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Carrie Ward, Et Al. Vs. Roger Irons (Deceased)

Case Last Refreshed: 9 months ago

Bierman, Howard N., Brenner, Andrew J., Cohen, Michael Scott, Derdock, Nicholas, Dreifuss, Daniel, (total of 12) See All filed a(n) Foreclosure - Property case represented by Jones, Elizabeth C, against Irons, in the jurisdiction of Allegany County. This case was filed in Allegany County Superior Courts with Twigg, Michael O presiding.

Case Details for Bierman, Howard N. v. Irons , et al.

Judge

Twigg, Michael O

Filing Date

October 16, 2023

Category

Foreclosure - Residential

Last Refreshed

October 17, 2023

Practice Area

Property

Filing Location

Allegany County, MD

Matter Type

Foreclosure

Parties for Bierman, Howard N. v. Irons , et al.

Plaintiffs

Bierman, Howard N.

Brenner, Andrew J.

Cohen, Michael Scott

Derdock, Nicholas

Dreifuss, Daniel

Geesing, Jacob

Goldsmith, Richard R. Jr.

Jones, Elizabeth C.

Selig, Christopher Robert

Shriver, Philip

Vandelinde, Eric

Ward, Carrie M

Attorneys for Plaintiffs

Jones, Elizabeth C

Defendants

Irons

Case Events for Bierman, Howard N. v. Irons , et al.

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1059CORNING, LLC, A LIMITED LIABILITY COMPANY VS MARMAR CORNING, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
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Case Number: 21SMCV00991 Hearing Date: July 16, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 16, 2024 CASE NUMBER 21SMCV00991 MOTION Motion for Leave to File a Cross-Complaint MOVING PARTY Defendant Marmar Corning, LLC OPPOSING PARTY Defendant Berkoz & Assoc., Inc. MOTION This lawsuit arises from a dispute between the owners of adjoining residential properties. Plaintiff 1059Corning, LLC (Plaintiff) a complaint on May 28, 2021, alleging that excavation and construction of Defendant Marmar Corning, LLCs (Marmar) building caused damage to Plaintiffs adjacent building. Defendants Subsurface Designs, Inc.; Berkoz & Assoc., Inc.; and West Pacifica Design Construction, Inc. are also named in the primary complaint for their respective roles in the design and construction of Marmars building. Marmar now moves for leave to file a cross-complaint against Defendant Berkoz & Assoc., Inc. (Berkoz), with whom it contracted to do structural designs for the construction project, for (1) negligence; (2) equitable indemnity; (3) contribution; (4) declaratory relief; (5) professional negligence; and (6) breach of written contract. Berkoz opposes the motion and Marmar replies. LEGAL STANDARD A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: (a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3. (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him. (Code Civ. Proc., § 428.10, subds. (a)-(b).) (a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (b) Any other cross-complaint may be filed at any time before the court has set a date for trial. (c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. (Code Civ. Proc., § 428.50, subds. (a)-(c).) Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier. The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. ( Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.) Further, Cross-complaints for comparative equitable indemnity would appear virtually always¿transactionally¿related to the main action.¿¿( Time for Living, Inc. v. Guy Hatfield Homes ¿(1991) 230 Cal.App.3d 30, 38; see also Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 799 [Undoubtedly, a claim for contribution or indemnity arises out of the same transaction or occurrence as the plaintiff's claim].) ¿ DISCUSSION Marmar seeks leave to file a cross-complaint against Berkoz for its role in the construction project that contributed to Plaintiffs damages. Although the original complaint was filed on May 28, 2021, alleging Berkozs structural engineering and design work on the project caused or contributed to Plaintiffs damages, Marmar did not move to file a cross-complaint against Berkoz until June 17, 2024. In support of the motion, Marmar contends that through the course of discovery it discovered Berkozs scope of work on the Project may have contributed to the damages alleged by Plaintiff. (Coppola Decl. ¶ 9.) Berkoz opposes on the grounds that Marmar unreasonably delayed three years in seeking to file its cross-complaint against Berkoz, and Berkoz will be prejudiced because trial is scheduled in October of 2024. Further, Berkoz contends that the new cross-claims will expand the scope of Berkozs defense from its design and professional work only to also include its construction-related work. In the alternative, Berkoz seeks at least a six-month trial continuance so that it can have adequate time to retain an expert and conduct discovery on the new cross-claims prior to trial. The Court agrees that Marmar was dilatory in seeking leave to file a cross-complaint against Berkoz seemingly without explanation, as it should have been clear from the original complaint filed on May 28, 2021 that Berkozs scope of work on the Project may have contributed to the damages alleged by Plaintiff. Marmar also does not explain when in the past three years it obtained the discovery in question or what specifically it learned that implicates Berkoz, warranting the cross-complaint. Nonetheless, as Marmar points out on reply, it could simply file the proposed cross-complaint as a separate lawsuit against Berkoz, and then move to have the cases related and consolidated. Yet, the Court finds that the interests of judicial economy is best served by allowing the cross-complaint to be filed in this action. Moreover, Marmar indicates it does not oppose Berkozs request for a trial continuance. But the Court cannot grant Berkozs request for a continuance without proper notice and an opportunity for the other parties to the action to be heard. The Court will, however, entertain any stipulation or properly noticed motion to continue the trial the parties wish to bring. CONCLUSION AND ORDER For these reasons, the Court grants Marmars motion for leave to file a cross-complaint, and orders Marmar to file and serve the proposed cross-complaint on or before July 30, 2024. Further, the Court orders Marmar to provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 16, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

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Ruling

CYMAN LEHMAN VS WOODPARK LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 22, 2024 | 23VECV04484
Case Number: 23VECV04484 Hearing Date: July 22, 2024 Dept: T LEHMAN V WOODPARK 23VECV04484 Defendants Woodpark LLC and Micro Property Management Inc.s Demurrer to the First Amended Complaint is OVERRULED. Defendants Woodpark LLC and Micro Property Management Inc. are ORDERED to file an Answer within 20 days. Introduction Defendants Woodpark LLC (Woodpark) and Micro Property Management Inc. (MPM) (collectively, Defendants) demurred to Plaintiff Cyman Lehmans (Plaintiff) First Amended Complaint (FAC). The demurrer placed into issue the first cause of action (COA) for discrimination (age/disability); the second COA for negligence, the third COA for elder abuse, the fourth COA for breach of contract, and the fifth COA for breach of warranty of habitability. Procedure Plaintiffs opposition was due July 9, 2024, and was untimely filed on July 11, 2024. Plaintiffs Counsel presents facts showing that it was their mistake in failing to timely file/serve the opposition. Further, Defendants reply did not object to the untimeliness of the opposition. Because Plaintiffs Counsel admitted their mistake, Plaintiff presented good cause for the Court to exercise its discretion and consider the untimely filed opposition. Discussion Defendants argued that the second COA for negligence, fourth COA for breach of contract, and fifth COA for breach of warranty failed to allege sufficient facts to support the elements of breach and causation as to the claims related to the broken elevator and fall in the garage. This issue was reviewed at the prior demurrer to the original complaint. Specifically as to the broken elevator claim, the Court finds that Plaintiff cured the pleading defect. A liberal reading of the pleading provided that Plaintiff is 84 years of age with a physical disability, which existed prior to her fall in the garage. (FAC par. 1.) Plaintiff leased unit number 204, which is construed to be on the second floor of the apartment building. (Id.) Plaintiff entered into the lease in 2003 (FAC, Exh. 1), twenty years prior to filing the instant action. It can be construed that Plaintiff leased the second floor unit with the understanding that the building had a continually working elevator. However, as of 2021, Defendants allegedly neglected the maintenance/repair of the elevator so that it does not continually work. (FAC pars. 12-14, and 20.) Because of the unreliability of the elevator, as well as Plaintiffs age and disability, Plaintiff suffered physical strain, mental anxiety, and emotional turmoil in having to navigate the stairs. (FAC par. 13 and 20.) These facts are sufficient to plead the elements of breach, causation, as well as harm. The demurrer as to the broken elevator claim is not persuasive. Specifically as to Plaintiffs fall in the garage, Plaintiff failed to cure the defect. There are no new facts to plead breach or causation. Plaintiff did not provide new facts to allege what caused her to fall in the garage. There are no facts linking her fall in the garage to an inoperable elevator. The demurrer as to this part of the COA is persuasive. However, demurrers cannot be sustained only to parts of a COA . A demurrer must dispose of an entire COA. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) The demurrer cannot be sustained just for this part of the COA. Although merited, the demurrer against the claim related to the fall in the garage is insufficient. Because the claims related to the broken elevator are sufficient to get past the demurrer stage, the demurrers first argument against second, fourth, and fifth COAs cannot be sustained. Defendants then argued that the fifth COA for breach of warranty of habitability is insufficiently alleged with supportive facts because Plaintiff failed to allege: (1) Plaintiffs lack of knowledge of the condition at the time of occupancy, (2) effect on habitability of the defective condition was not apparent on reasonable inspection, and (3) notice to Defendant within a reasonable time after Plaintiffs discovery. However, the elements of Plaintiffs lack of knowledge and the imposition of a duty of reasonable inspection on a prospective tenant is not a prerequisite to allege breach of the warranty of habitability. (Knight v. Hallsthammar (1981) 29 Cal.3d 46, 54 and at fn. 5.) Defendants reliance upon Quevedo v. Braga (1977) 72 Cal.App.3d Supp 1 is unpersuasive. Lastly, Defendants argument as to lack of notice is contradicted by Plaintiffs express allegation that Plaintiff and other tenants provided notice. (FAC par. 13.) Defendants arguments against the fifth COA are not persuasive. The demurrer to the second, fourth, and fifth COAs is OVERRULED. As to the first COA for violation of the Unruh Civil Rights Act, Defendants argued that there are insufficient facts pled to support any claim of discrimination or intentional discrimination because there are no facts alleging misconduct specifically levied against Plaintiff. This pleading defect was raised at the prior demurrer. The FAC cured the pleading defect by alleging that Defendants discriminatory conduct and intent was to get Plaintiff to move out because of her age and disability. Defendants chose to make short-term fixes causing the elevator to fail rather than make a full and compete repair of the elevator. (FAC pars. 23-25, and 29.) Defendants arguments fail to consider the new factual allegations and the arguments are not persuasive. The demurrer to the first COA is OVERRULED. As to the third COA for financial elder abuse, Defendant argued that there are insufficient facts to allege that the taking/obtaining of Plaintiffs property was for a wrongful use or was with an intent to defraud. (CACI no. 3100.) This issue was reviewed at the prior demurrer hearing. Plaintiff has pled facts to cure the pleading defect by alleging a taking for a wrongful use. Preliminarily, the pleading element is in the disjunctive due to the use of the word, or. Wrongful use requires the pleading of two elements: (1) a breach of contract or some other misconduct; and (2) Defendants actual or implied knowledge that the conduct is likely to be harmful to the elder. (Paslay v. State Farm General Insurance Co. (2016) 248 Cal.App.4th 639, 657.) As reviewed at the prior demurrer, Plaintiff sufficiently pled the first element. At issue was the second element Defendants knowledge that the conduct is likely to be harmful to Plaintiff. Plaintiff expressly alleged that Defendants had knowledge that the taking of Plaintiffs rent while the elevator was continually breaking was to push Plaintiff out of her tenancy. This fact allegation is sufficient to cure the prior pleading defect and makes Defendants argument unpersuasive. The demurrer to the third COA is OVERRULED. Defendant argued that all COAs are duplicative and conclusory. However as reviewed above, the facts alleged are sufficient to support each COA and thus not conclusory. Further, the fact that each COA is based upon the same or similar facts does not necessarily make the COAs duplicative. The argument is unpersuasive. Defendants argued that all five COAs are uncertain because Plaintiff lumps together all Defendants and failed to differentiate between the Defendants. However, Plaintiff alleged the misconduct/breach/negligence against Defendants, and each of them. (FAC, passim.) Because the claims are alleged against each of them, the allegations are sufficient to charge each Defendant with liability. Liberality in pleading compels a finding that the pleading is not uncertain. The demurrer on the grounds of uncertainty is unpersuasive. IT IS SO ORDERED, CLERK TO GIVE NOTICE.

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