rata amounts. (All parties appear to acknowledge the exemption of the United States from these fees and costs. All further discussions and proposals, below, should be understood to include this exemption. Because the United States is exempt, it takes no position as to allocation among the other parties.) (ii) The San Buenaventura Response, joined by FCGMA, also proposes a two-category approach based on specific (category 1) and general (category 2) special master activities. For category 1 fees and costs, the fees should be split equally between the moving (50 percent) and responding (50 percent) parties. Category 2 fees and costs should be allocated 50 percent to plaintiffs and 50 percent to defendants, with the respective 50 percent amount further divided equally by party. (iii) The Oxnard Union Response joins the San Buenaventura proposal, but notes that some parties may need to seek relief because of their size or circumstances and that for category 1 fees and costs the special master should be able to recommend shifting fees based upon the nature of the discovery conduct. (iv) The Pleasant Valley Response supports a cost-sharing framework that is representative of each party’s draw on the Basin’s resources and so supports plaintiffs’ proposal and does not support the San Buenaventura Response proposal. (v) The Meyerstein Trust Response proposes a meet and confer as to allocation after initial disclosures are assessed, but there should be a distinction between non-participant defendants. The Meyerstein Trust Response proposes, as among defendants, an initial allocation of $50 for each defendant individual or family landowner or small non-profit entity and granting exemptions for entities seeking 2 AFY or less and farming in a disadvantaged community or classed as a small farmer under Code of Civil Procedure section 850, with the remainder allocated by stipulation. (vi) The Saticoy Response does not take a position on allocation of fees and costs. (vii) The Deardoff-Jackson Response opposes the plaintiffs’ proposal, arguing that category 2 work does not actually benefit self-represented defendants who should not have to pay any special master fees or costs. While questioning whether there is any value to special master work for that class of defendants, this response suggests that plaintiffs should pay all such costs as the principal beneficiary of such costs. Apart from the abstract formula to be used to allocate costs, these proposals also point out the numerical effect of these choices given the number of parties and the total amount of funds to be raised by the allocation. With respect to the total amount of funds, plaintiffs propose a cap of $250,000 without further court authorization. The San Buenaventura Response proposes an initial cap of $200,000. Neither of these proposals provide a factual basis for these amounts. With respect to number of plaintiffs, the declaration of counsel for the City of Oxnard, attorney Gregory Newmark, provides a count of the parties by position in this litigation: 462 parties, of which 168 are plaintiffs, collectively represented by one firm, and 294 defendants. (Newmark decl., dated July 12, 2024, ¶ 8.) If $200,000 is allocated first 50/50 plaintiffs/defendants and then per party, the results would be: each plaintiff would pay $595.24; each defendant would pay $340.14. If $200,000 is allocated strictly per party, each party would pay $432.90. These numbers would, of course, change with the respective denominator as parties may be excluded for reasons of size or circumstance. Under plaintiffs’ proposal the allocation is more complicated because it depends on how each party is represented and how much water each party is reporting as pumped. Everyone appears to agree that the United States is statutorily exempt from being charged with any such fees. Consequently, that exemption, including the exclusion of the United States from any pro-rata calculation, will be part of the court’s order. As a general proposition, the court agrees as to category 1 fees and costs that the parties engaged in a discovery dispute should initially bear the fees and costs associated with that dispute 50 percent to the moving party or parties and 50 percent to the responding party or parties, with the special master being authorized to recommend a reallocation of such fees and costs depending upon the circumstances of the particular dispute. As this is consistent with discovery practice involving discovery referees in less complex cases, there does not appear to be substantial dispute about this allocation method for this type of fees and costs. The court’s authority as to special master fees is as follows: “The court shall fix the special master’s compensation on the basis and terms stated in the appointing order, and the court may set a new basis and new terms after giving the parties notice and an opportunity to be heard. The court shall allocate payment of the special master’s compensation among the parties in an amount and a manner that the court deems equitable. The court may waive a party’s obligations to pay the special master’s compensation upon a showing of good cause.” (Code Civ. Proc., § 845, subd. (b).) The difficulty with allocating category 2 fees and costs is that each of the proposals is equitable in some respects and not equitable in others. The two principal competing equitable concepts are that “[h]e who takes the benefit must bear the burden” (Civ. Code, § 3521) and “[e]quality is equity” (In re Miller’s Estate (1963) 212 Cal.App.2d 284, 298). As to benefits and burdens, those whose participation in this litigation is minimalist should not be burdened to the same extent as those who are lead players. The suggestion of setting a threshold of 2 AFY appears to be reasonable (i.e., that to obtain such an exemption a party would file a stipulation that it does not, and will not, seek more than that amount in this litigation ), although the effect of such a threshold on the remaining parties, either in dollars or as a denominator, is unclear. The court is concerned about the perception suggested in some papers that an allocation of such costs may become a “pay to play” regime. However, the amounts under discussion for special master fees and costs are modest, especially compared with the attorney fees and other party litigation costs and considering the significance of the rights of each party being resolved by this litigation. At the same time, the court finds it equitable that if certain parties are unequally benefitting from the special master proceedings (not by virtue of success in making or opposing proposals, but in the underlying purposes of the proceedings) it may be appropriate for those parties to bear a larger share of the expenses. This may make allocation in some sense correlate to the size of their claim of water rights or to some other measure of significance of the discovery proceedings. Whatever might eventually be the best answer (there is clearly no obvious “right” answer), the court is not in a position to anticipate such a nuanced allocation at this time. This analysis suggests that the issue should be reviewed later with input from the special master. In terms of “equal” allocations, the court does not favor any allocation that is proportional to the number of law firms or self-represented individuals. One fairness issue raised as to such an allocation (one-third of category 2 fees and costs under plaintiffs’ proposal) is that because plaintiffs are collectively represented by one law firm, under such an allocation all plaintiffs would have only one share of a third of the costs, as compared with one share for each separately represented party. Parties already receive a benefit from sharing their attorney fees based upon the work of their attorneys and the economies of scale that may apply to such sharing. The underlying benefit to the parties is not dependent upon party choice to prefer unique representation or small groupings of litigants. This aspect of plaintiffs’ proposal is rejected. As between a “per party” (irrespective of position in the litigation) allocation and a plaintiff-defendant split first followed by an allocation among plaintiffs and defendants, respectively, the difference is, based on the numbers presented but not adjusted for exemptions, not very significant in absolute dollars. Because the court will not resolve these issues now, further discussion among the parties of this issue is warranted. The court reminds the parties that the aggregate cost in attorney time of an aggressive dispute is likely to exceed whatever savings might be achieved through an otherwise “more favorable” allocation scheme. This leaves the following issues outstanding: (1) Is Judge Beckloff willing to accept this appointment at this time? Assuming he remains willing: (2) How much money is necessary for the organizational meetings/ hearings with Judge Beckloff? Once the amount necessary for start-up is determined, the court will finalize an initial allocation to assess this amount from the parties. This initial allocation is not intended to represent the interim or final allocation, but is to get the process started so that Judge Beckloff can provide a recommendation as to the allocation and mechanism for ongoing payments. To the extent the initial allocation differs from the interim or final allocation, the court expects to address the interim or final allocation retroactively so that any relative over-payments or under-payments made initially are credited or debited against the allocation as if it had been initially determined. The parties’ further input or agreement regarding this initial allocation is also needed. (3) What process should exist to determine exemptions from assessment on the basis of de minimis participation or other circumstances? (4) What orders are necessary to meet statutory requirements to appoint and effect the special mastership as discussed herein? The court will make such orders at the next case management conference. This leaves the final issue of when the next case management conference should be held given the need to meet and confer as discussed herein. There is now a case management conference scheduled for August 9, 2024. Counsel will need to be able to discuss whether this case management conference should be rescheduled.

Case Number: 22TRCV00944 Hearing Date: July 15, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Monday, July 15,2024 Department M Calen dar No. 7 PROCEEDINGS Christopher Nowlin, et al. v. Coastline Real Estate Advisors, Inc., et al. 22TRCV00944 1. Coastline Real Estate Advisors, Inc.s Motion for Judgment on the Pleadings 2. Coastline Real Estate Advisors, Inc.s Motion to Strike TENTATIVE RULING Coastline Real Estate Advisors, Inc.s Motion for Judgment on the Pleadings is denied, in part, granted without leave to amend, in part, and granted with 20 days leave to amend, in part. Coastline Real Estate Advisors, Inc.s Motion to Strike is denied, in part, granted with 20 days leave to amend, in part, and moot in part. Background Plaintiffs filed the Complaint on October 13, 2022, and the First Amended Complaint on January 16, 2024. Plaintiffs allege the following facts. Plaintiffs were tenants at the property that was owned and managed by the Defendant. The property suffered from mold and other substandard conditions that were not repaired. Plaintiffs were harassed and constructively evicted. Plaintiffs allege the following causes of action: 1. Nuisance; 2. Violation of Civil Code 1940.2; 3. Breach of Contract; 4. Breach of the Implied Covenant of Quiet Enjoyment; 5. Negligence; 6. Negligent Infliction of Emotional Distress; 7. Breach of the Implied Warranty of Habitability; 8. Intentional Misrepresentation. Meet and Confer Defendant filed meet and confer declarations in sufficient compliance with CCP § 439 and CCP § 435.5. (Decl., Susan Gruskin, ¶¶ 4-6.) Motion for Judgment on the Pleadings A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Code Civ. Proc., § 438, subd. (f). Except as provided by statute, the rules governing demurrers apply. Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012. Judgment on the pleadings is proper when the complaint does not state facts sufficient to constitute a cause of action against the defendant. Rolfe v. Cal. Transp. Commn (2002) 104 Cal.App.4th 239, 242; see also Code Civ. Proc., § 438, subd. (c)(3)(B)(ii). Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Civic Partners Stockton, LLC , supra , 218 Cal.App.4th at p. 1013. In ruling on a motion for judgment on the pleadings, [a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true. Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313. Defendant moves for judgment on the pleadings as to the first through fourth and sixth through eighth causes of action on the grounds that the causes of action fail to state facts sufficient to state a cause of action. First, the Court addresses Defendants argument that Plaintiffs made changes and additions to the Complaint in the First Amended Complaint. Under the sham pleading doctrine, a pleader cannot circumvent prior admissions by amending a pleading without explanation. Womack v. Lovell (2015) 237 Cal.App.4th 772, 787. Here, while there are a few minor changes in dates and additional facts alleged, nothing rises to the level of significant admissions that are attempted to be circumvented with the amended pleading. The sham pleading doctrine does not apply in this instance. First Cause of Action for Nuisance The motion for judgment on the pleadings as to the first cause of action is denied. Plaintiffs state facts sufficient to state a cause of action. Civil Code section 3479 defines a nuisance as [a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919. The elements of an action for private nuisance are: First, the plaintiff must prove an interference with his use and enjoyment of his property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer substantial actual damage. Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63 (internal citations and quotations omitted). A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land. Pursuant to Civil Code section 3501, a plaintiff seeking to remedy a private nuisance is limited to a civil action or abatement. Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land.... [T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public. Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262 (internal citations and quotations omitted). Here, Plaintiffs have alleged sufficient facts to state a cause of action based on private nuisance. Plaintiffs have alleged facts that Defendant interfered with Plaintiffs use and enjoyment of the property by failing to promptly remedy the water leak issue and subsequent mold, as well as numerous other instances of interference. (FAC, ¶¶ 8-39.) Defendant argues that the interference was not substantial. However, whether the interference was or was not substantial to ultimately prove Plaintiffs claims are not at issue with this motion, which operates similarly to a demurrer. The motion for judgment on the pleadings as to the first cause of action is denied. Second Cause of Action for Violation of Civil Code 1940.2(a) The motion for judgment on the pleadings as to the second cause of action is denied. Plaintiffs state facts sufficient to state a cause of action. Plaintiffs state sufficient facts to state a cause of action for Retaliatory Eviction pursuant to CC § 1940.2(a)(3). Civ. Code, § 1940.2(a)(3) states: It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling: (3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief. Plaintiffs have alleged sufficient facts of menacing conduct that interfered with the quiet enjoyment of the premises. (FAC, ¶¶ 8-33.) These facts were incorporated into this cause of action. Contrary to Defendants arguments, Plaintiffs have alleged more than mere conclusions. The motion for judgment on the pleadings as to the second cause of action is denied. Third Cause of Action for Breach of Contract The motion for judgment on the pleadings as to the third cause of action is denied. Plaintiffs state sufficient facts to state a cause of action. The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff. Coles v. Glaser (2016) 2 Cal.App.5th 384, 391(internal quotations omitted). [T]he complaint must indicate on its face whether the contract is written, oral, or implied by conduct. [...] If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 45859. Plaintiffs must either: (a) set forth the terms of the contract verbatim, (b) attach a copy of the contract and incorporate it by reference, or (c) plead its legal effect. McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489. The elements of the cause of action have been sufficiently stated. (FAC, ¶¶ 47-54.) Defendant appears to take issue with the fact that the written contract was not attached. However, Plaintiffs have sufficiently stated the legal effect of the contract which appears to be a typical and routine rental lease agreement. The motion for judgment on the pleadings as to the third cause of action is denied. Fourth Cause of Action for Breach of the Implied Covenant of Quiet Enjoyment Defendants motion for judgment on the pleadings as to the fourth cause of action is denied. Plaintiffs state facts sufficient to constitute a cause of action. [E]very lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. The covenant of quiet enjoyment insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenants right to use and enjoy the premises for the purposes contemplated by the tenancy. [...] To be actionable, the landlords act or omission must substantially interfere with a tenants (sic) right to use and enjoy the premises for the purposes contemplated by the tenancy. Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 58889 (internal citations and quotations omitted; emphasis in original). Plaintiffs have alleged sufficient facts to meet each of the elements of the cause of action. (FAC, ¶¶ 8-33; 55-58.) Essentially, the alleged facts of the nuisance, harassment, and breach of contract noted above are restated to support grounds for the alleged disturbance with quiet enjoyment. Like the first cause of action, whether Defendants actions constitute substantial interference will be a factual issue not appropriate for adjudication with this motion. The motion for judgment on the pleadings as to the fourth cause of action is denied. Sixth Cause of Action for NIED The motion for judgment on the pleadings as to the sixth cause of action is granted without leave to amend. Plaintiffs fail to state sufficient facts to state a cause of action for NIED. Negligent Infliction of Emotional Distress is not an independent cause of action. Instead, emotional distress is a component of damages that may be recoverable in a Negligence cause of action. See, Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal.3d 583, 588. Thus, because a separate cause of action for Negligence has been asserted to which no demurrer or motion for judgment on the pleadings was directed, the NIED cause of action is simply duplicative of the negligence cause of action. Thus, the motion for judgment on the pleadings as to the sixth cause of action is granted without leave to amend. Seventh Cause of Action for Breach of the Implied Warranty of Habitability The motion for judgment on the pleadings as to the seventh cause of action is denied. Plaintiffs state facts sufficient to state a cause of action. [A] warranty of habitability is implied by law in residential leases. The elements of a cause of action for breach of the implied warranty of habitability are the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. The alleged defective condition must affect the tenant's apartment or the common areas which he uses. Peviani v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891 (internal citations and quotations omitted). The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine. Civ. Code, § 1941. As noted above, sufficient facts have been alleged that would also support a cause of action for breach of the warranty of habitability. (FAC, ¶¶ 8-33; 70-77.) The motion for judgment on the pleadings as to the seventh cause of action is denied. Eighth Cause of Action for Intentional Misrepresentation The motion for judgment on the pleadings as to the eighth cause of action is granted with 20 days leave to amend. Plaintiffs fail to state sufficient specific to state a cause of action. A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. [T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he has known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. Boschma v. Home Loan Center, Inc . (2011) 198 Cal.App.4th 230, 248. Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff must state facts which show how, when, where, to whom, and by what means the representations were tendered. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. In the opposition, Plaintiffs contend that they have alleged a representation, or representations made by Jimmy Ordaz, a property manager. However, Plaintiffs have not alleged specific facts as to whom the representations were made, and when, where, and by what means the representations were made. Defendants motion for judgment on the pleadings is granted with 20 days leave to amend. Motion to Strike The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike 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. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437. Defendant moves to strike the following: 1. Prayer for Relief, Page 19, line 17, Paragraph e: Attorneys fees and costs of this action; 2. Prayer for Relief, Page 19, line 19, Paragraph g: Punitive damages in an amount to be determined at trial; 3. Prayer for Relief, Page 19, line 20, Paragraph h: Statutory penalties as proscribed by law; 4. Paragraph 39, Page 10, line 25- Page 11, line 1: Their conduct and lack of proactive good management practices was willful, negligent, oppressive, and malicious. Defendants nonfeasance created the unsafe and dangerous conditions at the Unit and the Complex. Defendants conduct is part of a pattern which shows Defendants conscious disregard for ensuring a healthy environment for tenants in general, and of Plaintiffs in particular. 5. Paragraph 39, Page 11, lines 4-8: Therefore, Defendant intentionally, or with a reckless disregard, have failed to maintain the Unit during Plaintiffs tenure. This conduct and lack of proactive good management practices was willful, intentional, and done with oppression and malice against Plaintiffs, and is with a total disregard for Plaintiffs health, safety, and well-being. This behavior warrants the imposition of punitive damages in a sum appropriate to punish the Defendants and deter future, similar misconduct. 6. Paragraph 45, Page 11, lines 23-24: As a result of Defendants repeated violations of Civil Code §1940.2, Plaintiffs are entitled to statutory damages of $2,000 for each violation. 7. Paragraph 46, Page 12, lines 4-8: Defendants conduct was negligent and willful, intentional, outrageous, and done with oppression and malice against Plaintiffs, and with a total disregard for Plaintiffs as well as their fetus health, safety, and well-being. This behavior warrants the imposition of punitive damages in a sum appropriate to punish Defendants and deter future, similar misconduct. Plaintiffs therefore seek punitive damages. 8. Paragraph 77, Page 17, lines 17-19: Defendant ignored the conditions at the Unit. Defendants conduct is part of a pattern of inaction by Defendants which shows their conscious disregard for ensuring a healthy environment for tenants in general. 9. Paragraph 77, Page 17, lines 22-23: Therefore, Defendant intentionally, or with a reckless disregard, failed to maintain the Unit during Plaintiffs tenure. 10. Paragraph 77, Page 17, line 25- Page 18, line 2: Therefore, Defendants intentionally, or with a reckless disregard, failed to maintain the Unit during Plaintiffs' tenure. This conduct and lack of proactive good management practices was willful, intentional, and done with oppression and malice against Plaintiffs, and is with a total disregard for Plaintiffs health, safety, and well-being. This behavior warrants the imposition of punitive damages in a sum appropriate to punish the Defendants and deter future, similar misconduct. 11. Paragraph 83, Page 19, lines 4-6: On information and belief, Defendant acted with fraud, oppression, and malice. Defendants actions and inactions were outrageous and maliciously motivated by a desire to increase their financial profits at the expense of their tenants. 12. Paragraph 83, Page 19, lines 8-10: Such actions justify an award of fines and penalties under Civil Code §§ 72 and 789.3a and Health and Safety Code §17995, punitive damages under Civil Code §3294 to punish and deter other landlords from taking advantage of unsuspecting tenants. (Notice of Motion, pages ii and iii). As to Item 1, and only as to attorneys fees, the motion is granted with 20 days leave to amend. Plaintiffs have failed to set forth a contractual or statutory basis for attorneys fees. As to Items 2, 4, 5, and 7 to 10, the motion is denied. Civ. Code, § 3294 states, in relevant part: (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. [I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921. Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. Id. [I]f the tenant wrongfully evicted elects to sue in tort, damages may be awarded for mental anguish and pain or physical injury; exemplary damages may also be recovered when the landlord's conduct justifies the award[.] Id. at 926. Plaintiffs have alleged sufficient specific facts that Defendant acted with malice and/or oppression to support the allegations and prayer for punitive damages. Plaintiffs have also alleged facts that the acts were committed by an officer, director, or managing agent of Defendant, or was authorized or ratified by an officer, director, or managing agent. As to Items 3 and 6, the motion is denied. Plaintiffs have adequately pled a statutory cause of action to support a claim for statutory penalties. As to Items 11 and 12, the motion is moot upon the granting of the motion for judgment on the pleadings as to the eighth cause of action. Plaintiffs are ordered to give notice of this ruling.

ECKELMAN, ET AL. VS. OLCO, INC Case Number: 23CV-0202690 This matter is on calendar for review regarding status of the case and trial setting. The Court designates this matter as a Plan II case and intends to set the matter for trial no later than January 22, 2025. The parties are ordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessary on today’s calendar.