Related Content
in Miami-Dade County
Ruling
U&G CONSTRUCTION GROUP INC. VS REAL PROSPERITY INVESTMENT LLC
Jul 11, 2024 |
22AHCV00886
Case Number:
22AHCV00886
Hearing Date:
July 11, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
U&G CONSTRUCTION GROUP INC.
,
Plaintiff(s),
vs.
REAL PROSPERITY INVESTMENT LLC
,
Defendant(s).
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CASE NO:
23STCV01341
Related to Case No.
22AHCV00886
[TENTATIVE] ORDER RE: MOTION TO CONSOLIDATE
Dept. 3
8:30 a.m.
July 11, 2024
Plaintiffs U&G Construction Group, Inc. and Zhuoheng Gu (collectively, Plaintiffs)
seek an order consolidating
Case No. 22AHCV008866
with
Case No. 23STCV01341
for all purposes including trial, contending the two actions arise out of the same
real property and the same alleged scheme to induce Plaintiff to purchase and make improvements to said property during escrow
.
Plaintiffs also seek leave to file a proposed Second Amended Complaint in the consolidated action which would merge all allegations against the parties in both actions into a single pleading. Defendant CDMY Investment, LLC (CDMY), is named in both actions but has only appeared in Case No. 23STCV01341 to file demurrers, which have been sustained with leave to amend. CDMY does not oppose this motion to consolidate or the request to file an amended complaint. Accordingly, the Court GRANTS the unopposed motion because there are overlapping issues of fact and the parties in both actions are identical. (Code Civ. Proc., § 1048.) Plaintiffs are ordered to file the proposed complaint within 5 days of the date of this Order.
Case No. 22AHCV00886
is the lead case. All future papers must be filed in
Case No. 22AHCV00886
. All future hearing dates must be reserved in
Case No. 22AHCV00886
. All future hearing dates currently pending in
Case No. 23STCV01341
are vacated. The Court sets an OSC re: Failure to File Proof of Service for August 21, 2024, at 8:30 a.m. in Department 3.
Plaintiffs
are ordered to give notice and file a notice of this order in both cases.
Dated this
11th
day of
July
2024
William A. Crowfoot
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the Court at
ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
7561 MELROSE, LLC VS WESLEY SCOTT REARDAN, ET AL.
Jul 10, 2024 |
23STCV17398
Case Number:
23STCV17398
Hearing Date:
July 10, 2024
Dept:
58
Judge Bruce G. Iwasaki
Department 58
Hearing Date:
July 10, 2024
Case Name:
7561 Melrose, LLC v. Wesley Scott Reardan
,
et al
.
Case No.:
23STCV17398
Motion:
OSC re: Entry of Default Judgment
Moving Party:
Plaintiff 7561 Melrose, LLC
Responding Party:
Unopposed
Tentative Ruling:
Plaintiffs Default Judgment Application is denied without prejudice.
Background
This is an unlawful detainer action which arises from the alleged non-payment of rent. On July 24, 2023, Plaintiff 7561 Melrose, LLC (Plaintiff) filed a ComplaintUnlawful Detainer against Defendants Wesley Scott Reardan (Reardan), Tyler Steven Gonzalez (Gonzalez), and Does 1 to 10. According to the Complaint, Plaintiff is seeking forfeiture of the lease, reasonable attorneys fees, and damages at the rate of $666.66 per day from July 13, 2023. (UD-100 at pp. 3-4.)
On October 2, 2023, default was entered against Defendants Reardan and Gonzalez. (10/03/23 Minute Order.)
On October 30, 2023, judgment by default was entered against Defendants Reardan and Gonzalez for possession only. (10/30/23 Judgment.)
On May 20, 2024, Plaintiff filed a Request for Court Judgment form (CIV-100) seeking default judgment against Defendants Reardan and Gonzalez in the sum of $196,301.50. Also, on such date, Plaintiff filed a Proposed Judgment and Declaration of Parviz Sarshar (Sarshar) in Support of Default Judgment.
Legal Standard
California
Rules of Court
, Rule 3.1800 sets forth the requirements for default judgments. In pertinent part, the rule dictates that a party must use form CIV-100 and file the following documents with the clerk: (1) except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) declarations or other admissible evidence in support of the judgment requested; (3)¿interest computations as necessary; (4) a memorandum of costs and disbursements; (5)¿a declaration of nonmilitary status for each defendant against whom judgment is sought; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8)¿exhibits as necessary; and (9)¿a request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, Rule 3.1800(a)(1)-(9).)
Discussion
Plaintiff seeks default judgment against Defendants Reardan and Gonzalez.
The Court finds that Plaintiff has failed to meet the requirements of California
Rules of Court
, Rule 3.1800 in order to obtain entry of default judgment against Defendants Reardan and Gonzalez. Plaintiff has failed to: (1) provide interest computations as necessary; and (2) dismiss parties against whom judgment is not sought as the Doe defendants have not been dismissed. Plaintiffs have also failed to substantiate the requested damages as no ledger or documentation is attached to the declaration of Ms. Sarshar showing the amount of past due rent, late fees, or holdover damages. Additionally, although requesting attorneys fees, Plaintiff has not indicated whether the requested attorneys fees are allowed by statute or agreement of the parties. The declaration of Ms. Sarshar fails to set forth the basis for the requested attorneys fees.
Conclusion
Based on the foregoing, Plaintiffs default judgment application is denied without prejudice.
Ruling
IYANA JACKSON, ET AL. VS SAMUEL WELCH, IN HIS CAPACITY AS TRUSTEE OF THE GEORGILAS TRUST, ET AL.
Jul 11, 2024 |
22STCV33658
Case Number:
22STCV33658
Hearing Date:
July 11, 2024
Dept:
68
Dept. 68
Date: 7-11-24
Case #: 22STCV33658
Trial Date: 1-9-25 c/f 6-24-24
FURTHER DOCUMENTS
MOVING PARTY: Defendant, Samuel Welch
RESPONDING PARTY: Unopposed/Plaintiff, Iyana Jackson
RELIEF REQUESTED
Motion to Compel Further Responses to Request for Production of Documents
SUMMARY OF ACTION
Plaintiffs were tenants of a single family welling at 32270 Saticoy Street, West Hills, and allege unsanitary and/or unsafe conditions on the premises as a result of improper maintenance and upkeep.
On October 17, 2022, Plaintiffs filed their complaint for Failure to Provide Habitable Dwellings, Breach of Covenant of Right to Quiet Enjoyment and Possession of the Property, Nuisance, and Negligence. Defendants answered the complaint on February 23, 2023.
RULING
: Granted.
Defendant, Samuel Welch moves to compel further responses to request for production of documents, numbers 4, 9, and 12 from Plaintiff Iyana Jackson. The responses consist of references to other items.
Such
responses constitute an improper, factually incomplete answer. Responding Party may not refer to prior discovery. (
Deyo v. Kilbourne
(1978) 84 Cal.App.3d 771, 783784 [Answers must be complete and responsive. Thus, it is not proper to answer by stating, See my deposition, See my pleading, or See the financial statement].)
The unopposed motion is therefore granted. Responding is ordered to serve responses in compliance with Code of Civil Procedure sections 2031.210-2031.240 within 30 days of this order. No sanctions requested.
The court calendar shows three (3) remaining scheduled motions to compel further responses scheduled through July 22, 2024. The motions appear as a continuation of discovery issues addressed by the court in the 23 motions to compel responses granted on November 22, 2023.
The court does not conduct any informal discovery conferences. While the court understands the prior use and perhaps reliance on the IDC system, the court finds the number of items on the court calendar through the next three months presents a potentially inordinate burden. The court reserves the right to set an OSC re: Discovery Referee in lieu of a hearing on any given motion, and may take off any and all motions in lieu of the OSC hearing. The court invites the parties to continue meeting and conferring, including the provision of supplemental responses, when possible.
Next motion to compel further responses as to Iyana Jackson set for July 16, 2024.
Defendant to give notice.
Dept. 68
Date: 7-11-24 c/f 7-10-24
Case #: 22STCV33658
Trial Date: 1-9-25 c/f 6-24-24
FURTHER INTERROGATORIES
MOVING PARTY: Defendant, Samuel Welch
RESPONDING PARTY: Plaintiff, Jada Gradney
RELIEF REQUESTED
Motion to Compel Further Responses to Form Interrogatories (set one)
SUMMARY OF ACTION
Plaintiffs were tenants of a single family dwelling at 32270 Saticoy Street, West Hills, and allege unsanitary and/or unsafe conditions on the premises as a result of improper maintenance and upkeep.
On October 17, 2022, Plaintiffs filed their complaint for Failure to Provide Habitable Dwellings, Breach of Covenant of Right to Quiet Enjoyment and Possession of the Property, Nuisance, and Negligence. Defendants answered the complaint on February 23, 2023.
RULING
: Granted.
Defendant, Samuel Welch moves to compel further responses to form interrogatories (set one), numbers 2.6, 6.4, 6.7, 7.1, 9.1, 9.2, 10.3, and 12.4 from Plaintiff Jada Gradney. The responses consist of incomplete replies, with minimal answers, refusal to answer except under condition of a protective order, or references to other parties and non-parties responsible for the provision of phone number and address information.
The responses are incomplete in that they fail to respond to all subcategories of the requests. The references to other persons constitutes an improper, factually incomplete answer. (
Deyo v. Kilbourne
(1978) 84 Cal.App.3d 771, 783784 [Answers must be complete and responsive. Thus, it is not proper to answer by stating, See my deposition, See my pleading, or See the financial statement].)
The motion is therefore granted. Responding is ordered to serve responses in compliance with Code of Civil Procedure section 2030.210-20310240. No sanctions requested.
The court calendar shows three (3) remaining, scheduled motions to compel further responses through July 22, 2024. The motions appear as a continuation of discovery issues addressed by the court in the 23 motions to compel responses granted on November 22, 2023.
The court does not conduct any informal discovery conferences. While the court understands the prior use and perhaps reliance on the IDC system, the court finds the number of items on the court calendar through the next three months presents a potentially inordinate burden. The court reserves the right to set an OSC re: Discovery Referee in lieu of a hearing on any given motion, and may take off any and all motions in lieu of the OSC hearing. The court invites the parties to continue meeting and conferring, including the provision of supplemental responses, when possible.
Next motion to compel further responses as to Iyana Jackson set for July 16, 2024.
Defendant to give notice.
Ruling
Joshua Delage et al. vs Mark Alan Wall et al.
May 16, 2024 |
STK-CV-URP-2023-0012309
Delage, et al. v. Wall, et al. – Case No. 2023-12309 5/16/24 – Demurrer Plaintiff/Cross-Complainant JOSHUA DELAGE filed a Demurrer to Defendant/Cross-Complainant MARK WALL’s Amended Answer on April 11, 2024. Plaintiff/Cross-Complainant DELAGE also filed a Reply on May 8, 2024. The Reply refers to an Opposition, however no Opposition was filed with the Court. It appears it may have been served, but not filed. As such, the Court continues Demurrer to July 16, 2024 at 9:00 am in Dept. 10B. Defendant/Cross-Complainant is ORDERED to file the Opposition served on Plaintiff/Cross-Complainant. No further briefing is allowed without leave of Court. Blanca A. Bañuelos Judge of the Superior Court
Ruling
GARCIA vs STAMP
Jul 12, 2024 |
CVRI2303859
MOTION FOR INTERLOCUTORY
JUDGMENT OF PARTITION BY SALE
CVRI2303859 GARCIA VS STAMP
AND APPOINTMENT OF PARTITION
REFEREE BY KIMBERLY STAMP
Tentative Ruling: Defendant’s Motion for Interlocutory Judgment and Appointment of Referee is
denied.
Defendant seeks an interlocutory judgment for partition under CCP § 872.720. However, a
regularly noticed motion is not the appropriate procedural mechanism for said relief. The right to
a partition is determined at trial. CCP § 872.710(a). “No partition can be had until the interests of
all the parties have been ascertained and settled by a trial.” Bacon v. Wahrhaftig (1950) 97
Cal.App.2d 599, 603. “If the court finds that the plaintiff is entitled to partition, it shall make an
interlocutory judgment that determines the interest of the parties in the property and orders the
partition of the property and, unless it is to be later determined, the manner of partition.” CCP §
872.720(a).
Here, trial in this matter has not been conducted. There has been no motion for summary
judgment heard. The Court has not yet determined at trial or summary judgment that there is a
right to partition. Defendant treats this motion as a dispositive motion where none exists. Under
CCP § 872.030, the rules of civil procedure apply to partition actions unless they are inconsistent
with the partition statutes. As such, it is procedurally improper for the court to issue an order for
partition through a regularly noticed “motion.” Defendant has provided no authority, other than
singled out partition statutes, that nonetheless precludes a motion for such an interlocutory
judgment.
3.
MOTION FOR PRELIMINARY
INJUNCTION AGAINST KLEIN
CVRI2305855 HEWITT VS KLEIN DEFENDANTS AND TO APPOINT
PROVISIONSAL CORPORATE
DIRECTOR
Tentative Ruling: In light of Defendant’s conduct June 24-26, Plaintiff’s Motion for Preliminary
Injunction is granted; the injunction shall follow the restrictions delineated in the June 28th
Temporary Restraining Order.
Motion for Provisional Director to run the Corporation is granted; Each party is to submit a list of
three names subject to Corp. C. §308(c).
A motion for preliminary injunction must show (1) a probability of prevailing on the merits, and (2)
that the balance of hardships favors issuance of the injunction. (O’Connell v. Superior Court
(2006) 141 Cal.App.4th 1452, 1463.) However, “[t]he applicant must demonstrate a real threat of
immediate and irreparable injury.” (Triple A. Machine Shop, Inc. v. State of California (1989) 213
Cal.App.3d 131, 138.)
“[A]n injunction is an unusual or extraordinary equitable remedy which will not be granted if the
remedy at law (usually damages) will adequately compensate the injured plaintiff.” (Department
of Fish & Game v. Anderson-Cottonwood Irrigation District (1992) 8 Cal.App.4th 1554, 1565
(quoting Witkin).) Plaintiff merely argues that his ownership interest has been devalued—but fails
to explain why that cannot be compensated with damages. Nor does the 14th-15th causes of
action support an injunction as the UCL claim seeks restitution and declaratory relief is another
form of equitable relief.
The 11th cause of action (Corporations Code §308) and the 16th cause of action (corporate
dissolution). Under Corporations Code §1800(a), 50% or more of the directors in office, or a
shareholder who holds shares representing not less than 33.3% of outstanding shares, or any
shareholder if the ground for dissolution is that the period for which the corporation was formed
has terminated without extension, or any person expressly authorized to do so in the articles of
incorporation may file a complaint for involuntary dissolution. The grounds for involuntary
dissolution are that the corporation has abandoned its business for more than one year, the
corporation has an even number of directors who are equally divided and cannot agree to the
management of its affairs, there is internal dissension and two or more factions of shareholders
in the corporation are deadlocked such that the business can no longer be conducted, those in
control are guilty or have engaged in persistent and pervasive fraud, mismanagement or abuse
of authority or waste, in corporations with 35 of fewer shareholders, liquidation is reasonably
necessary for the protection of the rights or interests of the complaining shareholder(s), or the
period for which the corporation has formed has terminated without extension of such period.
(Corp. C. §1800(b).) After hearing, the court may grant orders or injunctions as justice and equity
requires. (Corp. C. §1804.)
Plaintiff is a shareholder of at least 33.3%. While the parties dispute whether or not Plaintiff sold
an interest of 4%, that remains that he still has at least a 33.3% share. The next issue is grounds
for involuntary dissolution. Plaintiff has asserted all the statutory grounds but the last. (FAC ¶195-
198.)
The issue here is the formation process of the corporation. To start, the articles of incorporation
must be personally signed by each of the incorporator, and each initial director (if any) along with
a duly acknowledgment. (Corp. C. §§ 17.1, 149, 200.) The articles do not require the initial
directors to be named. (Corp. C. §204.) If the articles do not identify the number of directors, the
corporation must adopt bylaws that specify the number of directors. (Corp. C. § 212(a).) In this
situation, the incorporators must adopt the bylaws and designate the directors prior to the first
meeting of the board of directors. (Friedman, California Practice Guide: Corporations §§4:398
(Rutter Group 2023).)
The articles of incorporation have not been provided. The only evidence of its existence is
attached to the original verified complaint—but even then, it is the electronic filing certificate
indicating a filing date of 1/31/22. It is unclear if there is a signed version. Plaintiff states that
there was no meeting for the articles or bylaws, and was unaware of the copy of the bylaws.
(Plaintiff’s Decl. ¶18-21.) Defendant Wesley states that he discussed with Plaintiff the corporate
directors, and advised Landis to name Plaintiffs and Defendants as directors on the statement of
information. (Wesley Decl. ¶7.) A corporation must file within 90 days after filing of the original
articles and annually therefore, information about the corporation. (Corp. C. §1502.)
But, he provides no information as to how the bylaws were approved—only a conclusory
statement of discussions. The bylaws provided by Wesley are confusing. First, it states that it
amends and restates the bylaws of the unincorporated association of the dispensary created on
8/19/16. (Wesley Decl., Ex. E.) At the top heading of each page, it states “Last updated May 5,
2021” but was then effective 5/5/21 by Wesley, but a document history indicates that the
agreement was not e-signed and completed until 1/21/22. The articles were not effective until
1/31/22, so bylaws were created before the articles were submitted to the Secretary of State. It
is not until the filing date of the articles that the corporation begins to exist. (Corp. C. §200(c).)
Thus, it is unclear how the bylaws were created before the corporation existed. At this point, it
appears that there are no valid directors for the corporation.
Under Corporation Code §308(b), if shareholders are deadlocked such that directors cannot be
elected, upon petition of a shareholder holding 50% of the voting power may petition the court to
appoint a provisional director or directors. A provisional director is neither a shareholder nor
creditor of the corporation. (Corp. C. §308(c).) Here, appearing to the court to be the most
appropriate remedy as it is akin to a receiver. Both sides accuse each other of wrong doing. On
the one hand, Plaintiff has provided evidence that Wesley is interfering in daily business
operations. On the other hand, Defendant has provided evidence that under Plaintiff’s operation,
there were outstanding taxes and evidence of some financial accounting issues—even if a full
audit is not performed.
Plaintiff points to Corporations Code §2003, which provides: “When the identity of the directors or
their right to hold office is in doubt, or if they are dead or unable to act, or they fail or refuse to act
or their whereabouts cannot be ascertained, any interested person may petition the superior court
of the proper county to determine the identity of the directors or, if there are no directors, to appoint
directors to wind up the affairs of the corporation, after hearing upon such notice to such persons
as the court may direct.” However, the court has yet to order dissolution. This is premature.
The court finds the most appropriate remedy is to appoint a provisional director. The parties
should each submit a list of three persons to act as the proposed provisional director.
Ruling
ADMIRE 3377 FAMILY LIMITED PARTNERSHIP VS KI JONG OH, ET AL.
Jul 09, 2024 |
22STCV33738
Case Number:
22STCV33738
Hearing Date:
July 9, 2024
Dept:
61
ADMIRE 3377 FAMILY LIMITED PARTNERSHIP vs KI JONG OH, et al.
TENTATIVE
Plaintiff Admire 3377 Family Limited Partnerships Motion for Summary Judgment against Defendant Ki Jong Oh is GRANTED.
Plaintiff to give notice.
DISCUSSION
A party may move for summary judgment if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. § 437c, subd. (a).) [I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law, the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) Plaintiffs moving for summary judgment may meet their initial burden by prov[ing] each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc. § 437c(p)(1).)
Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) The defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Plaintiff Admire 3377 Family Limited Partnership (Plaintiff) moves for summary judgment on their sole cause of action for breach of lease against Defendant Ki Jong Oh (Defendant). [T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Plaintiff presents Defendants responses to requests for admission, admitting the existence of the lease agreement in this action, admitting that Defendant vacated the premises in September 2022, admitting that Defendant at the time of vacating had failed to pay contract rent through the lease term, and that the record of payments attached to the requests for admission are an accurate reflection of the payments. (Robison Exh. 2.) Plaintiffs property manager testifies that Defendant vacated the premises with $976,085.96 due in unpaid rent, which after application of the security deposition, yields $940,805.96 due in unpaid rent. (Kim Decl. ¶¶ 57.) Plaintiff has satisfied its initial burden to show the absence of triable issues as to each element of its breach of lease claim. The burden now shifts to Defendant show triable issues exist as to that cause of action or a defense thereto. Defendant in opposition argues that Plaintiff has failed to address any of the affirmative defenses raised in his answer. (Opposition at pp. 6, 1011.) But a plaintiff moving for summary judgment on their claims has no burden to disprove the listed defenses in the defendants answer to satisfy their initial burden. (Los Angeles Unified School District v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 508.) These defenses furnish no basis to deny the motion except insofar as Defendant presents admissible evidence to show triable issues of fact exist as to his defenses. Defendant relies upon the defenses of contractual impossibility and Civil Code § 1511 as defenses to the present motion. (Opposition at p. 12.) Specifically, Defendant argues that the
government-ordered closure of the premises during the COVID-19 pandemic constituted an irresistible superhuman cause excusing performance of the lease. (Opposition at pp. 1217.) Defendant also argues that performance was excused by the defense of frustration of purpose. (Ibid.)
The doctrine of frustration excuses contractual obligations where performance remains entirely possible, but the whole value of the performance to one of the parties at least, and the basic reason recognized as such by both parties, for entering into the contract has been destroyed by a supervening and unforeseen event. A party seeking to escape the obligations of its lease under the doctrine of frustration must show: (1) the purpose of the contract that has been frustrated was contemplated by both parties in entering the contract; (2) the risk of the event was not reasonably foreseeable and the party claiming frustration did not assume the risk under the contract; and (3) the value of counter-performance is totally or nearly totally destroyed. Governmental acts that merely make performance unprofitable or more difficult or expensive do not suffice to excuse a contractual obligation. (SVAP III Poway Crossings, LLC v. Fitness International, LLC (2023) 87 Cal.App.5th 882, 895, internal quotation marks, citations, and alterations omitted.) [W]here commercial frustration does apply, the legal effect ... is the immediate termination of the contract. . . . [T]he application of the doctrine of frustration under California law compels the termination of the contract, the law does not recognize the temporary frustration defense. (Id. at p. 896.) Simultaneously, Civil Code § 1511 states that performance of an obligation is excused [w]hen such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, and [w]hen it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary. (Civ. Code § 1511, sudb. (1), (2).) As an initial matter, it should be noted that Defendant submits no evidence in support of its affirmative defenses. Defendant provides links to a March 2020 Los Angeles County order in its separate statement directing the pandemic closure of [g]yms and fitness centers. (Defendants Separate Statement No. 2.) Another entry on the separate statement states that Defendants business was negatively affected not as a result of its own actions, but because of the supervening causes of the Pandemic and applicable regulations, citing for this purpose on Defendants unverified answer. (Defendants Separate Statement No. 4.) Defendant thus presents no actual evidence of negative effects resulting from the pandemic or closure orders. But assuming the truth of these assertions, Defendants affirmative defenses remain unsupported. The defense of impossibility under Civil Code § 1511 does not apply, because the doctrine of impossibility or impracticability applies to the partys obligations under the contract in this case to pay rent. (See SVAP III Poway Crossings, LLC, supra, 87 Cal.App.5th at p. 893.) As such, impossibility does not apply, because [t]he government closure orders did not make it illegal for [Defendant] to pay rent. (Ibid.) Nor is there any basis for application of the doctrine of frustration of purpose, although this doctrine might excuse the performance of a rental contract based on the government-ordered closure of a business. This is because the effect of frustration of purpose is the immediate termination of the contract. (Id. at p. 896.) There is no such thing as temporary frustration of purpose in California. (Ibid.) Here, it is undisputed that Defendant remained in possession of the premises for the full duration of the lease term, even as the closure orders went into effect. (Robinson Decl. Exh. 2.) The frustration of purpose doctrine therefore did not excuse [Defendant] from its obligation to pay rent (even if the lease was an installment contract) because [Defendant] did not attempt to rescind the lease and instead remained in possession of the premises. (KB Salt Lake III, LLC v. Fitness Intern., LLC (2023) 95 Cal.App.5th 1032, 1057.) There are therefore no triable issues as to the elements of Plaintiffs claims, or Defendants affirmative defenses. The motion is therefore GRANTED.
Ruling
P.J. McAuliffe Family Partnership, L.P. vs. The Testate or Intestate Successors of Nora McAuliffe, et al.
Jul 12, 2024 |
23CV-0202994
MCAULIFFE, ET AL.
Case Number: 23CV-0202994
Tentative Ruling on Review of Proposed Order: This is an action to quiet title to dormant
mineral rights. Plaintiff P.J. McAuliffe Family Partnership, LP brought a Motion for Terminating
Sanctions against Defendant John P. “Jack” McAuliffe pursuant to CCP 2023.030(d)(4), or in the
alternative, for issue sanctions designating certain facts as established pursuant to CCP
2023.030(b), (d), and (e). On June 17, 2024, this Court heard Plaintiff’s Motion. After oral
argument, the Court granted the Motion and ordered Plaintiff to prepare an alternative proposed
order consistent with the Court’s ruling. Today’s hearing is simply to confirm an appropriate
proposed order has been filed. Proper proof of service is on file. The Court finds that the proposed
order received June 18, 2024, comports with the Court’s ruling. The Court will execute the order.
Today’s hearing is VACATED. No appearance is necessary on today’s calendar.
******************************************************************************
9:00 a.m. Review Hearings
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Ruling
COTTONWOOD CANYON HILLS COMMUNITY ASSOCIATION vs ARMENTA
Jul 13, 2024 |
TEC1204451
MOTION TO VACATE NOTICE OF
COTTONWOOD CANYON
SETTLEMENT OF ENTIRE CASE
HILLS COMMUNITY
TEC1204451 FILED ON JUNE 2, 2020, BY
ASSOCIATION VS
COTTONWOOD CANYON HILLS
ARMENTA
COMMUNITY ASSOCIATION
Tentative Ruling: No tentative will be given, appearances are required. Counsel should be
prepared to address why this matter should not be dismissed pursuant to the CCP 664.6 provision
in the settlement agreement.
Document
LILIA CONCEPCION VS GRETEL CONCEPCION
Jun 29, 2023 |
SD 05 - South Dade 05 - Judge Gonzalez-Paulson, Michaelle |
Evictions - Residential |
Evictions - Residential |
2023-063719-CC-26
Document
CITIMORTGAGE INC VS DEVINE, TERRENCE J
Jun 05, 2013 |
CA04 - Downtown Miami - Judge Ruiz, Mavel |
RPMF -Homestead ($0 - $50,000) |
RPMF -Homestead ($0 - $50,000) |
2013-019847-CA-01