M&T Vs. Cargill

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.

Case Number: 22STCV33544 Hearing Date: July 16, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: July 16, 2024 Case Name: Jamilah Duncan v. Jamisha Duncan Case No.: 22STCV33544 Related Case: 23CMCV00583 Motion: Motion for Order (1) Approving Attorneys Fees to Plaintiffs Counsel in the Amount of $50,754.50 [Net $43,689,39]; (2) Approving Supplemental Fees to Partition Referee in the Amount of $6,377.50; (3) Ordering that Balance of the Funds be Interpleaded due to Conflicting Claims Moving Party: Plaintiff Jamilah Duncan Responding Party: None as of July 12, 2024 Tentative Ruling: Plaintiffs Motion for Order (1) Approving Attorneys Fees to Plaintiffs Counsel in the Amount of $50,754.50 [Net 43,689,39]; (2) Approving Supplemental Fees to Partition Referee in the Amount of $6,377.50; (3) Ordering that Balance of the Funds be Interpleaded due to Conflicting Claims is GRANTED. I. Background On October 12, 2024, Plaintiff Jamilah Duncan filed this action against Defendants Jamisha Duncan, Jahlil Vigil and Natalie Gergely alleging (1) Partition of Real Property; (2) Battery; (3) Negligence; (4) IIED; and (5) NIED. Plaintiff owns a 50% interest in 246 East 135 th Street, Los Angeles, CA (the Property) as a tenant in common with Defendant Jamisha Duncan. Plaintiff seeks an order for partition of the Property. Plaintiff also alleges that Defendant Jamisha Duncan and Jahlil Vigil attacked her on June 16, 2022. On February 23, 2024, the court approved a partition by sale of real property, which sale closed on April 16, 2024. Sales proceeds in the amount of $150,883.82 were deposited with the Court on April 24, 2024. Thereafter, on May 3, 2024, the Court directed that this motion for fees should be filed and set for hearing on July 16, 2024. II. Discussion A. Applicable Law The costs of partition include: (a) Reasonable attorney's fees incurred or paid by a party for the common benefit. (b) The fee and expenses of the referee. (c) The compensation provided by contract for services of a surveyor or other person employed by the referee in the action. (d) The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action. (e) Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit. (Code Civ. Proc., § 874.010.) The costs of partition as apportioned by the court may be ordered paid in whole or in part prior to judgment. (Code Civ. Proc., §874.110(a).) The proceeds of sale for any property shall be applied in the following order: (a) Payment of the expenses of sale. (b) Payment of the other costs of partition in whole or in part or to secure any cost of partition later allowed. (c) Payment of any liens on the property in their order of priority except liens which under the terms of sale are to remain on the property. (d) Distribution of the residue among the parties in proportion to their shares as determined by the court. (Code Civ. Proc., §873.820.) The court must order that all the sale proceeds and any security be either transferred to the interested persons or held for their benefit. The proceeds may be held by being deposited in court, placed in trust, invested in California or federal Government bonds, or deposited in a savings account in a federally insured institution. (Code Civ. Proc., § 873.810.) Holding proceeds may be appropriate, for example, pending resolution of a dispute over payment of a lien. (Legislative Com. Comment to C.C.P. 873.820.) (See C.E.B., 1 Real Property Remedies and Damages 2d, § 8.81 et seq.) (12 Witkin, Summary (11 th ed. 2017), Real Prop, §80.) B. Request for Attorneys Fees Reasonable Plaintiff incurred attorneys fees of $50,754.50 for the common benefit based on 10 hours of legal work drafting and filing the Complaint and obtaining defaults, approximately 50 hours in connection with law and motion practice in this action and approximately 20 hours in connection with settlement discussions with Defendant Jamisha Duncan, negotiations with the foreclosing lender, negotiations with Defendants former attorneys, both of whom filed liens and/or lis pendens, conversations with the partition referee, and drafting various stipulations re: agreements to vacate on close of sale and agreements to release liens in return for an order depositing all funds with the clerk of court. (Motion, Butler Dec., ¶¶5-7.) The remaining time was spent on miscellaneous court proceedings or communications with other parties or the partition referee. ( Id. ) Plaintiff requests a net attorneys fee award of $43,689.39. Plaintiffs explanation for this amount is unclear. Plaintiff claims there the net sales proceeds were $258,765.86. Plaintiff then states The subtraction of outstanding fees of $57,132.00, leaves a balance of $201,633.86. (Motion, 5:19-20.) There is no explanation as to what these outstanding fees in the points and authorities or Butlers declaration. The accuracy of Plaintiffs calculation of the balance of sale proceeds therefore cannot be confirmed. Accepting the accuracy of Plaintiffs calculation of the net sales proceeds, Plaintiff and Defendant Jamisha were entitled to half of that amount$100,816.93. A judgment lien against Plaintiff was paid from the sale proceeds through escrow in the amount of $107,882.04. As such, Plaintiff received $7,065.11 more than she was entitled to from the net sales proceeds ($107,882.04-$100,816.93). Plaintiff states that amount should be deducted from Plaintiffs attorneys fees of $50,754.50, leaving a net attorney fee award of $43,689. Plaintiffs counsel submits a declaration attesting to an hourly rate of $595. (Motion, Butler Dec., ¶3.) Plaintiffs counsel attests to approximately 80 hours dedicated to the partition sale and the common benefit of the tenants in common. ( Id. at ¶¶5-7.) Plaintiffs counsel attaches copies of itemized bills for work performed on this matter. ( Id . at ¶4, Ex. 1.) Based on a review of the bills, the amount requested is reasonable and incurred for the common benefit. No opposition was filed to the request for fees. The request for attorneys fees is granted as recoverable cost of partition under Code of Civil Procedure §874.010(a). C. Request for Supplemental Award of Referees Fees Reasonable The partition referee, Charles Grimes, has already received $13,522.50 for the service rendered in this action and costs were advanced in the amount of $800. Grimes now requests an additional $6,337.50 for services rendered up to the date of discharge by deposit with the court of the net sales proceeds. Grimes provides a declaration in support of that amount for services rendered from February 9, 2024 through May 3, 2024. (Motion, Grimes Dec., Attachment). Funds were deposited with the clerk on April 24, 2024 and Grimes attended a status conferred regarding the sale on May 3, 2024. ( Id. ) The request for a supplemental award of referees fees in the amount of $6,337.50 is granted. Such fees are recoverable costs of partition under Code of Civil Procedure §874.010(b). D. Request that Balance of Funds be Interpleaded Proper Interpleader is proper whenever double or multiple claims are made & by two or more persons & such that they may [expose the person against whom the claims are asserted] & to double or multiple liability & (Code of Civ. P., §386(b).) The true test of suitability for interpleader is the stakeholder's disavowal of interest in the property sought to be interpleaded, coupled with the perceived ability of the court to resolve the entire controversy as to entitlement to the property without need for the stakeholder to be a party to the suit. ( Pacific Loan Mgmt. Corp. v. Sup.Ct. (Armstrong) (1987) 196 Cal.App.3d 1485, 1489-1490.) The function of an interpleader action is to eliminate the risk of incorrectly resolving conflicting claims. When a disagreement arises as to the ownership of said property, the holder thereof has not obligated himself to settle said disagreement and deliver the property to either of said parties in the face of conflicting claims thereto. ( Southern California Gas Co. v. Flannery (2014) 232 Cal.App.4th 477, 489 ( citing Pacific Loan Management Corp., supra and Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 876 (stakeholder not obligated to resolve the apparent dispute without the consent of the competing claimants).) Typical situations permitting interpleader include a bank escrow holder faced with conflicting claims of vendor, purchaser and purchaser's assignee; an escrow holder of a fund where one claimant notified the escrow holder that the contract was cancelled and nothing should be paid to the other claimant; and an insurance company admitting liability under a life insurance policy where conflicting claims to the proceeds existed. ( Pacific Loan Mgmt., supra , 196 Cal.App.3d at 1490.) Plaintiff asks that the court order that the remaining net sales proceeds that are due Defendant Jamisha Duncan be interpleaded with the court. Plaintiff maintains there are two attorney liens against Jamisha that have not been reduced to a judgment and therefore could not be paid from escrow. The two liens total $114,045.18, which exceeds the amount of sales proceeds due to Jamisha ($100,816.93 if Plaintiffs calculation is accepted as correct). In the face of these two competing attorney liens which exceed the amount of proceeds due Jamisha, Plaintiffs request for an order requiring interpleader is proper. At the hearing the Court will determine the custodian for the interpleaded funds. III. Conclusion Plaintiffs Motion for Order (1) Approving Attorneys Fees to Plaintiffs Counsel in the Amount of $50,754.50 [Net 43,689,39]; (2) Approving Supplemental Fees to Partition Referee in the Amount of $6,377.50; (3) Ordering that Balance of the Funds be Interpleaded due to Conflicting Claims is GRANTED.

C24-01217 CASE NAME: HANNAH VALDEZ VS. GUARDIAN/KW HILLTOP, LLC *HEARING ON MOTION IN RE: TO QUASH SERVICE OF SUMMONS FILED BY: GUARDIAN/KW HILLTOP, LLC *TENTATIVE RULING:* Before the Court is Defendant Guardian/KW Hilltop, LLC’s Motion to Quash Service of Summons. For the following reasons, Defendant’s Motion to Quash Service of Summons is granted. Factual and Procedural Background Plaintiffs filed their Complaint on May 7, 2024. Defendant Guardian/KW Hilltop, LLC (“Defendant” or “Guardian”) has a principal address in California of 151 El Camino, Beverly Hills, California. Their agent for service of process is CT Corporation System, located at 330 N. Brand Blvd., Glendale, California. On May 10, 2024, Plaintiff had a person attempt to serve the summons and complaint on Defendant. Plaintiff did not serve the registered agent, but instead sent a person to 151 El Camino to serve the papers upon Guardian. The Proof of Service of Summons indicates that the papers were left with a person identified as “Jane Doe” who was described as: “Gender: F Age: 25 Height: 5’7” Weight: 180 Race: Middle Eastern Hair: black Other: Eyes: Brown) Receptionist.” The accompanying Declaration of Reasonable Diligence includes the following description of how the service occurred: According to the front desk receptionist, there is nobody from KW Hilltop in to accept SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/10/2024 service, and she now not work for them, however there are many companies doing business at this location. Sub Served to Receptionist. The Proof of Service by Mail indicates that the Complaint, Summons, and related papers were then mailed to Defendant at 151 S. El Camino Dr., suite 110 on May 10, 2024. Defendant contends that the Court should quash the service of summons because Plaintiff failed to serve the summons in accordance with statutory requirements. Legal Standard California Code Civ. Proc., § 418.10 provides in relevant part that “A defendant . . . may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10(a).) “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 143 quoting Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-40.) “The obligation to serve a party with process is not coextensive with merely providing the party with notice of the proceeding. Even undisputed actual notice of a proceeding does not substitute for proper service of the petition or complaint.” (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206 italics in original, citations omitted.) Analysis Both parties analyze the service of process issues by reference to California Code of Civil Procedure section 416.10 and cases related thereto. That section, as the title makes clear, applies to “service on a corporation.” Defendant is a limited liability company, however, not a corporation. Like a corporation, a limited liability company is required to designate an agent for service of process on the information form filed biennially with the Secretary of State. (Cal. Corp. Code § 17701.13 (a)(2).) “[P]rocess may be served upon limited liability companies and foreign limited liability companies as provided in” section 17701.16 of the California Revised Uniform Limited Liability Company Act. (Cal. Corp. Code § 17701.16 (a).) Under section 17701.16, service on a limited liability company is effective by serving the person designated as its agent for service of process. (Cal. Corp. Code § 17701.16 (b); Weil & Brown et al., Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2020) 4:171, p. 4-26.) Under certain circumstances not applicable here, the Secretary of State can be served on behalf of a limited liability company. (Ibid.) Plaintiffs concede that they did not attempt to serve Defendant’s agent for service of process. Instead, they attempted to perform service under California Code of Civil Procedure section 416.10 by SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 07/10/2024 serving one of the persons listed as being able to accept service on behalf of a corporation. While that section allows for the service of a summons on a corporation by serving either (a) the designated agent for service of process, or (b) a limited set of corporate personnel, the California Revised Uniform Limited Liability Company Act does not allow for service on personnel of the company. (See Cal. Corp. Code § 17701.16.) Based on the above, Defendant’s motion to quash is granted.

CV-20-004851 – LATTA, ERNEST, JR vs WYNNE, SHARON – a) Defendant/Cross-Complainant’s Motion for Terminating Sanctions - GRANTED, unopposed; b) Defendant/Cross-Complainant Sharon Wynne’s Motion to Deem Request for Admissions, Set Two, Admitted – GRANTED, unopposed. a) GRANTED, unopposed. The Court finds that Plaintiff over two years later, has willfully failed to comply with the Court’s order of February 24, 2022, requiring Plaintiff to respond to Defendant’s Requests for Production within twenty (20) days of said order, or be liable to have his complaint dismissed, and with the Court’s order of November 17, 2021, compelling responses to said Requests for Production. (Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913) Accordingly, Defendant’s motion is granted. Plaintiff’s complaint dated November 20, 2020, is hereby dismissed. (Code of Civil Proc, §2023.010, §2023.030; Department of Forestry & Fire Protection v. Howell ((2017) 226 Cal.Rptr.3d 727, rehearing denied, review denied; Parker v. Wolters Kluwer United States, Inc. (2007), 149 Cal.App.4th 285; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605; Jerry's Shell v. Equilon Enterprises, LLC, (2005) 134 Cal. App. 4th 1058). b) GRANTED, unopposed. The Court finds that Plaintiff failed to timely respond to Defendant’s Request for Admissions, Set Two, propounded on Plaintiff on May 23, 2022, without substantial justification. Defendant’s motion is hereby granted. Accordingly, all objections to said discovery by Plaintiff are waived. (Code of Civil Procedure §.2033.280(a). Furthermore, Request for Admissions Numbers 1-6 in Defendant’s Request for Admissions, Set Two, are hereby deemed admitted by Plaintiff for all purposes including trial. (Civ Proc. Code §§.2033.010, 2033.020, 2033.250, 2033.280; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762).    Monetary sanctions of $310 are hereby imposed against Plaintiff. 

Case Number: 24PSCV00591 Hearing Date: July 17, 2024 Dept: 6 Plaintiff Tawa, Inc. (Retail)s Request for Entry of Default Judgment Defendant: Liming Luo TENTATIVE RULING Plaintiffs request for entry of default judgment is DENIED without prejudice. BACKGROUND This is a commercial lease dispute. On February 26, 2024, plaintiff Tawa, Inc. (Retail)[1] (Plaintiff) filed this action against defendant Liming Luo (Defendant) and Does 1 to 10, alleging causes of action for breach of contract lease agreement, account stated, and book account. Default was entered against Defendant on June 4, 2024. Plaintiff requested entry of default judgment on June 13, 2024. LEGAL STANDARD Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) declaration of nonmilitary status; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.) ANALYSIS Plaintiff seeks default judgment against Defendants in the total amount of $49,960.37, including $41,948.32 in damages, $5,838.29 in interest, $1,648.45 in attorney fees, and $525.31 in costs. The Court finds Plaintiffs request for entry of default judgment has some issues. First, Form CIV-100 incorrectly indicated that it was requesting a clerks judgment, to which the clerks office sent a notice of rejection on June 25, 2024. (Notice of Rejection Default/Clerks Judgment (6/25/24).) Plaintiff should instead complete paragraph 1, subdivision (d), on Form CIV-100. Second, the amount stated in paragraph 2, subdivision (a), of Form CIV-100 does not match the amount stated in Exhibit 4. (Form CIV-100, ¶ 2, subd. (2)(a); Plaintiffs Exhibits in Support of Request for Entry of Default Judgment, Ex. 4.) Third, Plaintiff did not provide a proposed judgment per Rule 3.1800, subdivision (a)(6), of the California Rules of Court. (Cal. Rules of Court, rule 3.1800, subd. (a)(6).) CONCLUSION Based on the foregoing, Plaintiffs request for entry of default judgment is DENIED without prejudice. [1] The parenthetical (Retail) is how Plaintiffs name is alleged in the complaint, and is not a defined term.

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HULL, ET AL. VS. THE CADLE COMPANY, ET AL. Case Number: 22CV-0200159 Tentative Ruling on Order to Show Cause Re Sanctions: An Order to Show Cause Re: Sanctions (“OSC”) issued on May 17, 2024, to Plaintiffs James Hull and Shirley Hull for failure to abide by California Rule of Court 3.110. Defendant Tri Counties Bank was amended into the Complaint on January 24, 2024. There has been no summons issued for Tri Counties Bank, and they have not been served. The matter is not at issue. No response to the OSC has been filed. Plaintiff remains in violation of CRC 3.110. Sanctions will be imposed in the amount of $250. The clerk is instructed to prepare a separate Order of Sanctions. The Court confirms today’s review hearing set for 9:00 a.m.

Case Number: 24SMCV01349 Hearing Date: July 15, 2024 Dept: I The unopposed motion to strike the answer is GRANTED. Defendant has 10 court days to file an answer that conforms to law, meaning that it is filed by and signed by counsel. After that, a default may be taken.